Bipin Kumar Bhanja and Lalit Bhanja vs State of Orissa

B.K. Patel, J.—By the impugned Judgment & Order Dated 31.3.2007 passed by the Learned Additional Sessions Judge, Sonepur in Sessions Trial No. 21 of 2005, the two Appellants have been convicted u/s 302 read with 34 of the Indian Penal Code (for short "the I.P.C.") for having committed murder of deceased Jadunath Sing in furtherance of their common intention. Each of them has been sentenced to undergo imprisonment for life & to pay fine of Rs. 5000, in default to undergo rigorous imprisonment for six months. Informant P.W. 1 is deceased''s wife P.W. 2 is deceased brother''s wife. P.W. 8 is deceased''s son & P.W. 11 is deceased''s nephew. Appellants are brothers being sons of daughter of Harishankar. Deceased was son of Harishankar''s brother Krushna. Occurrence took Place on 30.11.2004 at about 10.30 A.M. in a paddy field locally known as "Satapati" paddy field which stands jointly recorded in the names of Appellants, deceased & others.

Prosecution case, as is revealed from the materials on record, is that on the date of occurrence on being asked by the deceased, P.W. 3, P.W. 7 & others went to the occurrence field locally known as "Satapati" land to reap paddy crops. Appellants prevented them from reaping crops & threatened with dire consequences. Being informed, the deceased came to the paddy field. Appellants assaulted him by means of axe. M.O. I. & Tabil M.O. III causing seven injuries. P W. 7 went & informed regarding the occurrence to deceased''s wife informant P.W. 1. P.W. 1 went to the spot along. with her sister-in-law P.W. 2 & son P.W. 8. She administered water to the deceased but he died. P.W. 1 sent P.W. 8 to the police station. Appellants surrendered, confessed their guilt, & produced axe M.O. I. & sickle M.O. II before P.W. 12, Officer-In-Charge of Birmaharajpur Police Station P.W. 12 seized the axe & the sickle under seizure list Ext. 10 & preceded to the spot where P.W. 1 submitted First information Report Ext. 1. P.W. 12 sent the report for registration to the police station & took up investigation. P.W. 13, Circle Inspector, Birmaharajpur took charge of investigation from P.W. 12 on 3.12.2004 & on completion of investigation, submitted charge sheet against the Appellants for commission of offences under Sections 302 read with 34 of the I.P.C.

Appellants took the plea of complete denial.

In order to substantiate the charge, prosecution examined 13 witnesses.

P.Ws. 3 & 7 were examined as eye witnesses to the occurrence. Informant P.W. 1, P.W. 2, P.W. 4, P.W. 8 & P.W. 11 were post occurrence witnesses. Of them, P.W. 4 deposed that he rushed to the spot hearing cry & saw the Appellants Lalit & Bipin running away holding axe & sickle respectively. P.W. 8 is a doctor who conducted postmortem examination over the dead body of the deceased. P.W. 6, a Police constable, assisted in investigation P.W. 9 was a witness to seizure of tabil M.O. III under seizure list Ext. 9 whereas P.W. 10 was a witness to seizure of axe M.O. I & sickle M.O. II under seizure list Ext. 10 P.Ws. 12 & 13, were the Investigation Officers. Prosecution also relied upon documents marked Exts. 1 to 22 & material objects M.O. I to M.O. III No defence evidence was adduced.

Holding the evidence of eye-witnesses P.Ws. 3 & 7 to be unimpeachable & to have been corroborated by the evidence of post-occurrence circumstantial witness P.W. 4. Medical evidence of P.W. 8, circumstance of production & seizure of axe M.O. I & sickle M.O. II as deposed to by the Investigating officer P.W. 12 & chemical examination report Ext. 17 indicating detection of human blood stains on axe M.O. I & Tabil M.O. III, the Trial Court found the Appellants guilty of the charge.

In assailing the impugned Judgment it was contended by the Learned Counsel for the Appellants that P.Ws. 3 & 7 were not consistent in their evidence. P W. 3 having deposed in her cross-. examination that she did not know the accused persons prior to the occurrence, her evidence identifying the Appellants to be the assailants of the deceased for the first time in Court is not accepted. Moreover, P.W. 3 also admitted that by the time she returned back & saw, the deceased had already fallen to the ground. So far as P.W. 7 is concerned, he stated that both the Appellants assaulted the deceased by means of axe & that Appellant Bipin was holding a tabil also. P.W. 7''s assertion to have seen Appellant Bipin holding a tabil was a development of the prosecution case in course of trial as P.W. 7 had not made such statement before the investigating officer P.W. 12. Also version of P.Ws. 3 & 7 with regard to weapons of offence used by the Appellants is not consistent with the contents of the First Information Report lodged by P.W. 1 on the basis of information gathered from the eye-witnesses to the effect that the deceased was assaulted by means of axe & sickle. P.W. 4 also made attempt to develop the prosecution case in course of trial by alleging that he saw Appellant Lalit holding an axe & Appellant Bipin holding a sickle running away from the spot. P.W. 4 had not stated before investigating officer P.W. 13 that he had seen the Appellants running away holding axe & sickle. It was strenuously contended that nobody having seen the occurrence, the story of user of tabil M.O. III was introduced to suit the medical evidence of P.W. 5. It was further argued that the Trial Court, having rightly rejected the evidence of seizure witness P.W. 10 with regard to seizure of axe M.O. I & sickle M.O. II on production by the Appellants at the police station, should not have placed reliance on the evidence of P.W. 12 in this regard.

Learned Counsel for the State placing reliance on the evidence of P.Ws. 3 & 7 as well as P.Ws. 4, 5, 12 & chemical examination report supported the impugned Judgment.

P.W. 5 conducted post-mortem examination over the dead body of the deceased on the date of occurrence, He found following injuries:

(i) Mutilated multiple injuries (incised & ante-mortem in nature over right knee joint level cutting the skin, subcutaneous tissues, muscles, vessels (femoral popliteal & tibial arteries), bones through & through with the posterior skin attached to the cut injuries at the poplitial fossa.

(ii) Cut injury incised of size 4" x 3" x 1/2" cutting the skin & bone on 1 of the shin of the right tibia (above middle).

(iii) Incised injury on the dorsal lateral aspect of left middle finger of size 1" x 1/2" x 1/2".

(iv) Incised injury on the antero-medial aspect of left ankle of size 3" x 1" x 1".

(v) Incised injury on the lateral aspect of left mid arm of size 1" x 1/2" x 1/2".

He opined that cause of death of the deceased was profuse incessant arterial bleeding consequent upon cutting of large vessels at the level of right knee joint leading to shock & death. P.W. 5 also opined that injuries on the deceased could be caused by seized axe M.O. I. & tabli M.O. III. Therefore, it is evident that death of the deceased was homicidal in nature.

Though P.W. 1 stated that the occurrence took place in their paddy field, she stated in her cross-examination that the occurrence land stands jointly recorded in the names of the Appellants, the deceased & their brothers. P.W. 11 also stated in his cross-examination that in the current settlement names of the Appellants have been mentioned in the R.O.R. Prosecution case is that the occurrence originated when the Appellants prevented P.Ws. 3 & 7 their companions from reaping paddy crop from the occurrence land at the behest of the deceased. Therefore, it is obvious that the occurrence had its origin & genesis in land dispute.

Prosecution relied upon mainly on ocular evidence of P.Ws. 3 & 7, & circumstantial evidence of P.W. 4. to establish the complicity of the Appellants in commission of murder of the deceased. P.W. 3 testified that on the date of occurrence at about 9.00 AM. being asked by the deceased she alongwith P.W. 7 & others went to the "Satapati" paddy field for reaping paddy crop. The Appellants who were already present there prevented them from reaping crop. They threatened them with serious consequence if they entered into the paddy filed. They returned & their companion Manorama went to call the deceased. After some time Manorama returned & the deceased asked them to go to another paddy filed for reaping crop. The deceased went to the disputed land. They saw from a distance of about 100 meter field that Appellant Lalit struck the deceased with axe on his leg as a result of which the deceased fell down on the ground. Appellant Bipin also assaulted the deceased. She could not identify the weapon held by Appellant Bipin but the weapon had a long wooden handle. In her cross-examination P.W. 3 stated that the Appellants are not the residents of her village & she did not know them prior to the occurrence. The Appellants were reaping paddy crop when they reached at the spot. When they were going to Limba Khalia duli land, they heard the deceased shouting that the Appellants killed him. They turned back & saw the deceased had already fallen on the ground. She asserted that she had seen the assault on the deceased but stated that she was unable to say the part of body where the deceased was assaulted by Appellant Bipin. Thus, in view of P.W. 3''s admission that the Appellants were not know to her prior to the occurrence, identification of the Appellants by P.W. 3 becomes doubtful. Her assertion made in examination-in-chief that Appellant Lalit assaulted the deceased by means of axe on his leg as a result of which the deceased fell down on the ground & Appellant Bipin also assaulted the deceased, is not consistent with her evidence in cross-examination that by the time they turned back & saw, the deceased had already fallen on the ground. In her examination-in-chief P.W. 3 having not alleged to have seen that Appellant Lalit assaulted the deceased even after he fell down on the ground, evidence of P.W. 3 to have seen Appellant Lalit assaulting the deceased by an axe on his leg upon which he fell down on the ground becomes doubtful. Therefore, much reliance cannot be placed on the evidence of P.W. 3.

P.W. 7 deposed that on the date of occurrence he alongwith P.W. 3 & others went to "Satapati" paddy land to reap the remaining paddy crop. They saw the Appellants reaping paddy from the said paddy field. They threatened P.W. 7 & his companions with serious consequence if they entered into the paddy field. P.W. 7 & his companions left the paddy field. His mother informed the matter to the deceased. Deceased came to the paddy field & asked P.W. 7 & his companions to reap crops in another paddy field known as "Nimba duli". Others proceeded towards "Limba Khalia duli" but P.W. 7 kept standing on the spot. When the deceased went to the paddy field, Appellant Lalit dealt an axe blow on the right leg below the knee as a result of which the deceased fell down on the ground. Then both the Appellants dealt several blows on his leg with axe. Appellant Bipin was holding one tabli. It has been elicited in the evidence the P.W. 7 had not stated before the investigating officer P W. 12 that Appellant Bipin was holding a tabli.

P.W. 4 testified that on the date of occurrence he alongwith others were going to the paddy field for reaping paddy. They saw that the Appellants were reaping paddy in the "Satapati" land. One hour after reaping the crop in the land they heard commotion at the place of occurrence. They immediately rushed to the spot & saw the deceased lying on the ground with injuries on his leg. They also saw the Appellants running away from the spot & Appellant Lalit was holding an axe while Appellant Bipin was holding a sickle. They left the spot out of fear. It has been brought out in evidence that P.W. 4 had not stated before the investigating officer P.W. 13 that the had seen he Appellants running away holding axe & sickle. Moreover, neither P.W. 3 nor P.W. 7 alleged that either of the Appellants was holding sickle.

P.W. 1 the informant, is deceased''s wife. She stated that some labourers had been to the paddy field to cut paddy crop. The Appellants asked them not to cut paddy crop from their field. The Labourers came & informed the deceased. Then the deceased went to the paddy field. She further stated that P.W. 7 came to her house & informed that Appellants Bipin & Lalit had struck her husband''s leg with axe & sickle. She alongwith her sister-in-law P.W. 2 & son P.W. 8 rushed to the spot. They saw the deceased lying dead on the paddy field. The right leg from the knee was almost completely severed & injuries were found in the fingers. She sent P.W. 8 to the police station to lodge F.I.R. P.W. 1 stated to have submitted First Information Report Ext. 1 to police at the spot. Contents of the F.I.R. Ext. 1 are in accordance with the version of P.W. 1 made in Court. Therefore, statement of P.W. 1 that P.W. 7 told her that the deceased was assaulted by means of axe & sickle is not consistent with the evidence of either P.W. 7 or P.W. 3.

P.W. 2 also deposed that the deceased went to the paddy field when he was informed that his labourers were prevented by the Appellants from reaping crop. After some time P.W. 7 came running to the house a informed them that the Appellants had killed the deceased. She alongwith P.W. 1 went to the spot & P.W. 3 reached the spot latter.

P.W. 8 stated that P.W. 7 came to her house & informed P.W. 1 that the Appellants killed his father upon which he alongwith P.Ws. 1 & 2 went to the spot & found the deceased lying dead on the paddy field. This witness further alleged that he alongwith his sister went to Birmaharajpur P.S. & saw the Appellants sitting on the verandah. Police asked them to take the deceased to the hospital, threatened them & did not receive their report. It has been brought out in evidence that P W. 8 had not stated before the investigating officer P.W. 12 that he saw the Appellants sitting on the verandah of the police station. Evidence of P.W. 6, who is a police constable, is formal in nature.

P.W. 9 stated that some labourers had got the tabli M.O. III from the paddy field near the occurrence land twenty days after the occurrence & informed the police. Police came & seized the tabli M.O. III under seizure list Ext. 9.

P.W. 10 deposed that police seized the axe M.O. I & the sickle M.O. II under seizure list Ext. 10 in his presence. The Appellant''s surrendered at the P.S. & disclosed before the police that they had committed the offence with the axe & the sickle. However, in his cross examination P.W. 10 stated that police showed him the axe & the sickle & told that the Appellants had produced the same at the P.S. Therefore, evidence of P.W. 10 is not acceptable & the Trial Court is justified in not accepting his evidence.

P.W. 11 simply stated to have been informed over telephone that the deceased was murdered by the Appellants.

P.W. 12 the O.I.C. of Birmaharajpur P.S. stated that on 30.11.2004 at about 12.25 P.M. the Appellants appeared at the police station & produced before him one blood stained axe M.O. I. & sickle M.O. II. He entered the facts in the station diary & seized the axe & the sickle under seizure list Ext. 10 Admittedly, there is no allegation of use of sickle as a weapon of offence by either of the Appellants by any of the eye-witnesses. Evidence of P.W. 5 also does not indicate that any of the injuries on the body of the deceased could have been caused by the sickle. It appears from the chemical examination report Ext. 17 that no blood stain was found from the sickle M.O. II.

On an appraisal of evidence of all the witnesses it is found that P.W. 3 deposed to have witnessed the occurrence from a distance of 100 meters. By the time the occurrence took place she had already gone to a considerable distance from the occurrence field being directed by the deceased to reap crop in another filed. Her evidence in cross-examination to the effect that she & her companions returned back & saw that the deceased had already fallen on the ground is consistent with the evidence in examination-in-chief to the effect that she saw that the Appellant Lalit struck the deceased with axe on his leg as a result of which the deceased fell down on the ground. Identification of the Appellants by P.W. 3 for the first time in Court in view of her admission that the Appellants were not know to her prior to the occurrence renders her allegation implicating the Appellants to be the assailants unacceptable. According to P.W. 7 both the Appellants dealt several blows on deceased''s leg with axe & that Appellant Bipin was holding one tabli. Moreover, P.W. 7 had not alleged in his police statement that Appellant Bipin was holding a tabli. It is not the case of prosecution that two axes were used as weapons of offence. In fact prosecution case as contained in the First information Report Ext. 1 at the beginning was that the deceased was assaulted by axe & sickle. Initially P.W. 7 also in course of investigation did not utter a word regarding holding of tabli, much less regarding user thereof, by any of the Appellants. Therefore, P.W. 7 having departed from original prosecution case while deposing in Court & is not found to be a firm witness who can be considered as a wholly reliable. P.W. 4''s evidence to have seen the Appellant Lalit holding an axe & Appellant Bipin holding a sickle running away from the spot does not provide corroboration to ocular testimony of P.W. 7 as he had not alleged in his police statement that he had seen the Appellants running away holding axe & sickle. Also, his evidence is not consistent with the evidence of P.Ws. 3 & 7 who did not allege that either of the Appellants was holding sickle. P.Ws 1, 2, 8 & 11 were informed by others, regarding the occurrence &, therefore, their evidence implicating the Appellants is hearsay. P W. 12 deposed regarding seizure of axe M.O. I & sickle M.O. II by him under seizure list Ext. 10 on production of the Appellants in presence of witnesses including P.W. 10 However, P.W. 10 stated that police showed the axe & the sickle & told that the Appellants had produced the same, Moreover, there is no evidence that the sickle M.O. II was used as a weapon of offence & evidence of P.W. 5 does not indicate that any of the injuries on the deceased was caused by the sickle which was sent to him for opinion. No blood stain also found on M.O. II. Therefore, seizure of sickle M.O. II does not incriminate the Appellants. In such circumstances, it is found that evidence adduced by the prosecution does not constitute a firm basis to conclude that the prosecution has established the charge against the Appellants. They are entitled to be acquitted by availing benefit of doubt. In the result, the appeal is allowed. The order of conviction & sentence dated 31.3.2007 passed by Learned Additional Sessions judge, Sonepur in Sessions Trial No. 21 of 2005 convicting the Appellants u/s 302 read with 34 of the I.P.C. & sentencing each of them to undergo imprisonment for life & to pay fine of Rs. 5000 in default to undergo rigorous imprisonment for six months, is set aside, Both the Appellants are acquitted of the charge.