Satrughna Bhoi vs State Of Orissa
2023 Latest Caselaw 8128 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                          CRLA No. 29 of 2007


    Satrughna Bhoi                             ....            Appellant
                                    -versus-
    State of Orissa                            ....          Respondent

   Advocates appeared in the case:

    For Appellant               :         Mr. Debasis Panda, Advocate

    For Respondent              :          Mr. G.N. Rout, Addl. Standing
                                                                 Counsel

     CORAM:
     THE CHIEF JUSTICE
     JUSTICE G. SATAPATHY

                               JUDGMENT

25.07.2023 G. Satapathy, J.

1. This appeal is directed against the judgment dated 22.11.2006 passed by the learned Additional Sessions Judge, Bargarh in S.T. Case No. 77/21 of 1990 convicting the Appellant for offence punishable under section 302 of IPC and sentencing him to undergo imprisonment for life with payment of fine of Rs.1,000/- in default whereof, to undergo simple imprisonment for a period of one month.

2. It is relevant to note, the Appellant is on bail pursuant to an order passed by this Court on 31.07.2013 in Misc. Case No. 1890 of 2011.

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3. The prosecution case in brief was, on 21st August, 1989 at about 9 pm in the night, Ajodhya Bhoi (hereinafter referred to as the 'deceased'), Dakhila Jhankar (PW4), Parama Jhankar and Giridhari Sahu were playing cards sitting on the outer verandah of the deceased's shop-cum-residence in village Talmenda and Bansidhar Bhoi (PW3), Haribola Bhoi (PW5) and Jaysingh Bhoi (PW7) the brother of the deceased, were watching the playing of cards. At that time, the Appellant Satrughna Bhoi being armed with a tabal (MOI) suddenly appeared behind the deceased and attacked him by giving a blow with MOI on the right side neck adjoining the face resulting his instantaneous death by falling on the ground. The Appellant, thereafter, escaped from the spot despite being chased by PW7.

4. On hearing this news, PW1 Bhubaneswar Bhoi, another brother of the deceased, rushed to the spot and found his elder brother lying dead with a pool of blood at the spot and he, thereafter, proceeded to Bheden police station immediately and at 11 pm, reported the incident to the OIC, Sri Pravakar Swain, who reduced the oral account of PW1 into writing on a paper and by treating it as an FIR (Ext.1), registered Bheden PS Case No.64 dated 21.08.1989 against the Appellant for commission of offence under Section 302 of IPC for the murder of the deceased and took up investigation of the case, in the course of which, he held inquest over the dead body of the deceased vide Ext.4 and sent the dead body for post mortem examination as well as seized blood stain earth, sample earth, one quilt (kantha), bed sheet and rope bed cot from the spot under Ext.5. Accordingly, PW8, the Doctor conducted autopsy over the dead body and submitted the post

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mortem report of the deceased under Ext.6. On 22.08.1989, the IO arrested the Appellant and seized the weapon of offence (MOI) under Ext.2 as well as seized the pant and shirt of the Appellant (MOII & III) under seizure list Ext.3. PW8 also furnished his report to the query of IO as to possibility of the injury on the deceased by use of MOI affirmatively under Ext.7. The IO also seized the playing cards. All the material objects together with Exhibits were sent to RFSL, Sambalpur vide Ext.8, and the chemical examination report was submitted vide Ext.9.

5. On completion of investigation, a charge-sheet was placed against the Appellant for offence under Section 302 of IPC and the Appellant was sent up for trial which concluded after examination of 08(eight) witnesses in all together with proof of 09(nine) documents as Exts.1 to 9 and identification of material objects MOI to MOIII by the prosecution as against no evidence whatsoever by the Appellant. Of the witnesses examined by the prosecution, PW3 to PW5 and PW7 were eye witnesses to the occurrence, whereas PW1 was the informant, PW2 and PW6 were seizure witnesses and PW8 is the postmortem conducting Doctor.

6. The plea of the Appellant in the course of trial was one of complete denial and ignorance of the offence.

7. After appreciating the evidence on record upon hearing the parties, the learned trial Court by the impugned judgment convicted the Appellant for offence under Section 302 of IPC and sentenced to the punishment indicated supra. The learned trial Court convicted the Appellant by mainly relying upon the evidence of eye witnesses PW3 to PW5 and PW7 and the circumstance of presence of human blood stains on MOI to MOIII

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and consequently failure of the Appellant to explain the aforesaid incriminating circumstance.

8. A cumulative reading of evidence on record would go to reveal the homicidal death of the deceased which was never challenged by the defence, in addition to the undisputed place of occurrence and such homicidal death of the deceased was confirmed by the strong medical evidence in the form of testimony of PW8, which transpired that he had conducted autopsy over the dead body and the deceased was found to have one chop wound on the right side of his neck and face of size 5" x1/2"x 2" involving vessel of the neck and abrasion of size 1/8" x 1/8" on the dorsum of right foot. PW8 on dissection also noticed fracture of mandible corresponding to chop wound described above. Accordingly, PW8 had furnished his opinion that death was due to shock and syncope due to chop injury which was ante mortem in nature and that sufficient to cause death in ordinary course of nature and that the injury was possible in one assault by heavy cutting weapon.

9. Adverting to the testimony of eye witness, it transpired from the evidence of PW3 that at 9 pm on a Monday in the month of Bhadrav, 1989, Giridhar Sahoo, Parama Jhankar, Dakhila (PW4) and the deceased were playing cards on the verandah in front of the shop room of the deceased and he along with Haribola Pradhan (PW5) and Jaysingh Bhoi (PW7) were witnessing the play and the Appellant came from his house side and suddenly dealt blow on the right side neck of the deceased with a tabal (MOI) from his back and the Appellant ran away to his house when they chased him.

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10. PWs.4, 5 and 7 had also testified almost alike PW3 with respect to Appellant suddenly emerging at the spot of occurrence and assaulting the deceased by giving blow with MOI on the right side neck of the deceased. On the evidence of eye witnesses and the Doctor, it is crystal clear that the prosecution was found to have established the homicidal death of the deceased.

11. No matter the homicidal death of the deceased was not challenged, but the Appellant seriously challenged the finding of the learned trial Court for holding him guilty of the offence and in assailing such finding, Mr. D. Panda, learned counsel for the Appellant has pointed out the following infirmities:

(i) The circumstance of occurrence had not been taken into consideration, although the same was disputed by the defence.

(ii) The seizure of playing cards was not established.

(iii) The testimony of prosecution witnesses were full of contradictions and omissions which in the circumstance of non-examination of IO causing prejudice to the defence rendered it unreliable and could not be acted upon.

(iv) The inquest report (Ext.4) was at variance with post mortem report (Ext.6) in respect of seat of injury on the body of the deceased and nondisclosure of the name of the Appellant as well as gist of the incident in Ext.4.

(v) Delay in dispatch of the FIR to the Court.

(vi) Findings arrived at by placing reliance on chemical examination report Ext.9 which was not proved in accordance with law, was misconceived as Appellant was confronted with Ext.9 in his statement under Section 313 of Cr.P.C. on 02.11.2006 when it was not in existence and exhibited only on 03.11.2006 and, thereby, Ext.9 disclosing human blood on MOI to MOIII could not be acted upon against the Appellant, but the learned trial Court had relied on such evidence.

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Mr. Panda, learned counsel by pointing out aforesaid infirmities/inconsistency, has submitted that not only the non-examination of IO had caused serious prejudice to the Appellant, but also the infirmities as found in the evidence rendered the prosecution case against the Appellant suspicious and the benefit of doubt ought to have been extended in favour of the Appellant to acquit him in this case. On the aforesaid submissions, Mr. Panda, prays to allow the appeal and acquit the Appellant of the charge of murder of the deceased.

12. Mr. G.N. Rout, learned ASC, however, has seriously repelled the submission of the Appellant by contending inter-alia that when the evidence of eye witnesses remained impeccable and un- assailed, the infirmities as pointed out by the learned counsel for the Appellant bears no significance. It is also submitted by him that the delay in dispatch of FIR, variance of injury as stated in Exts.4 and 6 and the circumstance stated to be suspicious could not over ride the direct and credible evidence of eye witnesses. He has further submitted that although the Appellant has made attempt to discredit the testimony of eye witnesses by drawing attention of the Court to the contradictions and omissions, but the so called contradictions and omissions being well explained by the defence in cross examination of witnesses cannot over throw the direct evidence, especially when the eye witnesses' account of the occurrence remaining un-assailed leaves no room for doubt of the credibility of the prosecution evidence.

13. On close scrutiny of the prosecution evidence, it appears that PW2 had testified in the Court that police officer seized MOI under Ext.2 and MOII and MOIII under Ext.3 in his presence. His

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evidence further transpired that the Appellant had declared before them that he will kill somebody or die and "ten to twelve" minutes thereafter there was hullah in their village that the deceased was killed, which having not drawn to the attention of PW2 in cross examination cannot amount to contradiction, although it was argued that PW2 had not stated before police that "ten to twelve" minutes after that (declaration of accused), they proceeded to the house of the deceased, which was not at all stated by PW2 in his testimony. The seizure of MOI to MOIII were sought to be disputed, but the defence had clearly explained by eliciting from the mouth of PW2 in cross examination that MOI to MOIII were seized as per the identification of the wife of the accused and these MOs were kept inside a trunk. Thus, the seizure of MOI to MOIII cannot be disputed at all.

14. Much emphasis was placed in the argument as to the contradiction elicited from the mouth of eye witnesses PW3 and 4 with respect to source of light at the relevant time and place of occurrence, but the defence had elicited from the mouth of PWs.3 and 4 in their cross-examination as follows:-

(1) From PW3; "the bar light fitted to the shop room of the deceased was on the ceiling in the middle of room and he could identify the accused while he was coming towards the place of cards play."

(2) From PW4; "the focus of the bar light from the shop room of the deceased has lighted the verandah in front of the shop room to some extent directly and I saw the accused through the focus of the bar light in the shop room of the deceased."

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It, therefore, appears that since the defence had clearly explained the source of light from the mouth of the PWs.3 and 4 in their cross-examination, such assertion cannot be found to be any bearing in the merit of the case, especially when no contradictions were elicited from the other two eye witnesses PWs. 5 and 7 with respect to source of light at the relevant time and place of occurrence. Besides, this Court has no manner of doubt that since the deceased and three others were playing cards in the night, the place of occurrence must have some light as no cards can be played in darkness.

15. It was argued that PW7 was validly contradicted for not having stated before the IO that blow struck on the right side neck of the deceased, but when it was explained by the defence in cross- examination of PW7 "accused dealt blows standing on the road adjoining that verandah and he dealt the blow from one side of the pillar and being assaulted, he (deceased) struggled and crashed on the road margin as dead", it cannot be said that PW7 was contradicted on material aspect. The assault and injury on the deceased was not only clearly stated by other eye witnesses i.e. PWs.3 to 5 but they could not be contradicted with respect to the assault and injury on the deceased by the Appellant. Law is also fairly well settled that all omissions and contradictions are not material contradictions or omissions, unless such omissions and contradictions create a dent to the prosecution evidence doubting the veracity of the case.

16. Failure of the prosecution to establish the seizure of playing cards from the spot or the cards soaked with blood was also advanced as a ground to disbelieve the prosecution case, but that

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appears to be insignificant one in view of the overwhelming evidence of eye witnesses' account of the incident and the prosecution evidence cannot be discarded or doubted, merely because the cards as aforesaid were not seized or seizure of it not established by the prosecution. Needless to say, the duty of Court in a criminal case is to ascertain on appreciation of the entire evidence on record to find out whether the charge against the accused for commission of any offence is established by the prosecution beyond all reasonable doubt and the Court cannot ignore the entire prosecution evidence by taking into account one fact was not established dehors the entire evidence.

17. Serious objections and emphasis has been placed to the variance of injury stated in Ext.4 and Ext.6 and non-disclosure of name of the Appellant as well as gist of the case in Ext.4 to challenge the veracity of the prosecution case, but law on these points has been very clearly explained by the Apex Court in Pappu Tiwari v. State of Jharkhand; (2022) SCC Online SC 109, wherein at paragraph 33 it has been held thus:-

33. "There is little doubt that there is not a minor but a major difference in recording the number of injuries suffered by the deceased in the inquest report and the post-mortem report. However, this will not be fatal in our view."

18. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. inquest report, which is not the statement of any person wherein all the names of the persons accused must be

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mentioned (see Brahm Swaroop and another v. State of Uttar Pradesh 2011 (6) SCC 288, P-9 at Page-297).

19. The object and purpose of preparing inquest report is to ascertain the cause of death, such as accidental, suicidal or homicidal and there is no doubt about it being not a substantive piece of evidence. Although it is advanced that since PW6 was found to have admittedly signed on Ext.4 without going through its content, the Appellant was seriously prejudiced for not being able to confront with the discrepancies as to the seat of injury stated by him during trial, but nothing was elicited from his mouth to confront to the IO any discrepancy as to the seat of injury found on the deceased.

20. Adverting to the next two grounds of challenge of the Appellant; firstly, delay in dispatch of the FIR and secondly, non- examination of the IO, it appears that both the grounds are not disputed since IO was admittedly not examined in this case and the FIR was received in the Court on 23.08.1989, whereas FIR was admittedly lodged on 21.08.1989 at about 11pm, but the delay in dispatch of FIR is not always fatal to the prosecution case, unless serious prejudice is caused to the accused by way of such delay in dispatch of FIR was in fact meant to facilitate manipulation or embellishment in it. Besides, merely because the IO had committed mistake in sending the FIR, it could not automatically lead to an inference or conclusion that it was ante- timed to accommodate the Informant to manipulate or prepare it after due deliberation and consultation. In this case, no cross- examination was made to the Informant with regard to any embellishment made in FIR or the same was prepared with due

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deliberation and consultation and even no suggestion was given to informant-PW1 in this regard. Further, PW1 was found to have lodged the FIR promptly just after two hours of the occurrence and the distance between the place of occurrence and the police station is 16Kms which in the circumstance appears to be normal. An unexplained delay by itself may not lead to any inference, but it is certainly relevant when such delay was deliberate to manipulate the FIR or such delay had resulted in embellishment of FIR which is not automatic and it has to be established by the defence either by way of cross-examining the witness or leading any independent evidence, but that having not done in this case, no inference can be made that the delay in receipt of FIR by the Jurisdiction Magistrate was deliberately used for embellishment of the FIR. Moreover, a little delay should not be viewed in an un-pragmatic angle and cannot be used against the prosecution in all cases dehors the evidence. It is, therefore, clear that when there is credible and acceptable eye witnesses' account, the delay in registering a complaint or sending the same to Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case (Balaram Singh v. State of Punjab, (2003) 11 SCC 286, P-10 Page-290 & 291).

21. Another aspect of challenge is non-examination of IO which had resulted prejudice to the Appellant, but before analyzing the same, it is to be placed on record that the Appellant remained absconded approximately 15 years from 27.11.1990 to 22.08.2005 and in the interregnum, two eye witnesses had expired and prosecution could not procure the attendance of some of the witnesses including the IO. As already discussed, the so called

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omissions and contradictions stated to be elicited from the mouth of eye witnesses being subsequently explained by the defence in the cross-examination of such witnesses and no contradictions or omissions were being elicited from the other eye witnesses PWs. 3 and 5, whose evidence with regard to the assault made by the Appellant on the deceased by means of MOI remained un-assailed and only provides assurance to the prosecution case. Besides, the evidence of eye witnesses PWs. 3 to 5 and 7 were not only credible, cogent and unambiguous in material particulars, but also it established the manner and circumstance by which the Appellant was found to have caused death of the deceased by giving blow with MOI and thereby, non-examination of IO cannot be considered as prejudicial to the Appellant. The decision in Arvind Singh v. State of Bihar;(2001) 1 SCC 407 as relied on to contend that non-examination of IO caused prejudice to the Appellant, appears to be distinguishable from the facts of the present case inasmuch as there was no eye witness account and the prosecution was mainly relying upon the dying declaration made by the deceased to her mother which was disbelieved and there were also interpolation allegation in the FIR, but such circumstances were not in the present case, rather the present case is stashed with testimony of eye witnesses. Similarly, the decision in Rattanlal v. State of Jammu & Kashmir, (2007) 13 SCC 18 as relied on by the Appellant appears to be found distinguishable in the opinion of this Court as no glaring inconsistencies were found in the present case, rather there was credible eye witnesses' account. On the other hand, the decision relied on by the State in Munna Lal v. State of Uttar Pradesh, 2023 SCC Online SC 80 appears to be

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applicable in this case in view of the fact that it has been held therein at paragraph-28 'c' and 'd' as under:-

"28(c)- A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the Court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.

28(d)- Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non- examination would not render the prosecution case fatal."

22. Disputing the manner of admission of Ext.9 and its confrontation to the Appellant U/S. 313 of Cr.P.C., the Appellant relied on the decision Suleman Usman Memon v. State of Gujarat, 1961 SCC Online Gujarat 3 and Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. For a moment, accepting, but not admitting the objection of admissibility and use of Ext.9 against the Appellant as advanced, it appears that the case of the prosecution was not only on the basis of chemical examination report (Ext.9), but it primarily rests on the testimony of eye witnesses PWs. 3 to 5 and 7 whose evidence cannot be discredited by the defence, rather it provided assurance to MOI to MOIII which contain blood stains of the deceased to the knowledge of the Appellant as elicited in the cross-examination of seizure witness PW2 "there were blood stains on the back side of seized pant(MOII)", but there is absolutely no explanation offered by the defence as to how MOII was found stained with human

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blood. Even otherwise, after eschewing the chemical examination report (Ext.9), the prosecution was successful in establishing its case beyond all reasonable doubt by the credible evidence of eye witnesses PWs. 3 to 5 & 7. Hence, the above plea advanced by the Appellant appears to be insignificant in the peculiar facts and evidence of the case.

23. A cumulative and careful appraisal of evidence on record, although it appears that no significant evidence was available on record to find out the motive behind the crime, but there appears some scanty evidence in this regard by way of defence eliciting from the mouth of PW1 in cross-examination "both had some dispute on paddy affairs". In addition, there was also evidence of PW3 and PW7 who had chased the Appellant immediate after the occurrence and PWs. 3 to 5 & 7 had tendered their evidence by explaining meticulously the manner and circumstance of assault on the deceased by Appellant which could not be discredited in cross-examination. Further, the conduct of Appellant in absconding the process of trial would itself was an adverse circumstance against the Appellant for disappearance of the evidence and thereby, Appellant himself was to be blamed more than the prosecution for non-examination of IO. On the other hand, the learned trial Court had correctly assessed the evidence of eye witnesses.

24. After having carefully and anxiously examined the evidence on record with the assistance of the learned counsel for the parties, this Court does not find any error in the impugned judgment with regard to manner of appreciation of evidence and it can be safely said with certitude that the prosecution had established the guilt of

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the Appellant beyond all reasonable doubt by way of eye witnesses evidence. Consequently, no ground is made out for interference of the impugned judgment in this appeal.

25. In the result, the appeal stands dismissed on contest, but in the circumstance without any order as to costs. As a necessary corollary, the impugned judgment passed on 22.11.2006 by the learned Additional Sessions Judge, Bargarh in S.T. Case No. 77/21 of 1990 convicting the Appellant for offence under section 302 of IPC and sentencing him to the punishment indicated in the first paragraph are hereby confirmed.

26. Since Appellant is on bail, his bail bonds stand cancelled and he is directed to surrender to custody forthwith and in any event, not later than 20th August 2023 failing which the IIC of the concerned PS will take steps forthwith to take him into custody to serve out the remainder of his sentences. A copy of this judgment be delivered forthwith to the IIC of the concerned PS for necessary action.

(G. Satapathy) Judge

(Dr. S. Muralidhar) Chief Justice

Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa CRLA No. 29 of 2007 Date: 25-Jul-2023 18:08:24