The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.78 of 2011 In the matter of an Appeal under section 383 of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 17.08.2011 passed by the learned Ad-hoc Additional Sessions Judge, Fast Track Court, Padampur in Crl. Trial (Sessions) No.49/25 of 2011. Bhagaban Mahapatra @ …. Appellant Mahapatro -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Smt. Mina Kumari Das Ms. Subhalagna Das Advocates For Respondent- Mr. P.K. Mohanty, Additional Standing Counsel
Legal Reasoning
CORAM: MR. JUSTICE D. DASH MR. JUSTICE A.C. BEHERA Date of Hearing :11.09.2023 :: Date of Judgment:14.09.2023 D.Dash, J. The Appellant, by filing this Appeal from inside the Jail, has challenged the judgment of conviction and order of sentence dated 17.08.2011 passed by the learned Ad-hoc Additional Sessions Judge, Fast Track Court, Padampur in Crl. Trial (Sessions) No.49/25 of 2011, arising out of G.R Case No.331 of 2010, corresponding to Sohela P.S. JCRLA No.78 of 2011 Page 1 of 9 {{ 2 }} Case No.152 of 2010 of the Court of the learned Judicial Magistrate First Class (JMFC), Sohela. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of Indian Penal Code, 1860 (in short, ‘the IPC’) and he has been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- (Rupees Five Thousand), in default to undergo Rigorous Imprisonment for 1 (one) year. Prosecution case:- 2. On 29.10.2010 around 8.30 am, Jamuna Bag (Informant-P.W.3) with her husband, Bhagirathi Bag and grandson Bulu as well as one co- villager namely Khireswari Bariha (P.W.4) were going from their house to the agricultural field. It was stated that on their way, when they were crossing the water of Kumka Dudha, the accused all of a sudden appeared and dealt one tangia blow on the head of her husband, Bhagirathi which resulted his instantaneous death. The matter being reported in writing by Jamuna (Informant- P.W.1) to the Inspector-in-Charge (IIC) of Sohela Police Station (P.W.11), the same was treated as FIR (Ext.11) and case being registered, the investigation was taken up. The I.O (P.W.11) examined the Informant (P.W.3) and other witnesses. He visited the spot and JCRLA No.78 of 2011 Page 2 of 9 {{ 3 }} prepared the spot map (Ext.12). On his arrival in the village, he found a large gathering encircling the accused, and he was then found to be holding an axe. The I.O (P.W.11) immediately seized the axe under seizure list (Ext.3) and arrested the accused. He then held inquest over the dead body of the deceased and prepared the report to that effect vide Ext.1. The dead body was sent for post mortem examination. Other incriminating articles such as blood stained earth and sample earth were seized from the spot under seizure list (Ext.14). The incriminating articles were sent for chemical examination through Court. On completion of investigation, Final Form was submitted by the I.O (P.W.11) placing the accused to face the Trial for commission of offence under section 302 of the IPC. 3. Learned JMFC, Sohela, having received the Final Form as above, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against the accused by framing the charge for the said offence. 4. In the Trial, the prosecution in total has examined eleven (11) witnesses. As already stated, the eye witness to the occurrence and who had lodged the written repot (Ext.1) which was treated as FIR is P.W.3. JCRLA No.78 of 2011 Page 3 of 9 {{ 4 }} P.W.4 is a co-villager who was accompanying P.W.3 and deceased and she too is an eye witness to the occurrence. Another eye witness to the occurrence, who has come to the witness box, is P.W.2. The Doctor, who had conducted post mortem over the dead body of the deceased is P.W.6 and few others are witnesses to the seizure, inquest etc. The Investigation Officer has come to the witness box as P.W.11. 5. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.17. Out of those, the important are the FIR (Ext.11), the Inquest Report being Ext.1, the Post Mortem Report has been admitted in evidence and marked as Ext.5. The Chemical Examiner’s Report is Ext.17. 6. The plea of the accused is that of complete denial and false implication. The accused, however, has not tendered any evidence in support of his defence. 7. The Trial Court basing upon the evidence of the Doctor (P.W.6), who had conducted post mortem over the dead body of Bhagirathi and on going through his report (Ext.5) as also the evidence of other witnesses including that of P.W.2, P.W.3 and P.W.4 has arrived at a conclusion that Bhagirathi has met a homicidal death. In fact this aspect JCRLA No.78 of 2011 Page 4 of 9 {{ 5 }} of the case was not under the challenge before the Trial Court and that is also the situation before us. We find from the evidence of P.W.6 that during post mortem examination, he had noticed one laceration over scalp on right fronto paraital area of size 10 cm x 2 cm x 2 cm present antero posteriority and corresponding to that laceration the paraital bone was fractured with tear of the membrane, laceration of the paraital brain and presence of blood clot. The injuries according to him were ante mortem in nature and the death was on account of such injury to the vital organ i.e. brain. His evidence is that such injuries are possible by that tangia and are sufficient in ordinary course of nature to cause death. The findings of P.W.6 find mention in his report (Ext.5) and his subsequent opinion (Ext.6), upon examination of the seized axe is also in support of his evidence as regards the possibility of the injury being caused by that axe (tangia). With the evidence of the Doctor (P.W.6), we too have the evidence of the I.O (P.W.11) who had noticed such injuries on the head of the deceased during inquest which he has reflected in the report (Ext.1) in his own language. The evidence of other eye witnesses including the wife of the deceased (P.W.3) and her companion (P.W.4)
Decision
run in the same vein. In view of the above available evidence on record JCRLA No.78 of 2011 Page 5 of 9 {{ 6 }} remaining un-impeached, we have absolutely no difficulty in concluding that Bhagirathi met a homicidal death. 8. Smt. M.K. Das, learned counsel for the Appellant (accused) submitted that the Trial Court without properly appreciating the evidence of so called eye witnesses P.W.2, P.W.3 and P.W.4 and without noticing the infirmities surfacing therein is not right in concluding that the prosecution through their evidence has proved the fact that it is the accused, who had caused that injury on the head of the deceased by means of tangia leading to his death. She further submitted that the Trial Court has failed to take note of the discrepancies in the evidence of these three eye witnesses which according to her cannot be lightly brushed aside being termed as minor discrepancies. 9. Mr. P. K. Mohanty, learned counsel for the Respondent-State while supporting the finding of guilt as has been returned by the Trial has invited our attention to the depositions of those three witnesses. According to him, there being no such infirmity in the evidence of P.W.3, the wife of the deceased being wholly reliable. He further submitted that P.W.3’s evidence stand corroborated by the evidence of P.W.2 and P.W.4 on all material aspects and the medical evidence is also standing to support. Therefore, according to him, the finding of the JCRLA No.78 of 2011 Page 6 of 9 {{ 7 }} Trial Court that it is the accused, who had dealt the tangia blow on the head of the deceased with force leading to his death is unassailable. 10. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.11 and have perused the documents admitted in evidence and marked Ext.1 to Ext.17. 11. In order to address the rival submission and thereby judge the sustainability of finding of guilt of the accused as has been held by the Trial Court, this Court is called upon to undertake the exercise of appreciation of the evidence of P.W.2, P.W.3 and P.W.4. As already stated P.W.3 is the wife of the deceased. It is her evidence that at the relevant time, she with her grandson Bulu and co-villager Khireswari (P.W.4) were proceeding from their house to their land for cutting the paddy crops and her husband Bhagirathi was going ahead of them. She has stated that when Bhagirathi was crossing the waters of Kumka Dudha, the accused suddenly gave tangia blow on his head resulting his fall and when he raised hullah, many villagers working nearby came. As per her evidence, her grandson Bulu was then only three years old and Khireswari (P.W.4) was behind her. During cross-examination, she has JCRLA No.78 of 2011 Page 7 of 9 {{ 8 }} further asserted to have seen the accused Bhagirathi giving the tangia blow on her husband and thereafter, to have fled away. This being the evidence of P.W.3, we notice no such infirmity therein since nothing has been elicited during cross-examination to doubt her version as regards her presence by showing any other circumstance in that regard. Thus we are of the opinion that her evidence is wholly reliable. The other eye witness (P.W.4) has also stated that when Bhagirathi was going ahead of them, she with P.W.3 were following and near Kumka Dudha, the accused gave a tangia blow on the head of Bhagirathi causing his instantaneous death. She has stated about her reaction in raising hullah. There is nothing on record to doubt for a moment that this P.W.4 was not accompanying P.W.3. The evidence of P.W.2 again fully corroborates the evidence of P.W.3 and P.W.4 when he states that the accused was sitting over a stone near Kumka Dudha and all of a sudden he gave a tangia blow on the head of Bhagirathi resulting his fall and death thereafter. He has stated that at that time, the deceased Bhagirathi was holding Bhara in carrying the cooking articles and he himself was engaged in work in his own land. There is nothing on record to show that the land of this P.W.2 is not situated nearby. He has further stated that when he rushed, he saw P.W.3, P.W.4 and other co- villagers which reinforces the evidence of P.W.3 and P.W.4. It is also JCRLA No.78 of 2011 Page 8 of 9 {{ 9 }} his evidence that the I.O (P.W.11) that he had seized the tangia from the possession of the accused with which as per the evidence of the Doctor (P.W.6), the fatal injury found on the deceased can be caused. In view of the above overwhelming evidence on record which according to us are clear, cogent and acceptable in proving the fact that it is the accused, who having assaulted the deceased on his head by means of tangia has caused his death, we do not find all the reasons and justifications to accord our approval to the finding of guilt of the accused as has been returned by the Trial Court in holding him liable for commission of offence under section 302 of the IPC followed by the imposition of the sentence as aforestated. 12. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 17.08.2011 passed by the learned Ad-hoc Additional Sessions Judge, Fast Track Court, Padampur in Crl. Trial (Sessions) No.49/25 of 2011 are hereby confirmed. A.C. Behera, J. I agree. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 22-Sep-2023 10:48:33 JCRLA No.78 of 2011 (D. Dash), Judge. (A.C. Behera), Judge. Page 9 of 9