Bhikari Charan Das vs State Of Odisha

S.K. Mishra, J

This is a case of fratricide.

The Appellant-Â Bhikari Charan Das assails his conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in

default, to undergo further rigorous imprisonment for six months under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “the

Penal Code†for brevity) recorded by the learned Additional District and Sessions Judge, Nayagarh in S.T. No.153 of 2006 (arising out of G.R. Case

No.118 of 2006 of the court of the learned S.D.J.M., Nayagarh).

The case of the prosecution in brief is as follows:

 On 04.03.2006 at about 9.00 P.M., the husband of the informant-Nirmala Behera (hereinafter called “the deceased†for brevity) with her son

went to local market to purchase some articles. Suddenly, the accused came to the deceased, dealt blows by means of a knife and assaulted him on

different parts of his body after chasing him to a distance, as a result of which, the deceased died at the spot. The son of the deceased went to his

house and informed his mother (Informant), who went to the spot, found her husband lying dead after being assaulted severely and sustaining injuries

on different parts of his body. On getting reliable information, the local police went to the spot in the same night, found the dead body of the deceased

lying in front of the house of one Kulamani Patnaik. At the spot, the wife of the deceased lodged a written report, basing on which, the Sub-Inspector

of Police, Itamati Out-Post took up investigation after sending the report to Inspector-In-Charge, Nayagarh Police Station, Nayagarh for registration of

a case. The Inspector-In-Charge, Nayagarh Police Station, Nayagarh registered Nayagarh P.S. Case No.64 of 2006 and directed the Sub-Inspector

of Police, Itamati Out-Post to continue investigation. During course of investigation, the Investigating Officer held inquest over the dead body of the

deceased in presence of witnesses, prepared spot map, sent the dead body to the District Headquarters Hospital, Nayagarh for post-mortem

examination, seized blood stained earth and sample earth from the spot. On 05.03.2006, he seized the blood stained shirt of the deceased on production

by the escort party and on 10.03.2006 arrested the accused, seized his wearing apparels and recorded statement of the accused. While in police

custody, the accused gave recovery of the knife by which he had assaulted the deceased, from a bush near the house of one Arata Khanda of the

said village. The said knife was seized by the Investigating Officer, he arrested the acused and, subsequently, forwarded the accused to the court.

After receiving the post-mortem examination report, he made a query to the medical officer by sending the weapon of offence and obtained the final

opinion of the doctor on 17.04.2006, sent the exhibits to State Forensic Science Laboratory, Rasulgarh, Bhubaneswar, Khurda, as per order of the

Court and on completion of investigation, he submitted charge-sheet dated 10.06.2006 against the Appellant.

The accused faced trial and took the plea of denial and false implication with the crime.

In order to prove its case, prosecution examined ten witnesses and relied upon documents marked as Exts. 1 to 13 and also material objects marked

as M.Os.I to IV.

P.Ws.4-Nirmala Behera (informant) is the wife of the deceased, P.W.7-Jayant Behera is the son of the deceased, P.W.9-Daitari Ghadei is the

Investigating Officer, P.W.10-Dr. Narmada Sahoo conducted post-mortem examination over the dead body of the deceased, P.Ws.1-Kulamani

Pattanaik and 5- Rajkishore Das are the eye-witnesses to the occurrence. P.Ws.2-Banshidhar Mallik, 3-Raghunath Jena, 6- Bidyadhar Jena, 8-

Satyanarayan Mishra are the formal witnesses in this case.

No evidence was adduced by the defence.

On an appraisal of evidence on record, especially the narrations of the eye-witnesses, P.Ws.1, 5 and 7, as well as the evidence of P.W.4-Informant,

the wife of the deceased, the evidence of the Doctor who had conducted post-mortem examination over the dead body of the deceased and discovery

of the weapon of offence on the basis of discovery statement of the Appellant, the trial court held that the prosecution has established its case beyond

all reasonable doubt and convicted the Accused/ Appellant under Section 302 of the I.P.C. and sentenced him as stated supra.

Learned counsel for the Appellant submitted that the Appellant does not dispute the homicidal nature of death of the deceased. However, she

submitted that the evidences of the eye-witnesses P.Ws.1, 5 and 7 as well as the evidence of P.W.4-informant, the wife of the deceased are not

reliable.

Learned Additional Standing Counsel appearing on behalf of the State while supporting the impugned judgment submitted that prosecution

allegations were amply established by the evidences of P.Ws.1, 4, 5 and 7 coupled with the evidence of P.W.10- the Doctor who conducted post-

mortem examination of the dead body of the deceased and gave opinion by examining the weapon of offence. Therefore, he submitted that the

impugned judgment of conviction and order of sentence deserve to be confirmed.

To start with, we examined the evidences of the eye-witnesses. P.W.1 stated in his evidence that on 04.03.2006 at about 08.30 to 09.00 P.M. in the

night, on hearing shout of the accused and the deceased, he came outside his house and found both the persons were quarrelling. Suddenly, the

accused dealt a knife blow on the belly of the deceased and the deceased told ‘RAJA MARIGALI MAGIHA MARIDELA’. The deceased

fell down at the spot. When Raja came to rescue the deceased, accused chased him to assault. Again the accused came back and assaulted the

deceased on different parts of his body and chest and then, the deceased died at the spot. By the time, the wife of the deceased and their son were

present. Raja had got his stationary shop in his house on rent. In the same night, police came after receiving telephonic information. Police seized

blood stained earth and sample earth in his presence. Subsequently, the wearing apparels of the deceased were seized by the police in his presence.

He had been examined by the Police. It is elicited from the evidence of this witness that there was no other house adjacent to his house. But, apart

from 7 to 8 cubits, there are houses of Jogeswar Patnaik, Hadia Sahoo, Nabakishore Patnaik and others. All the above persons have witnessed the

occurrence. The occurrence took place in the pitch dark night and one cannot see face of another. By that time, there was no electric light. He

deceived the suggestion that houses of the accused and the deceased were half Kilometer away from his house. He could guess from the shouting

that both the accused and deceased were very violently quarrelling. When he came outside, by that time, the accused had already pierced the knife in

the belly of the deceased. The spot is in front of the house of Amina Bai which is in front of his house, intervened by ‘Danda’ having 30 to 40

feet wide. Accused dealt blows in four places on the face of the deceased and lastly to his leg. But, he did not remember on which leg he had

assaulted. There were injuries on the right eye, nose, mouth and right leg. Except above parts and belly, there was no other injury on the person of the

deceased. After assault, the son and the wife of the deceased arrived at the spot.

P.W.5 stated in his evidence that accused Bhikari murdered Jogi on 04.03.2006 at about 9.00 P.M. By that time, he was in his shop. Deceased Jogi

Behera and his son came to his shop to purchase some articles. After their departure from his shop, suddenly, Jogi came back and told

‘MARIGALI MARIGALI’ and subsequently, he fell down about 20 cubits away from his shop in front of the house of Kulamani Patnaik.

When he rushed to the spot, he found Bhikari was assaulting repeatedly to Jogi by means of knife. When he tried to separate Bhikari, he chased him

to assault. Out of fear, he went away. He called other villagers and when he returned to the spot, he found Jogi dead. By that time Bhikari had left the

spot. This witness further stated that his dwelling house is ½ Kilometer away from the house of Kulamani Patnaik. He had got his betel shop in the

house of Kulamani Patnaik. There are houses of Chandra Jethy, Chhatia Behera, Sathia Swain, Amina Bai near the house of Kulamani Patnaik. At

the time of occurrence, his shop was open, but there was no electric light. Adjacent places were dark. About 10 to 15 cubits away from his shop,

there was nalla and he heard shout of both the deceased and the accused. The said place was not visible to him from his shop. He could not say

whether Jogi had taken liquor or not. He could not say whether Jogi had forcibly possessed the land of the accused. Distance of his shop from the

house of Kulamani would be 10 to 15 cubits. In the eastern side of the house of Kulamani, the deceased fell down. He further specifically stated that

the spot where the accused was assaulting the deceased was not visible to him due to dark night, but there was lightening. It is also stated that he had

not marked any injury on the person of the deceased when the deceased fell down.

P.W.7 is the nephew of the accused/ Appellant and son of the deceased. He stated in his evidence that on 04.03.2006 at 9.00 to 9.30 P.M. his father

was murdered by the accused. At about 9.00 P.M., he had accompanied his father to the shop to purchase some articles and while returning, on the

way, immediately, the accused assaulted his father by means of a knife to his belly and other parts of his body. Then out of fear, he went to his house

and called his mother and narrated the occurrence. Then again, he came to the spot with his mother and saw the dead body of his father was lying in

front of the house of Kulamani Patnaik. He further stated that they had gone to Baunsiapada Bazar to purchase articles. House of Kulamani Patnaik

is at a distance of 100 to 200 cubits from the place where his father was assaulted which is in the southern side of the house of Kulamani Patnaik. It

was a dark night and no electricity was there at the relevant time.

Evidences of these eye-witnesses clearly indicate that the Appellant is the author of the crime.

P.W.4-the informant stated that her son came running and told ‘MAMI BHIKARI BABA BAPAKU MARIDELA’. When she went to

the spot, found the dead body of her husband lying in front of the house of Kulamani Patnaik. There were injuries on different parts of his body and

severe injury on belly. Seeing the injuries, she became senseless. On the same night, police came to the spot and on being dictated by her, her son

scribed the F.I.R.

Examination of the evidence of P.W.10, the Doctor, who conducted post-mortem examination over the dead body of the deceased, reveals that

the deceased was a man of strong and stout body, rigor mortis present at the time of post-mortem examination, pale looking, injury over left foreleg

and eye. There was wound over right foot, intestine was visible outside the abdomen. She also noticed the following injuries:

 “(i) incised wound over left forehead of size 2â€​ x 2â€​ x 2â€​ with fracture of left frontal bone and damaged to left eye completely;

(ii) incised wound of size 1â€​ x 1â€​ x 1â€​ over right foot.â€​

This medical witness also opined that all the injuries are ante-mortem in nature and may be caused by heavy sharp cutting weapon. Cause of death

was due to injury to brain and liver. It is elicited from the cross-examination of this witness that he could not say how many blows could cause the said

injury. Injury no.(ii) was caused by a single blow. She had not mentioned in her report whether death was caused instantaneously or not. Most

importantly she has mentioned that the intestine was visible from outside. Curiously enough she has not mentioned that she noticed any injury on the

stomach of the deceased. But her opinion will not outright the evidences of the eye-witnesses.

Thus, discussions of the evidences of the eye-witnesses and the Doctor who had conducted post-mortem examination of the dead body of the

deceased reveal that there are some discrepancies in between the medical expert opinion and the versions of the eye-witnesses. Moreover, there is a

major discrepancy regarding seat of injuries. While all the eye-witnesses stated that the accused assaulted the deceased by means of a knife on his

belly, no incised injury/ stab wound was found on the belly at the time of post-mortem examination. No such injury was specifically reported in the

inquest report prepared by the Investigating Officer.

Therefore, keeping in view the aforesaid blemishes, though we are not inclined to disbelieve the eye-witnesses completely, we think it proper to

consider that as the Appellant is in custody since 10.03.2006 and, in the meantime, more than 15 years have elapsed, the conviction of the Appellant

should be converted into one culpable homicide not amounting to murder and he should be convicted under Section 304, Part-I of the Penal Code.

Accordingly, we allow the appeal in part. The conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default,

to undergo further rigorous imprisonment for six months under Section 302 of the Penal Code recorded by the learned Additional District and Sessions

Judge, Nayagarh in the aforesaid case against the Appellant are hereby set aside. Instead, the Appellant is convicted for the offence under Section

304, Part-I of the Penal Code and sentenced to undergo R.I. for the period already undergone. The period of detention already undergone by the

Appellant during investigation, the trial as an U.T.P. and during the pendency of the appeal is set off under Section 428 of the Code.

The Appellant be set at liberty forthwith, if his detention is not required in any other case.

Accordingly, this JCRLA is allowed in part.

The T.C.Rs. be sent back to the court below forthwith.

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the

judgment/order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned Advocate, in the manner

prescribed vide Court’s Notice No.4587, dated 25th March, 2020 as modified by Court’s Notice No.4798, dated 15th April, 2021.

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