Orissa High Court
Baga Kabasi vs State Of Odisha on 24 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.93 of 2007
Baga Kabasi .... Appellant
Mrs. Usharani Padhi, Advocate
-versus-
State of Odisha .... Respondent
Mr. Janmejaya Katikia, Additional Government Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 24.09.2022
06. 1. The present appeal is directed against the judgment dated 12th
June, 2007 passed by the Adhoc Additional Sessions Judge (Fast
Tract Court), Malkangiri in Criminal Trial No.1 of 2006
convicting the Appellant for the offence punishable under Section
302 IPC and sentencing him to undergo rigorous imprisonment
(RI) for life and to pay a fine of Rs.5,000/-, in default to undergo
further R.I. for six months.
2. The Appellant has been found guilty of murdering Deba
Kabasi, a resident of the same village Kutiguda Panchayat. Dulla
Madkami (P.W.4) the Ward Member of Mariwada Panchayat,
within the jurisdiction of Kutiguda. He stated that while he was in
his house, Bhima Kabasi (P.W.5), the son of the deceased Deba
Kabasi, came to him and informed that the deceased had been
killed by the Appellant by means of a Tangia in front of his house.
P.W.4 then went immediately to the spot and found the deceased
lying dead with bleeding injuries.
3. On the following day i.e. 19th April 2005, a meeting was
convened to which the Appellant had also called. The two sons of
the deceased i.e. Bhima Kabasi (P.W.5) and Rama Kabasi (P.W.6)
were also present. The Appellant is stated to have made an extra
judicial confession at the said meeting of having killed the
deceased on the previous night with a Tangia and is also stated to
have produced the said Tangia at the meeting. P.W.5 was then
instructed to keep the blood-stained Tangia with him. P.W.4
proceeded to the Malkangiri Police Station (P.S.) and lodged the
report. This was reduced to an FIR (Exhibit 2/1) under Section
302 IPC.
4. The Investigating Officer i.e. Prakash Kumar Rath (P.W.8)
took up the investigation, proceeded to the spot and collected the
blood-stained earth and sample earth from the spot. The said
Tangia was seized on being produced by P.W.5. The wearing
apparels of the Appellant were also seized. After conducting
inquest over the dead body of the deceased, it was sent for post-
mortem (PM) Examination.
5. On completion of the investigation, a charge-sheet was laid
against the Appellant. He pleaded not guilty and claimed trial.
6. The PM of the deceased was conducted by one Dr. K. C. K. D.
N. Hembram, at the District Headquarters Hospital, Malkangiri.
However, the evidence in that regard was given by Dr. Jyotirmay
Nayak (P.W.7), who was acquainted with the handwriting and
signature of Dr. Hembram. The PM report revealed an incised
wound over left temporal region and another incised wound over
the left side of the neck of the deceased. There was a fracture of
left temporo zyogomatic bone. The case of death was due to the
injury to the brain.
7. The two eye-witnesses - the sons of the deceased, P.Ws.5 and 6
- have consistently spoken about the Appellant assaulting their
father, the deceased, with a Tangia and killing him on the spot.
8. In the cross-examination of P.Ws.4, 5 and 6, while nothing has
been brought out to raise any doubt as to the veracity of their
versions, which is by and large consistent on the material aspect,
one factor that has emerged concerns the mental condition of the
Appellant. In his cross-examination, P.W.4 states "the accused is
suffering from mental disturbances and psychological problem at
times he becomes violent." Apparently, at the meeting also "the
accused was trying to create disturbance."
9. Likewise, P.W.5 in his cross-examination states "the accused is
in the habit of moving around in the village. His mental state is
disturbed and he had gone mad about two years back." In fact, the
accused happened to be the 'Badabapa' of P.W.5. Likewise,
P.W.6 in his cross-examination states "the accused had gone mad
for about 4 years."
10. However, Mr. Janmejaya Katikia, learned Additional
Government Advocate (AGA) drew attention to the cross-
examination of P.W.7, Dr. Jyotirmay Nayak, who purportedly
examined the Appellant soon after the occurrence. In his cross-
examination, he stated that he had not found any abnormality with
the Appellant. Likewise, P.W.8 denied in the cross-examination
that the Appellant was not in a fit mental state. He explained that
he did not send the Appellant for any mental checkup.
11. Learned counsel for the Appellant pointed out that this was a
motiveless crime and the trial Court had not paid attention to the
fact that the Appellant was mentally unsound.
12. A perusal of the impugned Judgment of the trial Court reveals
that the plea as to the mental condition of the Appellant was
perhaps raised only at the stage of arguments. The trial Court
noted that such a plea should have been taken at the very first
instance.
13. Nevertheless, the Court is of the view that this was an
important factor, which could not have been overlooked by the
trial Court.
14. The fact of the matter is that today the Appellant has
undergone nearly seventeen years of incarceration. The Court
would therefore urge, while confirming the guilt of the Appellant
and, therefore, the judgment of the trial court, the State
Government to consider the premature release of the Appellant,
but importantly only after ascertaining his current mental status. If
the Appellant requires further treatment for his mental condition
then the State Government will take adequate steps to ensure that
he receives such treatment as is appropriate to his present mental
condition. This is irrespective of whether he is prematurely
released or not.
15. With the above observation, the appeal is dismissed, but in the
circumstances, with no order as to costs.
(Dr. S. Muralidhar)
Chief Justice
(Chittaranjan Dash)
Judge
M. Panda
