Biranchi Hati vs State Of Odisha

D.Dash, J

The Appellant, by filing this Appeal, has called in question the the judgment of conviction and order of sentence dated 3rd February, 2014 passed by the learned Additional Sessions Judge, Patnagarh, in Sessions Case No.58/22/16 of 2011-13 arising out of G.R. Case No.09 of 1998 corresponding to Patnagarh P.S. Case No.04 of 1998 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Patnagarh.

The Appellant (accused) thereunder has been convicted for committing the offences under section 341/324/302/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo simple imprisonment for a period of one (1) month for commission of the offence under section 341 of the IPC, rigorous imprisonment for a period of one (1) year and pay fine of Rs.1000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for a period of two (2) months for commission of the offence under section 324 of the IPC; and imprisonment for life and fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the offence under section 302/34 of the IPC with direction that the substantive sentences would run concurrently.

PROSECUTION CASE:-

On 11.01.1998 evening, this accused (Biranchi Hati) with other accused, namely, Birasen Mahakud, who having absconded, was not on Trial, demanded money from one Debaraj Chhatar (P.W.5), who is the elder brother of Narayan Chhatar (informant-P.W.6) for purchasing liquor. When he refused to accede to their demand, quarrel between them ensued. It was stated that at that time, Narayan (informant-P.W.6), with his borther-in-law Rama Chandra Thela arrived at the spot. They when tried to dissuade the accused persons, the accused persons, in turn, quarreled with them. At that time, villagers intervened and separated them. Thereafter, Narayan (informant-P.W.6) and Rama Chandra Thela went home and, therefore, on their proceeded to the bus stop at Larambha in order to receive the father-in-law of the informant (P.W.6). When none of the family members came to alight at the Bus stop as per schedule by 8.00 p.m., they were returning to their village. At the outskirt of their village, at a place, locally known as Bhimtikra, this accused with the other one, namely, Birasen are said to have obstructed them being armed with Bhujali. The informant (P.w.6) and Rama Chandra got down from their cycles and then this accused attempted to inflict injury upon the informant (P.W.6) by means of a Bhujali, aiming at his head. The informant (P.W.6) when raised his right hand to ward off the blow, he received the injuries on his palm. Then, he tried to snatch away the Bhujali from the accused for which a scuffle between the two ensued. It was further stated that the accused, in the process, had pressed his neck but with much difficulty, he managed to extricate himself and being able to snatch away the Bhujali from the accused, ran towards the village. At that time, he saw that other accused Birasen Mahakud (not tried) holding Narayan (informant-P.W.6), who was then shouting “Marigali Marigali”. Informant (P.W.6) informed about the incident to the villagers, who came to the spot and saw Rama Chandra Thela lying dead in pool of blood having sustained cut injuries on his neck and other parts of his body. In the night, Narayan (P.W.6) lodged a written report with the Assistant Sub-Inspector of Police (A.S.I.) in charge of Larambha Police Outpost. The A.S.I. of Police immediately entered the siad fact in the Station Diary Book maintained at the Police Outpost and took up the preliminary investigation. He visited the post, prepared the spot map, examined the witnesses including the informant (P.W.6). He too held inquest over the dead body of Rama Chandra in presence of witnesses and prepared the report (Ext.1) to that effect. He simultaneously forwarded the written report to the Officer-in-Charge (OIC) of the Patnagarh Police Station (P.S.) for registration of the case and needful action in that regard.

The O.I.C. (P.W.8) having treated the written report as FIR (Ext.8), registered the case and took up investigation. He re-examined the injured informant (P.W.6) and other witnesses, seized wearing apparels of the deceased and two cycles lying at the spot. He also seized the Bhujali on production by the informant (P.W.6). The dead body of the deceased was sent for post mortem examination by issuing necessary requisition. The seized incriminating articles were sent for chemical examination through Court. On transfer of this Investigating Officer (I.O.-P.W.8), his successor in office took the charge of the investigation and submitted the Final Form showing this accused and the other one absconders and making the prayer for issuance of non-bailable warrants of arrest against this accused and the other one, namely, Birasen placing them to face the Trial for commission of the offence under section 341/302/34 of the IPC.

Learned S.D.J.M., Patnagarh, on receipt of the Final Form, took cognizance of the said offences and after observing the formalities, by splitting up the case, committed the case in respect of this accused to the Court of Sessions for Trial since that other accused, Birasen could not be apprehended. That is how the Trial commenced by framing the charge for the aforesaid offences against the accused and four others.

The prosecution, in support of its case, has examined in total nine (9) witnesses during Trial. As already stated, the injured informant, who had lodged the FIR (Ext.8) is P.W.6 and he is said to be ocular witness in respect of the incident in part. P.Ws.1, 3, 4 & 5 are the post occurrence witnesses and from among them, P.W.1 is also a witness to the inquest and P.W.2 is a witness to the seizure of the bicycles, wearing apparels of deceased, injured and that Bhujali being produced by P.W.6. The Doctor, who had conducted autopsy over the dead body of the deceased, has come to the witness box as P.W.7 whereas the P.W.9 is the other Doctor, who had medically examined the informant (P.W.6). The main I.O., being examined as P.W.8, the A.S.I., who had conducted the preliminary investigation, has not been examined.

Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 16. Out of those, the important are, the FIR (Ext.8), the inquest report (Ext.1), the post mortem report (Ext.11) and the chemical examiner’s report (Ext.16).

The Trial Court, having found the death of Rama Chandra to be homicidal in nature, upon examination of the evidence on record and their evaluation, has held this accused guilty for commission of the offences and accordingly, he has been sentenced as afore-stated.

Mr.Anirudha Das, learned counsel for the Appellant (accused) submitted that the prosecution case is mainly based on the evidence of P.W.6, who is the informant and claims to have been injured during the first part of the occurrence. According to him, his evidence on the score of complicity of this accused in intentionally causing the death of Rama Chandra (deceased) with the other absconding accused Birasen is not at all believable.

Inviting out attention to the deposition of P.W.6, he submitted that this P.W.6, having not seen the present accused to have committed any overt act as against the deceased Rama Chandra merely because when he left the place after his quarrel and attack by this accused on him to inflict the injuries, it cannot be inferred that it is this accused with the other had inflicted the injuries upon Rama Chandra (deceased), which led to his death. He further submitted that the Trial Court, without proper analysis of the evidence of the Informant (P.W.6), and other evidence on record, is not right in holding this accused guilty for the offences, as indicated above, particularly the offence under section 302 of the IPC with the aid of section 34 of the IPC.

Mr.Sonak Mishra, learned Additional Standing Counsel for the Respondent-State submitted that the informant (P.W.6) is an injured witness and he, having narrated the incident in great detail right from the beginning, which appears to be clear, cogent and acceptable, the Trial Court did commit no error in convicting the accused when the evidence of P.W.6 receive corroboration from other evidence.

Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 9) and have perused the documents admitted in evidence marked as Exts.1 to 16.

At the outset, we would like to state that there is no challenge form the side of the defence as to the nature of death of Rama Chandra (deceased) that it is homicidal. The Doctor (P.W.7), who had conducted autopsy over the dead body of the deceased, has found five incised wounds over the body of the deceased. As per his evidence, all these injuries were ante mortem in nature and the death had resulted from the severe haemorrhage and shock due to incised injuries on the neck and cutting of the main vessels of the neck. This P.W.7, in his evidence, has stated in detail as regards the seats and dimensions of those injuries, which too find in his report (Ext.11). In addition to the above, we find the evidence of the Informant (P.W.6) and other villagers, who had seen Rama Chandra lying dead with such bodily injuries. The evidence on the above score, having not been impeached in any manner, we are left with no option but to hold that Ramachandra (deceased) met a homicidal death.

Coming to the finding as regards the complicity of this accused, which is under attack, let us first of all, have a look at the evidence of the informant (P.W.6). He has stated that on 11.01.1998 around 6.00 p.m, this accused and one Birasen Mahakud were found to be quarrelling with his brother Debaraj (P.W.5). He has further stated that during that time, he was going to attend call of nature and when hearing the hullah, he went near the place where they were quarrelling, he asked his brother Debaraj (P.W.5), the reason for the quarrel. He further states that his brother Debaraj (P.W.5) disclosed that the accused persons were demanding money from him to consume liquor on the allegation that he had not supplied the sugar to them at the time of Pusa Purnima. His further evidence is that when he arrived, Rama Chandra (deceased) had already arrived there and the altercation then started with the accused persons. He has stated that during that time, two villagers came and subsided the quarrel in asking them to go to their respective houses and as his father-in-law was scheduled to come in that night, he requested Rama Chandra to accompany him and proceed to Larambha Bus Stop on cycle and when the father-in-law did not turn up he and Ramachandra were returning to their village. This is all about the first phase. As regards the second phase of the incident with which we are concerned, his evidence is that it was around 8.00 p.m. on the way near Bhimatikra. This accused and other one, namely, Birasen obstructed them for which they had to get down from their cycles and then this accused challenging them as to why they were doing Dadagiri in the village, suddenly aimed a Bhujali blow on his head, which being warded off by raising the right hand, he received the cut injuries on his head palm, but could finally manage to snatch away the Bhujali when accused caught hold of his neck and thereafter, he escaped. Upto this part, the evidence of P.W.6 has remained quite consistent and that is corroborated by the evidence of P.W.9, who had medically examined P.W.6. Now, moving to the assault upon Rama Chandra leading to his death, this P.W.6 states that at that time, he heard the shout of Rama Chandra (deceased) “Marigali Marigali” and on looking back, he saw this accused Biranchi and Birasen to have overpowered Rama Chandra by making him lie on the ground and he then out of fear, returned to the village by shouting. His further evidence is that he then immediately carrying the villagers, went to the spot and they saw Rama Chandra lying lead. When this P.W.6, having stated about the injuries received by him at the instance of this accused; in so far as the happenings upon Rama Chandra (deceased) is concerned is simply stating to have seen this accused and the other overpowering him and making him lie on the ground when Rama Chandra (deceased) was shouting “Marigali Marigali””. He does not state that at that time, either this accused or the other one, namely, Birasen were holding any weapon. He also does not state that when this accused and Rama Chandra were coming back on their way and they were obstructed that of accused Birasen was too holding any weapon although he states that accused Biranchi with the Bhujali having attempted to cause injury on his head, ultimately it fell on his right hand being so raised by him to ward off the blow and he snatched away the same and went to the village.

At this juncture, when we turn to the FIR narration, it is found that this P.W.6 had not mentioned anything therein that while he left the spot out of fear after receiving the injuries on his right palm by Bhujali at the instance of this accused, he had looked back, hearing the hullah of Rama Chandra and then had seen this accused and the other one, namely, Birasen to have overpowered Rama Chandra (deceased). It is stated in the FIR that after he (P.W.6) received the injuries and after freed himself from the clutch of this accused, he having snatched away the Bhujali from this accused ran to the village when he had heard Rama Chandra shouting “Marigali Marigali”. He of course has stated that when he returned with other villagers, they found the Rama Chandra (deceased) lying dead with injuries and accused persons were not seen in the vicinity.

Relying upon such evidence, the Trial Court has found this accused liable for commission of the offence under section 302 of the IPC in intentionally causing the death of Rama Chandra (deceased) with the aid of section 34 of the IPC as to have shared the common intention with the other one, namely, Birasen. The evidence of P.W.6 is not acceptable on this score that he had seen Rama Chandra to have been overpowered by this accused Biranchi and accused Birasen. The omission of such an important fact in the FIR, which in our considered view, cannot be lost sight off and simply brushed aside stating that the FIR being not an encyclopedia, non-narration of this fact was not fatal when this very part of the evidence of P.W.6 aims at the complicity of this accused in the direction of commission of the offence of murder of Rama Chandra. The omission, being a material one, has to be adversely viewed and thus, we find the evidence of P.W.6, in the Trial to be an improvement. To add to the same, the prosecution has not brought the A.S.I. of Police, who had the occasion to first examine the informant (P.W.6) on receiving the written report (Ext.8) and we find that the defence, having drawn the attention of this P.W.6 even to this material omission in his previous statement recorded under section 161 of the Code of Criminal Procedure, prejudice has been caused for non-examination of that A.S.I. of Police, namely, Sri R.N.Sarangi without any explanation since the defence thereby has been precluded from proving such material omission standing as contradiction.

Moreover, even accepting the evidence of P.W.6, it being seen that after he snatched away the Bhujali from this accused, this accused was having no weapon with him and, therefore, when the version of P.W.6 is not believed to the extent that this accused to have overpowered the deceased in making him lie on the ground, we are unable to concur with the finding of the Trial Court that this accused is liable for committing the offence of murder of Rama Chandra (deceased) with the aid of section 34 of the  IPC  having  shared  the  common  intention  with  accused Birasen. Having said, as above, we, however, find the finding of guilt against this accused recorded by the Trial Court in so far as the offence under section 341/324 of the IPC in respect of the role played and the act done by him as against P.W.6 to be well in order as the evidence of the informant (P.W.6) on that score is wholly reliable and that too find support from the evidence of the Doctor (P.W.9), who had medically examined him as also the factum of seizure of Bhujali, which have been snatched away by P.W.6 from this accused in course of investigation on his production.

For all the aforesaid discussion, the judgment of conviction and order of sentence dated 3rd  February, 2014 passed by the learned Additional Sessions Judge, Patnagarh, in Sessions Case No.58/22/16 of 2011-13. in so far as this accused (Biranchi Hati) is concerned,  which  are  impugned  in  this  Appeal,  are  hereby modified as under:-

“The accused (Biranchi Hati) is held guilty for commission of the offence under section 341/324 of the IPC and his conviction for commission of the offence under section 302/34 of the IPC stands set aside. Accordingly, the accused (Biranchi Hati) is sentenced to undergo simple imprisonment for a period of one (1) month for commission of the offence under section 341 of the IPC; and rigorous imprisonment for a period of one (1) year and pay fine of Rs.1000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for a period of two (2) months for commission of the offence under section 324 of the IPC.”

In the result, the Appeal is allowed in part with the aforesaid modification.

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