Orissa High Court
Bisu @ Biswanath Mallik vs State Of Odisha on 3 March, 2021
HIGH COURT OF ORISSA: CUTTACK.
JCRLA No.1 of 2011
From the judgment of conviction and order of sentence dated 08.11.2010
passed by Shri M.K. Panda, learned District and Sessions Judge,
Ganjam-Gajapati, Berhampur in Sessions Trial No.84 of 2007.
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Bisu @ Biswanath Mallik ...... Appellant.
- Versus-
State of Odisha ...... Respondent.
For Appellant : M/s. Bijayalaxmi Tripathy,
Miss. Binapani Tripathy and
Miss. Nandini Tripathy.
(Amicus Curiae)
For Respondent : Mr. G.N. Rout,
Additional Standing Counsel.
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PRESENT:
SHRI JUSTICE S. K. MISHRA
AND
MISS JUSTICE SAVITRI RATHO
__________________________________________________________
Date of Hearing and Judgment- 03.03.2021
S. K. MISHRA, J. In this appeal, the sole Appellant- Bisu @ Biswanath
Mallik assails his conviction under Section 302 of the Indian Penal
Code, 1860 (hereinafter referred to as "the Penal Code" for brevity) and
sentence to undergo imprisonment for life recorded by the learned
District and Sessions Judge, Ganjam- Gajapati, Berhampur in
Sessions Trial No.84 of 2007, as per the judgment of conviction
and order of sentence dated 08.11.2010.
02. The case of the prosecution, in short, is that on 19.02.1999
at about 7.00 P.M. while the deceased Uchhaba Naik was talking with
one Gopala Mallik in front of the house of Uchhaba Mallik, all on a
sudden, the sole Appellant- Bisu @ Biswanath Mallik reached the spot
being armed with a knife and stabbed the deceased with that knife on the
left side of his chest on account of previous animosity and grudge. On
such assault, the deceased ran towards the house of Barika Mallik
shouting "Basu stabbed me" and collapsed on the verandah of the house
of Barika Mallik. The deceased was shifted to Pudamari Government
Hospital where he was declared dead by the Doctor. The Appellant-
Basu Mallik fled away from the spot immediately after the occurrence.
Though some of the villagers chased, they could not trace the Appellant.
However, the blood stained knife was discovered by the villagers which
was produced before the Police. The informant lodged F.I.R. before the
Police and on completion of investigation, the Police submitted charge-
sheet against the sole Appellant.
03. Defence took the plea of complete denial of the charge.
04. Prosecution examined as many as sixteen witnesses in
order to prove its case. P.W.3-Ujjwala Mallik and P.W.4-Uchhaba
Mallik are presented as witnesses to the occurrence. Learned Additional
Standing Counsel submits that P.W.11-Gopala Mallik is also an eye-
witness. P.W.14-Dr. Padma Charan Sahoo has conducted post-mortem
examination over the dead body of the deceased as well as examined the
weapon of offence i.e. the knife and rendered his opinion. Ext.7 is the
post-mortem report. Ext.8 is the opinion of the Doctor on examination of
weapon of offence. Rest of the witnesses are formal witnesses. P.W.16-
Gopal Krushna Padhi took up the investigation of the case and handed
over the charge of the same to Amaresh Mohapatra, the S.I. of Police,
Pattapur Police Station.
05. Miss. Bijayalaxmi Tripathy, learned Amicus Curiae
appearing for the sole Appellant, in course of hearing of the appeal,
does not dispute the findings recorded by the learned District and
Sessions Judge, Ganjam-Gajapati, Berhampur to the effect that the death
of the deceased was homicidal in nature. However, she strenuously
contends that the prosecution has failed to prove its case beyond all
reasonable doubts.
06. Mr. G.N. Rout, learned Additional Standing Counsel for the
State, however, submits that the learned District and Sessions
Judge, Ganjam-Gajapati, Berhampur on a perspicacious view of the
evidences available on record, has come to a just and proper conclusion.
He, therefore, urges the Court not to disturb the findings on the
conviction and sentence recorded against the appellant.
07. Evidences of P.Ws.3, 4 and 11 are of pivotal importance in
this case. P.W.3-Ujjawala Mallik has stated that eight to nine years back
around 7.00 P.M. while he was sitting on the front verandah of his
house, Gopala Mallik and deceased- Uchhaba Naik were talking. At that
time, the accused all on a sudden, came and stabbed Uchhaba Naik on
the left side chest with a knife which led to his death. In his cross-
examination, he has stated that the occurrence took place in Uppar Sahi
of their village but, he could not exactly say near whose house such
occurrence took place. He further stated that there was no street light in
their village at the time of occurrence. When the occurrence took place,
night had already set in.
The defence argument that since it was night, it was not
possible on the part of P.W.3 to identify the Appellant to be the assailant
of the deceased, is of no avail in this case, as we are of the opinion that
the parties belong to one village and all of them are well acquainted each
other. So, there is no difficulty in identifying the Appellant even after
the night had set in. Moreover, in the cross- examination of P.W.3
nothing substantial has been brought out to show that he could not have
identified the Appellant. Not even a suggestion was given to him on this
aspect.
08. P.W.4-Uchhaba Mallik has stated in his cross-examination
that he had not seen the accused Biswanath Mallik was giving knife
blow to Uchhaba Naik. He further stated that by the time he arrived at
the spot he found the lady members of the house of Uchhaba Naik to
have assembled at the spot and none else were there. So, he is not an
eye-witness to the occurrence.
09. P.W.11-Gopala Mallik has stated that he requested Uchhaba
Mallik to give him money for purchasing rice as the said Uchhaba had
brought money from Godabari Das. Uchhaba Naik, the deceased came
from his behind and asked him as to what money he was asking for. The
deceased and this witness were Sangata Maitra (sworn friends). This
witness replied Uchaba that he was demanding his wages from Uchhaba
Mallik. This witness further stated that while he was discussing with
Uchhaba Naik in front of the house of Uchhaba Mallik, the accused, was
then sitting on the verandah of his house. All on a sudden, the Appellant
rushed towards Uchhaba Naik and within a twinkling of an eye dealt
a blow to the left side chest of Uchhaba Naik with a knife and when
that ensued tussle between the accused and Uchhaba Naik, the accused
Bisu Mallik pulled that knife, which he had pierced into the chest of
Uchhaba Naik and escaped from the spot. On seeing that, he raised
hullah and thereafter, the post-occurrence incident has been narrated.
This witness has been cross-examined at length. But nothing substantial
has been brought from his mouth.
10. Evidences of both the eye-witnesses i.e. P.Ws.3 and 11 find
corroboration from the evidence of Dr. Padma Charan Sahoo (P.W.14),
who on post-mortem examination of the dead body of the deceased on
20.02.1999, found one triangular shape stab wound of size 3 cm. x 1.5
cm x 10 cm. deep of which the larger arm 3 cm. each to shorter arm 1
cm. The injury was horizontally present on left side front of chest with
tip pointing medially placed 4.5 cm. below to 2.5 cm. lateral to medial
end of left clavicle. He also found one incised wound of size 2 cm. x 0.5
cm. x skin deep present on medial border of right scapula and 4 cm.
below its upper border.
11. Learned counsel for the Appellant submits that as there are
two injuries on the dead body of the deceased, the evidences
of P.Ws.3 and 11 should be viewed with suspicion. However, in
view of the clear and unimpeachable evidence of P.Ws.3 and 11, we are
of the opinion that such evidences cannot be ignored or brushed aside on
the opinion/ evidence of the Doctor. Moreover, the incised injury found
on the back of the deceased is a superficial injury with skin deep which
could have been caused by fall on a pointed object.
12. So, we are of the opinion that evidence of P.W.14, the
Doctor, in essence, supports the prosecution version i.e. the version of
P.Ws.3 and 11 that the appellant was stabbing by means of a knife on the
left side chest of the deceased.
13. The contents of Ext.8 together with the evidence of P.W.14
reveal that he has examined the weapon of offence and given opinion
that the injuries like the stab injuries on the left side chest of the
deceased can be caused by such weapon of offence. Such opinion of the
Doctor further lends credence to the evidence of the prosecution
witnesses examined in this case in the shape of eye-witnesses.
14. Keeping in view the aforesaid considerations, we are of the
opinion that the evidences of P.Ws.3 and 11, the eye-witnesses in this
case, as supported by the evidence of P.Ws.14, the Doctor, who has
conducted post-mortem examination and his opinion rendered on
examination of the knife, the prosecution has proved its case beyond
all reasonable doubts. Hence, the offence under Section 302 of the Penal
Code has been well brought home by the prosecution in this case.
Therefore, there is no reason to disturb the finding of the learned
Sessions Judge, Ganjam-Gajapati, Berhampur that the Appellant is
guilty of the offence under Section 302 of the Penal Code.
15. Accordingly, the conviction and sentence to undergo
imprisonment for life recorded by the learned District and Sessions
Judge, Ganjam-Gajapati, Berhampur in the aforesaid case are hereby
confirmed. However, since the Appellant belongs to very humble walk
of life and was represented by the State defence counsel before the
learned Sessions Judge, Ganjam-Gajapati, Berhampur and also defended
by the learned Amicus Curiae appointed by this Court in this case, we
are of the opinion that this is not a fit case to impose any fine. Further,
we take into consideration of the fact that the Appellant comes within
the purview of the Notification bearing No.4817/L.IVJ.7/08(pt)
Dt.5.5.10 of the Government of Odisha in Law Department regarding
remission of sentences. So, we further direct that the case of the present
Appellant may be taken up for premature release, as per our
observations made in the case of Shyam Sundar Jena -vrs.-
State of Orissa: reported in (2021) 81 OCR 290.
Accordingly, the JCRLA is disposed of.
This order be communicated to the appropriate authorities
forthwith.
The T.C.Rs. be returned back forthwith.
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S. K. Mishra, J.
Savitri Ratho, J. I agree.
.......................
Savitri Ratho, J.
Orissa High Court, Cuttack,
Dated the 3rd March, 2021/B. Jhankar
