From Judgment And Order Dated ... vs State Of Odisha
2022 Latest Caselaw 5702 Ori

                     IN THE HIGH COURT OF ORISSA, CUTTACK

                                       JCRLA No.29 Of 2017

        From judgment and order dated 13.01.2017 passed by the
        Additional Sessions Judge, Rourkela in Sessions Trial No.80 of
        2016.
                                           ----------------------------

               Biswanath Badaik                       .......                            Appellant


                                                   -Versus-


               State of Odisha                        .......                            Respondent


                      For Appellant:                     -       Ms. Soma Pattnaik
                                                                 Mr. Raja Kumar Pati


                      For Respondent:                    -        Mr. Rajesh Tripathy
                                                                  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: 19.10.2022

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S.K. SAHOO, J. The appellant Biswanath Badaik faced trial in the

Court of learned Additional Sessions Judge, Rourkela in Sessions

Trial No.80 of 2016 for commission of offences punishable under

sections 307/326 of the Indian Penal Code on the accusation that

on 28.04.2016 in village Hatibari, Mangratoli, he assaulted Yug // 2 //

Badaik (P.W.7), who was a child aged about four years on the

backside of his neck with an axe (M.O.I) with such intention and

under such circumstances that if by that act, he had caused the

death of P.W.7, he would have been guilty of murder and that by

assaulting P.W.7 with axe, the appellant voluntarily caused

grievous hurt to him.

The learned trial Court vide impugned judgment and

order dated 13.01.2017 found the appellant guilty of both the

charges and sentenced him to undergo rigorous imprisonment

for ten years and to pay a fine of Rs.5,000/- (rupees five

thousand), in default, to undergo further imprisonment for three

months more for the offence under section 307 of the Indian

Penal Code, however, no separate sentence was awarded for the

offence under section 326 of the Indian Penal Code in view of

section 71 of the Indian Penal Code.

2. The prosecution case, as per the first information

report (Ext.1) lodged by Kisam Badaik (P.W.1) before the Officer

in-charge of Hatibari police station on 28.04.2016 is that on that

day in the early morning at about 8 O'clock, while his nephew

Yug Badaik (P.W.7) who was aged about four years was playing

outside the house with two children, the appellant, who was their

co-villager, all on a sudden appeared at the spot holding a

// 3 //

'tangia' and he assaulted P.W.7 on the back of his neck and fled

away from the spot. P.W.7 was immediately shifted to Hatibari

C.H.C. where the doctor referred him to Rourkela Government

Hospital and accordingly, P.W.7 was shifted to the said hospital

where he was undergoing treatment in a critical condition.

On the basis of such first information report, the

Officer in-charge of Hatibari police station registered Hatibari

P.S. Case No.17 dated 28.04.2016 under sections 307/326 of the

Indian Penal Code and directed the A.S.I. of Police of Hatibari

police station, namely, Janmajaya Shaw (P.W.8) to investigate

the matter.

During course of investigation, P.W.8 visited the

spot, examined the witnesses and on 29.04.2016, he arrested

the appellant, who led the police party and gave recovery of the

axe from inside the bush of the nearby village forest on the basis

of his statement and the weapon was seized in presence of the

witnesses as per the seizure list (Ext.3). The appellant was

forwarded to the Court on the very day. The Investigating Officer

collected the injury report of P.W.7 and sent the seized weapon

of offence to the concerned Medical Officer for its examination

and opinion regarding possibility of injury sustained by P.W.7 by

the said weapon. Later P.W.8 collected the opinion of the Medical

// 4 //

Officer, which has been marked as Ext.4. P.W.8 prepared the

spot map (Ext.6) and on completion of investigation, he

submitted charge sheet on 30.05.2016 under sections 307/326

of the Indian Penal Code.

3. After submission of charge sheet, the case was

committed to the Court of Session for trial after observing due

committal procedure where the learned trial Court on

17.10.2016 framed charges against the appellant as already

stated and since the appellant refuted the charges, pleaded not

guilty and claimed to be tried, the sessions trial procedure was

resorted to prosecute him and establish his guilt.

4. During course of trial, in order to prove its case, the

prosecution has examined as many as eight witnesses.

P.W.1 Kisam Badaik is the informant in the case and

he is the uncle of the injured (P.W.7) and he stated to have

noticed the appellant running away from the spot holding a

'tangia' and P.W.7 lying on the ground sustaining bleeding injury.

He further stated about the shifting of P.W.7 to Hatibari C.H.C.

for treatment and subsequently, to Rourkela Government

Hospital for better treatment. He proved the F.I.R. (Ext.1).

P.W.2 Lachhaman Badaik is an eye witness to the

occurrence and he supported the prosecution case.

// 5 //

P.W.3 Rajani Badaik is the aunt of the injured

(P.W.7), who is a post occurrence witness but stated that when

she arrived at the spot, she noticed P.W.7 was lying on the

ground with bleeding injury on the backside of his neck and the

mother of the injured disclosed before her that the appellant

assaulted P.W.7 by means of a 'tangia'.

P.W.4 Kamala Devi Badaik is the mother of the

injured and she stated that when she rushed to the spot hearing

the cries of her son, she noticed her son lying on the ground

sustaining bleeding injury and crying with pain and there was

profuse bleeding on the backside of his neck. She further stated

to have seen the appellant running away from the spot holding

an axe (tangia) in his hand. She further stated about the shifting

of the injured first to Hatibari hospital and then to Rourkela

Government Hospital for better treatment.

P.W.5 Rockey Badaik is a witness to the recovery of

the 'tangia' at the instance of the appellant on the basis of his

statement on 29.04.2016 from a nearby jungle inside bamboo

bush. He proved the confessional statement of the appellant so

also the seizure list of 'tangia' marked as Ext.3.

P.W.6 Dr. Sidheswar Majhi was attached to Hatibari

C.H.C. and he examined the injured (P.W.7) and noticed cut and

// 6 //

incised wound on the neck and one lacerated wound and stated

that since the condition of the injured became serious, he was

referred to Rourkela Government Hospital for treatment. He

proved the injury report (Ext.4). He further stated to have given

his opinion regarding possibility of the injuries sustained by the

injured by means of the axe, which was produced before him by

the Investigating Officer.

P.W.7 Yug Badaik is the child witness and the

injured, who was tested by the learned trial Judge by putting

some questions and ultimately it was held that he was not able

to understand the questions put to him and also to give rational

answer and therefore, he was declared as incompetent witness

to give his evidence.

P.W.8 Janmajaya Shaw was the A.S.I. of Police of

Hatibari police station, who is the Investigating Officer in the

case.

The prosecution exhibited six numbers of documents.

Ext.1 is the F.I.R., Ext.2 is the confessional statement of the

appellant, Ext.3 is the seizure list, Ext.4 is the injury report,

Ext.5 is the query report and Ext.6 is the spot map.

The prosecution also proved one material object.

The weapon of offence 'tangia' was marked as M.O.I.

// 7 //

No witness was examined on behalf of the defence.

5. The defence plea of the appellant is one of denial

and it is suggested to the witnesses that the injured sustained

bleeding injury by fall.

6. The learned trial Court after assessing the oral as

well as documentary evidence on record came to hold that the

evidence of P.Ws.1, 2, 3 and 4 are unimpeachable character as

regards to the assault by the appellant on P.W.7 and their

statements are fully corroborated by the Medical Officer. The

learned trial Court also accepted the evidence adduced by the

prosecution relating to the recovery of weapon of offence (M.O.I)

seized as per the seizure list (Ext.3) and pleased to hold that the

appellant dealt 'tangia' blow to P.W.7 causing severe injuries on

his person as per the medical examination report (Ext.4) and

accordingly, held him guilty under sections 307/326 of the Indian

Penal Code.

7. Ms. Soma Pattnaik, learned counsel being ably

assisted by Mr. Raja Kumar Pati, Advocate contended that in a

case of this nature, the injured is the best person to say about

the assault on him but he was held not to be a competent

witness. It is further submitted that no motive has been proved

in connection with the assault and the evidence of the eye

// 8 //

witness (P.W.2) is also not clinching and there are contradictions

in the evidence of witnesses P.W.1 and P.W.4. It is further

argued that the children, who were playing with the injured were

also not examined and though it is the prosecution case that the

injured was treated at Rourkela Government Hospital for a

substantial period but neither any doctor of the said Hospital nor

a medical document of the said Hospital has been proved by the

prosecution and therefore, it is a fit case where benefit of doubt

should be extended in favour of the appellant, more particularly

when the ingredients of the offence under section 307 of the

Indian Penal Code are not attracted. In support of such

contention, she has relied upon the decision of the Hon'ble

Supreme Court in the case of Surinder Singh -Vrs.- State

(Union Territory of Chandigarh) reported in (2022) 85

Orissa Criminal Reports (S.C.) 416.

Mr. Debasis Biswal, learned Additional Standing

Counsel appearing for the State of Odisha, on the other hand,

supported the impugned judgment and contended that even

though the child witness could not be examined on account of his

tender age and unable to give rational answers to the questions

put by the learned trial Court but the evidence of the eye witness

(P.W.2) is clinching and trustworthy and other witnesses also

// 9 //

corroborate his version which makes out a case against the

appellant. He further argued that when the ocular testimony of

P.W.2 is getting corroboration from the medical evidence and the

injured immediately after the occurrence in a bleeding condition

disclosed the name of the appellant to have assaulted him, it can

be said that the learned trial Court has rightly held the appellant

guilty of the offences charged. Learned counsel further submitted

that even though no motive has been established by the

prosecution but when the eye witness account is clinching and

trustworthy, failure of the prosecution to prove the motive

cannot be a ground to discard the prosecution case. It is further

argued that the manner in which a child of four years old was

assaulted by means of a 'tangia' on a vital part of his body like

neck repeatedly, it shows that the intention of the appellant was

nothing but to commit the murder. Learned counsel further

submitted that no doubt the documents from the Rourkela

Government Hospital could not be proved during the trial but the

evidence of P.W.6 is very clinching and when he has given the

opinion that the injuries sustained by the injured (P.W.7) are

possible by the weapon produced before him by the Investigating

Officer, merely because of the non-examination of the doctor

from R.G.H. or non-proving the document of the said hospital

// 10 //

cannot be a ground to pass an order of acquittal. Learned

counsel further submitted that the conduct of the appellant in

leading the police party and others to the place of concealment

of weapon (M.O.I) and giving recovery of the same is another

piece of clinching evidence against him and therefore, the

learned trial Court has rightly held the appellant guilty under

sections 307/326 of the Indian Penal Code.

8. In a case based on circumstantial evidence, no doubt

motive assumes pertinent significance as existence of the motive

is an enlightening factor in a process of presumptive reasoning in

such a case and the absence of motive puts the Court on its

guard to scrutinize the circumstances more carefully to ensure

that suspicion and conjecture do not take place of legal proof.

Very often, a motive is alleged to indicate the high

degree of probability that the offence was committed by the

person who was prompted by the motive and in a case when

motive alleged against the accused is fully established, it

provides a foundational material to connect the chain of

circumstances. However, motive is not always relevant and

losses its significance when it is direct reliable evidence. It is not

necessary for the prosecution to allege any motive and if there is

// 11 //

reliable direct evidence, absence of motive will not adversely

affect the prosecution case.

In the case of Darbara Singh -Vrs.- State of

Punjab reported in (2012) 10 Supreme Court Cases 476, it

has been held that the motive in criminal cases based solely on

the positive, clear, cogent and reliable ocular testimony of

witnesses is not at all relevant. Mere absence of a strong motive

to commit the crime, cannot be of any assistance to the accused.

The motive behind a crime is a relevant fact regarding which

evidence may be led. The absence of motive is also a

circumstance which may be relevant for assessing the evidence.

In the case of Sheo Shankar Singh -Vrs.- State of

Jharkhand and another reported in A.I.R. 2011 Supreme

Court 1403 while dealing with the motive, the Hon'ble Supreme

Court held that proof of motive, however, recedes into the

background in cases where the prosecution relies upon an eye

witness account of the occurrence. That is because if the Court

upon a proper appraisal of the deposition of the eye witnesses

comes to the conclusion that the version given by them is

credible, absence of evidence to prove the motive is rendered

inconsequential.

// 12 //

In the case of Surinder Singh (supra), the Hon'ble

Court relying on its own decisions in the case of Shivaji Genu

Mohite -Vrs.- State of Maharashtra reported in (1973) 3

Supreme Court Cases 219 and Bipin Kumar Mondal -Vrs.-

State of West Bengal reported in (2010) 47 Orissa

Criminal Reports (SC) 185 held as follows:-

"that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the Court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye witness is rendered untrustworthy."

In view of the fact that it is a case which is based on

direct evidence and also some circumstantial evidence, I am

unable to accept the contention raised by the learned counsel for

the appellant that failure on the part of the prosecution to

// 13 //

establish the motive behind the crime is a factor to doubt the

veracity of the prosecution case.

9. It is no doubt that the best witness in this case is the

injured (P.W.7) himself but the learned trial Court put various

questions to the injured and found that he is unable to

understand those questions and also to give rational answer and

therefore, the learned trial Court rightly held that P.W.7 is not a

competent witness. In the fact situation, when in view of the

tender age of P.W.7, he was held not a competent witness, the

entire prosecution case cannot be disbelieved if there are other

materials available on record which would substantiate the

charges against the appellant.

10. Now coming to the evidence of eye witness (P.W.2),

it appears that he has stated that on 28.04.2016 at about 8.00

a.m. while he was brushing his teeth sitting near the spot, he

found three children including the injured (P.W.7) were playing

on the village road and the appellant arrived there holding a

'tangia' and all on a sudden gave blows to the backside of the

neck of P.W.7 causing bleeding injury. He stated to have raised

hullah and shouted 'Kahinki Hanuchhu, Kahinki Hanuchhu'. The

appellant ran away from the spot after such assault holding the

'tangia' and there was profuse bleeding from the neck of P.W.7.

// 14 //

P.W.2 further stated that hearing his shout, the mother of the

injured and some co-villagers gathered at the spot and injured

was shifted to Hatibari Hospital for treatment. He specifically

stated in the cross-examination that when blows were given,

except three children were playing, there was no other person at

the place except him and the other witnesses arrived at the spot

hearing the shout. He further stated that the place of assault was

about 20 cubits away from the spot where he was brushing his

teeth. Nothing has been elicited in the cross-examination to

doubt the veracity of the eye witness and as such his evidence

has almost remained unshaken.

Coming to the evidence of P.W.1 and P.W.4 both of

them have stated that when they rushed to the spot hearing

shout of P.W.7, they saw the appellant running away from the

spot holding an axe in his hand. The previous statements of

those witnesses made before the Investigating Officer, which

was confronted to them and proved through the Investigating

Officer indicate that they have not stated that when they arrived

at the spot, they noticed the appellant running away holding an

axe. Thus, no reliance can be placed on such statements of the

two witnesses to have seen the appellant running away from the

spot holding the axe, however, their evidence to have noticed

// 15 //

the injured lying at the spot with bleeding injury on the neck and

shifted to the hospital is clear, cogent and trustworthy. P.W.4,

the mother of the injured has further stated that while they were

shifting the injured to the hospital, P.W.7 was crying saying

'Biswanath Katdiya'. This part of the evidence of P.W.4 has also

not been shaken in the cross-examination.

P.W.3 even though is a post occurrence witness but

she stated that she noticed the injured (P.W.7) was lying on the

ground sustaining bleeding injury on the backside of his neck

and P.W.4 told him that it is the appellant, who dealt 'tangia'

blow on the neck of P.W.7 causing bleeding injury. Nothing has

been elicited in the cross-examination.

The doctor (P.W.6), who examined P.W.7 on the date

of occurrence itself stated that he noticed (i) deep cut injury of

4½ cm. x ¾ cm. x ¾ cm. on the right side neck (ii) incised

wound of 2½ x 1½ x 3 cm. on the posterior side of neck (iii)

lacerated wound of 1 x ¾ cm. over the T-2 level and superficial

vein. He further opined that injuries nos.1 and 2 were grievous in

nature and injury no.3 was simple in nature. He specifically

stated that all the injuries were caused by sharp edged weapon

and since the injured became serious, he was referred to

Rourkela Government Hospital for treatment. The doctor opined

// 16 //

that the age of the injuries to be within six hours from the time

of his examination and he proved the injury report marked as

Ext.4. When the Investigating Officer produced the axe before

him and made a query regarding possibility of the injury on

P.W.7 by such weapon, after examining the weapon, P.W.6

opined that the injuries are possible by M.O.I. The query report

has been marked as Ext.5. Not a single question has been put to

the doctor by the learned defence counsel. Therefore, the ocular

evidence of the eye witness (P.W.2) gets sufficient corroboration

from the medical evidence adduced by P.W.6. It is no doubt

correct that even though there are oral evidence that the injured

was shifted to Rourkela Government Hospital and he was treated

there for some period and the prosecution has not produced any

document relating to the treatment of the injured in the said

hospital and no doctor from the Rourkela Government Hospital

has also been examined but since the evidence of P.W.7 is very

clear, in my humble view, non-examination of any doctor from

Rourkela Government Hospital or non-proving of any medical

documents from the said hospital cannot be a ground to

disbelieve the prosecution case.

The evidence of leading to discovery of the weapon

of assault i.e. 'tangia' has been spoken to by P.W.5 so also the

// 17 //

Investigating Officer (P.W.8). P.W.5 stated that on 29.04.2016,

the appellant in the police custody gave his statement and stated

to have concealed the weapon of offence in a nearby bamboo

bush and further stated to give recovery of said weapon and

accordingly, led the police team and the witnesses to the place of

concealment i.e. bamboo bush (Jhadi) in nearby forest and gave

recovery of the same, which was seized as per the seizure list

Ext.3. The statement of the appellant has also marked as Ext.2.

P.W.5 also identified the weapon of offence in Court as M.O.I.

The Investigating Officer (P.W.8) has also stated that after the

appellant was arrested, while in police custody, he disclosed to

have concealed the weapon of offence i.e. an axe inside the bush

in a nearby forest and accordingly, his statement recorded and

the appellant led the police and the witnesses to the place of

concealment and gave recovery of the axe, which was seized as

per the seizure list Ext.3. No questions have been put on this

aspect to the Investigating Officer. Therefore, the evidence of

the eye witness (P.W.2) coupled with the evidence of the doctor

(P.W.6) and the evidence adduced by P.W.5 as well as the

Investigating Officer (P.W.8) substantiate the prosecution case

that it is the appellant, who is the author of the crime and he

assaulted the injured (P.W.7) with an axe on the vital part of the

// 18 //

body. No doubt, the evidence on record indicates that some

children were playing with the injured at the relevant time and

they were not examined but in my humble view, the same

cannot be a ground to disbelieve the other evidence, which are

available on record.

11. To justify the conviction under section 307 of the

Indian Penal Code, it is not essential that bodily injury capable of

causing death should have been inflicted. Although the nature of

injury actually caused often give considerable assistance in

coming to a finding as to the intention of the accused, such

intention may also be deduced from other circumstances, and

may even, in some cases, be ascertained without any reference

at all to actual wounds. The Court has to see whether the act,

irrespective of its result, was done with the intention or

knowledge and under circumstances mentioned in this section.

The nature of the weapon used, the intention expressed by the

accused at the time of the act, the motive for commission of the

offence, the nature and the size of the injuries, the parts of the

body of the victim selected for causing the injuries and the

severity of the blow or blows are important factors that may be

taken into consideration in coming to a finding whether in a

// 19 //

particular case, the accused can be convicted of an attempt to

commit murder.

In the case in hand, when the appellant came with a

deadly weapon like axe and assaulted a tender aged boy of four

years repeatedly on the vital part of the body like neck causing

grievous injuries, I am of the humble view that the learned trial

Court is quite justified in holding the appellant guilty of the

offences under sections 307/326 of the Indian Penal Code.

12. It appears that the appellant was taken into judicial

custody in connection with this case on 29.04.2016 and neither

he was on bail in the trial Court nor he was granted bail by this

Court during pendency of the Jail Criminal Appeal and as such he

has already undergone substantive sentence of almost six and

half years. In view of the passage of time and taking into account

the age of the appellant, the substantive sentence imposed for

the offence under section 307 of the Indian Penal Code in

directing the appellant to undergo sentence of R.I. for ten years

is reduced to the period already undergone. In view of the poor

financial condition of the appellant, the imposition of fine amount

and the default sentence for his conviction under section 307 of

the Indian Penal Code is hereby set aside. No separate sentence

was awarded for the offence under section 326 of the Indian

// 20 //

Penal Code in view of section 71 of the Indian Penal Code by the

learned trial Court which is quite justified. The appellant be set at

liberty forthwith, if his detention is not otherwise required in any

other case.

With the aforesaid modification of sentence, the

JCRLA stands dismissed.

Trial Court records with a copy of this judgment be

communicated to the concerned Court forthwith for information

and necessary action.

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

record my appreciation to Ms. Soma Pattnaik and Mr. Raja

Kumar Pati, learned counsel for rendering their valuable help and

assistance towards arriving at the decision above mentioned. Ms.

Soma Pattnaik and Mr. Raja Kumar Pati, learned counsel shall be

entitled to their professional fees which is fixed at Rs.7,500/-

(rupees seven thousand five hundred only) and such money shall

be equally distributed between them.

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

S.K. Sahoo, J.

Orissa High Court, Cuttack The 19th October 2022/RKMishra