{"id":244924,"date":"2010-03-16T00:00:00","date_gmt":"2010-03-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gagan-bihari-barik-crl-a-no-vs-state-of-orissa-in-all-cases-on-16-march-2010"},"modified":"2014-10-22T05:15:14","modified_gmt":"2014-10-21T23:45:14","slug":"gagan-bihari-barik-crl-a-no-vs-state-of-orissa-in-all-cases-on-16-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gagan-bihari-barik-crl-a-no-vs-state-of-orissa-in-all-cases-on-16-march-2010","title":{"rendered":"Gagan Bihari Barik (Crl. A. No. … vs State Of Orissa (In All Cases) on 16 March, 2010"},"content":{"rendered":"
Orissa High Court<\/div>\n
Gagan Bihari Barik (Crl. A. No. … vs State Of Orissa (In All Cases) on 16 March, 2010<\/div>\n
                       HIGH COURT OF ORISSA,\n                              CUTTACK\n\n              CRIMINAL APPEAL NO.285 OF 1999,\n               CRIMINAL APPEAL NO.302 OF 1999\n                            AND\n             JAIL CRIMINAL APPEAL NO.41 OF 2005\n\nFrom the judgment dated 11.10.1999 passed by Shri K.V.C. Rao, Addl.\nSessions Judge, Jagatsinghpur in S.T. Case No. 464 of 1998.\n\n                                        ........\n<\/pre>\n
Gagan Bihari Barik (Crl. A. No. 285\/1999)
\nAlekh Senapati         (Crl. A. No.302\/1999)
\nSukadev Bhoi           (Jail Crl. A. No.41\/2005)   ……….          Appellants<\/p>\n
                                 Versus<\/p>\n
State of Orissa        (In all cases)              ……….         Respondent<\/p>\n
      For Appellants      : M\/s D. Panda, D.C. Swain,
\n                                  D.B. Dhal, G.R. Mohanty
\n                                  and A.K. Parida.\n<\/p>\n
                             (Crl. Appeal No.285 of 1999)<\/p>\n
                            M\/s D. Panda, B.B. Biswal,
\n                                 R.Biswal, M.R. Panda,
\n                                 D.K. Biswal, P.R. Chhatoi,
\n                                 B.K. Choudhury, S.K. Swain
\n                                 and B.R. Biswal.\n<\/p>\n
                             (Crl. Appeal No.302 of 1999)<\/p>\n
                                Mr. Braja Mohan Biswal
\n                             (Jail Crl. Appeal No.41 of 2005)<\/p>\n
      For Respondent : Mr. J.P. Pattnaik,
\n                       Additional Govt. Advocate
\n                               And
\n                       M\/s D. Das, R.R. Chhotray,
\n                             B.R. Dalai and S. Satpathy
\n                        (Crl. Appeal No.302 of 1999)<\/p>\n
                                        ………\n<\/p>\n
                                                      2<\/span><\/p>\n
        PRESENT<\/p>\n
                      THE HON’BLE SHRI JUSTICE PRADIP MOHANTY
\n                                        AND
\n                          THE HON’BLE SHRI JUSTICE B.P.RAY<\/p>\n
        ——————————————————————————————–\n<\/p>\n
                           Date of hearing & judgment : 16.03.2010<\/p>\n
PRADIP MOHANTY, J. These three appeals arise out of the common judgment dated
\n        11.10.1999 passed in S.T. Case No.464 of 1998 whereby the learned Addl.
\n        Sessions Judge, Jagatsinghpur has convicted the appellants under Section
\n        302\/34, IPC and sentenced them to undergo imprisonment for life and pay a fine of
\n        Rs.1000\/- each in default to undergo rigorous imprisonment for one month.\n<\/p>\n
        2.                    Case of the prosecution, as unfolded during trial, is that one
\n        Sadananda Jena, a school teacher, was entrusted with the job of preparing list of
\n        persons of Sankharisahi village, to which both appellants and the deceased
\n        belonged, to get the benefits under the Below Poverty Line Scheme. Deceased
\n        Rasmiranjan was assisting him in identifying the persons entitled to get the benefit
\n        under the scheme. It is alleged that the teacher Sadananda Jena did not enlist the
\n        names of the appellants in the Below Poverty Line list. Due to that, there was
\n        some dissension between him and the appellants. On 08.11.1997, the deceased
\n        learnt that the appellants had planned to assault said Sadananda Jena and
\n        intimated him not to come to his village. On the very day at about 4.00 PM, when
\n        the deceased was going to his house, near the house of appellant Gagan Barik,
\n        appellant Sukadev Bhoi saw him and abused him in obscene language. Both of
\n        them (appellants Gagan Barik and Sukadev Bhoi) chased the deceased being
\n        armed with bhujali. The deceased ran from the spot and fell near the house of one
\n        Indramani Behera. Appellant Gagan Barik caught hold of his hand and appellant
\n        Alekha dealt a bhujali blow on the face of the deceased.              Appellant Sukadev
\n        brought one ‘SILUPUA’ and dealt blows on the face of the deceased.                   Many
\n        persons including the brother of the deceased were present there and witnessed
\n        the occurrence, but none of them intervened out of fear. It is further alleged that
\n        appellant Gagan Barik and Alekha Senapati pointed a revolver to the witnesses
\n        and threatened to kill them if the matter was reported to the police.                 After
\n        committing the crime, the appellants left the place. Deceased succumbed to the
\n        injury at the spot. P.W.5, the brother of the deceased went to Biridi Outpost and
\n                                             3<\/span><\/p>\n
lodged written report.       On the basis of the same, the case was registered,
\ninvestigation commenced and after it closure charge-sheet was submitted against
\nthe appellants.\n<\/p>\n
3.                     Plea of the appellants is one of complete denial and false
\nimplication.\n<\/p>\n
4.                     In order to prove its case, prosecution examined as many as
\neleven witnesses including the doctor and the I.O., and exhibited eighteen
\ndocuments. Defence examined none.\n<\/p>\n
5.                     The learned Addl. Sessions Judge after conclusion of the trial
\nwhile acquitting the appellants of the charge under Sections 25 and 27 of the Arms
\nAct, convicted and sentenced them as mentioned hereinbefore with the findings
\nthat the accused persons in furtherance of their common intention caused the
\ndeath of the deceased by means of bhujali and ‘SILUPUA’.\n<\/p>\n
6.                     Heard Mr. Parida, learned counsel appearing for appellants
\nAlekha Senapati and Gagan Barik, and Mr. B.M. Biswal, learned counsel
\nappearing for appellant Sukadev Bhoi.              They assail the impugned judgment
\nmainly on the following grounds:\n<\/p>\n
               (i)     FIR story does not tally with the evidence adduced in court.\n<\/p><\/blockquote>\n
               (ii)    The    so-called   ocular    witnesses   have   developed      the
\n                       prosecution case in court and, therefore, no reliance can be
\n                       placed on their testimony.\n<\/p><\/blockquote>\n
               (iii)   None of the so-called ocular witnesses has seen the
\n                       occurrence and due to enmity they have falsely implicated
\n                       the appellants.\n<\/p><\/blockquote>\n
               (iv)    The evidence of the so-called ocular witnesses suffers from
\n                       major contradictions.\n<\/p><\/blockquote>\n
               (v)     With regard to the alleged place of occurrence, the evidence is
\n                       inconsistent.\n<\/p><\/blockquote>\n
                                             4<\/span><\/p>\n
              (vi)    Some of the neighbours who had allegedly seen the
\n                      occurrence have not been examined by the prosecution.\n<\/p><\/blockquote>\n
              (vii)   Their alternative argument is that if at all the appellants are
\n                      found guilty of coming any crime, the act committed by them
\n                      would at best come within the ambit of Section 304 Part-II,
\n                      IPC.\n<\/p><\/blockquote>\n
7.                    Mr. Pattnaik, learned Additional Government Advocate, on the
\nother hand, contends that a conjoint reading of the evidence of the eye witnesses,
\nviz., P.Ws.2 to 7 clearly establishes that the appellants are the authors of the
\ncrime. P.W.5, the brother of the deceased, is the informant in this case and in the
\nFIR he has categorically mentioned the names of the appellants, the role played by
\neach of them and the weapon used. The ocular evidence gets corroboration from
\nthe medical evidence. The blood stains of human origin were found from the
\nwearing apparels of the appellants. Thus, it cannot be said that the trial court has
\ncommitted any infirmity or illegality in convicting the appellants.\n<\/p>\n
8.                    Perused the LCR. P.W.5 is the informant and brother of the
\ndeceased. He specifically stated that one Sadananda Jena, a school teacher, was
\npreparing the BPL list. His deceased brother was assisting said Sadananda to
\nidentify the persons entitled to get the benefit under the scheme.         The said
\nSadananda had not enlisted the names of the accused persons in that BPL list.
\nAccused persons wanted to take away the life of Sadananda on that day. His
\ndeceased brother came to know about it and sent away Sadananda to save him.
\nOn the occurrence day, while his deceased brother was going to his house, near
\nthe house of accused Gagan, accused Sukadev Bhoi scolded him in obscene
\nlanguage. Accused Alekha and Gagan chased his deceased brother by holding
\nbhujali. His deceased brother ran from the spot and fell near the house of one
\nIndramani Behera. Accused Gagan caught hold of both the hands of his deceased
\nbrother. Accused Alekha dealt bhujali blow on the face of his deceased brother.
\nAccused Sukadev brought one ‘SILAPUA’ and gave blows to the face of his
\ndeceased brother. As a result, his deceased brother succumbed to the injuries at
\nthe spot. He then proceeded to Biridi Outpost and lodged a written report. He
\nproved the FIR marked Ext.2 and his signature thereon as Ext.2\/1.          In cross-
\nexamination this witness admitted that accused Gagan and his brother were not
\n                                          5<\/span><\/p>\n
pulling on well since 1995, as his brother had deposed against accused Gagan in
\na murder case. The spot was 100 cubits away from his house. Hearing hullah he
\ncame out of his house. He also admitted that about 30 persons of their village had
\nseen the occurrence. Accused Gagan caught hold of the hands of his brother and
\nothers assaulted him. Out of fear, he did not go to the spot to rescue his brother.
\nHis brother tried to escape from the clutches of Gagan, but failed. He further
\nadmitted that all the accused persons were present near the spot for about five
\nminutes after the assault. A suggestion was given with regard to the spot and he
\nadmitted that the spot was in front of the house of Indramani. The FIR (Ext.2)
\ncorroborated the version of this witness.    P.W.6 is said to be another ocular
\nwitness. He specifically stated that there was exchange of hot words between the
\naccused Sukadev and the deceased. At that time, accused Alekha armed with a
\nbhujali arrived at the spot along with accused Gagan and threatened to kill the
\ndeceased. Out of fear, the deceased ran towards the house of one Indramani and
\nthere he fell down on the ground. Accused Gagan caught hold of the hands of the
\ndeceased and accused Alekha dealt bhujali blow on the face of the deceased.
\nThereafter, Sukadev gave blows by a ‘SILUPUA’ on the different parts of his face.
\nIn cross-examination, this witness admitted that he saw the assault from a distance
\nof 200 feet. About 3 to 4 persons were present near the spot where accused
\nSukadev assaulted the deceased. He also admitted that at that time P.Ws.2, 5, 7
\nand another person were present at the spot but they did not intervene. The entire
\noccurrence took place within ten minutes. He further admitted that he did not go to
\nthe spot to rescue the deceased. He had no enmity with the accused persons. To
\na suggestion given by the defence, he admitted that he had stated before the
\npolice that he had seen the occurrence by standing near the house of accused
\nGagan Barik which is 15 cubits away from the spot. Nothing substantial has been
\nbrought out by way of cross-examination to demolish the evidence of P.Ws.5 and\n<\/p>\n
6. P.W.7 is said to be another ocular witness. He stated that on the date of
\noccurrence while going to the river embankment he heard hullah near the house of
\nGagan Barik, went there and saw the occurrence. He corroborated the evidence
\nof P.W.6 with regard to assault by the accused persons. In cross-examination, he
\nadmitted that 4 to 5 persons were present near the spot at the time of assault. No
\nperson of Goudasahi was present near the spot. He also admitted that P.W.6 and
\none Srikanta Jena were present at the spot.       There is nothing in his cross-
\nexamination which can outweigh his evidence in the examination-in-chief. P.W.2
\n                                           6<\/span><\/p>\n
is yet another ocular witness. She stated that at the time of occurrence she was
\ngoing to the shop of one Abhaya Behera to purchase some grocery articles. When
\nshe reached the shop, she saw accused Sukadev standing near the house of
\naccused Gagan and rebuking the deceased saying “Sala BPL list Karuchu Sala Ku
\nMaridebu”. When the deceased came there, all the accused persons chased him
\nup to the house of one Indramani Behera. There, accused Gagan held the hands
\nof the deceased and accused Alekha dealt blow by means of bhujali. Accused
\nSukadev assaulted the deceased by a ‘SILU PUA’. Seeing the ghastly crime, she
\nleft the place and went to her house. In cross-examination, she admitted that no
\nother customer was present near the shop of said Abhaya Behera except herself.
\nShe further admitted that she became frightened seeing the deceased and did not
\nraise any hue and cry to help the deceased. Except herself no other person was
\npresent near the spot and all the doors of the houses were closed. She did not
\nproceed to rescue the deceased from the assault. All the blows were dealt while
\nthe deceased was lying on the ground facing upward. She further admitted that the
\noccurrence took place in front of the house of Indramani Behera. It is elicited by
\nway of cross-examination that the length of ‘SILUPUA” is 1 feet length and 4 inch
\ndiametre. She saw accused Sukadev dealing blow by holding ‘SILUPUA’ from the
\nmiddle. Nothing substantial has been elicited by way of cross-examination to belie
\nher testimony. P.W.3 is another eye witness who stated about the assault to the
\ndeceased by the accused persons. He admitted in cross-examination that 7 to 8
\nhouses were there near the house of Indramani Behera and his house. But he did
\nnot see the persons who had got their houses near his house at the time of
\noccurrence. Seeing the bhujali blow dealt to the deceased, he became frightened
\nand did not raise any hullah. He also admitted that he had no enmity with the
\naccused. Nothing has been elicited through cross-examination to demolish the
\ntestimony of this witness. P.W.4 is a witness to the occurrence who stated to have
\nseen the assault to the deceased by the accused persons. He stated that when
\nthe accused persons left the spot, he and one Gyana Samantaray chased them.
\nBut as accused Gagan and Alekha showed revolver, they did not chase them out
\nof fear.   He is also a witness to the seizure of the wearing apparels of the
\ndeceased vide Ext.1. P.W.8 is the doctor who conducted autopsy over the dead
\nbody of the deceased and found the following injuries:\n<\/p>\n
              “(1)   Incised injury 3″ x \u00bd” of bone depth.\n<\/p><\/blockquote>\n
                                           7<\/span><\/p>\n
             (2)    Incised injury \u00bd\" x \u00bd\" x \u00bd\" frontal.\n\n             (3)    Left maxillary region 1 cm x \u00bd cm.\n\n             (4)    Incised injury \u00bd\" x \u00bc\" x \u00bc\".\n\n             (5)    Left Mandible \u00bd\" x \u00bd\" x \u00bd\".\n\n             (6)    Incised injury vertex 2\" x \u00bd\" bone depth.\n\n             (7)    Multiple lacerated injury on left Maxilla.\n\n             (8)    Contusion left temporal region \u00bd\" x \u00bd\".\n\n             (9)    Contusion right temporal \u00bd\" x \u00bd\".\"\n\n\n\n<\/pre>\n
He opined that injury nos.1 to 6 are caused by sharp cutting instruments and injury
\nnos.7 to 9 are caused by hard and rough weapon. All the injuries are ante mortem
\nin nature. He specifically opined that the cause of death was due to shock as a
\nresult of injury to brain. He proved the postmortem report marked as Ext.3. In
\ncross-examination, he admitted that injuries no.1 and 2 are on the left forehead.
\nNothing has been elicited from the mouth of this witness through cross-
\nexamination to disbelieve his testimony. P.W.1 is a co-villager who specifically
\nstated that on the date of occurrence at 3.30 PM while going to the house of one
\nCarpenter he saw accused Gagan, Sukadev and Alekha standing near the house
\nof accused Gagan and rebuking the deceased in obscene language. Thereafter,
\nhe went to the house of the carpenter and came back to his house as the said
\ncarpenter was not present in his house. 5 or 10 minutes thereafter, he found some
\nfemale folk were present near a Chhaka situated adjacent to his house. When he
\nwent there, his cousin brother Abhaya Behera informed him that the accused
\npersons had committed murder of the deceased. He further stated that accused
\nGagan pointed a revolver saying that he would kill if anyone reported to the police
\nagainst him. In cross-examination, he admitted that no body was present when
\nGagan pointed a pistol and threatened to kill if anyone will report the police about
\nthe incident. P.W.9 is a police constable and a witness to the inquest. P.W.10 is
\nthe investigating officer who registered the case, examined the informant, held
\ninquest over the dead body of the deceased, seized the weapons of offence, blood
\nstained earth vide Ext.7, prepared the spot map, seized the blood stained wearing
\napparels of accused Alekha vide Ext.10, blood stained wearing apparels of
\n                                           8<\/span><\/p>\n
accused Gagan vide Ext.11 and blood stained wearing apparels of accused
\nSukadev vide Ext.12 and sent them for chemical examination, and ultimately
\nsubmitted charge-sheet. Nothing has been confronted to the investigating officer
\nabout the previous statement of the witnesses. The only suggestion given to him
\nwas that he had not properly investigated the case.          P.W.11 is the I.I.C. of
\nSahidnagar P.S. who arrested accused Gagan and Alekh and produced them in
\ncourt.\n<\/p>\n
9.                   On careful scrutiny of the evidence, this Court does not find
\nanything from which it can be inferred that ocular witnesses have exaggerated the
\nfacts or developed the prosecution case while deposing in court. Although there
\nare some minor contradictions in their evidence, such contradictions are bound to
\noccur even in case of truthful witnesses. There is no dispute that all the injuries on
\nthe person of the deceased were ante mortem in nature. P.Ws.2, 3, 4, 6 and 7
\nwho had seen the actual occurrence are co-villagers of the accused persons as
\nwell as the deceased and there is no material to show that they were inimically
\ndisposed towards the accused persons prior to the occurrence. In other words,
\nthere is no reason as to why these witnesses would falsely implicate the accused
\npersons. Rather, their evidence is very clear, cogent and reliable. P.W.5, the
\nbrother of the deceased, is the informant in this case. He had seen the occurrence
\nin question. Nothing has been elicited from him through cross-examination to
\ndisbelieve his evidence. In FIR also he has narrated in detail the incident and also
\nthe role played by each of the accused persons. Evidence of this witness also
\ngets full corroboration from the FIR.     His evidence does not suffer from any
\nmaterial contradiction. There is no reason as to why he would falsely implicate the
\naccused persons and spare the real culprits. The contention of the defence that
\nsome of the neighbours who had seen the occurrence have not been examined by
\nthe prosecution has no substance, simply because the prosecution cannot be
\ncompelled to examine all the witnesses said to have seen the occurrence.
\nMaterial witnesses considered necessary by the prosecution for unfolding the
\nprosecution case alone need to be examined and in this case prosecution has
\nexamined P.Ws.2 to 4, 6 and 7, who are co-villagers, as eye witnesses. The I.O.
\nhad seized the “SILUPUA” M.O.I and two pieces of broken bricks M.O.II from the
\nspot as well as the wearing apparels of the deceased and the accused persons
\nstained with blood which on chemical examination was found to be of human
\n                                                9<\/span><\/p>\n
     origin. But it seems no question in regard to that has been put to the accused
\n     persons while recording their statements under Section 313, Cr.P.C. Therefore,
\n     this Court feels it proper not to utilize the chemical examination report against the
\n     accused persons. The medical evidence of P.W.8 is found to have supported the
\n     evidence of the ocular witnesses. Therefore, taking into consideration the ocular
\n     evidence and the medical evidence available on record, this Court is satisfied that
\n     the trial court has rightly convicted the accused persons under Section 302\/34,
\n     IPC. This Court does not find anything from record to convert the conviction of the
\n     accused persons from Section 302, IPC to Section 304 Part-II, IPC.\n<\/p>\n
     10.                 For the reasons stated above, this Court does not find any
\n     justification to interfere with the impugned judgment which is hereby upheld. The
\n     appeals are accordingly dismissed.\n<\/p>\n
                                                           ………………………………\n<\/p>\n
                                                            PRADIP MOHANTY,J.\n<\/p>\n
B.P.RAY, J.              I agree.\n\n                                                            .............................\n                                                              B.P. RAY, J.\n\n\n\n     Orissa High Court, Cuttack\n     The 8th March, 2010\/ G.D. Samal\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Gagan Bihari Barik (Crl. A. No. … vs State Of Orissa (In All Cases) on 16 March, 2010 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 […]<\/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-244924","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nGagan Bihari Barik (Crl. A. 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