Brushabha @ Bazar Khadia vs State Of Orissa
2023 Latest Caselaw 11852 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          JCRLA No.70 of 2011
                                 AND
                          JCRLA No.71 of 2011
          In the matter of Appeals under Section 383 of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and the order of sentence dated 17th March, 2011 passed by the
    learned Additional Sessions Judge (F.T.), Sambalpur, in S.T. Case
    No.36/20/50 of 2009-10.
                                    ----

        Brushabha @ Bazar Khadia           ....        Appellants
        (In JCRLA No.70 of 2011)
        Sanischar Khadia
        (In JCRLA No.71 of 2011)

                                -versus-

        State of Orissa                    ....        Respondent

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

                For Appellant   -      M/s.B.K. Ragada, L.N. Patel and
                                       N.K. Das
                                       (Advocates in both JCRLAs)

                For Respondent -       Mr.P.K. Mohanty,
                                       Additional Standing Counsel
                                       (In both JCRLAs)
   CORAM:
   MR. JUSTICE D.DASH
   MR. JUSTICE A.C.BEHERA
   Date of Hearing : 21.09.2023     : Date of Judgment:03.10.2023

D.Dash,J. Since in both the Appeals, the judgment of conviction and

the order of sentence dated 17th March, 2011 passed by the

JCRLA Nos.70 & 71 of 2011

learned Additional Sessions Judge (F.T.), Sambalpur, in S.T. Case

No.36/20/50 of 2009-10 arising out of C.T. Case No.1941 of 2008

corresponding to Ainthapali P.S. Case No.215 of 2008 on the file

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

Sambalpur have been called in question, those were heard

together for being disposed of by this common judgment.

The Appellants (accused persons) thereunder have been

convicted for committing the offence under section 302/34 of the

Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, each

of them has been sentenced to undergo imprisonment for life and

pay fine of Rs.1000/- (Rupees One Thousand) in default to

undergo rigorous imprisonment for one (1) month for

commission of the said offence.

2. Prosecution Case:-

On 28.10.2008 around 8.30 a.m., one Sarojini Khadi

(informant-P.W.3), who happens to be the wife of Surendra

Khadia lodged a written report with the Inspector-in-Charge

(I.I.C.) of Ainthapali Police Station (P.S.) stating therein that her

husband Surendra had been murdered by the accused persons in

the previous night. It was stated that during the night, the

informant (P.W.3) could not establish contact with her husband

(Surendra) as he did not respond to the repeated phone calls

given to her mobile number. In the morning, the informant, being

called by her nephew (Biju @ Bijay Khadia-P.W.4) that Surendra

JCRLA Nos. 70 & 71 of 2011

was not in a good condition, she went and found Surendra lying

dead with injuries on his person. She further stated that one Laba

Khadia (P.W.10) stated to have heard from the elder brother of

Surendra, namely, Jaisingh Khadia (P.W.13) that the accused

persons had inflicted injuries on the person of Surendra by means

of a Paniki (vegetable cutter) and lathi and had caused his death.

Receiving the said written report from Sarojini Khadi

(informant-P.W.3), the IIC (P.W.15) treated the same as F.I.R.

(Ext.3) and registering the case, took up investigation.

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

P.W.15) examined the Informant (P.W.3) and recorded her

statement under section 161 of Cr.P.C. He then visited the spot

and prepared the spot map (Ext.16). The I.O. (P.W.15) held

inquest over the dead body of the deceased in presence of the

witnesses and prepared the report to that effect (Ext.4). He seized

the incriminating articles such as mobile phone, one shoe,

motorcycle etc. found lying near the dead body and prepared the

seizure list (Ext.17) to that effect. The dead body of the deceased

was sent for post mortem examination by issuing necessary

requisition. Some other witnesses were examined by the I.O.

(P.W.15). The accused persons being arrested, it is said that

accused Brushaba @ Bazar Khadia stated to have thrown that

Paniki (Vegetable Cutter) in the well of the accused situated on

the side of the canal. He also told that if he would be taken to that

JCRLA Nos. 70 & 71 of 2011

particular place, he would give recovery of that Paniki (vegetable

cutter). The I.O. (P.W.15) recorded the statement of the accused

Bazar under Ext.13 and the accused, pursuant to the said

statement, had then led the I.O. (P.W.15) and others near the well

and that Paniki (Vegetable Cuttar) was recovered from inside the

well by a homegaurd Kishore Khadia at the instance of said

accused, which was then seized under the seizure list (Ext.14). It

was also stated that accused Sanischar, while in police custody,

stated to have kept the lathi in a particular place in his house. He

also disclosed that if he would be taken to his house, he would

give recovery of the lathi. The statement of accused Sanschar was

recorded by the I.O. (P.W.15) vide Ext.1 and he then is said to

have led the I.O. (P.W.15) and others to his house and gave

recovery of that lathi, which was seized under seizure list (Ext.2).

In course of investigation, the I.O. (P.W.15) also seized other

incriminating articles such as the wearing apparels of the

deceased and the accused persons and sent all those for chemical

examination through Court. On completion of the investigation,

he submitted the Final Form placing the accused persons to face

the Trial for commission of the offence under section 302/34 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

JCRLA Nos. 70 & 71 of 2011

how the Trial commenced by framing the charge for the aforesaid

offence against the accused persons.

5. The prosecution, in support of its case, has examined in

total fifteen (15) witnesses during Trial. As already stated, the

wife of the deceased, who had lodged the FIR (Ext.3) is P.w.3.

P.Ws.1, 4 & 5 are the eye witnesses. The Doctor, who had

conducted the autopsy over the dead body of the deceased is

P.W.6 whereas few other post occurrence witnesses have been

examined and the I.O., at the end, has come to the witness box as

P.W.15.

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 22.

Out of those; important are the FIR (Ext.3); inquest report (Ext.4);

post mortem report (Ext.5) and the spot map (Ext.16). The

statements of the accused persons, namely, Bazar and Sanischar

in leading the I.O. (P.W.15) and others in giving the recovery of

Paniki and lathi have been admitted in evidence and marked

Exts.1 & 13 respectively. The chemical examiner's report has been

admitted in evidence and marked Ext.22.

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

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

support of the same.

JCRLA Nos. 70 & 71 of 2011

7. The Trial Court, on analysis of the evidence of the

prosecution witnesses, having held the death of Surendra to be

homicidal in nature, has finally concluded that these accused

persons have intentionally caused the death of Surendra by

causing the injuries upon him by means of Paniki (vegetable

cutter) and lathi.

8. It, however, appears that the nature of death of Surendra, as

has been held by the Trial Court, to be homicidal was neither

disputed before the Trial Court nor before us.

The Doctor (P.W.6), during post mortem examination, has

found in total forty numbers of injuries on the person of the

deceased and out of those, almost all are the incised wounds over

different parts of the body and one is a penetrating wound and

another is a wound caused on dorsal medial aspect right below

elbow joint while defending. P.W.6, in her report, has noted all

such injuries stating their seats and dimensions, which too she

has spoken during Trial. The report has been admitted in

evidence and marked Ext.5. The finding of the Doctor (P.W.6) is

that all such injuries are ante mortem in nature except one injury,

which has been said to have been caused by hard blunt force

impact. It is stated by her that all other thirty-nine injuries could

be caused by sharp cutting weapon. The death, according to her

(P.W.6) is due to shock and haemorrahage as a result of said

JCRLA Nos. 70 & 71 of 2011

injuries. This P.W.6 is also stated the nature of death of Surendra

to be homicidal.

The I.O. (P.W.15), having held inquest over the dead body

of the deceased, has prepared the report in presence of the

witnesses, which has been admitted in evidence and marked

Ext.4. The injuries noticed by the I.O. (P.W.15) have been noted in

the said report in his own language. Other witnesses have also

stated to have seen Surendra lying dead with injuries all over his

body. In view of all these evidence, which have practically

unchallenged, we are left with no option but to conclude that the

death of Surendra was homicidal in nature.

9. Mr.B.K.Ragada, learned counsel for the Appellants (accused

persons) submitted that the Trial Court, without proper

appreciation of evidence of P.Ws.1, 3, 4 & 5, has gone wrong in

holding the accused persons to be guilty of committing murder of

Surendra. He further submitted that the conduct of all these

witnesses, being not normal, the Trial Court, has failed to take

note of the same in their proper perspective and it has simply

avoided to take note of the same by saying that response of

different persons vary from one another and their conduct after

seeing the incident also varies. He further submitted that the

prosecution, having suppressed all these facts giving rise to the

incident and having failed to take note of the discrepancies,

which impact the acceptability of their evidence, has erroneously

JCRLA Nos. 70 & 71 of 2011

recorded the conviction against the accused persons. In support

of the above submission, he has relied upon the decision of the

Hon'bel Supreme Court in case of Harilal Etc. -V- State of

Madhya Pradesh (Now Chhatisgarh) in Criminal Appeal

Nos.2216-2217 of 2011 disposed of on 05.09.2023.

10. Mr.P.K. Mohanty, learned Additional Standing Counsel for

the Respondent-State, while supporting het finding of guilt of the

accused persons, as has been returned by the Trial Court,

contended that the evidence of P.Ws.1, 3, 4 & 5 are consistent on

the material particulars as to the incident and their evidence,

being read in entirety, would reveal that they are truthful

witnesses and their versions are the true reproduction of what

they had seen at the relevant time, which are free from any

infirmity.

11. 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 15) and have perused

the documents admitted in evidence marked as Exts.1 to 15.

12. Sarojini Khadia (P.W.3), who has lodged the FIR (Ext.3)

states that by that time, she had seen her husband lying dead

with injuries all over and she was told by the elder and younger

brother of the deceased Surendra (husband of P.W.3) that the

JCRLA Nos. 70 & 71 of 2011

accused persons were responsible for such serious condition of

her husband Surendra.

It has been stated by P.W.1 that it was around 9.00 p.m.,

when he was standing outside his house, he saw the deceased

talking with accused Bazar and thereafter Surendra gave a slap

on accused Bazar. He has further stated that accused Bazar went

to his house, brought a Paniki and assaulted the deceased on his

shoulder. He further stated that accused Sanischar thereafter

assaulted Surendra by means of lathi and when the deceased

started running, he too was chased by these two accused persons.

His evidence is criticized inviting the attention of the Court to his

version in the cross-examination wherein he has stated that there

was non-availability of the street light in their village and the

occurrence day was in the dark fortnight. So, it is said that he

could not have seen the occurrence as he now places before the

Trial court. The accused persons are no unknown to P.W.3 and,

therefore, when the distance is not shown to be that the

identification was not possible. The witness, having been cross-

examined, we find no such material to doubt the role played and

the act done by these accused persons and also to suspect the

presence of the witness.

P.W.3, who is the wife of Surendra (deceased) and the

informant, has stated the same thing, which have been written in

the FIR (Ext.3).

JCRLA Nos. 70 & 71 of 2011

- 10 -

P.W.4, an eye witness to the occurrence, has stated in clear

terms to have seen accused Bazar assaulting the deceased by

means Paniki and accused Sanischar assaulting the deceased by

means of lathi in front of the house of one Jana Khadia. He has

further stated that due to such blows, the deceased fell on the

ground. This witness no doubt had stated before the police that

he heard from one Lingaraj Khadia (P.W.5) that accused Bazar

and Sanischar were assaulting Surendra and that is now given a

go-bye in the Trial. Such omission, in our view, would not

amount to material contradiction when the witness has firm

presence inflicting the injuries upon the deceased by that Paniki

and lathi. It has also been stated by P.W.5 that he had seen

accused Bazar assaulting the deceased by means of Paniki on

different parts of the body and it was in front of the house of Jana

Khadia. He has stated to have seen all about these incident

through the light coming from the electric bulb, which was then

glowing. He has stated that in view of the furious posture of

accused Bazar, he and P.W.4 got frightened and did not dare to

come near the accused persons and having gone to their house,

he came out in the next morning.

P.W.10 is stating to have heard about the happenings in the

incident from P.W.4 and in turn, to have told P.W.3.

JCRLA Nos. 70 & 71 of 2011

- 11 -

13. Leaned counsel for the Appellants (accused persons)

submitted that the conduct of these witnesses, being quite

unexpected, their evidence cannot be safely relied upon.

The decision of Harilal Etc. -V- State of Madhya Pradesh

(Now Chhatisgarh) in Criminal Appeal Nos.2216-2217 of 2011

relied upon, being carefully read, we find that in that case, several

factors were taken into account in disbelieving the version of the

witnesses and not simply the non-disclosure of the occurrence to

anyone in that very night. In the cited case, the Hon'ble Supreme

Court, on discussion of evidence has found the probability of

anyone witnessing the occurrence to be high; the genesis of the

crime as also the manner in which the murder took place and by

whom inasmuch as the evidence let in by the prosecution to have

been given rise to a strong probability of the killing being on

account of mob action on the deceased for his alleged

involvement with a lady of the village

Taking a cumulative view, the Hon'ble Apex Court refused

to rely the evidence of the eye witnesses, but the factual settings

of case at hand are quite different. Here the only criticism to the

evidence of the above P.Ws is their conduct that immediately in

the night, they had not disclosed about the incident before

anybody. That situation being correct, it is seen that they have

given the explanation that it was due to fear, which under the

circumstance, appear to be well founded.

JCRLA Nos. 70 & 71 of 2011

- 12 -

On a conspectus of analysis of the evidence hereinabove,

this Court finds that the prosecution has proved its case against

the accused persons to have committed the murder of Surendra

beyond reasonable doubt.

14. In the result, the Appeals stand dismissed. The judgment of

conviction and the order of sentence dated 17th March, 2011

passed by the learned Additional Sessions Judge (F.T.),

Sambalpur, in S.T. Case No.36/20/50 of 2009-10 are hereby

confirmed.

Since both the Appellants (accused persons), namely,

Brushabha @ Bazar Khadia and Sanischar Khadia are on bail, they

are directed to surrender before the Trial Court within two weeks

hence to receive further instruction in serving out the remaining

sentence, if any.

(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 Nos. 70 & 71 of 2011