Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 396 (ORI)

State of Orissa v. Bipin Baral

2009-05-06

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT L. MOHAPATRA, J. — Government Appeal No. 50 of 1996 and Criminal Revision No. 54 of 1996 are directed against the judg¬ment and order dated 26th October,1995 passed by the learned Second Addl. Sessions Judge, Bhubaneswar in S.T. No. 11/142 of 1995 and S.T. Case No. 15/280 of 1995 acquitting all the accused persons therein of the charge under Sections 302 and 34 of the Indian Penal Code (in short ‘IPC’). Criminal Revision No. 176 of 1997 has been filed by the informant challenging the judgment and order passed by the learned Second Addl. Sessions Judge, Bhuba¬neswar in S.T. Case No.13/61 of 1996 acquitting opposite party therein of the charge under Sections 302 and 34 IPC. Both the revisions have been filed by the informant against the judgment acquitting four accused persons of the charge and the Government Appeal has been filed in respect of three out of the four accused persons, who were acquitted by the trial Court. Since all the cases arise out of the same incident, they were tagged together for the purpose of hearing. 2. The case of the prosecution is that on 6.1.1994 at about 8.30 A.M. in the morning when the deceased and his son P.W.11 were going to their land for cultivation and the deceased was proceeding to his field on the river embankment followed by his son at a little distance behind him, at that time four ac¬cused persons came running from the opposite direction and start¬ed assaulting the deceased. It is alleged that accused Bula Swain and Sita Baral were armed with Farsa each, accused Bipin Baral was armed with a Bhujali and accused Daka Jena was armed with a Sword and they assaulted the deceased by means of the weapons they were holding. The deceased fell down on the road but the accused persons continued to assault him. P.W.11, who was follow¬ing the deceased, ran away from the place and informed his pater¬nal uncle-P.W.8. P.W.11 thereafter again came to the spot and found his father (deceased) lying dead with serious bleeding injuries on his legs, face, neck, head and hands. It is also the case of the prosecution that there was prior enmity between the deceased and accused persons and because of such enmity, the offence was committed. P.W.11 thereafter again came to the spot and found his father (deceased) lying dead with serious bleeding injuries on his legs, face, neck, head and hands. It is also the case of the prosecution that there was prior enmity between the deceased and accused persons and because of such enmity, the offence was committed. P.W.11 lodged the F.I.R., on the basis of which investigation was taken up and on its completion charge sheet was filed against all the four accused persons for commis¬sion of offence under Sections 302 and 34 IPC. Initially, Sita Baral, Bula Swain and Dak Jena absconded for which the case was spilt up and subsequently after arrest of Bula Swain and Dak Jena, the case was committed to the Court of Sessions for trial. So far as accused Sita Baral is concerned, he was arrested at the latter stage and his case was tried separately. 3. The prosecution in order to prove the charges, examined twelve witnesses but none was examined on behalf of the defence. The plea of defence is denial of the prosecution case and it was specifically pleaded that due to party faction in the village, they have been falsely implicated in the case. 4. Out of twelve witnesses examined by the prosecution P.W.11 is the informant and is son of the deceased. P.Ws.4,6,7,9,10 and 12 are eyewitnesses to the occurrence and P.Ws.1 and 8 are the post-occurrence witnesses. P.W.5 is a witness to the extra judicial confession made by one of the ac¬cused and P.W.2 is the Medical Officer, who conducted the post¬mortem examination. P.W.3 is the I.O. The trial Court entertained a doubt solely on the ground that no weapon of offence had been seized from the possession of the accused persons an, according¬ly, extended the benefit of doubt to all the accused persons in both the impugned judgments. 5. Learned counsel for the State and learned counsel for the informant in Criminal Revision No. 176 of 1997 drew attention of the Court to the evidence of witnesses to the occur¬rence and submitted that their evidence corroborates each other and is so consistent that there was no room for entertaining a doubt with regard to complicity of these accused persons in com¬mission of the crime. Ignoring the version of the eyewitnesses, the trial Court could not have disbelieved the prosecution case solely on the ground that the weapons of offence had not been seized. According to the learned counsel for the State as well as the informant, the evidence of eyewitnesses is so consistent that it does not leave any room to entertain a doubt with regard to involvement of the accused persons in commission of the crime. Learned counsel for the accused persons in support of the impugned judgment submitted that the evidence of the eye witness¬es suffer from contradictions and inconsistencies and no weapon of offence having been seized from any one of the accused per¬sons, the trial Court was justified in entertaining a doubt and extending the benefit of doubt to the accused persons. 6. Since the prosecution relies upon several eyewitnesses to the occurrence, we think it proper to scrutinize the evidence of each and every witnesses examined on behalf of the prosecution in order to find out as to whether there is any room to entertain a doubt as held by the trial Court. P.W.11 is son of the deceased. He, in his deposition, has stated that on 6.1.1994 at about 8.30 A.M., he was going with his father (deceased) to their land to do some agricultural work. The deceased was going ahead on him. When the deceased was on the “Sidi Rasta” and proceeding towards the river embankment, the accused Bipin, Bula, Daka and Sita came and assaulted him by means of Farsa, Bhujali and Sword. Accused Bula and Sita assaulted by Farsa each, accused Daka assaulted by a Sword and accused Bipin assaulted by Bhujali. Due to such as¬sault, the deceased fell down on the ground sustaining severe bleeding injuries and while he was lying on the ground, the ac¬cused persons still continued to assault him by those weapons. While the assault was in progress, he came running to Upara Sahi and met his paternal uncle-P.W.8, who was sitting on the Dolaman¬dap of Upara Sahi. Two Police Constables and some other persons were also sitting with P.W.8. He informed about the occurrence and both of them came running to the spot. They found the de¬ceased lying dead at the spot in a pool of blood with serious bleeding and cut injuries on different parts of his body and the accused persons had already left the place. He informed about the occurrence and both of them came running to the spot. They found the de¬ceased lying dead at the spot in a pool of blood with serious bleeding and cut injuries on different parts of his body and the accused persons had already left the place. Thereafter, he came to Bhubaneswar Police Station and lodged the F.I.R. In cross-examination, he has stated that prior to the occurrence, there was a strained relationship and enmity between the accused per¬sons and his family members. In cross-examination, he has also stated that at first accused Sita Baral dealt a Farsa blow to the neck of the deceased and each of the accused persons assaulted the deceased with the weapons in their hands. Approximately each accused was dealing one blow at interval of one second. There is nothing in the cross-examination of this witness to disbelieve his testimony. P.W.4 had seen two accused persons running away from the spot. He has stated in his deposition that on 6.1.1994 at about 8.30 A.M. while he was thrashing paddy in front of Dhoba Sahi, he saw two accused persons namely, Sita and Bula running from the side of river embankment towards the village holding a blood stained Farsa each. He also found a huge gathering at a little distance from the place where he was working. He went to the spot and found Basudev Naik (the deceased) lying dead having cut injuries in is body. P.W.6 is an eyewitness to the occur¬rence. He in his deposition has stated that on 6.1.1994 at about 8.30 A.M., when he was going to the house of a Barber, on the way leading from the river embankment into the village, he heard some one shouting and looked towards the side from which sound was coming. He found the deceased lying on the road and shouting and all the accused persons assaulting him. He got frightened and came away from the spot. He has further stated that accused Bula Swain and Sita Baral assaulted the deceased by Farsa and accused Bipin baral assaulted by Bhujali and accused Daka assaulted by Sword. In his presence, police seized the blood stained earth from the spot and also held inquest over the dead body. In cross-examination, he has stated to have seen the occurrence from a distance of about 70 to 75 cubits. In his presence, police seized the blood stained earth from the spot and also held inquest over the dead body. In cross-examination, he has stated to have seen the occurrence from a distance of about 70 to 75 cubits. He has also stated in cross-examination that prior to this occurrence, there was a strained relationship and strong rivalry between the accused persons and the deceased. The defence tried to prove through cross-examination that this witness had not seen the occurrence but he has specifically stated in the cross-examination that the spot of occurrence was not visible to him when he first heard the voice but he saw the assault at the time when deceased was lying on the ground facing downward and moving from side to side out of pain. He also claimed to have seen about 10 to 12 blows on the deceased dealt by the accused persons. P.W.7 is another eyewitness to the occurrence, who had seen all the accused persons assaulting the deceased by means of different weapons. In cross-examination, he has also stated that each of the accused persons had dealt about five to six blows to the deceased. P.W.9 is another eyewitness to the occurrence and has also corroborated the evidence of P.Ws. 6,7 and 11. Similarly, P.Ws.10 and 12 also corroborated the evidence of P.W.11 in material particulars. We have carefully perused the cross-examination of P.Ws.4,6,7,9,10 and 12 and did not find anything to disbelieve their testimony. All these eyewitnesses have consistently implicated all the four accused persons in commission of the offence. They have clearly indicated the role played by each of the accused persons and the weapons of offence held by each one of them. Learned counsel for the accused persons has not been able to point out any inconsistency or contradiction in the evidence of these eyewitnesses. The evidence of these eyewitnesses clearly establish that on the date of occurrence, all the four accused persons were armed with different dangerous weapons and came in a body and assaulted the deceased causing his death. The eyewitnesses to the occurrence are consistent in their statements that several blows were dealt by the accused persons and from the evidence of P.W.2, the doctor, who conducted post¬mortem examination, we find that the deceased suffered four compound fractures on different parts of the body and four in¬cised wounds. The eyewitnesses to the occurrence are consistent in their statements that several blows were dealt by the accused persons and from the evidence of P.W.2, the doctor, who conducted post¬mortem examination, we find that the deceased suffered four compound fractures on different parts of the body and four in¬cised wounds. The cause of death was haemorrhage and shock due to multiple injuries and specifically injury to the vital organ like brain, trachea, bones etc. P.W.2 was of the opinion that all the injuries could be caused by Farsa and Bhujali. It was contended by the learned counsel for the accused persons that though the eyewitnesses claimed to have seen several blows being dealt by four accused persons, eight injuries were found by P.W.2 and, therefore, the eyewitnesses should not be relied upon. It is true that the eyewitnesses have said about several blows being dealt by the accused persons on the deceased but it is not expected from any of the eyewitness to the occurrence to say the exact number of blows dealt by the accused persons specifically when they were examined in Court after lapse of considerable length of time. Some exaggeration or inconsistencies without affecting the prosecution case with regard to number of blows is natural. We, therefore do not find any inconsistency in the evidence of eye¬witnesses and the evidence of P.W.2. It is a fact that the weap¬ons of offence have not been seized in this case but that cannot be the sole factor for extending the benefit of doubt to the accused persons when there are several eyewitnesses to the occur¬rence, who have specifically implicated all the four accused persons to have participated in commission of the offence. 7. Learned Additional Sessions Judge has not given any cogent reason for giving preference to non-seizure of weapons of offence over consistent evidence of eyewitnesses alleging in¬volvement of four accused persons in commission of the offence. Having found that the eyewitnesses are consistent in their evi¬dence and that their evidence is supported by evidence of P.W.2, who conducted the postmortem examination, we hold that both the impugned judgments are unsustainable. 8. The impugned judgment in S.T. Case No. 13/61 of 1996 acquitting the accused Sita @ Sisira Baral has not been chal¬lenged by the State. The informant having challenged the said judgment, we cannot convert the judgment and order of acquittal to one for conviction. 8. The impugned judgment in S.T. Case No. 13/61 of 1996 acquitting the accused Sita @ Sisira Baral has not been chal¬lenged by the State. The informant having challenged the said judgment, we cannot convert the judgment and order of acquittal to one for conviction. We, therefore set aside the judgment in the aforesaid Sessions Case and remit the matter back to the trial Court for fresh disposal after giving opportunity of hear¬ing to the accused Sita @ Sisira Baral. Accordingly, the Criminal Revision No. 176 of 1997 is disposed of. So far as Government Appeal is concerned, we allow the same, set aside the impugned judgment and convict the respondents Bipin Baral and Bula Swain for commission of offence under Sections 302 and 34 IPC and sentence each one of them to imprisonment for life. Respondent No.3, Daka @ Pradip Kumar Jena having expired in the meantime, the Government Appeal abates against him. So far as Criminal Revision No. 54 of 1996 is concerned, in view of the conviction of respondents Bipin Baral and Bula Swain under Sections 302 and 34 IPC in Government Appeal No. 50 of 1996, no further order is required to be passed. The said revi¬sion is disposed of accordingly. PRADIP MOHANTY, J. I agree. Ordered accordingly.