IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.71 of 2004
An appeal under section 374 Cr.P.C. from the judgment and
order dated 09.06.2004 passed by the Sessions Judge,
Sundargarh in Sessions Trial No.247 of 2000.
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Sudarsan Barla ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Subash Ch. Pradhan
For Respondent: - Smt. Saswata Patnaik
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE SIBO SANKAR MISHRA
--------------------------------------------------------------------------------------- -------------------------------- Date of Hearing: 15.09.2023 Date of Judgment: 26.09.2023
--------------------------------------------------------------------------------------- -------------------------------- S.K. Sahoo, J. The appellant Sudarsan Barla along with his younger brother Nirmal Barla faced trial in the Court of learned Sessions Judge, Sundargarh in Sessions Trial No.247 of 2000 for commission of offence under sections 302/34 of the Indian Penal // 2 // Code (hereinafter >I.P.C.?) on the accusation that on 18.10.1999 at about 6.00 a.m. in the courtyard of the appellant in village Rengalbahal, they committed murder by intentionally causing death of their co-villager Susil Ekka (hereinafter >the deceased) in furtherance of their common intention.
The learned trial Court vide impugned judgment and order dated 09.06.2004 has been pleased to hold the co-accused Nirmal Barla not guilty of the offence charged and acquitted him. However, the appellant was found guilty under section 302 of the I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for one year. Prosecution Case:
2. The prosecution case, as per the first information report (hereinafter >F.I.R.?), lodged by Sarjus Ekka (P.W.1) before the Inspector in-charge of Rajgangpur police station on 18.10.1999 is that during the month of March in the year 1999, the appellant created disturbance with the family of the informant (P.W.1) for which a case was instituted in Rajgangpur police station. On 17.10.1999, Nuakhai festival was being observed in the village of the informant and at about 10 O? Clock in the night, song and dance was going on in a field situated Page 2 of 24 // 3 // near the church and there the appellant Sudarsan Barla and his brother Nirmal Barla created disturbance with the informant (P.W.1) and his friend Sushil Barla (P.W.8) and they torn the banyan (ganji) of P.W.1 as well as P.W.8. The other persons present in that festival sent back the appellant as well as his brother Nirmal Barla to their house. After the song and dance was over, the informant (P.W.1) returned back home and intimated his brother (deceased) and his family members about the same. On the next day i.e. on 18.10.1999 at about 6 a.m., the deceased and Sushil Barla (P.W.8) came to the house of the appellant and confronted them about the last night?s disturbance. All of a sudden, the appellant brought one iron strip (luha patia) and assaulted the deceased on his head as a result of which the deceased sustained bleeding injury on the head and fell down on the ground. The co-accused Nirmal Barla (acquitted) also assaulted the deceased by means of a lathi as a result of which the deceased died at the spot. After seeing the occurrence, P.W.8 became panic and rushed to the house of the informant (P.W.1) and told him about the commission of murder of the deceased by the appellant and co-accused Nirmal Barla. Hearing such incident, the informant and his family members came near the spot and found the deceased was lying dead with bleeding injury in the front courtyard of the appellant. The Page 3 of 24 // 4 // informant after asking his family members to guard the dead body of the deceased went to meet the ward member Bisil Kindo (P.W.6) and informed him about the occurrence. It is stated that P.W.8, who was present with the deceased had seen the occurrence.
The oral report of P.W.1 was reduced to writing by P.W.12 Ajim Khan, A.S.I. of Police, Lanjiberena Outpost on 18.10.1999 and then the written report was sent to the Inspector in-charge of Rajgangpur police station for formal registration through constable and P.W.12 himself took up investigation. During course of investigation, P.W.12 examined the informant, visited the spot, held inquest over the dead body, prepared the inquest report (Ext.2) and the dead body was sent to Rajgangpur Government Hospital for post mortem examination.
On receipt of the written report, the Inspector in- charge of Rajgangpur police station Sudarsan Sethi (P.W.10) registered Rajgangpur P.S. Case No.166 dated 18.10.1999 under sections 302/34 of the I.P.C. against the appellant and his younger brother Nirmal Barla. P.W.10 took up investigation of the case, visited the spot and he seized blood stained iron strip at the spot vide seizure list Ext.3/1, seized one lathi near the Page 4 of 24 // 5 // spot as per seizure list Ext.4/1 and sample earth and blood stained earth under seizure list Ext.5/1. He seized some brick pieces at the spot under seizure list Ext.6/1. The appellant was arrested and his wearing apparels were seized as per seizure list Ext.7/1. Similarly, the wearing apparels of the co-accused Nirmal Barla were also seized as per seizure list Ext.8/1. The wearing apparels of the deceased were seized as per seizure list Ext.11. The appellant and the co-accused were forwarded to Court on 19.10.1999 after medical examination. The I.O. seized blood sample and nail clippings of the appellant and co-accused on 20.10.1999 on production by the constable. The weapons of offence i.e. iron strip and lathi seized were forwarded to the Medical Officer to examine the same and to opine whether the injuries found on the deceased could be possible by such weapon. The material objects were forwarded to the Deputy Director, R.F.S.L., Sambalpur for chemical examination and on completion of investigation, on 14.02.2000, the I.O. (P.W.10) submitted charge sheet against the appellant and his brother Nirmal Barla under sections 302/34 of the I.P.C. Framing of Charges:
3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due Page 5 of 24 // 6 // committal procedure where the learned trial Court framed the charges against the appellant and the co-accused on 29.06.2001 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 & Documents Exhibited By Prosecution:
4. During the course of trial, in order to prove its case, the prosecution has examined as many as twelve witnesses.
P.W.1 Sarjus Ekka is the informant and the elder brother of the deceased. He stated about the incident that took place on 17.10.1999 night at the place of song and dance. He further stated to have rushed to the spot on 18.10.1999 after hearing about the incident from P.W.8 and found the deceased lying dead with bleeding injuries on the front courtyard of the appellant.
P.W.2 Jaiswani Barla is the younger sister of the appellant. She stated that hearing hue and cry, she came out of the house and found the deceased was lying dead in front of court yard of her house.
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// 7 // P.W.3 Ananda Barla did not support the prosecution case for which he was declared hostile by the prosecution.
P.W.4 Jilapatras Ekka is the elder brother of the deceased and also a witness to the inquest report (Ext.2).
P.W.5 Srimati Ekka is the elder sister of the deceased. She stated that Sushil Barla (P.W.8) disclosed before her that the appellant and the co-accused Nirmal Barla committed murder of the deceased.
P.W.6 Basil Kindo was the ward member and also a witness to the seizure but he stated that he had no knowledge about the contents of the seizure lists in which he put his signatures. He further stated that police held inquest over the dead body in his presence and he mentioned in the inquest report (Ext.2) that the deceased died as a result of the bleeding injury which he sustained due to assault made by the appellant by means of a piece of iron strip.
P.W.7 Ashok Dehury was the constable attached to Ranjangpur police station and also a witness to the seizure list vide Ext.9 and Ext.10.
P.W.8 Sushil Barla is a co-villager of the deceased and also an eye witness to the occurrence. He supported the prosecution case.
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// 8 // P.W.9 Basanta Kumar Panda was the constable attached to Rajgangpur police station and also a witness to the seizure vide Ext.9, Ext.10 and Ext.11.
P.W.10 Sudarsan Sethi was the Inspector in-charge of Ranjangpur police station, who is the Investigating Officer of the case.
P.W.11 Dr. Rita Maxima Barla was the Medical Officer attached to Rajgangpur Government Hospital, who conducted the post mortem examination on the dead body of the deceased on 18.10.1999 and proved her report vide Ext.16. She also examined the appellant and the co-accused Nirmal Barla and proved her reports vide Ext.12 and Ext.13 respectively.
P.W.12 Ajim Khan was the A.S.I. attached to Lanjiberena Outpost, who reduced the oral report of P.W.1 into writing which was treated as F.I.R. and he is the first Investigating Officer of the case.
The prosecution exhibited eighteen documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Ext.3/1, Ext.4/1, Ext.5/1, Ext.6/1, Ext.7/1, Ext.8/1, Ext.9, Ext.10 and Ext.11 are the seizure lists, Ext.12 is the written requisition of the I.O., Ext.13 is the written requisition of the P.W.10, Ext.14 is the office copy of the forwarding letter, Ext.15 is the chemical Page 8 of 24 // 9 // examination report, Ext.16 is the post mortem report, Ext.17 is the command certificate and Ext.18 is the dead body challan. Defence Plea, Defence Witness & Document Exhibited By Defence:
5. The defence plea of the appellant as per the accused statement recorded under section 313 of Cr.P.C. is that he was serving as a security guard in the Proton Steel Limited, Rajgangpur and he was occasionally coming to the village. Prior to the occurrence, P.W.1 and the deceased had assaulted the mother of the appellant making aspersion on her as >witch?. In that connection, a police case was instituted against P.W.1 and the deceased for which they bore grudge against the appellant and they were bossing around the village. On 17.10.1999, after finishing his dinner, when the appellant was proceeding towards Rajgangpur for his duty, on the way where the song and dance festival was going on, he was assaulted by P.W.1 and P.W.8 for which he returned back home. On the next day, P.W.8 and the deceased came to the house of the appellant holding brickbat and bhujali. The deceased tried to assault the brother of the appellant with the brick which hit on his shoulder. When the appellant tried to forbade the deceased, the latter chased the appellant to kill him. For self defence, the appellant picked up an Page 9 of 24 // 10 // iron strip and assaulted the deceased with it for which he fell down and died and then the appellant sent his uncle (P.W.3) to report the matter in the police station. P.W.8 ran away from the spot holding bhujali.
One Joseph Xaxa was examined on behalf of the defence as D.W.1. He stated about the occurrence which took place on the previous day night of occurrence.
The defence exhibited one document i.e. Ext.A, which is the certified copy of the charge sheet in G.R. Case No.63 of 1999.
Findings of the Trial Court:
6. The learned trial Court after analysing the evidence of the doctor, the post mortem report findings came to hold that the death of the deceased was homicidal in nature. It was further held that since the co-accused Nirmal Barla had sustained simple injury on his left shoulder and there is no material on record to come to the conclusion that there was any reasonable cause to apprehend that the death or grievous hurt would otherwise be the consequence of any assault on him, the right of private defence is not available and the defence has not discharged the onus that was upon him. It was further held that the prosecution has failed to prove the pre-concert or previous Page 10 of 24 // 11 // meeting of mind between Sudarsan Barla and Nirmal Barla and therefore, the co-accused Nirmal Barla cannot be saddled with vicarious criminal liability under section 34 of the I.P.C. However, it was held that the prosecution has proved beyond all reasonable doubt that the appellant Sudarsan Barla had the requisite intention to commit murder of the deceased. The learned trial Court did not accept the contention raised by the learned defence counsel that there had been suppression of original F.I.R. Consequently, it was held that the appellant committed murder of the deceased by assaulting him with the iron plate on 18.10.1999 at about 6.00 a.m. at village Rengalbahal and accordingly, found him guilty under section 302 of the I.P.C.
Contentions of the Parties:
7. Mr. Subash Chandra Pradhan, learned counsel appearing for the appellant contended that lodging of the F.I.R. at the Lanjiberena Outpost as stated by the informant (P.W.1) is a doubtful feature. The original report which was lodged at the spot by P.W.1 has been suppressed. The injury sustained by the co-accused Nirmal Barla has not been explained and the deceased was the aggressor and he came to the house of appellant, entered into his front courtyard and not only Page 11 of 24 // 12 // challenged the appellant but also assaulted the co-accused Nirmal Barla by brick and therefore, the single blow given to the deceased by the appellant with the iron strip, even if taken into account, can be said to be within right of private defence of the appellant and since the evidence of the solitary eye witness cannot be said to be absolutely reliable, it is a fit case where benefit of doubt should be extended in favour of the appellant.
Smt. Saswata Patnaik, learned Additional Government Advocate appearing for the State of Odisha, on the other hand, supported the impugned judgment and contended that there is no dispute that the first information report in this case was the oral report of P.W.1 which was reduced to writing by P.W.12, A.S.I. of Police, Lanjiberena Outpost though there is discrepancy as to where such oral report was given i.e. either at the spot in village Alanda Rengabahal or at Lanjibehera Outpost, but the same cannot be a ground to hold that the F.I.R. has been suppressed. The learned counsel further argued that nature of injury sustained by the co-accused Nirmal Barla is not so serious that the prosecution is required to give explanation about the same in absence of which it can be held that the prosecution has suppressed the genesis of the case. It is further argued that the co-accused was acquitted as no corresponding injury to his Page 12 of 24 // 13 // assault was noticed on the person of the deceased, but when the ocular version of P.W.8 relating to the assault made by the appellant with an iron strip on the head of the deceased is corroborated by the medical evidence, it cannot be said that the learned trial Court committed any illegality in convicting the appellant.
Whether the deceased met with a homicidal death:
8. The doctor (P.W.11), who conducted post mortem examination over the dead body of the deceased found one lacerated injury of size 18= x ½= x total thickness of the skull, situated over the right parietal region and the injury started 1= above the right eye-brow and extended up to the occipital region. On dissection, fracture of the right frontal bone, right parietal bone and the occupit was found. Laceration of meninges and laceration of brain were noticed. The doctor opined that the cause of death was due to injury to the vital organ like brain leading to haemorrhage and shock. He further stated that the injury found on the dead body of the deceased was sufficient to cause his death in ordinary course and he proved the post mortem examination report i.e. Ext.16.
The finding of the learned trial Court that it was a homicidal death has not been challenged by the learned counsel Page 13 of 24 // 14 // for the appellant. After going through the inquest report (Ext.2), the evidence of the doctor (P.W.11) and the post mortem report (Ext.16), we are also of the considered view that the learned trial Court has rightly came to the conclusion that it was a case of homicidal death.
Analysis of the evidence of eye witness (P.W.8):
9. Adverting to the contentions raised by the learned counsel for the respective parties and after going through the evidence on record, we find that there is no dispute that the star witness on behalf of the prosecution is P.W.8 Sushil Barla.
Law is well settled that in order to act upon the testimony of a solitary witness, the evidence must be clear, cogent, truthful, reliable and aboveboard.
P.W.8 has stated that on 17.10.1999, while Nuakhai festival was going on and song and dance were being performed in the village near a church, at about 10.00 p.m., the co-accused Nirmal Barla caught hold of his collar and torn it and when P.W.1 intervened in the matter, the said co-accused also torn the shirt of P.W.1. Since the villagers gathered, the accused persons left the spot. He has further stated that on the next day morning at about 6.00 a.m., he himself and the deceased came to the house of the appellant and the co-accused and asked them as to why Page 14 of 24 // 15 // their shirts were torn during the previous night but all of a sudden, the appellant assaulted the deceased on his head by means of an iron blade which hit on his head and the deceased sustained bleeding injury and fell down. He further stated that the co-accused Nirmal Barla also assaulted the deceased by means of a lathi and seeing the incident, he became panic and left the spot and came to P.W.1, the younger brother of the deceased and narrated the entire incident before him and then he along with the family members of the deceased came near the spot and found that the deceased was lying in the front courtyard of the house of the appellant and the co-accused.
P.W.8 has stated that not only the appellant assaulted on the head of the deceased by means of an iron blade but also the co-accused Nirmal Barla assaulted the deceased by means of a lathi. Of course, he has not stated which part of the body of the deceased, the co-accused assaulted. Since only one external injury was noticed on the person of the deceased, the learned trial Court did not place any reliance on the prosecution case regarding the involvement of the co-accused Nirmal Barla and accordingly, acquitted him. Thus the evidence of P.W.8 regarding the assault made by the co-accused Nirmal Barla on the deceased is a doubtful feature.
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// 16 // P.W.8 was specifically asked by the learned defence counsel about the injury sustained by the co-accused Nirmal Barla on his left shoulder at the time of occurrence, but he pleaded ignorance. P.W.11 examined the co-accused Nirmal Barla on 18.10.1999 at about 01.45 p.m. on police requisition and noticed one abrasion on the left side of the neck and the injury was opined to be simple in nature. The doctor specifically stated that the injury mentioned in Ext.13/1 i.e. the injury report of co-accused Nirmal Barla could be possible by a brickbat which is the defence plea. In the case of Lakshmi Singh -Vrs.- State of Bihar reported in A.I.R. 1976 S.C. 2263, it is held that the witnesses, who have denied the presence of injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable. It was further held that non-explanation of injuries affects the prosecution case and the said principle would not apply where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
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// 17 // In the case in hand, the injury sustained by the co- accused Nirmal Barla was not minor and superficial but it was on the vital part of the body like neck. The deceased and P.W.8 seems to be aggressors and on the fateful day, they came to the house of the appellant in the early morning. P.W.8 has stated that the doors of both the accused persons were closed and when they called their names, they came out of their house opening their respective doors. He has admitted that a police case was instituted against him, the deceased and others on the allegation that they had assaulted the mother of the appellant making aspersion on her to be a >witch? and that there was previous enmity between them and the appellant because of such criminal case. P.W.8 disclosed about the assault before P.W.1, the younger brother of the deceased and P.W.1 in turn reported the matter before P.W.12, the A.S.I. of Police. P.W.12 stated that P.W.1 reported before him that both the accused assaulted the deceased by means of iron strip and killed him. Thus, nothing was stated by P.W.1 before P.W.12 that the co- accused Nirmal Barla assaulted the deceased by bamboo lathi. Therefore, not only the evidence of P.W.8 relating to the occurrence that took place in the morning hours on 18.10.1999 is discrepant from what P.W.1 has disclosed before P.W.12 when the latter arrived in the village immediately after the occurrence Page 17 of 24 // 18 // was over, but also his evidence relating to the involvement of co- accused Nirmal Barla in the assault of the deceased is found to be not acceptable and moreover, he was having previous enmity with the appellant and has suppressed the injury caused to the co-accused Nirmal Barla and therefore, he cannot be said to be an absolutely reliable and truthful witness, on whom implicit reliance can be placed for convicting the appellant. If the witness is neither wholly reliable nor wholly unreliable, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. (Ref.: Vadivelu Thevar -Vrs.- The State of Madras reported in (1957) 1 Supreme Court Reports 981) Suppression of the Original First Information Report:
10. According to the eye witness (P.W.8), he intimated about the occurrence to P.W.1, who is the informant in the case and P.W.1 has stated that he along with the ward member (P.W.6) came to the Lanjiberena Outpost and reported about the occurrence orally and the police officer reduced his report into writing, read over and explained it to him and finding it to be correct, he put his signature on it and he proved the F.I.R. marked as Ext.1. However, the evidence of P.W.6 is totally silent Page 18 of 24 // 19 // that he accompanied P.W.1 to Lanjiberena Outpost for lodging the first information report.
P.W.12, the A.S.I. of Lanjiberena Outpost, on the other hand, stated that on 18.10.1999 at about 7.30 a.m., he was in the Lanjiberena market where he heard about the murder and mentioned the fact in Lanjiberena station diary entry bearing no.263 dated 18.10.1999 and proceeded to the case village and when he arrived at the village Alanda Rengabahal, there P.W.1 orally reported before him about the occurrence which he reduced into writing, read over and explained the same to P.W.1 and after finding the contents to be correct, P.W.1 signed the written report. P.W.12 specifically denied the suggestion given by the learned defence counsel that on the date of occurrence, P.W.1 and the ward member (P.W.6) had appeared before him at Lanjiberena Outpost and orally reported about the occurrence which he reduced into writing and on such report, both of them signed.
Therefore, there are discrepancies in the statements of witnesses P.W.1 and P.W.12 regarding the place of lodging of the first information report. Whereas P.W.12 stated that the oral report was reduced into writing by him at the spot i.e. at village Alanda Rengabahal, but the informant (P.W.1) has stated that he Page 19 of 24 // 20 // along with P.W.6 went to Lanjiberena Outpost and orally reported the matter which was reduced into writing and treated as F.I.R. As already stated, the evidence of P.W.6 is totally silent that he accompanied P.W.1 to the Outpost for lodging of the F.I.R. If Ext.1 is the report, which according to the informant (P.W.1), was lodged at the Outpost then what happened to the report which was orally given to P.W.12 at the spot by P.W.1 and reduced into writing. Since the report which was given at the spot was the original report, it can be said that the original first information report has been suppressed by the prosecution.
P.W.12 has stated that when he reached at village Alanda Rengabahal, P.W.1 orally reported before him that on 17.10.1999, while they were observing Nuakhai festival, the appellant Sudarsan Barla and the deceased quarrelled and they were separated and the deceased was sent to his house. On a plain reading of the first information report (Ext.1), it would appear that it is totally silent that on 17.10.1999 during the observance of the Nuakhai festival, the deceased was at all present at that place rather it indicates that whatever dispute arose, the same was between the appellant Sudarsan Barla and his brother co-accused Nirmal Barla on the one hand and the informant (P.W.1) and his friend Sushil Barla (P.W.8) on the Page 20 of 24 // 21 // other hand. This pre-supposes that the earlier information which was given at the spot and reduced into writing where a different picture about the incident dated 17.10.1999 was given, has been suppressed. Similarly, P.W.12 further stated that P.W.1 also reported before him that on the next day, the deceased and P.W.8 went to the house of the appellant Sudarsan Barla and the co-accused Nirmal Barla and there they quarrelled with the deceased and assaulted the deceased by means of iron strip and killed him. Thus, according to P.W.12, no information was given before him by P.W.1 that the co-accused Nirmal Barla at all used any lathi in assaulting the deceased. Since the assault by the co- accused Nirmal Barla with a lathi on the deceased has been mentioned in Ext.1, it pre-supposes that the original report which was given at the spot wherein no such information was there about the specific role played by co-accused Nirmal Barla in assaulting the deceased by lathi, has been suppressed.
Another important feature of the case is that the first information report was shown to have been received on 18.10.1999 at 9.00 a.m. at the spot and it was received at Rajgangpur police station on 18.10.1999 at 10.30 a.m. and accordingly, Rajgangpur P.S. Case No.166 dated 18.10.1999 was registered under sections 302/34 of the I.P.C. and thus, prior to Page 21 of 24 // 22 // 10.30 a.m., there was no information before anybody that Rajgangpur P.S. Case No.166 dated 18.10.1999 was registered on the report of P.W.1. P.W.12 has stated that when he issued the command certificate on 18.10.1999 at 8.00 a.m., he mentioned the P.S. Case No.166 of 1999. If by 8.00 a.m., the P.S. Case has not been registered, how the same was mentioned in the command certificate. It pre-supposes that either the case was registered before 8.00 a.m. at Rajgangpur police station on the basis of any report and P.S. Case number was available when the command certificate was prepared or in the command certificate, the P.S. case number has been subsequently incorporated. The prosecution has not offered any explanation in that respect.
In the case of Balgopal Panda and Others -Vrs.- State reported in Vol.70 (1990) Cuttack Law Times 1, it was held as follows:-
<12. In consideration of the aforesaid facts and evidence, we do not hesitate to hold that the true first report submitted by P.W.1 was suppressed by the prosecution. Had it been treated as FIR and produced during trial, the story narrated in it would have been unfavourable to the prosecution. Therefore, while it was managed that it would not See the Page 22 of 24 // 23 // light of the day, a first information which suited the prosecution, but not revealing the true incident, was brought into being. In such circumstances, it would be reasonable to infer that the first information report (Ext. 1/1) contained a tainted, embellished and exaggerated story, but not the true one.= In view of the foregoing discussions, we find sufficient force in the argument advanced by the learned counsel for the appellant that the original first information report has been suppressed. Had the report prepared by P.W.12 on the first version of P.W.1 at the spot been treated as F.I.R., it might have been unfavourable to the prosecution for which it was suppressed and the second report given by P.W.1 at the Outpost was treated as F.I.R. which makes the prosecution case suspicious.
Conclusion:
11. In view of the foregoing discussions, analysing the evidence on record meticulously, dispassionately and objectively, we are of the humble view that when the original first information report seems to have been suppressed and the evidence of the solitary eye witness (P.W.8) cannot be said to be clear, cogent, trustworthy and above board and when a part of the prosecution case relating to the involvement of the co- Page 23 of 24
// 24 // accused Nirmal Barla in the assault of the deceased has been disbelieved by the learned trial Court, it would be risky to act upon the version of P.W.8 to convict the appellant. We are of the view that it cannot be said that the prosecution has successfully established its case beyond all reasonable doubt against the appellant.
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 charge under section 302 of the I.P.C. The appellant, who is on bail by virtue of the order of this Court, is discharged from liability of his bail bonds. The personal bonds and the surety bonds hereby stand cancelled.
The trial Court records with a copy of this judgment be sent down to the Court concerned forthwith for information.
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S.K. Sahoo, J.
S.S. Mishra, J. I agree.
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S.S. Mishra, J.
Orissa High Court, Cuttack
The 26th September 2023/RKMishra
Signature Not Verified
Digitally Signed
Signed by: RABINDRA KUMAR MISHRA
Reason: Authentication Page 24 of 24
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 26-Sep-2023 14:25:25