{"id":248438,"date":"2010-03-09T00:00:00","date_gmt":"2010-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arjun-kalasi-vs-state-of-orissa-on-9-march-2010"},"modified":"2016-11-09T14:06:21","modified_gmt":"2016-11-09T08:36:21","slug":"arjun-kalasi-vs-state-of-orissa-on-9-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arjun-kalasi-vs-state-of-orissa-on-9-march-2010","title":{"rendered":"Arjun Kalasi vs State Of Orissa on 9 March, 2010"},"content":{"rendered":"
Orissa High Court<\/div>\n
Arjun Kalasi vs State Of Orissa on 9 March, 2010<\/div>\n
                       HIGH COURT OF ORISSA,\n                              CUTTACK\n\n                  JAIL CRIMINAL APPEAL NO.17 OF 2000\nFrom the judgment and order dated 18.12.1999 passed by Shri B.K.Nayak,\nSessions Judge, Bolangir in S.C. No.73-B of 1998.\n\n                                   ---------\n<\/pre>\n
Arjun Kalasi                         ......                            Appellant\n\n                                    Versus\n\nState of Orissa                      ......                        Respondent\n\n\n            For Appellant      :      Mr. K.B. Kar\n            For Respondent :          Mr. J.P.Pattnaik,\n                                      Additional Govt. Advocate.\n\nPRESENT:\n\n       THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY\n                            AND\n             THE HONOURABLE SHRI JUSTICE B.P. RAY\n\n                  Date of hearing and judgment: 09.03.2010\n                                               2<\/span>\n\nPRADIP MOHANTY, J.    The appellant has assailed the judgment and order dated\n<\/pre>\n
       18.12.1999 passed by the learned Sessions Judge, Bolangir in S.C. No. 73-
\n       B of 1998 convicting him under Section 302, IPC<\/a> and sentencing him to
\n       undergo imprisonment for life.\n<\/p>\n
       2.            The case of the prosecution is that Samaru Barik (P.W.1) orally
\n       reported before Khaparakhol Police Station on 14.06.1998 that on the same
\n       day at about 8.00 A.M. while deceased Akshaya Barik was taking the goats
\n       of his master for grazing, the accused-appellant assaulted him in presence
\n       of P.W.4 and one Bipin Bariha by means of a tangia (axe) near an electric
\n       pole in his village causing serious bleeding injury on the neck which
\n       resulted in the death of the deceased on the spot. Hearing the occurrence,
\n       both the parents and uncle (P.W.1) of the deceased rushed to the spot and
\n       found him lying on the spot with injury on his neck. In absence of the
\n       O.I.C., the A.S.I. (P.W.9) reduced the oral report to writing, registered the
\n       case and proceeded with the investigation. On arrival of the O.I.C., P.W.9
\n       handed over charge of investigation to him and after completion of
\n       investigation the O.I.C. submitted charge sheet against the appellant under
\n       Section 302<\/a>, IPC<\/a>. On commitment of the case to the Court of Session, the
\n       appellant faced trial under Section 302<\/a>, IPC<\/a>.\n<\/p>\n
       3.            During the course of trial, the appellant took the plea of
\n       complete denial. The prosecution in order to prove its case examined as
\n       many as ten witnesses including the doctor and the I.O. and proved fifteen
\n       documents. Defence examined none. The learned Sessions Judge on
\n       conclusion of the trial found the appellant guilty and convicted and
\n       sentenced him as already stated herein before.\n<\/p>\n
       4.            Perused the LCR. P.W.1 is the informant and the uncle of the
\n       deceased. He deposed that on hearing from Girna Kalari that the appellant
\n       was assaulting the deceased near an electric pole, he proceeded to the spot
\n       and found the deceased lying there with bleeding injury on his neck. The
\n       mother of the deceased was weeping there. He went to the Ward Member
\n                                        3<\/span><\/p>\n
but did not find him. On the advice of his elder brother (father of the
\ndeceased), he went to Khaparakhol Police Station and reported the matter
\norally, which was reduced to writing by the police. The contents of the
\nreport were read over and explained to him and finding the same correct, he
\nput his signature. He proved the FIR Ext.1 and his signature thereon
\nmarked Ext.1\/1. Nothing has been elicited in his cross-examination. P.W.2
\nis a witness to the inquest. P.W.3 is an independent witness, who stated in
\nhis evidence that on the date of occurrence at about 4.00 P.M. the police
\ntook the accused to custody and on interrogation by the police the accused
\nadmitted to have killed the deceased by assaulting him by means of a tangia
\nand concealed the same in a Kendu bush of his land. The I.O. recorded the
\nstatement of the accused in a separate sheet on which the accused put his
\nLTI. The accused, thereafter, led the police and the witnesses to the place of
\nconcealment and gave recovery of the tangia (M.O.I) which the police seized
\nvide Ext.9. In cross-examination, this witness admitted that the Kendu
\nbush from where the accused brought out the tangia stands in an open
\nplace. Except this, nothing has been elicited from his cross-examination.
\nP.W.4 in his evidence specifically stated that on the morning of the date of
\noccurrence he himself, the deceased and one Bipin Bariha went to the
\nhouse of Bibhisan Kara (P.W.5), since the deceased was tending the goats of
\nP.W.5. Deceased took his meal in the house of P.W.5, while he and Bipin
\nremained waiting outside. After a while, both P.W.4 and Bipin came to the
\nroad and the deceased followed them with the goats of Bibhisan. When they
\nwere going ahead of the deceased to bring their goats for grazing, the
\naccused was coming with his buffaloes for the purpose of grazing. He was
\nholding a tangia.   While they were proceeding, they heard a cry from their
\nback side and a falling sound. On turning back, they found that the
\nappellant had dealt a blow by means of the tangia he was holding on the
\nback of the deceased and the deceased had fallen down. Thereafter, out of
\nfear they went away. On reaching his house, P.W.4 disclosed the incident
\nbefore his father. Bipin went away to his house. In cross-examination, he
\n                                       4<\/span><\/p>\n
admitted that the accused was coming from the right side of the deceased.
\nThere was no quarrel between the deceased and the accused.       By the time
\nhe turned back, the deceased had already fallen down. The accused
\ndealt one blow after the deceased fell down. Except this, nothing substantial
\nhas been brought out from him. P.W.5 is the master of the deceased. He
\nspecifically stated in his evidence that in the morning of the date of
\noccurrence, the deceased came to his house along with Ranjaya Saraf
\n(P.W.4) and Bipin Bariha.    While the deceased was taking his meal, the
\nother two boys kept waiting. After the deceased took his meal, P.W.4 and
\nBipin left his house followed by deceased with his goats. A little later,
\nhearing hullah he went to the spot and found the deceased lying on the spot
\nnear the electric pole having sustained bleeding injury on his neck. Nothing
\nhas been elicited in his cross-examination. P.W.6 is the mother of the
\ndeceased. She deposed that the deceased used to tend the goats of P.W.5
\nwith Bipin and P.W.4. While she and her husband were in the house, her
\nnephew Chintamani came and told them that the appellant had assaulted
\nthe deceased. Immediately, she ran to the spot, which was near the electric
\npole. Her husband followed her. She found her son lying dead on the spot
\nwith bleeding injury on his neck. Nothing has been elicited from her in
\ncross-examination. No suggestion was also given to her. P.W.7 is a witness
\nto the seizure of the wearing apparels of the accused vide Ext.4. In cross-
\nexamination, he stated that by the time the wearing apparels of the accused
\nwere seized, he was in the custody of the police. P.W.8 is the doctor who
\nconducted autopsy over the dead body of the deceased. He opined that the
\ncause of death was due to haemorrhage and shock. Injury no.2 individually
\nwas sufficient to cause death in ordinary course of nature. He also opined
\nthat the cut injuries found on the body of the deceased were possible by the
\naxe (M.I). P.W.9 is the ASI of police who was in charge of the O.I.C. on the
\ndate of occurrence. It is he who registered the case and took up
\ninvestigation in absence of the OIC and arrested the accused. He specifically
\nstated that while the accused was in police custody he admitted to have
\n                                       5<\/span><\/p>\n
assaulted the deceased by means of a tangia and concealed the same inside
\nthe Kendu bush near his house. Stating so, he led the police and the
\nwitnesses and gave recovery of the tangia which          he   seized   under
\nExt.9. He recorded the statement of the appellant in separate sheets under
\nExt.10. On arrival of the OIC (P.W.10), he handed over the charge of
\ninvestigation to him. In cross-examination, he admitted that the spot map
\nprepared by him does not reveal that there are houses near the spot. He
\nalso admitted that he examined witnesses Padu Barik, Ranjaya Saraf, Girna
\nKalari, Natha Nag, Bijaya Kumar Mishra, Ramdas Kalari, Kunjabihari Panda
\nand Hadu Bari. P.W.10 was the OIC of Khaprakhol P.S. at the relevant time.
\nHe took over the charge of investigation from P.W.9. He seized the wearing
\napparels of the accused vide Ext.4 and that of the deceased vide Ext.12 in
\npresence of the witnesses.     He made a query to the Medical Officer,
\nKhaprakhol P.H.C. to opine as to whether the injuries on the person of the
\ndeceased could be caused by the seized axe (M.O.I). He sent the seized
\narticles to RFSL, Sambalpur for chemical examination and on completion of
\ninvestigation submitted the charge sheet.\n<\/p>\n
7.            Mr. Kar, learned counsel for the appellant strenuously
\ncontends that the prosecution has not examined the material witness Bipin
\nBariha. At the time of discovery of the weapon of offence, the appellant was
\nnot in police custody. He was arrested by P.W.10 after 4.00 P.M. He further
\ncontends that no blood stains were found either on the axe or in the lungi of
\nthe appellant. The evidence of P.W.4 has not been corroborated by any other
\nwitness. Therefore, the prosecution has not been able to prove the charge
\nunder Section 302<\/a>, IPC<\/a> against the appellant.\n<\/p>\n
8.          Mr. Pattnaik, learned Additional Government Advocate, on the
\nother hand, contends that there are direct materials against the appellant.
\nP.W.4 is an eye witness and his evidence is very clear and cogent with
\nregard to the assault by the appellant to the deceased by means of the axe.
\nThe appellant gave recovery of the weapon of offence from the Kendu bush
\n                                        6<\/span><\/p>\n
and it has been proved by the I.O. and independent witnesses. He further
\ncontends that blood stains were found from the towel of the accused.
\nTherefore, it can be safely concluded that the accused has committed the
\ncrime and the trial court has rightly convicted and sentenced him.\n<\/p>\n
9.          On scanning of the evidence on record this Court finds that
\nP.W.4 is an ocular witness. His evidence does not suffer from any
\ncontradiction.   Rather, his evidence gets corroboration from P.W.5, the
\nmaster of the deceased, who stated that on the morning of the date of
\noccurrence the deceased, P.W.4 and one Bipin Bariha had come to his
\nhouse where the deceased took his morning meal. P.W.5 also corroborated
\nthe evidence of P.W.4 that the deceased followed him and Bipin with the
\ngoats of P.W.5. This P.W.4 has no enmity with the appellant. P.W.6, the
\nmother of the deceased, also stated that in the morning of the date of
\noccurrence, the deceased went to the house of his master (P.W.5) with P.W.4
\nand one Bipin Bariha.      Although P.W.4 was cross-examined at length,
\nnothing substantial has been brought out to disbelieve his evidence. He
\nspecifically stated that assault was given by the appellant to the deceased
\nby an axe which is also corroborated by the medical evidence. The evidence
\nof P.W.4 appears to be very clear, cogent and trustworthy. Moreover, the
\ntangia was recovered in presence of P.W.3. P.W.3 is an independent witness
\nwho has no axe to grind against the appellant. Police seized the tangia vide
\nExt.9 and recorded the statement of the appellant vide Ext.10. There is no
\ndispute with regard to recovery of the weapon of offence (M.O.I). After taking
\ncharge from P.W.9, P.W.10 formally arrested the appellant. ‘Custody’ for the
\npurpose of Section 27<\/a> of the Evidence Act and Section 46<\/a> of the Cr.P.C. does
\nnot mean arrest. P.W.10 formally arrested the accused at 4.45 P.M., but he
\nwas in the custody of P.W.9 till he was formally arrested. It has been held in
\nBibhachha alias Bibachha Baitharu v. State of Orissa<\/a>, (1997) 13 OCR
\n418 that the term ‘custody’ as contemplated in Section 27<\/a> of the Evidence
\nAct does not mean formal custody, but includes such state of affairs in
\nwhich the accused can be said to be in the hands of the police officer, even
\n                                       7<\/span><\/p>\n
under some surveillance or restriction on the movement of the person
\nconcerned.\n<\/p>\n
10.          The next question is whether non- examination of the material
\nwitness Bipin Bariha is fatal to the prosecution, as contended by the
\nlearned counsel for the appellant. In the instant case, P.W.4, who has been
\nexamined by the prosecution, is an eye witness.       He is an independent
\nwitness and not related either to the appellant or to the deceased. He has no
\naxe to grind against the appellant. It is not obligatory on the part of the
\nprosecution to examine all the witnesses. Moreover, the lungi, shirt and
\ntowel which were seized from the possession of the appellant, contained
\npatches of blood, though the origin of the blood could not be detected due to
\ndeterioration. Therefore, non-examination of the material witnesses does not
\naffect the veracity of the prosecution case. For all these reasons, there
\nremains no doubt that it is the appellant who committed murder of the
\ndeceased by dealing tangia blows to his neck.\n<\/p>\n
10.          In view of the discussions made above, this Court is of the
\nconsidered view that the prosecution has been able to prove the charge
\nagainst the appellant beyond all reasonable doubt and no illegality or
\ninfirmity can be said to have been committed by the trial court in convicting
\nthe appellant under Section 302<\/a>, IPC<\/a>. Therefore, the judgment of conviction
\nand sentence passed by the trial court is confirmed and the Jail Criminal
\nAppeal is dismissed being devoid of any merit.\n<\/p>\n
                                                 ……………………………….\n<\/p>\n
                                                  PRADIP MOHANTY, J.\n<\/p>\n
B.P.RAY, J. I agree.\n<\/p>\n
                                                 …………………………….\n<\/p>\n
                                                     B.P. RAY, J.\n<\/p>\n
Orissa High Court, Cuttack,
\nDated 9th March,2010\/Routray\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Arjun Kalasi vs State Of Orissa on 9 March, 2010 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. ——— Arjun Kalasi …… Appellant Versus State of Orissa …… Respondent For […]<\/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-248438","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nArjun Kalasi vs State Of Orissa on 9 March, 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\/arjun-kalasi-vs-state-of-orissa-on-9-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arjun Kalasi vs State Of Orissa on 9 March, 2010 - 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