Jadunath Murmu @ Majhi vs State Of Odisha
2023 Latest Caselaw 10498 Ori

              IN THE HIGH COURT OF ORISSA, CUTTACK

                                     CRLA No.13 of 2001

       From judgment and order dated 13.12.2000 passed by the
       Additional Sessions Judge, Rairangpur in S.T. Case
       No.33/144 of 2000.
                                          ---------------------------

1. Jadunath Murmu @ Majhi

2. Majhia Patra

3. Kanhu Murmu .......... Appellants

-Versus-

       State of Odisha                                .......                         Respondent

                     For Appellants:                     -      Ms. Tejasmita Mohapatra
                                                                Advocate

                    For Respondent:                      -      Mr. Manoranjan Mishra
                                                                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: 31.08.2023

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S.K. SAHOO, J. The three appellants, namely, Jadunath Murmu

@ Majhi, Majhia Patra & Kanhu Murmu along with six other

accused persons faced trial in the Court of learned

Additional Sessions Judge, Rairangpur in S.T. Case

No.33/144 of 2000 for commission of offences under // 2 //

sections 341/34, 325/34, 294/34 & 307/34 of the Indian

Penal Code (hereinafter "the IPC").

The learned trial Court vide impugned judgment

and order dated 13.12.2000 acquitted the six co-accused

persons of all the charges. Similarly, the three appellants

were acquitted of the charges under sections 294/307/34 of

the IPC. Appellant no.2 was also acquitted of the charge

under section 325 of the IPC. All the three appellants were

found guilty under sections 341/34 of the IPC and each of

them was sentenced to pay a fine of Rs.500/- (rupees five

hundred), in default, to undergo S.I. for fifteen days,

appellant no.1 Jadunath Murmu @ Majhi and appellant no.3

Kanhu Murmu were also found guilty under sections 325/34

of the IPC and sentenced to undergo R.I. for five years and

to pay a fine of Rs.1,000/- (rupees one thousand) each, in

default, to undergo R.I. for a further period of fifteen days

each.

Prosecution Case:

The prosecution case, as per the first information

report lodged by P.W.2 Sakila Tudu on 23.07.1998 before

the A.S.I. of Police, Suleipat Out Post was that he along

// 3 //

with other co-villagers had been to village Udalikudar to

worship the deity on 21.07.1998 at about 5.00 p.m. and at

about 8.00 p.m. after finishing puja, while they were

returning to the village, on the way near Taladiha bridge,

appellant no.1 Jadunath Murmu @ Majhi obstructed them

holding a knife. He also put a pistol on the head of the

informant (P.W.2) and appellant no.2 Majhia Patra showed

bow and arrow at the villagers and obstructed them. It is

the further prosecution case as per the first information

report that the three appellants along with others started

assaulting them for which P.W.1 Chandra Mohan Majhi and

P.W.3 Bikram Majhi sustained injuries on different parts of

their body and both of them fell down on the ground and

became unconscious. The accused persons along with the

three appellants left the place and the co-villagers of the

informant (P.W.2) arrived there, brought the injured

persons from the spot and the injured persons were

admitted in Sub-Divisional Hospital, Rairangpur. On

23.07.1998 after the health condition of the injured persons

was improved, the first information report was lodged.

// 4 //

P.W.7, A.S.I. of Police of Suleipat Out Post on

receipt of such written report from P.W.2 made Station

Diary entry, i.e. SDE No.364 dated 23.07.1998 and since it

revealed cognizable offences, the written report was sent to

the O.I.C. of Badampahad Police Station for registration of

the case. P.W.7 took up preliminary investigation of the

case. The written report was registered by the O.I.C. of

Badampahad Police Station as Badampahad P.S. Case

No.31 dated 23.07.1998 under sections 341/307/323/294/

34 of the IPC read with section 27 of the Arms Act against

nine accused persons including the three appellants and the

O.I.C. directed P.W.7 to continue investigation of the case.

P.W.7 during investigation examined the

informant, visited the spot, examined the other witnesses,

arrested the some of the accused persons, met the injured

persons, i.e., P.W.1 & P.W.3 at Sub-Divisional Hospital,

Rairangpur, examined them and sent requisition for their

medical examination. On 30.07.1998, he received the injury

reports from the Sub-Divisional Hospital, Rairangpur and on

05.08.1998, he received the injury report of appellant no.1

from C.H.C., Badampahad, where he had also been sent for

// 5 //

medical examination. Some other seizures were made

including the seizure of blood stained earth and sample

earth from the spot. The charge of the investigation was

handed over by P.W.7 to one Sarangadhar Sethi, S.I. of

Police, Badampahad Police Station who seized the X-Ray

plate of P.W.1, the bed head ticket of P.W.1 and P.W.3 from

Sub-Divisional Hospital, Rairangpur and sent the exhibits to

S.F.S.L., Rasulgarh, Bhubaneswar through the learned

S.D.J.M., Rairangpur and on completion of investigation,

charge sheet was submitted against the nine accused

persons including the three appellants.

The case was committed to the Court of Session

after observing due formalities and on 16.10.2000 charges

were framed not only against the three appellants, but also

against the six co-accused persons under various offences

as already stated and since the accused persons pleaded

not guilty and claimed for trial, the sessions trial procedure

was resorted to establish their case.

Prosecution & Defence Witnesses:

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

the prosecution examined as many as seven witnesses.

// 6 //

P.W.1 Chandra Mohan Majhi, who is the injured,

has stated that he along with other villagers had been to

village Udalikudar to perform puja ceremony and while they

were returning, all of a sudden, the accused persons

obstructed him and others at Taladiha bridge. Appellant

no.1 showed him and others a pistol and gave a pistol blow

on the back side on his head for which he sustained severe

bleeding injuries on his head and appellant no.3 Kanhu

Murmu gave a lathi blow on his back for which he became

senseless and the appellant no.3 dealt lathi blows on the

head of Bikram Majhi (P.W.3) for which he sustained

bleeding injuries. The appellant no.2 Majhia Patra showed

him and others bow and arrows and the villagers took him

and others to Suleipat Out Post first and then he was

shifted to Rairangpur S.D. hospital for treatment.

P.W.2 Sakila Tudu is the informant of the case.

He stated that he along with others had been to village

Udalikudar for performing puja and while they were

returning, on the way near Taladiha bridge, all the accused

persons restrained them by holding pistol, bows and arrows

and lathis. First appellant no.3 dealt lathi blows on the head

// 7 //

of P.W.3 causing bleeding injuries. He further stated that

the appellant no.1 dealt a pistol blow on the back of the

head of P.W.1 causing bleeding injuries. Appellant no.2

showed him and others bows and arrows and obstructed.

He further stated that by assault, P.W.1 and P.W.3 became

senseless and thereafter the villagers took the injured

persons to the Out Post and at the instance of police, he

and others shifted the injured persons to S.D. hospital,

Rairangpur for treatment. He further stated that on the

night of occurrence, when he lodged the report, the police

did not accept the same and advised him to take the

patients for treatment for which after three days of

occurrence, he lodged a written report at the police station.

P.W.3 Bikram Majhi is another injured, who has

stated that on 21.07.1998 at about 5.00 p.m., he, P.W.1

and P.W.2 and others had been to village Udalikudar to

attend the puja ceremony and at about 8.00 p.m., while

they were returning home, at Taladiha bridge, the accused

persons obstructed him and others by holding pistol, bows,

arrows and lathis. First appellant no.3 dealt a lathi blow on

his head causing bleeding injury as a result of which he fell

// 8 //

down and became senseless soon after the assault. He

further stated that he had good relationship with the

accused persons before the date of occurrence and there

was no quarrel between them.

P.W.4 Mirza Kisku has stated that he and P.Ws.1,

2 & 3 had been to the village Udalikudar to attend the puja

ceremony on the invitation of villagers of Udalikudar. When

they were returning to the village, at Taladiha bridge, the

accused persons obstructed them by holding lathis, pistol,

bow and arrows, etc. All on a sudden the appellant no.3

dealt a lathi blow on the head of P.W.3 where he fell down

and he himself ran away from the spot out of fear.

P.W.5 Dr. Sudhir Kumar Satpathy was the

Assistant Surgeon at S.D. Hospital, Rairangpur and on

police requisition, he examined P.W.1 and P.W.3 and proved

his reports.

P.W.6 Bhagla Majhi did not state anything about

the case.

P.W.7 Sukra Sethi was the A.S.I. of Police of

Suleipat Out Post and he is the Investigating Officer.

// 9 //

The prosecution exhibited ten numbers of

documents. Ext.1 is the written report, Exts.2 & 3 are the

injury reports, Exts.4 & 5 are the bed head tickets, Exts.6,

7, 8, 9 & 10 are the seizure lists.

Defence Plea:

The defence plea of the appellants was one of

the complete denial and it was pleaded that P.W.2 assaulted

the appellant no.1 and the case has been falsely foisted.

One witness, namely, Pratap Murmu was

examined as D.W.1 and the injury report of appellant no.1

was marked on behalf of the defence as Ext.A.

Finding of the Trial Court:

The learned trial Court, after assessing the oral

as well as the documentary evidence on record, came to

hold that from the evidence of the witnesses, it transpires

that while the informant along with other witnesses were

coming to their village, at that time, appellant no.3 dealt

lathi blow on the head of P.W.3 and that the prosecution

has proved that the appellants nos.1 and 3 voluntary

caused grievous hurt to P.W.1, but the prosecution has

failed to prove that the accused persons had attempted to

// 10 //

cause death of P.W.1 and P.W.3 and accordingly, appellant

no.1 and appellant no.3 were found guilty under sections

325/34 of the IPC. The learned trial Court also found that

the evidence so far as the commission of offence under

section 341 of the IPC is concerned to be credible and

cogent. Accordingly, the learned trial Court while convicting

the three appellants as already discussed, acquitted the six

co-accused persons.

Contentions of Parties:

Ms. Tejasmita Mohapatra, learned counsel for the

appellants contended that the doctor (P.W.5) has examined

both the injured persons, i.e., P.W.1 and P.W.3 and though

P.W.3 has sustained two injuries, both the injuries have

been opined to be simple in nature and out of five injuries

sustained by P.W.1, only one injury which was on the right

palm on the back side has been opined to be grievous in

nature but neither the x-ray report has been proved nor the

person, who conducted the x-ray has been examined and

moreover, there is no specific evidence as to which accused

assaulted on the right palm of P.W.1. Therefore, the

conviction of the appellant nos.1 and 3 under section

// 11 //

325/34 of the IPC is not sustainable in the eye of law.

Learned counsel further argued that the sequence of assault

is discrepant from witness to witness and in view of the

evidence of P.W.5, the doctor that he examined the injured

persons, i.e., P.W.1 and P.W.3 on police requisition on

23.07.1998 and the age of the injury was within six to eight

hours, it does not co-relate to the time of occurrence.

Learned counsel further argued that delay in lodging the

F.I.R. has not been satisfactorily explained by the

prosecution. The explanation given by the prosecution for

delay in lodging of the F.I.R. that the police did not accept

the written report on the night of occurrence, gets no

corroboration from the other evidence and had there be any

information with the authorities of S.D. Hospital that it was

a medico-legal case, they would have intimated the same to

the concerned police station which has not been done and

therefore, the prosecution got ample opportunity to concoct

a case and therefore, the delay in lodging the F.I.R. makes

the entire prosecution case suspicious and it is a fit case,

where benefit of doubt should be extended in favour of the

appellants.

// 12 //

Mr. Manoranjan Mishra, learned Additional

Standing Counsel on the other hand supported the

impugned judgment and submitted that the two injured

persons, i.e., P.W.1 and P.W.3 have stated that as to who

assaulted them and by what weapons and on which part of

their body and their evidence is consistent, which is also

corroborated by the medical evidence. P.W.2, the informant

has specifically stated that on the night of occurrence, when

he went to the police station to lodge the first information

report, he was asked to take the injured persons for the

treatment and accordingly, he took them to the hospital and

the bed-head tickets of the two injured persons indicate

that they were admitted in the hospital during the night of

21/22.07.1998 and in such a scenario, the delay in lodging

the F.I.R. cannot be a ground to disbelieve the prosecution

case. It is argued that the injured persons are the best

witnesses and their presence at the scene of occurrence

cannot be doubted and therefore, the appeal being devoid

of merit should be dismissed.

Analysis of Evidence:

Coming to the evidence of the doctor (P.W.5), it

// 13 //

appears that on 23.07.1998 he was the Assistant Surgeon

at S.D. Hospital, Rairangpur and on police requisition, he

examined both the injured persons, i.e., P.W.1 and P.W.3.

So far as P.W.1 is concerned, he found the following

injuries:

"i) Lacerated injury 3"x½"x½" on the right forehead near hair line obliquely. The injury is simple in nature and might have been caused by heard and blunt weapon.

ii) Bruise 6"x1" on the right, back above the lumber one side horizontally.

iii) Bruise 6"x1" on the left back on elduspine horizontally.

iv) Bruise 4"x1" on the middle of the left back horizontally.

All the injuries were simple in nature and might have been caused by hard and blunt object.

v) Swelling and tenderness of right palm on the back side. Circular winds dibating.

X-ray of the right hand vide Plate No.175 dated 23.07.1998 showed fracture shaped of 3rd and 4th metacarple bone. Injury is grievous in nature and might have been caused by hard and blunt weapon.

// 14 //

Age of the injuries was within six to eight hours. He proved the x-ray report marked as M.O.I."

Similarly so far as P.W.3 is concerned, he found

the following injuries:

"i) Laceration injury on the skull 2"x½"x 1/3" on the left side forehead 1" above the eye lid.

ii) Bruise 1"x ½" on the middle of the left arm over the deltoid muscles.

Both the injuries are simple in nature and might have caused by hard and blunt object. Age of the injury was within six to eight hours of his examination. The injured was examined by him at 2.10 a.m."

P.W.5 has specifically stated that he had

admitted both the injured persons in the hospital for

treatment as indoor patient and they were discharged on

29.07.1998. He also proved the bed-head certificates of

both the injured, i.e., P.W.1 and P.W.3.

On a careful analysis of the evidence of the

doctor, it indicates that none of the injuries sustained by

P.W.3 is grievous in nature and only one injury sustained by

P.W.1 has been opined to be grievous in nature. The

// 15 //

opinion of the doctor (P.W.5) that the particular injury on

the right palm of P.W.1 on the back side is grievous is

based on the x-ray plate, which has been marked as M.O.I,

but the person, who conducted the x-ray has not been

examined nor the x-ray report has been proved. According

to the prosecution, the occurrence took place on

21.07.1998 at 8.00 p.m. P.W.5 examined the two injured

persons on 23.07.1998 and opined that the age of the

injuries was within six to eight hours. Thus, the injuries do

not co-relate to the time of the occurrence as per the

prosecution case. The prosecution has not offered any

explanation in that respect.

The informant (P.W.2) has stated that after the

assault, he along with others shifted both the injured

persons, i.e., P.W.1 and P.W.3 to S.D. hospital, Rairangpur

for treatment and he further stated that on the night of

occurrence when he lodged the report, the police did not

accept his report and advised him to take the patients for

treatment and after three days of occurrence, he lodged the

written report at the police station. In fact, the formal F.I.R.

// 16 //

indicates that the written report was lodged two days after

the occurrence.

Though P.W.1 stated to have gone to Suleipat

Out Post after the occurrence on the date of incident and

thereafter, he was shifted to S.D. hospital but he has not

stated that P.W.2 tried to lodge any first information report

at Suleipat Out Post and the police did not accept such

report and advised him to take the patients for treatment.

P.W.7, A.S.I. of Police at Suleipat Out Post is

totally silent that P.W.2 had earlier came to the Out Post for

lodging the written report and that he was told to take the

patients first to the hospital for treatment and the report

was not accepted. Therefore, there is no corroboration to

the evidence of P.W.2 that on the night of occurrence, he

had gone to lodge the report at the Out Post, which was not

accepted and he was advised to take the patients to the

hospital for treatment. The injured persons as per the bed-

head tickets were admitted in the S.D. hospital, Rairangpur

during the night of 21.07.1988/22.07.1998. Had there been

any intimation given to the hospital authorities that it was a

medico legal case, information would have been sent to the

// 17 //

concerned police station, but the same has not been done.

Therefore, even though P.W.1 and P.W.3 were hospitalized

since the night intervening 21.07.1998 and 22.07.1998 at

S.D. Hospital, Rairangpur, there was no material before the

hospital authorities that it was a medico-legal case and

therefore, the possibility of concoction of the case by taking

time to give shape to the case cannot be ruled out.

Learned counsel for appellants placed reliance on

the case of Thulia Kali -Vrs.- State of Tamil Nadu

reported in A.I.R. 1973 S.C. 501, wherein it was held

that F.I.R. in a criminal case is an extremely vital and

valuable piece of evidence for the purpose of corroborating

the oral evidence adduced at the trial. The important of the

report can hardly be overestimated from the standpoint of

the accused. The object of insisting upon prompt lodging of

the report to the police in respect of commission of an

offence is to obtain early information regarding the

circumstances in which the crime was committed, the

names of the actual culprits and the part played by them as

well as the names of eye witnesses present at the scene of

occurrence. Delay in lodging the first information report

// 18 //

quite often results in embellishment which is a creature of

afterthought. On account of delay, the report not only gets

bereft of the advantage of spontaneity danger creeps in of

the introduction of coloured version, exaggerated account of

concocted story as a result of deliberation and consultation.

It is therefore, essential that the delay in lodging of the first

information report should be satisfactorily explained.

Coming to the evidence of the two injured

persons, so far as the injured Chandra Mohan Majhi (P.W.1)

is concerned, he has stated that appellant no.1 assaulted

him on the back side of his head with a pistol for which he

sustained bleeding injury on the head and appellant no.3

assaulted him by a lathi on his back for which he became

senseless. Though P.W.3 and P.W.4 are the eye witnesses

to the occurrence, their evidence is totally silent about any

injury caused to P.W.1. Though the informant (P.W.2) has

stated that the appellant no.1 assaulted on the head of

P.W.1 with back of pistol, but he has not stated about any

assault by appellant no.3 to P.W.1. Even though P.W.1 has

sustained as many as five injuries and the grievous injury is

on the back of the right palm, but none of the witnesses has

// 19 //

stated as to which accused caused injury on the right palm

of P.W.1.

So far as the injured Bikram Majhi (P.W.3) is

concerned, the witnesses have stated that it is appellant

no.3 Kanhu Murmu, who dealt a lathi blow on the head of

P.W.3, but the doctor (P.W.5) has opined that the head

injury to be simple in nature. The evidence of P.W.3

indicates that they had good relationship with the accused

persons before the date of occurrence and there was no

quarrel between them and the accused persons before the

occurrence. If that was the state of affair, there was no

motive as to why on that particular date, the accused

persons would congregate and assault the injured persons

for no reason.

Conclusion:

In view of the forgoing discussions, when the

delay in lodging the first information report has not been

satisfactorily explained, the age of the injuries do not co-

relate to the time of occurrence, the prosecution evidence is

discrepant relating to the assault on P.W.1 and it is silent as

to who caused the grievous injury sustained by P.W.1 on his

// 20 //

right palm on the back side and the material witness, who

conducted the x-ray of the right palm of P.W.1 has not been

examined nor the x-ray report has been proved and when

evidence has come on record that there was no previous

enmity between the parties and their relationship was good

or on other words, there was no motive behind the

commission of crime, I am of the humble view that it is a fit

case where benefit of doubt should be extended in favour of

the appellants.

Accordingly, the conviction of the appellants

nos.1 and 3 under sections 341/325/34 of the IPC and the

conviction of all the appellants under section 341/34 of IPC

and the sentence passed thereon is hereby set aside. The

appellants are acquitted of the charges. The appellants, who

are on bail by virtue of the order of this Court, are

discharged from liability of their bail bonds. The personal

bonds and the surety bonds hereby stand cancelled.

The trial Court records with a copy of this

judgment be sent down to the concerned Court forthwith for

information.

// 21 //

Before parting with the case, I would like to put

on record my appreciation to Ms. Tejasmita Mohapatra,

learned counsel for the appellant for rendering her valuable

assistance towards arriving at the decision above

mentioned. This Court also appreciates the valuable

assistance provided by Mr. Manoranjan Mishra, learned

Additional Standing Counsel.

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

S.K. Sahoo, J.

Orissa High Court, Cuttack The 31st August, 2023/amit

Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Sep-2023 14:15:46