{"id":233718,"date":"2010-12-22T00:00:00","date_gmt":"2010-12-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/high-court-of-orissa-cuttack-vs-state-of-orissa-on-22-december-2010"},"modified":"2014-03-26T22:46:47","modified_gmt":"2014-03-26T17:16:47","slug":"high-court-of-orissa-cuttack-vs-state-of-orissa-on-22-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/high-court-of-orissa-cuttack-vs-state-of-orissa-on-22-december-2010","title":{"rendered":"High Court Of Orissa: Cuttack vs State Of Orissa on 22 December, 2010"},"content":{"rendered":"
Orissa High Court<\/div>\n
High Court Of Orissa: Cuttack vs State Of Orissa on 22 December, 2010<\/div>\n
            HIGH COURT OF ORISSA: CUTTACK.\n          Criminal Appeal Nos.183, 188, 222, 273 of 1998\n                      and G.A. No. 29 of 2001\n\nFrom the judgment and order dated 20.7.1998 passed by Shri P.K.De,\nSessions Judge, Kalahandi-Nuapada at Bhawanipatna in S.C. No.78 of\n1996.                         ---------\n\n(In Criminal Appeal No. 183 of 1998)\nSantosh Kumar Das                                     ......             Appellant.\n                          - Versus-\nState of Orissa                                       ......             Respondent.\n\n              For Appellant            :   Mr. S.S. Swain.\n\n              For Respondent           :   Govt. Advocate.\n\n(In Criminal Appeal No. 188 of 1998)\nSisir Choudhury                                       .......            Appellant.\n\n                            -Versus-\nState of Orissa                                        ........      Respondent.\n\n              For Appellant            :   M\/s. N.C.Pati, A.K.Mohapatra,\n                                                      S.Misra, P.K. Khuntia,\n                                                P.K.Singh and S.Mohanty.\n\n              For Respondent           :   Govt. Advocate.\n\n(In Criminal Appeal No.222 of 1998)\nDayanidhi Barik @ Manatu and                                  ......   Appellants.\nanother.\n\n                            -Versus-\nState of Orissa                                              ........ Respondent.\n\n              For Appellants           :   M\/s. S.K. Mund, D.P. Das\n                                                 and J.K.Panda.\n              For Respondent           :   Govt. Advocate.\n\n\n(In Criminal Appeal No. 273 of 1998)\nRudra Prasad Das                                      ......             Appellant.\n                            -Versus-\nState of Orissa.                                      ......             Respondent\n                                                           2\n\n\n\n\n                   For Appellant          :            M\/s       S.K.Mund, D.P.Das\n                                                                  and J.K.Panda\n                   For Respondent         :            Govt. Advocate.\n\n\n     (In Govt. Appeal No. 29 of 2001)\n     State of Orissa                                                          ........ Appellant.\n\n                                  -Versus-\n\n     Tulu @ Tulasi Prasad Das and others.                                   ......       Respondents.\n\n                   For Apellant           :            Addl. Govt. Advocate.\n\n                   For Respondents. :                  M\/s. N.C.Pati, A.K. Mohapatra,\n                                                            S.Mishra, S.K.Nanda, A.K.\n                                                            Panda (O.Ps. 1 to 4)\n                                                       Mr. S.S.Swain (O.P.No. 5).\n\n                                                   ---------\n<\/pre>\n
     PRESENT:\n<\/p>\n
                  THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY
\n                                 AND
\n                    THE HONOURABLE SHRI JUSTICE B.K. PATEL<\/p>\n
     Date of hearing – 21.12.2010              :       Date of judgment – 22.12.2010<\/p>\n
B.K. PATEL, J.             All   the    five        appeals         are   directed   against   the
\n     judgment      and    order    passed            by       the   learned    Sessions    Judge,
\n     Kalahandi-Nuapada at Bhawanipatna in S.C. No. 78 of 1996.\n<\/p><\/blockquote>\n
     Altogether eight accused persons were facing charges under Sections
\n     147, 148, 324 read with 149, 307 read with 149 and 302 read with
\n     149 I.P.C. before the learned trial court.\n<\/p>\n
     2.            By the impugned judgment appellants Rudra Prasad Das,
\n     Rohit Barik and Manatu @ Dayanidhi Barik were convicted under
\n     Sections 302 read with 34 I.P.C. and were sentenced to undergo
\n     imprisonment for life. Appellants Rohit Barik and Santosh Kumar Das
\n     were convicted under Sections 307 read with 34 I.P.C., whereas
\n                                       3<\/span><\/p>\n
appellant Sisir Choudhury was convicted under Section 307 I.P.C.
\nAppellants Santosh Kumar Das and Sisir Choudhury were sentenced to
\nundergo R.I. for five years each but no sentence was awarded to appellant
\nRohit Barik under Section 307 I.P.C. in view of sentence awarded to him
\nunder Sections 302 read with 34 I.P.C. Accused Ratan Kumar Agarwal,
\nwho is one of the respondents in the Government Appeal, was convicted
\nunder Section 324 I.P.C. and was sentenced to undergo imprisonment
\nfor the period already undergone by him as an under trial prisoner.
\nHowever, accused persons Tulu @ Tulasi Prasad Das and Debe @
\nDebendra Majhi were acquitted of all the charges.\n<\/p>\n
             Appellants Santosh Kumar Das, Manatu @ Dayanidhi
\nBarik, Sisir Choudhury, Rohit Barik and Rudra Prasad Das have
\npreferred the criminal appeals assailing their conviction and sentence
\nwhereas in G.A. No. 29 of 2001, State has assailed acquittal of
\nrespondents Ratan Kumar Agarwal, Sisir Choudhury and Santosh
\nKumar Das of the charge under Sections 302 read with 149 I.P.C. and
\nacquittal of Tulu @ Tulasi Prasad Das and Debe @ Debendra Majhji of
\nall the charges.\n<\/p>\n
3.          Prosecution case is as follows:\n<\/p>\n
            Accused persons and deceased-Kaushik Singal belong to
\noccurrence village Ladugaon. Occurrence took place at about 9.00
\nP.M. on 17.7.1996, the day of Rathayatra, i.e., Car Festival.\n<\/p>\n
            Prior to the Rathayatra there was difference of opinion
\namong the villagers as regards the place at which Deities would be
\nkept between the period from Car Festival and return Car Festival.
\nVillagers wanted that Deities would be kept in the house of one Paban
\nAgarwala whereas accused persons Ratan, Sisir and Santosh opposed
\nsuch decision.\n<\/p>\n
            Occurrence started when injured Ramesh Ku. Agarwala
\n(P.W.9) was returning from his rice mill along with informant Jaya
\nKiran Agarwala (P.W.1). Accused persons Sisir and Ratan approached
\n                                         4<\/span><\/p>\n
them from opposite side. As soon as they reached near the house of
\none Amar Sing Agarwala, accused Sisir all of a sudden dealt tangi
\nblow on P.W.9’s chest. When accused Ratan attempted to deal blow
\nby means of tangi on P.W.9’s head, he caught hold of his hand in
\norder to ward off the blow. In that process accused Ratan fell down on
\nthe ground. P.W.9 left the place and ran towards his house. P.W.1
\nsnatched away the tangi which accused Ratan was holding.\n<\/p>\n
               Hearing hulla, the deceased, who was aged about 15 to 16
\nyears, as well as Rakesh Sharma (P.W.2), Padmasen Agarwala (P.W.5)
\nand some co-villagers came to the spot. Seeing them accused persons
\nRatan and Sisir raised alarm exhorting co-accused persons to come
\nforward in order to commit murder of P.W.9’s men by saying
\n“RAMESH RA LOKA KU MURDER KARMA ASHA”.                         Co-accused
\npersons Tulasi, Rudra, Debe, Manatu, Rohit and Santosh came to the
\nspot being armed with tangis and attacked the deceased.           Accused
\nRudra dealt a tangi blow on deceased’s head whereas accused persons
\nManatu and Rohit dealt tangi blows on deceased’s both hands.
\nDeceased sustained injuries, fell down and died at the spot.\n<\/p>\n
               P.W.5 made an attempt to come to the rescue of the
\ndeceased. However, accused persons Rohit and Santosh dealt tangi
\nblows on his head and hands. P.W.2 also sustained injuries due to
\nassault.     However, P.W.2 snatched away the tangi which accused
\nDeba was holding.\n<\/p>\n
               Occurrence was visible due to availability of electric light
\nat the spot.\n<\/p>\n
               After the occurrence P.W.1 and other injured persons
\nstarted for the hospital for treatment in a truck. However, accused
\npersons being armed with tangis and lathis blocked their way. They
\nhad to go to the house of retired pharmacist in the village for availing
\nfirst aid.\n<\/p>\n
                                       5<\/span><\/p>\n
             P.W.1 had to take a round about way to Koksora P.S.
\nwhere he lodged First Informant Report Ext.1 before the Officer-In-
\nCharge (P.W.16) at about 11.00 P.M. P.W.16 registered the case and
\ntook up investigation.\n<\/p>\n
             P.W.6 visited the spot in the night of occurrence. In course
\nof investigation, dead body of the deceased was subjected to inquest
\nand post-mortem examination. Seizure of tangis and other articles
\nwas effected.   Witnesses were examined.      On 29.7.1996 the Circle
\nInspector of Police, Dharmagarh (P.W.17) took charge of the
\ninvestigation. On completion of investigation, charge-sheet for alleged
\ncommission of offences under Sections 147, 148, 324, 307, 302\/149
\nof the I.P.C. was submitted.\n<\/p>\n
4.           On consideration of materials on record, charge was
\nframed against all the accused persons under Sections 147, 148, 324
\nread with 149, 307 read with 149, and 302 read with 149 of the I.P.C.
\nIn addition, charge under Sections 302 read with 34 of the I.P.C. was
\nframed against accused persons Rudra, Rohit and Manatu @
\nDayanidhi, charge under Sections 307 read with 34 of the I.P.C. was
\nframed against accused persons Rohit and Santosh; charge under
\nSection 307 of the I.P.C. was framed against accused Sisir; and
\ncharge under Section 324 of the I.P.C. was framed against accused
\nRatan.\n<\/p>\n
5.           Defence plea is one of complete denial.\n<\/p>\n
6.           In order to substantiate the charge, prosecution examined
\nseventeen witnesses. P.Ws.1, 2, 5, 9, 16 and 17 have already been
\nintroduced. Out of them, P.Ws.1, 2, 5 and 9 are injured eye witnesses.
\nP.Ws.3 Bajarang Agarwala and 6 Rama Abatar Agarwala are seizure
\nwitnesses.    P.W.4 Dinabandhu Agarwala is a witness to inquest..
\nP.W.7 Dr.Baishnab Charan Sahu medically examined P.W.5. P.W.13
\nDr. Sugyani Satapathy conducted post-mortem examination over the
\n                                          6<\/span><\/p>\n
dead body of the deceased as well as medically examined P.Ws.1, 2, 9
\nand one Chandanlal Sharma. Other witnesses are police personnel. Of
\nthem,         P.W.8   Havildar   Baibasuta    Naik accompanied the dead
\nbody to the hospital and was a witnes to seizure of wearing apparels
\nof the deceased. P.Ws. 10 Santosh Kumar Nayak, 11 Y. Jagannath
\nRao, 12 Arun Kumar Jena, 14 Ramachandra Behera and 15 Kishore
\nKumar Patra arrested some of the accused persons on the strength of
\nrequisitions received from Investigating Officers. P.W.14 appears to
\nhave seized a tangi on production of accused Rudra. Prosecution also
\nrelied upon documents marked exhibits. 1 to 42 and material exhibits
\nM.O.I to XIII.\n<\/p>\n
                One Dr. M. Bijaya Gopal was examined on behalf of
\ndefence as D.W.1. Also, medical prescription Ext. A issued by D.W.1
\nwas admitted into evidence.\n<\/p>\n
7.              In assailing the impugned judgment and order, following
\ncontentions were raised by the learned counsel appearing for the
\nappellants:\n<\/p>\n
        (i)     Occurrence took place during night time when it was dark.\n<\/p><\/blockquote>\n
                Prosecution evidence regarding availability of any source
\n                of light is vague and inconsistent. There was admitted
\n                factionalism in the village. In the absence of cogent
\n                evidence indicating that place of occurrence was not dark,
\n                learned court below should not have accepted prosecution
\n                evidence ascribing specific overt acts to the accused
\n                persons towards commission of the alleged offences.\n<\/p><\/blockquote>\n
     (ii)        Though medical evidence available from P.W. 13 reveals
\n                that deceased had sustained six external injuries out of
\n                which only injury nos. (i) and (ii) were on the head, only
\n                appellant Rudra Prasad Das was stated to have dealt a
\n                blow on deceased’s head by means of tangi. Injury nos. (iii)
\n                                   7<\/span><\/p>\n
        to (vi) were on palms, right index finger and left forearm
\n        and were not fatal. Prosecution has not led evidence to
\n        indicate that any of the injuries by itself was fatal. It is
\n        evident that only injury no. (ii) i.e. incised wound on left
\n        parietal bone with absence of a portion of parietal bone
\n        exposing the membrane was serious. There is no evidence
\n        indicating the authorship of injury no.(ii). In the absence
\n        of any evidence indicating that all the accused persons
\n        harboured any common object towards commission of the
\n        alleged offences, all of them were acquitted of the charge
\n        under Sections 147, 148 and 149 I.P.C. However, the
\n        learned trial court has convicted appellants Rudra Prasad
\n        Das, Manatu @ Dayanidhi Barik and Rohit Barik under
\n        Section 302 with aid of Section 34 I.P.C. without any
\n        evidence on record to indicate that the appellants had
\n        common intention to commit murder of the deceased.
\n        Prosecution has failed to prove which of the accused
\n        caused fatal wound on the deceased or that all of them
\n        had common intention to commit murder. At the worst
\n        evidence   on   record   indicates   that the   above   three
\n        appellants were guilty of causing injuries on the deceased
\n        without any intention to commit his murder.\n<\/p><\/blockquote>\n
(iii)   There is no evidence on record to conclude that appellants
\n        Rohit Barik and Santosh Kumar Das attempted to commit
\n        murder of any of the injured persons. Medical evidence
\n        does not indicate that there was any attempt on the life of
\n        any of the injured persons.\n<\/p>\n
 (iv)   In the absence of evidence establishing motive on the part
\n        of the appellants to commit the alleged offences, the
\n        learned trial court should not have believed the allegation
\n                                          8<\/span><\/p>\n
                that the appellants were inimical towards the deceased or
\n                injured persons.\n<\/p>\n
     (v)        Adverse inference ought to be drawn          against     the
\n                prosecution   for   suppression    of   material   witnesses
\n                including the person stated to have sustained injuries in
\n                course of occurrence. Partisan evidence of P.Ws. 1, 2, 5
\n                and 9 should not have been made the basis of findings
\n                recorded by the learned trial court.\n<\/p>\n
         (vi)   The learned court below has failed to take note of
\n                contradictions in the evidence of witnesses as well as
\n                inconsistencies between ocular testimony and medical
\n                evidence.\n<\/p>\n
8.              Learned counsel appearing for the State strenuously
\ncontended that evidence of material eye witnesses informant P.W.1
\nand injured persons P.Ws.2, 5 and 9 corroborated by contents of the
\nF.I.R. Ext.1, medical evidence available from P.Ws.7 and 13 and post-
\nmortem examination report and injury reports prepared by them as
\nwell as other circumstances including seizure of weapons of offence
\nclearly establish all the charges framed against the accused persons.
\nIt was argued that appellants Rudra Prasad Das, Manatu @ Dayanidhi
\nand Rohit Barik have rightly been convicted under Sections 302 read
\nwith 34 I.P.C. In support of the Government Appeals it was contended
\nthat evidence on record conclusively established that all the accused
\npersons being armed with axes and other weapons combined together
\nto launch an attack on the deceased and injured persons causing
\ninjuries on them indiscriminately. Fatal and serious injuries were
\ninflicted. Therefore, all the accused persons are liable to be convicted
\nunder Sections 302 read with 34 I.P.C. as well as 307 read with 34
\nI.P.C.\n<\/p>\n
                                          9<\/span><\/p>\n
9.            It is not disputed that death of the deceased was
\nhomicidal in nature. In course of post mortem examination over the
\ndead body of the deceased by P.W. 13, the deceased was found to
\nhave sustained following injuries:\n<\/p>\n
              (i)     Incised wound measuring 6″ x 1″ x \u00be” over the right
\n                            parietal bone close to the vertex with
\ninvolvement                           of bone.\n<\/p>\n
              (ii)    Incised wound measuring 5″ x 2 \u00bd” x 1″ situated
\n                            obliquely from the vertex to down words over the
\nleft                        parietal bone with absence of portion of parietal
\nbone                        of size 2″ diameter, the membrane was visible.\n<\/p>\n
              (iii)   One incised wound measuring 2″ x 1 \u00bd” x 1″ over the
\n                            dorsum of right palm obliquely situated over the
\nfirst                       metacarpal bone with inverted clean edges.\n<\/p>\n
              (iv)    One lacerated wound over the dorsum of right index
\n                      finger measuring 1″ x \u00bd” x with cut off terminal
\n                      phalanx.\n<\/p>\n
              (v)     Incised wound with clean edges over the middle of left
\n                      palm measuring 2″ x2″ x \u00be” with cut off first, second
\n                      and 3rd metacarpal bones.\n<\/p>\n
              (vi)    One incised wound over the dorsum left forearm 1″\n<\/p>\n
                      above the wrist joint obliquely placed measuring 3″ x
\n                      3\/2″ x 2″ with clean edges, with the complete cut off
\n                      shaft of radius and ulna. Only skin was intact ventral
\n                      aspect.\n<\/p><\/blockquote>\n
              In answer to query made by the I.O. P.W. 13 opined under
\nreport Ext.23 that all the six injuries could combinedly cause death of
\na person in ordinary course of nature and that injury nos. (i), (ii), (iii)
\nand (vi) alone could cause death of a person. The injuries were caused
\nby sharp cutting weapon like tangi M.O. I.\n<\/p>\n
10.           Injured-informant P.W. 1 was found by P.W. 13 to have
\nsustained the following injuries:\n<\/p>\n
              (i)     One incised wound over the dorsum of first inter
\n                           phalangial joint of index finger of right hand.\n<\/p><\/blockquote>\n
                                          10<\/span><\/p>\n
             (ii)    Incised wound over dorsum of first inter-phalangial
\n                           joint of middle finger of right hand.\n<\/p><\/blockquote>\n
             (iii)   One bruise measuring 3″ x 1″ over the middle of
\n                     right buttock.<\/p><\/blockquote>\n
             P.W. 13 testified that injury nos. (i) and (ii) were possible if
\nthe injured snatched the tangi like M.O. I. from hand of the assailant
\nand the sharp portion of the tangi came in contact on that part of the
\nbody.\n<\/p>\n
11.          P.W. 13 also examined injured P.W. 2 and found a simple
\ninjury on the left calf which could have been caused by sharp cutting
\nweapon.\n<\/p>\n
12.          On medical examination of the injured P.W. 9 by P.W. 13,
\na simple injury on the left side of chest caused by sharp instrument
\nwas found.\n<\/p>\n
13.          P.W. 13 also appears to have examined one Chandanlal
\nSharma who has not been examined by the prosecution and to have
\nfound a simple injury over medial line of left eyebrow which might
\nhave been caused by sharp cutting weapon\n<\/p>\n
14.          Injured P.W. 5 was examined by P.W. 7 and was found to
\nhave sustained following injuries:\n<\/p>\n
             (i)     Lacerated wound situated over the right occipito
\n                           parietal region measuring 3 \u00bd” x \u00bd” x \u00bd”.\n<\/p><\/blockquote>\n
             (ii)    Lacerated wound situated just in front of injury no.(i)
\n                           measuring 1″ x \u00bd” x \u00bd”.\n<\/p><\/blockquote>\n
             (iii)   Incised wound eleptical in shape clean cut margin
\n                     over the tempero parietal region of the skull on the left
\n                           side measuring 2″ x \u00bd” x \u00bd”.\n<\/p><\/blockquote>\n
             (iv)    Incised wound clean cut margin on the left side of the
\n                           zygomatic bone measuring 2″ x \u00bd” x \u00bd”.<\/p><\/blockquote>\n
             (v)     Deep incised wound over right forearm 2″ above the
\n                           wrist cutting muscle, fascia, skin and ulna bone
\nwith                       fracture of radius, causing deformity and loss of
\n                                 function.<\/p>\n
\n                                         11<\/span>\n\n             (vi)    Multiple incised wounds out of which two were\n                           situated over the right outer aspect of little\nfinger                            measuring \u00bc\" x \u00bd\" x \u00bd\".\n<\/pre>\n
             (vii)   Bruises on the left side of forehead and eye brow
\n                     measuring 2″ x \u00bd” x \u00bd”.\n<\/p>\n
             According to P.W. 7 injury nos. (iii), (iv), (v), and (vi) might
\nhave been caused by sharp cutting weapon like tangi and other
\ninjuries might have been caused by hard and blunt weapon like lathi
\nor torch light. It does not appear from the evidence of P.W. 7 that any
\nof the injuries except injury no. (v) was grievous in nature. However,
\nin course of cross-examination P.W. 7 testified that all the injuries on
\nthe head were simple in nature excepting injury no. (v) on the forearm
\nand that he had given his opinion that injury no. (v) was simple one.\n<\/p>\n
15.          Admittedly, P.Ws. 1, 2, 5 and 9 are the four material
\nwitnesses examined by the prosecution. Informant P.W.1 testified that
\nthere was difference of opinion among the villagers regarding place in
\nwhich Deities were to be kept during the period from Car Festival to
\nreturn Car Festival. He deposed that villagers wanted the Deities to
\nbe kept in the house of one Paban Agrawala instead of the place in
\nwhich the Deities were kept earlier. However, appellants Ratan,
\nSantosh and Sisir objected to such decision in the meeting held on
\n16.7.1996.\n<\/p>\n
             P.W.1 alleged that occurrence took place at about 9.00
\nP.M. on 17.7.1996 when he alongwith P.W.9 were returning home
\nfrom P.W.9’s mill.       When they reached in front of house of one
\nAmarsingh Agrawala they found accused persons Sisir and Ratan
\nproceeding from the opposite direction.        All of a sudden, appellant
\nSisir dealt tangi blow on P.W.9’s left side chest causing severe
\nbleeding injury. Accused Ratan raised his tangi in order to assault
\nP.W.9 on his head and P.W.9 caught hold of Ratan’s hands to ward off
\nblow as a result of which Ratan fell down on the ground. It was
\n                                        12<\/span><\/p>\n
asserted by P.W.1 that he snatched away the tangi M.O.I from
\naccused Ratan’s hands in course of which he sustained injuries on
\nhis fingers of right hand and buttock.\n<\/p>\n
            Hearing hulla deceased arrived there being followed by
\nP.W.2 and P.W.5       and others.     At that time acccused Ratan and
\nappellant Sisir loudly asked to join them to kill the persons belonging
\nto P.W.9’s group (ASO RAMESH RO LOKAKI MURDER KARMA). At
\nthat time appellants Rudra, Manatu, Rohit and Santosh as well as co-
\naccused Tulu @ Tulasi and Debe @ Debendra arrived there. After their
\narrival at the spot appellant Rudra attacked the deceased by means of
\ntangi and gave a blow on deceased’s head. Appellants Rohit and
\nManatu also dealt tangi blows on both the hands of the deceased.
\nWhen P.W.5 intervened in order to rescue the deceased, he was
\nassaulted by appellant Rohit on his head by means of the handle of a
\ntangi and by appellant Santosh on his head by means of a tangi. A
\ntangi blow was also dealt on P.W.2’s leg.\n<\/p>\n
            P.W.1 asserted that seeing the blood and when people
\nstarted coming to the spot, he returned home with the tangi M.O.I.\n<\/p>\n
              It was further asserted by P.W.1 that at the time of
\noccurrence the light of nearby houses were burning for which he was
\nable to see the occurrence clearly.\n<\/p>\n
             He proceeded on a motorcycle to Koksara police station
\non another route and not on the usual way which was blocked by the
\naccused persons, scribed F.I.R. Ext.1 and handed it over to P.W.16.
\nP.W.16 examined him and proceeded to the spot. Next morning P.W.1
\nproduced tangi M.O.I before P.W.16 upon which it was seized under
\nseizure list Ext.2.\n<\/p>\n
            Evidence of P.W.1 has not been discredited in any manner
\nin course of cross-examination.          It appears that in his cross-
\nexamination P.W.1 deposed that the deceased was aged about 14 to
\n                                      13<\/span><\/p>\n
15 years by the time of his death and that he was not concerned with
\nthe dispute regarding the place in which Deities were to be kept.\n<\/p>\n
16.        It appears from the F.I.R. Ext.1 and also it is in the
\nevidence of P.W.16 that F.I.R. was received and registered at 11.00
\nP.M. on the date of occurrence. It is alleged in the F.I.R. that though
\nDeities were kept in earlier years in the house of one Mura
\nDandasena, villagers decided during the year of occurrence that
\nDeities would be kept in the house of one Paban Agrawala during the
\nperiod from Car Festival to return Car Festival. However, decision of
\nthe villagers was opposed by appellants Ratan, Sisir and Santosh.
\nP.W.9 happens to be one of the prominent gentlemen of the village.
\nAfter the Car Festival when P.Ws. 1 and 9 were returning from the
\nside of P.W.9’s mill, appellant Sisir and accused Ratan attacked in
\norder to kill P.W.9. Appellant Sisir dealt tangi blow on P.W.9’s chest
\nwhereas accused Ratan raised tangi in order to assault on P.W.9’s
\nhead. However, P.W.9 caught hold of Ratan’s hand. In the process
\nRatan fell down P.W.9 ran towards his house. P.W.1 snatched away
\nthe tangi which accused Ratan was holding. Hearing noise deceased
\nas well as P.W.2, P.W.5, Lalit Sharma, Chandan Sharma, Amarsingh
\nAgrawala and Durga Prasad Agrawala arrived at the spot. At that
\ntime Ratan and Sisir shouted others to come in order to kill the
\npersons belonging to P.W.9’s group upon which appellants Rudra,
\nManatu, Rohit and Santosh as well as co-accused Tulasi and Debe
\ncame to the spot with tangis and launched an attack. Appellant Rudra
\ndealt tangi blow on deceased’s head whereas appellants Manatu and
\nRohit dealt tangi blows on deceased’s hands as a result of which
\ndeceased sustained injuries and died at the spot. When P.W.5 made
\nan attempt to intervene in order to rescue the deceased, appellants
\nRohit and Santosh assaulted him by means of tangis on his head and
\nhands causing serious injuries. P.W.2 also sustained injuries when
\n                                       14<\/span><\/p>\n
he tried to rescue the deceased. It has also been stated in the F.I.R.
\nthat the informant could see the entire occurrence as there was
\nelectric light. Thus, evidence of P.W.1 is materially corroborated
\nby the contents of F.I.R. lodged soon after the occurrence. Medical
\nevidence available from the evidence of P.W.13 adverted to above is
\nalso consistent with the evidence of P.W.1.\n<\/p>\n
17.         Injured   P.W.9   also   deposed   regarding   objection   by
\nappellants Ratan, Sisir and Santosh to the decision of the villagers to
\nkeep the Deities in the house of Paban Agrawala. He testifieed that
\nthe occurrence took place on the road when he alongwith P.W.1 was
\nreturning to their respective houses from his rice mill at about 9.00
\nP.M.   When they reached near the house of Amar Agrawala P.W. 9
\nfound appellant Sisir and accused Ratan coming from the opposite
\ndirection. All on a sudden, appellant Sisir dealt tangi blow on his left
\nside chest as a result of which he sustained bleeding injury. In the
\nsaid process accused Ratan was trying to deal a tangi blow on his
\nhead but he caught hold of Ratan’s right hand in order to ward off the
\nblow. Accused Ratan fell down on the ground. P.W.9 stated to have
\ngone to his house out of fear. Thus, evidence of P.W.9 is limited to
\nthat part of the occurrence which took place prior to arrival of
\ndeceased and other co-villagers as well as other accused persons.
\nThere is nothing in the cross-examination of P.W.9 to find any
\ninfirmity in his allegations relating to part played by appellant Sisir in
\ninflicting injury on his chest. As has been stated earlier, in course of
\nmedical examination, P.W.9 was found to have sustained simple
\ninjury on his left side chest caused by sharp instrument. P.W.9 denied
\nthe suggestion made in course of cross-examination that he used to
\nvehemently insist that Deities would be kept in the house of Paban
\nAgrawala.\n<\/p>\n
                                      15<\/span><\/p>\n
18.         P.W.2 deposed to have reached the spot alongwith
\nChandan Sharma after hearing hulla from the side of the house of
\nAmarsingh     Agrawala.    He     categorically testified   that   at   that
\ntime there was electricity in the village and the light from the nearby
\nhouses was burning for which there was light on the road. He found
\nP.W.1 standing near the house of Amarsingh, accused Ratan
\nassaulting the deceased by means of fist blows whereas other accused
\npersons attacking the deceased by raising tangis which they were
\nholding. It was specifically alleged by him that appellant Rudra dealt a
\ntangi blow on the deceased’s head whereas appellants Rohit and
\nManatu dealt tangi blows on deceased’s hands. He vaguely alleged
\nthat accused Ratan was assaulting the deceased by fist blows which
\nassertion does not find support from any other witness.                 After
\nreceiving the blows deceased fell down on the ground. When P.W.5
\ntried to physically intervene in order to rescue the deceased, appellant
\nRohit raised tangi in order to assault on his head. However, P.W.5 in
\norder to ward off the blow raised both his hands with the torch light
\nwhich he was holding. The tangi blow fell on the torch light and the
\nwooden handle of the axe came in contact with P.W.5’s head.
\nAppellant Santosh dealt a tangi blow on P.W.5’s right hand. P.W.5
\nwent to the house of Amarsingh Agrawala and fell down there. P.W.2
\ntestified to have watched the occurrence from a distance of about 5 to
\n6 cubits from the place of occurrence.     P.W.2 further deposed that
\napprehending that P.W. 5 would be further assaulted by the accused
\npersons he went near them. One of the accused persons dealt a tangi
\nblow on his left leg from behind causing bleeding injury.           It was
\nfurther deposed by him that when one Chandan Sharma came close
\nto him in order to prevent further assault, appellant Sisir dealt tangi
\nblow on his left side forehead causing bleeding injury. P.W.2 snatched
\naway the tangi M.O.II from appellant Debe. Thereafter he and
\n                                      16<\/span><\/p>\n
Chandan Sharma entered into the house of Amarsingh.              P.W.2
\ndeposed to have seen that some other villagers were standing on the
\nverandah of the house of Amarsingh. At about 10.30 P.M., P.W.5
\nand Chandan Sharma boarded a truck in order to go to hospital for
\ntreatment.      Accused persons being armed with tangis blocked the
\nroad. They had to return home. On his production tangi M.O.II was
\nseized by police next day under seizure list Ext.3. Evidence of P.W.2
\nto have sustained injuries on left calf caused by sharp cutting weapon
\nis corroborated by evidence of P.W.13.    Material part of evidence of
\nP.W.2 also appears to be without any embellishment.\n<\/p>\n
19.          Injured P.W.5 stated that at about 9.00 P.M. on the date
\nof occurrence he was standing with the deceased on the road in front
\nof his house. At that time P.Ws.1 and 9 were returning from the side
\nof rice mill.     When they reached near the house of Amarsingh
\nAgrawala accused Ratan and appellant Sisir attacked P.W.9.         On
\nhearing hulla he and deceased went to the spot. At that time Ratan
\nand Sisir called their friends hearing which other accused persons
\nbeing armed with tangis came to the spot in a group. Out of fear
\ndeceased started to run away. However, all the accused persons being
\narmed with tangis started attacking the deceased. It was testified by
\nP.W.5 that except accused Ratan all other accused persons were
\narmed with tangis. Appellant Rudra dealt tangi blow on deceased’s
\nhead whereas appellants Rohit and Manatu dealt tangi blows on
\ndeceased’s hands. Deceased sustained bleeding injuries and fell down
\non the ground. When P.W.5 followed the deceased in order to save
\nhim from the attack, accused persons combinedly attacked him.
\nAppellant Rohit dealt a tangi blow on his head and appellant Santosh
\ndealt a tangi blow on his right forearm. P.W.5 fell down on the ground.
\nWhen P.W.2 and Chandan came in order to rescue him they were also
\nassaulted by the accused persons by means of tangis. P.W.5 got up
\n                                       17<\/span><\/p>\n
and went to the old house of P.W.9. After sometime P.W.5 as well as
\nP.W.2 and Chandan were taken in a truck in order to go to Koksara
\nhospital but on the way the accused persons in a group damaged the
\ntruck.   They could not go to the hospital.     They received treatment
\nfrom a Pharmacist in the village.          He deposed to have received
\ntreatment    subsequently     in   District    Headquarters     Hospital,
\nBhawanipatna as well as in Seven Hills Hospital at Bisakhapatnam.
\nMedical evidence of P.W. 7 referred to above corroborates evidence of
\nP.W.5 to have sustained incised and lacerated wounds as well as
\nbruises. There is nothing in the cross-examination of P.W.5 to
\ndisbelieve his testimony.\n<\/p>\n
20.         In the very F.I.R. itself, at the earliest, it was pointed out
\nthat the informant could see the entire occurrence as there was
\nelectric light. In his deposition also informant P.W.1 reiterated that
\nhe could be able to clearly see the occurrence due to availability of
\nlight from the nearby houses.      Evidence of P.W.2 reveals that he
\nwatched the occurrence from a very close distance and there was
\navailability of light at the spot from nearby houses. Witnesses and co-
\naccused persons are co-villagers and closely known to each other.
\nThere being nothing on record to support the contention regarding
\nwant of sufficient light so as to make identification of the assailants
\nimprobable, contention raised on behalf of the appellants in this
\nregard is without merit.\n<\/p>\n
21.         Though, admittedly, other villagers who witnessed the
\noccurrence were also present near the scene of occurrence and one
\nChandanlal Sharma also sustained injuries in course of occurrence,
\nnon-examination of Chandanlal Sharma or any other witness has no
\nserious impact on the prosecution case which has been unfolded by
\ninjured eye-witnesses P.Ws. 1, 2, 5 and 9. Prosecution is required to
\nexamine all material witnesses whose evidence is necessary for
\n                                      18<\/span><\/p>\n
unfolding of the narration on which prosecution is based. Narration
\nof the entire prosecution case having been unfolded by P.Ws.1,2, 5
\nand 9, prosecution cannot be held to be guilty of suppression of
\nany material witnesses. In appreciating the evidence of P.Ws.1, 2, 5
\nand 9 it has to be borne in mind that they are injured witnesses.\n<\/p>\n
22.        Evidence on record does not conclusively establish that
\nthe eight accused persons who faced trial combindly committed the
\nalleged offences. No specific overt act was ascribed to some of them in
\nassaulting the deceased or any of the injured persons.         Though
\naccused persons Tulu @ Tulasi Prasad Das and Debe @ Debendra
\nMajhi were also alleged to have come to the spot of occurrence holding
\ntangis on being exhorted by accused Ratan and appellant Sisir, it is
\nalso in the evidence that not only other co-accused persons but also
\nmany villagers including the deceased assembled at the spot hearing
\ncommotion which took place when P.W.9 was assaulted by Ratan and
\nSisir. Also, accused persons Tulu @Tulasi and Debe @ Debendra are
\nnot alleged to have assaulted either the deceased or any of the injured
\npersons.   P.W.5 simply testified that accused Ratan and appellant
\nSisir called their friends upon which other accused persons came to
\nthe spot. He did not depose that appellants Ratan and Sisir exhorted
\nco-accused persons to come to the spot in order to kill persons
\nbelonging to P.W.9’s group. P.Ws. 2 and 9 did not testify that other
\naccused persons were called by accused Ratan and appellant Sisir.\n<\/p>\n
23.        So far as the first part of the occurrence regarding assault
\non P.W.9 is concerned, admittedly no other accused person except
\nRatan and Sisir were alleged to be present at the spot.      No other
\naccused person except accused persons Rudra, Rohit and Manatu
\nwere alleged to have assaulted the deceased by means of tangis.
\nEvidence on record does not indicate that all the accused persons or
\n                                      19<\/span><\/p>\n
even any five of them were laying in wait being armed with lethal
\nweapons with any of the common objects enumerated under Section
\n141 I.P.C.     In such circumstances, there appears no infirmity in
\nthe impugned judgment acquitting the accused persons of the charges
\nunder Sections 147 and 148 of I.P.C. or not convicting the accused
\npersons with the aid of Section 149 I.P.C..\n<\/p>\n
24.          It is in the evidence that P.W.1 sustained injuries on his
\npalm while snatching away tangi M.O.I from accused Ratan who was
\nmaking an attempt to deal a blow on P.W.9.        Evidence of injured
\nP.W.1 is corroborated by medical evidence. Therefore, there is also no
\ninfirmity in holding accused Ratan guilty of commission of offence
\nunder Section 324 I.P.C..\n<\/p>\n
25.          Injured P.W.5 himself deposed that appellants Rohit and
\nSantosh assaulted him causing severe injuries. Such evidence finds
\nsupport not only from the evidence of P.Ws. 1 and 2 but also from
\nmedical evidence from which it is gathered that P.W.5 sustained
\ngrievous injuries including injuries on head. There was deep incised
\nwound over right forearm 2″ above the wrist cutting muscle and bone
\nand fracture of bone resulting in deformity and loss of function.
\nTherefore, it has been rightly held that the prosecution has
\nestablished charge under Sections 307 read with 34 I.P.C. against
\nappellants Rohit and Santosh beyond reasonable doubt.\n<\/p>\n
26.          So far as appellant Sisir is concerned, the only specific
\novert act alleged against him was that he dealt a tangi blow on P.W.9’s
\nleft side chest. Medical evidence of P.W.13 indicates that P.W.9 was
\nfound to have sustained a simple skin deep injury.        There is no
\nallegation that appellant Sisir attempted to deal any other blow on
\nP.W.9. Therefore, in absence of any material on record, there is no
\nbasis to sustain the finding that appellant Sisir attempted to commit
\n                                       20<\/span><\/p>\n
P.W.9’s murder and is guilty of commission offence under Section 307
\nI.P.C. However, in view of the overt act of assault on P.W.9, he cannot
\nescape the liability of commission of offence under Section 324 I.P.C.\n<\/p>\n
27.         So far as offence under Section 302 I.P.C. is concerned, no
\nother accused except appellants Rudra, Rohit and Manatu was alleged
\nto have assaulted the deceased.           P.Ws. 1,2 and 5 alleged that
\nappellant Rudra dealt blow by means of tangi on deceased’s head
\nwhereas appellant Rohit and Manatu dealt tangi blows on the hands
\nof the deceased.   In course of post-mortem examination by P.W.13
\ndeceased was found to have sustained two incised wounds on the
\nhead as narrated above. Though injury no.(i) indicated involvement of
\nbone, obviously injury no.(ii) involving absence of portion of parietal
\nbone was more serious. Though P.W.13 opined that all the six injuries
\ncould combindly cause death and that injury no.s (i), (ii), (iii) and (vi)
\nalone could cause death of a person, persecution could have done well
\nto seek opinion from P.W.13 as to whether any of the injuries could
\nindividually cause death of the deceased. Injury no.(iii) was on the
\nright palm and injury no.(vi) was on the left forearm. Thus, there is no
\nclinching evidence to indicate that appellant Rudra was the author of
\ninjury no.(ii). Lack of evidence regarding second blow on deceased’s
\nhead indicates that blows were dealt on the deceased in quick
\nsuccession. In such circumstances, it is not safe to conclude that any
\nof the appellants Rudra, Rohit and Manatu assaulted the deceased
\nwith intention or knowledge required to constitute offence of murder
\nunder Section 302 I.P.C.       However, it is amply established that
\nappellant Rudra dealt tangi blow on the deceased’s head with
\nintention of causing such bodily injury which was likely to cause
\ndeath   and    thereafter    appellants     Rohit   and   Manatu     also
\nindiscriminately dealt tangi blows on the deceased.             In such
\ncircumstances, appellants Rudra, Rohit and Manatu are liable to be
\n                                       21<\/span><\/p>\n
convicted for commission of offence under Sections 304 Part-I read
\nwith 34 I.P.C. instead of offence under Sections 302 read with 34
\nI.P.C.\n<\/p>\n
28.         Save and except alleging that accused persons Tulu @
\nTulasi and Debe @ Debendra also came to the spot being armed with
\ntangis, no overt act of assault has been attributed to either of them.
\nAdmittedly, many villagers also gathered at the spot hearing noise
\nafter assault on P.W.9.      Prosecution is found to have failed to
\nestablish that accused persons had any common object to commit the
\nalleged offences.   In such circumstances, there is no scope to infer
\nthat presence of accused persons Debe and Tulu by itself was
\nculpable. There is no infirmity in the finding of the learned trial court
\nthat prosecution has not been able to establish any of the charges
\nagainst said accused persons.\n<\/p>\n
29.         Thus, on analysis and reappraisal of the evidence on
\nrecord it is found that there is no infirmity in the impugned judgment
\nacquitting Tulu @ Tulasi and Debe @ Debendra of the charges and
\nacquitting all the accused persons of the charge under Sections 147,
\n148 and 149 I.P.C. Also, there is no scope to interfere with conviction
\nof accused Ratan under Section 324 I.P.C. and appellants Rohit and
\nSantosh under Sections 307 read with 34 I.P.C. However, appellant
\nSisir is liable to be convicted under Section 324 I.P.C. instead of
\nSection 307 I.P.C. and appellants Rudra, Rohit and Manatu are liable
\nto be convicted for commission of offence under Sections 304-I read
\nwith 34 I.P.C. instead of 302 read with 34 I.P.C.\n<\/p>\n
30.         In view of the above, while setting aside conviction of
\nappellants Rudra, Rohit and Manatu for commission of offence under
\nSection 302 I.P.C. and convicting them under Sections 304-I read
\nwith 34 I.P.C. they are sentenced to undergo R.I. for ten years each
\nthereunder. Also, while setting aside conviction of appellant Sisir for
\n                                       22<\/span><\/p>\n
commission of offence under Sections 307 read with 34 I.P.C. and
\nconvicting him under Section 324 I.P.C. he is sentenced to undergo
\nR.I. for one year thereunder. However, order of the learned trial court
\nsentencing appellants Rohit and Santosh to undergo R.I. for five years
\nfor commission of offence under Sections 307 read with 34 I.P.C. is
\nconfirmed. Learned trial court has sentenced accused Ratan to
\nundergo R.I. for the period already undergone as an under trial
\nprisoner for commission of offence under Section 324 I.P.C. in view of
\ndefence evidence to the effect that he is a mentally challenged person.
\nWe find no reason to interfere with the sentence awarded to accused
\nRatan. The impugned judgment and order are modified accordingly.\n<\/p>\n
31.         In the result, Government Appeal filed by the State is
\ndismissed and Criminal Appeals filed by appellants Rudra, Manatu,
\nRohit and Sisir are allowed in part to the extent indicated above.
\nCriminal Appeal filed by appellant Santosh is dismissed.\n<\/p>\n
                                              …………………….\n<\/p>\n
                                                B.K. Patel, J.\n<\/p>\n
PRADIP MOHANTY, J.         I agree.\n\n                                               ...........................\n                                              Pradip Mohanty, J.\n\n\n\n\nOrissa High Court, Cuttack,\nDated the 22nd December,2010\/Aswini\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court High Court Of Orissa: Cuttack vs State Of Orissa on 22 December, 2010 HIGH COURT OF ORISSA: CUTTACK. Criminal Appeal Nos.183, 188, 222, 273 of 1998 and G.A. No. 29 of 2001 From the judgment and order dated 20.7.1998 passed by Shri P.K.De, Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in S.C. No.78 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-233718","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nHigh Court Of Orissa: Cuttack vs State Of Orissa on 22 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/high-court-of-orissa-cuttack-vs-state-of-orissa-on-22-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"High Court Of Orissa: Cuttack vs State Of Orissa on 22 December, 2010 - 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