Orissa High Court
In The Matter Of An Appeal Under ... vs State Of Odisha on 2 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.358 of 2012
In the matter of an Appeal under section 374 (2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 10.04.2012 passed by the learned Ad-hoc
Additional Sessions Judge, Sundargarh in Sessions Trial No.23/6 of
2012.
----
Balaram Naik .... Appellant
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- Mr. Sahasransu Sourav,
Advocate
For Respondent- Mr. G. N. Rout,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Hearing : 11.10.2023 :: Date of Judgment: 01.11.2023
D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of
conviction and the order of sentence dated 10.04.2012, passed by the
learned Ad-hoc Additional Sessions Judge, Sundargarh, in Sessions
Trial No.23/6 of 2012, arising out of G.R. Case No.542 of 2011,
corresponding to Hemgir P.S. Case No.89 of 2011 of the Court of
learned Sub-Divisional Judicial Magistrate (SDJM), Sundargarh.
{{ 2 }}
The Appellant (accused) has been convicted for commission of
offence under section 302 of the Indian Penal Code, 1860 (in short, 'the
IPC'). Accordingly, he has been sentenced to undergo imprisonment for
life and pay a fine of Rs.3,000/- (Rupees Three Thousand) in default to
undergo R.I for six (06) months more for the offence under section 302
of the IPC.
2. Prosecution case:-
On 15.08.2011 morning around 7.30 to 8.00 a.m, when
Brundaban Naik, the elder brother of the accused, namely, Balaram
Naik was going to the nearest Nala situated at a little distance from their
house at village Barpali (Kendajore) for brushing his teeth, the accused
Balaram assaulted him to death by causing injury on his head by means
of a tangia and fled away by holding that tangia with him. The wife of
Brundaban, namely, Jema Naik (P.W.2), having seen the incident, raised
hullah and after hearing her cry other persons arrived and learnt about
the incident from Jema (P.W.2).
On that day around 2.30 pm, Manohar Naik, the other brother of
Brundaban (deceased) lodged a written report with the Sub-Inspector
(S.I) of Hemgir Police Station who was in the absence of the Inspector-
in-Charge (IIC) of the P.S. was discharging the duty as such. The said
written report being treated as FIR (Ext.1), the case was registered and
the S.I (I.O.-P.W.7) took up the investigation.
In course of investigation, the I.O (P.W.7) examined the
informant (P.W.1), Jema Naik (P.W.2) and other witnesses. He visited
the spot and prepared the spot map (Ext.6). He then held inquest over
the dead body of the deceased and prepared the report to that effect vide
{{ 3 }}
Ext.2. The dead body was sent for post mortem examination by issuing
necessary requisition. Articles such as blood stained earth, sample earth,
tangia and one pair of chappal which according to the I.O (P.W.7) were
incriminating were seized under seizure list (Ext.4). The wearing
apparels of the accused were also seized on being produced by Crime
Havildar under seizure list, Ext.8. On 16.08.2011, the I.O (P.W.7)
apprehended accused Balaram. He recorded the statement of Balaram
under section 27 of the Indian Evidence Act, 1872 vide Ext.9. The
accused led the police and other witnesses to the place of concealment
i.e. to the jungle and gave recovery of the tangia from inside a bush
which was seized under the seizure list Ext.3. The I.O (P.W.7) then
examined the seizure witnesses. The blood sample and nail clippings of
the accused were collected through the Medical Officer of UPHC,
Hemgir. The accused was then forwarded in custody to Court.
3. On completion of investigation, the Investigating Officer (P.W.7)
submitted the Final Form placing this accused to face the Trial for
committing the murder of Brundaban.
4. Learned SDJM, Sundargarh, receiving the Final Form as above,
took cognizance of the offence and after observing the formalities
committed the case to the Court of Sessions. That is how the Trial
commenced by framing charge against the accused for the said offence.
5. In the Trial, the prosecution in order to bring home the charge
against this accused has in total examined eight (8) witnesses. As
already stated, the informant, who had lodged the written report which
was treated as FIR vide Ext.1 and is the brother of deceased Brundaban
is P.W.1 whereas P.W.2 is the wife of the deceased. P.W.3 is the
{{ 4 }}
nephew of the deceased and P.W.4, P.W.5 & P.W.6 are the co-villagers
of the deceased. The Doctor, who had conducted post mortem over the
dead body of Brundaban (deceased), has come to the witness box as
P.W.8 and the Investigating Officer has been examined as P.W.7.
6. Besides leading the evidence by examining above the witnesses,
the prosecution has also proved several documents which have been
admitted in evidence and marked as Ext.1 to Ext.13/3. Out of those, the
important are; the FIR, Ext.1, Inquest Report, Ext.2, Spot Map, Ext.6
and Post Mortem Report, Ext.16.
7. The plea of the accused is that of complete denial and false
implication. The accused, however, has not adduced any evidence in
support of the said plea.
8. Learned counsel for the Appellant (accused) submitted that the
entire case of the prosecution when is based on the solitary testimony of
the wife of the deceased i.e. P.W.2, the Trial Court has committed grave
error by relying upon her evidence in saying that the prosecution has
established the charge against the accused beyond reasonable doubt
through the same. Inviting our attention to the deposition of P.W.2, he
submitted that the story which has been presented by P.W.2 that she had
seen the incident where the accused assaulted her husband by means of a
tangia is highly improbable and as there is no other evidence is standing
to provide support to the version of this P.W.2 to ascertain that under the
circumstance, it was possible on her part to exactly locate the accused as
the assailant of her husband, no reliance ought to have been placed upon
said evidence of P.W.2. She next submitted that the evidence as to the
recovery of the tangia at the instance of the accused pursuant to his
{{ 5 }}
statement while in police custody has not been established through clear,
cogent and acceptable evidence. He submitted that the evidence of the
I.O (P.W.7) and the evidence of P.W.3 on that score of recovery of
tangia are not at all satisfactory.
9. Learned Counsel for the Respondent-State, while supporting the
finding of guilt against the accused, as has been returned by the Trial
Court, contended that the Trial Court has rightly held the evidence of
P.W.2 to be of sterling quality when it has not been shown that she had
not such reason to falsely implicate this accused, who happens to be the
brother of the deceased. He also submitted that the evidence of P.W.2
that she had seen the accused assaulting the deceased when her husband
was going towards village Barpali by brushing his teeth, has been rightly
held by the Trial Court to be wholly reliable and that having further
received the corroboration from the factum of seizure of tangia and the
evidence of the Doctor (P.W.8) that the injuries seen over the dead body
were possible by that tangia; the judgment of conviction and order of
sentence impugned in this Appeal are well in order.
10. Keeping in view the submissions made, we have carefully read
the judgment of conviction impugned in this Appeal. We have also gone
through the depositions of all the witnesses P.W.1 to P.W.8. We have
also perused the documents which have been admitted in evidence and
marked Ext.1 to Ext.13/3.
11. Before going to address the rival submission and ascertain the
sustainability of the finding of guilt against the accused as has been
returned by the Trial Court, we find the evidence of the Doctor (P.W.8),
who had conducted post mortem examination over the dead body of the
{{ 6 }}
deceased that he had noticed fracture of temporal bone and fracture of
both internal and external bone of left eye ball cavity. It is also his
evidence that two incised wounds were found over the left eye lid and
left mandible besides the crushed injury on left eye ball. He has stated
such injuries to be ante mortem in nature and possible by sharp cutting
weapon. As per his evidence, the death is homicidal and cause of the
death was on account of injury to the vital organ like brain resulting
neurogenic shock and hypovolumic shock due to severe bleeding. All
such findings of P.W.8 having not been questioned, we find that the
nature of death of Brundaban (deceased) as stated by this P.W.8, who
had conducted the post mortem over the dead body of the deceased was
not questioned during the Trial and that is also the situation before us.
Over and above, we find the evidence of other witnesses including
P.W.2 and P.W.5 that they had seen the deceased with injuries over his
head and other places and that has also been the evidence of P.W.7, who
found such injuries, during inquest, which he had noticed in his inquest
report (Ext.2). In view of all these above evidences, we are left with no
option but to hold that Brundaban met a homicidal death.
12. Coming to the point for determination as to who is the author of
such injuries on the head and other vital parts of the deceased which had
led to his death, we find the star witness of the prosecution in that regard
is P.W.2 who has been projected as the sole eye witness to the
occurrence. Before proceeding to scrutinize her evidence, let us have a
glance at the FIR (Ext.1), which has been lodged by the brother of the
accused and the deceased (P.W.1). It is stated that the accused was
frequently giving threat to life of the deceased and, therefore, P.W.2 was
keeping a watch over the situation by remaining near the back door of
{{ 7 }}
their house. It is not indicated in the FIR that either in that morning or
previous night or on the previous day, the deceased was threatened by
the accused. P.W.2, also, does not state that in the morning, she was on
the backside of their house. She does not state to have been keeping any
watch over the movement of her husband. P.W.2 has stated that
sometime after her husband left for the nearest Nala, she went towards
that Nala and saw the accused to have fled away after killing her
husband. It has not been stated by P.W.2 as to the reason for her to go
towards Nala. When it is stated that accused was seen fleeing from the
place, it is stated that accused having killed her husband, was seen
running away by holding a tangia. But the FIR version is not that. It
reveals that P.W.2 saw near the bushy area to which place, the deceased
had gone that accused Balaram carrying something was running away.
Interestingly, In the FIR, it is noted by P.W.1 that he was suspecting the
accused to be the author of the crime although he has deposed during
Trial that the incident had been seen by P.W.2 and his specific evidence
is that he heard about the incident from P.W.2. This important omission
in the FIR lodged by P.W.1 after hearing from P.W.2 creates a doubt in
the mind on the version of P.W.2 as regards her seeing the accused at
that time running away.
P.W.2 has stated that when she was going towards the Nala, she
found accused fleeing away, but during cross-examination, she has
admitted to have not stated so during her examination by the Police and
later, she has attempted to explain that she at that point of time was
mentally imbalanced. Be that as it may, it is her evidence that there is a
jungle in between the Nala and their house. The prosecution has not led
any evidence by showing as to what was the distance between the house
{{ 8 }}
and the place where the deceased was lying injured being assaulted. The
I.O (P.W.7) having visited the spot, when has prepared the spot map,
which has been admitted in evidence and marked Ext.6, it is seen
therefrom that the place where he had seen the dead body to be lying
was beyond the road running after some distance from the house of the
deceased when the house of the accused is also near the house of the
deceased. In such state of affair in the evidence of P.W.1 and P.W.2, we
are unable to conclude that P.W.2 is wholly a reliable witness so as to
say that her version to have seen the accused as free from any such
doubt.
As regards to the recovery of tangia, we find the evidence of
P.W.3, who is the witness to such seizure, is not at all up to the mark.
He has simply stated that when accused was in police custody, police
seized the axe at a distance of 50 meter from the place where Brundaban
was lying dead. He does not state the accused to have made any
disclosure statement before the I.O (P.W.7) nor to have led the I.O to the
particular place where that tangia was lying. The place of seizure of
tangia as shown also appears to be an open one where many persons
used to frequent. P.W.7, the I.O has stated that on 16.08.2011, he
arrested the accused and when accused was in his custody, he disclosed
in presence of witnesses that he had concealed the weapon (tangia)
inside the jungle at a little distance from the spot and he told that he
could give recovery of that tangia if taken to the place. It is not stated by
P.W.7 as to where such statement was given by the accused and where it
was recorded and who were the witnesses present then. We have
discussed the evidence of P.W.3, who is the witnesses to the said seizure
of tangia. When the place wherefrom the axe was said to have been
{{ 9 }}
lying was at a close distance from the place where the dead body was
lying, it having not been earlier seen by others cannot be affirmatively
said. The I.O does not say to have made any search in the nearby places
to find out any clue, which is the foremost duty of an investigating
Officer.
13. On a conspectus of discussion of evidence as hereinabove, we are
of the view that the prosecution has failed to establish the charge against
the accused beyond reasonable doubt.
14. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 10.04.2012, passed by the
learned Ad-hoc Additional Sessions Judge, Sundargarh, in Sessions
Trial No.23/6 of 2012 are hereby set aside.
The Appellant (Balaram Naik) being on bail, his bail bonds shall
stand discharged.
(D. Dash),
Judge.
G. Satapathy, J. I Agree.
(G. Satapathy),
Judge.
Signature Not Verified
Digitally Signed
Gitanjali
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 02-Nov-2023 12:50:41
