Bisu @ Biswanath Mallik vs State Of Odisha

S. K. Mishra, J

In this appeal, the sole Appellant- Bisu @ Biswanath Mallik assails his conviction under Section 302 of the Indian Penal Code, 1860 (hereinafter

referred to as “the Penal Code†for brevity) and sentence to undergo imprisonment for life recorded by the learned District and Sessions Judge,

Ganjam- Gajapati, Berhampur in Sessions Trial No.84 of 2007, as per the judgment of conviction and order of sentence dated 08.11.2010.

The case of the prosecution, in short, is that on 19.02.1999 at about 7.00 P.M. while the deceased Uchhaba Naik was talking with one Gopala

Mallik in front of the house of Uchhaba Mallik, all on a sudden, the sole Appellant- Bisu @ Biswanath Mallik reached the spot being armed with a

knife and stabbed the deceased with that knife on the left side of his chest on account of previous animosity and grudge. On such assault, the

deceased ran towards the house of Barika Mallik shouting “Basu stabbed me†and collapsed on the verandah of the house of Barika Mallik. The

deceased was shifted to Pudamari Government Hospital where he was declared dead by the Doctor. The Appellant-Basu Mallik fled away from the

spot immediately after the occurrence. Though some of the villagers chased, they could not trace the Appellant. However, the blood stained knife was

discovered by the villagers which was produced before the Police. The informant lodged F.I.R. before the Police and on completion of investigation,

the Police submitted charge-sheet against the sole Appellant.

Defence took the plea of complete denial of the charge.

Prosecution examined as many as sixteen witnesses in order to prove its case. P.W.3-Ujjwala Mallik and P.W.4-Uchhaba Mallik are presented as

witnesses to the occurrence. Learned Additional Standing Counsel submits that P.W.11-Gopala Mallik is also an eye-witness. P.W.14-Dr. Padma

Charan Sahoo has conducted post-mortem examination over the dead body of the deceased as well as examined the weapon of offence i.e. the knife

and rendered his opinion. Ext.7 is the post-mortem report. Ext.8 is the opinion of the Doctor on examination of weapon of offence. Rest of the

witnesses are formal witnesses. P.W.16-Gopal Krushna Padhi took up the investigation of the case and handed over the charge of the same to

Amaresh Mohapatra, the S.I. of Police, Pattapur Police Station.

Miss. Bijayalaxmi Tripathy, learned Amicus Curiae appearing for the sole Appellant, in course of hearing of the appeal, does not dispute the

findings recorded by the learned District and Sessions Judge, Ganjam-Gajapati, Berhampur to the effect that the death of the deceased was homicidal

in nature. However, she strenuously contends that the prosecution has failed to prove its case beyond all reasonable doubts.

Mr. G.N. Rout, learned Additional Standing Counsel for the State, however, submits that the learned District and Sessions Judge, Ganjam-Gajapati,

Berhampur on a perspicacious view of the evidences available on record, has come to a just and proper conclusion. He, therefore, urges the Court not

to disturb the findings on the conviction and sentence recorded against the appellant.

Evidences of P.Ws.3, 4 and 11 are of pivotal importance in this case. P.W.3-Ujjawala Mallik has stated that eight to nine years back around 7.00

P.M. while he was sitting on the front verandah of his house, Gopala Mallik and deceased- Uchhaba Naik were talking. At that time, the accused all

on a sudden, came and stabbed Uchhaba Naik on the left side chest with a knife which led to his death. In his cross-examination, he has stated that

the occurrence took place in Uppar Sahi of their village but, he could not exactly say near whose house such occurrence took place. He further stated

that there was no street light in their village at the time of occurrence. When the occurrence took place, night had already set in.

The defence argument that since it was night, it was not possible on the part of P.W.3 to identify the Appellant to be the assailant of the deceased, is

of no avail in this case, as we are of the opinion that the parties belong to one village and all of them are well acquainted each other. So, there is no

difficulty in identifying the Appellant even after the night had set in. Moreover, in the cross- examination of P.W.3 nothing substantial has been

brought out to show that he could not have identified the Appellant. Not even a suggestion was given to him on this aspect.

P.W.4-Uchhaba Mallik has stated in his cross-examination that he had not seen the accused Biswanath Mallik was giving knife blow to Uchhaba

Naik. He further stated that by the time he arrived at the spot he found the lady members of the house of Uchhaba Naik to have assembled at the

spot and none else were there. So, he is not an eye-witness to the occurrence.

P.W.11-Gopala Mallik has stated that he requested Uchhaba Mallik to give him money for purchasing rice as the said Uchhaba had brought

money from Godabari Das. Uchhaba Naik, the deceased came from his behind and asked him as to what money he was asking for. The deceased

and this witness were Sangata Maitra (sworn friends). This witness replied Uchaba that he was demanding his wages from Uchhaba Mallik. This

witness further stated that while he was discussing with Uchhaba Naik in front of the house of Uchhaba Mallik, the accused, was then sitting on the

verandah of his house. All on a sudden, the Appellant rushed towards Uchhaba Naik and within a twinkling of an eye dealt a blow to the left side

chest of Uchhaba Naik with a knife and when that ensued tussle between the accused and Uchhaba Naik, the accused Bisu Mallik pulled that knife,

which he had pierced into the chest of Uchhaba Naik and escaped from the spot. On seeing that, he raised hullah and thereafter, the post-occurrence

incident has been narrated. This witness has been cross-examined at length. But nothing substantial has been brought from his mouth.

Evidences of both the eye-witnesses i.e. P.Ws.3 and 11 find corroboration from the evidence of Dr. Padma Charan Sahoo (P.W.14), who on

post-mortem examination of the dead body of the deceased on 20.02.1999, found one triangular shape stab wound of size 3 cm. x 1.5 cm x 10 cm.

deep of which the larger arm 3 cm. each to shorter arm 1 cm. The injury was horizontally present on left side front of chest with tip pointing medially

placed 4.5 cm. below to 2.5 cm. lateral to medial end of left clavicle. He also found one incised wound of size 2 cm. x 0.5 cm. x skin deep present on

medial border of right scapula and 4 cm. below its upper border.

Learned counsel for the Appellant submits that as there are two injuries on the dead body of the deceased, the evidences of P.Ws.3 and 11 should

be viewed with suspicion. However, in view of the clear and unimpeachable evidence of P.Ws.3 and 11, we are of the opinion that such evidences

cannot be ignored or brushed aside on the opinion/ evidence of the Doctor. Moreover, the incised injury found on the back of the deceased is a

superficial injury with skin deep which could have been caused by fall on a pointed object.

So, we are of the opinion that evidence of P.W.14, the Doctor, in essence, supports the prosecution version i.e. the version of P.Ws.3 and 11 that

the appellant was stabbing by means of a knife on the left side chest of the deceased.

The contents of Ext.8 together with the evidence of P.W.14 reveal that he has examined the weapon of offence and given opinion that the injuries

like the stab injuries on the left side chest of the deceased can be caused by such weapon of offence. Such opinion of the Doctor further lends

credence to the evidence of the prosecution witnesses examined in this case in the shape of eye-witnesses.

Keeping in view the aforesaid considerations, we are of the opinion that the evidences of P.Ws.3 and 11, the eye-witnesses in this case, as

supported by the evidence of P.Ws.14, the Doctor, who has conducted post-mortem examination and his opinion rendered on examination of the knife,

the prosecution has proved its case beyond all reasonable doubts. Hence, the offence under Section 302 of the Penal Code has been well brought

home by the prosecution in this case. Therefore, there is no reason to disturb the finding of the learned Sessions Judge, Ganjam-Gajapati, Berhampur

that the Appellant is guilty of the offence under Section 302 of the Penal Code.

Accordingly, the conviction and sentence to undergo imprisonment for life recorded by the learned District and Sessions Judge, Ganjam-Gajapati,

Berhampur in the aforesaid case are hereby confirmed. However, since the Appellant belongs to very humble walk of life and was represented by the

State defence counsel before the learned Sessions Judge, Ganjam-Gajapati, Berhampur and also defended by the learned Amicus Curiae appointed by

this Court in this case, we are of the opinion that this is not a fit case to impose any fine. Further, we take into consideration of the fact that the

Appellant comes within the purview of the Notification bearing No.4817/L.IVJ.7/08(pt) Dt.5.5.10 of the Government of Odisha in Law Department

regarding remission of sentences. So, we further direct that the case of the present Appellant observations may be taken up for premature release, as

per our made in the case of Shyam Sundar Jena â€"vrs.- State of Orissa: reported in (2021) 81 OCR 290.

Accordingly, the JCRLA is disposed of.

This order be communicated to the appropriate authorities forthwith.

The T.C.Rs. be returned back forthwith.