HIGH COURT OF ORISSA,
CUTTACK
JAIL CRIMINAL APPEAL NO.17 OF 2000
From the judgment and order dated 18.12.1999 passed by Shri B.K.Nayak,
Sessions Judge, Bolangir in S.C. No.73-B of 1998.
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Arjun Kalasi ...... Appellant
Versus
State of Orissa ...... Respondent
For Appellant : Mr. K.B. Kar
For Respondent : Mr. J.P.Pattnaik,
Additional Govt. Advocate.
PRESENT:
THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HONOURABLE SHRI JUSTICE B.P. RAY
Date of hearing and judgment: 09.03.2010
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PRADIP MOHANTY, J. The appellant has assailed the judgment and order dated
18.12.1999 passed by the learned Sessions Judge, Bolangir in S.C. No. 73-
B of 1998 convicting him under Section 302, IPC and sentencing him to
undergo imprisonment for life.
2. The case of the prosecution is that Samaru Barik (P.W.1) orally
reported before Khaparakhol Police Station on 14.06.1998 that on the same
day at about 8.00 A.M. while deceased Akshaya Barik was taking the goats
of his master for grazing, the accused-appellant assaulted him in presence
of P.W.4 and one Bipin Bariha by means of a tangia (axe) near an electric
pole in his village causing serious bleeding injury on the neck which
resulted in the death of the deceased on the spot. Hearing the occurrence,
both the parents and uncle (P.W.1) of the deceased rushed to the spot and
found him lying on the spot with injury on his neck. In absence of the
O.I.C., the A.S.I. (P.W.9) reduced the oral report to writing, registered the
case and proceeded with the investigation. On arrival of the O.I.C., P.W.9
handed over charge of investigation to him and after completion of
investigation the O.I.C. submitted charge sheet against the appellant under
Section 302, IPC. On commitment of the case to the Court of Session, the
appellant faced trial under Section 302, IPC.
3. During the course of trial, the appellant took the plea of
complete denial. The prosecution in order to prove its case examined as
many as ten witnesses including the doctor and the I.O. and proved fifteen
documents. Defence examined none. The learned Sessions Judge on
conclusion of the trial found the appellant guilty and convicted and
sentenced him as already stated herein before.
4. Perused the LCR. P.W.1 is the informant and the uncle of the
deceased. He deposed that on hearing from Girna Kalari that the appellant
was assaulting the deceased near an electric pole, he proceeded to the spot
and found the deceased lying there with bleeding injury on his neck. The
mother of the deceased was weeping there. He went to the Ward Member
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but did not find him. On the advice of his elder brother (father of the
deceased), he went to Khaparakhol Police Station and reported the matter
orally, which was reduced to writing by the police. The contents of the
report were read over and explained to him and finding the same correct, he
put his signature. He proved the FIR Ext.1 and his signature thereon
marked Ext.1/1. Nothing has been elicited in his cross-examination. P.W.2
is a witness to the inquest. P.W.3 is an independent witness, who stated in
his evidence that on the date of occurrence at about 4.00 P.M. the police
took the accused to custody and on interrogation by the police the accused
admitted to have killed the deceased by assaulting him by means of a tangia
and concealed the same in a Kendu bush of his land. The I.O. recorded the
statement of the accused in a separate sheet on which the accused put his
LTI. The accused, thereafter, led the police and the witnesses to the place of
concealment and gave recovery of the tangia (M.O.I) which the police seized
vide Ext.9. In cross-examination, this witness admitted that the Kendu
bush from where the accused brought out the tangia stands in an open
place. Except this, nothing has been elicited from his cross-examination.
P.W.4 in his evidence specifically stated that on the morning of the date of
occurrence he himself, the deceased and one Bipin Bariha went to the
house of Bibhisan Kara (P.W.5), since the deceased was tending the goats of
P.W.5. Deceased took his meal in the house of P.W.5, while he and Bipin
remained waiting outside. After a while, both P.W.4 and Bipin came to the
road and the deceased followed them with the goats of Bibhisan. When they
were going ahead of the deceased to bring their goats for grazing, the
accused was coming with his buffaloes for the purpose of grazing. He was
holding a tangia. While they were proceeding, they heard a cry from their
back side and a falling sound. On turning back, they found that the
appellant had dealt a blow by means of the tangia he was holding on the
back of the deceased and the deceased had fallen down. Thereafter, out of
fear they went away. On reaching his house, P.W.4 disclosed the incident
before his father. Bipin went away to his house. In cross-examination, he
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admitted that the accused was coming from the right side of the deceased.
There was no quarrel between the deceased and the accused. By the time
he turned back, the deceased had already fallen down. The accused
dealt one blow after the deceased fell down. Except this, nothing substantial
has been brought out from him. P.W.5 is the master of the deceased. He
specifically stated in his evidence that in the morning of the date of
occurrence, the deceased came to his house along with Ranjaya Saraf
(P.W.4) and Bipin Bariha. While the deceased was taking his meal, the
other two boys kept waiting. After the deceased took his meal, P.W.4 and
Bipin left his house followed by deceased with his goats. A little later,
hearing hullah he went to the spot and found the deceased lying on the spot
near the electric pole having sustained bleeding injury on his neck. Nothing
has been elicited in his cross-examination. P.W.6 is the mother of the
deceased. She deposed that the deceased used to tend the goats of P.W.5
with Bipin and P.W.4. While she and her husband were in the house, her
nephew Chintamani came and told them that the appellant had assaulted
the deceased. Immediately, she ran to the spot, which was near the electric
pole. Her husband followed her. She found her son lying dead on the spot
with bleeding injury on his neck. Nothing has been elicited from her in
cross-examination. No suggestion was also given to her. P.W.7 is a witness
to the seizure of the wearing apparels of the accused vide Ext.4. In cross-
examination, he stated that by the time the wearing apparels of the accused
were seized, he was in the custody of the police. P.W.8 is the doctor who
conducted autopsy over the dead body of the deceased. He opined that the
cause of death was due to haemorrhage and shock. Injury no.2 individually
was sufficient to cause death in ordinary course of nature. He also opined
that the cut injuries found on the body of the deceased were possible by the
axe (M.I). P.W.9 is the ASI of police who was in charge of the O.I.C. on the
date of occurrence. It is he who registered the case and took up
investigation in absence of the OIC and arrested the accused. He specifically
stated that while the accused was in police custody he admitted to have
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assaulted the deceased by means of a tangia and concealed the same inside
the Kendu bush near his house. Stating so, he led the police and the
witnesses and gave recovery of the tangia which he seized under
Ext.9. He recorded the statement of the appellant in separate sheets under
Ext.10. On arrival of the OIC (P.W.10), he handed over the charge of
investigation to him. In cross-examination, he admitted that the spot map
prepared by him does not reveal that there are houses near the spot. He
also admitted that he examined witnesses Padu Barik, Ranjaya Saraf, Girna
Kalari, Natha Nag, Bijaya Kumar Mishra, Ramdas Kalari, Kunjabihari Panda
and Hadu Bari. P.W.10 was the OIC of Khaprakhol P.S. at the relevant time.
He took over the charge of investigation from P.W.9. He seized the wearing
apparels of the accused vide Ext.4 and that of the deceased vide Ext.12 in
presence of the witnesses. He made a query to the Medical Officer,
Khaprakhol P.H.C. to opine as to whether the injuries on the person of the
deceased could be caused by the seized axe (M.O.I). He sent the seized
articles to RFSL, Sambalpur for chemical examination and on completion of
investigation submitted the charge sheet.
7. Mr. Kar, learned counsel for the appellant strenuously
contends that the prosecution has not examined the material witness Bipin
Bariha. At the time of discovery of the weapon of offence, the appellant was
not in police custody. He was arrested by P.W.10 after 4.00 P.M. He further
contends that no blood stains were found either on the axe or in the lungi of
the appellant. The evidence of P.W.4 has not been corroborated by any other
witness. Therefore, the prosecution has not been able to prove the charge
under Section 302, IPC against the appellant.
8. Mr. Pattnaik, learned Additional Government Advocate, on the
other hand, contends that there are direct materials against the appellant.
P.W.4 is an eye witness and his evidence is very clear and cogent with
regard to the assault by the appellant to the deceased by means of the axe.
The appellant gave recovery of the weapon of offence from the Kendu bush
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and it has been proved by the I.O. and independent witnesses. He further
contends that blood stains were found from the towel of the accused.
Therefore, it can be safely concluded that the accused has committed the
crime and the trial court has rightly convicted and sentenced him.
9. On scanning of the evidence on record this Court finds that
P.W.4 is an ocular witness. His evidence does not suffer from any
contradiction. Rather, his evidence gets corroboration from P.W.5, the
master of the deceased, who stated that on the morning of the date of
occurrence the deceased, P.W.4 and one Bipin Bariha had come to his
house where the deceased took his morning meal. P.W.5 also corroborated
the evidence of P.W.4 that the deceased followed him and Bipin with the
goats of P.W.5. This P.W.4 has no enmity with the appellant. P.W.6, the
mother of the deceased, also stated that in the morning of the date of
occurrence, the deceased went to the house of his master (P.W.5) with P.W.4
and one Bipin Bariha. Although P.W.4 was cross-examined at length,
nothing substantial has been brought out to disbelieve his evidence. He
specifically stated that assault was given by the appellant to the deceased
by an axe which is also corroborated by the medical evidence. The evidence
of P.W.4 appears to be very clear, cogent and trustworthy. Moreover, the
tangia was recovered in presence of P.W.3. P.W.3 is an independent witness
who has no axe to grind against the appellant. Police seized the tangia vide
Ext.9 and recorded the statement of the appellant vide Ext.10. There is no
dispute with regard to recovery of the weapon of offence (M.O.I). After taking
charge from P.W.9, P.W.10 formally arrested the appellant. ‘Custody’ for the
purpose of Section 27 of the Evidence Act and Section 46 of the Cr.P.C. does
not mean arrest. P.W.10 formally arrested the accused at 4.45 P.M., but he
was in the custody of P.W.9 till he was formally arrested. It has been held in
Bibhachha alias Bibachha Baitharu v. State of Orissa, (1997) 13 OCR
418 that the term ‘custody’ as contemplated in Section 27 of the Evidence
Act does not mean formal custody, but includes such state of affairs in
which the accused can be said to be in the hands of the police officer, even
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under some surveillance or restriction on the movement of the person
concerned.
10. The next question is whether non- examination of the material
witness Bipin Bariha is fatal to the prosecution, as contended by the
learned counsel for the appellant. In the instant case, P.W.4, who has been
examined by the prosecution, is an eye witness. He is an independent
witness and not related either to the appellant or to the deceased. He has no
axe to grind against the appellant. It is not obligatory on the part of the
prosecution to examine all the witnesses. Moreover, the lungi, shirt and
towel which were seized from the possession of the appellant, contained
patches of blood, though the origin of the blood could not be detected due to
deterioration. Therefore, non-examination of the material witnesses does not
affect the veracity of the prosecution case. For all these reasons, there
remains no doubt that it is the appellant who committed murder of the
deceased by dealing tangia blows to his neck.
10. In view of the discussions made above, this Court is of the
considered view that the prosecution has been able to prove the charge
against the appellant beyond all reasonable doubt and no illegality or
infirmity can be said to have been committed by the trial court in convicting
the appellant under Section 302, IPC. Therefore, the judgment of conviction
and sentence passed by the trial court is confirmed and the Jail Criminal
Appeal is dismissed being devoid of any merit.
……………………………….
PRADIP MOHANTY, J.
B.P.RAY, J. I agree.
…………………………….
B.P. RAY, J.
Orissa High Court, Cuttack,
Dated 9th March,2010/Routray