Bai @ Balaram Giri vs State Of Odisha

D.Dash, J

The Appellant, by filing this Appeal, has impeached the judgment of conviction and order of sentence dated 3rd March, 2023 and 15th March, 2023 respectively passed by the learned Sessions Judge, Balasore in Sessions Trial No.206 of 2017 arising out of C.T. No.522 of 2016 corresponding to Bhograi P.S. Case No.159 of 2016 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Jaleswar.

The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly he has been sentenced to undergo imprisonment for life for the offence under section 302 of the I.P.C. and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one year.

Prosecution case:-

The accused and Jagannath (deceased) are the two sons of Rajanikanta Giri (informant-P.W.5) whereas, the injured-Ranjita Giri (P.W.6) is his daughter. The wife of Rajanikanta died in or about the year 2013. The accused and his wife Laxmipriya were living separately from other members of the family as there was separation amongst them in that way. Rajanikanta (informant-P.W.5) after the separation lived with his younger unmarried son, i.e., Jagannath (deceased). It is stated that the accused after separation was torturing his father both mentally and physically. For that reason, Rajnikanta had tabled the matter for intervention of the village committee and with the intervention of the members of the village committee, their landed properties were amicably divided. However, in spite of such amicable division of the immovable properties, the relationship between the accused and his father as also his brother and sister had not restored to normalcy and it is said that the accused still was creating disturbance sometime, leading to the lodging of the complaint at the police station.

On 20.10.2016, early morning, it being the auspicious day of Kartika Purnima, Rajnikanta was sweeping the road in front of his house after sprinkling cow dung water. The accused during that time arrived near Rajnikanta and abused him uttering “Sala Budha Sakale Shantire Suaai Debanahin”. He then also threatened to take away the life of Rajnikanta. The accused then is said to have brought out the wooden hammer and dealt a blow on the head of Rajnikanta. Receiving the blow on the head, Rajanikanta (Informant-P.W.5) shouted for help when his other son, Jagannath rushed to the spot. He then restrained the accused and saved Rajanikanta from being further assaulted. But the accused then is said to have dealt a heavy blow on the head of Jagannath. Receiving the said blow, Jagannath became unconscious. At that time, Ranjita, the sister of the accused and Jagannath having intervened to save her father Rajanikanta and brother Jagannath, was also assaulted by the accused. With such hue and cry, spreading in the village in the early morning hour, the villagers gathered at the spot. Rajanikanta (Informant-P.W.5), Jagannath (deceased) and Ranjita (P.W.6) were shifted to Jaleswar Hospital and therefrom to District Headquarter Hospital, Balasore for better treatment. The health condition of Jagannath when further deteriorated, he was taken to S.C.B. Medical College and Hospital, Cuttack and admitted in the Intensive Care Unit (ICU) where in course of treatment, he met his death.

On 25.10.2016, Rajanikanta (Informant-P.W.5) the father of the accused Jagannath (deceased) and Ranjita (P.W.6) lodged a written report with the Inspector-in-Charge (I.I.C.) of Jaleswar Police Station. The I.I.C. receiving the said report treated the same as F.I.R. and upon registration of the case directed one Sub-Inspector of Police (S.I.) (P.W.15) to take up investigation. The Investigating Officer (I.O.-P.W.15) examined the Informant (P.W.5), visited the spot, prepared the spot map (Ext.P-9) and seized one bamboo stick at the spot in presence of the witnesses under seizure list (Ext.P-3/a). He issued injury requisition in favour of the Informant (P.W.5), Jagannath (deceased) and Ranjita (P.W.6) for their medical examination. On 27.10.2016, the I.O. (P.W.15) arrested the accused and seized his wearing apparels. Two days thereafter the I.O. received the intimation regarding the death of the Jagannath. He, therefore, collected all the papers concerning Mangalabag P.S. U.D. Case, which had been registered on the report of the death of Jagannath in the ICU of S.C.B. Medical College and Hospital, Cuttack. The Post Mortem Examination over the dead body of the deceased had been made at the instance of the Inquiring Officer of that U.D. Case. The I.O. (P.W.15) then prayed for sending the incriminating articles for chemical examination through Court, which was so ordered. On completion of Investigation, the I.O. (P.W.15) submitted the Final Form placing the accused to face the trial for commission of offence under section 302/323, I.P.C.

Learned J.M.F.C., Jaleswar, having receipt the Final Form as above took cognizance of the said offences and after observing the formalities committed the case to the Court of Sessions for trial. That is how the trial commenced by framing the charges for the said offences against this accused person.

The prosecution, in course of trial, has examined in total sixteen (16) witnesses. As already stated P.W.5 is the Informant and the father of the accused, deceased and P.W.6 and he had lodged the F.I.R. (Ext.P-1/2) scribed by P.W.12. P.W.6 is the sister of the accused and deceased and it is also said that she had been injured by the accused. P.W.1 to P.W.3 are the co-villagers and P.W.4 is the witness who had played his role in shifting the injured persons to the hospital. The Doctor who had examined the P.W.5, P.W.6 and the deceased at the initial stage has come to the witness box as P.W.11 and P.W.16 is the Doctor who had conducted the autopsy over the dead body of the deceased whereas the Investigating Officer is P.W.15

The prosecution besides leading the evidence by examining the above witnesses have proved several documents which have been shown in detail in the list appended to the judgment of the Trial Court. Therefore, in order to avoid repetition, those are not further noted as those would be referred to in the discussion to follow as and when would be so necessary.

The plea of defence is that of complete denial. The accused has examined himself in his defence as D.W.1 with the permission of the court.

The Trial Court having examined the evidence of the Doctor (P.W.16), who had conducted autopsy over the dead body of the deceased and on going through his report (Ext.P-11) along with the evidence of other prosecution witnesses who had seen the deceased in an injured condition as also the evidence of the Doctor (P.W.11), who had initially examined Jagannath has arrived at a conclusion that Jagannath had met an homicidal death. In fact, this aspect of the case was not under challenge before the Trial Court and that has also been the situation before us.

We find that P.W.11 having examined Jagannath when he was taken to the Jaleswar Hospital had noticed one lacerated wound of the size of 4 cm X 5 cm X bone depth present over the upper part of left parietal bone and from Jaleswar Hospital, Jagannath was shifted to S.C.B. Medical College and Hospital, Cuttack for better treatment where in course of treatment, he has died. The Doctor (P.W.11), who had conducted post mortem examination over the dead body of the deceased has found the surgical stitch incise wound, semicircular in shape, present starting 1.5 cm above glabella, passes backward from 6 cm and then turning to left to reach 4 cm above left ear root, passing 8 cm in front to left parietal eminence and another lacerated wound near the left ear lobe with two other bruises below lateral end of left clavicle. Besides the above few more bruises and scratches had been noticed. It is his evidence that there was surgical intervention for the head injury and the death was on account of cranio-cerebral injury and complications thereof. It has been stated by him that the injuries were homicidal in nature and what we find by reading the deposition of P.W.16 that the defence has not at all been serious in impeaching his evidence on any count. Besides the above, we find the evidence of other witnesses including P.W.5 and P.W.6 that the deceased had received injuries on his head and other parts of the body and was taken to Jaleswar Hospital first for treatment wherefrom to Balasore and then to Cuttack. Fact remains that in course of treatment for the said injury, Jagannath died. When all the above evidence firmly unto on the ground, we have no other option but to concur with the finding of the Trial Court that Jagannath met a homicidal death.

Mr. D.P. Dhal, learned Senior Counsel for the Appellant (accused) submitted that the approach of the Trial Court as would reveal from the very prologue of the judgment that before going to discuss the evidence on record in finding out answers to the points formulated, it is as if the Court was sitting with a pre-determine mind. In this connection, he has highlighted few sentences which have been written by the Trial Court in its judgment at the beginning, which runs:-

“xxx xxx xxx xxx

Xxx xxx xxx xxx

The case in hand is a classic example where one brother (accused of this case) acted like a demon on his own younger brother, father and sister over some issues relating to the family and allegedly killed his brother after causing serious injuries to his father and sister. The tragic episode jinxed the entire family in a trice because after such untoward incident, the injured-father lodged an F.I.R. against his accused-son …… …………”

He submitted that if with the above view, the Court sits to answer the points formulated; hardly it is expected that there would be proper appreciation of evidence. He further submitted that here the most important witnesses for the prosecution is the father of the accused and deceased who is the Informant and lodged the F.I.R. (Ext.P.1/2) as well as her daughter, who is the sister of the accused and deceased examined as P.W.6 and they have not supported the prosecution case and the Trial Court has based the conviction solely relying upon the evidence of P.W.2 in further stating that the said evidence receives corroboration from  the evidence of P.W.5 and P.W.6 as also the other evidence. He submitted that the person who are said to have been injured in the incident and that to in the hands of the accused as per the prosecution case are not coming forward to implicate the accused in any manner with the crime by not stating that he played any role in the crime scenario and thus the Trial Court has committed grave error by relying upon the evidence of P.W.2. According to him, when the best available witness for the prosecution here is the injured witnesses that to when as per the prosecution case they were injured by none other than this accused, are not stating anything against the accused, the Trial Court ought to have kept in mind that in such circumstance, it would be unsafe and hazardous to rely upon the evidence of P.W.2 in such circumstance. He further submitted that even if the evidence of P.W.2 is taken into account on its face value, he cannot be said to be a truthful witness; firstly because her evidence does not receive support from the evidence of P.W.5 and P.W.6 and secondly, his evidence would reveal that she too suppressing the initial happening and that is fortified from the fact that the prosecution here has not provided any explanation as to how the accused had received the injury on his head which is not superficial or too minor as not to be taken note of and fully ignored. He, therefore, submitted that the finding of guilt against the accused as has been returned by the Trial Court is not at all the outcome of just and proper appreciation of evidence and it appears to have been rendered by perversely appreciating the evidence on record.

Mr. D.K. Mishra, learned Additional Government Advocate submitted all in favour of the finding of guilt of the accused as has been returned by the Trial Court. According to him, even though P.W.5 and 6 who are the father and sister of the accused have at a later stage in the trial tried to save the accused, have turned hostile by not supporting the prospection case and resiling from their previous version given during investigation, when he evidence of P.W.2 is wholly believable as he too had no reason to falsely implicate the accused, the Trial Court did commit no mistake in holding the accused guilty of committing the murder of his younger brother- Jagannath. He further submitted that the evidence of P.W.2 having been thoroughly scrutinized by the Trial Court, his version as regards the role played and act done by the accused has been rightly accepted when also no such infirmity has come to surfaces in her evidence and, therefore, the Trial Court has rightly held the accused guilty of committing the murder of his younger brother-Jagannath.

Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.16) examined from the side of the prosecution and have perused the documents admitted in evidence and marked Ext.1 to Ext.P-12 from the side of the prosecution.

As would reveal from the prosecution version made in the F.I.R. that the incident took place in the early morning hour. It is stated that P.W.5, the father of the accused was attacked by this accused first after hurling abuses at him and in the process the accused is said to have given a blow on the head of P.W.5 by means of a wooden hammer. P.W.5 has stated in his evidence to have been assaulted by a stranger and he is also stating that the accused too, being assaulted, had received the injury. During cross-examination, what we find that the prosecution, except drawing the attention of this witness to his previous statement as has been recorded by the I.O. (P.w.15) which the witness has denied to have so stated has not been directed to bring out anything to show that with definite reason, this P.W.5 is not stating the truth. Even though for a moment, it is accepted that what he has stated before the I.O. (P.W.15) has not been stated in the trial; that would simply make the evidence of P.W.5 as unreliable, but then too, nothing more can be said in the direction of providing the support to the prosecution case. This witness has also stated that the villagers had taken his signatures on a plain paper which shows he is disowning that the contents of the F.I.R. (Ext.P-1/2) in saying those were not written under his instructions.

With such evidence of P.W.5 when we proceed to examine the other important witness P.W.6, we find no different state of affair. She has also stated that here younger brother, father and she herself were assaulted by some unknown person and the accused had also sustained injuries and all of them, therefore, had been admitted in Jaleswar Hospital. He in no way implicates the accused as the assailant of having assaulted her, her father and the brother (deceased). This witness having been cross-examined by the prosecution with the permission of the court; but then no such material has been elicited from her to provide support to the prosecution case in any manner.

Let us glance upon the evidence of P.W.2 on which much reliance has been placed by the trial Court for recording the finding of guilt against the accused as to have committed the murder of the younger brother. P.W.2 has stated in her evidence that at the relevant point of time when the occurrence took place, she was on her bari and engaged in cleaning the utensils. He, hearing hullah, went in front of the house of P.W.5 and says to have been seen the incident. Her evidence runs as under:-

“On my arrival, I saw the accused inflicted cudgel blow on the left side head of the Informant causing swelling injury. When the deceased came to rescue his father, the accused inflicted two to three successive blows on the head of the deceased by means of such cudgel causing profuse bleeding injuries. The deceased sustaining the injuries fell down on the ground. When Ranjita came to rescue the deceased, the accused also dealt numbers of blow on her portion by such cudgel causing injuries below her left eye and left hand.

It be first of all noted that when this witness is stating that the accused had injured his father (P.W.5 ) and sister (P.w.6) they are not stating as regards the same and in fact, for that reason the trial Court has acquitted the accused of the charges under section 307 of the I.P.C. and other allied offences for the act committed in relation to P.W.5 and P.W.6. Thus, the evidence of this witness P.W.2 has not been believed by the trial Court insofar as the act done by the accused upon P.W.5 is concerned and so also P.W.6 and rightly, for such charges, the accused has been acquitted. The happening on the score of the deceased coming to intervene in that scenario as stated is in between the attack upon P.w.5 and P.W.6. When the evidence of P.W.2 is disbelieved in respect of the head and the tail, here the Trial Court has believed his evidence in so far as the mid part is concerned. The evidence of this witness in respect of the happenings is so inextricably mixed up and intertwined that even though principle of ‘falsus in uno falsus omnibus’ does not strictly apply in our country in the matter of appreciation of evidence in the given case, while appreciating the evidence of this P.W.2 it would stand fall under an exception. Having disbelieved P.W.2’s version in respect of the act of the accused as against P.W.5 and P.W.6, the act of the accused as has been stated by P.W.2 as against the deceased which intervenes the two attacks as upon P.W.5 and P.W.6 is certainly too hazardous and unsafe to be relied upon. The view so taken provides justification to the submission of the learned Senior Counsel for the Appellant. Therefore, on this ground alone, the evidence of P.W.2, in our view, is liable to be elbowed beyond the arena of consideration.

Moreover, the evidence of this witness P.W.2 being further churned out, it is seen that she states to have heard the quarrel between the informant and accused in the early morning but then without turning any attention, she went casually for cleaning her utensils on the bari and thereafter she went to the spot hearing hullah to be believed for moment is quite difficult since it is wholly against the normal conduct and behaviour of a neighbour. She does not state as to what was the time gap between the hullah and her coming to the spot after going to clean the utensils and she is also not stating as to whether she when came to the spot, had already washed the utensils or leaving those rushed to the spot. Her evidence during cross-examination is also confusing. When she says as under:

“After my arrival, I had seen the infliction of blows and prior to my arrival as there was infliction of blows, I had seen that the deceased was sitting on the ground so also the Informant sustaining the injuries. I had seen that accused inflicted two to three blows on the deceased.”

We are unable to find out exactly as to what the witness has conveyed thereby. The benefit must go to the accused. In addition to this, the conduct of this witness is also not normal. Having stated that when she arrived none was also present, she does not say to have taken the step of calling any other villagers to come to the spot in assisting P.W.5 and P.W.6 and the deceased. Her further evidence as to the exact dealing of the blows is found to be highly confusing. Even her evidence being read as a whole according to us cannot be believed as to the act done by the accused as against P.W.5, the deceased and the P.W.6 and for all these, her presence at the spot at the time of occurrence becomes highly doubtful.

With the above discussion of evidence on record, we are of the considered view that the trial Court has erred both on fact and law in holding the accused guilty of commission of the offence under section 302 of the IPC and sentencing him thereunder.

In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 3rd March, 2023 and 15th March, 2023 respectively passed by the learned Sessions Judge, Balasore in Sessions Trial No.206 of 2017 are hereby set aside.

The Appellant (accused), namely, Bai @ Balaram Giri be set at liberty forthwith, if his detention is not required in connection with any other case.

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