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2017 DIGILAW 382 (ORI)

Gajendra Bhoi v. State of Orissa

2017-04-07

S.N.PRASAD, S.PANDA

body2017
JUDGMENT : S. PANDA, J. 1. This Criminal Appeal is directed against the judgment dated 20.11.2000 passed by the learned Addl. Sessions Judge, Sonepur in Sessions Case No. 16/10 of 2000 in convicting the appellant for commission of offence under Section 302 of the Indian Penal Code and sentencing him to undergo Imprisonment for life. 2. The prosecution case, in brief is that on 23.04.1997 at about 5.00 P.M. the present appellant-Gajendra Bhoi along with one Chakadola Gura came to the liquor Bhati namely “Gatarkela country liquor distillery and sales shop” wherein the deceased-Kasinath Prasad was working as Manager and Ramavatar Prasad (P.W.4) as the gadidar, and they asked P.W.4 to give them liquor free of cost. P.W.4 when denied to give them liquor free of cost, they became angry and picked up a quarrel with him. However, one Santosh Sandh who was then working in a nearby sugarcane field intervened and was able to persuade the present appellant and his accomplice to leave the place. Shortly after this incident the present appellant again came to the bhati being accompanied by Chakadola and quarreled with P.W.4, the gadidar and also assaulted P.W.4, however they were again persuaded by Sanotsh Sandh and one Ganesh to leave the place. At that time Kasinath the deceased was not present in the bhati having gone to Sonepur for some work. While going away from the bhati, the present appellant had threatened P.W.4 to see him. Some time thereafter the deceased Kasinath Prasad, the Manager of the bhati returned from Sonepur and sat on a chair in front of the bhati house. At about 7.30 P.M. on that day while the deceased was sitting on the chair, the present appellant and his four accomplices, namely Subal, Beda, Chakadola and Trilochan came to the bhati and of them Subal gave a 100 rupee note to P.W.4 and asked him to give liquor. P.W.4 received the money and went inside the bhati to bring liquor. Beda Jena and Subal while followed P.W.4, the present appellant and his friend Chakadola stood near the deceased Kasinath Prasad who was then sitting on a chair. While P.W.4 was bringing liquor, he heard the deceased Manager, Kasinath Prasad shouting as “CHURA MARDIA, CHURA MARDIA”. P.W.4 received the money and went inside the bhati to bring liquor. Beda Jena and Subal while followed P.W.4, the present appellant and his friend Chakadola stood near the deceased Kasinath Prasad who was then sitting on a chair. While P.W.4 was bringing liquor, he heard the deceased Manager, Kasinath Prasad shouting as “CHURA MARDIA, CHURA MARDIA”. Kartik Bagarty (P.W.3) a cook under the deceased Kasinath and Akrura Guru (P.W.1) a labourer who were present inside the bhati at that time, they also heard the deceased shouting “CHURA MARDIA CHURA MARDIA”. All of them came out immediately and found the deceased Manager was lying in a pool of blood in front of the main gate of the bhati house, who died soon. Immediately after such occurrence, P.W.4 straightway headed to Sonepur P.S. where he reported that in the evening at 7.30 P.M., while he was in the bhati he heard the deceased Manager shouting “CHURA MARDIA CHURA MARDIA” and when he came out, the deceased was lying dead in front of the main gate of the bhati house. Shortly after such oral report, which was reduced to writing by the O.I.C., the O.I.C. reached the spot and investigated into the matter. He noticed a stab wound on the left side neck of the deceased, besides one abrasion near the left axial. The body of the deceased was sent to district headquarters hospital, Sonepur for autopsy. Akrura Guru (P.W.1), Kartika Bagarty (P.W.3) and Ramavatar Prasad (P.W.4) told the Investigating Officer (P.W.5) that the present appellant-Gajendra along with his four accomplices were seen running away from the place of assault shouting after the stabbing of the deceased. All the four accomplices were arrested, while the present appellant remained absconded. After completion of investigation, charge-sheet was submitted finding sufficient evidence against the appellant to have committed offence under Sections 302/34 I.P.C. As the present appellant was absconded, the case record was split up against him and the trial in respect of other accused persons were concluded. In the instant case, the present appellant on being arrested and taken to custody, the split up case was taken up. 3. The appellant’s defence plea was one of complete denial. 4. In order to bring home the charge, during trial the prosecution examined as many as 5 witnesses and exhibited 7 documents. In the instant case, the present appellant on being arrested and taken to custody, the split up case was taken up. 3. The appellant’s defence plea was one of complete denial. 4. In order to bring home the charge, during trial the prosecution examined as many as 5 witnesses and exhibited 7 documents. On the other hand, the defence had neither examined any witness nor exhibited any documents. The prosecution also proved five Material Objects from M.O.I toM.O. V. 5. The learned Addl. Sessions Judge after threadbare discussion of the materials available on record found that it was the present appellant who had killed the deceased with a knife while the deceased was sitting outside near the door of the bhati. He has also given the finding that all the accomplices of appellant had gone to the bhati at a time, but none of them had done overt act nor had participated in assaulting the deceased. Accordingly, he acquitted all the four accomplices from the offence of murder stating that they had not shared their common intention with the present appellant in killing the deceased. Therefore, the Trial Court convicted the present appellant for commission of the offence punishable under section 302 IPC and sentenced him to undergo imprisonment for life. 6. Mr. Dhal, learned counsel for the appellant submits that the impugned judgment of conviction and sentence is based on surmises and conjectures. The Trial court relying upon the statement of the witnesses recorded in the split up case and basing upon the finding of his predecessor had decided the case. When none of the witness have seen that who was the real assaultant among the five accused persons, he should not have convicted the present appellant under Section 302 IPC, when other accused persons have already been acquitted by his predecessor. As such the impugned judgment is liable to be set aside and the appellant is entitled for acquittal. 7. Learned Additional Government strongly contended that there are corroborative evidences of P.W.1, 3 and 4 that the appellant had given the stabbing in the neck of the deceased manager with a knife. According to him, the Doctor (P.W.2), who conducted the autopsy also corroborated with the evidence of the witnesses about one Stabbing injury on the body of the deceased, which is sufficient to cause death of a person. According to him, the Doctor (P.W.2), who conducted the autopsy also corroborated with the evidence of the witnesses about one Stabbing injury on the body of the deceased, which is sufficient to cause death of a person. The sentence imposed on the appellant has been properly assessed by the Trial Court and as such, the same calls for no interference by this Court. 8. Perused the L.C.R. and went through the evidence on record carefully. It appears that the prosecution has basically founded its case on the basis of the statements of the eye witnesses, i.e. P.Ws. 1, 3 and 4, so also the statements of the P.W. 2, the Doctor, who conducted the post mortem examination. 9. P.W.1, who is the Ex-Manager of Gatarkela liquor bhati and was present in the liquor shop at the time of occurrence had deposed in his examination-in-chief that he had been to bhati to take his labour charge from the deceased Manager. When he reached the bhati he saw the Manager was sitting in front of the liquor bhati on a chair and was gossiping with the Gadidar (P.W.4) and one Kartika Bagarty (P.W.3). At that time, Subal Mali came to the bhati along with 4 others including the present appellant. Reaching their Subal handed over a 100 rupee note to the gadidar and told him to give liquor. On receipt of the money when gadidar went inside the bhati to bring liquor, he, Subal, Kartik and Beda followed P.W.4. While they were still inside the bhati, they heard the Manager shouting “CHURA MARDIA CHURA MARDIA”. Hearing the shout they all came out of the bhati where the deceased was sitting and saw there the appellant-Gajendra running away from the bhati along 4 others namely Subal, Beda, Chakadola and Trilochan, while the Manager was lying injured on the chair having sustained bleeding injuries on his neck. Shortly after the stabbing Manager died on the spot while the gadidar reported the matter at Sonepur police station. 10. P.W.3, who was working as a cook in the liquor bhati and was present in the liquor bhati at the time of occurrence had deposed in his examination-in-chief that on the date of occurrence one Subal and Beda came to the bhati and of them Subal handed over a 100 rupee note to the Gadidar of bhati to give him liquor. Gadidar took the money and went inside bhati to bring liquor being followed by P.W.1 and accused Beda and Subal. At that point of time, he was in the kitchen room. Shortly after the Gadidar went inside the bhati to bring wine at that point of time he heard the deceased Manager Kasinath shouting as “CHURA MARDIA CHURA MARDIA”. Hearing such shout, he along with Gadidar and others when came out of the bhati saw that the deceased Manager lying injured on the chair in front of the Gadi. He further found that deceased Manager’s neck was cut and there was profuse bleeding from the wound. At that point of time, he further saw that the present appellant-Gajendra was running away from the bhati along with Subal, Beda and Trilochan. Being stabbed on his neck the Manager Kasinath died on the spot. 11. P.W.4, who is the gadidar of the bhati and was the informant, in his examination-in-chief had deposed that on 23.04.1997 at about 5 P.M. while he was present in the bhati he saw the present appellant came to bhati along with one Chakadola Guru to take liquor. Appellant-Gajendra reaching the bhati asked him to give liquor (daru) free of cost. He told that he will give liquor on payment of cost. The appellant thereafter picked up quarrel with him. One Ganesh Sandh who was then working in the sugarcane field near the bhati hearing the halla came to the bhati and pacified the matter. He there after sent the appellant out of the bhati premises. Shortly after leaving the bhati premises the appellant again came to bhati along with Chakadola and picked up quarrel with P.W.4. During quarrel the appellant caught hold of his bannian, also gave him fist blow to his right side face and also tore his ganji. Thereafter he left the bhati premises threatening him for dire consequence. On the same day at about 7.30 P.M. appellant again came to bhati premises along with four other persons, namely, Chakadola, Subal, Beda and Trilochan. Out of them Subal handed over him a 100 rupee note and demanded for liquor (daru). On receipt of the money when he went inside the bhati to bring liquor, Subal and Beda followed him while the appellant stood near the deceased Kasinath Prasad who was then sitting near the door of the bhati. Out of them Subal handed over him a 100 rupee note and demanded for liquor (daru). On receipt of the money when he went inside the bhati to bring liquor, Subal and Beda followed him while the appellant stood near the deceased Kasinath Prasad who was then sitting near the door of the bhati. While he was just bringing the liquor at that time he heard Kasinath shouting “CHURA MARDIA CHURA MARDIA”. Hearing the shout of Kasinath, he, P.W.1 and P.W.3 immediately rushed towards Kasinath where they saw the neck of Kasinath was cut and there was profuse bleeding from his neck. Akrura Guru (P.W.1) who was working as a peon in the bhati, P.W.3 who was then preparing food, were with him at the time of occurrence. Seeing brutally injured, he caught hold of Kasinath and wrapped a gamucha (napkin) around his neck, but blood could not be checked up. In the meantime appellant fled away from the bhati premises along with his four associates. Kasinath could not stand on the ground for long time and he fell on the ground and subsequently died on the spot. He there after lodged an oral report at Sonepur P.S. stating that Kasinath was murdered by the appellant and his four associates. His report was reduced to writing by police. In the cross examination he has stated that when the deceased told that “CHURA MARDIA CHURA MARDIA” he saw the appellant taking out the knife from the neck of the deceased and thereafter fleeing from the spot with his associates. 12. P.W.2, the doctor who conducted the post-mortem examination over the dead body found one stab wound over the left side of his neck. He also found one abrasion near the left axial of the deceased. The stab wound might have been caused by sharp pointed cutting weapon and abrasion might have been caused due to rubbing against a hard and rough surface. Both the above injuries are ante-mortem in nature. The cause of death of the deceased was due to shock and massive hemorrhage due to the injury to left internal carotid artery. The death of the deceased was caused immediately after the stabbing. 13. On close scrutiny of the evidences of the witnesses as indicated above, it is evident that blow of knife in the neck of the deceased has been corroborated by P.W.1, 3 and 4. The death of the deceased was caused immediately after the stabbing. 13. On close scrutiny of the evidences of the witnesses as indicated above, it is evident that blow of knife in the neck of the deceased has been corroborated by P.W.1, 3 and 4. According to the evidence of P.W.4, no one was there along with the deceased at the time of occurrence since all the accomplices had been inside to the bhati along with him to bring liquor. Due to the previous quarrel on that date, the appellant had come prepared. The evidence of the doctor who conducted autopsy over the dead body is consistent with the evidence of the witnesses so far as stabbing in the neck of the deceased is concerned. According to the Doctor, there were only two injuries on the body of the deceased out of which, one was stabbing injury made by sharp pointed cutting weapon by which there were massive hemorrhage to the left internal carotid artery and the same was sufficient to cause the death of the deceased. The other one is abrasion which might have been caused due to rubbing against a hard and rough surface. 14. Taking all these things into account, there cannot be any doubt that the present appellant is the author of the crime. In such background, there is no force in the arguments advanced by the learned counsel for the appellant to interfere with the impugned order. Thus, this Court is not inclined to interfere with the impugned judgment of conviction and sentence. The Criminal Appeal stands dismissed accordingly. 15. The appellant was released on bail pursuant to the order of this Court dated 06.02.2008. In view of the dismissal of the appeal, the bail bond so furnished be cancelled and the appellant be taken into custody forthwith.