Birendra Mallick vs State Of Odisha
2022 Latest Caselaw 4039 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                      JCRLA No. 8 of 2009


Birendra Mallick                            ....              Appellant
                                 -versus-
State of Odisha                             ....            Respondent

Advocates, appeared in this case:

For Appellant                :          Mr. S.K. Kanungo, Advocate

For Respondent               :                          Mr. J. Katikia
                                                 Addl. Govt. Advocate

 CORAM:
 THE CHIEF JUSTICE
 JUSTICE R.K. PATTANAIK
                           JUDGMENT

17.08.2022 Dr. S. Muralidhar, CJ.

1. This appeal is directed against a judgment dated 8th January, 2009 passed by the Sessions Judge, Phulbani in S.T. No.30 of 2008 convicting the Appellant for the offence punishable under Section 302 IPC and sentencing him to rigorous imprisonment (RI) for life and to pay a fine of Rs.500/- in default to undergo RI for six months.

2. The case of the prosecution is that on 21st September, 2007 the Informant Ugresena Behera (PW 1) and his brother-in-law (sister's husband) i.e. deceased Suresana Behera were cultivating the land of PW 1. Thereafter PW 1 returned to his house to milch

JCRLA No.8 of 2009

the cows. The deceased continued cultivation for some time and later took the cattle for tending at the nearby field. At about 9 am when PW 1 was returning to his field from his house, in the way one Jalandhara Behera (PW 2) informed PW 1 that the accused had cut the deceased into pieces by a tangia.

3. PW 1 then went to the spot which is locally known as Balipadar. He followed the accused proceeding towards his house holding the tangia and one umbrella. PW 1 with the help of Anjan Behera (PW 5), Uma Charan Behera (PW 7) and one Pradip Kumar Behera (PW 3) attempted to snatch away the tangia from the accused. Upon this the Accused dealt a tangia blow on PW 5. In the process of snatching the axe, PW 3 also sustained injuries. When PW 7 attempted to snatch the tangia from the hand of the accused, the latter pressed his neck and assaulted him. Thereafter, the accused was over powered by PW 1 and others. The tangia and umbrella were snatched from him and handed over to the Ward Member namely, Uday Nath Mallick.

4. PW 1 went to the place of occurrence and found the deceased had been cut into two pieces. The head portion was lying in one place being covered by some earth and trunk portion was lying in other place. He then submitted a written report to the C.I. of Police, Sadar, Phulbani who was camping at Tikabali. The Investigating Officer (IO) namely, Gopinath Mohapatra (PW 11) undertook the investigation, made a spot inquest on the dead body as well as the head portion under two separate inquest reports and

JCRLA No.8 of 2009

had sent the body for post mortem examination. The injured persons were medically examined and a spot map was prepared. The IO had seized the lungi which the accused was wearing on the latter's production, he also collected the sample nail clipping and nail scraping of the accused and sent all the articles for chemical examination.

5. The chemical examination report revealed that the lungi worn by the accused and the nail clippings, the seized axe and also the blood-stained earth and banyan of the deceased, all contained human blood. The charge sheet was then led against the accused who pleaded not guilty and claimed trial.

6. The prosecution examined eleven witnesses including the IO (PW 11). While PW 1 is the Informant, PW 2 is the eyewitness and PW 3 is the post occurrence witness and scribe of the FIR as well as one of the injured, PW 4 was a post occurrence witness and who reached at the spot hearing the crying of Jalandhara (PW

2) and the injured witnesses as PW 5 and PW 7. PW 6 is one of the eye witnesses.

7. Dr. Saroj Ranjan Naik (PW 8) conducted the post-mortem of the deceased. Dr. Bijay Chandra Sahoo (PW 9) is the medical officer (MO), who examined the injured PW 7. Dr. Rabi Naryan Pati (PW 10) is also the MO, who examined PWs 3 and 5.

JCRLA No.8 of 2009

8. (i) three inquest reports corroborated the evidence of PW 11 i.e. the IO;

(ii) the doctor who conducted the post mortem of the deceased, PW 8 stated that the dead body of the deceased had been identified to him by PW 1, one Magaraj Pradhan and another Home Guard.

9. The injuries found by the doctor were as under:

"There was one incised wound of size 2" x 1/2" x 2" extending from tip of the left ear to the upper part of the cheek cutting the left pinna completely. There was another laceration of size 1" x ¼" x 1/2" over left side of the lower jaw. One laceration of size 1" x ¼" x ¼" over right side of lower jaw. It is also in his evidence that he found the following injuries on the trunk portion of the dead body.

(i) Laceration of size 2" x 1" x 1" over the left shoulder point.

(ii) Incised wound of size 2" x 1" x 1" over the back obliquely placed over the midline 1 cm below the shoulder level.

(ii) The vertebral column alongwith the surroundings of the tissues such as muscles of neck blood vessels nerves etc. are completely cut off at the level of second cervical vertebra."

10. The doctor also found the following internal injuries:

"(i) Vertebral column was cut off at the level of second cervical vertebra separating the head from the trunk.

JCRLA No.8 of 2009

(ii) Spinal cord severed completely into two parts. Pharynx cut into two parts separated by chopping of the neck. According to him he found rigor mortis were present on the lower limbs but partially present on both the upper limbs. There was early signs of decomposition such as greenish discoloration and early maggots present over the trunk. He had opined that all the injuries are ante mortem in nature. The death of the deceased was due to the injury to the vital organs such as completely cut off the spinal cord from the brain."

11. This is a case based on the eyewitness evidence. PW 2 is one of the eyewitnesses, who states that at 9.30 am on 21st September, 2007 while he was tending cattle, the deceased approached him with two bullocks and asked if he would leave them in the herd which he was tending. The deceased was carrying a tangia, yoke and juali. At that time, the accused came behind the deceased holding an umbrella and tangia and suddenly dealt successive blows on the neck of the deceased and the head portion was completely cut off from the trunk at the neck. The accused then picked up the cut head portion, took it to a little distance and kept that on the ground and put some earth over it. He then called the nearby persons and went to the village and told about the occurrence to PW 1 and others. This then brought the villagers including PW 1 to the spot.

12. PW 1 corroborated the evidence of PW 2. PW 1 stated that he was informed about the incident by PW 2.

JCRLA No.8 of 2009

13. PW 3 corroborated PW 2. He too stated that on hearing the shout raised by PW 2 that the accused had killed the deceased, PW 3 along with his brother and others went to the spot and saw the trunk portion of the dead body lying at one place and the head portion lying at a distance and the accused was holding a blood stained tangia and one umbrella standing at a distance of about 15 feet.

14. PW 3 challenged the accused asking why he had killed the deceased. When PW 3 attempted to apprehend him, the accused chased PW 3. When the two brothers of PW 3 came running after the accused, the accused stopped chasing PW 3 and started charging towards PW 2 and PW 5. At that time PW 7 caught hold of the accused from behind and the accused pressed the neck of PW 7 and then he and the others snatched away the tangia from the accused and brought him along with the tangia and umbrella to the Ward Member. The IO seized the tangia on production by the Ward Member. He also seized the yoke, juali, the iron portion of the yoke and the lathi from the spot. He also collected the blood-stained earth and sample earth from the places where the head portion and trunk portion were lying.

15. PW 4 also completely corroborated the version of PW 2 in all the material particulars of the murder of the deceased by the accused.

JCRLA No.8 of 2009

16. PW 6 too supported the versions of PWs 2 and 3. This also found support from the evidence of PW 7.

17. The recovery of the weapon of offence from the accused has gone unchallenged as is the evidence of PWs 2 and 6 about the accused giving blows to the deceased on his neck. The chemical examination report (Ext.19) showed inter alia that the lungi and banyan of the deceased as well as the lungi of the accused contained human blood. The accused failed to explain under what circumstances, a blood stained tangia was recovered from his possession. He also has not explained as to how he was found at the spot being stained with blood; his lungi and his nails were stained with blood.

18. The eyewitness testimonies, therefore, have been fully corroborated both by the medical evidence as well as the chemical examination report. The eyewitnesses have spoken clearly and cogently and have withstood cross-examination. Their evidence is trustworthy and reliable. This is a case of direct evidence. With the eyewitness testimony not being able to be discredited, the Court finds no reason to interfere with the well-reasoned judgment of the trial Court.

19. For all of the aforesaid reasons, the appeal is dismissed. The bail bonds of the Appellant stand cancelled. He is directed to surrender forthwith and, in any event, not later than 5th September, 2022 failing which the IIC of the concerned police station will

JCRLA No.8 of 2009

take immediate steps to have him arrested and brought back to custody to serve out the remainder of his sentence.

(S. Muralidhar) Chief Justice

(R.K. Pattanaik) Judge S.K. Jena/Secy.

JCRLA No.8 of 2009