The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.62 OF 2016 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 22.10.2016 passed by the learned Additional Sessions Judge, Nimapara in Sessions Trial No.35/329 of 2016. Bijay @ Parama Mallik ….. Appellant ---- State of Odisha ….. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Ms. Prativa Mishra, Advocate, For Respondent - Mr. P.K. Mohanty, Additional Standing Counsel. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING :03.08.2023 : DATE OF JUDGMENT: 11.08.2023 D.Dash, J. The Appellant from inside the jail has challenged the judgment of conviction and order of sentence dated 22.10.2016 passed by the learned Additional Sessions Judge, Nimapara in Sessions Trial No.35/329 of
Legal Reasoning
2016 arising out of G.R. Case No.134 of 2006 corresponding to Konark P.S. Case No.24 of 2006 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Nimapara. The Appellant (accused), thereunder has been convicted for committing offence under section-302 of the Indian Penal Code, 1860 Page 1 of 12 JCRLA No.62 of 2016 {{ 2 }} (for short ‘the IPC’) and he has been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- in default to undergo rigorous imprisonment for one year. 2. Prosecution Case:- On 04.03.2006 at about 1.00 pm one Subash Chandra Pradhan (Informant-P.W.10) lodged a written report with the Inspector-In-Charge (IIC), Konark Police Station that on 27.02.2006 around 1.30 am, this accused-Bijay @ Parama Mallik, who was working under him attacked his brother-Pitabas Pradhan with a spade, causing bleeding injuries. Thereafter, being taken for treatment to Puri Hospital, he has referred to SCB Medical College and Hospital, Cuttack. At the relevant time of lodging of the information, Pitabas was undergoing treatment in the intensive care unit of the Hospital at Cuttack. Receiving the report as above, the IIC treated the same as F.I.R.(Ext.3) and registering the case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.-P.W.21) examined the Informant (P.W.10) and other witnesses. He then visited the spot. He seized spade from that spot, which is a hut located at the end of village Khalakatapatna and prepared seizure list to that effect. He also recorded the statements of other witness under section-161 of the Cr.P.C. On the next day, he went to the SCB Medical College and Hospital JCRLA No. 62 of 2016 Page 2 of 12 {{ 3 }} where Pitabas was undergoing treatment. Sometime later, he received the telephonic message from the IIC, Mangalabag P.S. that Pitabas in course of treatment died and Mangalabag P.S. U.D. Case No.192 of 2006 had been registered. He then collected all required documents, such as the inquest report, postmortem report etc, prepared in that U.D. case. On his transfer, he handed over the charge of investigation to his successor in office. The accused was however not traced out despite all efforts in that regard. So, finally, the second I.O. (not examined as he was by the time of trial was dead), submitted the Final Form indicating therein that the accused could not be traced out. When the matter stood thus on 15.05.2011, Sub-Inspector (S.I.) of Police, Konark P.S. (P.W.22) received VHF message from IIC, Nimapara P.S. that in Nimapara P.S. Case No.69 of 2011, this accused- Bijay had been arrested and he while in police custody confessed to have committed murder of Pitabas Pradhan on 27.02.2006. The accused was then forwarded in custody to the Court in connection with that Nimapara P.S. case. The investigation of the present case thus was reopened. The S.I. of Police (P.W.22) then proceeded to Nimapara P.S. and recorded the statement of the IIC, Nimapara P.S. He also by making application got the test identification parade conducted in Nimapara Sub-Jail through Page 3 of 12 JCRLA No. 62 of 2016 {{ 4 }} J.M.F.C. Nimapara. P.W.22, the S.I. of Police, Konark P.S. then made a prayer in the Court of learned J.M.F.C., Nimapara to take this accused on remand in connection with the present case. He then handed over the charge of investigation to the then IIC, Konark P.S. On completion of investigation, the I.O. (P.W.23) submitted the Final Form, placing the accused to face the trial for commission of offence under section-302 of the IPC. 4. Learned J.M.F.C., Nimapara having received the Final Form as above, took cognizance of the said offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused. 5. In the Trial, the prosecution in total has examined twenty seven (27) witnesses. P.W. 1 has been examined as an eye witness to the occurrence. P.W.2 is the immediate post occurrence witness whereas P.W.4, P.W. 5, P.W. 7, P.W.12, P.W.13, and P.W.17 are the post occurrence witnesses. The person, who had arrayed the job under one Ramesh Pradhan (P.W.9), has been examined as P.W.6. The previous employer of the accused is P.W.8. P.W.6, P.W.9 and P.W. 10 are the brothers of the deceased. The tailor who had stitched the shirt of the accused at the instance of the Informant (P.W.10) has been examined as Page 4 of 12 JCRLA No. 62 of 2016 {{ 5 }} P.W.11. The Prof. of FM &T of SCB Medical College and Hospital, Cuttack, who had made autopsy over the dead body of the deceased, has come to the witness box as P.W.14. P.W.15 is the scribe of the F.I.R.(Ext.3) lodged by P.W.10. The J.M.F.C., Nimapara, who had conducted test identification parade of the accused, has been examined as P.W.18; whereas P.W.19 is the witness to the inquest. P.W.22 and P.W.23 are the Investigating Officers whereas P.W.24 is the S.I. of Police attached to Mangalabag P.S. P.W.25. P.W.26 and P.W.27 are the witnesses to the seizure of incriminating articles made in course of investigation. 6. The prosecution besides leading evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 11. Out of those, the important are the F.I.R. (Ext.3), postmortem report (Ext.4), inquest report, Ext. 8 and the statement of the accused pursuant to which the recovery of shovel (Fauda-M.O.-I) and the mat (M.O.-II) was made. The test identification parade report is Ext.2/1 and the concerned seizure list is Ext.1. 7. The plea of the accused is that of complete denial and false implication. However, no witness has been examined in his defence in support of the said plea. JCRLA No. 62 of 2016 Page 5 of 12 {{ 6 }} 8. The Trial Court on going through the evidence of the Prof. FM&T of S.C.B. Medical College and Hospital (P.W.14) and his report Ext.4 has held the death of Pitabas to be homicidal. In fact this aspect of the case was not challenged during the Trial and that is also the situation before us. P.W.14, the Doctor during postmortem examination has noted three (3) stitched incised wounds over the dead body; one extending from the medial end of right eye brow from the frontal head to the left parietal eminence; the other one extending from the left lateral end of eye brow to the parietal head in an entro posterior direction; and the last one, over the lateral aspect of the right thigh. On dissection, the skull bone of the right parietal head revealed a cut fracture where a bore hole operation was noticed with repair of dura under it. The under surface scalp found contused. He also found subdural haemorrhage present defusedly over the whole of cerebrum where both frontal and right parietal brain contused and lacerated. It has been deposed by P.W.14 that all the injuries were antemortem in nature and to have been caused by a sharp cutting weapon. According to him, each of the injuries near the eyes are individually fatal to cause the death, in ordinary course of nature and his specific evidence is that the cause of death was due to cranio-cerebral injuries. JCRLA No. 62 of 2016 Page 6 of 12 {{ 7 }} Besides the above evidence, the evidence of the other witnesses examined from the side of the prosecution run on the score that they had seen deceased with such injuries. The S.I. of Police attached to Mangalabag P.S. (P.W.19), who had held inquest over the dead body of the deceased and prepared his report Ext.8 had indicated all those injuries thereon. Above overwhelming evidence when has not faced any challenge from the side of the defence, we wholly concur with the finding of the Trial Court that Pitabas met a homicidal death. 9. Learned Counsel for the Appellant (accused) submitted that the evidence of P.W.1 and P.W.3, who had been projected by the prosecution as the eye witnesses having not been properly appreciated by the Trial Court erroneously reliance upon the same has been placed in concluding the deceased to have caused all such fatal injuries upon the deceased. She further submitted that evidence of P.W.1 and P.W.3 do not tally with each other and none of them have seen the accused to have assaulted the deceased and therefore, simply because the accused was not near them in the place where he was sleeping, the Trial Court ought not to have held the accused to be the author of the injuries caused on the deceased. She further submitted that the evidence of P.W.9 and P.W.10 are of no avail to the prosecution and the Trial Court did commit error in relying upon their version. She therefore, submitted that when the JCRLA No. 62 of 2016 Page 7 of 12 {{ 8 }} prosecution evidence is not clear on the point that it is the accused, who had assaulted the deceased in that relevant night, the finding of guilt returned by the Trial Court is simply based on suspicion and thus the conviction although moral cannot stand as being not legal. 10. Learned Counsel for the State while supporting the finding of guilt against the accused as has been returned by the Trial Court contended that the evidence of P.W.1, P.W.3, P.W.9 and P.W.10 being read, there surfaces no such infirmity and the prosecution has well established the charge against the accused through leading the evidence through those witnesses beyond reasonable doubt. 11. 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 i.e. P.Ws. 1 to 27 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 11. 12. In order to judge the sustainability of the finding of guilt against the accused as has been returned by the Trial Court, it would be proper to have a critical look over the evidence of P.W.1, P.W.3, P.W. 9 and P.W.10. JCRLA No. 62 of 2016 Page 8 of 12 {{ 9 }} P.W.1 having specifically identified this accused the during trial by indicating certain special mark as finds mention in the deposition as to the prominent black mole beside the left side nose on left face has stated that during that night, he, deceased-Pitabas, Akshaya (P.W.3) and the accused were sleeping together in a hut located close to the prawn culture pond. He has stated that during that night, accused by pouring kerosene in a Dibi (small lamp) poured some kerosene on the ground and therefore, deceased-Pitabas expressed his displeasure. So, there was hot exchange of words and altercation between accused on one hand and deceased on the other. He further states that accused then spreading the mat slept on the floor and at that time, the leg of the accused hit the Dibi (small lamp) and the lamp got displaced. So, the deceased then also expressed his displeasure and thereafter the deceased having properly set the Dibi (small lamp), went for sleep. He has further stated that around 1.30 am, he heard the cry of the deceased and saw him boating his lands and legs on the ground under severe pain, when he saw the accused making his way out of the hut holding kodala stained with blood. He further states that accused being chased, managed to flee away by throwing the kodala near the entrance of the hut in that dark night. His further evidence is that there after, Akshaya (P.W.3) woke up and they took Pitabas to the Hospital. Despite scathing cross-examination, we JCRLA No. 62 of 2016 Page 9 of 12 {{ 10 }} find that the evidence of this witness as to the happenings in the night inside that hut have not been shaken nor any such feature has been elicited from him to raise any doubt in mind as to his presence in the relevant night in the said hut. His evidence of course is not to have seen the accused dealing the blows on the deceased. But his evidence has remained firm on the ground that when he woke up hearing the cry; he saw the accused trying to make his way out of the hut holding kodala stained with blood and then the deceased was boating his forelimbs out of pain with profuse bleeding on account of severe injuries sustained by him and the only other person i.e. P.W.3, who was sleeping with them is stated to have woken up later. Save and except, bare denial, the accused is not providing any explanation whatsoever. The other person who was sleeping with P.W.1, deceased and the accused in the said hut is P.W.3. It is his evidence on around 1.30 am, when he woke up, he found deceased lying on the floor with severe bleeding injuries on his face and his eye balls were almost uprooted. He has also stated to have seen the kodala lying close to the entrance. He further states to have then immediately gone to the house of Balia and told about the murderous assault upon Pitabas by this accused-Bijay. He has identified the accused in the test identification parade held in Nimapara Sub-Jail being conducted by the Judicial Magistrate First Class (P.W.18). He appears to JCRLA No. 62 of 2016 Page 10 of 12 {{ 11 }} be a truthful witness having not gone to state as to have seen the accused dealing the deadly blows upon the deceased. No cross-examination appears to have been directed to entertain any doubt on his version either as to his presence in the hut in the relevant night or that he could not have seen that he states. The evidence of this witness is getting corroboration from the evidence of P.W.9, who has the brother of the deceased, who has stated that accepting request of P.W.6, he had employed the accused and that P.W.1, P.W.3 and accused were staying in that hut located closed to the prawn pond for keeping a watch over the area. P.W.10 had stated that in that relevant night, Pitabas (deceased), the accused, P.W.1 and P.W.3 had gone to the hut to sleep and that he being the younger brother of P.W.9 had the knowledge about that. The J.M.F.C., P.W.18 has deposed that he had held the test identification parade, putting this accused with other similar looking persons in Nimapara Sub-Jail. He has also stated that after observing all legal formalities, the T.I. parade had been held by him. As per the evidence of P.W.18, the Informant (P.W.10) had correctly identified the accused in stating that he was working under him. It is also his evidence that P.W.1 and P.W.3 had also correctly identified the accused stating as to what they had seen in the relevant night. This evidence provide further corroboration to the evidence of Page 11 of 12 JCRLA No. 62 of 2016 {{ 12 }} P.Ws. 1 and 3. There appears no such discrepancy in the evidence of P.W.1, P.W.3, P.W. 9 and P.W.10 and more particularly, P.W.1 and P.W.3 are found to have deposed in a natural manner and their conduct is also in tune with what was ordinarily expected from in that situation; so also their response / reaction after them saw deceased Pitabas lying with severe bleeding injuries on his face with eye balls almost in uprooted condition. All the above discussed evidence on record free from any such glaring infirmity so as to be thrown aside, we are led to conclude that the prosecution has established the charge against the accused by leading clear, cogent and acceptable evidence against the accused beyond reasonable doubt. 13. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 22.10.2016 passed by the learned Additional Sessions Judge, Nimapara in Sessions Trial Case No.35/329 of 2016 are hereby confirmed. Dr.S.K. Panigrahi, J. I Agree. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 17-Aug-2023 15:39:26 Narayan JCRLA No. 62 of 2016 (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Page 12 of 12