Prasana Kumar Behera (Since Dead) vs State Of Orissa

D. Dash, J

The appellants by filing this appeal have assailed the judgment of conviction and order of sentence dated 14.04.1988 passed by learned Sessions

Judge, Keonjhar in S.T. Case No.61 of 1986.

By the said judgment, the appellant no.1 (accused) has been found guilty for commission of offence under sections 304-II and 324 of the Indian Penal

Code (for short, ‘the IPC’) and the appellant no.

2 (accused) has been held guilty for commission of offence under sections 324 and 326 IPC. Accordingly, both of them have been convicted

thereunder. The appellant no. 1 has been sentenced to undergo rigorous imprisonment for a period of eight years for committing the offence under

section 304-II IPC and rigorous imprisonment for one year for the offence under section 324 IPC with the stipulation that the sentences are to run

concurrently.

The appellant no. 2 has been sentenced to undergo rigorous imprisonment for a period of one year for committing the offence under section 324 IPC

and rigorous imprisonment for a period of five years and pay fine of Rs.500/- in default to undergo rigorous imprisonment for one month with the

stipulation that substantive sentence of imprisonment imposed on both the counts would run concurrently.

In response to the letter of this Court, report has come to be received from the Superintendent of Police, Keonjhar that the appellant no. 1

(accused-Prasana) has expired on 3.6.2020 on account of sudden illness.

On 16.06.2019, Mr. Debi Prasad Patnaik, learned counsel filing Vakalatnama had appeared on behalf of the appellants. He submits to have no such

instruction either from the legal representatives of appellant no. 1 or the appellant no.2 (accused- Muralidhar) to further pursue the appeal in so far as

appellant no.1 is concerned. He however submits to have the instruction to argue the appeal in assailing the judgment of conviction and order of

sentence in respect of appellant no.2 (accused-Muralidhar).

In view of the above, the appeal in so far as the appellant no. 1 (accused-Prasanna) is concerned stands abetted and it now runs only at the instance

of the appellant no.2 (accused-Muralidhar)

The case of the prosecution in short is that on 9.8.86 around 5.30 P.M. the informant namely, Bhaskar Chandra Sethi (P.W.1) was there in front of

their house running by the side of the road of village Karanjia under Champua Police Station in the district of Keonjhar. The informant was then

talking with Dayanidhi Behera (P.W.3) and Pratap Charan Giri (P.W.4). Around that time, accused Prasana Behera (appellant no.1-since dead)

returned from the village football field side and questioned P.W.1 as to why he addressed his brother Hrushikesh Behera as Mulia (Servant). P.W. 1

having denied to have said so, wanted a direct confrontation. It is said that accused Prasana then got enraged and while scolding, went to his house.

Immediately, thereafter, he returned from the house being followed by his brother accused Muralidhar (appellant no.2), his parents, namely Jadumani

and Raimani. It is further stated that accused Prasana lifted a stone from the ground and threw it as such. He then came towards P.W.1 to assault

him. At this sight, P.W.1’s mother and father i.e. Fulmani (deceased) and Nakfodi (P.W.2) came to rescue P.W.1. After words accused Prasana

scolded P.W. 1 and having come closure brought out a ‘Chhuri’ (Knife) from near his waist and attempted to stab at P.W. 1. In the process,

P.W.1 having been able to avoid the said blow to the sit aimed at, the knife struck at his left hand finger causing bleeding injury. At this point of time,

when his mother came on the front to save P.W. 1, the attempted second blow by the accused Prasana hit at her belly resulting severe bleeding injury

and bulging of the intestine. Having received the blow, she made a cry that accused Prasana had killed her and went to the veranadah of Khetrabasi

Sahu (P.W.5) where she fell down and died. It is further stated that at that time, accused Muralidhar in respect of whom the appeal is being

prosecuted dealt axe blow on the face of the father of P.W. 1 examined as in the trial P.W. 2 resulting bleeding injury on his person and causing loss

of 2/3 teeth. He then called out Khetrabasi (P.W.5) to have been so assaulted. When Khetrabasi (P.W.5) and others rushed to the place, accused

persons Prasana and Muralidhar holding the weapons fled away.

It is stated that informant’s father i.e. P.W. 2 had purchased a piece of land measuring Ac.0.30 decimals from the father of the accused persons

and in respect of the said transaction as also the possession of the land, there was dispute between the accused persons on one hand and the

informant P.W. 1 on the other. So there was ill-feeling for which accused Prasana purposely made false allegation that his brother namely, Hrushikesh

had been addressed by P.W.1 as ‘Mulia’ (Servant) with the sole intention to see that quarrel would ensue so that he would fulfill his evil desire

in assaulting the informant (P.W.1) and others for being visited with fatal consequences. Khetrabasi Sahu (P.W.5) having first reported the incident at

Champua Police Station; the Sub-Inspector of Police (P.W.11) present there entered the said fact in the Station Diary Book of the police station vide

Entry no. 253 dated 9.8.86 (Ext.17). The S.I. of Police Station (P.W.11) then informed the fact to the Office-In-Charge of the Police Station

(P.W.12) by VHF as he was then on duty at Jhumpura.

He proceeded to the spot and there the plain FIR Ext. 1 from P.W. 1 was received which led to the registration of the case.

In course of investigation, the informant and other witnesses were examined; post mortem examination was held over the dead body of the deceased;

the injured persons P.Ws. 1 and 2 were medically examined and incriminating articles were also seized and sent for chemical examination. On

completion of investigation, charge sheet having been submitted against the accused persons (appellants), they faced the trial being charged with the

commission of offence under section 302/324/326/34 IPC.

In the trial, the plea of accused is that of denial of the incident and their role as placed/projected by the prosecution. It is their further case that on

the relevant date and time when accused Prasana was returning from the village foot ball field side, he found that Bhaskar Sethi (P.W.1) and his

parents were standing in front of their house. He was then holding a ‘Budia’ (Axe); and his parents carrying lathis. It is further stated that all of

them suddenly surrounded him in order to assault and then Bhaskar (P.W.1) aimed a blow by that axe at his head which ultimately hit on the back of

the shoulder as he moved a bit. As result of that, accused Prasana fell down. When he was trying to get up, Bhaskar (P.W.1) again wanted to assault

him by that axe, by when P.W.10’s mother namely, Fulmani, the deceased came to stand there and attempted to snatch away that axe from

Bhaskar (P.W.1). Thereafter when Bhaskar (P.W.1) again attempted to hit accused Prasana by that axe, it somehow missed and then the second

blow aimed at accused Prasana by that axe, accidentally was received by his mother, the deceased at her abdomen.

From the side of the prosecution, twelve witnesses have been examined. Out of them P.W. 1 is the informant-cum-injured and P.W. 2 is his farther,

the other injured. Two other witnesses such as P.Ws. 3 and 4 have been examined along with P.W. 5 who had first reported the incident at the police

station. Witness to the seizure, the Gramarakhi has been examined as P.W. 6. The doctor who had conducted autopsy over the dead body of the

deceased and examined the injured P.W.2 has come to the witness box as P.W. 8. P.W. 9 is the Doctor who had examined accused Prasana as well

as the informant Bhaskar (P.W. 1) and P.W. 10 is the Doctor who had examined Ramani, the mother of the accused persons. P.W. 7 is the police

constable who had assisted the OIC, the Investigating Office of the case, here examined as P.W.12 and P.W. 11 is the S.I. of Police Station who had

first received the information at the police station from P.W. 5.

The prosecution has proved the FIR Ext. 1, seizure lists, the registered sale deed Ext. 2 executed by Jadumani, the father of the accused persons. The

post mortem report and injury repots have also been admitted in evidence and marked exhibits from the side of the prosecution. The axe as well as

other incriminating articles having been produced in the trial have been marked as the Material Objects (M.Os.). The defence has examined one

doctor as D.W. 1.

The trial court on examination of the evidence and upon their analysis has finally come to the conclusion that the prosecution has proved its case

beyond reasonable doubt in proving the offence under sections 304-II and 324 IPC against accused Prasana (since dead) and against accused

Muralidhar under sections 324/326 IPC which we are presently concerned in this appeal.

Mr. D.P. Patnaik, learned counsel for the accused Muralidhar, the appellant no. 2 submits that the evidence of P.W. 1, the informant-injured has

not been properly scrutinized by the trial court with due care and caution, particularly keeping in view the fact that he is a highly interested witness as

of longstanding enmity. It is submitted that his evidence being read with the FIR (Ext.1) as well as with that of P.W. 2 clearly go to show that he has

been suppressing some important part of the incident and the actual manner of its happening and that is becomes more glaring when the prosecution

has not explained the injury on the accused Prasana as well as his mother, Ramani who have been medically examined during investigation.

According to him, even though the injuries found on the person of accused Prasana and his mother are simple in nature, yet under the circumstances

those ought to have been explained properly and for such non-explanation, the prosecution has to share the blame. He also submits that with said

suppression when P.Ws.3 and 4 have not supported the prosecution case and given a different picture as to the incident, the prosecution case cannot

be said to have been established beyond reasonable doubt. It is further submitted that the evidence of P.W. 1 being highly discrepant with regard to

said blow said to have been given by the accused Prasana, his evidence ought not to have been accepted in respect of the role of accused Muralidhar

as in view of the manner of happening of the incident, that part cannot be segregated being inextricably mixed up. It is his submission that the evidence

of P.W. 2 although does not inspire confidence when together taken up for consideration with the evidence of P.W. 1, being wholly inconsistent on

material aspects, the trial court has committed grave error in placing the reliance on the version of the said witnesses in recording the finding of

conviction against accused-Muralidhar. He further submitted that on proper appreciation of evidence on record, the findings of the trial court as

regards the complicity of accused Muralidhar in commission of the offences under sections 324/326 IPC is unsustainable.

Learned counsel for the State refuting the above submission contended that the trial court on thread bare of analysis of the witnesses examined

from the side of the prosecution as also the defence and taking into account the documents admitted in evidence, marked exhibits has rightly arrived at

the conclusion as regards the commission of offence under section 324/326 IPC by accused Muralidhar, the appellant no.2. It is submitted that the

discrepancy in the evidence of P.Ws. 1 and 2 are too minor to be taken note of and those are not enough to discard their evidence, especially with

regard to the role played by accused Muralidhar, the appellant no.2 in the incident.

On the above rival submission, this Court is called upon to judge the sustainability of the finding of the trial court in respect of accused Muralidhar

who has been held guilty for commission of offence under sections 324/326 IPC and for that the need arises to have an exercise in carefully going

through the evidence for their appreciation.

I have read the depositions of all the prosecution witnesses as also the one examined by the defence. The documents marked Exhibits have been

perused.

It is the evidence of P.W. 1 the informant-injured that on the relevant date, time and place after the altercation, accused Prasana ran towards his

house and then he came from his house with a ‘Chaku’ when accused Murali came with a ‘Gupti’ (a long pointed sharp cutting weapon

and ordinarily, its of much narrower in width than ordinary knife) and their father came with a Budia (Axe). It is stated that when his father (P.W.2)

told as to why as they were quarrelling; accused Muralidhar with the gupti that he was holding gave a blow on the left side of his face causing

bleeding injury and loss of one tooth which led to his fall on the ground and at that time, mother of the accused persons and their sister were present

when their grand-mother also arrived there. He has further stated that after his father fell down, the father, mother, sister and grandmother of the

accused persons pounced upon his father and caught hold of him when accused Prasana raised the ‘Chaku’ aiming at his chest which however

hit at his left hand. He further stated that at that point of time, his mother, the deceased came to his rescue, when accused Prasana stabbed at her

belly resulting bulging of the intestine. In view of the above discussion, the tendency of this P.W.1 to rope in the female members of the accused

persons clearly comes out when nothing had been so said while lodging the FIR (Ext.1) nor in the earlier statement before Police more particularly as

to the role of Jadumani, the father of the accused persons coming there holding ‘Budia’ (Axe) and playing further role. Next, so far as the role

of accused Muralidhar is concerned, it is the evidence of P.W. 1 that he by means of that Gupti had given blows at his father which had hit on the left

hand and left side of face. During cross-examination, he has stated that accused Muralidhar had also assaulted his mother. Several important

omissions amounting to contradictions as well as major contradictions are seen in the evidence of P.W. 1 in view the sharp departure as to the role of

the accused persons when he has deposed in the trial. Attention of this witness has been drawn to the said parts of his statement recorded by the

Investigating Officer under section 161 Cr.P.C., which have been subsequently proved through the Investigating officer (P.W.12) as finds noted at

para-11 of the deposition of P.W.12.

P.W. 2, the father of P.W. 1 has stated that accused Muralidhar had given a blow on his face by means of a Gupti and thereafter had also assaulted

him with that Gupti on his left upper arm and it is he who by means of that Gupti stabbed at the abdomen of his wife (deceased) and thereafter

accused Prasana had given the second blow by means of the knife (Chaku) at the belly of the deceased. Having carefully gone through his evidence,

several material omissions and major contradictions as to the role of the accused persons are noticed. The attention of P.W. 2 having been drawn to

said parts of the statement recorded under section 161 Cr.P.C. those have been proved during examination of the Investigating Officer (P.W.12) as

can be seen at para-12 of his deposition. P.W. 3 having not supported the prosecution case has rather favoured the part of the story projected by the

defence that Bhaskar P.W. 1 had dealt a Budia blow on the left scapular region of accused Prasana and when he wanted to dealt the other blow, his

mother intervened for which the same hit at her belly. Same is the state of the affair in respect of evidence of P.W. 4.

Admittedly, the parties were having dispute with regard to the landed property, the relationship was strained. When P.Ws. 1 and 2 are stating the

incident to have taken place in one manner, the other two witnesses P.W.3 and 4 have stated it to have taken in a different manner. There appears

serious discrepancy in the evidence of P.Ws. 1 and 2 as to the role of accused Muralidhar as also the other accused Prasana in the said incident. In

the FIR Ext. 1 lodged by P.W. 1, it is stated that accused Prasana’s knife blow on the second attempt hit at the belly of the deceased which led to

the bulging of her intestine and accused Muralidhar had given the ‘Budia’ blow on the face of his father. During evidence, it is however stated

differently. Thus, the evidence of P.Ws. 1 and 2 and the version in the FIR (Ext.1) lodged by that P.W.1 are irreconcilable particularly with regard to

the role of the accused Muralidhar in the said incident. To add to this, in view of the above discussed discrepancy, the injuries on the accused Prasana

and his mother Ramani even though are of minor nature yet, their non- explanation under the circumstances bears significance and in my considered

opinion the benefit of doubt as to the manner of happening of the incident and parts played by all concerned stands squarely extended. Thus on the

obtained evidence, this Court is constrained to hold that the finding of the trial court that the prosecution has proved its case beyond reasonable doubt

against accused Muralidhar in committing the offence under section 324/326 IPC cannot be sustained. Accordingly, the said finding is hereby set

aside.

Resultantly, the appeal presently pursued at the instance of accused Muralidhar, the appellant no.2 is hereby allowed. The judgment of conviction

and order of sentence recorded against him are hereby set aside.

The bail bonds executed by accused Muralidhar, the appellant no. 2 shall stand discharged.