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Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRA No.34 of 2001 From judgment and order dated 15.12.2000 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.50 of 2000. ---------------------------- Rabindra Kumar Majhi ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Manas Chand Advocate For Respondent: - Mr. Rajesh Tripathy Addl. Standing Counsel ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 09.11.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Rabindra Kumar Majhi faced trial in the Court of learned Sessions Judge, Keonjhar in Sessions Trial Case No.50 of 2000 for commission of offence punishable under section 302 of the Indian Penal Code (hereinafter „I.P.C.‟) for commission of murder of one Giridhari Barik (hereinafter „the deceased‟) on 16.10.1999 at 5 p.m. at Balibaruan. // 2 // Learned trial Court vide judgment and order dated 15.12.2000 found that the prosecution has failed to prove the charge under section 302 of the I.P.C., however, found the appellant guilty under section 304 Part-II of the I.P.C. and sentenced him to under R.I. for a period of ten years.
Legal Reasoning
The prosecution case as per the first information report (hereinafter „F.I.R.‟) lodged by P.W.2 Gopal Charan Barik is that while the deceased was returning after repairing battery, on the river bed of Baitarani river at Balibaruan, the appellant stabbed him on his belly with a bhujali as a result of which he sustained severe injuries and was shifted to Ghasipura hospital for treatment. In absence of the Officer-in-Charge, Satyananda Barik (P.W.11), A.S.I. of Ramachandrapur Police Station registered the case on the basis of the written report presented by P.W.2 as Ramachandrapur P.S. Case No.56 dated 16.10.1999 under section 307 of the I.P.C. and he himself took up investigation of the case. During the course of investigation, he examined the informant, recorded his statement, proceeded to the spot and then to the village Balibaruan, where he found that the appellant has been detained by the villagers. The I.O. examined the witnesses, recorded their statements and the weapon of offence was produced from the possession of the Page 2 of 15 // 3 // appellant, which was under seizure list Ext.5. The appellant was also sent for medical examination and then he was arrested on 16.10.1999 and on 17.10.1999, he was forwarded to the Court of learned S.D.J.M., Anandapur. The I.O. came to know that the injured has been referred to the District Headquarters Hospital, Keonjhar and therefore, he prayed for recording of the dying declaration, if necessary. On 20.10.1999, the I.O. received the information that the deceased succumbed to the injury in the earlier morning hour. Then the I.O. proceeded to the District Headquarters hospital, Keonjhar, held inquest over the dead body, prepared the inquest report marked as Ext.2, seized the bed head ticket (Ext.7) of the deceased and then sent the dead body for post mortem examination through constables. After post mortem examination, the constable produced the wearing apparels of the deceased which were seized as Ext.4/1 and on 08.11.1999, the I.O. (P.W.11) received the post mortem examination report (Ext.9) and on that day, Rajat Kanti Mishra (P.W.12), the Circle Inspector, Anandapur took over investigation of the case and he sent the seized articles through the Court to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and on completion of investigation, he submitted Page 3 of 15 // 4 // the charge sheet against the appellant on 26.01.2000 under section 302 of the I.P.C. Prosecution Witnesses & Exhibits: During course of the trial, in order to prove its case, the prosecution examined as many as twelve witnesses. P.W.1 Santosh Kumar Dalei is an eye-witness to the occurrence who stated that on the fateful day at 04.00 p.m., the appellant stabbed the deceased with a knife on the river bank of Baitarani near village Napanga. P.W.2 Gopal Charan Barik is the cousin brother of the deceased and informant in this case. He stated that he was informed about the assault meted out to the deceased by the appellant and hearing so, he rushed to the village and saw the deceased lying in an ambulance and 2-3 towels were tightly tied on his belly. He is also a witness to the preparation of inquest report vide Ext.2. P.W.3 Krushna Parida is a co-villager who stated that on the date of occurrence, at about the time of sunset, he saw appellant was detained in a mandap in front of Hanuman Temple and the deceased was lying with injuries on his abdomen. P.W.4 Udhab Dalei is a co-villager who stated that on the relevant day at about 04.30 p.m., he heard a shout from the Page 4 of 15 // 5 // river-bed and he along with other villagers rushed to the spot and saw that the appellant had been apprehended and the deceased was lying with injuries on his abdomen. He is a witness to the seizure of knife as per seizure list Ext.5. P.W.5 Sumanta Barik stated that the police took his thumb impression in connection with death of the deceased. But he stated that he does not know the appellant. P.W.6 Sanatan Jena is an eye-witness to the occurrence who stated that at about 4 p.m. on the relevant day, when he was returning from the weekly market, he saw the appellant stabbing the deceased on his left abdomen. He further stated that due to the assault, there was profuse bleeding from the abdomen of the deceased and he ran away from the spot being nervous. P.W.7 Gangadhar Dalei is an eye-witness to the occurrence who stated that at about 04.30 p.m. on the relevant day, he saw the appellant chasing the deceased on the river bed and pierced a knife into his abdomen. He further stated that he snatched the knife from the appellant and due to such stabbing, the deceased fell down on the river bed. P.W.8 Dolagobinda Barik is the father of the deceased. He expressed his ignorance about his son having a Page 5 of 15 // 6 // business in mike sets and he also stated to be ignorant about the reason for which the appellant stabbed the deceased. He was declared hostile by the public prosecutor, who sought permission from the Court to cross-examine him. P.W.9 Dr. Harihar Prasad Parida was working as Surgery Specialist at the District Headquarter Hospital, Keonjhar. He, on police requisition, treated the deceased and proved his report vide Ext.6. P.W.10 Dr. Binod Behari Mishra was working as Assistant Surgeon at the District Headquarter Hospital, Keonjhar. He, on police requisition, conducted post-mortem over the dead body of the deceased and proved his report vide Ext.9. P.W.11 Satyananda Barik was working as A.S.I. of police, Ramachandrapur Police Station. He is the initial investigating officer of the case. P.W.12 Dibakar Mishra was posted as the Circle Inspector, Anandpur and he took over charge of investigation from P.W.11 and after completion of investigation, he submitted charge sheet. The prosecution exhibited thirteen numbers of documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Ext.3/1 is the seizure list relating to seizure of bedhead ticket, Page 6 of 15 // 7 // Ext.4/1 is the seizure list relating to seizure of wearing apparels of the deceased, Ext.5 is the seizure list relating to the seizure of knife, Ext.6 is the injury report of Giridhari Barik, Ext.7 is the bedhead ticket, Ext.8 is the medical opinion relating to weapon of offence, Ext.9 is the post mortem report, Ext.10 is the requisition for medical examination of the appellant, Ext.11 is the dead body challan, Ext.12 is the command certificate and Ext.13 is the chemical examination report. The prosecution produced a single material object. The weapon of offence, i.e. knife is marked as M.O.I. Defence Plea: The defence plea of the appellant is one of complete denial and it is stated that there was a previous dispute between the appellant and the deceased and on the date of occurrence, while the appellant was proceeding towards his sister‟s house, on the way, he was detained and falsely entangled in this case. Findings of the Trial Court: The learned trial Court, after analyzing the oral as well as documentary evidence on record, has been pleased to hold that from the evidence of the doctor and the post-mortem examination report, it has been proved that the cause of death Page 7 of 15 // 8 // of the deceased was due to injury to his abdomen and the injury was homicidal and it has also been held that the injury was caused by knife (M.O.I). The recovery of the weapon of offence from the possession of the appellant has also been accepted by the learned trial Court and the learned trial Court, after analyzing the evidence of three witnesses, i.e., P.Ws.1, 6 & 7, came to held that there was no reason to disbelieve the prosecution case as appears from their evidence that it was the appellant who was the author of the injury on the person of the deceased and he caused the injury with knife (M.O.I). The learned trial Court, however, held that there was no intention on the part of the appellant to commit the murder of the deceased, but the appellant had knowledge that such injury was likely to cause death and accordingly, held the appellant guilty under section 304 Part-II of the I.P.C. Contention of the Parties:
Legal Reasoning
Mr. Manas Chand, learned counsel for the appellant contended that even though it is the case of the prosecution, as per the statement of the three eye witnesses, i.e., P.Ws.1, 6 & 7 that knife was the weapon of offence, but in the F.I.R., it is mentioned that bhujali was used for causing assault to the deceased. Learned counsel further argued that the names of the Page 8 of 15 // 9 // eye witnesses are not there in the F.I.R. and therefore, there is every possibility that those three prosecution witnesses have subsequently been brought on record to depose falsely against the appellant as eye-witnesses to the occurrence. Therefore, once the evidence of the eye-witnesses is discarded, the other materials available on record are not sufficient to establish the guilt of the appellant. While concluding the argument, Mr. Chand submitted that the occurrence in question took place on 16.10.1999 and in the meantime, almost 24 years have passed and the appellant is now about more than 65 years of age and he has remained in custody from 17.10.1999 till he was granted bail by this Court in Criminal Appeal on 19.11.2003. Therefore, as the appellant has remained in custody for more than four years, the learned counsel submitted that even if this Court finds that the conviction of the appellant under section 304 Part-II of the I.P.C. is justified, the sentence should be reduced to the period already undergone. Mr. Rajesh Tripathy, learned Additional Standing Counsel on the hand supported the impugned judgment and argued that the three eye-witnesses are consistent and they have specifically stated as to how the appellant caused stab wound on the abdomen of the deceased and in the cross- Page 9 of 15 // 10 // examination, their evidence has not at all been shaken. The evidence of the doctor (P.W.9), who examined the deceased while in an injured condition, clearly indicates that there were incised wounds on the abdomen and after examining the weapon of offence, the doctor has opined that the knife, which was forwarded to him for examination, could cause such injury on the deceased. P.W.10, who conducted the post mortem examination, also stated that cause of death was due to to gram negative septicemia and injury on the abdomen was ante mortem in nature. In the cross-examination, he has stated that septicemia could be caused by unsterilized surgical instruments. It is argued that since there is no infirmity or illegality in the impugned judgment, the criminal appeal should be dismissed. Whether the deceased met with a homicidal death?: Adverting to the contention raised by learned counsel for the respective parties and analyzing the evidence of the two doctors, i.e., P.W.9 & P.W.10, it appears that P.W.9 was the Surgery Specialist attached to Headquarters Hospital, Keonjhar who examined the deceased on 18.10.1999 and found the following injuries on the body of the deceased: Page 10 of 15 // 11 // “(i) One incised wound of 3” in long the upper end of which is slightly cut placed over left side of abdomen. The stomach colon mesentery was protruding outside. The operative findings were: (i) One incised wound of 2” long penetrating the anterior wall of stomach bile blood were leaking into the perennial cavity; (ii) One cut injury of 3” long transacting half of the circumference of descending colon, Fecal matter and blood were coming out; (iii) Mesentery is cut and 3 big arteries were profusely bleeding at the time of operation. The whole abdominal cavity was filled with blood.” He also examined the knife, the weapon of offence and opined that the knife produced before him could cause the injury. He further stated that the deceased was admitted after surgery to the hospital as an indoor patient and was under treatment till 20.10.1999 when he died at 5.15 a.m. He has proved the bed head ticket. P.W.10 was the Assistant Surgeon attached to District Headquarters hospital, Keonjhar, who conducted the post mortem examination, has found the following four external injuries: Page 11 of 15 // 12 // “(i) Upper midline stitched wound of 5.30 c.m. over abdomen. (ii) Stitched wound 7 cm over the left side abdomen 4 cm. away from midline. (iii) A small stab wound 2 cm. x 2 cm. over right flank of abdomen for corrugated rubber drain.” He also found the following internal injuries: “(i) There was a stitched size 5 cm. wound over greater curvature. (ii) Stitched wound of size 5 cm. over sigmoid colon. (iii) stitch over fistula of 2.5 cm. x 0.5 cm just below lower sigmoid colon.” Learned counsel for the appellant has not challenged the homicidal death of the deceased. After going through the inquest report, the evidence of the two doctors and the post mortem examination report, I am of the humble view that the learned trial Court has rightly come to the conclusion that the deceased met with a homicidal death. Analysis of evidence of eye-witnesses: Now coming to the evidence of the three eye witnesses i.e. P.Ws. 1, 6 and 7, it appears that all of them have stated that it is the appellant who stabbed the deceased with a Page 12 of 15 // 13 // knife on the left side of the abdomen for which the deceased sustained injuries and he was shifted to the hospital for treatment. Though all the three eye witnesses have been cross- examined at length, but nothing could be elicited to disbelieve their evidence. The evidence on record further indicates that the appellant was apprehended at the spot and knife (M.O.I) was seized from his possession. The knife was examined by the doctor (P.W.9), who has opined that the injury on deceased could be caused by such weapon. Therefore, not only the evidence of the eye-witnesses, but also from the other corroborating evidence coupled with the evidence of the doctors, it is proved that the appellant has caused the stab wound on the deceased on his left side belly which ultimately resulted in his death. Merely because P.W.2, who is a post occurrence witness, has stated in the F.I.R. that bhujali was used for stabbing the deceased, the same cannot be a ground to disbelieve the prosecution case and especially when it is uncontrovertibly proved by the version of the three eye-witnesses that the deceased was stabbed by the appellant with a knife. Similarly the absence of names of the three eye-witnesses in the F.I.R. cannot be a ground to disbelieve the prosecution case. The state of mind of the informant (P.W.2) who is the cousin brother of the Page 13 of 15 // 14 // deceased could be foreseen after coming to know about the assault on the deceased who was hospitalized in a critical condition and therefore, it is not expected of him to give all the minute details in the F.I.R. including the names of the eye- witnesses. Moreover, an F.I.R. is not supposed to be an encyclopedia and when essentially material facts are disclosed in the F.I.R., the same is sufficient. Conclusion: Taking into account the surrounding circumstances under which the occurrence has taken place and the fact that a single blow has been dealt on the deceased which ultimately proved fatal and the deceased died about three days after the occurrence, the learned trial Court has found the appellant guilty under section 304 Part-II of the I.P.C. The occurrence in question took place on 16.10.1999 and the appellant was taken into judicial custody on 17.10.1999 and he was never granted bail during trial and after he filed this appeal, he was granted bail as per the order dated 19.11.2003 and as such it appears that the appellant has remained in judicial custody for more than four years and one month. Taking into account that 24 years have already passed in the meantime and the appellant is now aged about more than 65 years of age and he is on bail since Page 14 of 15 // 15 // November, 2003, the substantive sentence is reduced to period already undergone. With the above modification of sentence, the criminal appeal is dismissed. The trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. Before parting with the case, I would like to put on record my appreciation to Mr. Manas Chand, learned counsel for the appellant for rendering his assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable assistance provided by Mr. Rajesh Tripathy, learned Additional Standing Counsel. S.K. Sahoo, J. …………………………… Orissa High Court, Cuttack The 9th November 2023/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Nov-2023 16:02:57 Page 15 of 15