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2018 DIGILAW 361 (ORI)

State of Orissa v. Bula @ Narendra Das`

2018-04-04

K.R.MOHAPATRA, S.PANDA

body2018
JUDGMENT S.PANDA, J. - This Government Criminal Appeal has been filed by the State of Orissa as the appellant challenging the judgment dated 12.09.2002 passed by the learned Addl. Sessions Judge, Jagatsinghpur in S.T. Case No. 427 of 2000 acquitting all the three respondents from the charges under Sections 302/34 I.P.C. 2. The case of the prosecution is that on 14.01.1999 at about 0.15 A.M., one Pratima Behera (P.W.6), W/o. Birabar Behera lodged an F.I.R. before the O.I.C. Biridi Out Post stating that on 13.1.1999 at about 9 P.M. while her husband was going to bring medicine, in front of the market complex one Sukadev Behera, Basudev Behera, Umesh @ Hipi, Gouranga, Narendra, Gola Das and others assaulted her husband. At first Sukadev Behera gave a push to the belly of her husband by means of a sword. Others also assaulted her husband from front side and also back side by means of sword. The occurrence was seen by Pratap Behera. She had also alleged that accused persons and their supporters had threatened the deceased Birabar in the last evening. Bhagabat Majhi, Damadar Sahoo and Babu Das have seen the above occurrence. On the report of the informant Jagatsinghpur P.S. Case No. 13/99 was registered. The matter was investigated and after completion of the investigation the I.O. submitted charge sheet against the accused persons and two other absconded persons under Sections 302/34 I.P.C. 3. The pleas of the accused persons is one of complete denial. Their further plea was that the deceased along with others being armed with pistols set fire to the shop of one Keshaba Chandra Behera (D.W.1), as a result of which the villagers assaulted the deceased and murdered him. 4. The prosecution in order to establish the charges examined as many as ten witnesses, which includes P.W.6 the informant, P.Ws. 1, 2 and 8, the eyewitnesses to the occurrence, P.W.9 the Doctor, who conducted autopsy over the dead body and P.W.10 the I.O. to the case. The Prosecution also exhibited many documents including the FIR under Ext. 3, Post Mortem Report under Ext. 5 and Chemical Examination report under Ext.9. On the other hand the defence examined one Keshaba Chandra Behera as D.W.1 and proved two exhibits under Ext. A and Ext. B. 5. The learned Addl. The Prosecution also exhibited many documents including the FIR under Ext. 3, Post Mortem Report under Ext. 5 and Chemical Examination report under Ext.9. On the other hand the defence examined one Keshaba Chandra Behera as D.W.1 and proved two exhibits under Ext. A and Ext. B. 5. The learned Addl. Sessions Judge came to a conclusion that the prosecution has not come up with a true case and has miserably failed to bring home the charges against the accused persons beyond all reasonable doubt and as such the accused persons are entitled to acquittal. Accordingly the Court below held the accused persons not guilty of the offences punishable under Sections 302/34 IPC and acquitted them under Section 235 Cr.P.C. having given them the benefit of doubt and set them at liberty. 6. Learned Additional Standing Counsel submitted that the order of acquittal is against the weight of materials available on record and contrary to the proposition of law and rulings. When the evidence of all the eyewitnesses are consistent with regard to assault made by respondent No. 3 by sword to the belly of the deceased and the same was also corroborated with the medical evidence, the findings of the Court below is erroneous and not sustainable in the eye of law. P.Ws. 1, 2 and 8 are the eyewitnesses to the occurrence. They corroborate the material facts regarding the commission of offence by the assailants. However, the trial Court on the basis of minor discrepancies in the statements of P.Ws. 1 and 2 with regard to the presence of P.W.8, though P.W. 2 had disclosed the presence of P.W. 8 as well as on an erroneous appreciation discarded the evidence adduced by the prosecution. Thus, the impugned judgment needs to be interfered with. He further submits that P.W. 6 (the wife of the deceased) is the post occurrence witness and she had stated that P.W. 8 had disclosed the fact to her immediately after the assault and accordingly she rushed to the spot of occurrence. However, by that time the injured was shifted to the hospital. She also corroborates the evidence of P.W. The trial Court also discarded their evidence and recorded the finding on surmises and conjectures. Therefore, the impugned order is liable to be set aside. 7. However, by that time the injured was shifted to the hospital. She also corroborates the evidence of P.W. The trial Court also discarded their evidence and recorded the finding on surmises and conjectures. Therefore, the impugned order is liable to be set aside. 7. Learned counsel appearing for the respondents supported the judgment passed by the trial Court and submitted that the evidences of witnesses as submitted by the learned Additional Standing Counsel are doubtful and they have not disclosed the truth. The defence had examined one witness. Considering the evidence in totality and also material discrepancies in the evidences of P.Ws. 1 and 2 who have shifted the injured to the hospital, the Court below has passed the order of acquittal, which need not be interfered with. 8. Perused the L.C.R. and went through the evidence on record carefully. 9. P.W. 1 in his examination in chief has stated that he along with one Bhagabat Majhi was going to attend the call of nature. Hearing the Hulla they went to the spot and by focus of their torch light they saw Uda Behera Holding a gun and Kailash Bhoi holding an iron rod threatened them to murder if they come to the spot. Sukadev Behera (respondent No.3) brought out a sword and pierced in the belly of the deceased. Bula (respondent No.1) and Hipi (respondent No.2) assaulting by iron rod. The assailants left the place when people started gathering. They took the deceased to the hospital where the doctor declared him dead. In his cross-examination on recall, he told that the deceased was standing in front of him and assault was made from the front side. There were 10 to 20 blows by the sword on the face. There were also assaults from leg to head by iron rod. Bhagabat, Murali and he took the deceased to the hospital. 10. P.W. 2 in his examination-in-chief has also corroborated the statements made by the P.W.1. 11. P.W. 6 in his examination-in-chief stated that on the day of occurrence at about 7.00 P.M. the accused persons came to their village and threatened to kill her husband. Her husband was not in the house at that point of time and he had been to Cuttack. After he came from Cuttack, since there was pain in the belly of her son, her husband went to bring medicine from Biridi hat. Her husband was not in the house at that point of time and he had been to Cuttack. After he came from Cuttack, since there was pain in the belly of her son, her husband went to bring medicine from Biridi hat. After some time, P.W. 8 came and informed her that Suka Behera, Hipi Behera, Basudev Behera, Bula Das, Gauranga Mohanty, Kailash Bhoi, Udhaba Behera murdered her husband. P.W. 8 and she came running to the spot and found her husband in the hospital. P.Ws. 1, 2 and one Basu Das told her that the above noted persons murdered her husband and they have seen the murder. 12. P.W.8, who is the other eyewitness to the occurrence, has stated that when he was in the house of the deceased, the deceased called him to go to bring medicine for his son. They both went to Biridi hat to bring medicine. He saw accused Sukadev Behera pushed a sword on the belly of the deceased. Hipi Behera and Bula Das were standing holding swords. Batua also standing holding a sword. Kailahs Bhoi and Gouranga Mohanty were standing holding iron rods. Udhaba was holding a gun. Seeing such incident he ran to the house of his uncle and told the fact Niranjan Behera and Minati Behera. 13. The Doctor, P.W. 9, who examined the deceased found the external injuries and internal injuries as follows:- External injuries:- Average body built. There was lacerated wound size 5"x 5" x 4" covering front and lower portion of the face, involving both the lips with blood clots. There was communicated fracture of both mandible and maxilla. There was an incised wound on right parietal region size 3" x 2" x2" with fracture of the underlying partial bone. There was punctured wound on right lumbar size 2"x 1" 6" and another on hypogastric 2"x1"x6". Internal injuries:- On disSection the lower portion of small intestine was punctured with blood clots. The right kidney was lacerated with blood clots. The bladder was punctured. The other internal organs like liver, spleen left kidney lungs were intact but pale. Heart was intact and empty. Stomach was intact and empty. The brain matter on the right parietal region was lacerated. And time since death-18 to 36 hours. According to him the cause of death was due to shock and hemorrhage and a result of injury to the vital organs. Heart was intact and empty. Stomach was intact and empty. The brain matter on the right parietal region was lacerated. And time since death-18 to 36 hours. According to him the cause of death was due to shock and hemorrhage and a result of injury to the vital organs. The death is homicidal one. The injuries are ante-mortem in nature. 14. In view of the discussions made in the foregoing paragraphs, it is apparent that P.Ws. 1, 2 and 8 are the eye witnesses to occurrence. However, while P.W.8 was with the deceased, P.Ws. 1 and 2 were at a visible distance from the spot where assault was made by the accused persons. The Court below discarded the evidence of P.Ws. 1 and 2 as their wearing apparels do not contain any bloodstain, even though they have shifted the deceased to the hospital. It is not necessary that a person, who shifts and injured to the hospital, his wearing apparel will be stained with blood. The Trial Court disbelieved their statements on a flimsy ground, thus the same is not sustainable. 15. P.W. 8 also very much present at the place of occurrence along with the deceased when the assault was made by accused persons. Looking into such manner of assault, this witness rushed to the house of deceased to inform the same and to make arrangement to shift the injured to hospital. He has not disclosed the presence of P.Ws. 1 and 2 in such a grave situation, however, on that score his evidence is not to be discarded as made by the Trial Court. accordingly, such finding of the Trial Court so far as P.W.8 has immediately disclosed the fact also corroborates the evidence of P.W. 8. 16. Taking into consideration all the above material facts along with the evidence of the ocular witnesses so also the medical evidence regarding the homicidal death of the deceased, this Court is of the opinion that the prosecution has proved the commission of crime by the respondents beyond all reasonable doubt. Hence, this Court sets aside the impugned order of acquittal. The Government Criminal Appeal is accordingly allowed. The respondents are found guilty for the offences under Sections 302/34 I.P.C. and they are sentenced to undergo imprisonment for life. They shall be apprehended to undergo the rest of the sentence accordingly. The LCR be sent forthwith. K.R. MOHAPATRA, J. I agree. Hence, this Court sets aside the impugned order of acquittal. The Government Criminal Appeal is accordingly allowed. The respondents are found guilty for the offences under Sections 302/34 I.P.C. and they are sentenced to undergo imprisonment for life. They shall be apprehended to undergo the rest of the sentence accordingly. The LCR be sent forthwith. K.R. MOHAPATRA, J. I agree. Appeal allowed.