Baisakhu Bagh vs State Of Orissa
2023 Latest Caselaw 11851 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                            JCRLA No.67 of 2012

          In the matter of an Appeal under Section 383 of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and the order of sentence dated 25th June, 2012 passed by the
    learned   Adhoc       Additional   Sessions       Judge    (Fast     Track),
    Sambalpur, in S.T. Case No.91/46 of 2011.
                                       ----

         Baisakhu Bagh                           ....           Appellant

                                   -versus-

         State of Orissa                         ....           Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                For Appellant      -         Mrs.C. Kastury
                                             (Advocate)

                For Respondent -             Mr.G.N. Rout,
                                             Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    MR. JUSTICE A.C.BEHERA

    Date of Hearing : 22.09.2023         :    Date of Judgment:03.10.2023

D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has

called in question the judgment of conviction and the order of

sentence dated 25th June, 2012 passed by the learned Adhoc

Additional Sessions Judge (Fast Track), Sambalpur, in S.T. Case

No.91/46 of 2011 arising out of C.T. Case No.1904 of 2010

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corresponding to Jujumura P.S. Case No.76 of 2010 of the Court

of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.),

Sambalpur.

The Appellant (accused) thereunder has been convicted for

committing the offence under sections 302 of the Indian Penal

Code, 1860 (for short, 'the IPC'). Accordingly, he has been

sentenced to undergo imprisonment for life and pay fine of

Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous

imprisonment for two (2) months for commission of the said

offence.

2. Prosecution Case:-

On 29.12.2010 during noon hours, one Krushna Chandra

Bagh was cutting firewood near his house. During that time, the

accused arrived there holding an axe and he assaulted Krushna

on his head and other parts of his body causing severe bleeding

injuries. Receiving such axe blows, Krushna fell on the ground.

Seeing this, his niece Durlava Bagh (P.W.1) shouted for help

when the accused left the place and went towards the jungle

carrying that axe. The villagers, having gathered, a vehicle was

arranged to shift Krushna to Jujumura Primary Health Centre

(PHC). Thereafter, Krushna being referred, was shifted the V.S.S.

Medical College and Hospital, Burla, where he was declared

dead.

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On that day around 3.30 p.m., one Santosh Bagh (P.W.4),

who happens to be the younger brother of Krushna (deceased)

lodged a written report with the Inspector-in-Charge (IIC) of

Jujumura Police Station (P.S.). Receiving the said written report

from P.W.4, the IIC (P.W.12), treated the same as FIR (Ext.2) and

registering the case, took up investigation.

3. In course of investigation, the Investigating Officer (I.O.-

P.W.12) examined the Informant (P.W.4) and recorded his

statement under section 161 of Cr.P.C. After visiting the spot, the

I.O. (P.W.12) prepared the spot map (Ext.12). He also seized

incriminating articles such as blood stained earth and sample

earth under seizure list (Ext.8). He too seized other articles, which

according to him, were incriminating. The accused, being

searched in his house, could not be traced. However, he was

arrested some time thereafter. While in police custody, it was said

that the statement to have kept the axe concealed under the earth

near Khalidhar Nala. He also stated that if he would be taken to

that place, he would give recovery of the same. The I.O. (P.W.12),

having recorded the statement of the accused under Ext.3, was

taken by the accused to the place of concealment and the axe was

recovered and seized in presence of the witnesses. On 30.12.2010,

inquest over the dead body of the deceased was held and the

report (Ext.1) was prepared. The dead body of the deceased was

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sent for post mortem examination by issuing necessary

requisition. The seized incriminating articles were then sent for

chemical examination through Court. The I.O. (P.W.12), on

completion of the investigation, submitted the Final Form placing

the accused to face the Trial for commission of the offence under

section 302 of the IPC.

4. Learned S.D.J.M., Sambalpur, on receipt of the Final Form,

took cognizance of 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 prosecution, in support of its case, has examined in

total twelve (12) witnesses during Trial. As already stated, P.W.1

is the niece of the deceased and the informant (P.W.4) and is the

eye witness to the occurrence. P.W.2 is another nephew of the

deceased and the informant (P.W.4), who has heard about the

incident from P.W.1. P.W.3 is another post occurrence witness

and he is none other than the brother of the deceased and

informant (P.W.4) P.W.5 is a co-villager, who has stated to have

seen the incident. Another co-villager (P.W.7) has been examined

and his evidence is that he had seen the accused running away

with the axe and it was said that on being asked, the accused

confessed before him to have killed Krushna. The other important

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witness is the Doctor (P.W.11), who had conducted the autopsy

over the dead body of Krushna, is P.W.11. The I.O., at the end,

has come to the witness box as P.W.12.

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 17.

Out of those; important are the FIR (Ext.2); inquest report (Ext.1);

the post mortem report (Ext.10); the spot map (Ext.12); and the

chemical examiner's report (Ext.17). The disclosure statement of

the accused had been admitted in evidence and marked Ext.3 and

the corresponding seizure list is Ext.4.

6. The accused, having taken the plea of complete denial and

false implication, has, however, not tendered any evidence in

support of the same.

7. The Trial Court, in view of the evidence of the Doctor

(P.W.11) and that of the I.O. (P.W.12) as well as the evidence of

other witnesses, has held that Krushna met a homicidal death.

Having said so, placing reliance upon the evidence of the eye

witness (P.W.1) and other witnesses such as P.Ws.5 & 7, the Trial

Court has held that the charge against the accused has been

established beyond reasonable doubt.

8. Mrs.C.Kastury, learned counsel for the Appellant (accused)

submitted that the Trial Court, without proper scrutiny of the

JCRLA No.67 of 2012

evidence of P.Ws.1, 5 and 7, has erred in holding the accused to

be the perpetrator of the crime in causing fatal injuries upon the

deceased. She submitted that in view of the prior dispute

between the accused and the deceased, as has been stated by

P.W.1, the Trial Court ought to have carefully scanned the

evidence of all those P.Ws., who have directly implicated the

accused. She submitted that the story projected by all these

witnesses that the accused suddenly came and caused the

murderous assault upon the deceased, keeping in view the time

and place of the incident is highly improbable. She, in order to

put up strength to her submission, has taken us through the

evidence of all these witnesses. In view of all these, she contended

that with the available evidence, the judgment of conviction and

order of sentence impugned in this Appeal cannot be sustained.

9. Mr.G.N.Rout, learned Additional Standing Counsel for the

Respondent-State, submitted all in favour of the finding of guilt

against the accused, as has been returned by the Trial Court.

According to him, there is absolutely no infirmity in the evidence

of P.W.1, who is the natural eye witness to the occurrence and

when no such material is available to doubt her presence and

raise the suspicion that she might not have seen the occurrence,

the Trial court, finding the evidence of P.W.1 to be receiving full

support from the evidence of other witnesses including P.W.5,

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has rightly convicted the accused for committing the murder of

Krushna.

10. Keeping in view the submissions made, we have carefully

gone through the impugned judgment of conviction. We have

also travelled through the depositions of the witnesses examined

from the side of the prosecution (P.Ws.1 to 12) and have perused

the documents admitted in evidence marked as Exts.1 to 17.

11. In order to address the rival submission and judge the

sustainability of the finding of guilt against the accused, as has

been returned by the Trial Court, we are thus called upon to

scrutinize the evidence of P.W.1 and other witnesses.

Before taking up the above exercise, it be stated here that

the nature of death of Krushna, as has been held to be homicidal

by the Trial Court, is not under challenge before us. The evidence

of the Doctor (P.W.11) is very clear that she had noticed three cut

wounds over the dead body of Krushna and those were on the

left side of the neck, left mastoid over left mandible and left

partial region. It has also been stated by P.W.11 that the injuries

on the scalp had proved fatal. It has further been stated by her

that all these injures were possible by the sharp cutting heavy

weapon and other injury was with the hard blunt force impact.

Her evidence is also to the effect that the injures were ante

mortem in nature and the death of Krushna was homicidal.

JCRLA No.67 of 2012

During cross-examination, she has stated that the cut wounds,

which she had noticed, were the result of three blows. With such

evidence of the Doctor (P.W.11), we find that the evidence of the

I.O. (P.W.12), who has noticed such injuries on the person of the

deceased during inquest and has mentioned in his own language

in the report (Ext.1). Other witnesses including P.W.1 have stated

to have seen the deceased lying dead with injuries. The Doctor

(P.W.11) has also noted the seats and dimensions of the injuries in

her report (Ext.10). With the above evidence on record, we are left

with no option but to hold that Krushna met a homicidal death.

12. Coming to the acceptability of the evidence in so far as the

complicity of the accused is concerned, let us have a glance on the

evidence of P.W.1. She has stated that at the relevant time, when

she was proceeding towards the cow dung yard to throw the cow

dung collected from her house, just in front of the house of the

accused, she saw the accused holding her uncle Krushna by an

axe and Krushna (deceased) at that time was coming to their

house. She has also stated to have seen the accused giving three

successive axe blows on Krushna. Having stated so, she has

further narrated that the first blow fell on the neck; second one

fell near the left ear; and the third one on the head. The reaction

of this witness has also been narrated that then she shouted

"MORA KAKA KU HANIDELA". It is her evidence that thereafter

JCRLA No.67 of 2012

the accused fled away from the spot holding that axe. During

cross-examination, she has stated that at the relevant time,

Krushna was cutting firewood near his house. Although some

discrepancies are appearing with regard to the seat of injuries, as

has been said by this witness, to have been inflicted by this

accused upon the deceased, those, in our view, are not of such

significance to discredit the assertive version of P.W.1, which has

remained unshaken. The witness, having not stated before the

I.O. (P.W.12) about the number of blows given by the accused is

also not of that importance adversely to impact the substratum of

her version. She has stated that having seen the incident, she

stopped proceeding further to throw the cow dung, which under

the circumstance, is quite natural. We find no such glaring

infirmity in the evidence of P.W.1. The evidence of P.W.1 is

receiving corroboration from the evidence of immediate post

occurrence witness (P.W.2), who is her brother that. It is his

evidence that on arrival, P.W.1 told him that their uncle Krushna

was assaulted by the accused by means of the axe. Thus,

attribution of the authorship of the injury received by Krushna to

the accused, the evidence of P.W.2 again receive corroboration

from the evidence of P.W.3, who is the brother of the deceased

and the informant (P.W.4) when he has stated that he was told

about the incident by P.W.2.

JCRLA No.67 of 2012

- 10 -

The evidence of P.W.4, who is the younger brother of the

deceased is also to the effect that he was told the details of the

occurrence by P.W.1 when he arrived in the house. In view of the

above evidence, we are to scrutinize the evidence of P.W.5, who

is an independent witness and a co-villager. She has stated that at

the time of occurrence, she was going to village tank to take bath

and from a distance of 25 to 30 feet from the place of occurrence

and saw the accused assaulting Krushna by that axe. She also

states that the accused gave three blows by that axe. It is her

evidence that when immediately she arrived at the spot, she saw

P.W.1 by the side of the deceased.

Furthermore, it has been deposed by P.W.7 that at the

relevant time, when he was going to attend the call of nature, he

saw the accused running away carrying an axe and on being

asked, the accused told him to have killed Krushna. He, having

honestly stated to have not seen the occurrence, when has stated

about the extra judicial confession, we too find no such material

to have surfaced during cross-examination to disbelieve his

version on that score. It was also natural for this witness (P.W.7)

under the circumstance to ask the accused seeing him running

with axe and it cannot be said to be unnatural on the part of the

accused to immediately disclose the sin committed by him.

JCRLA No.67 of 2012

- 11 -

On a conspectus of analysis of the evidence hereinabove,

this Court finds that the prosecution has proved the charge

against the accused that he has committed the murder of Krushna

beyond reasonable doubt.

13. In the result, the Appeal stands dismissed. The judgment of

conviction and the order of sentence dated 25th June, 2012 passed

by the learned Adhoc Additional Sessions Judge (Fast Track),

Sambalpur, in S.T. Case No.91/46 of 2011 are hereby confirmed.

Since the Appellant (accused), namely, Baisakhu Bagh is on

bail, he is directed to surrender before the Trial Court forthwith

to serve out the sentence.

(D. Dash) Judge

A.C.Behera, J. I Agree.

(A.C.Behera) Judge

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 06-Oct-2023 10:34:26

JCRLA No.67 of 2012