Sadhu Bag vs State Of Odisha

S.K. Sahoo, J

The appellant Sadhu Bag along with co-accused Bira Bilung faced trial in the Court of learned 1st Adhoc Additional Sessions Judge, Sundargarh in S.T. Case No.7/6 of 2006 for commission of offences under sections 302/201/34 of the Indian Penal Code (hereinafter ‘I.P.C.’) on the accusation that in the intervening night of 19/20th March 2005, they committed murder of one Umakanta Bariha (hereinafter ‘the deceased’) and concealed his dead body at Kulatiha ghat of Ichha river, Lephripada in furtherance of their common intention to screen themselves from the liability of the offence and the ensuing punishment.

The learned trial Court vide impugned judgment and order dated 12.06.2006 has been pleased to acquit the co-accused Bira Bilung of the charge under section 302/34 of the I.P.C., however, found the appellant guilty under section 302 of the I.P.C. and sentenced to undergo imprisonment for life. Further the learned trial Court has been pleased to hold both the appellant and the co-accused guilty under section 201/34 of the I.P.C. and sentenced each of them to undergo rigorous imprisonment for two years. The sentences awarded to the appellant were to run concurrently.

Prosecution Case:

The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) presented by Pitambar Bariha (P.W.8) is that the deceased was his younger brother and on 19.03.2005 during night hours, the deceased left his house wearing pant and shirt after informing his family members that he would be returning home soon, but he did not return during that night and on the next day morning at about 9.00 a.m., a co-villager of the informant informed him that the dead body of the deceased was lying with injuries inside the water near Kulatiha ghat of river Ichha and some stones were stacked over him and both of his hands were tied and there were blood stains at a little distance where the dead body was lying on the sand.

P.W.8 appeared before P.W.15, the Officer in-charge of Lephripada police station on 20.03.2005 and orally reported about the occurrence, which was reduced to writing by P.W.15 and accordingly, Lephripada P.S. Case No.19 dated 20.03.2005 was registered under sections 302/201 of the I.P.C. against unknown persons.

P.W.15 himself took up investigation of the case, examined the informant and the witnesses, prepared inquest report (Ext.4) and sent the dead body for post mortem examination. He also prepared the spot map (Ext.7), seized two stones, one weighing 20 kg and another weighing 15 kg and one wooden plank of a tree, gray colour torn shirt tied in the hands of the deceased in presence of the witnesses on 20.03.2005 as per seizure list Ext.1. He also seized one torn full pant stained with blood and earth, sample earth and blood stained earth from the spot as per seizure list Ext.2/1. P.W.15 arrested both the appellant and the co-accused Bira Bilung on 28.03.2005 and forwarded them to the Court. He also sent the exhibits to the R.F.S.L., Sambalpur through the S.D.J.M., Sundargarh for chemical examination and received the chemical examination report issued by R.F.S.L., Ainthapali, Sambalpur vide Ext.10. On completion of investigation, he submitted charge sheet under sections 302/201/34 of the I.P.C. against the appellant and the co-accused Bira Bilung.

Framing of Charges:

After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellant and the co-accused under sections 302/34 and 201/34 of the I.P.C. on 18.04.2006 and since the appellant and the co-accused refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.

Prosecution Witnesses & Exhibits:

During the course of trial, in order to prove its case, the prosecution has examined as many as fifteen witnesses.

P.W.1 Bhagabati Bariha is the mother of the deceased who stated to have been informed about the dead body of her son lying in the water of Kulatia Ghat of river Ichha by a boy on the following day of the incident.

P.W.2 Mitrabhanu Ghosi did not support the prosecution case.

P.W.3 Turanga Mahanandia is a witness to the seizure of one stone and a wooden stick of char tree, which were seized from Kulatia Ghat, as per seizure list Ext.1.

P.W.4 Parikhit Kumra is a witness to the seizure of a stone and a wooden lathi from the spot as per seizure list Ext.2.

P.W.5 Mulia Munda is an eye witness to the occurrence who stated that at about 8.00 p.m. in the relevant night, he heard hullah from the house of the appellant and on being called by the wife of co-accused Bira, he went to the house of the appellant and found that the appellant assaulting the deceased by means of a small stick and when the deceased ran to escape, the appellant chased and assaulted the deceased on his chest with that stick and the deceased fell down on the ground. He further stated that the appellant and the co-accused Bira lifted the deceased by tying his body with his (the deceased) shirt and the appellant handed over the pant of the deceased to him. He further stated that he followed them and threw the pant of the deceased on the way and the appellant and the co-accused went towards Ichha river and he left for his house.

P.W.6 Ashok Majhi is a co-villager who stated to have come to know about the dead body of the deceased lying on the river bed on the next day of the occurrence.

P.W.7 Surekha Bilung is the wife of co-accused Bira and she did not support the prosecution case for which she was declared hostile by the prosecution.

P.W.8 Pitambar Bariha is the informant and the elder brother of the deceased who narrated about the incident and supported the prosecution case.

P.W.9 Harsani Bariha is the cousin brother of the deceased. He did not support the prosecution case.

P.W.10 Rajesh Bilung is the nephew of the co-accused Bira who stated that at about 8.00 p.m. in the fateful night, he along with three others had been to witness the marriage of one of their neighbours and hearing hullah from the house of the co-accused Bira, they went there and found the deceased and they lifted the deceased to the house of the appellant. He further stated that at the relevant time, the deceased had consumed KUSUNA and the appellant dealt slaps to the deceased for which the deceased fled away from the spot.

P.W.11 Usatram Gardia is a witness to the seizure of two stones, wooden plank and torn shirt tied in the hands of the deceased from Kulatia ghat of river Ichha and blood stained pant as per seizure list Ext.1 and Ext.2/1 respectively.

P.W.12 Dutika Majhi did not support the prosecution case for which she was declared hostile by the prosecution.

P.W.13 Dhansai Kamar stated that on the date of occurrence, the deceased paid him Rs.5/- (rupees five) to consume Handia and thereafter, the deceased went with the appellant and later on, he learnt that the deceased had been murdered by the appellant.

P.W.14 Dr. Trilochan Barik was the Medicine Specialist attached to District Headquarters Hospital, Sundargarh, who conducted the post mortem examination on the dead body of the deceased on 21.03.2005 and proved his report vide Ext.5.

P.W.15 Prafulla Chandra Mishra was the officer in-charge of Lephripara police station, who is the Investigating Officer of the case.

The prosecution exhibited thirteen documents. Ext.1 is the seizure list in respect of one stone and a wooden stick of Char tree, Ext.2/1 is the seizure list in respect of wearing apparels of the deceased and collection and sample earth and blood stained earth, Ext.3 is the F.I.R., Ext.4 is the inquest report, Ext.5 is the post mortem report, Ext.6 is the dead body challan, Ext.7 is the spot map, Ext.8 is the report of dog master, Ext.9 is the forwarding report of exhibits of S.D.J.M., Sundargarh, Ext.10 is the chemical examination report, Ext.11 is the seizure list in respect of sample earth and sand and scrap blood stained on stones and sample stones, Ext.12 to Ext.12/6 are the photographs and Ext.13 is the negatives of photographs.

Defence Plea:

The defence plea of the appellant is one of complete denial. The defence neither examined any witness nor exhibited any document.

Findings of the Trial Court:

The learned trial Court after analysing the oral as well as documentary evidence on record came to hold that from the evidence of the doctor (P.W.14) and the post-mortem report (Ext.5.), it is clearly established that the death of the deceased was homicidal in nature. The learned trial Court relied upon the evidence of P.W.5 who is the solitary eye witness to the occurrence and held that there is no inherent improbability or unreliable fact in his statement to disbelieve it. The learned trial Court further held that the prosecution has not only established the charge under section 302 of the I.P.C. against the appellant but also the appellant and the co-accused caused the disappearance of evidence with the common intention by lifting the dead body of the deceased to Kulatiha ghat of Ichha river in order to create an impression that some unknown culprits might have committed the murder and accordingly, both the appellant and the co-accused were found guilty under section 201/34 of the I.P.C.

Contentions of the Parties:

Mr. Amitav Tripathy, learned counsel appearing for the appellant contended that even though the homicidal nature of death is not disputed, however, it is very difficult to accept the evidence of P.W.5 as an eye witness to the occurrence inasmuch as there was inordinate delay in disclosure of the occurrence before the I.O. and since no satisfactory explanation has been offered by the prosecution for such delayed disclosure, it would be hazardous to act upon such testimony to convict the appellant. Learned counsel further argued that once the evidence of P.W.5 is discarded, not only the charge under section 302 of the I.P.C., but also under section 201 of the I.P.C. fails. Therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant.

Mr. Arupananda Das, learned Additional Government Advocate appearing for the State of Odisha, on the other hand, supported the impugned judgment and contended that merely because there was delayed disclosure of the occurrence by P.W.5, the same cannot be a ground to discard his evidence particularly when his evidence has not been shaken in cross-examination. He further argued that the post mortem report findings corroborates the ocular version of P.W.5 and therefore, the learned trial Court has rightly found the appellant guilty of the offences charged and thus, the appeal should be dismissed.

Whether the deceased met with a homicidal death’:

Adverting to the contentions raised by the learned counsel for the respective parties, from an analysis of the evidence of the doctor (P.W.14) who conducted the post mortem examination over the dead body of the deceased on 20.03.2005 in the District Headquarters Hospital, Sundargarh, it appears that a number of injuries were noticed on different parts of the body of the deceased. The injuries were bruises, lacerated wounds and there were also haematoma over the right cheek and right scrotum and the injuries have been opined to be sufficient in ordinary course of nature to cause death and the cause of death has been opined to be due to injuries to vital organs like heart, lungs and brain with haemorrhage and shock. P.W.14 proved the post mortem report, which has been marked as Ext.5. Nothing has been brought out in cross-examination of P.W.14 to disbelieve his evidence. Learned counsel for the appellant has also not disputed the nature of death of the deceased to be homicidal as observed by the learned trial Court. After going through the inquest report (Ext.4), the post mortem examination report (Ext.5) and the evidence of the doctor (P.W.14), we are of the view that rightly the learned trial Court has come to the conclusion that the deceased met a homicidal death.

Appreciation of evidence of P.W.5:

The evidence of P.W.5, who is the sole eye witness to the occurrence, indicates that on the day of occurrence at about 5.00 p.m., both the appellant and the deceased went to the house of the appellant and then they again went to the house of the deceased and at about 8.00 p.m., he heard a hulla from the house of the deceased and on being called by the wife of the co-accused, he went to the house of the appellant and found that the appellant was assaulting the deceased holding a small stick and when the deceased ran to escape, the appellant chased him with a ‘Geda’ (wooden stick) and assaulted on his chest for which the deceased fell down on the ground. Then the appellant and the co-accused Bira Bilung lifted the deceased by tying his hand with the shirt of the deceased and the pant was handed over to P.W.5, however, P.W.5 threw the pant on the way. He further stated that both the appellant and the co-accused carried the body of the deceased towards at Ichha river.

In the cross-examination, P.W.5 stated that the appellant was his co-villager and the occurrence night was dark and the appellant, the co-accused and the deceased were intoxicated and his house is at a distance of 200 cubits from the house of the appellant. He further stated that while hearing hullah from the house of the appellant, when he rushed to his house, he noticed the appellant and the co-accused Bira Bilung and the wife of Bira and one Uma were present there. Further, he stated that he did not divulge the incident before anybody except the police.

The occurrence in question stated to have taken place during the intervening night of 19/20th March 2005. However, P.W.5 gave his statement before the police on 28.03.2005 and he has stated that he did not divulge the incident before anybody except police and he has not stated anything as to why he has not divulged the incident before anybody and even though the police reached the village on 20.03.2005 itself and carried out investigation, he did not come forward to give any statement before the police. In absence of any explanation either from P.W.5 or from the side of the prosecution regarding the belated disclosure of the incident by P.W.5 and his silence for eight days, there is every possibility of concoction of the story and setting up P.W.5 as an eye witness to the occurrence just to strengthen the prosecution case. There is nothing on record that both the appellant and the co-accused Bira Bilung were hardened criminals for which P.W.5 would have any apprehension in his mind that there would be risk to his life and for that reason, he would be hesitant to inform the occurrence to the police.

In the case of Gunduchi Patnaik -Vrs.- State of Orissa reported in (1984) SCC OnLine Ori 230, this Court had the occasion to discuss the evidentiary value of the testimony of a witness who disclosed some material facts, having potential to affect the fate of the prosecution case, at a belated stage. While expressing serious apprehension about reliability if such evidence, the Division Bench of this Court had held as follows:

“15. We would next come to the evidence of P.W. 7. Neither P.W. 7 had spoken about the presence of P.Ws. 2 and 6 on the spot nor P.Ws. 2 and 6 had spoken about the presence of P.W. 7 at the time of occurrence. It would be seen from the evidence of the Investigating Officer that this witness was examined in the course of investigation as late as on Aug. 25, 1979. There was no evidence that he had disclosed the occurrence to any one until his belated examination in the course of investigation. If the police officer had come to the scene of occurrence on Aug 12, 1979 and P.W. 7 had witnessed the occurrence, he could have volunteered a statement to the 4 Investigating Officer. No explanation whatsoever had been given by P.W. 7 as to why he did not disclose the occurrence to anyone. He could not have had a sense of fear after the Investigating Police Officer had come to the scene. There was no evidence that any of the accused persons had threatened him at the time of assault on the person of the deceased not to disclose the occurrence to anyone. The learned Sessions Judge had observed that “the  general tendency of the people of the present day is to remain away from  police  interrogation  and  dusty  law courts” one of which was being presided over by him at the trial. No reasonable explanation had been offered by P.W. 7 as to why he made a late disclosure about the occurrence at the stage of investigation. In such circumstances, it would be unsafe and hazardous to accept the evidence of P.W. 7 with regard to the occurrence. In this connection, reference may be made to the observations made and principles laid down in (1974) 3 SCC 562 : AIR 1974 SC 775 : (1974 Cri LJ 510) Babuli v. State of Orissa, (1976) 4 SCC 288 : AIR 1976 SC 2488 : (1976 Cri LJ 1985) State of Orissa v. Brahmananda Nanda, (1980) 1 SCC 131 : AIR 1979 SC 697 : (1979 Cri LJ 640), Panda Nana Kare v. State of Maharashtra and 1983 SCC (Cri) 444 : (1983 Cri LJ 829) Sonia Behera v. State of Orissa. In 1980 Supp SCC 316 : AIR 1980 SC 1750 : (1980 Cri LJ 1269) Bhagwan v. State of Madhya Pradesh, it has been held that it would be unsafe to act on the evidence of witnesses if the delay in their examination in the course of investigation has not been explained.”

In the case of State of Orissa -Vrs.- Sk. Himat reported in (2014) SCC OnLine Ori 322, another Division Bench of this Court, in which one of us (S.K. Sahoo, J.) was a member, it was held that when explanation which the prosecution furnished for explaining the belated disclosure by witnesses is neither convincing nor acceptable, the possibility of concocting a case at a later stage cannot be ruled out. Hence, the belated version, as relied upon by the prosecution therein, was discarded by this Court.

Though mere delay in disclosure of some fact may not mechanically held to be fatal to the prosecution case, but in a case like the one in hand, when the very basis of the prosecution case depends upon the testimony of a single witness, the Court would be more vigilant to see that the version of that witness is free from every kind of suspicions and surmises. Unexplained delay in disclosure of fact in such cases, where any other corroborating evidence is conspicuously absent, can certainly result in collapse of the entire prosecution case. It was imperative for the prosecution to explain the delay to the satisfaction of the judicial conscience of the Court, which has not been done by the prosecution in the present case. Therefore, in view of the foregoing discussions, we find that on account of unexplained delay of disclosure made by P.W.5 before I.O., who is said to be an eye witness to the occurrence, it would be difficult to place reliance on his testimony as he cannot be said to be absolutely reliable and trustworthy witness. Once the evidence of P.W.5 is discarded, the entire bedrock of the prosecution story falls to the ground like a sand-castle. Except the said eye witness account, there is nothing on record against the appellant that he is the perpetrator of the crime and he committed the murder of the deceased or caused disappearance of the evidence and therefore, in the factual scenario, it would be difficult to hold the appellant guilty under the offences charged.

Conclusion:

In the result, the JCRLA is allowed. The impugned judgment and order of conviction of the appellant and the sentence passed thereunder is hereby set aside. The appellant is acquitted of the charges under section 302/201/34 of the I.P.C. The appellant, who is on bail by virtue of the order of this Court, is discharged from liability of bail bonds. The personal bonds and the surety bonds hereby stand cancelled.

The lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.

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