Fagu Kisan vs State Of Odisha
2021 Latest Caselaw 11034 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                         CRA No.113 of 1998
From the judgment dated 16th March, 1998 passed by Shri S. K. Mishra,
Addl. Sessions Judge, Rourkela in Sessions Trial No.177/51 of 1995.
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Fagu Kisan                         ......                    Appellant



                                   Versus


State of Odisha                         ......             Respondent

Advocate(s) appeared in this case :-
      For Appellant              :      Mr. Manoj Mishra, Senior Advocate
        For Respondent             :    Mr. J. Katikia, Advocate

               CORAM : THE CHIEF JUSTICE
                      JUSTICE B.P. ROUTRAY

                             JUDGMENT

th 28 October, 2021

B.P. Routray,J.

1. The Appellant has been convicted and sentenced to life imprisonment by the learned Addl. Sessions Judge, Rourkela for commission of offence under Section 302 of the I.P.C.

2. The Appellant - Fagu along with two others namely, Trinath and Umasankar faced trial in S.T.No.177/51 of 1995 for offences under Sections 342/302/34 of the I.P.C. The Appellant was convicted for offence of murder while other two were acquitted from the charges.

3. The present case corresponds to Lathikata P.S. Case No.31 dated 26th October, 1994. Prior to that, Lathikata P.S. Case No.30 dated 26th October, 1994 was registered on the report of the present Appellant on the allegations that Sanatana (deceased) assaulted the appellant. To inquire into the allegations, P.W.10-Chandramani Majhi, the then Asst. Sub-Inspector of Police went to village Suidihi. When he reached at the village around 8.00 P.M. found Sanatana lying by the side of the drain, near Lakshmi Mandap behind the house of P.W.1 in injured condition with legs tied by a jute rope. Seeing P.W.10 near him, Sanatana asked for water and further stated that Fagu (the present Appellant) assaulted him by means of an iron rod. P.W.10 shifted the deceased by a trolley rickshaw (Thela) to the nearby hospital where the doctor declared him dead upon examination. He then lodged the written report and accordingly Lathikata P.S. Case No.31 dated 26th October, 1994 was registered. P.W.14, the then Sub-Inspector, took up investigation of the case and sent the dead body of the deceased to the Sub-Divisional Hospital, Panposh for post-mortem examination. In course of investigation, P.W.14 seized the weapon of offence (M.O.-III) i.e., a bent crowbar as produced by the Appellant in connection with Lathikata P.S. Case No.30 of 1994. The scientific officer was requisitioned, who examined the spot and collected bloodstained as well as sample earth.

4. The investigation was taken over by P.W.16, the then Inspector-in- Charge of Lakthikata Police Station on 30th October, 1994. He submitted the charge-sheet on 20th January, 1995 upon completion of investigation.

5. Prosecution has examined sixteen witnesses in order to prove their case and also marked eighteen exhibits along-with five material objects.

6. The defence pleaded complete denial of prosecution charges.

7. Amongst those sixteen witnesses examined on behalf of the prosecution, P.Ws.7 and 13 are the vital witnesses as have been projected as the eyewitnesses to the occurrence. P.W.7 is the mother of the deceased and P.W.13 is the son. P.W.6 is the doctor, who conducted postmortem examination and as stated earlier, P.Ws.14 and 16 are the Investigating Officers. P.Ws.1, 2 & 3 have turned hostile, P.Ws.4, 9, 11 and 12 are the witnesses to seizure of different articles.

8. As per the medical evidence adduced by P.W.6, the doctor, who conducted postmortem examination, the dead body of the deceased was found with ten external injuries. Out of those injuries, four were bruises present over the thigh and arms, four lacerated wounds present on the left elbow, right elbow, mid-right arm and right palm respectively and two more lacerated wounds of size 2" x 1" x 0.5" were present on the occipital skull and lateral to occipital part of the skull respectively. There were corresponding fracture injuries on the left ulna, shaft and other parts of the body. As per the opinion of P.W.6, the death is due to shock caused by excessive hemorrhage on account of the afore-stated injuries. Thus, on analysis of the medical evidence and keeping in view the prosecution allegations, there cannot be any doubt about homicidal death of the deceased.

9. Regarding use of the weapon of offence, i.e. M.O.III - the crowbar, the same has been seized by P.W. 14 on production by the appellant. On scientific examination, human blood stains were found on the same.

10. As regards the evidence against the Appellant which points to him being the author of the crime, it is necessary to first examine the evidence of P.W.10, the informant. P.W.10 has categorically stated that when he reached near the deceased that evening, the deceased informed him that he had been assaulted by the Appellant with an iron rod. This specific statement of the deceased made before P.W.10 is corroborated in the recitals of the F.I.R. under Ext.10. Nowhere from cross-examination of P.W.10, or P.W.14, or any other witness, anything contrary to disbelieve such version of P.W.10, is coming out. This evidence of P.W.10 about the last statement of the deceased remains completely un- assailed by the defence. Needless to emphasize here that, this statement of the deceased made soon before his death is a relevant piece of evidence in terms of Section 32 of the Indian Evidence Act. The presence of P.W.10 near the deceased was natural as he had been to the village in order to enquire into the allegations of the Appellant about the assault, if any made by the deceased.

11. Next coming to the evidence of P.W.7, it is seen that though she has candidly stated about the occurrence how the Appellant committed assault on the deceased, but the learned trial Judge disbelieved her on the ground that she was not examined earlier by the police in course of investigation and for the first time she is stating so before the Court.

12. Strangely enough the prosecution did not bother to bring any evidence through P.Ws.14 and 16 about examination of P.W.7 by them. The negligence of prosecution is clearly visible that despite P.W.7 has been cited as a charge-sheet witness, no effort has been made by prosecution to substantiate her previous statement.

13. P.W.13, the son of the deceased has stated in his evidence that, the Appellant while confronting the deceased about his earlier allegations, dragged him from the Verandah and dealt him blows by means of iron rod on his thigh. Seeing this, P.W.13, who was aged around sixteen years by then, concealed himself by the side of the Verandah. The Appellant dealt further blows by means of the same iron rod on different parts of the body of the deceased and as the deceased fell down, dragged him towards Lakshmi Mandap. This P.W.13 followed them under cover and further saw that, the Appellant along with others assaulting the deceased on the hand and head by the iron rod. The defence tried to discredit the version of P.W.13 on the ground that he was not examined by the police immediately after the occurrence, but after four days. This cannot be a valid ground to reject the entire evidence of P.W.13. He was a young boy, who saw the assault on his father directly. So there is every reason that he might have been scared as a result of the incident. The background circumstances like previous lodging of another report by the Appellant against the deceased and coming of police to their village were some factors which could have generated fear in the mind of a young boy. However for delay caused by the Investigator to examine the witness, the evidence of the witness cannot be thrown away. The credibility of the witness cannot be lost for the fault of the Investigator. P.W.13 is the son of the deceased and the occurrence started in the house of the deceased. So the presence of P.W.13 at the spot and his witnessing of the assault are very natural. In absence of any substantial contradiction or discrepancy, the entire statement of this witness is enough to sustain the conviction.

14. Thus on a careful perusal of the evidence of P.W.13 coupled with the evidence of P.W. 10 as well as the medical evidence, it is established beyond all reasonable doubt that the appellant assaulted the deceased by means of the iron rod (M.O. III). Accordingly, no point is seen in favour of the Appellant to disbelieve prosecution version.

15. In the result, we do not see any infirmity in the impugned judgment of trial court and the appeal is dismissed.

16. Learned trial court is directed to take appropriate steps for custody of the Appellant, who has been released on bail pending appeal by order dated 26th July, 2007 of this Court.

(B.P.Routray) Judge

(Dr. S. Muralidhar) Chief Justice

//C.R. Biswal, Secy.//