Orissa High Court
Bijay @ Parama Mallik vs State Of Odisha on 11 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA NO.62 OF 2016
In the matter of an Appeal under section-383 of the Code of Criminal
Procedure, 1973 and from the judgment of conviction and order of
sentence dated 22.10.2016 passed by the learned Additional Sessions
Judge, Nimapara in Sessions Trial No.35/329 of 2016.
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Bijay @ Parama Mallik ..... Appellant
-versus-
State of Odisha ..... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
==================================================
For Appellant - Ms. Prativa Mishra,
Advocate,
For Respondent - Mr. P.K. Mohanty,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING :03.08.2023 : DATE OF JUDGMENT: 11.08.2023
D.Dash, J. The Appellant from inside the jail has challenged the judgment of
conviction and order of sentence dated 22.10.2016 passed by the learned
Additional Sessions Judge, Nimapara in Sessions Trial No.35/329 of
2016 arising out of G.R. Case No.134 of 2006 corresponding to Konark
P.S. Case No.24 of 2006 of the Court of the learned Judicial Magistrate
First Class (J.M.F.C.), Nimapara.
The Appellant (accused), thereunder has been convicted for
committing offence under section-302 of the Indian Penal Code, 1860
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(for short 'the IPC') and he has been sentenced to undergo imprisonment
for life and pay fine of Rs.20,000/- in default to undergo rigorous
imprisonment for one year.
2. Prosecution Case:-
On 04.03.2006 at about 1.00 pm one Subash Chandra Pradhan
(Informant-P.W.10) lodged a written report with the Inspector-In-Charge
(IIC), Konark Police Station that on 27.02.2006 around 1.30 am, this
accused-Bijay @ Parama Mallik, who was working under him attacked
his brother-Pitabas Pradhan with a spade, causing bleeding injuries.
Thereafter, being taken for treatment to Puri Hospital, he has referred to
SCB Medical College and Hospital, Cuttack. At the relevant time of
lodging of the information, Pitabas was undergoing treatment in the
intensive care unit of the Hospital at Cuttack. Receiving the report as
above, the IIC treated the same as F.I.R.(Ext.3) and registering the case,
took up investigation.
3. In course of investigation, the Investigating Officer (I.O.-P.W.21)
examined the Informant (P.W.10) and other witnesses. He then visited
the spot. He seized spade from that spot, which is a hut located at the end
of village Khalakatapatna and prepared seizure list to that effect. He also
recorded the statements of other witness under section-161 of the Cr.P.C.
On the next day, he went to the SCB Medical College and Hospital
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where Pitabas was undergoing treatment. Sometime later, he received the
telephonic message from the IIC, Mangalabag P.S. that Pitabas in course
of treatment died and Mangalabag P.S. U.D. Case No.192 of 2006 had
been registered. He then collected all required documents, such as the
inquest report, postmortem report etc, prepared in that U.D. case. On his
transfer, he handed over the charge of investigation to his successor in
office. The accused was however not traced out despite all efforts in that
regard. So, finally, the second I.O. (not examined as he was by the time
of trial was dead), submitted the Final Form indicating therein that the
accused could not be traced out.
When the matter stood thus on 15.05.2011, Sub-Inspector (S.I.) of
Police, Konark P.S. (P.W.22) received VHF message from IIC,
Nimapara P.S. that in Nimapara P.S. Case No.69 of 2011, this accused-
Bijay had been arrested and he while in police custody confessed to have
committed murder of Pitabas Pradhan on 27.02.2006. The accused was
then forwarded in custody to the Court in connection with that Nimapara
P.S. case.
The investigation of the present case thus was reopened. The S.I.
of Police (P.W.22) then proceeded to Nimapara P.S. and recorded the
statement of the IIC, Nimapara P.S. He also by making application got
the test identification parade conducted in Nimapara Sub-Jail through
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J.M.F.C. Nimapara. P.W.22, the S.I. of Police, Konark P.S. then made a
prayer in the Court of learned J.M.F.C., Nimapara to take this accused on
remand in connection with the present case. He then handed over the
charge of investigation to the then IIC, Konark P.S.
On completion of investigation, the I.O. (P.W.23) submitted the
Final Form, placing the accused to face the trial for commission of
offence under section-302 of the IPC.
4. Learned J.M.F.C., Nimapara having received the Final Form as
above, took cognizance of the said offence and after observing the
formalities, committed the case to the Court of Sessions. That is how the
Trial commenced by framing the charge for the said offence against the
accused.
5. In the Trial, the prosecution in total has examined twenty seven
(27) witnesses. P.W. 1 has been examined as an eye witness to the
occurrence. P.W.2 is the immediate post occurrence witness whereas
P.W.4, P.W. 5, P.W. 7, P.W.12, P.W.13, and P.W.17 are the post
occurrence witnesses. The person, who had arrayed the job under one
Ramesh Pradhan (P.W.9), has been examined as P.W.6. The previous
employer of the accused is P.W.8. P.W.6, P.W.9 and P.W. 10 are the
brothers of the deceased. The tailor who had stitched the shirt of the
accused at the instance of the Informant (P.W.10) has been examined as
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P.W.11. The Prof. of FM &T of SCB Medical College and Hospital,
Cuttack, who had made autopsy over the dead body of the deceased, has
come to the witness box as P.W.14. P.W.15 is the scribe of the
F.I.R.(Ext.3) lodged by P.W.10. The J.M.F.C., Nimapara, who had
conducted test identification parade of the accused, has been examined
as P.W.18; whereas P.W.19 is the witness to the inquest. P.W.22 and
P.W.23 are the Investigating Officers whereas P.W.24 is the S.I. of
Police attached to Mangalabag P.S. P.W.25. P.W.26 and P.W.27 are the
witnesses to the seizure of incriminating articles made in course of
investigation.
6. The prosecution besides leading evidence by examining the above
witnesses has also proved several documents which have been admitted
in evidence and marked Exts.1 to 11. Out of those, the important are the
F.I.R. (Ext.3), postmortem report (Ext.4), inquest report, Ext. 8 and the
statement of the accused pursuant to which the recovery of shovel
(Fauda-M.O.-I) and the mat (M.O.-II) was made. The test identification
parade report is Ext.2/1 and the concerned seizure list is Ext.1.
7. The plea of the accused is that of complete denial and false
implication. However, no witness has been examined in his defence in
support of the said plea.
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8. The Trial Court on going through the evidence of the Prof. FM&T
of S.C.B. Medical College and Hospital (P.W.14) and his report Ext.4
has held the death of Pitabas to be homicidal. In fact this aspect of the
case was not challenged during the Trial and that is also the situation
before us.
P.W.14, the Doctor during postmortem examination has noted
three (3) stitched incised wounds over the dead body; one extending
from the medial end of right eye brow from the frontal head to the left
parietal eminence; the other one extending from the left lateral end of
eye brow to the parietal head in an entro posterior direction; and the last
one, over the lateral aspect of the right thigh. On dissection, the skull
bone of the right parietal head revealed a cut fracture where a bore hole
operation was noticed with repair of dura under it. The under surface
scalp found contused. He also found subdural haemorrhage present
defusedly over the whole of cerebrum where both frontal and right
parietal brain contused and lacerated. It has been deposed by P.W.14 that
all the injuries were antemortem in nature and to have been caused by a
sharp cutting weapon. According to him, each of the injuries near the
eyes are individually fatal to cause the death, in ordinary course of
nature and his specific evidence is that the cause of death was due to
cranio-cerebral injuries.
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Besides the above evidence, the evidence of the other witnesses
examined from the side of the prosecution run on the score that they had
seen deceased with such injuries. The S.I. of Police attached to
Mangalabag P.S. (P.W.19), who had held inquest over the dead body of
the deceased and prepared his report Ext.8 had indicated all those
injuries thereon. Above overwhelming evidence when has not faced any
challenge from the side of the defence, we wholly concur with the
finding of the Trial Court that Pitabas met a homicidal death.
9. Learned Counsel for the Appellant (accused) submitted that the
evidence of P.W.1 and P.W.3, who had been projected by the
prosecution as the eye witnesses having not been properly appreciated by
the Trial Court erroneously reliance upon the same has been placed in
concluding the deceased to have caused all such fatal injuries upon the
deceased. She further submitted that evidence of P.W.1 and P.W.3 do not
tally with each other and none of them have seen the accused to have
assaulted the deceased and therefore, simply because the accused was
not near them in the place where he was sleeping, the Trial Court ought
not to have held the accused to be the author of the injuries caused on the
deceased. She further submitted that the evidence of P.W.9 and P.W.10
are of no avail to the prosecution and the Trial Court did commit error in
relying upon their version. She therefore, submitted that when the
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prosecution evidence is not clear on the point that it is the accused, who
had assaulted the deceased in that relevant night, the finding of guilt
returned by the Trial Court is simply based on suspicion and thus the
conviction although moral cannot stand as being not legal.
10. Learned Counsel for the State while supporting the finding of
guilt against the accused as has been returned by the Trial Court
contended that the evidence of P.W.1, P.W.3, P.W.9 and P.W.10 being
read, there surfaces no such infirmity and the prosecution has well
established the charge against the accused through leading the evidence
through those witnesses beyond reasonable doubt.
11. Keeping in view the submissions made; we have carefully gone
through the judgment passed by the Trial Court and we have also
extensively travelled through the depositions of the prosecution
witnesses i.e. P.Ws. 1 to 27 and have perused the documents which have
been admitted in evidence and marked as Exts.1 to 11.
12. In order to judge the sustainability of the finding of guilt against
the accused as has been returned by the Trial Court, it would be proper
to have a critical look over the evidence of P.W.1, P.W.3, P.W. 9 and
P.W.10.
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P.W.1 having specifically identified this accused the during trial
by indicating certain special mark as finds mention in the deposition as
to the prominent black mole beside the left side nose on left face has
stated that during that night, he, deceased-Pitabas, Akshaya (P.W.3) and
the accused were sleeping together in a hut located close to the prawn
culture pond. He has stated that during that night, accused by pouring
kerosene in a Dibi (small lamp) poured some kerosene on the ground
and therefore, deceased-Pitabas expressed his displeasure. So, there was
hot exchange of words and altercation between accused on one hand and
deceased on the other. He further states that accused then spreading the
mat slept on the floor and at that time, the leg of the accused hit the Dibi
(small lamp) and the lamp got displaced. So, the deceased then also
expressed his displeasure and thereafter the deceased having properly set
the Dibi (small lamp), went for sleep. He has further stated that around
1.30 am, he heard the cry of the deceased and saw him boating his lands
and legs on the ground under severe pain, when he saw the accused
making his way out of the hut holding kodala stained with blood. He
further states that accused being chased, managed to flee away by
throwing the kodala near the entrance of the hut in that dark night. His
further evidence is that there after, Akshaya (P.W.3) woke up and they
took Pitabas to the Hospital. Despite scathing cross-examination, we
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find that the evidence of this witness as to the happenings in the night
inside that hut have not been shaken nor any such feature has been
elicited from him to raise any doubt in mind as to his presence in the
relevant night in the said hut. His evidence of course is not to have seen
the accused dealing the blows on the deceased. But his evidence has
remained firm on the ground that when he woke up hearing the cry; he
saw the accused trying to make his way out of the hut holding kodala
stained with blood and then the deceased was boating his forelimbs out
of pain with profuse bleeding on account of severe injuries sustained by
him and the only other person i.e. P.W.3, who was sleeping with them is
stated to have woken up later. Save and except, bare denial, the accused
is not providing any explanation whatsoever. The other person who was
sleeping with P.W.1, deceased and the accused in the said hut is P.W.3.
It is his evidence on around 1.30 am, when he woke up, he found
deceased lying on the floor with severe bleeding injuries on his face and
his eye balls were almost uprooted. He has also stated to have seen the
kodala lying close to the entrance. He further states to have then
immediately gone to the house of Balia and told about the murderous
assault upon Pitabas by this accused-Bijay. He has identified the accused
in the test identification parade held in Nimapara Sub-Jail being
conducted by the Judicial Magistrate First Class (P.W.18). He appears to
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be a truthful witness having not gone to state as to have seen the accused
dealing the deadly blows upon the deceased. No cross-examination
appears to have been directed to entertain any doubt on his version either
as to his presence in the hut in the relevant night or that he could not
have seen that he states. The evidence of this witness is getting
corroboration from the evidence of P.W.9, who has the brother of the
deceased, who has stated that accepting request of P.W.6, he had
employed the accused and that P.W.1, P.W.3 and accused were staying
in that hut located closed to the prawn pond for keeping a watch over the
area. P.W.10 had stated that in that relevant night, Pitabas (deceased),
the accused, P.W.1 and P.W.3 had gone to the hut to sleep and that he
being the younger brother of P.W.9 had the knowledge about that.
The J.M.F.C., P.W.18 has deposed that he had held the test
identification parade, putting this accused with other similar looking
persons in Nimapara Sub-Jail. He has also stated that after observing all
legal formalities, the T.I. parade had been held by him.
As per the evidence of P.W.18, the Informant (P.W.10) had
correctly identified the accused in stating that he was working under
him. It is also his evidence that P.W.1 and P.W.3 had also correctly
identified the accused stating as to what they had seen in the relevant
night. This evidence provide further corroboration to the evidence of
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P.Ws. 1 and 3. There appears no such discrepancy in the evidence of
P.W.1, P.W.3, P.W. 9 and P.W.10 and more particularly, P.W.1 and
P.W.3 are found to have deposed in a natural manner and their conduct
is also in tune with what was ordinarily expected from in that situation;
so also their response / reaction after them saw deceased Pitabas lying
with severe bleeding injuries on his face with eye balls almost in
uprooted condition.
All the above discussed evidence on record free from any such
glaring infirmity so as to be thrown aside, we are led to conclude that the
prosecution has established the charge against the accused by leading
clear, cogent and acceptable evidence against the accused beyond
reasonable doubt.
13. In the result, the Appeal stands dismissed. The judgment of
conviction and order of sentence dated 22.10.2016 passed by the learned
Additional Sessions Judge, Nimapara in Sessions Trial Case No.35/329
of 2016 are hereby confirmed.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO (Dr.S.K.Panigrahi),
Designation: Peresonal Assistant
Reason: Authentication Judge.
Location: OHC
Date: 17-Aug-2023 15:39:26
Narayan
JCRLA No. 62 of 2016
