Orissa High Court
Gandaram Bag vs State Of Orissa on 19 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No. 5 of 2011
Gandaram Bag .... Appellant
Mr. Kirtan Dang, Advocate
-versus-
State of Orissa .... Respondent
Mr. A.P. Das, Addl. Standing Counsel
CORAM:
THE CHIEF JUSTICE
JUSTICE R. K. PATTANAIK
ORDER
Order No. 19.05.2022
02. 1. The present appeal is directed against an order dated 13th
December 2010, passed by the Additional District & Sessions
Judge, Titilagarh in S.C. Case No.147 of 2009, convicting the
Appellant for the offence punishable under Section 302 of Indian
Penal Code (IPC) and sentencing him to undergo Rigorous
Imprisonment (RI) for life and to pay a fine of Rs.5,000/- and in
default to undergo RI for two years.
2. The case of the prosecution is that the accused Gandaram [email protected]
Kita used to quarrel with the informant Nilabati Bag (PW-1) and
her husband Gunanidhi Bag (the deceased, the younger brother of
the Appellant) and other villagers under the influence of liquor. It is
stated that on 11th May 2009, at around 12 noon, also there was a
quarrel between the deceased and the accused. That night, at around
8.30 pm, while the deceased and PW-1 were eating rice sitting in
the courtyard of their house, and Gupteswar Bag (PW-11) the
brother-in-law of the deceased was talking with him sitting in a cot,
suddenly the accused came with an axe (Tangia) and as a result of
the previous grudge inflicted an axe blow on the head of the
deceased, who fell down facing upwards. Thereafter, the accused
again assaulted the deceased on his chest with the blunt side of the
axe. At that time, PW-11 caught-hold of the accused, Nata Bag
(PW-9) the nephew of PW-1 snatched away the axe from the
accused. The accused had also assaulted PW-11 with the handle of
Tangia with an intent to kill him. Subsequently, the deceased was
shifted to the Saintala Hospital where the doctor declared him dead.
3. Upon completion of investigation, a charge sheet was laid against
the accused who pleaded not guilty and claimed trial. The case of
defence, as spoken by the accused who examined himself as DW-1
was at around 8 pm, he and the deceased were bringing firewood by
loading it on a bullock-cart and the deceased was sitting on the cart.
The bullock-cart entered into a ditch, he fell down and the bullock-
cart and the firewood also fell on him as a result of which, the
deceased sustained bleeding injuries on his head; subsequently, he
was taken to the hospital where he died.
4. The prosecution examined as many as 21 witnesses, of which
PWs-1, 4, 7, 9 and 11 were eye-witnesses. PW-1 was the wife of
the deceased. PW-11 was the brother-in-law of the deceased. PWs-
4 and 7 were the daughters and PW-9 was the son of the accused.
5. The medical evidence of PW-13, Dr. Brajendra Panda revealed
the presence of the following injuries on the dead body of the
deceased:
"(i) abrasion 2 ½ " X 1/2" X 1/6" on the xiphisternum
vertically down words.
(ii) incised wound 2inch. X 1/2 inch. X 1 inch. in vertex
of head, longitudinally one inch to the left from mid line
and 5 inch away from left ear.
(iii) incised wound 1 ½ inch. 1/2 inch. X 1 inch
obliquely on the vertex of the head 1/2 inch away from
midline and 1/2 inch behind injury No.(ii).
(iv) fracture of left parietal bone of size 2 inch X 1/2
inch X 1 inch and 1 inch away from midline below the
injury No.(ii).
(v) incised wound 1 ½ " X 1/2 inch on the membranes
1/2 inch to the left from the midline below the fracture
parietal bones.
(vi) Haematoma of size 3 inch X 1 ½" on the membrane
adjacent to injury No.(v).
(vii) incised wound 1 inch X 1/2 inch X 1/2 inch on the
parietal bone of left cerebral hemisphere longitudinally
1/2 inch away from midline.
(viii) Haematoma of 1/2 inch X 1/2 inch on left cerebral
cortex at the margin of injury No.(vii).
6. The injuries were stated to be ante mortem in nature and could
have been caused by a sharp weapon. The cause of death was due to
injury to the vital organ like brain. The doctor confirmed
subsequently that the injuries could have been caused by the Tangia
that was seized from the spot. He denied the suggestion that the
injuries could have been caused by fall on a sharp object.
7. The trial Court, on an analysis of the evidence, was convinced
that the prosecution had brought home the guilt of the accused
beyond all reasonable doubt.
8. This Court has heard the submissions of respective learned
counsel for the parties. It has also been taken through the evidence.
9. The eye-witness testimony of PW-1 is clear and cogent about the
actual assault as she was witnessed to it from a distance of just 3 to
4 feet. Her cross examination yielded nothing for the defence.
Corroborating her were PWs-4, 7 and 9 (the daughters and son of
the accused). The fact that there was a previous quarrel at around 12
noon between the accused and the deceased and that the accused
was under the influence of liquor has also been sufficiently
established beyond doubt by these witnesses. When the accused
returned to the house of the deceased with a Tangia, he walked
stealthily through a lane, inflicted one blow by the sharp side of the
axe and when the deceased fell down, he inflicted one blow by the
blunt side of the axe on the chest.
10. From the evidence of PW-4, it is also clear that PW-11 and PW-
9 caught-hold of the accused and that PW-9 snatched away the axe
from the accused and thereafter, the accused fled away through the
'bari' side.
11. It is a significant fact that PWs-4 and 7 are the daughters and
PW-9 the son of the accused and they were all living as a joint
family. They have fully supported the case of the prosecution.
12. The accused who examined himself as DW-1 tried to portray
the incident as an accident in which the bullock-cart full of
firewood overturned on the deceased as a result of which he
sustained bleeding injuries. DW-1 further stated that his son Nata
Bag (PW-9), Gupteswar Bag (PW-11) and Nilabati Bag (PW-1) had
also gone to the hospital with the deceased. However, none of these
witnesses came up with any such story and did not support the
accused at all. The trial Court rightly therefore disbelieved DW-1.
DW-1 also tried to project that they took the deceased to the
hospital and Dr. Namita Bisi (PW-19) gave him a saline injection.
However, PW-19 was examined and did not state anything about
giving injection and saline to the deceased at the hospital. On the
other hand, she stated that he was brought dead to the hospital.
13. The entire evidence of the prosecution established beyond all
reasonable doubt the guilt of the accused for having murdered his
younger brother out of a previous quarrel.
14. The Court is unable to find any infirmity in the impugned
judgment of the trial Court convicting and sentencing the accused
in a manner of as discussed above.
15. The appeal is accordingly dismissed but in the circumstances
with no orders as to costs.
(Dr. S. Muralidhar)
Chief Justice
(R. K. Pattanaik)
Judge
S. Behera
