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2016 DIGILAW 521 (ORI)

State of Orissa v. Bramhananda Bhoi

2016-07-13

I.MAHANTY, S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. This is an appeal under section 378 of the Code of Criminal Procedure preferred by the State of Orissa challenging the impugned judgment and order dated 29.11.1999 passed by the learned Addl. Sessions Judge, Jagatsinghpur in Sessions Trial Case No.548 of 1997 in acquitting the respondents of the charges under sections 336/323/436/302/34 of the Indian Penal Code. 2. The prosecution case as per the First Information Report (Ext.1) lodged by P.W.1 Radhu Kandi before the Officer in Charge of Naugaon Police Station on 04.06.1996 is that there was theft of utensils and other articles of Nalakana Gadibramha deity situated in village Chandakapatna in the district of Jagatsinghpur amounting to Rs.10,000/-. The villages of Chandakapatna fixed responsibility on respondent no.2 Rabi Bhoi for such theft. Though the respondent no.2 confessed his guilt but he did not attend the village meeting which was convened for the said purpose on repeated occasions rather he formed an unholy combination with others and conspired to avoid liability of theft. It is the further prosecution case, as per First Information Report that on 04.06.1996 at about 10 a.m., the main priest of Nalakana Gadibramha namely Sankar Samal, Radhu Bhoi (hereafter “the deceased”) and Pabani Samal (P.W.3) confronted respondent no.2 about the commission of theft but the respondent no.2 abused the main priest in filthy language and pushed him. The deceased and P.W.3 who were present there, protested against the conduct of respondent no.2 for which the other respondents started pelting brickbats at them as result of which the deceased sustained injuries on his left hand and abdomen and fell down on the ground. Respondent no.8 Jhatu Bhoi assaulted P.W.3 by means of lathi on his head for which he sustained bleeding injuries. Respondent no.7 Chaitanya Bhoi, his wife Manduri Bhoi (respondent no.12) and respondent no.2 Rabi Bhoi removed all the articles from the house of respondent no.7 and set fire to the house. Hearing hulla, when other co-villages assembled at the spot, the disturbance subsided. It is further stated in the First Information Report that number of co-villagers were present at the spot and they had seen the occurrence and the respondents formed an unlawful assembly and committed the crime and set fire to the house of respondent no.7 just to save respondent no.2 from the accusation of theft. 3. It is further stated in the First Information Report that number of co-villagers were present at the spot and they had seen the occurrence and the respondents formed an unlawful assembly and committed the crime and set fire to the house of respondent no.7 just to save respondent no.2 from the accusation of theft. 3. On the basis of such First Information Report, Naugaon P.S. Case No. 44 of 1996 was registered on 04.06.1996 for the offences under sections 341/323/325/336/436/34 of the Indian Penal Code by A.S.I. of Police namely Satrughana Biswal (P.W.9) of Naugaon Police Station in absence of the Officer in Charge. P.W.9 took up investigation of the case and examined the informant and other witnesses, sent the deceased who was by then in an injured condition and injured Pabani Samal (P.W.3) to Naugaon P.H.C. for their medical examination. He visited the spot and on 04.06.1996, he seized burnt straw, bamboo and some black metal in presence of witnesses as per seizure list Ext.4. He arrested some of the respondents and forwarded them to Court and on 15.06.1996, he handed over the charge of investigation to Bijoy Kumar Mallick (P.W.8), Officer in Charge of Naugaon Police Station. After taking over charge of investigation, P.W.8 arrested some of the respondents and forwarded them to Court and examined the witnesses. After the death of the deceased while undergoing treatment at S.C.B. Medical College and Hospital, Cuttack during the night on 14.06.1996, P.W.7 Debraj Bhuyan, A.S.I. of Police attached to S.C.B. Medical Outpost, under Mangalabag Police Station conducted inquest over the dead body of the deceased and prepared the inquest report Ext.2. He sent the dead body for post mortem examination under dead body challan Ext.3. P.W.10 Dr. Suniti Acharya, Associate Professor, Department of FMT, S.C.B. Medical College, Cuttack conducted post mortem examination over the dead body of the deceased on 15.06.1996 and prepared the post mortem report Ext.7 and opined the cause of death of the deceased was on account of shock as a result of peritonitis. The Investigating Officer (P.W.8) also collected the injury report of injured Pabani Samal (P.W.3) and after completion of investigation, he submitted charge sheet under sections 336/323/436/302/34 of the Indian Penal Code against the respondents on 14.09.1996. 4. The Investigating Officer (P.W.8) also collected the injury report of injured Pabani Samal (P.W.3) and after completion of investigation, he submitted charge sheet under sections 336/323/436/302/34 of the Indian Penal Code against the respondents on 14.09.1996. 4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the respondents under sections 336/323/436/302/34 of the Indian Penal Code and since the respondents refuted the charge, pleaded not guilty and claimed to be tried, the Sessions Trial procedure was resorted to prosecute them and establish their guilt. 5. During Course of trial, in order to prove its case, the prosecution examined eleven witnesses. P.W.1 Radhu Kandi is the informant in the case and he is an eye witness to the occurrence. P.W.2 Gunduchi Bhoi, P.W.3 Pabani Samal who is also an injured, P.W.4 Arjuni Bhoi, P.W.5 Murali Bhoi and P.W.6 Panchanan Bhoi are the eye witnesses to the occurrence. P.W.7 Debaraj Bhuyan was the ASI of Police attached to S.C.B. Medical Out Post, Cuttack and he conducted the inquest over the dead body of the deceased and prepared the inquest report Ext.2 and he also sent the dead body for post mortem examination. P.W.8 Bijoy Kumar Mallick was the Officer in Charge of Naugaon Police Station who is the Investigating Officer. P.W.9 Satrughna Biswal was the ASI of Police attached to Naugaon Police Station who registered the FIR on 04.06.1996 and conducted investigation till 15.06.1996. P.W.10 Dr. Suniti Acharya was the Associate Professor in the Department of FMT, S.C.B. Medical College, Cuttack who on 15.06.1996 conducted the post mortem examination over the dead body and prepared the post mortem report Ext.7. P.W.11 Dr. Purushotam Panda was the Medical Officer of Naugaon P.H.C. who examined the deceased on 04.06.1996 on police requisition and prepared injury report Ext.8. He also examined Pabani Samal (P.W.3) and prepared injury report Ext.9. The prosecution exhibited nine documents. Ext.1 is the F.I.R., Ext. 2 is the inquest report, Ext.3 is the dead body challan, Ext.4 is the seizure list, Exts.5 and 6 are the medical requisitions, Ext.7 is the post mortem report, Ext.8 is the injury report of the deceased and Ext.9 is the injury report of P.W.3. 6. The prosecution exhibited nine documents. Ext.1 is the F.I.R., Ext. 2 is the inquest report, Ext.3 is the dead body challan, Ext.4 is the seizure list, Exts.5 and 6 are the medical requisitions, Ext.7 is the post mortem report, Ext.8 is the injury report of the deceased and Ext.9 is the injury report of P.W.3. 6. The defence plea was one of denial and it was further pleaded that P.W.3 and others assaulted the respondents on the date of occurrence and set fire to the house of respondent no.12 Manduri Bhoi for which respondent no.12 lodged an FIR regarding the incident before the Officer in Charge, Naugaon Police Station against the deceased and others and a case was registered under sections 341/323/325/425/506/34 of the Indian Penal Code and charge sheet was submitted which correspondents to G.R Case No. 444 of 1996 which was pending on the file of learned S.D.J.M., Jagatsinghpur. It was further pleaded that there was party faction in the village and some of the accused persons also sustained injuries on their person and a false case has been foisted against the respondents. Respondent no.12 Manduri Bhoi examined herself as D.W.1 in support of the defence plea. 7. The learned Trial Court held that there was ill feeling and enmity between the informant’s group and the accused group prior to the occurrence. P.W.1, the informant belonged to the group of deceased Radhu Bhoi and other witnesses P.Ws. 2, 3, 4, 5 and 6 also belonged to the group of informant. It was further held that witnesses P.Ws. 1 to 7 who narrated the incident in detail have suppressed about the counter case filed by respondent no.12 Manduri Bhoi. It was further held that the Medical Officer of Naugaon P.H.C. examined Rabi Bhoi (R-2), Jhatu Bhoi (R-8), Chaitanya Bhoi (R-7) and Mali Bhoi on police requisition. The injury reports indicate that the accused persons have sustained injuries on their person and according to the doctor, those were not superficial injuries but the prosecution has not given any explanation as to how the accused persons had sustained those injuries in course of the incident. The learned Trial Court further held that no independent witnesses have been examined from the side of the prosecution to prove the charge and P.Ws. The learned Trial Court further held that no independent witnesses have been examined from the side of the prosecution to prove the charge and P.Ws. 1 to 6 have got animosity with the accused persons prior to the occurrence and therefore, in the facts and circumstances, doubt is created on the prosecution for non-examination of disinterested witnesses. The learned Trial Court further held that there is evidence showing that both the parties exchanged hot words and exchanged blows and therefore, it would be difficult to say who exactly assaulted whom and accordingly held that the prosecution has failed to prove that the respondents caused the death of the deceased and assaulted P.W.3 Pabani Samal. In the ultimate analysis, the learned Trial Court held that the respondents are entitled to get benefit of doubt and accordingly held the respondents not guilty under sections 336, 323, 436, 302, 34 of the Indian Penal Code and acquitted them of all the charges. 8. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.2, the prosecution has also relied upon the evidence of P.W.10 Dr. Suniti Acharya (P.W.10) who was attached to S.C.B. Medical College, Cuttack as Associate Professor of Department of FMT. She conducted post mortem examination over the dead body of the deceased on 15.06.1996 and found the abdomen was surgically bandaged. The stitched wound of size 17.5 c.m. with sixteen stitches were present over the midline of the abdomen and she found features of peritonitis. She opined the cause of death was due to shock as a result of peritonitis. The post mortem report was marked as Ext.7. There was no challenge to the findings of post mortem report in the Trial Court. The learned Trial Court though has not given any specific finding regarding the acceptance of the opinion of the doctor regarding nature of death of the deceased but it seems that he has no where deferred from such opinion. After perusing the evidence on record, the post mortem examination report Ext.7 and the statement of P.W.10 Dr. Suniti Acharya, we are of the view that there is no dispute that the death of the deceased was due to shock as a result of peritonitis. 9. Mr. Prem Kumar Patnaik, learned Addl. After perusing the evidence on record, the post mortem examination report Ext.7 and the statement of P.W.10 Dr. Suniti Acharya, we are of the view that there is no dispute that the death of the deceased was due to shock as a result of peritonitis. 9. Mr. Prem Kumar Patnaik, learned Addl. Government Advocate appearing for the State contended that there are ample evidence to show that the deceased succumbed to the injuries caused by the respondents in furtherance of their common intention and the evidence of the eye witnesses corroborate each other and they are consistent and there is nothing on record not to believe those witnesses. The learned counsel for the State further submitted that in view of the settled position of law that enmity is a double edged weapon, the learned Trial Court should not have disbelieved the eye witnesses on that ground. The learned counsel further submitted that when the medical evidence corroborates the ocular evidence in all respect, the learned Trial Court should not have doubted the prosecution case. It is the contention of the learned counsel for the State that the impugned judgment and order of acquittal is perverse and resulted in miscarriage of justice and therefore, it should be set aside and the respondents should be convicted under all the charges. Mr. Maheswar Mohanty, learned counsel for the respondents on the other hand placed the relevant findings of the learned Trial Court. The learned counsel further emphasized that when the learned Trial Court has considered all the material evidence on record and arrived at a conclusion and the view taken by the learned Trial Court is plausible, there is no scope of interference in the appeal against acquittal. 10. Law is well settled that where the judgment and order of acquittal is found to be perverse, infirm and palpably erroneous, the Appellate Court in such exceptional cases and compelling circumstances can interfere with the order of acquittal recorded by the learned Trial Court. However, merely because another view is reasonably possible is not sufficient to interfere with the acquittal order. Interference in a routine manner where the other view is possible should be avoided by the Appellate Court. 11. Coming to the statements of the eye witnesses P.Ws. However, merely because another view is reasonably possible is not sufficient to interfere with the acquittal order. Interference in a routine manner where the other view is possible should be avoided by the Appellate Court. 11. Coming to the statements of the eye witnesses P.Ws. 1 to 6, it is found that so far as the assault on the deceased Radhu Bhoi as well as injured Pabani Samal (P.W.3), there are discrepancies in their evidence. P.W.1 has stated that Rabi Bhoi (R-2) and others assaulted the deceased and P.W.3 by pelting stones and Jhatu Bhoi (R-8) gave a lathi blow on the head of P.W.3 for which he sustained bleeding injury and due to pelting of stones, the deceased sustained injuries on the left hand, right hand and abdomen. In the cross-examination, he has stated that all the accused persons pelted stones at a time towards the injured. P.W.2 Gunduchi Bhoi stated that the accused persons pelted stones towards the deceased and P.W.3 for which they sustained injuries on their person. He has not stated about the assault of P.W.3 by respondent no.8 Jhatu Bhoi. P.W.3 Pabani Samal stated that accused Kailash Kandi (R-5) pelted a stone to the belly of the deceased, accused Dharmananda Bhoi (R-4) pelted a stone to the left hand of the deceased and accused Chaitanya Bhoi (R-7) pelted a stone to the right arm of the deceased and at the instance of accused Nabin Charan Swain (R-3), accused Jhatu Bhoi (R-8) gave a lathi blow to his head for which he fell down. P.W.3 in the cross-examination stated that only three persons were pelting stones which contradicts the evidence of P.W.1 and P.W.2 that all the accused persons were pelting stones. It has been confronted to P.W.3 and proved through the Investigating Officer that he has not made any such statement regarding pelting of stones by respondents nos. 4, 5 and 7 to the specific parts of the body of the deceased. It seems that since P.W.11, the doctor who first examined the deceased at Naugaon P.H.C. noticed three injuries on the person of the deceased while he was in an injured condition, P.W.3 has modulated his version to keep it at par with the medical evidence. The deliberate change in the evidence of P.W.3 during trial attributing specific overt act to the three respondents indicate that he is not a truthful witness. The deliberate change in the evidence of P.W.3 during trial attributing specific overt act to the three respondents indicate that he is not a truthful witness. P.W.4 Arjuni Bhoi has stated that accused Kailash Kandi (R-5) pelted a stone to the abdomen of the deceased and accused Jhatu Bhoi (R-8) gave a lathi blow on the leg of P.W.3 and thereafter others pelted stones. It has been confronted to P.W.4 and proved through the Investigating Officer (P.W.8) that he has not stated before police that accused Kailash Kandi (R-5) pelted stone at the deceased. His evidence runs contrary to P.W.3. P.W.5 Murali Bhoi who is the cousin brother of the deceased has stated that accused persons Jhatu (R-8), Dharmananda (R-4) and Kailash (R-5) assaulted the deceased and P.W.3 for which they sustained injuries. P.W.6 Panchanan Bhoi stated that he along with Radhu Kandi (P.W.1), Gunduchi Bhoi (P.W.2) and others went to the spot and found P.W.3 was lying with bleeding injury on the spot and the deceased was rolling with pain on the ground complaining plain. Thus as per the evidence of P.W.6, he arrived at the spot along with P.W.1 and P.W.2 and by that time the assault on the deceased as well as P.W.3 was already over. In view of such statement of P.W.6, it cannot be said that P.W.1 and P.W.2 are the eye witnesses to the assault of the deceased and P.W.3. Thus on a careful analysis of the evidence of the aforesaid eye witnesses, it is found that they are contradictory to each other. As already discussed P.W.1, P.W.2 and P.W.6 cannot be said to be the witnesses to the actual assault on the deceased and P.W.3 as all of them as per the evidence of P.W.6 arrived at the spot when the assault was already over and the deceased and P.W.3 were lying on the ground with bleeding injuries. The evidence of P.W.3 and P.W.4 are not acceptable and there are material discrepancies in their evidence given in the Court vis-a-vis their statements before police during investigation. P.W.5 though stated that respondents nos. 4, 5 and 8 assaulted P.W.3 and the deceased and all the accused persons were pelting stones towards P.W.3 but such statement runs contrary to the evidence of P.W.3. P.W.5 though stated that respondents nos. 4, 5 and 8 assaulted P.W.3 and the deceased and all the accused persons were pelting stones towards P.W.3 but such statement runs contrary to the evidence of P.W.3. The doctor who has examined P.W.3 has noticed a lacerated wound on the forehead and a bruise on the right arm of P.W.3 and both the injuries were opined to be simple in nature. In view of the above analysis, we are of the view that there is no perversity in the findings of the learned Trial Court that there is no evidence as to who exactly assaulted whom. 12. P.W.1 admits that the accused persons have lodged FIR against him and others which was pending in the Court of learned S.D.J.M., Jagatsinghpur in G.R. 444 of 1996. P.W.8, the Investigating Officer has stated that accused Manduri Bhoi (R-12) had lodged FIR alleging that the informant and others assaulted her and others which was registered as G.R. Case No. 444 of 1996. P.W.9, the first Investigating Officer has also stated that he has investigated the case lodged by respondent no.12 before him. Respondent no.12 has been examined as D.W.1 to prove that she is the informant in G.R. Case No. 444 of 1996. Thus from the above evidence, it appears that it is a case and counter case and the counter case was instituted at the instance of respondent no.12 against the informant and others. P.W.2 has also stated that all the accused persons belonged to one group and he belonged to the opposite group since about two years and they were not pulling on well on account of dispute regarding the appointment of priest. P.W.4 has stated that the village is divided into two parts after commission of theft of articles of Nalkana Gadibramha and he belonged to the group of P.W.3. Thus from the evidence of the witnesses, it appears that there are two groups in the village, the accused persons belonged to one group and P.W.3 and others belong to the other group. In view of the groupism between the parties, the evidence of the witnesses is required to be scrutinized with more care and caution in order to eliminate chance of false implication. 13. In view of the groupism between the parties, the evidence of the witnesses is required to be scrutinized with more care and caution in order to eliminate chance of false implication. 13. The learned Trial Court framed charge under sections 436/34 of the Indian Penal Code against the respondents for committing mischief by setting fire to the house of Chaitanya Bhoi (R-7). In the First Information Report, it is mentioned that Chaitanaya Bhoi (R-7), his wife Manduri Bhoi (R-12) and Rabi Bhoi (R-2) after removing the articles from the house of respondent no.7, set fire to the house to falsely entangle the prosecution party members. In this context, though P.W.9 seized some black metal, half burnt straw and bamboo in the presence of the witnesses and prepared seizure list Ext.4 which was nearer to the house of respondent no.7 but he has not stated that the house of respondent no.7 was destroyed in fire. P.W.9 has not prepared any spot map during course of investigation. P.W.3 Pabani Samal has stated that the houses of respondent no.7 Chaitanya Bhoi, respondent no.2 Rabi Bhoi and Gati Rout were adjacent to each other. In view of such position of the houses, it is very difficult to believe that respondent no.2 Rabi Bhoi would set fire to the house of respondent no.7 when there was every chance of damage to his own house. The learned Trial Court has observed that the Medical Officer of Naugaon PHC examined Rabi Bhoi (R-2), Jhatu Bhoi (R8), Chaitanaya Bhoi (R-7) and Mali Bhoi on police requisition and the injury reports indicate that the accused persons have sustained injuries on their person and according to the doctor those were not superficial injury. There was no medical document or oral evidence to that effect before the learned Trial Court to make such observation. Neither the defence examined any doctor nor proved any medical documents to show that any of the respondents sustained any injury. The observation of the learned Trial Court that according to the doctor, the injury sustained by the respondents were not superficial injury is based on no material. Neither the defence examined any doctor nor proved any medical documents to show that any of the respondents sustained any injury. The observation of the learned Trial Court that according to the doctor, the injury sustained by the respondents were not superficial injury is based on no material. Similarly the observation of the learned Trial Court that the prosecution has not given any explanation as to how the accused persons had sustained those injuries in course of the incident is not at all proper and justified when there is nothing on record to show that any of the respondents had sustained any injury. Though D.W.1 has stated that she filed the certified copy of the F.I.R. relating to G.R. Case No.444 of 1996 and G.R. Case No.626 of 1996 but no such F.I.R. is available on record. The learned Trial Court should have been more careful in making such observation which in our view suffers from non-application of mind. 14. The presumption of innocence is available to every accused under the fundamental principle of criminal jurisprudence unless he is proved guilty by the Court. The respondents having secured an order of acquittal, presumption of their innocence was further reinforced, reaffirmed and strengthened by the Trial Court. After scanning of the evidence on record, we reach at our independent conclusion that the prosecution has miserably failed to establish the charges against the respondents beyond all reasonable doubt and therefore, we are not inclined to interfere with the impugned judgment and order of acquittal which is accordingly upheld and the Government Appeal stands dismissed. After issuance of warrant of arrest and bail order by this Court, the respondents surrendered before the learned Trial Court and they were released on bail. The respondents are discharged from the liability of their bail bonds. Their personal bonds and surety bonds stand cancelled. In the result, the Government Appeal stands dismissed.