Orissa High Court
Kailash Bhagat @ Tutu vs State Of Odisha on 24 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.20 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 25th January, 2016 passed by the learned
Additional Sessions Judge, Bonai in Sessions Trial No.88/45/144 of
2011-2013.
----
Kailash Bhagat @ Tutu .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.G.Madani
(Advocate)
For Respondent - Mr.Sitikant Mishra,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 22.06.2023 : 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
25th January, 2016 passed by the learned Additional Sessions Judge,
Bonai in Sessions Trial No.88/45/144 of 2011-2013 arising out of G.R.
Case No.612 of 2010 corresponding to Lahunipara P.S. Case No.188 of
2010 in the Court of the learned Sub-Divisional Judicial Magistrate
(S.D.J.M.), Bonai.
The Appellant (accused) thereunder has been convicted for
committing the offence under section 302 of the Indian Penal Code,
JCRLA No.20 of 2016
{{ 2 }}
1860 (for short, 8the IPC9). Accordingly, he has been sentenced to
undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten
Thousand) in default to undergo rigorous imprisonment for six (6)
months for the offence under section 302 IPC.
2. Prosecution Case:-
On 25.11.2010 around 4.00 p.m., the accused came to the house
of Tapan Barik, who was staying at Tensa, 8A9 Zone Basti. It is said that
on account of previous enmity, the accused assaulted Tapan by means of
one iron spring plate resulting severe bleeding injuries. The injured
Tapan Barik thereafter, while being taken to the Indira Gandhi Hospital,
Rourkela (IGH), on the way, succumbed to the injuries.
The written report to the above effect being lodged by one
Dasami Barik (informant-P.W.12) with the Sub-Inspector of Police
(S.I.) in charge of the Tensa Police Outpost, the same was entered in the
Station Diary Book maintained therein and was sent for formal
registration to the Inspector-in-Charge (I.I.C) Lahunipara Police Station.
The I.I.C., then having registered the case, directed the S.I. of Police
(P.W.27) to take up the investigation.
3. In course of investigation, the Investigating Officer (I.O.-P.W.27)
examined the Informant (P.W.12), visited the spot and he also examined
other witnesses. He held inquest over the dead body of the deceased and
prepared the report to that effect (Ext.3). He also sent the dead body for
post mortem examination and seized the incriminating articles from the
spot and on production under seizure lists. The iron spring plate stained
with blood was also seized and sent for chemical examination. The
accused, being apprehended, was forwarded in custody to the Court. The
incriminating articles had also been sent for chemical examination
JCRLA No.20 of 2016
{{ 3 }}
through Court. On completion of the investigation, the Final Form was
submitted placing the accused to face the Trial for commission of the
offence under section 302 of the IPC.
4. Learned S.D.J.M., Bonai, on receipt of the Final Form, 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 aforesaid offence against the
accused.
5. The defence plea is that of complete denial and false implication.
6. The prosecution, in support of its case, has examined in total
twenty-seven (27) witnesses during trial. As already stated, P.W.12 is
the informant, who had lodged the FIR (Ext.2) and she is none other
than the mother of the deceased. The wife of the deceased has been
examined as P.W.11 whereas P.Ws.15, 21 & 22 are the witnesses to the
seizure of the incriminating articles made in course of the investigation.
The Doctor, who had held autopsy over the dead body of the deceased
has been examined as P.W.21 and the S.I. of Police, who had made the
inquest over the dead body of the deceased is P.W.26 whereas the
Investigating Officer (I.O.), who did the major part of the investigation,
has come to the witness box at the end as P.W.27.
7. Besides leading the evidence by examining the above witnesses,
the prosecution has also proved several documents which have been
admitted in evidence and marked Exts.1 to 12. Out of those, important
are the FIR (Ext.2), the inquest report (Ext.3), the post mortem (Ext.4)
and the chemical examiner9s report (Ext.12).
JCRLA No.20 of 2016
{{ 4 }}
One Baida Patra, a neighbour of the accused has been examined
from the side of the defence during Trial as D.W.1.
8. The Trial Court, on going through the evidence of the Doctor
(P.W.20), who held the autopsy over the dead body of the deceased and
his report (Ext.4) as also the evidence of P.W.26, who held the inquest
over the dead body of the deceased and prepared the report (Ext.3), has
arrived at a conclusion that the death of Tapan (deceased) was
homicidal. In fact this aspect of the case has was not challenged before
the Trial Court and that is also the situation before us.
It has been stated by P.W.20 that he had noticed several injuries
on the head and face of the deceased, which he has reflected in his
report (Ext.4). As per his evidence, all such injuries are ante mortem in
nature and are sufficient in ordinary course of nature to cause the death.
The S.I. of Police (P.W.26), having held the inquest over the dead body
of the deceased, has noted all such injuries in his own language in the
report (Ext.3). It has also been the evidence of P.W.12, the mother of the
deceased that her son had sustained injuries on her person. With such
overwhelming evidence on record, which have remained wholly
unchallenged, we find no difficulty in agreeing with the finding of the
Trial Court that Tapan (deceased) met a homicidal death.
9. Mr.G.Madani, learned counsel for the Appellant (accused)
submitted that the Trial Court has committed the error by relying upon
the evidence of P.W.12, which is wholly deficient in showing the
involvement of the accused in causing the injury upon the deceased. He
submitted that the evidence of P.W.12 when do not spell out as to all
necessary details as to how and under what circumstance, she witnessed
the occurrence, and thereby the Court is kept completely at dark to
JCRLA No.20 of 2016
{{ 5 }}
verify the veracity of her testimony and as such the trustworthiness, that
ought not to have been taken as the sole basis to fasten the guilt upon the
accused by saying that the same inspire confidence. He submitted that
the quality of evidence of P.W.12 and far from satisfaction as required
to be relief upon in a criminal trial. It was submitted that when the
evidence of P.W.12 is kept out; no other evidence stand on record to
otherwise secure the conviction upon the accused.
10. Mr.Sitikant Mishra, learned counsel for the learned Additional
Standing Counsel submitted that the Trial Court, after examining the
evidence of P.W.12 and having undertaken detail analysis, has rightly
relied upon the same in basing the conviction holding the accused to
have intentionally caused the death of Tapan. He submitted that no
material is there on record to even point out any remote reason that
P.W.12 would falsely implicate the accused. He submitted that P.W.12,
under the circumstance, is a natural witness and her version, being free
from any blemish is wholly trustworthy and, therefore, the Trial Court
did commit no mistake in relying upon the same in holding that the
prosecution has proved the charge against the accused beyond
reasonable doubt.
11. Keeping in view the submissions made, we have carefully gone
through the impugned judgment of conviction. We have also gone
through the depositions of the witnesses most importantly that of
P.W.12, who is the star witness for the prosecution. We have also
perused the documents, which have been admitted in evidence and
marked Exts.1 to 12.
12. Before going to judge the sustainability of the finding of guilt of
the accused, as has been returned by the Trial Court, in addressing the
JCRLA No.20 of 2016
{{ 6 }}
rival submission, it must be borne in mind that there is no bar in the eye
of law for basing a conviction upon the solitary testimony of a witness.
However, the rider remains that the evidence of said solitary witness
must be of sterling quality and it should be above the board, free from
any blemish, which can be termed to be wholly trustworthy and reliable.
13. It goes without saying that the prosecution case here depends
upon the solitary testimony of P.W.12 and that has been the basis by the
Trial Court to convict the accused. This P.W.12 is none other than the
mother of Tapan (deceased). Tapan was staying with Anita and out of
the said relationship, a son had been born. The accused happens to be
the brother of the wife of the deceased. The deceased was residing in
Tensa 8A9 Zone basti and his wife was residing separately. The distance
between the two houses was about half k.m. P.W.12 says to have gone
to the house of her son. She has stated that the deceased had gone to the
house of the accused and they had a quarrel and thereafter the deceased
had returned home. She has further stated that when her son was
sleeping in the outer space of a neighbour, the accused came with a iron
spring plate and a knife and assaulted her son by that iron plate on his
head and on his face by that knife. P.W.12 being the mother of the
deceased, states to have seen the incident wherein the accused assaulted
her son (deceased). It is stated that few people gathered and her son was
then shifted to the hospital. This P.W.12 does not, however, state as to
where she was at that point of time when her son was being assaulted by
the accused. It was then around 4.00 p.m. when she states that her son
was sleeping in the outer space of a neighbour. She is not saying that
whether then she was then near that outer space of the neighbour or
elsewhere and came or as how she saw the incident or that how her
attention was drawn to see that the her son was being assaulted. It is also
JCRLA No.20 of 2016
{{ 7 }}
not stated that P.W.12 could see the incident from the house of Tapan
(deceased), it being closely situated and what she was then doing.
Nothing is stated about her immediate conduct on seeing the incident,
which appears to be wholly unnatural and against the ordinary human
conduct which too leads to view her evidence in an adverse that had she
actually seen the incident, she could have at least raised hullah. She does
not state even to have raise any hullah, called any villagers or even other
family members by rushing to them. She is also not saying to have been
threatened by the accused at that time. Thus, we are not in a position to
say that this P.W.12 with her presence had all the possibility to witness
the incident when the accused assaulted the deceased. The above being
the quality of testimony of P.W.12, we do not find it safe to rely upon
the same so as hold that the prosecution through the evidence of this
witness (P.W.12) has established the charge against the accused as to
have intentionally caused the death of Tapan by holding him with the
help of iron plate and knife beyond reasonable doubt. The Trial Court
appears to have not at all analyzed the evidence of P.W.12 before
placing reliance upon the same in holding the accused guilty for
commission of offence under section 302 of the I.P.C.
14. It is the settled principle of law that a conviction can be based
upon the solitary testimony of a witness when said testimony is found to
be of sterling quality and free from any blemish. As per the settled
position, the evidence of the solitary witness has to be above the board.
In view of the discussion of evidence of P.W.12, we do not find the
same to be of sterling quality for being accepted to base the conviction
upon this accused so as to be held guilty for commission of the offence
punishable under section 302 of the IPC in intentionally causing the
death of the deceased.
JCRLA No.20 of 2016
{{ 8 }}
15. We are, therefore, of the view that the finding of the Trial Court
that the prosecution has established the charge against accused, Kailash
Bhagat @ Tutu beyond reasonable doubt by leading clear, cogent and
acceptable evidence cannot be sustained and, therefore, the judgment of
conviction and order of sentence impugned in this Appeal are liable to
be set aside.
15. In the result, the Appeal is allowed. The judgment of conviction
and order of sentence dated 25th January, 2016 passed by the learned
Additional Sessions Judge, Bonai in Sessions Trial No.88/45/144 of
2011-2013 are hereby set aside.
Since the accused, namely, Kailash Bhagat @ Tutu is in custody,
he be set at liberty forthwith, if his detention is not wanted in any other
case.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K. Panigrahi),
Judge.
Basu
Signature Not Verified
Digitally Signed
Signed by: BASUDEV NAYAK
Reason: Authentication
Location: OHC
Date: 24-Jul-2023 14:48:45
JCRLA No.20 of 2016
