Biranchi Hati vs State Of Odisha
2023 Latest Caselaw 10876 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.651 of 2018

          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 3rd February, 2014 passed by the
    learned Additional Sessions Judge, Patnagarh, in Sessions Case
    No.58/22/16 of 2011-13.
                                     ----

        Biranchi Hati                       ....        Appellant

                                 -versus-

        State of Odisha                     ....       Respondent

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

                For Appellant    -      Mr.Anirudha Das, A. Das
                                        Abinindra Das, S.C. Mishra and
                                        Ms.A.Sahoo (Advocates)

                For Respondent -        Mr.Sonak Mishra,
                                        Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K. PANIGRAHI

   Date of Hearing : 04.09.2023      : Date of Judgment:05.09.2023

D.Dash,J. The Appellant, by filing this Appeal, has called in question

the the judgment of conviction and order of sentence dated 3rd

February, 2014 passed by the learned Additional Sessions Judge,

Patnagarh, in Sessions Case No.58/22/16 of 2011-13 arising out of

G.R. Case No.09 of 1998 corresponding to Patnagarh P.S. Case

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No.04 of 1998 in the Court of the learned Sub-Divisional Judicial

Magistrate (S.D.J.M.), Patnagarh.

The Appellant (accused) thereunder has been convicted for

committing the offences under section 341/324/302/34 of the

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

been sentenced to undergo simple imprisonment for a period of

one (1) month for commission of the offence under section 341 of

the IPC, rigorous imprisonment for a period of one (1) year and

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

undergo rigorous imprisonment for a period of two (2) months

for commission of the offence under section 324 of the IPC; and

imprisonment for life and fine of Rs.10,000/- (Rupees Ten

Thousand) in default to undergo rigorous imprisonment for six

(6) months for commission of the offence under section 302/34 of

the IPC with direction that the substantive sentences would run

concurrently.

2. PROSECUTION CASE:-

On 11.01.1998 evening, this accused (Biranchi Hati) with

other accused, namely, Birasen Mahakud, who having

absconded, was not on Trial, demanded money from one Debaraj

Chhatar (P.W.5), who is the elder brother of Narayan Chhatar

(informant-P.W.6) for purchasing liquor. When he refused to

accede to their demand, quarrel between them ensued. It was

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stated that at that time, Narayan (informant-P.W.6), with his

borther-in-law Rama Chandra Thela arrived at the spot. They

when tried to dissuade the accused persons, the accused persons,

in turn, quarreled with them. At that time, villagers intervened

and separated them. Thereafter, Narayan (informant-P.W.6) and

Rama Chandra Thela went home and, therefore, on their

proceeded to the bus stop at Larambha in order to receive the

father-in-law of the informant (P.W.6). When none of the family

members came to alight at the Bus stop as per schedule by 8.00

p.m., they were returning to their village. At the outskirt of their

village, at a place, locally known as Bhimtikra, this accused with

the other one, namely, Birasen are said to have obstructed them

being armed with Bhujali. The informant (P.w.6) and Rama

Chandra got down from their cycles and then this accused

attempted to inflict injury upon the informant (P.W.6) by means

of a Bhujali, aiming at his head. The informant (P.W.6) when

raised his right hand to ward off the blow, he received the

injuries on his palm. Then, he tried to snatch away the Bhujali

from the accused for which a scuffle between the two ensued. It

was further stated that the accused, in the process, had pressed

his neck but with much difficulty, he managed to extricate

himself and being able to snatch away the Bhujali from the

accused, ran towards the village. At that time, he saw that other

accused Birasen Mahakud (not tried) holding Narayan

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(informant-P.W.6), who was then shouting "Marigali Marigali".

Informant (P.W.6) informed about the incident to the villagers,

who came to the spot and saw Rama Chandra Thela lying dead in

pool of blood having sustained cut injuries on his neck and other

parts of his body. In the night, Narayan (P.W.6) lodged a written

report with the Assistant Sub-Inspector of Police (A.S.I.) in charge

of Larambha Police Outpost. The A.S.I. of Police immediately

entered the siad fact in the Station Diary Book maintained at the

Police Outpost and took up the preliminary investigation. He

visited the post, prepared the spot map, examined the witnesses

including the informant (P.W.6). He too held inquest over the

dead body of Rama Chandra in presence of witnesses and

prepared the report (Ext.1) to that effect. He simultaneously

forwarded the written report to the Officer-in-Charge (OIC) of the

Patnagarh Police Station (P.S.) for registration of the case and

needful action in that regard.

The O.I.C. (P.W.8) having treated the written report as FIR

(Ext.8), registered the case and took up investigation. He re-

examined the injured informant (P.W.6) and other witnesses,

seized wearing apparels of the deceased and two cycles lying at

the spot. He also seized the Bhujali on production by the

informant (P.W.6). The dead body of the deceased was sent for

post mortem examination by issuing necessary requisition. The

seized incriminating articles were sent for chemical examination

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through Court. On transfer of this Investigating Officer (I.O.-

P.W.8), his successor in office took the charge of the investigation

and submitted the Final Form showing this accused and the other

one absconders and making the prayer for issuance of non-

bailable warrants of arrest against this accused and the other one,

namely, Birasen placing them to face the Trial for commission of

the offence under section 341/302/34 of the IPC.

3. Learned S.D.J.M., Patnagarh, on receipt of the Final Form,

took cognizance of the said offences and after observing the

formalities, by splitting up the case, committed the case in respect

of this accused to the Court of Sessions for Trial since that other

accused, Birasen could not be apprehended. That is how the Trial

commenced by framing the charge for the aforesaid offences

against the accused and four others.

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

total nine (9) witnesses during Trial. As already stated, the

injured informant, who had lodged the FIR (Ext.8) is P.W.6 and

he is said to be ocular witness in respect of the incident in part.

P.Ws.1, 3, 4 & 5 are the post occurrence witnesses and from

among them, P.W.1 is also a witness to the inquest and P.W.2 is a

witness to the seizure of the bicycles, wearing apparels of

deceased, injured and that Bhujali being produced by P.W.6. The

Doctor, who had conducted autopsy over the dead body of the

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deceased, has come to the witness box as P.W.7 whereas the

P.W.9 is the other Doctor, who had medically examined the

informant (P.W.6). The main I.O., being examined as P.W.8, the

A.S.I., who had conducted the preliminary investigation, has not

been examined.

5. 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 16.

Out of those, the important are, the FIR (Ext.8), the inquest report

(Ext.1), the post mortem report (Ext.11) and the chemical

examiner's report (Ext.16).

6. The Trial Court, having found the death of Rama Chandra

to be homicidal in nature, upon examination of the evidence on

record and their evaluation, has held this accused guilty for

commission of the offences and accordingly, he has been

sentenced as afore-stated.

7. Mr.Anirudha Das, learned counsel for the Appellant

(accused) submitted that the prosecution case is mainly based on

the evidence of P.W.6, who is the informant and claims to have

been injured during the first part of the occurrence. According to

him, his evidence on the score of complicity of this accused in

intentionally causing the death of Rama Chandra (deceased) with

the other absconding accused Birasen is not at all believable.

CRLA No.651 of 2018 {{ 7 }}

Inviting out attention to the deposition of P.W.6, he submitted

that this P.W.6, having not seen the present accused to have

committed any overt act as against the deceased Rama Chandra

merely because when he left the place after his quarrel and attack

by this accused on him to inflict the injuries, it cannot be inferred

that it is this accused with the other had inflicted the injuries

upon Rama Chandra (deceased), which led to his death. He

further submitted that the Trial Court, without proper analysis of

the evidence of the Informant (P.W.6), and other evidence on

record, is not right in holding this accused guilty for the offences,

as indicated above, particularly the offence under section 302 of

the IPC with the aid of section 34 of the IPC.

8. Mr.Sonak Mishra, learned Additional Standing Counsel for

the Respondent-State submitted that the informant (P.W.6) is an

injured witness and he, having narrated the incident in great

detail right from the beginning, which appears to be clear, cogent

and acceptable, the Trial Court did commit no error in convicting

the accused when the evidence of P.W.6 receive corroboration

from other evidence.

9. 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

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from the side of the prosecution (P.Ws.1 to 9) and have perused

the documents admitted in evidence marked as Exts.1 to 16.

10. At the outset, we would like to state that there is no

challenge form the side of the defence as to the nature of death of

Rama Chandra (deceased) that it is homicidal. The Doctor

(P.W.7), who had conducted autopsy over the dead body of the

deceased, has found five incised wounds over the body of the

deceased. As per his evidence, all these injuries were ante

mortem in nature and the death had resulted from the severe

haemorrhage and shock due to incised injuries on the neck and

cutting of the main vessels of the neck. This P.W.7, in his

evidence, has stated in detail as regards the seats and dimensions

of those injuries, which too find in his report (Ext.11). In addition

to the above, we find the evidence of the Informant (P.W.6) and

other villagers, who had seen Rama Chandra lying dead with

such bodily injuries. The evidence on the above score, having not

been impeached in any manner, we are left with no option but to

hold that Ramachandra (deceased) met a homicidal death.

11. Coming to the finding as regards the complicity of this

accused, which is under attack, let us first of all, have a look at the

evidence of the informant (P.W.6). He has stated that on

11.01.1998 around 6.00 p.m, this accused and one Birasen

Mahakud were found to be quarrelling with his brother Debaraj

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(P.W.5). He has further stated that during that time, he was going

to attend call of nature and when hearing the hullah, he went

near the place where they were quarrelling, he asked his brother

Debaraj (P.W.5), the reason for the quarrel. He further states that

his brother Debaraj (P.W.5) disclosed that the accused persons

were demanding money from him to consume liquor on the

allegation that he had not supplied the sugar to them at the time

of Pusa Purnima. His further evidence is that when he arrived,

Rama Chandra (deceased) had already arrived there and the

altercation then started with the accused persons. He has stated

that during that time, two villagers came and subsided the

quarrel in asking them to go to their respective houses and as his

father-in-law was scheduled to come in that night, he requested

Rama Chandra to accompany him and proceed to Larambha Bus

Stop on cycle and when the father-in-law did not turn up he and

Ramachandra were returning to their village. This is all about the

first phase. As regards the second phase of the incident with

which we are concerned, his evidence is that it was around 8.00

p.m. on the way near Bhimatikra. This accused and other one,

namely, Birasen obstructed them for which they had to get down

from their cycles and then this accused challenging them as to

why they were doing Dadagiri in the village, suddenly aimed a

Bhujali blow on his head, which being warded off by raising the

right hand, he received the cut injuries on his head palm, but

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could finally manage to snatch away the Bhujali when accused

caught hold of his neck and thereafter, he escaped. Upto this part,

the evidence of P.W.6 has remained quite consistent and that is

corroborated by the evidence of P.W.9, who had medically

examined P.W.6. Now, moving to the assault upon Rama

Chandra leading to his death, this P.W.6 states that at that time,

he heard the shout of Rama Chandra (deceased) "Marigali

Marigali" and on looking back, he saw this accused Biranchi and

Birasen to have overpowered Rama Chandra by making him lie

on the ground and he then out of fear, returned to the village by

shouting. His further evidence is that he then immediately

carrying the villagers, went to the spot and they saw Rama

Chandra lying lead. When this P.W.6, having stated about the

injuries received by him at the instance of this accused; in so far

as the happenings upon Rama Chandra (deceased) is concerned

is simply stating to have seen this accused and the other

overpowering him and making him lie on the ground when

Rama Chandra (deceased) was shouting "Marigali Marigali"". He

does not state that at that time, either this accused or the other

one, namely, Birasen were holding any weapon. He also does not

state that when this accused and Rama Chandra were coming

back on their way and they were obstructed that of accused

Birasen was too holding any weapon although he states that

accused Biranchi with the Bhujali having attempted to cause

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injury on his head, ultimately it fell on his right hand being so

raised by him to ward off the blow and he snatched away the

same and went to the village.

At this juncture, when we turn to the FIR narration, it is

found that this P.W.6 had not mentioned anything therein that

while he left the spot out of fear after receiving the injuries on his

right palm by Bhujali at the instance of this accused, he had

looked back, hearing the hullah of Rama Chandra and then had

seen this accused and the other one, namely, Birasen to have

overpowered Rama Chandra (deceased). It is stated in the FIR

that after he (P.W.6) received the injuries and after freed himself

from the clutch of this accused, he having snatched away the

Bhujali from this accused ran to the village when he had heard

Rama Chandra shouting "Marigali Marigali". He of course has

stated that when he returned with other villagers, they found the

Rama Chandra (deceased) lying dead with injuries and accused

persons were not seen in the vicinity.

Relying upon such evidence, the Trial Court has found this

accused liable for commission of the offence under section 302 of

the IPC in intentionally causing the death of Rama Chandra

(deceased) with the aid of section 34 of the IPC as to have shared

the common intention with the other one, namely, Birasen. The

evidence of P.W.6 is not acceptable on this score that he had seen

Rama Chandra to have been overpowered by this accused

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Biranchi and accused Birasen. The omission of such an important

fact in the FIR, which in our considered view, cannot be lost sight

off and simply brushed aside stating that the FIR being not an

encyclopedia, non-narration of this fact was not fatal when this

very part of the evidence of P.W.6 aims at the complicity of this

accused in the direction of commission of the offence of murder

of Rama Chandra. The omission, being a material one, has to be

adversely viewed and thus, we find the evidence of P.W.6, in the

Trial to be an improvement. To add to the same, the prosecution

has not brought the A.S.I. of Police, who had the occasion to first

examine the informant (P.W.6) on receiving the written report

(Ext.8) and we find that the defence, having drawn the attention

of this P.W.6 even to this material omission in his previous

statement recorded under section 161 of the Code of Criminal

Procedure, prejudice has been caused for non-examination of that

A.S.I. of Police, namely, Sri R.N.Sarangi without any explanation

since the defence thereby has been precluded from proving such

material omission standing as contradiction.

Moreover, even accepting the evidence of P.W.6, it being

seen that after he snatched away the Bhujali from this accused,

this accused was having no weapon with him and, therefore,

when the version of P.W.6 is not believed to the extent that this

accused to have overpowered the deceased in making him lie on

the ground, we are unable to concur with the finding of the Trial

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Court that this accused is liable for committing the offence of

murder of Rama Chandra (deceased) with the aid of section 34 of

the IPC having shared the common intention with accused

Birasen. Having said, as above, we, however, find the finding of

guilt against this accused recorded by the Trial Court in so far as

the offence under section 341/324 of the IPC in respect of the role

played and the act done by him as against P.W.6 to be well in

order as the evidence of the informant (P.W.6) on that score is

wholly reliable and that too find support from the evidence of the

Doctor (P.W.9), who had medically examined him as also the

factum of seizure of Bhujali, which have been snatched away by

P.W.6 from this accused in course of investigation on his

production.

For all the aforesaid discussion, the judgment of conviction

and order of sentence dated 3rd February, 2014 passed by the

learned Additional Sessions Judge, Patnagarh, in Sessions Case

No.58/22/16 of 2011-13. in so far as this accused (Biranchi Hati) is

concerned, which are impugned in this Appeal, are hereby

modified as under:-

"The accused (Biranchi Hati) is held guilty for commission of the offence under section 341/324 of the IPC and his conviction for commission of the offence under section 302/34 of the IPC stands set aside.

Accordingly, the accused (Biranchi Hati) is sentenced to undergo simple imprisonment for a period of one (1) month for commission of the offence under section 341

CRLA No.651 of 2018 {{ 14 }}

of the IPC; and rigorous imprisonment for a period of one (1) year and pay fine of Rs.1000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for a period of two (2) months for commission of the offence under section 324 of the IPC."

12. In the result, the Appeal is allowed in part with the

aforesaid modification.

(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: 05-Sep-2023 14:19:55

CRLA No.651 of 2018