Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 823 (ORI)

Bhagyadhar Pal v. State of Orissa

2014-12-02

PRAMATH PATNAIK, VINOD PRASAD

body2014
Judgment Vinod Prasad, J. Appellant Bhagyadhar Pal along with his father Jayakrishna Pal alias Jatia (since deceased) and two sibling brothers, namely, Jaladhar Pal and Dusasan Pal alias Tutu (both since acquitted by learned trial judge ) were prosecuted for committing murder of Bharat Pal, on 11.08.1996 at about 6/6.30 A.M. in village Badasuanalo, P.S. Kamakshayanagar, district Dhenkanal and was convicted for the said offence by the learned Sessions Judge, Dhenkanal-Angul vide impugned judgment and order dated 24.06.2000 and was imposed sentence of life imprisonment, which judgment and order has now been called in question by the appellant in the instant appeal. 2. Note here is a fact that the father Jayakrishna Pal alias Jatia had expired pendente lite the trial and, therefore, his trial was abated while two other co-accused, sibling brothers of the present appellant namely Jaladhar Pal and Dusasan Pal alias Tutu, have been acquitted by the same impugned judgment and order by the learned trial judge, which acquittal by now has attained finality as no appeal or revision has been preferred either by the State or by the informant as against the said order of acquittal. 3. The background facts as it emerges from perusal of the evidences on record and the police papers are that one Dinabandhu Pal resident of village Badasuanalo, P.S. Kamakshayanagar, district Dhenkanal had three sons, namely, Adikanda Pal, Hata Kishore Pal and Jayakrishna Pal alias Jatia. Hatakishore Pal had married Sita Pal PW.3. Antaryami Pal/informant (PW.1) and Bharat Pal (deceased) are the sons of Hatakishore Pal and Sita Pal, while Renu Pal-PW.4 is their daughter. The present appellant Bhagyadhar Pal and his sibling brothers Jaladhar Pal and Dusasan Pal are sons of late Jayakrishna Pal alias Jatia. Thus, both the parties are uncle, nephew and cousin brothers in relationship. The village property of both the rival fractions in village Badasuanalo was partitioned amongst them and in that partition, in exchange of the homestead inside the village, a Khala Bari land situated at the northern end of the village was allotted to the informant and his brothers. Over the said Khala Bari land (thrashing floor), houses of both the prosecution side as well as the accused side exist, being separated by an open space of 15/20 cubits. Both the houses faced towards east. Over the said Khala Bari land (thrashing floor), houses of both the prosecution side as well as the accused side exist, being separated by an open space of 15/20 cubits. Both the houses faced towards east. Deceased accused Jayakrishna Pal alias Jatia had planted two Gambhari trees over the said Khala Bari land, one on the eastern side and other on the northern side. It is alleged that on 11.08.1996, when Antaryami Pal/informant along with Bharat Pal(deceased) had gone to Dehury Sahi to arrange for labourers, accused Jayakrishna Pal alias Jatia along with his three sons, Jaladhar Pal, Dusasan Pal and the present appellant Bhagyadhar Pal came to the Khala Bari land and had cut and removed one of the Gambhari trees. On their return to their house, PW.1 and the deceased were informed by their mother-Sita Pal (PW.3) about the said incident. Meanwhile all the aforesaid accused persons returned back to the Khala Bari land and cut the other tree. While they were trying to remove the tree, Bharat Pal/deceased forbade them not to do so as it will damage their existing seasonal crops on the adjacent land. On this, there was exchange of verbal dual between both the sides and, it is alleged, that in the midst of it, father Jayakrishna Pal alias Jatia instigated his son Bhagyadhar Pal, present appellant, who was armed with a Tangia/Axe (MO-I) to do away with the deceased on which two acquitted accused, Jaladhar Pal and Dusasan Pal, rounded up the deceased and the present appellant dealt a single blow with the Axe(MO-I) on the head of the deceased, as a result of which the deceased squatted on the ground sustaining severe bleeding injury. The incident had occurred in front of the house of the informant and was witnessed by the co-villagers Dilip Sahu, Satyananda Naik, Sita Pal(PW.3), Renu Pal(PW.4), Fakir Biswal and others. When PW.3 tried to intervene to save her son, she was pushed back by the acquitted accused Jaladhar Pal and thereafter all the accused persons escaped from the incident place. Injured Bharat Pal was shifted to Kamakshayanagar hospital on a scooter by Dwarikabandu Pal and Tukuna Khuntia. PWs.3,4 and the informant followed them in a bus to the hospital. While under treatment, injured Bharat Pal succumbed to the injuries. 4. Injured Bharat Pal was shifted to Kamakshayanagar hospital on a scooter by Dwarikabandu Pal and Tukuna Khuntia. PWs.3,4 and the informant followed them in a bus to the hospital. While under treatment, injured Bharat Pal succumbed to the injuries. 4. F.I.R. of the incident was dictated by Antaryami Pal/informant (PW.1) to his sister Renubala Pal/PW4, which she scribed, but meanwhile nephew of the informant Gourishankar Pal, an advocate by profession, arrived there and for the reason that the handwriting of the scribe PW.4 and her written FIR was very poor, that Gourishankar re-chalked down the FIR at the dictation of PW.4 and then the informant PW.1 tramped to the police station to lodge the FIR, which he got registered at 10 A.M. on the same day at Kamakshayanagar Police Station, which is 10 KMs away from the place of incident. 5. Sri B.S.Mishra, OIC, Kamakshaya Nagar P.S. registered the offence as P.S. case No. 104 of 1996 under Section 302/34 IPC and instructed Sri Loknath Mallik, JSI (PW.8) to investigate the crime. The investigation was set forth immediately and the JSI recorded the statement of the informant PW.1, and then came to the spot, seized the blood stained earth and plain earth and a piece of stick (Ata stick) lying at the spot, prepared the seizure memo Ext.8. The said Ata stick has been marked as M.O.III. From the house of the dead accused Jaykrishna Pal, one Tangia/Axe, M.O.II, was seized vide seizure memo Exhibit-6/1. Arriving at Kamakshaynagar hospital, the I.O. conducted inquest on the deceased cadaver and prepared inquest report vide Exhibit.2 and then dispatched the dead body for autopsy purpose along with the command certificateExt. 11, and challan Exhibit-9. Other witnesses were interrogated and their statements were taken down. Wearing apparels of the decease were seized by the I.O. after its production by the escort party and the seizure list thereof is Exhibit-10. Appellant was arrested on 21.08.1996 along with his brother/acquitted accused Dusasan Pal alias Tutu. While in police custody appellant made a disclosure statement, Ext.7/1, under Section 27 of the Evidence Act and at his pointing out, the Axe M.O.I was recovered seizure list of which is Exhibit-5/1. Recovered M.O.I was sent to Dr. Dambarudhar Biswalis/PW5 who had conducted autopsy on the dead body, for his opinion. Requisitioned by the I.O. is Exhibit-4/2 and the opinion of the doctor is Exhibit-4. Recovered M.O.I was sent to Dr. Dambarudhar Biswalis/PW5 who had conducted autopsy on the dead body, for his opinion. Requisitioned by the I.O. is Exhibit-4/2 and the opinion of the doctor is Exhibit-4. Acquitted accused Jaladhar Pal was arrested on 29.08.1996. Seized articles were sent to SFLSL on 11.11.1996 through the SDJM, Kamakshayanagar for chemical examination and report. Forwarding letter about the same is Exhibit-12. Clamping up the investigation, accused were charge sheeted on 16.11.1996 by the I.O. 6. Autopsy on the cadaver of the deceased was performed by Dr. Dambarudhar Biswal/PW.5 on 11.08.1996. The corpse was brought to the doctor by the constable. Following injury was noted by the doctor on the cadaver of the deceased:- An incised injury 4”x1” one cm lateral to the midline and 4” above the glabela through which brain matter came out. On dissection, doctor had found the following injuries corresponding to the above external injury. (1) Fracture of skull just below the injury no.2 and the sagital sinus was injured. (2) Fracture of left parietal-frontal bone extends upto 1” above the glabela, extending from anterior end of injury no.3, parallel to the sagital sutter. (3) Fracture of parietal bone extends from the posterior end of injury no.3 curvely towards the parietal prominent in the left side. (4) The membranes of the brain were injured just below the injury no.3 and laceration of brain matters present. (5) Three pieces of bone separated from the left parietal bone at the site of fracture one is 2”x1” and second ½” x ½” and the third is ¾” x ½”/ (6) Blood clots were present on the surface of the brain. (7) All the internal organs were intact and normal. 7. The doctor opined that the cause of death was due to shock and severe haemorrhage to the vital organ like brain. The injuries were antemortem in nature and were caused within six hours. Postmortem examination report of the deceased is Exhibit-3. Doctor has also affirmed his opinion regarding the weapon of assault that the sustained injury could have been inflicted by the said weapon and his opinion as already stated above is Exhibit-4. 8. Submission of charge sheet resulted in prosecution of the accused by the learned Sessions Judge, Dhenkanal-Angul after the same was committed to the Court of Session for trial where it was registered as ST Case No. 18D of 1997 (State Vrs. 8. Submission of charge sheet resulted in prosecution of the accused by the learned Sessions Judge, Dhenkanal-Angul after the same was committed to the Court of Session for trial where it was registered as ST Case No. 18D of 1997 (State Vrs. Jaladhar Pal and others). Learned trial judge on 03.11.1998 charged all the accused with the offence under Section 302/34 IPC and since accused abjured that charge after being read over and explained to them and pleaded not guilty and claimed to be tried, to establish the guilt, sessions trial procedure was adopted by the learned trial judge, during course of which, prosecution examined in all eight witnesses. Antaryami Pal-informant (PW.1), Fakira Mohan Biswal (PW.2), Sita Pal (PW.3) and Renu Pal scribe of the FIR ( PW.4) are the fact witnesses whereas PM Dr. Dambarudhar Biswal (PW.5), recovery witness Dambarudhar Rout (P.W.6), post occurrence witness Satyananda Naik (P.W.7) and I.O. Lokanath Mallik (P.W.8) are the other witnesses. The plea of the accused was that of total denial and false implication. 9. Learned trial judge after critically appreciating the tendered evidence -both oral and documentary, and after expatiating the facts and circumstances and analyzing them critically concluded that prosecution has not been able to substantiate its charge respecting to accused Dusasan @ Tutu Pal and Jaladhar Pal and therefore, acquitted them for the reason that from the tendered evidence it could not have been said that they shared the common intention to commit murder and therefore, could not be convicted. So far as Jayakrishna Pal @ Jatia was concerned, since he had expired pending trial, his case was abated. However, learned trial judge held the present appellant guilty under Section 302 IPC for committing murder of the deceased and therefore, convicted him of that offence and sentenced him to life imprisonment vide impugned judgment and order. Hence, the present appeal. 10. In the background inked hereinabove, we have heard Sri Anirudha Das, learned counsel for the sole appellant Bhagyadhar Pal and Sk. Zafarulla, learned Additional Standing Counsel in support and opposition of this appeal and we have critically scanned both the oral and documentary evidence existing on the trial court record. 11. Hence, the present appeal. 10. In the background inked hereinabove, we have heard Sri Anirudha Das, learned counsel for the sole appellant Bhagyadhar Pal and Sk. Zafarulla, learned Additional Standing Counsel in support and opposition of this appeal and we have critically scanned both the oral and documentary evidence existing on the trial court record. 11. Castigating the impugned judgment of conviction and assailing the opinion by the learned trial judge, the appellant’s counsel submitted that no attempt was made to lodge the FIR by the relative of the deceased who had followed him by bus to Kamakshayanagar hospital although the hospital was adjacent to the police station and intervening period was misutilised to concoct a story against the appellant and no credence therefore, can be attached to the prosecution story. Articulating the submission it is additionally urged that because of the aforesaid reason although Renu Pal (PW.4) claims to have scribed the FIR, but the original FIR mentioned Gourishankar Pal as the scribe and therefore, the prosecution version of preparation of the FIR is clouded with suspicion and the earliest version by the prosecution cannot be accredited with any credence and has to be rejected as the same is mendacious and feigned which was fabricated and concocted with due consultation and deliberations because of family feud. Articulating the contention it was contended that because of aforementioned reason that the doctor was also not intimated regarding the the manner in which injured/deceased had sustained injuries at the earliest point of time. This also creates a doubt regarding presence eye witnesses at the spot and in fact no body had witnesses the incident. No FIR alleged to have been written by Renu Pal (PW.4) ever saw the light of the day and such a claim by the prosecution is mendacious. No bed head ticket of admission of the injured/deceased was ever produced indicating thereby that he was never carried to hospital while alive. Elaborating the submission further contention is that in fact the FIR Exhibit-1 was never dictated by PW.1 and it was prepared on his own by Gourishankar Pal, a relative of the informant and an advocate by profession, on which PW.1 had only signed and therefore, the same could not have been proved by the informant-Antaryami Pal/PW1. Elaborating the submission further contention is that in fact the FIR Exhibit-1 was never dictated by PW.1 and it was prepared on his own by Gourishankar Pal, a relative of the informant and an advocate by profession, on which PW.1 had only signed and therefore, the same could not have been proved by the informant-Antaryami Pal/PW1. The doctor was never shown MO I, the axe, which is alleged to have been wielded by the appellant and therefore, doctor’s opinion vide Exhibit-4 is inconsequential. Both PWs. 2 and 3 have testified that the incident was preceded by verbal dialectal altercation between both the sides and therefore, conviction of the appellant for the charge of murder for a single blow alleged to have been inflicted by him by the eye witnesses is an unsustainable conclusion and at the worst appellant could have been convicted only for an offence of culpable homicide not amounting to murder punishable u/s 304 part I, I.P.C. With aforesaid contentions, learned appellant’s counsel while wrapping up his submissions argued that the appeal be allowed and the appellant be acquitted. In the alternative it was suggested that in case the appellant is not conferred with clean acquittal, he be convicted under section 304, Part-I, IPC and since he has already undergone more than 11 years and 11 months of imprisonment, he be sentenced with the sentence of the period of imprisonment already under gone by him. 12. Refuting appellant’s submissions, learned Additional Standing Counsel contended that both the sides are related to each other and therefore, it is not a case of mistaken identity. The incident occurred in broad day light. Prior to the incident, there was no hostility of such a degree between the parties so as to tell tale a story and nail down the accused and there was total absence of any reason to falsely implicate the appellant, who was the sole perpetrator of the crime and had inflicted the injury on the deceased resulting in his death the same day. From the prosecution version it is not discernible that the same is concocted and mendaciously narrated. None of the prosecution witnesses had any reason to spare the real assailant and implicate the appellant who is their first cousin. Medical report is congruent vis-a-vis eye witnesses’ account and leaves no manner of doubt that the deceased met a homicidal death. From the prosecution version it is not discernible that the same is concocted and mendaciously narrated. None of the prosecution witnesses had any reason to spare the real assailant and implicate the appellant who is their first cousin. Medical report is congruent vis-a-vis eye witnesses’ account and leaves no manner of doubt that the deceased met a homicidal death. Injury noted by the doctor could have been inflicted by MO-I and therefore, the doctor’s opinion is corroborative of oral testimony and resultantly the prosecution has established its case beyond all reasonable doubt. The impugned judgment does not suffer from any infirmity either legal or factual and therefore, does not call for any interference by this Court. Ultimately it is argued that the appeal lacks merit and be dismissed. 13. We have given our thoughtful consideration to the rival submissions vis-à-vis the evidences on the record. Some of the facts in the appeal have not been challenged specifically and therefore, those aspects stand established and to make a record of the same we hereby note that the date, time and place of the incident are not in dispute. Nowhere it has been suggested to the witnesses that no such incident as alleged by the prosecution occurred on the date, time and place. The doctor has opined that the injury sustained by the deceased could have been caused by the axe and therefore, we are of the opinion that the weapon of assault also stands established in the present case. Turning towards the other aspects, the slated pedigree herein above makes it evident that both the sides were related to each other very closely and to be specific, informant and the deceased were the nephew of Jayakrishna Pal and the real cousin brothers of the appellant, whereas the scribe of the FIR Renu Pal is the cousin sister. Sita Pal is the sister-in-law of deceased accused Jayakrishna Pal alias Jatia and is the aunt of the present appellant. Thus, it cannot be said at all, in absence of any ulterior motive, that these witnesses will falsely implicate their close relatives in a day light murder incident. It is further revealed that the houses of both the sides are in a close vicinity separated by 15/20 cubits and they were close neighbours. Thus, it cannot be said at all, in absence of any ulterior motive, that these witnesses will falsely implicate their close relatives in a day light murder incident. It is further revealed that the houses of both the sides are in a close vicinity separated by 15/20 cubits and they were close neighbours. There was a partition of the family property in which the Khala Bari land(Thrashing floor) had fallen in the share of the informant and the deceased. It is the admitted case of both the sides that over the said land two Gambhari trees were planted by the accused Jayakrishna Pal alias Jatia-one towards east and other towards the north. It is also admitted that one of the trees had already been cut and the woods had been transported by the accused persons without any disturbance or objection from any corner including PW.3 who later on informed the informant and the deceased about the said incident. A close scrutiny of the evidence of PW.1 further reveals that the second Gambhari tree was also cut and while the appellant tried to take away the woods, the deceased and the informant forbade him not to do that, seemingly for the reason that their seasonal crop in the adjacent land will get damaged. This aspect, however, has not been proved by the prosecution as, although, the site plan was prepared by the I.O., the same was not got exhibited during the trial through P.W.8, the I.O., for the reason best known to the prosecution. It was suggested by the defence that no seasonal crop was plated in the adjacent land. Since the spot map prepared by the I.O. exists on the trial court file, only to judge the veracity of the prosecution version, we had peeped through it and what we found is that the same was not got exhibited because, in fact, there was no seasonal crop which was to be damaged by the removal of the woods. Thus, the motive imputed to the appellant for committing the crime does not seem to be in consonance with the actual facts. Since it is a case of eye witness account, therefore, in view of the various decisions of the Apex court, we do not attach much significance to the said aspect and now we delineate to some other important aspect. Since it is a case of eye witness account, therefore, in view of the various decisions of the Apex court, we do not attach much significance to the said aspect and now we delineate to some other important aspect. As already noted herein above, there was absence of motive for the witnesses to spare the real assailant and we find that the incident did occur, but the actual assault occurred because of some other reason and was infact preceded by hot exchange of words. Albeit PW.1 has not stated any thing in his examination-in-chief or cross-examination regarding that fact, but an independent witness Fakira Mohan Biswal in no uncertain terms has clearly stated, “I heard exchange of words between the accused persons on one hand and the deceased on the other in front of the house of the deceased by the side of the road. Hearing the same I tried to know the cause of that exchange of words. The same was in relation to cutting of a tree.” Such a statement by PW.2 was corroborated by none other than Renu Pal, PW.4 sister of the informant as well as the deceased. In her examination-in-chief she has stated, on account of this there was a exchange of words between the deceased and the accused persons.” Thus, to be on the safer side, looking to the sequence of event, which could have happened, the possibility of triadic altercation cannot be completely ruled out and that seems to be the nature sequence of events , which would have occurred at the time of the incident. After peeping through the site plan we are of the opinion that the prosecution side never wanted the accused to remove the cut woods of the second tree and on this there was a verbal dual between rival sides, amidst which the blow was given by the appellant to the deceased at the instigation of his father. 15. In view of the aforesaid, since it is not in dispute that the tree was planted by one of the accused person, there was no occasion for the prosecution side to forbid the appellant not to remove the cut woods, especially when his claim that the seasonal crop will get damaged is not borne out from the record and seems to a untrue excuse. In our analysis, this was an intentional act of the prosecution to stop the accused from removing the woods to divest the appellant of his rightful claim. In view of the aforesaid, we are of the opinion that the incident had preceded by hot exchange of words at the behest of prosecution side, and rankled by that fact, the father instigated the appellant who, assaulted the deceased. In such a view the deceased can be said to have acted outrageously out of self control at the spur of the moment and therefore, he can be held to be guilty only for committing culpable homicide not amounting to murder. The eye witness account, which mentions a single blow having been inflicted on the deceased, is another reason for us to form our opinion as above. Though the doctor has noted many fractures of the cranium bones, but the eye witness account cannot be given a go bye. In view of the aforesaid, we find considerable force in the last contention harangued by the appellant’s counsel that the guilt of the appellant will not traverse beyond the ambit of section 304, Part-I, IPC. 16. Turning to the other contentions regarding lodging of FIR or informing the doctor, we find those submission trivial and incipient which are of no avail to the appellant, because it is the categorical testimony of the witnesses that while the deceased was being treated, he lost his life. In such a fact situation there was hardly any time for the relatives to detain the doctor and narrate him the incident to delay treatment of the injured. As is evident from the record the anxiety of the relatives must have been to save the life of the injured rather than to narrate the story how he had sustained the injury. The incidents must have occurred in quick succession of time and therefore, we are also of the opinion that probably no time was left for the relatives to go to the police station and register an FIR prior to the demise of the deceased. The submissions castigating the prosecution story for the aforesaid reasons therefore, are un-appealable and are hereby repelled. 17. The submissions castigating the prosecution story for the aforesaid reasons therefore, are un-appealable and are hereby repelled. 17. Concluding the judgment, we find that the conviction of the appellant under Section 302, IPC with imposed sentence of life imprisonment both are unsustainable as the appellant can only be said to be guilty under Section 304, Part-I, IPC. It emerges from record that the appellant was incarcerated on 21.08.1996 and was granted bail on 07.08.2007. Subsequently he was again arrested on 03.10.2014 and since that day he is in jail as of now. Therefore, calculating the entire period of his jail term, it comes to more slightly more than 11 years and 11 months. In our opinion the aforesaid period of sentence already undergone will meet the ends of justice. 18. The residue of our discussions is that the appeal is allowed in part. Conviction of the appellant for the charge of murder and sentence of life imprisonment are set aside. Instead, the appellant is convicted under Section 304, Part-I, IPC and sentenced to the period of imprisonment already undergone by him. The appellant is in jail because his bail was cancelled by this Court. He is directed to be set at liberty forthwith unless his detention is required in connection with any other case/crime. 19. Let the judgment be certified to the trial court for its intimation and further action at its end.