The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.326 of 2011 & JCRLA No. 51 of 2011 (These two Appeals U/Ss. 374 & 383 of the Code of Criminal Procedure, 1973 respectively are directed against the common judgment passed by Shri P.C. Mohapatra, Addl. Sessions Judge (F.T.C.), Bargarh in Crl.Trial No.43/5 of 2008 arising out of G.R. Case No. 539 of 2007 corresponding to Attabira P.S. Case No.119(5) of 2007 of the Court of S.D.J.M., Bargarh) Kishore Bhoi (In CRLA No.326 of 2011) … State of Odisha -versus- … Khirasindhu Karna @ Khirod Padhan (In JCRLA No.51 of 2011) … -versus- Appellant Respondent Appellant State of Odisha … Respondent For Appellants : Mr. S.J. Mohanty, Advocate (In CRLA No.326 of 2011) & Ms. G. Majhi, Advocate (In JCRLA No.51 of 2011) For Respondents : Mr. S.K. Nayak, AGA CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :03.01.2024 DATE OF JUDGMENT:02.04.2024 G. Satapathy, J. 1. These two criminal appeals are directed against the judgment of conviction and order of CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 1 of 20 sentence dated 05.03.2011 passed by the learned Additional Sessions Judge (F.T.C.), Bargarh in C.T. No.43/5 of 2008 convicting the appellants for commission of offences punishable U/Ss. 302/324/34 of the Indian Penal Code, 1860 (in short “the IPC”) and sentencing each of them to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default whereof, to undergo further rigorous imprisonment(RI) for six months for offence U/Ss. 302/34 of the IPC, but, no separate sentence was awarded to the appellants-convicts for offence U/Ss. 324/34 of the IPC. 2. Briefly stated, the prosecution case is, one Rushav Mahakud (hereinafter referred to as “the deceased”) of village Gariatikira was the owner of a hotel located at Patrapali, which was situated near the broiler-chicken shop of P.W.4-Makhini Garia. On 04.08.2007 at about 9.30 P.M., while the deceased was gossiping with P.W.4 at later’s broiler chicken shop, the convict Khirasindhu Karna @ Khirod Pradhan came there and on seeing him, the deceased CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 2 of 20 asked “why they assaulted his(deceased) child in the presence of him”, to which the convict Khirasindhu replied “why he(deceased) misbehaved him in his hotel”. On this issue, there was a serious altercation between convict Khirasindhu and deceased Rushava and they went towards the hotel of the deceased and there, the deceased assaulted the convict Khirasindhu by means of an iron plate. On this incident, the convict-Khirasindhu ran away from the spot and returned back there after half an hour with convict Kishore Bhoi and two others namely Digbasha
Legal Reasoning
Bhoi(Juvenile) and Petu @ Srichandra Rout (absconding accused) being armed with axe and iron rods and they suddenly attacked the deceased. In the course of such attack, when convict-Kishore was about to give a blow on the deceased by means of an axe, P.W.4 caught hold of the handle of the axe held by the convict Kishore and tried to snatch away, but when others assaulted him(PW4) by means of an iron rods to his neck and head, he(PW4) fell down on the ground with bleeding injury on his head and CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 3 of 20 thereafter, all of them by encircling the deceased indiscriminately assaulted him by means of axe and iron rods. When the elder brother of P.W.4 namely PW7 Geru Garia @ Leheru tried to rescue the deceased from the clutches of the appellants- assailants, they also assaulted him(PW7) and accordingly, PW7 Geru went away from the spot by running. However, convict-Kishore assaulted on the head of the deceased by means of an axe which he was holding then and others assaulted the deceased by means of iron rods, as a result, the deceased fell down there with a pool of blood and thereafter, the assailants-convicts considering the deceased to have died fled away from the spot by leaving the deceased there. Soon after the assault, the deceased and P.W.4 were shifted to nearby hospital at Attabira on a Autorickshaw by the persons present there and the Doctor at Attabira on examination of Rushava declared him dead and treated P.W.4. After treating P.W.4, the Doctor advised him to lodge an F.I.R. at Police Station. CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 4 of 20 Accordingly, PW4 and others proceeded to Attabira Police Station by taking the dead body of Rushava in the said Autorickshaw and P.W.4-Makhini Garia orally reported the incident at the Police Station at about 11.30 P.M. on 04.08.2007 and such oral report of PW4 was reduced into writing under Ext.2 by O.I.C., Attabira P.S. P.W.13-Mihir Kumar Panda, who thereafter, registered Attabira P.S. Case No.119 of 2007 and took up the investigation of the case. 2.1 In the course of investigation, P.W.13 examined the witnesses, prepared the spot map, held the inquest over the dead body of the deceased under Ext.1 and dispatched the dead body to F.M.T. Department, V.S.S., M.C.H., Burla for Post Mortem Examination, seized the blood stained earth and sample earth from the spot under seizure list Ext.7 and sent the injured-P.W.7 Geru Garia @ Leheru for medical examination, seized the wearing apparels of the deceased under Ext.12/1. On 07.08.2007, P.W.13 arrested the convicts-Kishore Bhoi and Khirasindhu Karna @ Khirod Padhan and recovered the iron rod CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 5 of 20 (MO-II) and axe (MO-I) pursuant to the disclosure statement of the convicts and seized the same. On 08.08.2007, P.W.13 also seized the wheel wrench (MO-III) on production by juvenile Digbasha Bhoi under Ext.6 and issued injury requisition in respect of P.Ws. 4 and 7 and obtained the opinion as to his query about the possibility of the inflicting injuries on the deceased vide MOs-I to III and finally sent all the incriminating articles to RFSL, Sambalpur for chemical examination which was received under Ext.18. On completion of investigation, P.W.13 submitted charge sheet against the convicts for offences U/S 302/307/34 of the IPC by showing the accused Petu @ Srichandra Rout as absconder. 2.2 Finding sufficient materials being collected in the investigation, the learned S.D.J.M., Bargarh took cognizance of the offences U/Ss 302/307/34 of the IPC and committed the case to the Court of Sessions. The record being received on transfer, the learned Addl. Sessions Judge (F.T.C.), Bargarh proceeded with the trial by framing charge against the convicts, CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 6 of 20 who pleaded not guilty to the charge for offences U/Ss 302/307/34 of the IPC and sent for trial. This is how the trial in this case commenced. 3. In support of the charge, the prosecution examined altogether 14 witnesses and relied upon documents under Exts.1 to 18 as well as identified Material Objects under MOs.-I to III as against no evidence whatsoever by the defence. Of the 14 witnesses examined by the prosecution, P.Ws.4 and 7 are the injured eye witnesses to the occurrence, whereas P.W.12 Dukhabandhu Karna is another eye witness to the occurrence. P.Ws.1 to 3 are the waiters of the hotel of the deceased and they have stated about the incident prior to the transaction in which the deceased died. P.W.9-Dr. Manoj Kuma Jena is the doctor, who had conducted the Post Mortem Examination over the dead body of the deceased, whereas P.W.10-Dr. Biranchi Narayan Pati is the doctor, who had examined P.W.4, whereas P.W.15- Dr. Narayan Prasad Mishra is the doctor, who had examined the injured-P.W.7 and P.W.13-Mihir Kumar CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 7 of 20 Panda is the I.O. and rest of the witnesses are either the seizure witness or witness to the inquest or post occurrence witness. 4. The plea of the convicts in the course of trial was one of complete denial and false implication. 5. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellants by relying upon mainly on the evidence of injured eye witnesses P.Ws.4 and 7 and other eye witness P.W.12, so also the recovery evidence of MOs.I to III. 6. In assailing the impugned judgment of conviction, Mr. S.J. Mohanty, learned counsel appearing for the convict-Kishore Bhoi has submitted that there are material contradiction and omission available on record, but the learned trial Court has ignored such material contradiction and omission while recording the conviction against the appellant. It is also submitted by him that the learned trial Court has taken into account the recovery evidence which was not at all believable and the recovery of CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 8 of 20 MOs.I to III being not reasonably connected with the convict, it lost all its significance to be used against the convict. Mr. Mohanty by drawing attention of the Court to the evidence P.Ws.4, 7 and 12 has submitted that the witnesses had deposed differently about the time of occurrence, which creates a cloud of doubts on the version of so called eye witnesses and destroy their credibility since P.W.4 has said that the incident took place at about 9.30 P.M., whereas P.W.7 has deposed that the incident took place between 8.00 PM. to 9.00P.M. and P.W.12 has deposed that the incident took place at 10.00 P.M. It is also submitted that when there is no evidence to substantiate the charge, the conviction of the appellant is liable to be set aside. In summing up his argument, Mr. Mohanty has prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence by acquitting the appellant of the charges. 6.1 In reiterating the submission advanced on behalf of convict-Kishore Bhoi, Ms. G. Majhi, learned CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 9 of 20 counsel appearing for appellant-Khirasindhu Karna @ Khirod Padhan has submitted that the evidence of prosecution witnesses is not only full of inconsistent and contradictory, but also the conclusion arrived at by the learned trial Court is on wrong appreciation of evidence and the trial Court has taken into consideration irrelevant and unworthy evidence to convict the appellant, who is innocent of the offences. She further by highlighting the evidence of P.Ws.4, 7 and 12 has submitted that there exists material contradiction on the timing of the alleged incident as deposed to by the above three witnesses, who cannot be considered to be the truthful witnesses and therefore, the conviction recorded against the appellant is unsustainable in the eye of law. Ms. Majhi has, accordingly, prayed to allow the appeal. 6.2 On the other hand, Mr. S.K. Nayak, learned AGA by drawing attention of the Court to the evidence of P.Ws.4, 7 and 12 has submitted that the evidence of these three witnesses are not only credible, but also reliable and acceptable and they being the CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 10 of 20 injured and eye witnesses to the occurrence and the defence having not demolished their evidence in any manner, the conviction of the appellants cannot be faulted with. It is also submitted by Mr. Nayak that not a single contradiction has been elicited from the mouth of these three witnesses and the defence has failed to make any inroad in the evidence of these witnesses and why the impugned judgment of conviction cannot be sustained is never explained by the learned counsel for the appellants. Mr. Nayak ultimately has prayed to dismiss the appeal by concluding his argument. 7. For examining the sustainability of the conviction of the convicts/appellants, this Court not only feels the necessity to go through the evidence on record, but also actually went through the impugned judgment of conviction passed by the learned trial Court together with the entire evidence on record extensively and meticulously keeping in view the rival submissions. There seems no dispute that the learned trial Court has of course relied upon CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 11 of 20 the direct evidence of P.Ws.4, 7 and 12 at the first instance. In scrutinizing the evidence, the evidence of P.W.4 being one of the injured witness transpires that the occurrence took place on Saturday in the month of August, 2007 at about 9.30 P.M. and the accused persons-appellants being armed with iron rods and Tangi(MO-I) came near to him and the deceased, who were then sitting in the broiler-chicken shop and convict-Kishore by holding MO-I and others being armed with iron pipes attacked the deceased, but when he (P.W.4) caught hold of the handle of the axe (MO-I) in possession of convict-Kishore, the other three accused persons attacked him and in the process, one iron rod blow was dealt upon his head causing bleeding injury to him and he left the convict- Kishore to save himself and thereafter, they dealt blow to the deceased, who sustained cut injuries on his face, backside of neck and hands etc and the deceased fell down on the ground. According to P.W.4, the deceased was taken to hospital, so also he had been to there and the doctor declared the CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 12 of 20 deceased as dead. It is also the evidence of PW.4 that he orally reported the matter to P.S., which was reduced into writing by the O.I.C. under Ext.2 and he put his signature under Ext.2/1. On the expectation of demolishing the evidence of P.W.4, the defence cross-examined him at length, but only ended up with his(PW4) presence at the spot. The cross- examination of P.W.4 further resulted in bringing about the evidence of presence of P.W.7-Geru Garia @ Leheru at the spot and the presence of convict- Kishore standing by the right side of the deceased being armed with MO-I. It is also brought out in the cross-examination of P.W.4 that P.W.4, his nephew and Pahilman and another person shifted the deceased to hospital in a Tempo, but in the entire cross-examination of P.W.4, not a single contradiction was elicited from his mouth to discredit his evidence. Besides, the evidence of P.W.4 is squarely corroborated by F.I.R. under Ext.2 with regard to the mode and manner of assault on the deceased and the presence of P.W.7 at the spot. It is of course true CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 13 of 20 that P.W.4 has not stated about the assault on P.W.7 by the convicts, but in case of truthful witness, it is quite natural for him not to reproduce the entire story or entire transaction while giving the evidence because human memory is fallible and when there is a significant incident attracting the attention of others, it is quite naturally possible for not being able to produce some part of the incident or connected incident. 8. On coming back to evidence of P.W.7, it appears that P.W.7 has reiterated the evidence what P.W.4 has testified in the Court in addition to the evidence that when he intervened and separated the accused persons-appellants, convict-Khirod dealt an iron rod blow on his left upper arm, back side of waist and lower lip, and due to such blow on his face, he lost two of his teeth and he sustained swelling injury at the other two places. P.W.7 has also testified in the Court by saying that the deceased sustained cut injury on his lip, backside of neck, both thighs and chest. The cross-examination of P.W.7 only resulted CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 14 of 20 in proving the occurrence to have taken place in front of the shop of P.W.4 and the presence of P.W.7 at the spot, when the accused persons-convicts dealt blow to P.W.4. Further, not a single contradiction was elicited from the mouth of P.W.7 to discard his evidence in any manner in material particulars. 9. In this case, P.W.10 being the doctor, who has examined P.W.4 on police requisition has testified in the Court about the injuries sustained by P.W.4. Similarly, P.W.15 being another doctor, who examined P.W.7 has stated in his evidence alike P.W.10 that P.W.7 has sustained three lacerated wounds on the scapula, left cheek and left shoulder. The above medical evidence not only corroborates the version of P.Ws. 4 and 7, but also reveals that P.Ws. 4 and 7 had received injuries on their person, which only go to support the case of the prosecution, but also proves their presence at the spot at the time of occurrence. It is, therefore, very clear that PWs4 & 7 are the eye witness to the occurrence and the CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 15 of 20 defence could not demolish their evidence in material particulars. 10. Be that as it may, P.W.12 being an independent eye witness has stated about the occurrence corroborating the evidence of P.Ws. 4 and 7. According to P.W.12, on 04.08.2007 at about 9.00 A.M. there was an altercation between the deceased and the convict-Khirasindhu on account of quarrel between their children and at about 10.00 A.M. convict-Khirasindhu and Kishore being accompanied by Petu and Giribas came to the spot being armed with axe and iron rods and convict-Kishore was about to assault Rushav by MO-I, but P.W.4 intervened and all of them assaulted P.W.4 on his head and he (P.W.4) fell down and P.W.7 came to rescue of P.W.4, but the accused persons assaulted P.W.7 by means of iron rod and his (P.W.7) tooth was uprooted. The evidence of P.W.12 further revealed that convict- Kishore dealt an axe blow on the face of the deceased and others assaulted him by means of iron rod and the deceased fell down on the ground and they CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 16 of 20 assaulted him abruptly. In the cross-examination of P.W.12, nothing was elicited benefiting the defence, rather the evidence of place of assault and assault by the convicts got strengthened in view of the fact that it was elicited from the mouth of P.W.12 that the occurrence took place in front of the hotel and P.W.4 became senseless and first axe blow of convict- Kishore hit on the face of deceased-Rushav and he fell down there. There is nothing to disbelieve the evidence of P.W.12. A careful and thorough scrutiny of evidence of P.Ws. 4, 7 and 12, it appears to the Court that the prosecution has established its case against the convicts for giving fatal blows to the deceased causing his death and causing hurt to P.Ws.4 and 7 beyond all reasonable doubt by leading clear, cogent and acceptable evidence. 11. The oral evidence of P.Ws. 4, 7 and 12 with regard to homicidal death of the deceased were squarely corroborated by the medical evidence of Doctor-P.W.9- Manoj Kumar Jena, who has not only vividly described the external and internal injuries on CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 17 of 20 the deceased, but also has given opinion about all the injuries individually. According to P.W.9, the death was due to injuries to the vital organ-brain along with shock and hemorrhage resulted from all other injuries and the external injuries Nos.(i) to (iv) and (viii) with the corresponding internal injuries of injury Nos. (i) & (ii) would be possible by the sharp edge of the axe- MO-I, which was sent to him for giving opinion. The above medical evidence was remained firm since nothing was elicited from the mouth of the doctor in cross-examination to discredit his evidence. P.W.1 to 3 have also stated about the motive behind crime which according to them was for the deceased giving slap to accused-Kishore. Besides, P.W.6 being the witness to seizure and disclosure of convicts giving recovery of weapons, has testified and stated in his oral testimony that while the accused-Kishore being in custody had voluntary disclosed to have concealed MO-I inside a sand heap near Nilam Rice Mill and accused-Khirasindhu while being in custody had voluntary disclosed to have concealed the iron rod- CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 18 of 20 MO-II in his house and both the convicts led the Police Party as well as them to the respective place of concealment and gave recovery of MOs-I and II, which were seized. It is of course true that the chemical examination does not disclose about the presence of blood stains in MOs.I to III, but the same cannot assume great significance in view of the consistent evidence of eye and injured witnesses to the occurrence. 12. On a careful conspectus of evidence on record together with the discussions made hereinabove, this Court has no hesitation to concur with the findings of the learned trial Court which has rightly convicted appellants for offence U/S 302/324/34 of the IPC by considering the prosecution to have established its case beyond all reasonable doubt. 13. Resultantly, both the appeals stand dismissed on contest. Consequently, the judgment of conviction and order of sentence dated 05.03.2011 passed by the learned Additional Sessions Judge (F.T.C.), CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 19 of 20 Bargarh in C.T. No.43/5 of 2008 are hereby confirmed. 14. Since the sentence of the appellant-Kishore Bhoi was directed to be suspended by an order of this Court passed on 05.02.2021; and the convict Khirasindhu Karna @ Khirod Pradhan was directed to go on bail by an order of this Court passed on 14.09.2015; both the appellants are hereby directed to surrender to custody to suffer their sentence, failing which the trial Court is at liberty to take appropriate steps in accordance with law. (G. Satapathy) Judge D.Dash, J. I Agree (D.Dash) Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 03-Apr-2024 19:08:37 Orissa High Court, Cuttack, Dated the 2nd day of April, 2024/S.Sasmal CRLA No.326 of 2011 & JCRLA No.51 of 2011 Page 20 of 20