The High Court · 2016
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.08 OF 2017 In the matter of an Appeal under section-383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 14th December 2016 passed by the learned Sessions Judge, Kandhamal in Sessions Trial No.146 of 2012 arising out of G.R. Case No.48 of 2012 corresponding to Balliguda P.S. Case No.12 of 2012 of the Court of learned Sub- Divisional Judicial Magistrate, Balliguda. Pitara @ Gopi Mallick ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. R.B. Dash, Advocate (Amicus Curiae).
Legal Reasoning
For Respondent - Mr. P.K. Mohanty, Addl. Standing Counsel. CORAM: MR. JUSTICE D. DASH MR. JUSTICE G. SATAPATHY DATE OF HEARING: 07.12.2023: DATE OF JUDGMENT: 19.12.2023 D.Dash, J. The Appellant from inside the jail has filed this Appeal has questioned the judgment of conviction and order of sentence dated 14th December 2016 passed by the learned JCRLA NO.08 OF 2017 Page 1 of 10 {{ 2 }} Sessions Judge, Kandhamal in Sessions Trial No.146 of 2012 arising out of G.R. Case No.48 of 2012 corresponding to Balliguda P.S. Case No.12 of 2012 of the Court of learned Sub- Divisional Judicial Magistrate, Balliguda. By the same, the Appellant (accused) has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’) and accordingly has been sentenced to undergo imprisonment for life. 2. Prosecution Case: - On 22.02.2012 around 5.00 pm Jogeswar Mallick (deceased) and his brother Pitara @ Gopi Mallick (accused) had gone to consume salapa rasa (an intoxicant drink) near a salapa trees (toddy palm-Caryota urens) owned by Jogadi Pradhan of village Srambukia. On their way, quarrel took place between them. So, it is said that out of anger, accused dealt a lathi blow on Jogeswar, causing bleeding injury on his head. Villagers namely, Radharani Mallick (P.W.6) and Jantingia Mallick somehow stopped them and Radharani Mallick (P.W.6) brought Jogeswar to her house for first aid. When Jogeswar Mallick (deceased) was being treated, the accused came with a knife and suddenly stabbed on his chest. Jogeswar being badly injured was brought home. Sometime, during late night, JCRLA NO. 08 OF 2017 Page 2 of 10 {{ 3 }} Jogeswar Mallick succumbed to the said injury. Co-villagers namely, Asish Mallick, Ranjan Pradhan and other brothers of the accused as well as Jogeswar went and informed the wife of Jogeswar namely, Nibanti Mallick (P.W.2), who was then visiting Duklamila. She returned to the village and found her husband lying dead. She (P.W.2) then lodged a written report before the Assistant Sub-Inspector of Police (ASI), Budaguda Out-Post (P.W.11) who having entered said fact in the Station Diary Book maintained at the Outpost, forwarded the written report to the Inspector-In-Charge (IIC), Buguda P.S. for registration of the case by treating it as F.I.R (Ext.7). After receiving the written report, the ASI of Police (P.W.11) conducted preliminary investigation. During course of preliminary investigation, the ASI of Police (P.W.11) visited the spot and prepared spot map. He examined the Informant and deputed the police staff to guard the dead body of the deceased-Jogeswar Mallick, held inquest over the dead body in presence of the witnesses, prepared inquest report (Ext.1) and sent the dead body of the deceased to SDH, Balliguda for postmortem examination vide challan Ext.11. The ASI, Budaguda (P.W.11) then submitted all the connected papers before the IIC, Balliguda P.S. JCRLA NO. 08 OF 2017 Page 3 of 10 {{ 4 }} Thereafter, as per the direction of the IIC, Balliguda, the S.I. of Police, Balliguda (P.W.12) took the charge of Investigation. In course of investigation, the I.O. (P.W.12) re- visited the spot, re-examined the Informant (P.W.2) and other witnesses. He prepared the spot map (Ext.12), arrested the accused on 23.02.2012 from his village, seized the wearing apparels of the accused on his own production in presence of the seizure witnesses, Ext.3/1, issued requisition in favour of the accused for his medical examination under requisition Ext.13, collected the sample blood and nail clippings of the accused under the requisition Ext.14, seized the wearing apparels of the deceased after the autopsy over the dead body of the deceased under Ext.8. The I.O. (P.W.12) received the postmortem repot from the M.O. SDH, Balliguda, sought for opinion sending the knife to the Doctor who had held PM examination. The said query requisition has been marked as Ext.9/2. The I.O. (P.W.12) received query report on the same day. Sent the seized exhibits to SFSL, Rasulgarh, Bhubaneswar for chemical examination through the learned SDJM, Balliguda. On completion of the investigation, the I.O. (P.W.12) submitted the Final Form placing this accused to face the Trial for commission of the offence under section-302 of the IPC. JCRLA NO. 08 OF 2017 Page 4 of 10 {{ 5 }} 3. Learned S.D.J.M., Balliguda having received the Final Form as above, took cognizance of the above noted offence and after observing the formalities committed the case to the Court of Sessions. That is how the trial commenced by framing charge against the accused for the said offence. 4. Learned Counsel for the Appellant (accused) submitted that the evidence of P.Ws.5 and 6, who have been projected by the prosecution as the eyewitnesses being not believable for a moment, the Trial Court ought not to have relied upon the same to fasten the guilt upon the accused, holding him to be the author of the crime. In this connection, he has invited our attention to the depositions of P.Ws.5 and 6. His submission was that although the prosecution has proved the death of Jageswar to be homicidal in nature by examining the Doctor (P.W.9), who has conducted autopsy over the dead body of the deceased and other evidence including P.Ws.5 and 6, the evidence as to the complicity of the accused in causing fatal injuries upon his brother-Jogeswar (deceased) ought not to have been held to have been proved relying on the version of P.Ws.5 and 6; who are unreliable witnesses. He, therefore, contended that that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. JCRLA NO. 08 OF 2017 Page 5 of 10 {{ 6 }} 5. Learned Counsel for the Respondent-State taking us through the evidence of P.Ws.5 and 6 at the outset, the submited that nothing has been brought out in evidence that these two witnesses were in any way enemically disposed towards the accused and thus, there was absolutely no reason, before them to falsely implicate the accused by elbowing the original culprit. It was submitted that P.Ws.5 and 6 both have stated in clear terms that in their presence, accused caused the fatal knife blow on the chest of the deceased and the same having not at all shaken when no such material has surfaced in their evidence despite cross-examination that their presence at the relevant time at the spot was doubtful and thus, they could not have witnessed the occurrence, the Trial Court did commit no mistake in holding the accused to be guilty of commission of said offence of murder of Jogeswar (deceased). 6. Keeping in view the submissions made; we have carefully gone through the judgment passed by the Trial Court and we have also extensively travelled through the depositions of the prosecution witnesses P.Ws.1 to 12 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 19. 7. It is seen from the evidence of Doctor (P.W.9), who conducted autopsy over the dead body of the deceased that JCRLA NO. 08 OF 2017 Page 6 of 10 {{ 7 }} besides noticing two abrasions i.e. one over the right eyebrow, other one on the lower eyelid, he found the wound of 2 cm x 4 cm x 5 cm deep over the xiphisternum tempering towards left and rounded edge towards right with entrance of wound directed towards right deep inside edge. It has also been deposed by him and reflected in his report, Ext.8 that as per internal examination the wound had the entry on right deep inside causing injury to the blood vessel caurtor of stomach and peritonium omentum with huge clots in the mesentry and lesser sac around lessor carvetor of stomach and injury to liver with haematoma inside. The seized knife had been placed for his examination and opinion has been given in the affirmative that with such knife, the fatal wound over the xiphisternum could have been possible. Other prosecution witnesses have stated to have seen the deceased with such injuries and that has also been the evidence of ASI of Police (P.W.11), who had held inquest over the dead body of the deceased and prepared his report, Ext.1. So, with the above available evidence which have remained un-assailed, we are left with no other option but to held that the death of Jogeswar was homicidal. 8. Coming to the complicity of the accused that he has caused such fatal injury by means of knife on the accused, we find that the prosecution case depends upon the evidence of JCRLA NO. 08 OF 2017 Page 7 of 10 {{ 8 }} P.Ws.5 and 6. Therefore, we are called upon to address the submission of the learned Counsel for the Appellant as to whether their evidence successfully pass the test of reliability. 9. P.W.5 has stated to have seen the quarrel between the accused and his brother-Jogeswar (deceased) relating to dropping of the salapa rasa (intoxicant drink). He states that the quarrel having taken, he separated them and thereafter he took Jogeswar. He left Jogeswar in the house of one Radha Mallik and at that time, the Pitara (accused) came with a knife and stabbed Jogeswar, when he was in the house of Radha Mallik. His further evidence is that there was a shout at the spot and hearing the shout, he came near the place of occurrence. He says that Radha (P.W.6) and Jatingia snatched the knife from the accused and handed it over to him. It is his evidence that Jogeswar having the injury on his chest, it was profusely bleeding having stated that he left Jogeswar in the house of Radha, when he states that the accused came with knife and stabbed Jogeswar, we find him this to be stated present inside the house of Radha at the relevant time. But the very next sentence being read, he is found to have stated that there was a shout at the spot and hearing the shout, he came near the place of occurrence. Before that he has stated that at the first instance and when there was a quarrel between the JCRLA NO. 08 OF 2017 Page 8 of 10 {{ 9 }} accused and Jogeswar, he had separated Jogeswar. He next states that Jatingia and Radha (P.W.6) then handed over knife to him by snatching it from the accused. So, it is unsafe to rely upon the evidence of this witness (P.W.5). On the score that in his presence, Jogeswar received the blow and that the accused stabbed the Jogeswar. The other important witness is Radha (P.W.6). Her evidence is on the point that when he was providing casual treatment to Jogeswar, accused came with a knife from the backyard side and stabbed aiming at the chest of the Jogeswar, causing bleeding injury. His further evidence is that he caught hold of accused and snatched the knife from him. He however states that at that time, Jatingia and Basanga (P.W.5) were present and then he (Jatingia) with Basanga (P.W.5) took Jogeswar to his house. We, however, find evidence of P.W.6 to be wholly reliable as that also find corroboration from the evidence of P.W.5, who stated to have left Jogeswar (deceased) in the house of Radha for first aid and then he has said to have arrived and seen the deceased with bleeding injury on his chest. There is absolutely no contradiction in the evidence of the P.W.6; and the evidence of P.W.6 finds corroboration from the medical evidence as also on the surrounding circumstances emerging out of the evidence of P.W.5. JCRLA NO. 08 OF 2017 Page 9 of 10 {{ 10 }} 10. On a conspectus of discussion of evidence as hereinabove, we are of the view that the finding of guilt recorded by the Trial Court against the accused for commission of the offence under section 302 of IPC is well in order and the accused has rightly been convicted thereunder. 11.
Decision
In the result, the Appeal stands dismissed and the judgment of conviction and order of sentence dated 14th December 2016 passed by the learned Sessions Judge, Kandhamal in Sessions Trial No.146 of 2012 are hereby confirmed. G. Satapathy, J. I Agree. Narayan (D. Dash), Judge. (G. Satapathy), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 20-Dec-2023 15:36:40 JCRLA NO. 08 OF 2017 Page 10 of 10