Orissa High Court
Bai @ Balaram Giri vs State Of Odisha on 11 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.389 of 2023
In the matter of an Appeal under Section 374(2) of the Code of
Criminal Procedure and from the judgment of conviction and
order of sentence dated 3rd March, 2023 and 15th March, 2023
respectively passed by the learned Sessions Judge, Balasore in
Sessions Trial No.206 of 2017.
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Bai @ Balaram Giri .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.D.P. Dhal, Sr. Advocate
Mr.B.S.Dasparida, Advocate
For Respondent - Mr. D.K. Mishra,
Addl. Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 07.08.2023 : Date of Judgment:11.08.2023
D.Dash,J. The Appellant, by filing this Appeal, has impeached the
judgment of conviction and order of sentence dated 3rd March,
2023 and 15th March, 2023 respectively passed by the learned
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Sessions Judge, Balasore in Sessions Trial No.206 of 2017
arising out of C.T. No.522 of 2016 corresponding to Bhograi
P.S. Case No.159 of 2016 of the Court of the learned Judicial
Magistrate First Class (J.M.F.C.), Jaleswar.
The Appellant (accused) thereunder has been convicted
for committing the offence under section 302 of the Indian
Penal Code, 1860 (for short, 'the IPC'). Accordingly he has
been sentenced to undergo imprisonment for life for the
offence under section 302 of the I.P.C. and pay fine of
Rs.10,000/- (Rupees Ten Thousand) in default to undergo
rigorous imprisonment for one year.
2. Prosecution case:-
The accused and Jagannath (deceased) are the two sons
of Rajanikanta Giri (informant-P.W.5) whereas, the injured-
Ranjita Giri (P.W.6) is his daughter. The wife of Rajanikanta
died in or about the year 2013. The accused and his wife
Laxmipriya were living separately from other members of the
family as there was separation amongst them in that way.
Rajanikanta (informant-P.W.5) after the separation lived with
his younger unmarried son, i.e., Jagannath (deceased). It is
stated that the accused after separation was torturing his
father both mentally and physically. For that reason,
Rajnikanta had tabled the matter for intervention of the village
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committee and with the intervention of the members of the
village committee, their landed properties were amicably
divided. However, in spite of such amicable division of the
immovable properties, the relationship between the accused
and his father as also his brother and sister had not restored to
normalcy and it is said that the accused still was creating
disturbance sometime, leading to the lodging of the complaint
at the police station.
On 20.10.2016, early morning, it being the auspicious
day of Kartika Purnima, Rajnikanta was sweeping the road in
front of his house after sprinkling cow dung water. The
accused during that time arrived near Rajnikanta and abused
him uttering "Sala Budha Sakale Shantire Suaai Debanahin".
He then also threatened to take away the life of Rajnikanta.
The accused then is said to have brought out the wooden
hammer and dealt a blow on the head of Rajnikanta.
Receiving the blow on the head, Rajanikanta (Informant-
P.W.5) shouted for help when his other son, Jagannath rushed
to the spot. He then restrained the accused and saved
Rajanikanta from being further assaulted. But the accused
then is said to have dealt a heavy blow on the head of
Jagannath. Receiving the said blow, Jagannath became
unconscious. At that time, Ranjita, the sister of the accused
and Jagannath having intervened to save her father
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Rajanikanta and brother Jagannath, was also assaulted by the
accused. With such hue and cry, spreading in the village in the
early morning hour, the villagers gathered at the spot.
Rajanikanta (Informant-P.W.5), Jagannath (deceased) and
Ranjita (P.W.6) were shifted to Jaleswar Hospital and
therefrom to District Headquarter Hospital, Balasore for better
treatment. The health condition of Jagannath when further
deteriorated, he was taken to S.C.B. Medical College and
Hospital, Cuttack and admitted in the Intensive Care Unit
(ICU) where in course of treatment, he met his death.
3. On 25.10.2016, Rajanikanta (Informant-P.W.5) the father
of the accused Jagannath (deceased) and Ranjita (P.W.6)
lodged a written report with the Inspector-in-Charge (I.I.C.) of
Jaleswar Police Station. The I.I.C. receiving the said report
treated the same as F.I.R. and upon registration of the case
directed one Sub-Inspector of Police (S.I.) (P.W.15) to take up
investigation. The Investigating Officer (I.O.-P.W.15)
examined the Informant (P.W.5), visited the spot, prepared the
spot map (Ext.P-9) and seized one bamboo stick at the spot in
presence of the witnesses under seizure list (Ext.P-3/a). He
issued injury requisition in favour of the Informant (P.W.5),
Jagannath (deceased) and Ranjita (P.W.6) for their medical
examination. On 27.10.2016, the I.O. (P.W.15) arrested the
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accused and seized his wearing apparels. Two days thereafter
the I.O. received the intimation regarding the death of the
Jagannath. He, therefore, collected all the papers concerning
Mangalabag P.S. U.D. Case, which had been registered on the
report of the death of Jagannath in the ICU of S.C.B. Medical
College and Hospital, Cuttack. The Post Mortem Examination
over the dead body of the deceased had been made at the
instance of the Inquiring Officer of that U.D. Case. The I.O.
(P.W.15) then prayed for sending the incriminating articles for
chemical examination through Court, which was so ordered.
On completion of Investigation, the I.O. (P.W.15) submitted
the Final Form placing the accused to face the trial for
commission of offence under section 302/323, I.P.C.
4. Learned J.M.F.C., Jaleswar, having receipt the Final
Form as above took cognizance of the said offences and after
observing the formalities committed the case to the Court of
Sessions for trial. That is how the trial commenced by framing
the charges for the said offences against this accused person.
5. The prosecution, in course of trial, has examined in total
sixteen (16) witnesses. As already stated P.W.5 is the
Informant and the father of the accused, deceased and P.W.6
and he had lodged the F.I.R. (Ext.P-1/2) scribed by P.W.12.
P.W.6 is the sister of the accused and deceased and it is also
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said that she had been injured by the accused. P.W.1 to P.W.3
are the co-villagers and P.W.4 is the witness who had played
his role in shifting the injured persons to the hospital. The
Doctor who had examined the P.W.5, P.W.6 and the deceased
at the initial stage has come to the witness box as P.W.11 and
P.W.16 is the Doctor who had conducted the autopsy over the
dead body of the deceased whereas the Investigating Officer is
P.W.15
6. The prosecution besides leading the evidence by
examining the above witnesses have proved several
documents which have been shown in detail in the list
appended to the judgment of the Trial Court. Therefore, in
order to avoid repetition, those are not further noted as those
would be referred to in the discussion to follow as and when
would be so necessary.
7. The plea of defence is that of complete denial. The
accused has examined himself in his defence as D.W.1 with
the permission of the court.
8. The Trial Court having examined the evidence of the
Doctor (P.W.16), who had conducted autopsy over the dead
body of the deceased and on going through his report (Ext.P-
11) along with the evidence of other prosecution witnesses
who had seen the deceased in an injured condition as also the
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evidence of the Doctor (P.W.11), who had initially examined
Jagannath has arrived at a conclusion that Jagannath had met
an homicidal death. In fact, this aspect of the case was not
under challenge before the Trial Court and that has also been
the situation before us.
9. We find that P.W.11 having examined Jagannath when
he was taken to the Jaleswar Hospital had noticed one
lacerated wound of the size of 4 cm X 5 cm X bone depth
present over the upper part of left parietal bone and from
Jaleswar Hospital, Jagannath was shifted to S.C.B. Medical
College and Hospital, Cuttack for better treatment where in
course of treatment, he has died. The Doctor (P.W.11), who
had conducted post mortem examination over the dead body
of the deceased has found the surgical stitch incise wound,
semicircular in shape, present starting 1.5 cm above glabella,
passes backward from 6 cm and then turning to left to reach 4
cm above left ear root, passing 8 cm in front to left parietal
eminence and another lacerated wound near the left ear lobe
with two other bruises below lateral end of left clavicle.
Besides the above few more bruises and scratches had been
noticed. It is his evidence that there was surgical intervention
for the head injury and the death was on account of cranio-
cerebral injury and complications thereof. It has been stated by
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him that the injuries were homicidal in nature and what we
find by reading the deposition of P.W.16 that the defence has
not at all been serious in impeaching his evidence on any
count. Besides the above, we find the evidence of other
witnesses including P.W.5 and P.W.6 that the deceased had
received injuries on his head and other parts of the body and
was taken to Jaleswar Hospital first for treatment wherefrom
to Balasore and then to Cuttack. Fact remains that in course of
treatment for the said injury, Jagannath died. When all the
above evidence firmly unto on the ground, we have no other
option but to concur with the finding of the Trial Court that
Jagannath met a homicidal death.
10. Mr. D.P. Dhal, learned Senior Counsel for the Appellant
(accused) submitted that the approach of the Trial Court as
would reveal from the very prologue of the judgment that
before going to discuss the evidence on record in finding out
answers to the points formulated, it is as if the Court was
sitting with a pre-determine mind. In this connection, he has
highlighted few sentences which have been written by the
Trial Court in its judgment at the beginning, which runs:-
"xxx xxx xxx xxx
Xxx xxx xxx xxx
The case in hand is a classic example where one
brother (accused of this case) acted like a demon on
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his own younger brother, father and sister over
some issues relating to the family and allegedly
killed his brother after causing serious injuries to
his father and sister. The tragic episode jinxed the
entire family in a trice because after such untoward
incident, the injured-father lodged an F.I.R. against
his accused-son ...... ............"
He submitted that if with the above view, the Court sits
to answer the points formulated; hardly it is expected that
there would be proper appreciation of evidence. He further
submitted that here the most important witnesses for the
prosecution is the father of the accused and deceased who is
the Informant and lodged the F.I.R. (Ext.P.1/2) as well as her
daughter, who is the sister of the accused and deceased
examined as P.W.6 and they have not supported the
prosecution case and the Trial Court has based the conviction
solely relying upon the evidence of P.W.2 in further stating
that the said evidence receives corroboration from the
evidence of P.W.5 and P.W.6 as also the other evidence. He
submitted that the person who are said to have been injured in
the incident and that to in the hands of the accused as per the
prosecution case are not coming forward to implicate the
accused in any manner with the crime by not stating that he
played any role in the crime scenario and thus the Trial Court
has committed grave error by relying upon the evidence of
P.W.2. According to him, when the best available witness for
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the prosecution here is the injured witnesses that to when as
per the prosecution case they were injured by none other than
this accused, are not stating anything against the accused, the
Trial Court ought to have kept in mind that in such
circumstance, it would be unsafe and hazardous to rely upon
the evidence of P.W.2 in such circumstance. He further
submitted that even if the evidence of P.W.2 is taken into
account on its face value, he cannot be said to be a truthful
witness; firstly because her evidence does not receive support
from the evidence of P.W.5 and P.W.6 and secondly, his
evidence would reveal that she too suppressing the initial
happening and that is fortified from the fact that the
prosecution here has not provided any explanation as to how
the accused had received the injury on his head which is not
superficial or too minor as not to be taken note of and fully
ignored. He, therefore, submitted that the finding of guilt
against the accused as has been returned by the Trial Court is
not at all the outcome of just and proper appreciation of
evidence and it appears to have been rendered by perversely
appreciating the evidence on record.
11. Mr. D.K. Mishra, learned Additional Government
Advocate submitted all in favour of the finding of guilt of the
accused as has been returned by the Trial Court. According to
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him, even though P.W.5 and 6 who are the father and sister of
the accused have at a later stage in the trial tried to save the
accused, have turned hostile by not supporting the
prospection case and resiling from their previous version
given during investigation, when he evidence of P.W.2 is
wholly believable as he too had no reason to falsely implicate
the accused, the Trial Court did commit no mistake in holding
the accused guilty of committing the murder of his younger
brother- Jagannath. He further submitted that the evidence of
P.W.2 having been thoroughly scrutinized by the Trial Court,
his version as regards the role played and act done by the
accused has been rightly accepted when also no such infirmity
has come to surfaces in her evidence and, therefore, the Trial
Court has rightly held the accused guilty of committing the
murder of his younger brother-Jagannath.
12. Keeping in view the submissions made, we have
carefully read the impugned judgment of conviction. We have
also extensively travelled through the depositions of the
witnesses (P.W.1 to P.W.16) examined from the side of the
prosecution and have perused the documents admitted in
evidence and marked Ext.1 to Ext.P-12 from the side of the
prosecution.
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13. As would reveal from the prosecution version made in
the F.I.R. that the incident took place in the early morning
hour. It is stated that P.W.5, the father of the accused was
attacked by this accused first after hurling abuses at him and
in the process the accused is said to have given a blow on the
head of P.W.5 by means of a wooden hammer. P.W.5 has
stated in his evidence to have been assaulted by a stranger and
he is also stating that the accused too, being assaulted, had
received the injury. During cross-examination, what we find
that the prosecution, except drawing the attention of this
witness to his previous statement as has been recorded by the
I.O. (P.w.15) which the witness has denied to have so stated
has not been directed to bring out anything to show that with
definite reason, this P.W.5 is not stating the truth. Even
though for a moment, it is accepted that what he has stated
before the I.O. (P.W.15) has not been stated in the trial; that
would simply make the evidence of P.W.5 as unreliable, but
then too, nothing more can be said in the direction of
providing the support to the prosecution case. This witness
has also stated that the villagers had taken his signatures on a
plain paper which shows he is disowning that the contents of
the F.I.R. (Ext.P-1/2) in saying those were not written under
his instructions.
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With such evidence of P.W.5 when we proceed to
examine the other important witness P.W.6, we find no
different state of affair. She has also stated that here younger
brother, father and she herself were assaulted by some
unknown person and the accused had also sustained injuries
and all of them, therefore, had been admitted in Jaleswar
Hospital. He in no way implicates the accused as the assailant
of having assaulted her, her father and the brother (deceased).
This witness having been cross-examined by the prosecution
with the permission of the court; but then no such material has
been elicited from her to provide support to the prosecution
case in any manner.
14. Let us glance upon the evidence of P.W.2 on which
much reliance has been placed by the trial Court for recording
the finding of guilt against the accused as to have committed
the murder of the younger brother. P.W.2 has stated in her
evidence that at the relevant point of time when the
occurrence took place, she was on her bari and engaged in
cleaning the utensils. He, hearing hullah, went in front of the
house of P.W.5 and says to have been seen the incident. Her
evidence runs as under:-
"On my arrival, I saw the accused inflicted cudgel
blow on the left side head of the Informant causing
swelling injury. When the deceased came to rescue
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his father, the accused inflicted two to three
successive blows on the head of the deceased by
means of such cudgel causing profuse bleeding
injuries. The deceased sustaining the injuries fell
down on the ground. When Ranjita came to rescue
the deceased, the accused also dealt numbers of
blow on her portion by such cudgel causing injuries
below her left eye and left hand.
15. It be first of all noted that when this witness is stating
that the accused had injured his father (P.W.5 ) and sister
(P.w.6) they are not stating as regards the same and in fact, for
that reason the trial Court has acquitted the accused of the
charges under section 307 of the I.P.C. and other allied
offences for the act committed in relation to P.W.5 and P.W.6.
Thus, the evidence of this witness P.W.2 has not been believed
by the trial Court insofar as the act done by the accused upon
P.W.5 is concerned and so also P.W.6 and rightly, for such
charges, the accused has been acquitted. The happening on the
score of the deceased coming to intervene in that scenario as
stated is in between the attack upon P.w.5 and P.W.6. When
the evidence of P.W.2 is disbelieved in respect of the head and
the tail, here the Trial Court has believed his evidence in so far
as the mid part is concerned. The evidence of this witness in
respect of the happenings is so inextricably mixed up and
intertwined that even though principle of 'falsus in uno falsus
omnibus' does not strictly apply in our country in the matter
CRLA No.389 of 2023
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of appreciation of evidence in the given case, while
appreciating the evidence of this P.W.2 it would stand fall
under an exception. Having disbelieved P.W.2's version in
respect of the act of the accused as against P.W.5 and P.W.6,
the act of the accused as has been stated by P.W.2 as against
the deceased which intervenes the two attacks as upon P.W.5
and P.W.6 is certainly too hazardous and unsafe to be relied
upon. The view so taken provides justification to the
submission of the learned Senior Counsel for the Appellant.
Therefore, on this ground alone, the evidence of P.W.2, in our
view, is liable to be elbowed beyond the arena of
consideration.
16. Moreover, the evidence of this witness P.W.2 being
further churned out, it is seen that she states to have heard the
quarrel between the informant and accused in the early
morning but then without turning any attention, she went
casually for cleaning her utensils on the bari and thereafter she
went to the spot hearing hullah to be believed for moment is
quite difficult since it is wholly against the normal conduct
and behaviour of a neighbour. She does not state as to what
was the time gap between the hullah and her coming to the
spot after going to clean the utensils and she is also not stating
as to whether she when came to the spot, had already washed
CRLA No.389 of 2023
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the utensils or leaving those rushed to the spot. Her evidence
during cross-examination is also confusing. When she says as
under:
"After my arrival, I had seen the infliction of blows and
prior to my arrival as there was infliction of blows, I had
seen that the deceased was sitting on the ground so also
the Informant sustaining the injuries. I had seen that
accused inflicted two to three blows on the deceased."
We are unable to find out exactly as to what the witness
has conveyed thereby. The benefit must go to the accused. In
addition to this, the conduct of this witness is also not normal.
Having stated that when she arrived none was also present,
she does not say to have taken the step of calling any other
villagers to come to the spot in assisting P.W.5 and P.W.6 and
the deceased. Her further evidence as to the exact dealing of
the blows is found to be highly confusing. Even her evidence
being read as a whole according to us cannot be believed as to
the act done by the accused as against P.W.5, the deceased and
the P.W.6 and for all these, her presence at the spot at the time
of occurrence becomes highly doubtful.
With the above discussion of evidence on record, we are
of the considered view that the trial Court has erred both on
fact and law in holding the accused guilty of commission of
the offence under section 302 of the IPC and sentencing him
thereunder.
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17. In the result, the Appeal stands allowed. The judgment
of conviction and order of sentence dated 3rd March, 2023 and
15th March, 2023 respectively passed by the learned Sessions
Judge, Balasore in Sessions Trial No.206 of 2017 are hereby set
aside.
The Appellant (accused), namely, Bai @ Balaram Giri be
set at liberty forthwith, if his detention is not required in
connection with any other case.
(D. Dash)
Judge
Dr. S.K. Panigrahi I agree.
(Dr.S.K. Panigrahi)
Judge
Himansu
Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 11-Aug-2023 15:51:20
CRLA No.389 of 2023
