HIGH COURT OF ORISSA,
CUTTACK
CRIMINAL APPEAL NO.285 OF 1999,
CRIMINAL APPEAL NO.302 OF 1999
AND
JAIL CRIMINAL APPEAL NO.41 OF 2005
From the judgment dated 11.10.1999 passed by Shri K.V.C. Rao, Addl.
Sessions Judge, Jagatsinghpur in S.T. Case No. 464 of 1998.
........
Gagan Bihari Barik (Crl. A. No. 285/1999)
Alekh Senapati (Crl. A. No.302/1999)
Sukadev Bhoi (Jail Crl. A. No.41/2005) ………. Appellants
Versus
State of Orissa (In all cases) ………. Respondent
For Appellants : M/s D. Panda, D.C. Swain,
D.B. Dhal, G.R. Mohanty
and A.K. Parida.
(Crl. Appeal No.285 of 1999)
M/s D. Panda, B.B. Biswal,
R.Biswal, M.R. Panda,
D.K. Biswal, P.R. Chhatoi,
B.K. Choudhury, S.K. Swain
and B.R. Biswal.
(Crl. Appeal No.302 of 1999)
Mr. Braja Mohan Biswal
(Jail Crl. Appeal No.41 of 2005)
For Respondent : Mr. J.P. Pattnaik,
Additional Govt. Advocate
And
M/s D. Das, R.R. Chhotray,
B.R. Dalai and S. Satpathy
(Crl. Appeal No.302 of 1999)
………
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PRESENT
THE HON’BLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HON’BLE SHRI JUSTICE B.P.RAY
——————————————————————————————–
Date of hearing & judgment : 16.03.2010
PRADIP MOHANTY, J. These three appeals arise out of the common judgment dated
11.10.1999 passed in S.T. Case No.464 of 1998 whereby the learned Addl.
Sessions Judge, Jagatsinghpur has convicted the appellants under Section
302/34, IPC and sentenced them to undergo imprisonment for life and pay a fine of
Rs.1000/- each in default to undergo rigorous imprisonment for one month.
2. Case of the prosecution, as unfolded during trial, is that one
Sadananda Jena, a school teacher, was entrusted with the job of preparing list of
persons of Sankharisahi village, to which both appellants and the deceased
belonged, to get the benefits under the Below Poverty Line Scheme. Deceased
Rasmiranjan was assisting him in identifying the persons entitled to get the benefit
under the scheme. It is alleged that the teacher Sadananda Jena did not enlist the
names of the appellants in the Below Poverty Line list. Due to that, there was
some dissension between him and the appellants. On 08.11.1997, the deceased
learnt that the appellants had planned to assault said Sadananda Jena and
intimated him not to come to his village. On the very day at about 4.00 PM, when
the deceased was going to his house, near the house of appellant Gagan Barik,
appellant Sukadev Bhoi saw him and abused him in obscene language. Both of
them (appellants Gagan Barik and Sukadev Bhoi) chased the deceased being
armed with bhujali. The deceased ran from the spot and fell near the house of one
Indramani Behera. Appellant Gagan Barik caught hold of his hand and appellant
Alekha dealt a bhujali blow on the face of the deceased. Appellant Sukadev
brought one ‘SILUPUA’ and dealt blows on the face of the deceased. Many
persons including the brother of the deceased were present there and witnessed
the occurrence, but none of them intervened out of fear. It is further alleged that
appellant Gagan Barik and Alekha Senapati pointed a revolver to the witnesses
and threatened to kill them if the matter was reported to the police. After
committing the crime, the appellants left the place. Deceased succumbed to the
injury at the spot. P.W.5, the brother of the deceased went to Biridi Outpost and
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lodged written report. On the basis of the same, the case was registered,
investigation commenced and after it closure charge-sheet was submitted against
the appellants.
3. Plea of the appellants is one of complete denial and false
implication.
4. In order to prove its case, prosecution examined as many as
eleven witnesses including the doctor and the I.O., and exhibited eighteen
documents. Defence examined none.
5. The learned Addl. Sessions Judge after conclusion of the trial
while acquitting the appellants of the charge under Sections 25 and 27 of the Arms
Act, convicted and sentenced them as mentioned hereinbefore with the findings
that the accused persons in furtherance of their common intention caused the
death of the deceased by means of bhujali and ‘SILUPUA’.
6. Heard Mr. Parida, learned counsel appearing for appellants
Alekha Senapati and Gagan Barik, and Mr. B.M. Biswal, learned counsel
appearing for appellant Sukadev Bhoi. They assail the impugned judgment
mainly on the following grounds:
(i) FIR story does not tally with the evidence adduced in court.
(ii) The so-called ocular witnesses have developed the
prosecution case in court and, therefore, no reliance can be
placed on their testimony.
(iii) None of the so-called ocular witnesses has seen the
occurrence and due to enmity they have falsely implicated
the appellants.
(iv) The evidence of the so-called ocular witnesses suffers from
major contradictions.
(v) With regard to the alleged place of occurrence, the evidence is
inconsistent.
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(vi) Some of the neighbours who had allegedly seen the
occurrence have not been examined by the prosecution.
(vii) Their alternative argument is that if at all the appellants are
found guilty of coming any crime, the act committed by them
would at best come within the ambit of Section 304 Part-II,
IPC.
7. Mr. Pattnaik, learned Additional Government Advocate, on the
other hand, contends that a conjoint reading of the evidence of the eye witnesses,
viz., P.Ws.2 to 7 clearly establishes that the appellants are the authors of the
crime. P.W.5, the brother of the deceased, is the informant in this case and in the
FIR he has categorically mentioned the names of the appellants, the role played by
each of them and the weapon used. The ocular evidence gets corroboration from
the medical evidence. The blood stains of human origin were found from the
wearing apparels of the appellants. Thus, it cannot be said that the trial court has
committed any infirmity or illegality in convicting the appellants.
8. Perused the LCR. P.W.5 is the informant and brother of the
deceased. He specifically stated that one Sadananda Jena, a school teacher, was
preparing the BPL list. His deceased brother was assisting said Sadananda to
identify the persons entitled to get the benefit under the scheme. The said
Sadananda had not enlisted the names of the accused persons in that BPL list.
Accused persons wanted to take away the life of Sadananda on that day. His
deceased brother came to know about it and sent away Sadananda to save him.
On the occurrence day, while his deceased brother was going to his house, near
the house of accused Gagan, accused Sukadev Bhoi scolded him in obscene
language. Accused Alekha and Gagan chased his deceased brother by holding
bhujali. His deceased brother ran from the spot and fell near the house of one
Indramani Behera. Accused Gagan caught hold of both the hands of his deceased
brother. Accused Alekha dealt bhujali blow on the face of his deceased brother.
Accused Sukadev brought one ‘SILAPUA’ and gave blows to the face of his
deceased brother. As a result, his deceased brother succumbed to the injuries at
the spot. He then proceeded to Biridi Outpost and lodged a written report. He
proved the FIR marked Ext.2 and his signature thereon as Ext.2/1. In cross-
examination this witness admitted that accused Gagan and his brother were not
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pulling on well since 1995, as his brother had deposed against accused Gagan in
a murder case. The spot was 100 cubits away from his house. Hearing hullah he
came out of his house. He also admitted that about 30 persons of their village had
seen the occurrence. Accused Gagan caught hold of the hands of his brother and
others assaulted him. Out of fear, he did not go to the spot to rescue his brother.
His brother tried to escape from the clutches of Gagan, but failed. He further
admitted that all the accused persons were present near the spot for about five
minutes after the assault. A suggestion was given with regard to the spot and he
admitted that the spot was in front of the house of Indramani. The FIR (Ext.2)
corroborated the version of this witness. P.W.6 is said to be another ocular
witness. He specifically stated that there was exchange of hot words between the
accused Sukadev and the deceased. At that time, accused Alekha armed with a
bhujali arrived at the spot along with accused Gagan and threatened to kill the
deceased. Out of fear, the deceased ran towards the house of one Indramani and
there he fell down on the ground. Accused Gagan caught hold of the hands of the
deceased and accused Alekha dealt bhujali blow on the face of the deceased.
Thereafter, Sukadev gave blows by a ‘SILUPUA’ on the different parts of his face.
In cross-examination, this witness admitted that he saw the assault from a distance
of 200 feet. About 3 to 4 persons were present near the spot where accused
Sukadev assaulted the deceased. He also admitted that at that time P.Ws.2, 5, 7
and another person were present at the spot but they did not intervene. The entire
occurrence took place within ten minutes. He further admitted that he did not go to
the spot to rescue the deceased. He had no enmity with the accused persons. To
a suggestion given by the defence, he admitted that he had stated before the
police that he had seen the occurrence by standing near the house of accused
Gagan Barik which is 15 cubits away from the spot. Nothing substantial has been
brought out by way of cross-examination to demolish the evidence of P.Ws.5 and
6. P.W.7 is said to be another ocular witness. He stated that on the date of
occurrence while going to the river embankment he heard hullah near the house of
Gagan Barik, went there and saw the occurrence. He corroborated the evidence
of P.W.6 with regard to assault by the accused persons. In cross-examination, he
admitted that 4 to 5 persons were present near the spot at the time of assault. No
person of Goudasahi was present near the spot. He also admitted that P.W.6 and
one Srikanta Jena were present at the spot. There is nothing in his cross-
examination which can outweigh his evidence in the examination-in-chief. P.W.2
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is yet another ocular witness. She stated that at the time of occurrence she was
going to the shop of one Abhaya Behera to purchase some grocery articles. When
she reached the shop, she saw accused Sukadev standing near the house of
accused Gagan and rebuking the deceased saying “Sala BPL list Karuchu Sala Ku
Maridebu”. When the deceased came there, all the accused persons chased him
up to the house of one Indramani Behera. There, accused Gagan held the hands
of the deceased and accused Alekha dealt blow by means of bhujali. Accused
Sukadev assaulted the deceased by a ‘SILU PUA’. Seeing the ghastly crime, she
left the place and went to her house. In cross-examination, she admitted that no
other customer was present near the shop of said Abhaya Behera except herself.
She further admitted that she became frightened seeing the deceased and did not
raise any hue and cry to help the deceased. Except herself no other person was
present near the spot and all the doors of the houses were closed. She did not
proceed to rescue the deceased from the assault. All the blows were dealt while
the deceased was lying on the ground facing upward. She further admitted that the
occurrence took place in front of the house of Indramani Behera. It is elicited by
way of cross-examination that the length of ‘SILUPUA” is 1 feet length and 4 inch
diametre. She saw accused Sukadev dealing blow by holding ‘SILUPUA’ from the
middle. Nothing substantial has been elicited by way of cross-examination to belie
her testimony. P.W.3 is another eye witness who stated about the assault to the
deceased by the accused persons. He admitted in cross-examination that 7 to 8
houses were there near the house of Indramani Behera and his house. But he did
not see the persons who had got their houses near his house at the time of
occurrence. Seeing the bhujali blow dealt to the deceased, he became frightened
and did not raise any hullah. He also admitted that he had no enmity with the
accused. Nothing has been elicited through cross-examination to demolish the
testimony of this witness. P.W.4 is a witness to the occurrence who stated to have
seen the assault to the deceased by the accused persons. He stated that when
the accused persons left the spot, he and one Gyana Samantaray chased them.
But as accused Gagan and Alekha showed revolver, they did not chase them out
of fear. He is also a witness to the seizure of the wearing apparels of the
deceased vide Ext.1. P.W.8 is the doctor who conducted autopsy over the dead
body of the deceased and found the following injuries:
“(1) Incised injury 3″ x ½” of bone depth.
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(2) Incised injury ½" x ½" x ½" frontal.
(3) Left maxillary region 1 cm x ½ cm.
(4) Incised injury ½" x ¼" x ¼".
(5) Left Mandible ½" x ½" x ½".
(6) Incised injury vertex 2" x ½" bone depth.
(7) Multiple lacerated injury on left Maxilla.
(8) Contusion left temporal region ½" x ½".
(9) Contusion right temporal ½" x ½"."
He opined that injury nos.1 to 6 are caused by sharp cutting instruments and injury
nos.7 to 9 are caused by hard and rough weapon. All the injuries are ante mortem
in nature. He specifically opined that the cause of death was due to shock as a
result of injury to brain. He proved the postmortem report marked as Ext.3. In
cross-examination, he admitted that injuries no.1 and 2 are on the left forehead.
Nothing has been elicited from the mouth of this witness through cross-
examination to disbelieve his testimony. P.W.1 is a co-villager who specifically
stated that on the date of occurrence at 3.30 PM while going to the house of one
Carpenter he saw accused Gagan, Sukadev and Alekha standing near the house
of accused Gagan and rebuking the deceased in obscene language. Thereafter,
he went to the house of the carpenter and came back to his house as the said
carpenter was not present in his house. 5 or 10 minutes thereafter, he found some
female folk were present near a Chhaka situated adjacent to his house. When he
went there, his cousin brother Abhaya Behera informed him that the accused
persons had committed murder of the deceased. He further stated that accused
Gagan pointed a revolver saying that he would kill if anyone reported to the police
against him. In cross-examination, he admitted that no body was present when
Gagan pointed a pistol and threatened to kill if anyone will report the police about
the incident. P.W.9 is a police constable and a witness to the inquest. P.W.10 is
the investigating officer who registered the case, examined the informant, held
inquest over the dead body of the deceased, seized the weapons of offence, blood
stained earth vide Ext.7, prepared the spot map, seized the blood stained wearing
apparels of accused Alekha vide Ext.10, blood stained wearing apparels of
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accused Gagan vide Ext.11 and blood stained wearing apparels of accused
Sukadev vide Ext.12 and sent them for chemical examination, and ultimately
submitted charge-sheet. Nothing has been confronted to the investigating officer
about the previous statement of the witnesses. The only suggestion given to him
was that he had not properly investigated the case. P.W.11 is the I.I.C. of
Sahidnagar P.S. who arrested accused Gagan and Alekh and produced them in
court.
9. On careful scrutiny of the evidence, this Court does not find
anything from which it can be inferred that ocular witnesses have exaggerated the
facts or developed the prosecution case while deposing in court. Although there
are some minor contradictions in their evidence, such contradictions are bound to
occur even in case of truthful witnesses. There is no dispute that all the injuries on
the person of the deceased were ante mortem in nature. P.Ws.2, 3, 4, 6 and 7
who had seen the actual occurrence are co-villagers of the accused persons as
well as the deceased and there is no material to show that they were inimically
disposed towards the accused persons prior to the occurrence. In other words,
there is no reason as to why these witnesses would falsely implicate the accused
persons. Rather, their evidence is very clear, cogent and reliable. P.W.5, the
brother of the deceased, is the informant in this case. He had seen the occurrence
in question. Nothing has been elicited from him through cross-examination to
disbelieve his evidence. In FIR also he has narrated in detail the incident and also
the role played by each of the accused persons. Evidence of this witness also
gets full corroboration from the FIR. His evidence does not suffer from any
material contradiction. There is no reason as to why he would falsely implicate the
accused persons and spare the real culprits. The contention of the defence that
some of the neighbours who had seen the occurrence have not been examined by
the prosecution has no substance, simply because the prosecution cannot be
compelled to examine all the witnesses said to have seen the occurrence.
Material witnesses considered necessary by the prosecution for unfolding the
prosecution case alone need to be examined and in this case prosecution has
examined P.Ws.2 to 4, 6 and 7, who are co-villagers, as eye witnesses. The I.O.
had seized the “SILUPUA” M.O.I and two pieces of broken bricks M.O.II from the
spot as well as the wearing apparels of the deceased and the accused persons
stained with blood which on chemical examination was found to be of human
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origin. But it seems no question in regard to that has been put to the accused
persons while recording their statements under Section 313, Cr.P.C. Therefore,
this Court feels it proper not to utilize the chemical examination report against the
accused persons. The medical evidence of P.W.8 is found to have supported the
evidence of the ocular witnesses. Therefore, taking into consideration the ocular
evidence and the medical evidence available on record, this Court is satisfied that
the trial court has rightly convicted the accused persons under Section 302/34,
IPC. This Court does not find anything from record to convert the conviction of the
accused persons from Section 302, IPC to Section 304 Part-II, IPC.
10. For the reasons stated above, this Court does not find any
justification to interfere with the impugned judgment which is hereby upheld. The
appeals are accordingly dismissed.
………………………………
PRADIP MOHANTY,J.
B.P.RAY, J. I agree.
.............................
B.P. RAY, J.
Orissa High Court, Cuttack
The 8th March, 2010/ G.D. Samal
