Misra Bag & Another vs State Of Odisha

D.Dash, J

The Appellants by filing this Appeal has assailed the judgment of conviction and order of sentence dated 19th May, 2016 passed by the learned Additional Sessions Judge, Kalahandi-Bhawanipatna in Criminal Trial Case No.04 of 2014 (Sessions)(T) arising out of G.R. Case No.189 of 2013 corresponding to M. Rampur P.S. Case No.85 of 2013.

The Appellants (accused persons) thereunder has been convicted for commission of offence under section-302/34 of the Indian Penal Code, 1860 (for short called as the IPC). Accordingly, the Appellants (accused persons) have been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- in default to undergo rigorous imprisonment for a period of six (6) months each.

Prosecution Case:-

On 10.08.2013 one Suresh Chandra Bag (Informant-P.W.14) lodged a written report with the Inspector-In-Charge (IIC), M. Rampur Police Station stating therein that his father-Jiriman Bag had gone to his land at Kuliamal to undertake some work in the field and it was around 10 am, two persons namely, Naresh Mallik (P.W.7) and Raju Kumar (P.W.8) saw Jiriman with bleeding injuries coming near the village school. It is stated that being asked by them, Jiriman disclosed that the accused persons namely, Misra Bag and Motisel Bag having assaulted him by means of tangia and rafa had caused those injuries on his person. Jiriman was then shifted to the village Hospital and from there to Kesinga Hospital. It is further stated therein that Suresh (P.W.14) receiving the information had been to Kesinga Hospital and found his father lying with injuries on his head and other parts and he having asked his father Jiriman as to how it so happened was told that when he was working on his land, the accused persons came and assaulted him by means of tangia and rafa.

The IIC, M. Rampur Police Station who was then campaigning at Kesinga receiving the above written report, sent the same to Police Station for registration of the case and thereafter, having come to know that IIC, Kesinga Police Station had already given the requisition for medical examination of Jiriman, he too received the information that the condition of the Jiriman being serious, the IIC, Kesinga Police Station had issued requisition to the Medical Officer, Kesinga Public Health Centre (PHC) for recording his dying declaration. This IIC, M. Rampur Police Station then proceeded to the PHC and could know that Jiriman had by then had been shifted to District Headquarter Hospital, Bhawanipatna.

On receiving the written report (Ext.10), the I.O.(P.W.19) examined the Informant (P.W.14). He having received the information as to the death of Jiriman on account of such injuries in the District Headquarter Hospital, Bhawanipatna, went there and held inquest over the dead body of Jiriman and prepared the report to that effect, Ext.3. He also sent the dead body for postmortem examination and seized the materials which according to him were incriminating. On 12.08.2013, the I.O. (P.W.19) arrested the accused persons, seized their wearing apparels under seizure lists Ext.5 and 6. He then sent those incriminating articles for chemical examination through Court. He also got the statement of P.W.7 and P.W.8 recorded by the Magistrate under section-164 of the Cr.P.C. On completion of investigation, the Final Form was submitted placing these accused persons to face the trial for commission of offence under section-302/34 of the IPC.

Learned J.M.F.C., M. Rampur, having received the Final Form as above, took cognizance of the said offence and after observing formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the said offences against the accused persons.

In the Trial, the prosecution in total examined nineteen (19) witnesses. Out of them, as already stated the son of the deceased-Jiriman who had lodged the F.I.R., Ext.10 is P.W.14. P.Ws. 1 and 4 are two witnesses to the recovery and seizure of a spade under seizure list, Ext.1. The wife of accused Misra who is also a witness to the seizure of the spade under seizure list, Ext.1 has been examined as P.W.2. The two witnesses who had first seen the deceased with injuries and had informed the son of the deceased (P.W.14) are P.Ws. 7 and P.W.8. The Doctor who had conducted autopsy over the dead body of the deceased has been examined as P.W.13; whereas P.W.19 is the I.O. The Doctor who is said to have recorded dying declaration of the deceased has been examined as P.W.15 and the Police Officer, who had issued requisition for recording of such dying declaration, has come to the witness box as P.W.17.

The prosecution besides leading evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 19. Out of those, the important are; the F.I.R. (Ext.10), inquest report (Ext. 3), postmortem report (Ext.8), chemical examiner’s report (Ext.18), the spot map (Ext.19). The so called recorded dying declaration has been admitted in evidence and marked as Ext.11.

The accused persons being called upon have however not tendered any evidence in support of their defence of complete denial and false implication.

The Trial Court on going through the evidence of prosecution witnesses and embarking upon the exercise of critical examination at its level has arrived at a finding that the prosecution has established the charges against the accused beyond reasonable doubt. Accordingly, the accused persons have been convicted and sentenced as aforestated.

Mr. Dharanidhar Nayak, learned Senior Counsel for the Appellants (accused persons) without disputing the nature of death of Jiriman to be homicidal submitted that the Trial Court without appreciating the evidence of P.W.7, P.W.8 and P.W.15 has erred in holding that the prosecution has proved its case against the accused persons beyond reasonable doubt. It was submitted that in the absence of any eye witness to the occurrence, the prosecution case is based on two sets of dying declaration; one before P.Ws.7 and 8, which is oral and the other one, recorded by the Doctor (P.W.15). He submitted that the evidence of P.W.7 and 8 if read side by side would not lead to the satisfaction to hold that the deceased had at all disclosed the complicity of these accused persons in causing such fatal injuries on him before them. He submitted that in view of the injuries noticed by the Doctor (P.W.13) who had conducted autopsy over the dead body of the deceased, it would be absolutely impossible to believe for a moment that the deceased after receiving such injuries was coming back with such injuries, when a person with such injury can neither stand nor speak either by standing or even while lying on the floor. He also submitted that so called dying declaration proved by the prosecution through P.W.15, which has been admitted in evidence and marked Ext.11 is a highly suspicious document and under no circumstance, it can be held that the deceased was then able to speak for even a fraction of a second. He, therefore, submitted that the Trial Court basing upon the evidence of P.Ws.7, 8 and 15 ought not to have held the accused persons guilty of committing the murder of Jiriman (deceased).

Mr. P.K. Mohanty, learned Additional Standing Counsel while supporting the finding of guilt against the accused persons as has been returned by the Trial Court placed that there is absolutely no reason to discard the positive versions of P.Ws. 7 and 8; who have stated to have heard from the deceased that it was the accused persons who had caused the injuries on him, which too finds mention in the F.I.R., Ext.10, lodged by P.W.14 and thus cannot be said to be later edition. He further submitted that the evidence of the Doctor (P.W.15), who has recorded the dying declaration (Ext.11) is absolutely reliable and thus the Trial Court’s finding as to the complicity of these accused persons is well in order.

Keeping in view the submissions made; we have carefully read the judgment passed by the Trial Court and have extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 19. The documents admitted in evidence and marked Exts.1 to 19 from the side of the prosecution have been perused.

As regards nature of the death of Jiriman, we find the same to have been established through the evidence of the Doctor (P.W.13) who had conducted autopsy over the dead body and his report, Ext.8. It is his evidence that he had noticed fracture of right parietal bone with visible brain matter coming out of the wound. He has further stated to have noticed tearing of dura, pia and araschoid matter on parietal area. He states to have found dehiscence distortions of the cerebral cortex of right parietal area with white matter coming outside with a hematoma of length of 3cm and 1cm width on this region over the cortical area. On dissection, P.W.13 has noticed the followings:-

(i) Sub-coetaneous haemotoma over the sternum;

(ii) Fracture of second and third rib at the costocondral junction there;

(iii) There was a fracture of left clavicle lateral to 1/3rd;

(iv) Fracture of the sternum at the angle of lewis;

(v) Heart is intact. Ventricles were filled with blood; and

(vi) Both the lungs are intact and pale looking.

He has stated that the death was on account of intra cranial haemorrhage and damage to brain matter with multiple fractures leading to neurogenic and haemorrhagic shock. We find that there is even no attempt to question any of these findings of the P.W.13. The nature of death of Jiriman as stated by P.W.13 was not under challenge before the Trial Court and that has also been the situation before us.

With such evidence available on record, when we go through the evidence of other witnesses including P.W.7, P.W.8 and the I.O (P.W.19) who had seen the injuries on the deceased, we are left with no option but to conclude that the Jiriman met a homicidal death.

First of all coming to the oral dying declaration, we find that the prosecution has sought to prove the same through P.Ws. 7 and 8 with the corroboration from P.W.14.

It is the evidence of P.W.7 that on the relevant day and time, he along with P.W.8 were sitting in the village school and then they saw accused Misra Bag proceeding holding a spade. It is not stated by him as to in which direction, he was proceeding. He has further stated that about 10 to 15 minutes, thereafter, he with P.W.8 saw Jiriman Bag proceeding with the injuries on his person. It is not stated by him as to whether said Jiriman was following the path of accused Mishra Bag or that Jiriman came from that direction to which accused, Misra Bag had proceeded. He does not state to have then first talked with Jiriman which is normally expected from every person meeting the injured. But he says that he with P.W.8 brought a bike and shifted Jiriman to Regada Hospital and Jiriman disclosed before them that accused Misra Bag and Motisel Bag had assaulted him by means of axe and spade in causing injuries on his person. He does not state as to whether Jiriman stated about the role of these accused persons on his way, when being taken to the hospital or before they started the journey. His further evidence is that the Pharmacist gave first aid treatment to the Jiriman and advised them to take the injured to Kesinga Hospital and accordingly, they shifted Jiriman in a four wheeler. When he again states that Jiriman disclosed before them about the incident of assault on him by the accused persons; it is not stated that whether it was during the period when he was being given the first aid treatment at Regada Hospital or while being taken in the four wheeler to Kesinga Hospital. His further evidence is that the pharmacist having given the treatment at Ragada Hospital, referred the case to District Headquarter Hospital, Bhawanipatna. The manner of shifting of Jiriman in the motorcycle to Regada Hospital has been stated by P.W.7. His evidence is that P.W.8 was driving the motorcycle and he himself was holding Jiriman while carrying him in the motorcycle. He has further stated that he and P.W.8 took the deceased to Hospital by holding him. His further evidence is that Jiriman disclosed before them about the incident when they asked him while shifting him to the Hospital. But, he does not state whether it was on their way to Regada Hospital or on their way from Regada Hospital to Kesinga Hospital or during the time when they were shifting Jiriman from Kesinga Hospital to District Headquarter Hospital, Bhawanipatna.

The other witness P.W.8 has stated that when they were sitting in the school, they first saw accused, Misra Bag proceeding holding a spade. He too does not state in which direction, accused Misra was proceeding. When again he states that ten (10) minutes after, he saw Jiriman proceeding with bleeding injuries on his person, he does not state as to whether Jiriman was following accused-Misra Bag or he was proceeding in any other direction. He straightway says that seeing Jiriman with injuries, he with P.W.7 helped him and by bringing one motorcycle and shifted him. His evidence is however to the effect that while they were proceeding, deceased disclosed before them that accused persons assaulted him by means of axe and spade while he was working in the land. He next states that first they took him to Regada Hospital and there he was given the first aid treatment by the pharmacist Patra Babu. When he states during first aid treatment, Jiriman disclosed about the incident in implicating the accused persons to be the author of the injuries received by him, that Pharmacist, Patra Babu who would have been the best witness in support of the said disclosure has not been examined. He however, does not state that Jiriman while being shifted from Regada Hospital to Kesinga Hospital; on the way he again disclosed about the occurrence and that is only stated by P.W.7. He next states that at Kesinga Hospital during treatment, he disclosed before the Doctor about the assault on him by the accused persons by spade and axe, when P.W.7 states that such disclosure was before the Doctor and Police. It is also not clarified that it was before the Doctor, who first examined him or some other Doctor coming later. When P.W.7 and 8 deposed to have informed the Informant (P.W.14) about the incident, this P.W.14 in his F.I.R. is however silent on the score that accused Misra Bag was seen by P.Ws. 7 and 8 to be proceeding in a particular direction, when they were sitting in the school.

P.W.14, the Informant, in his evidence during Trial has also not so stated. He states to have gone to the Kesinga Hospital and it is his evidence that his father then disclosed before him about the occurrence, when the SDPO, Kesinga as well as IIC, Kesinga and the Doctor at Kesinga Hospital were present. When these witnesses have stated about the deceased was making such disclosure as regards the complicity of these accused persons from time to time, there surfaces no such reason for repeated disclosure. Now, we find the evidence of the Doctor (P.W.13), who had conducted postmortem examination over the dead body of the deceased. It is his evidence that there was fracture on right parietal bone with visible brain matters coming out of the wound, there was coming out of dura, pia and arachoid matter on parietal area; there was dehiscence distortions of the cerebral cortex of right parietal area with emergence of white mater outside and haematoma of the length of 3cm x 1cm width on the region over the cortical area. His further evidence is that there was fracture of 2nd and 3rd rib at the costachondral junction, fracture on left clavicle lateral to 1/3rd, fracture on sternum at the angle of lewis.

With all these extremely serious injuries, which have been noticed by the Doctor during postmortem examination on the face of the evidence of that Doctor that a person with such injuries cannot behave normally, a genuine doubt arises in mind about the injured, Jiriman being in a condition to speak that too repeatedly at place to place. That apart the pharmacist, Patra Babu before whom as per the evidence of P.W.8 the deceased also disclosed is not coming forward to depose nor the Peon of the Hospital, who was said to be there by his side is coming to so state. In such state of affair, in the evidence of P.W.7, P.W.8 and P.W.14; we find that the evidence of P.Ws. 7 and 8 fall short of the test of reliability.

Now coming to the recorded dying declaration, Ext.11, we find the evidence of P.W.15, the Doctor in support of the same. Admittedly he was not treating the Doctor. He does not state as to when Jiriman was admitted in the said Hospital and when was he discharged for being taken to the District Headquarter Hospital, Bhawanipatna, the IIC of Kesinga Police Sation, P.W. 17 straightway says to have issued the injury requisition for medical examination of Jiriman, who was then admitted in the Hospital and also to have requested the Medical officer to record the dying declaration. He does not state as to where from he got such information about the admission of Jiriman. But it is his evidence that he was then present in the Hospital in connection with another case. He however, again states to have ascertained the names of the accused persons from the injured and the persons present with him. He is silent as to who were the persons present with the injured at that time, moreso if P.W.7 and P.W.8 were there by his side. He also does not state as to whether he later on ascertained anything about the recording of such dying declaration on his request. The dying declaration recorded by P.W.15 has been admitted in evidence and marked Ext.11. It does not show that this P.W.16 had asked any question to that Jeriman. P.W.15 has not given any certificate as to the health condition of Jiriman and whether he was any fit state of health and mind to speak out. He too admits to have not taken the signature of any witness on the Ext.11. He also does not state that at the time of recorded Ext.11 of any other person/s was/were present.

The I.O. P.W.19 is totally silent as to when he got the dying declaration and whether it was on the date of its recording or thereafter. He is also not stating as to from whose custody he seized the same. The Bed Head Ticket of Jiriman whether by then had been maintained or not is not forthcoming in evidence and the Doctor who first treated the Jiriman at Kesinga Hospital has not been cited as witness to speak about the condition of Jiriman and his ability to speak or if before him Jiriman had told something about the occurrence. When P.W.15 has stated that the patient then was conscious by giving a look at the nature of injuries as noted by P.W.13, serious doubt arises in our mind about the condition of Jiriman to speak out.

For above discussion of evidence as regards the dying declaration (Ext.11), we are of the considered view that it also does not stand the scrutiny as to the reliability to form the base for conviction.

In that view of the matter, the finding of the Trial Court holding the accused persons guilty for commission of the offence under section-302/34 of the IPC cannot be sustained. Therefore, we hold that the judgment of conviction and the order of sentence impugned in this Appeal are liable to be set aside.

In the wake of aforesaid, the Appeal stands allowed. The judgment of conviction and order of sentence dated 19.05.2016 passed by the learned Additional Sessions Judge, Kalahandi-Bhawanipatna in Criminal Trial No.04 of 2014 (Sessions)(T) are hereby set aside.

Since the Appellant (accused persons) namely, Misra Bag and Motisel Bag are in custody, they be set at liberty forthwith, if their detention in custody are not so required in connection with any other case.

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