Bisikesan Banua vs State of Orissa

P.K. Mohanty, J.—This Criminal Appeal from jail is against the order of conviction u/s 307, I.P.C. and sentence of seven years rigorous imprisonment and a fine of Rs. 1,000/- in S.C. Case No. 3/95 passed by the learned Assistant Sessions Judge, Gunupur.

The prosecution case, in short, was that P.W. 5 Bimbadhar Patra, the informant, who is the brother of Chandrama Banua, wife of accused, on hearing the cries of his sister, rushed to her house. He found, Bisikesan, the husband of his sister, the present Appellant, was assaulting her by means of a Tangia. When he, his father and mother tried to snatch away the axe, they were also assaulted by the said axe. On hearing their cries, one Manadhar Nayak, P.W. 2 and Gupta Patra, P.W. 9 reached the spot and tried also to snatch the axe and in the process, they also got injured, but however, the accused appellant went away. Due to the assault, the father of the informant, Pitabas Patra, P.W. 8, sustained bleeding injuries on his right hand and cheek, mother Champa Patra on her left knee and shoulder and her sister (who is the wife of the accused-appellant) on back and shoulder. P.Ws. 2 and 9 also sustained injuries in right hand and back respectively. The police registered the case on the basis of the F.I.R. and conducted investigation and after completion, submitted the charge-sheet.

The accused-appellant took the plea that his father-in-law and mother-in-law forced him to sell the cultivable lands recorded in his name to which he having denied, the false case has been foisted against him.

The prosecution examined 11 witnesses, of whom P.Ws. 1,2 and 3 are independent occurrence witnesses, who tried to snatch away the axe from the hands of the accused and the accused assaulted them causing bleeding by means of the Tangia. P.W. 5 is the brother-inlaw, who lodged the F.I.R.; P.W. 6 is the Doctor, who examined the injured persons; P.W. 8 is the father-in-law, who was also injured; P.W. 10 is the scribe of the F.I.R. and P.W. II is the Investigating Officer.

The learned Assistant Sessions Judge, on careful analysis of the evidence on record, has recorded a finding of guilt and sentenced the accused-appellant for seven years rigorous imprisonment with a fine of Rs. 1,000/-.

Sri Debasis Samal, Learned Counsel on behalf of the Appellant, had argued that P.W. 5 who is said to have lodged the F.I.R. having denied lodging of such F.I.R. and the scribe having not signed, the entire prosecution story is false and concocted. It transpires from the record that the F.I.R. Ext. 4 was lodged by P.W. 5 on the next day of the accordance i.e. 13.10.1994. P.W. 5 in his examination-in-chief has specifically stated that on the next day morning Gutuka Majhi, P.W. 10, the Panchayat Secretary had scribed the F.I.R. as per his instruction and after scribing, he read over the contents to the informant, where after he had put his signature, the contents being according to his dictation. He has also proved the F.I.R. Ext. 4 and admitted his signature. The contention appears to have been raised on the basis of the statement of P.W. 5. in his cross-examination that he was an illiterate person and he does not know the contents of the F.I.R. and that P.W. 10 Gutuka Majhi had also not signed on the F.I.R. The Learned Counsel submits that since the informant has stated that he did not give any endorsement on the body of the F.I.R. that after going through the contents he has signed the same, the F.I.R., could not be acted upon and has to be ignored, is thus thoroughly misconceived. In the examination-in-chief, there is clear statement that he had lodged the F.I.R. on the next day morning, which was scribed by P.W. 10, the Panchayat Secretary as per his instruction and after it was written, it was read over to him and he signed the same being correct. The averment that he was an illiterate person and does not know the contents of the F.I.R. is of no avail to the prosecution. In view of the statement of P.W. 5, the informant, in the examination-in-chief read with the statements in the cross examination, there cannot be any manner of doubt that the informant had instructed P.W. 10 to scribe. P.W. 10 had scribed the F.I.R. and read over the contents thereof to the informant, who having found it to be correct signed the same. P.W. 10.in his evidence has also corroborated the fact that on 13.10.1994 the informant Bimbadhar came to him, asked him to scribe the report, which he did as per his instruction, he read over the contents and thereafter the informant had signed. His statement in cross-examination that he did not give any endorsement in the written report to the effect that he has scribed and that he did not sign the F.I.R. is of no consequence. The F.I.R. sets the law in motion and if the police finds a prima face case of commission of a cognizable offence, the investigation is conducted. The informant has accepted the F.I.R. story and reiterated in his evidence. Absence of endorsement of the scribe does not vitiate the F.I.R. specially when the scribe has been examined as per the Investigating Officer and corroborates the evidence of the informant that he,had written the report on instruction of the informant. The Learned Counsel has brought some contradictions in the statements of some witnesses to discredit the eye-witnesses. The injuries sustained by P.Ws. 2, 4, 7 and 8 strengthen the prosecution story that the eye-witnesses were present at the spot.

The contention of the Learned Counsel that the occurrence having taken place at 1 A.M. in a dark night, the identity of the accused is doubtful and should not have been believed needs consideration. P.W. 1 in his evidence has stated that he went to the house of the accused on hearing the cries of a lady. P.W. 3 Raghunath Dalapati has stated that he had focused the torch light and had seen that the accused was assaulting his wife Chandrama by means of a Tangi. It is also in the evidence that the accused was residing in the village since his childhood. P.W. 2, Manadhar Nayak, an independent witness and a neighbour, has stated that hearing the hallah, coming from inside the house of the accused Raghunath Dalaapati focused the torch light inside the house and they saw the accused assaulting his wife and thereafter to the father-in-law and mother-in-law. P.W. 3 also has catergorically stated that hearing the cries, he came to the house of the accused and focused the torch light and found accused assaulting the wife P.W. 4 and P.Ws. 7,8,2,9 and 5, the brother-in law. In view of the clear statements of these witnesses, there cannot be any manner of doubt that the accused was assaulting P.W. 4, his wife and thereafter his father-in-law, brother-in-law, mother-in-law and other neighbours, who came and tried to prevent the assault by snatching out the axe from the hand of the accused-appellant.

In view of suggestion put to P.W. 4, the injured-wife, during cross-examination that when the accused entered inside, P.W. 4 asked him where he had been and therefore there was a Gandagol and quarrel between them and during tussle she fell down on the Katari and sustained the injuries. The identity of the accused otherwise was not in dispute during the trial. P.Ws. 1,2,3 and 7 have categorically stated that through the focus of the torch light of P.W. 3, they had seen the accused was assaulting his wife, father-in-law and mother-in-law. P.Ws. 2 and 9 have themselves confronted the accused to snatch away the axe and in turn they also sutained the injuries. The accused was not a stranger to these witnesses, since they knew him from the childhood, inasmuch as P.W. 4 is his wife. These witnesses were also acquainted with the physiognomy of the accused. The Apex Court in Nathuni Yadav v. State of Bihar (1989 S.C.C. 238 held that certain circumstances, the lack of moonlight or artificial light does not per se preclude identification of the assailants. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching even from the glow of stars have been treated to be facts germane to be borne in mind with regard to identification of accused persons in absence of specific lights. The acquaintance of the witnesses with the accused''s physiognomy is a factor in favour of proper identity. In Shakti Patra and Another Vs. State of West Bengal, , the Apex Court has also taken a similar view.

In view of what has been discussed in the foregoing paragraphs, I do not find any force in the contentions raised on behalf of the Appellant, to take a view contrary to what has been held by the learned trial Court.

The Appeal is dismissed.