Lachhaman Bhatra vs State Of Orissa

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D.Dash, J

The Appellant by filing this Appeal from inside the jail has challenged the judgment of conviction and order of sentence dated 18.01.2016 passed by the Additional Sessions Judge, Nabarangpur in Criminal Trial Case No. 188 of 2015(T) arising out of G.R. Case No.441of 2015 corresponding to Papadahandi P.S. Case No.70 of 2015 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Nabarangpur.

The Appellant (accused), thereunder, has been convicted for committing offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for one year.

The prosecution case is that on 14.05.2015 around 2 pm, Trinath Bhatra, son of Pudan Bhatra (Informant-P.W.10) was returning to his house with one Bali Bhatra (P.W.4) on a motorcycle. It is stated that on the way, near the house of Sriram Naik (P.W.3), having noticed accused holding a bamboo stick was hurling abusive words, they stopped their motor cycle. It is then stated that Trinath asked accused, the reason for such hurling of abusive word and asked him to refrain from doing so. At this, the Accused got enraged and dealt a blow by means of bamboo stick on the head of Trinath. Receiving the said blow, the Trinath fell down and thereafter the accused dealt another blow by the said bamboo stick on his head. Seeing this Bali Bhatra, P.W.4 raised hullah saying ‘Marigala Marigala’. Hearing the hullah, when the villagers arrived at the spot, accused fled away carrying that bamboo stick. An Ambulance being immediately called injured Trinath was shifted to Papdahandi Medical, then to District Headquarter Hospital, Nabarangpur for treatment. Thereafter, he was taken to the Hospital at Koraput where he succumbed to the injuries while undergoing treatment. The father of Trinath (P.W.10) then lodged a written report with the Inspector-In-Charge (IIC), Papadahandi Police Station. Receiving the said report, the IIC treated it as the F.I.R. and upon registration of the case, took up investigation.

In course of investigation, the I.O.(P.W.21) examined the Informant and visited the spot where he also examined other witnesses. From the spot, he seized the sample earth and blood stained under the seizure list and having arrested the accused, he seized the stick (M.O.I) from his possession under proper seizure list. In the hospital, the I.O. (P.W.21) held inquest over the dead body of the deceased and prepared the report (Ext.1) to that effect. The dead body was then sent for postmortem examination by issuing requisition. Some other incriminating articles were also seized in course of investigation. All those incriminating articles were sent those for chemical examination through Court.

On completion of investigation, Final Form was submitted placing the accused to face the Trial for commission of offence under section-302 of the IPC.

Learned S.D.J.M., Nabarangpur receiving Final Form, took cognizance of the above offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing charge for the said offence against the accused.

In the Trial, the prosecution in total has examined twenty one (21) witnesses, who are P.Ws.1 to 21. As already stated, P.W.10 is the informant, who happens to be the father of the deceased; whereas the brother of the deceased has been examined as P.W.5 and the wife of the deceased has appeared in the witness box as P.W.18. The person who is said to have been accompanying the deceased in the motorcycle on the relevant date and in whose presence the occurrence took place has been examined as P.W.4. The seizure witnesses are P.Ws. 6, 7, 8, 9, 15, 16 and 17. The scribe of the F.I.R. lodged by P.W.10 is P.W.19. When the Doctor who had conducted autopsy over the dead body of the deceased has given evidence as P.W.20, the I.O. is P.W.21.

The prosecution besides leading the evidence by examining the above witnesses has proved several documents which have been marked as Ext.1 to Ext.12. Important of those, are the F.I.R., Ext.6, inquest report, Ext.1, postmortem report, Ext.7, spot map, Ext.9 and Chemical Examiner’s report Ext.11.

The defence plea is that of complete denial and false implication. The accused however has not tendered any evidence.

The Trial Court on going through the evidence of the Doctor (P.W.21) and upon discussion of other evidence at the outset has recorded the finding that the nature of death of Trinath Bhatra was homicidal. In fact this aspect of the case was not challenged before the Trial Court and that is also the situation before us.

The Doctor (P.W.21), who had conducted autopsy over the dead body of Trinath, has deposed in clear terms to have noticed haematoma on both eyes, stitched wound on 3!! over left eye and two numbers of haematoma on the scalp. During his external examination, he too has found multiple fractures on the skull bone, sub-dural haematoma over

both temporal region of the brain of the size of 5!! X 5!! each. All such injuries which he had noticed, has been reflected in the report, Ext.7. He has also subsequently given his opinion on being asked by the I.O. (P.W.21) that the injuries were possible by means of the seized stick marked as (M.O.-I). As per his evidence, the injuries are antemortem in nature and the death is homicidal. The I.O. P.W.21 while holding the inquest over the dead body of the deceased had also noticed the injuries which he had reflected in his report, Ext.1 in his own language. That apart other witnesses have also stated to have seen the deceased with such injuries on his person, when they saw him lying dead. All these voluminous evidence having not even been attempted to be impeached, we find ourselves wholly in agreement with the finding of the Trial Court that Trinath met a homicidal death.

Learned Counsel for the Appellant (accused) submitted that the solitary eye witness on whose evidence, the prosecution relies for securing the conviction is P.W.4 and it is stated that he was with the deceased on the motorcycle, when on the way, the incident took place. He further submitted that the evidence of P.W.4 when read with little patience would clearly reveal that he is suppressing the truth as to how the occurrence began and what was the reason for the same is not at all been stated either by this P.W.4 or any other witnesses and therefore, when P.W.4 is highly interested witness being the close friend of the deceased having eye on the success of the prosecution, the Trial Court ought not to have branded his evidence to be of starling quality and above board. He, therefore, submitted that the evidence of P.W.4 being held as unsafe to be relied upon, the other evidence let in by the prosecution even if taken on their face value do not establish the complicity of this accused beyond reasonable doubt.

Learned Counsel for the Respondent-State submitted all in favour of the finding returned by the Trial Court holding the accused guilty for commission of offence under section-302 of the IPC for having intentionally caused the death of Trinath by assaulting him on his head.

He further submitted although the prosecution case is based upon the solitary testimony of P.W.4 yet as his evidence is free from any kind of infirmity much less to say the basic infirmity as he is found to be the natural witness and his evidence is credible and trustworthy, the Trial Court has rightly fastened the guilt upon the accused by placing reliance upon his evidence.

Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.21 and have perused the documents which have been marked Exts.1 to 12.

In finding out the acceptability of the finding of the Trial Court as to the guilt of the accused by addressing the rival submission, it would now be proper to examine the evidence of P.W.4, who has been projected by the prosecution as the solitary eye witness to the occurrence and as mainly basing on his account, the Trial Court has convicted the accused.

The legal principle is well settled that a conviction can be secured basing upon the solitary testimony of a witness. However, the rider remains that such testimony has to be free from any such basic infirmity and the evidence of that witness must be of starling quality. The evidence of the witnesses must be above board and wholly trustworthy.

This P.W.4 has stated that he with the deceased were returning on motorcycle from Nabarangpur to their house. It is further stated that on their way, near the house of the elder father-in-laws of the deceased, which is in their village, the accused being armed with a thenga detained them and then extended threat to kill them by raising that thenga. He further states that at this juncture, the deceased got down from the bike and when he raised protest, the accused dealt a blow by force with that thenga on his head. He had further stated that when deceased receiving the blow fell down, the accused dealt two more blows on his head by that thenga; which held to the loss of sense of the deceased. He states then to have raised shout when the villagers arrived at the spot and therefore, steps were taken for shifting of the deceased to the hospital. It is his evidence that the deceased was in good terms with the accused. He has further stated that when deceased asked him to stop the bike, he stopped it near the house of Sriram Naik, who is the elder father-in-law of the deceased and then the accused was present at the distance of 15 cubits. This Sriram has been examined as P.W.3. He had stated that when hearing shout, “Marigala Marigala”, he reached at the spot, he saw deceased lying in a unconscious state with bleeding injuries and co-villagers then were pouring water on his face where he came to know from the co-villagers that the accused had caused the injuries on the head of the deceased by that thenga. He does not say as to who is / are that co-villagers from who he ascertained that such condition of the deceased was the result of the act done by the accused.

The father of the deceased has lodged the F.I.R., Ext.6. The F.I.R. has been lodged on the same day around 6.45 pm being scribed by P.W.

It has been narrated in the F.I.R. that around 2 pm, when the deceased and P.W.4 was returning on the motorcycle on the way near the house of P.W.3, the accused by holding the thenga was shouting at the villagers and then Trinath having got down from the motorcycle asked him as to why he was so scolding the villagers and when this was said by the deceased, Trinath, The accused dealt a blow on his head, and thereafter another blow was given by the accused when he fell down on the ground. So his evidence is that the accused was then extended threat to the life of Trinath (deceased) and Bali (P.W.4). But as per the F.I.R. narration, he was simply scolding the villagers even not aiming at any particular individual. During trial, this P.W.1 has simply stated to have rushed to the spot hearing the shout and saw the deceased lying unconscious with profuse bleeding injuries and then the persons present were pouring water on the wounds of the deceased. Neither this P.W. 10 nor P.W.3 state to have seen P.W.4 on their arrival at the very place where the deceased was lying in an injured condition, nor they state that P.W.4 being the first person who witnessed the occurrence had told them regarding the happening in brief. The normal conduct of P.W.4 is completely missing which can’t but has to be adversely viewed in telling upon the credibility of his evidence. He being the only person then accompanying of the deceased, in his presence, the occurrence took place. When Trinath was assaulted and it’s said that hearing the shout, the villagers came. This P.W.4 does not state that the father of the deceased (P.W.10) and elder father-in-law (P.W.3) or any other relations to have so arrived there. He also does not state that he told about the occurrence to this P.W.3 or P.W.10 or the any other relations of the deceased who arrived thereby hearing his shout. The evidence of this witnesses being deeply gone through, it is seen that he does not state as to what the accused did after dealing blows by that thenga for the second time when the deceased had already had the fall. Whether accused continued to remain there till the arrival of the villagers including his father and elder father-in-law and their other relations or that he left the place to save himself is not forthcoming which certainly bears importance in the sense that his version as to the happenings during the occurrence is not getting tested through them who arrived. When again we turn to the evidence of P.W.4, we find him to have stated that the deceased asked him to stop the bike near the house of Sriram (P.W.3). What actually the accused was shouting at the relevant time so that deceased had to ask this P.W.4 to stop the motor cycle is not stated by this P.W.4. The normal advice as a companion as expected under the situation is in deficit that when the deceased was not armed and accused then was armed with thenga and if was so scolded, certainly being in an aggressive mood, how was it that the deceased did venture to proceed to have conversion with the deceased. When PW.10 when states to have lodged the F.I.R. (Ext.6), he is not stating in the trial as to from whom, he heard the details of the happenings in the incident. But then P.W.19, the scribe of the F.I.R. says that he did so under the instructions of the informant (P.W.10).Thus, we are in doubt as to how if P.W.4 could know all these details happenings in the incident, which he narrated in great details in the F.I.R.

At this juncture, the prosecution not leading any evidence in support of the motive behind the crime or even any standing reason for the accused to cause such injuries upon the deceased in leading to his death are factors which cannot be lightly brushed aside. On churning the evidence, we are of the considered view that the evidence of P.W.4 cannot be certified to be starling quality so as to be relied upon to convict the accused for committing the murder of Trinath. We are therefore, of the view that the finding of guilt as against the accused as has been returned by the Trial Court holding him to be the author of the injuries caused upon Trinath leading to his death cannot be sustained.

In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 18.01.2016 passed by the Additional Sessions Judge, Nabarangpur in Criminal Trial Case No. 188 of 2015(T) are hereby set aside.

Since, accused-Lachhaman Bhatra is on bail, his bail bonds shall stand discharged.

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