Badashiba Majhi vs State Of Orissa
2021 Latest Caselaw 8668 Ori

                        IN THE HIGH COURT OF ORISSA, CUTTACK

                                       JCRLA No. 43 Of 2018

        From judgment and order dated 25.01.2018 passed by the
        Sessions Judge, Kalahandi, Bhawanipatna in Criminal Trial No.33
        of 2014 (Sessions).
                              --------------------

               Badashiba Majhi                       ........                               Appellant

                                                   -Versus-

               State of Orissa                       ........                               Respondent


                      For Appellant:                    -              Mr. Samvit Mohanty
                                                                       (Amicus Curiae)


                      State of Orissa:                  -              Mr. P.K Mohanty
                                                                       Addl. Standing Counsel
                                            --------------------

        P R E S E N T:


                    THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 19.08.2021

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S.K. SAHOO, J. The appellant Badashiba Majhi faced trial in the Court

of the learned Sessions Judge, Kalahandi, Bhawanipatna in

Criminal Trial No.33 of 2014 (Sessions) for offence punishable

under section 302 of the Indian Penal Code on the accusation

that on 01.01.2014 at about 5.30 p.m., he committed murder of // 2 //

Manasingh Majhi (hereafter 'the deceased') by dealing lathi

blows on his head and back in front of the house of the

informant Beshu Majhi (P.W.1) under Thuamul-Rampur police

station.

The learned trial Court vide impugned judgment and

order dated 25.01.2018 while acquitting the appellant of the

charge under section 302 of the Indian Penal Code found him

guilty under section 304 Part-II of the Indian Penal Code and

sentenced him to undergo rigorous imprisonment for eight years.

2. The prosecution case, as per the F.I.R, in short, is

that on 01.01.2014 at about 5.30 p.m. the appellant Badashiba

Majhi was quarreling with the wife of the informant Benu Majhi

(P.W.1). Since the wife of the appellant had left him and she was

staying at her father's place, the appellant was insisting the wife

of the informant to bring back his wife. At that point of time, the

deceased Mansingh Majhi, who was aged about fifteen years and

son of the informant returned home after grazing the cattle and

he challenged the appellant as to why he was quarreling with his

mother. At this stage, the appellant being enraged assaulted on

the head and back of the deceased with a lathi by giving three to

four blows for which the deceased sustained bleeding injuries

over the head. On 03.01.2014 while the deceased was being

// 3 //

shifted to the hospital in a boat, on the way, he expired. It is

further stated in the first information report that P.W.2 Bhakta

Majhi, P.W.3 Sukru Majhi and P.W.5 Rengtu Majhi are the eye

witnesses to the occurrence and P.W.4 Ravana Naik came to the

spot and seeing the deceased lying on the ground, took him to

the house of the informant. After the death of the deceased, the

F.I.R. was presented on 03.01.2014 at 11.00 p.m. and the

Officer-in-Charge of Th. Rampur police station registered P.S.

Case No.1 dated 03.01.2014 under section 302 of the Indian

Penal Code.

During course of investigation, the Investigating

Officer Pravat Kumar Behera examined the informant, deputed

the constable to guard the dead body of the deceased. He visited

the spot at village Bhitaraganga and prepared the spot map

Ext.7. He also held the inquest over the dead body of the

deceased and prepared inquest report Ext.8. He examined the

inquest witnesses and also seized one wooden thenga from the

spot in presence of the witnesses as per the seizure list Ext.1/1.

The dead body was sent to Medical Officer, C.H.C., Th. Rampur

for post mortem examination through escort constable after

preparation of the dead body challan and P.W.8 Dr. Biswajit

Sahoo who was the Medical Officer, C.H.C., Th. Rampur

// 4 //

conducted post mortem examination over the dead body of the

deceased and found fracture injuries on the frontal bone and left

parietal bone and opined the cause of death to be on account of

cerebral haemorrhage. The doctor further opined that the time

since death was within 48 hours of the post mortem

examination. The query was made by the Investigating Officer to

the Medical Officer regarding possibility of injuries with the lathi

which was seized from the spot and the doctor after examining

the lathi opined that death could be possible by the said lathi and

sent the query report to the Investigating Officer. The appellant

was apprehended on 04.01.2014 and the Investigating Officer

also seized blood stained earth and sample earth from the spot

in presence of the witnesses under seizure list Ext.3. The

appellant was sent for medical examination to the Medical

Officer, C.H.C., Th. Rampur. The wearing apparels of the

appellant were seized under seizure list Ext.5 and his blood

sample and nail clippings collected by the Medical Officer were

also seized. The I.O. seized the wearing apparels of the deceased

under seizure list Ext.2/1. The post mortem report was received

by the Investigating Officer. The seized exhibits were sent for

chemical examination through the Court of learned S.D.J.M.,

Bhawanipatna to the Deputy Director, R.F.S.L., Berhampur and

// 5 //

chemical examination report (Ext.12) was received. Pravat

Kumar Behera, the Officer-in-charge, Th. Rampur police station

handed over the charge of investigation to S.K. Nanda,

Inspector-in-charge who also subsequently handed over the

charge of investigation to Mr. Binod Lakra (P.W.7), the

Inspector-in-charge of Th. Rampur police station who examined

the scribe and the Medical Officer, C.H.C., Th. Rampur and on

completion of investigation, finding prima facie case under

section 302 of the Indian Penal Code against the appellant,

submitted charge sheet.

3. After submission of charge sheet, the case was

committed to the Court of Session where the leaned trial Court

framed the charge under section 302 of the Indian Penal Code

against the appellant to which the appellant pleaded not guilty

and claimed to be tried and accordingly, the sessions trial

procedure was resorted to prosecute him and establish his guilt.

4. In order to establish its case, the prosecution

examined eight witnesses.

P.W.1 Basu Majhi is the informant in the case who is

a post-occurrence witness and stated that he found his son lying

on the road in a pool of blood with injuries on his head and chest

and he was in an unconscious state and on being asked, P.W.2

// 6 //

Bhakta Majhi and P.W.3 Sukru Majhi disclosed before him that

the appellant assaulted the deceased by means of cudgel

(thenga). He further stated that while he was shifting the

deceased to the hospital in a boat at Th. Rampur, the deceased

died.

P.W.2 Bhakta Majhi, P.W.3 Sukru Majhi and P.W.5

Rengtu Majhi are the eye witnesses to the occurrence.

P.W.4 Ravana Naik is the post-occurrence witness

who stated to have shifted the deceased in an injured condition

to his house. He further stated about the death of the deceased

while he was being shifted to the hospital in a boat over the

Indravati reservoir. He further stated about the seizure of blood

stained earth and sample earth as per seizure list Ext.3.

P.W.6 Sumal Bag was the A.S.I. of police attached to

Th. Rampur police station and he stated about the seizure of

blood sample and nail clippings of the appellant under seizure list

Ext.4. He is also a witness to the seizure of wearing apparels of

the appellant.

P.W.7 Binod Lakra was the Inspector-in-charge, Th.

Rampur police station who is one of the Investigating Officer.

// 7 //

P.W.8 Biswajit Sahoo was the Medical Officer, C.H.C.,

Th. Rampur who conducted post mortem examination over the

dead body of the deceased and proved the report (Ext.13)

The prosecution exhibited thirteen numbers of

documents. Exts.1/1, 2/1, 3, 4 and 5 are the seizure lists, Ext.6

is the first information report, Ext.7 is the spot map, Ext.8 is the

inquest report, Ext.9 is the dead body challan, Ext.10 is the

requisition to query, Ext.11 is the copy of forwarding report,

Ext.12 is the chemical examination report and Ext.13 is the post

mortem examination report.

The prosecution also proved four material objects,

M.O.I is the thenga, M.O.II is the cofee colour full shirt, M.O.III

is the blue colour half pant, M.O.IV is the white colour half shirt

and M.O.V is the multi colour banian.

The defence plea of the appellant is one of the

denial.

5. The learned trial Court on analysing the oral and

documentary evidence on record, has been pleased to hold that

on the face of the evidence, there is no shadow of doubt that the

deceased died a homicidal death. It was further held that the eye

witnesses have offered a consistent, coherent and convincing

narration thereof which does not admit of any doubt of their

// 8 //

truthfulness. The medical evidence reveals injuries on the

deceased compatible with the weapon used and thus on the

basis of the evidence of the Investigating Officer (P.W.7), it was

concluded that prosecution has successfully proved that it was

due to successive blows given by the appellant on the deceased

that he succumbed to the injuries and met with his death.

Learned trial Court however held that the incident took place out

of grave and sudden provocation and the appellant is entitled to

the benefit of Exception 4 to Section 300 of the Indian Penal

Code and therefore, the offence would come squarely within

Part-II of 304 of the Indian Penal Code.

6. Mr. Samvit Mohanty, learned Amicus Curiae

appearing for the appellant placed the evidence of the witnesses

and relevant parts of the impugned judgment and contended

that there is inordinate delay of forty hours in lodging the first

information report and the prosecution has not satisfactorily

explained the same which creates a doubt about the authenticity

of the prosecution case. It is further contended that the scribe of

the F.I.R. has not examined and the F.I.R. has not been proved

in accordance with law. The eye witnesses gave the same

version in a parrot like manner. It is his further contention that

the seizure of 'thenga' was also not proved and the chemical

// 9 //

examination report indicates that no bloodstain was noticed on

the 'thenga' which creates doubt as to whether the same was

used as a weapon of offence in the case. Mr. Mohanty while

concluding the argument contended that since the genesis of the

prosecution case is the quarrel between the wife of the informant

and the appellant and the wife of the informant has not been

examined by the prosecution, the prosecution case becomes

doubtful and therefore, benefit of doubt should be extended in

favour of the appellant and if this Court is not inclined to acquit

the appellant of the charge under section 304 Part- II of the

Indian Penal Code, since the appellant has remained in judicial

custody for seven years and seven months and the sentence

imposed by the learned trial Court is rigorous imprisonment for

eight years, the sentence be reduced to the period already

undergone and the appellant be set at liberty.

Mr. P.K. Mohanty, learned Additional Standing

Counsel for the State, on the other hand, supported the

impugned judgment and argued that the distance between the

village of occurrence to the Th.Rampur police station was sixty

kilometers and the occurrence took place in the evening hours on

01.01.2014 and since the deceased was in a critical condition,

there was no scope for the family members of the deceased to

// 10 //

come to the police station to lodge the F.I.R. on the date of

occurrence. The evidence has come on record that an attempt

was made to shift the deceased in an injured condition to the

hospital at Th.Rampur in a boat but on the way, the deceased

died. He further submitted that in the factual scenario, it cannot

be said that the delay in lodging the F.I.R. is that fatal that the

entire prosecution case is to be discarded on that score. It is

further submitted that the informant was an illiterate person and

he has put his L.T.I. on the written report, which was scribed by

somebody and the initial Investigating Officer Pravat Kumar

Behera, who was also the Officer in-charge of Th.Rampur police

station died for which he could not be examined during trial and

that is the reason why the F.I.R. was only proved by P.W.7, who

was acquainted with the handwriting and signature of Pravat

Kumar Behera. He further submitted that the weapon of offence

i.e. the 'thenga' was seized from the spot and the Medical Officer

on examining the said 'thenga' has opined that the injuries

sustained by the deceased could be possible with it and since

there was delay in examination of the 'thenga' by the F.S.L.

Authorities, mere non-finding of bloodstain on the 'thenga'

cannot be a ground to discard the evidence of seizure of 'thenga'

or that it is the weapon of offence. He further submitted that

// 11 //

there is no infirmity or illegality in the impugned judgment and

the learned trial Court has rightly convicted the appellant under

section 304 Part-II of the Indian Penal Code taking into account

that the incident took place out of grave and sudden provocation

and it cannot be said that the sentence imposed was on a higher

side and therefore, the appeal should be dismissed.

7. Adverting to the contention raised by the learned

counsel for the respective parties, let me now first deal with the

contention raised regarding the delay in lodging the first

information report.

Learned counsel for the appellant placed reliance on

a decision of this Court in the case of Gokula Naik -Vrs.- State

of Orissa reported in (2016) 65 Orissa Criminal Reports

999 wherein it is held as follows:

"Law is well settled that delay in lodging the F.I.R. quite often results in embellishment which is a creature of afterthought. Delay creates a dent in the prosecution story and ushers suspicion in concocting such story. Because of delay, the F.I.R. not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of coloured version. There are certain aspects which require the appreciation of the Court when the delay in lodging the F.I.R. is pointed out. One category of such cases is where

// 12 //

the delay has not been explained at all whereas in the other, the prosecution tries to explain the delay. Even in the first category of cases, the Court cannot outright reject the prosecution case. The Court has a duty to see whether there is any material on record which explains the delay in lodging the F.I.R. and whether the delay has got any adverse effect on the prosecution case which has been otherwise established. In the second category of cases, the Court has to see whether the explanation for delay is satisfactory or not. There is no straight jacket formula that if the prosecution fails to explain the delay, the entire prosecution case should be disbelieved in toto and the accused should be acquitted. Permissibility in condoning the delay depends upon the facts and circumstances of each case. The Court must place itself in the position of a victim, an informant or a family member of the deceased and assess the situation under which the F.I.R. has been lodged. Mechanical approach to this vital aspect and blindly following some citations of different Courts without considering the facts and circumstances of that particular case will result in miscarriage of justice."

In the case in hand, the occurrence in question took

place on 01.01.2014 at about 5.30 p.m. and it is specifically

mentioned in the F.I.R. that P.W.4 Ravana Naik shifted the

// 13 //

deceased lying at the spot in an injured condition to the house of

the informant. The informant being examined as P.W.1 stated in

his cross-examination that Bhakta Majhi (P.W.2) and Sukru Majhi

(P.W.3) took his injured son to his house and he kept his injured

son in his house in the night and on the next day dawn, he

shifted his injured son to the hospital. He further stated that

while trying to shift his son Mansingh Majhi to hospital at

Th.Rampur in a boat over the river Dimjodi, on the way his son

died and thereafter, he lodged the F.I.R. scribed by one person

at Th.Rampur police station. From the evidence of P.W.1, it is

apparent that even though the deceased in an injured condition

remained in his house on 01.01.2014 but on the next day i.e. on

02.01.2014 early morning attempt was made to shift him to the

hospital situated at Th. Rampur and he died on that day on the

way to the hospital. If the deceased died while being shifted to

Th. Rampur on 02.01.2014, the F.I.R. could have been lodged on

that day but it was presented at Th. Rampur police station on

03.01.2014 at 11.00 a.m. P.W.1 stated in this cross-examination

that they stayed in village Mahulpatna after the death of the

deceased and on the next day he lodged the F.I.R. Most

peculiarly in the first information report dated 03.01.2014, it is

mentioned as follows:

// 14 //

"Today, while we are shifting the deceased to the hospital in a boat, on the way, my son Mansingh Majhi died".

This statement in the F.I.R. shows that the deceased

was shifted to the hospital on 03.01.2014 and not on 02.01.2014

as stated by P.W.1 in his evidence. It further reveals that the

death of the deceased took place on 03.01.2014. This goes

contrary to the evidence of P.W.1 from whose evidence, it

appears that the death of the deceased took place on

02.01.2014. If the death has taken place on 02.01.2014 on the

way to Th. Rampur, there was any reason for non-lodging the

F.I.R. on that day, the prosecution should have given

satisfactory explanation in that respect, which has not been done

rather it was mentioned in the F.I.R. that death took place on

03.01.2014. Therefore, there are discrepancies as to when the

deceased was shifted to the hospital from his house and when he

died. The contention of the learned counsel for the appellant that

on account of delay in lodging the first information report, there

is possibility of an afterthought story been introduced in the

F.I.R. cannot be lightly brushed aside. No doubt, the eye

witnesses P.Ws.2, 3 and 5 have stated that they have seen the

occurrence and that the appellant assaulted the deceased on his

head by means of cudgel (thenga) and their names are

// 15 //

mentioned in the F.I.R. as eye witnesses to the occurrence but

when there is delay in lodging the F.I.R., there is possibility of

creation of an afterthought story and introduction of eye

witnesses to the occurrence.

8. The eye witnesses P.Ws.2, 3 and 5 have given the

same version in a parrot-like manner and therefore, such

evidence cannot be accepted as gospel truth. The 'thenga'

(M.O.I) which is stated to be weapon of offence was not shown

to any of the eye witnesses by the prosecutor for identification

and M.O.I was only proved by the Investigating Officer (P.W.7),

who has not even seized that weapon. P.W.2 is a witness to the

seizure of cudgel (thenga) as per seizure list Ext.1/1 and though

in the examination in-chief, he has stated that the police seized

the cudgel (thenga) in his presence and in presence of the

witnesses but in the cross-examination, he has stated that he

had not seen as to where from the police brought the cudgel

(thenga). Therefore, it is very difficult to believe that P.W.2 is a

witness to the seizure of 'thenga' from the spot rather it appears

that he has put just his signature on the seizure list Ext.1 on

being asked by the Investigating Officer. The seizure of 'thenga'

was made on 04.01.2014 and the Medical Officer examined the

same on 13.01.2014 and thereafter, the 'thenga' was sent for

// 16 //

chemical analysis to the Deputy Director and Chemical Examiner

to the Government of Odisha, Regional F.S.L., Berhampur on

13.01.2014. No blood was noticed on the 'thenga' as per the

chemical examination report (Ext.12) dated 24.10.2014. The

learned trial Court held that in view of the fact that due to lapse

of time of nine and half months between the date of occurrence

(01.01.2014) and the date of serological examination

(24.10.2014), it is quite probable for the chemical examiner not

to find any blood stain on the seized M.O.I. When the delayed

examination of the weapon of offence was on account of lapse by

the prosecuting agency, it cannot be said that the appellant is

prevented from raising the point regarding the absence of blood

stain on the 'thenga' and that the said weapon is not the weapon

of offence. Therefore, when the eye witnesses to the occurrence

have not proved the weapon of offence by identifying the same

in Court while giving their evidence and the police officer, who

seized the 'thenga' was not examined on account of his death

and such 'thenga' is commonly available in the houses of village

and when the chemical examination report indicates that the

'thenga' was having no blood stain on it, even though it is the

prosecution case that repeated blows were given to the deceased

by 'thenga' for which the deceased sustained bleeding injuries, it

// 17 //

creates doubt about the authenticity of the prosecution case that

M.O.I is the weapon of offence.

9. Admittedly, the scribe of the F.I.R. has not been

examined. P.W.1, the informant is unable to say as to who the

scribe of the F.I.R. was. Though P.W.7 has stated that on

01.04.2014, he examined the scribe but the prosecution has not

offered any explanation as to why the scribe was not examined

during trial. Of course, in every case, merely because the scribe

is not examined, it cannot be said that the lodging of the F.I.R. is

a suspicious feature or fatal for the prosecution but in the case in

hand, when there is no evidence as to who scribed it and neither

the informant nor the prosecution has adduced any evidence in

that respect and the Investigating Officer of the case, who

received the F.I.R. could not be examined on account of his

death, in such a scenario, non-examination of the scribe cannot

be taken lightly, particularly, when false statements seem to

have been made in the F.I.R. that the deceased was shifted to

the hospital on 03.01.2014 and the death of the deceased also

took place on 03.01.2014.

10. In view of the foregoing discussions, when the

prosecution has not offered any satisfactory explanation

regarding the inordinate delay in lodging of the F.I.R. and the

// 18 //

prosecution has presented two different dates relating to the

shifting the deceased to the hospital and the death of the

deceased, the scribe of the F.I.R. has not examined, the seized

'thenga' has not been proved to be the weapon of offence and

when the eye witnesses have deposed in a parrot like manner

and there is possibility of introduction of eye witnesses by the

prosecution in view of the delay in lodging of the F.I.R., I am of

the humble view that it is a fit case where benefit of doubt

should be extended in favour of the appellant.

11. Accordingly, the Jail Criminal Appeal is allowed. The

impugned judgment and order of conviction of the appellant and

the sentence passed thereunder is hereby set aside and the

appellant is acquitted of the charge under section 304 Part-II of

the Indian Penal Code. He shall be set at liberty forthwith, if his

detention is not otherwise required in any other case.

Lower Court Records with a copy of this judgment be

sent down to the learned trial Court forthwith for information and

necessary action.

Before parting with the case, I would like to put on

record my appreciation to Mr. Samvit Mohanty, the learned

Amicus Curiae for rendering his valuable help and assistance

towards arriving at the decision above mentioned. The learned

// 19 //

Amicus Curiae shall be entitled to his professional fees which is

fixed at Rs.7,500/- (rupees seven thousand five hundred only).

................................

S.K. Sahoo, J.

Orissa High Court, Cuttack The 19th August 2021/Pravakar/RKMishra