Bapi @ Amulya Patra vs State Of Odisha
2023 Latest Caselaw 8007 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            JCRLA No.44 of 2016
    From the judgment of conviction and order of sentence dated
    13.06.2016 passed by the learned Additional Sessions Judge, Balasore
    in Sessions Trial No.4/215 of 2015.

                                    ----

         Bapi @ Amulya Patra                    ....         Appellant

                                    -versus-

         State of Odisha                        ....         Respondent
                Appeared in this case by Hybrid Arrangement
                         (Virtual/Physical Mode):
                For Appellant       -      Mr.A.S. Paul,
                                           (Advocate)

                For Respondent      -      Mr.P.K. Mohanty,
                                           Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K.PANIGRAHI
    Date of Hearing : 11.07.2023           : Date of Judgment:24.07.2023

D.Dash,J. The Appellant, by filing this Appeal, from inside the jail, has called in question the judgment of conviction and order of sentence dated 13.06.2016 passed by the learned Additional Sessions Judge, Balasore in Sessions Trial No.4/215 of 2015 arising out of C.T. Case No.95 of 2015 corresponding to Basta P.S. Case No.10 of 2015 on the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Balasore.

The Appellant thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (for short, 'the IPC') and sentenced to undergo imprisonment for life and pay fine of

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Rs.1,000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for one month.

2. The prosecution case is that on 16.01.2015 around 4 p.m., Bapi @ Amulya Patra, the accused and his younger brother, namely, Kuna @ Sanjay Patra started quarrelling with each other. In course of that, when the situation aggravated, fight between the two ensued. It is stated that during then the accused assaulted his younger brother, Kuna by a wooden plank and subsequently, by a spade (Kodala). Kuna having received injuries on his head and other parts of body, died at the spot. The father (P.W.2) and mother (P.W.1) of the accused and Kuna having seen the occurrence, they too were chased by the accused for being assaulted.

The mother of the accused and the deceased (P.W.1) then lodged a written report being scribed by one Madan Mohan Bhokta (P.W.9) with the Sub-Inspector of Police (S.I.) attached to Basta Police Station who was then in-charge of the P.S. in the absence of the Inspector-in- Charge (I.I.C.) of the Police Station. The report being received on 16.01.2015 around 7.30 p.m., the S.I. of Police (P.W.10) treated the same as F.I.R. and registering the case took up investigation.

In course of investigation, he examined the Informant (P.W.2) and the scribe (P.W.9), which is the F.I.R. (Ext.1). He then proceeded to the spot and examined the other witnesses there. He also prepared a spot map (Ext.5) on the next day and held inquest over the dead body in presence of the witnesses and prepared the report (Ext.2). The blood stained spade with wooden handle and one wooden plank along with the blood stained earth and sample earth were seized from the spot under

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seizure list (Ext.3). The I.O. (P.W.10) then sent the dead body for post mortem examination by issuing necessary requisition.

On 30.01.2015 receiving the order from the Superintendent of Police, Balasore, P.W.10 handed over the charge of the investigation to the I.I.C., Basta Police Station to continue with further investigation. Being the second I.O. (P.W.11) having received the post mortem examination report, he then sent the said spade and wooden plank for being examined by the Doctor and sought for his opinion as to whether the injuries noticed on the dead body of the deceased were possible by said spade and wooden plank. The incriminating articles were sent for chemical examination through the Court. On completion of investigation, the second I.O. (P.W.11) submitted the Final Form placing the accused to face the trial for commission of offence under section 302/506 of the I.P.C.

3. Learned S.D.J.M., Balasore on receiving the final form as above, took cognizance of the said offences and after observing the formalities committed the case to the Court of Sessions. That is how the trial commenced by framing the charge against the accused for the said offences.

4. In the Trial, the prosecution has examined in total eleven (11) witnesses; out of whom, as already stated, P.W.1 is the mother of the accused and the deceased whereas P.W.2 is their father, P.W.4 is the son of the elder brother of the accused and the grandson of P.W.1 and P.W.2., P.W.3 is the son of P.W.2 through his first wife.

It be mentioned here that the accused and the deceased are the two sons of P.W.2 born through P.W.1. P.W.6 is the brother-in-law of the accused and P.W.5 and P.W.7 are the two witnesses to the inquest. The Investigating Officers of the case are P.W.10 and P.W.11.

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The prosecution besides tendering evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.11. Out of those important are the F.I.R. (Ext.1), inquest report (Ext.2), spot map (Ext.5) and postmortem report (Ext.8) and further report given by the Doctor is Ext.9.

During the Trial the seized wooden plank and spade seized in course of investigation have been placed before the Court and those have been marked as Material Objects (M.O.I and M.O.II) respectively..

Defence case is that of denial and false implication. However, no evidence has been tendered from the side of the accused in support of his defence.

5. Learned counsel for the Appellant (accused) without disputing the nature of death of Kuna @ Sanjay Patra to be homicidal as has been held by the Trial Court submitted that the evidence let in by the prosecution by examining P.W.1, P.W.2 and P.W.4 having not been critically analyzed, as it ought to have been, the Trial Court has erroneously held that the prosecution has proved the charge against the accused in intentionally causing the death of Kuna @ Sanjay. He submitted that when the evidence of P.W.1, P.W.2 and P.W.4 are properly examined, it would be evident that none of them had ever seen the occurrence and are falsely implicating this accused by suspecting him to be the author of injuries upon the deceased leading to his death as because the accused and the deceased were in enemical terms towards one another. In this connection, he has taken us to the deposition of P.W.1, P.W.2 and P.W. 4 in great detail. According to him, the evidence on record coming from the lips of the above witnesses are not at all sufficient to record a finding that the prosecution has proved the fact that

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it is the accused, who had assaulted the deceased by means of wooden prank and spade and caused his death.

6. Learned counsel for the Respondent-State while supporting the finding of guilt against the accused as has been returned by the Trial Court submitted that the Trial Court having carefully examined the evidence of P.W.1,P.W.2 and P.W.4 as also the other witnesses and on going through the F.I.R. (Ext.1) has rightly upon analysis recorded the finding as to the establishment of the charge against the accused.

7. Keeping in view the submissions made, We have carefully read the judgment passed by the Trial Court. We have also perused the evidence of the prosecution witnesses, i.e., P.Ws.1 to P.W.11 and have also travelled through the documents admitted in evidence and marked Exts.1 to Ext.11.

8. In order to judge the sustainability of the finding of guilt of the accused as has been recorded by the Trial Court by addressing the rival submission the evidence of first important witness, i.e., P.W.1 need to be carefully examined. She is the mother of the accused and the deceased. She has stated that when on that day afternoon, she returned from market, she found the accused assaulting the deceased by a wooden plank and then by a spade and seeing so, she immediately left the spot to call the Police. During cross-examination, it has been stated by her that when she was in the market, someone told her that her two sons were fighting in the house. So, the market being very near, roughly at a distance of 500 cubits, she rushed to the house. She has stated that at point of time none else was present in or near their house. She has stated to have orally reported the matter to the Police which was written down and she then gave the LTI thereon. This P.W.1 has neither stated that

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she with her husband (P.W.2) together had gone to the market or that they together arrived in the house or arrived simultaneously on getting the information regarding the fight going on between their two sons, i.e., the accused and deceased. She is also not stating that her husband P.W.1 was very much present when she arrived near the house.

9. As already stated, it is her evidence that none else was present in or near their house. This P.W.1 without stating anything about her reaction has gone to say that seeing the incident, she immediately left the spot to call the Police. An important conduct that ordinarily in such situation, being the mother of the two when finds them engaged in fight would first call the neighbours to immediately pacify the situation in wanting. With such evidence on record, the F.I.R., which has been admitted in evidence and marked Ext.1 cannot be said to have been the outcome of oral reporting of the incident by this witness to the Police. The scribe of the F.I.R. (P.W.9) has stated that on 16.01.2015 around 5 p.m., when he was near his Tea Stall, P.W.1 came and requested him to write a report alleging that her elder son had killed her younger son and accordingly he prepared the report. This P.W.9 does not state that P.W.1 had stated before him to have seen the accused assaulting her elder son to death. He also does not state to have accompanied P.W.1 to the P.S. It is his evidence that his Tea Stall is at a distance of four (4) kilometers from the house of P.W.1 when it is also seen from the formal F.I.R. that the distance of the police station from the house of the Informant is also 4 kilometers.

P.W.10, the first I.O. states that a written report had been presented by P.W.1 to him. In such state of affair, we are not in a position to say that the F.I.R. which has been marked Ext.1 is the reproduction of exact version of P.W.1. Therefore, the prosecution does

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not have the advantage of seeking the corroboration to the evidence of P.W.1 from the F.I.R. (Ext.1) which is suspected to be not the version of P.W.1 and its creation appears to be suspicious. P.W.2 is the father of the deceased and the accused. Although he has stated that the accused killed his younger son by using spade and wooden plank, he does not say to have seen the occurrence taking place before him. It is also not stated by him as to how he got the information regarding the complicity of this accused. When he states that the accused also assaulted him on the same day by giving blow by wooden plank on the left side of the head resulting bleeding injury, he does not state as to whether it was during the period when his younger son was being assaulted by the accused. During cross-examination, this witness has stated that when the accused assaulted his younger son, he and his wife (P.W.1) had been to the police station and while returning from the Police Station, they learnt that the accused was assaulting his son. The above statement of P.W.2 goes to create reasonable doubt in mind as regards the presence of this P.W.2 during the occurrence as also P.W.1. That apart when P.W.1 states that seeing the accused assaulting the deceased by a wooden plank, she rushed to the Police Station, she does not state anything about P.W.2 to have accompanied her. P.W.1 is also not stating anything as regards the accused assaulting P.W.2. Thus when the evidence of P.W.1 and P.W.2 are placed side by side, suspicion arises in mind as regards the incident having taken place in their presence and their assertions as the eye witnesses get pushed into thick cloud of doubts.

P.W.4, who is the grandson of P.W.1 when states to have arrived at the spot from the market and found his uncle lying dead with bleeding injuries when there had been a gathering near the house; he is silent that P.W.2 had stated before him that in her presence, the incident took

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place. One more interesting feature in the evidence of this witness (P.W.4) is that when he had stated before the police during investigation that on that day around 4 p.m., he had found the accused and the deceased coming from railway line side in drunken condition and were fighting with each other and thereafter, the accused caused bleeding injuries to the deceased and he expired, that is not stated by him in the Trial and there is no explanation on that score from the side of the prosecution when it has been proved by the defence through P.W.10. This part of narration although does not have direct reference to the incident yet the suppression of such fact by P.W.4 tells upon the credibility of the evidence of P.W.1 and P.W.2. Furthermore, when P.W.1 says that she got the information that the accused and deceased were fighting in the house that for the above is highly doubtful. It being said that the incident took place on 16.01.2015 around 4 p.m., there also stands no explanation as to how none of the neighbour could see the incident which according to the version of P.W.1 and 2 had stretched over certain time and as it is not the prosecution case that the accused came, assaulted and left the place. More so, this P.W.1 does not state anything that when she returned home from the police station and whether the accused was present or not. P.W.2 is also silent on that score and so also other witnesses who had arrived at the spot after the occurrence do not state anything as regards the presence or absence of the accused. The brother-in-law of the deceased examined as P.W.6 simply states that P.W.1 and P.W.2 told him that the accused killed the deceased and then he states that the police arrived around 7 pm. and arrested the accused. But the I.O. (P.W.10) states that having searched for the accused in his house and nearby places, he could not be traced out and therefore, he had to engage reliable sources to inform him about the whereabouts of the accused and it was only on 17.01.2015 around 4

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a.m. on receipt of reliable information that the accused had proceeded to the village, he went and found the accused sleeping under a temporary shed near the house of P.W.2 and there the accused was arrested. The prosecution has also not placed any evidence that the deceased had the motive behind the crime in assaulting the deceased to death. Even P.W.1, P.W.2 and P.W. 4 do not whisper a word about that in stating that the two (accused and deceased) in good terms with one another. In such state of affairs in the evidence of above-noted witnesses, basing upon the same, the charge against the accused is not found to have been established beyond reasonable doubt.

10. Having said above, We find that the other evidence available on record are of no avail to the prosecution to establish the charge against the accused beyond reasonable doubt. Accordingly, we hold that the judgment of conviction and order of sentence passed by the Trial Court cannot be sustained and are liable to be set aside.

11. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 13.06.2016 passed by the learned Additional Sessions Judge, Balasore in Sessions Trial No.4/215 of 2015 are hereby set aside.

The accused, Bapi @ Amulya Patra be set at liberty forthwith if his detention is not so required in connection with any other case.

(D. Dash), Judge.

             Dr.S.K Panigrahi, J      I agree.

Signature Not Verified
Digitally Signed                                               (Dr.S.K.Panigrahi),
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication                                              Judge.
Location: OHC Himansu
Date: 24-Jul-2023 15:48:02

               JCRLA No.44 of 2016