Sudarsan Barla vs State Of Odisha
2023 Latest Caselaw 11671 Ori

                        IN THE HIGH COURT OF ORISSA, CUTTACK

                                              JCRLA No.71 of 2004

        An appeal under section 374 Cr.P.C. from the judgment and
        order dated 09.06.2004 passed by the Sessions Judge,
        Sundargarh in Sessions Trial No.247 of 2000.
                                                  --------------------------

                Sudarsan Barla                                   .......                       Appellant


                                                            -Versus-

                State of Odisha                                  .......                       Respondent



                         For Appellant:                             -              Mr. Subash Ch. Pradhan


                         For Respondent:                            -              Smt. Saswata Patnaik
                                                                                   Addl. Govt. Advocate
                                                  --------------------------

        P R E S E N T:

                             THE HONOURABLE MR. JUSTICE S.K. SAHOO

                                                                   AND

THE HONOURABLE MR. JUSTICE SIBO SANKAR MISHRA

--------------------------------------------------------------------------------------- -------------------------------- Date of Hearing: 15.09.2023 Date of Judgment: 26.09.2023

--------------------------------------------------------------------------------------- --------------------------------

S.K. Sahoo, J. The appellant Sudarsan Barla along with his younger

brother Nirmal Barla faced trial in the Court of learned Sessions

Judge, Sundargarh in Sessions Trial No.247 of 2000 for

commission of offence under sections 302/34 of the Indian Penal // 2 //

Code (hereinafter >I.P.C.?) on the accusation that on 18.10.1999

at about 6.00 a.m. in the courtyard of the appellant in village

Rengalbahal, they committed murder by intentionally causing

death of their co-villager Susil Ekka (hereinafter >the deceased)

in furtherance of their common intention.

The learned trial Court vide impugned judgment and

order dated 09.06.2004 has been pleased to hold the co-accused

Nirmal Barla not guilty of the offence charged and acquitted him.

However, the appellant was found guilty under section 302 of the

I.P.C. and sentenced to undergo imprisonment for life and to pay

a fine of Rs.5,000/- (rupees five thousand), in default, to

undergo rigorous imprisonment for one year.

Prosecution Case:

2. The prosecution case, as per the first information

report (hereinafter >F.I.R.?), lodged by Sarjus Ekka (P.W.1)

before the Inspector in-charge of Rajgangpur police station on

18.10.1999 is that during the month of March in the year 1999,

the appellant created disturbance with the family of the

informant (P.W.1) for which a case was instituted in Rajgangpur

police station. On 17.10.1999, Nuakhai festival was being

observed in the village of the informant and at about 10 O? Clock

in the night, song and dance was going on in a field situated

// 3 //

near the church and there the appellant Sudarsan Barla and his

brother Nirmal Barla created disturbance with the informant

(P.W.1) and his friend Sushil Barla (P.W.8) and they torn the

banyan (ganji) of P.W.1 as well as P.W.8. The other persons

present in that festival sent back the appellant as well as his

brother Nirmal Barla to their house. After the song and dance

was over, the informant (P.W.1) returned back home and

intimated his brother (deceased) and his family members about

the same. On the next day i.e. on 18.10.1999 at about 6 a.m.,

the deceased and Sushil Barla (P.W.8) came to the house of the

appellant and confronted them about the last night?s

disturbance. All of a sudden, the appellant brought one iron strip

(luha patia) and assaulted the deceased on his head as a result

of which the deceased sustained bleeding injury on the head and

fell down on the ground. The co-accused Nirmal Barla (acquitted)

also assaulted the deceased by means of a lathi as a result of

which the deceased died at the spot. After seeing the

occurrence, P.W.8 became panic and rushed to the house of the

informant (P.W.1) and told him about the commission of murder

of the deceased by the appellant and co-accused Nirmal Barla.

Hearing such incident, the informant and his family members

came near the spot and found the deceased was lying dead with

bleeding injury in the front courtyard of the appellant. The

// 4 //

informant after asking his family members to guard the dead

body of the deceased went to meet the ward member Bisil Kindo

(P.W.6) and informed him about the occurrence. It is stated that

P.W.8, who was present with the deceased had seen the

occurrence.

The oral report of P.W.1 was reduced to writing by

P.W.12 Ajim Khan, A.S.I. of Police, Lanjiberena Outpost on

18.10.1999 and then the written report was sent to the

Inspector in-charge of Rajgangpur police station for formal

registration through constable and P.W.12 himself took up

investigation. During course of investigation, P.W.12 examined

the informant, visited the spot, held inquest over the dead body,

prepared the inquest report (Ext.2) and the dead body was sent

to Rajgangpur Government Hospital for post mortem

examination.

On receipt of the written report, the Inspector in-

charge of Rajgangpur police station Sudarsan Sethi (P.W.10)

registered Rajgangpur P.S. Case No.166 dated 18.10.1999 under

sections 302/34 of the I.P.C. against the appellant and his

younger brother Nirmal Barla. P.W.10 took up investigation of

the case, visited the spot and he seized blood stained iron strip

at the spot vide seizure list Ext.3/1, seized one lathi near the

// 5 //

spot as per seizure list Ext.4/1 and sample earth and blood

stained earth under seizure list Ext.5/1. He seized some brick

pieces at the spot under seizure list Ext.6/1. The appellant was

arrested and his wearing apparels were seized as per seizure list

Ext.7/1. Similarly, the wearing apparels of the co-accused Nirmal

Barla were also seized as per seizure list Ext.8/1. The wearing

apparels of the deceased were seized as per seizure list Ext.11.

The appellant and the co-accused were forwarded to Court on

19.10.1999 after medical examination. The I.O. seized blood

sample and nail clippings of the appellant and co-accused on

20.10.1999 on production by the constable. The weapons of

offence i.e. iron strip and lathi seized were forwarded to the

Medical Officer to examine the same and to opine whether the

injuries found on the deceased could be possible by such

weapon. The material objects were forwarded to the Deputy

Director, R.F.S.L., Sambalpur for chemical examination and on

completion of investigation, on 14.02.2000, the I.O. (P.W.10)

submitted charge sheet against the appellant and his brother

Nirmal Barla under sections 302/34 of the I.P.C.

Framing of Charges:

3. After submission of charge sheet, the case was

committed to the Court of Session for trial after observing due

// 6 //

committal procedure where the learned trial Court framed the

charges against the appellant and the co-accused on 29.06.2001

and since the appellant and the co-accused refuted the charges,

pleaded not guilty and claimed to be tried, the sessions trial

procedure was resorted to prosecute them and establish their

guilt.

Prosecution Witnesses & Documents Exhibited By

Prosecution:

4. During the course of trial, in order to prove its case,

the prosecution has examined as many as twelve witnesses.

P.W.1 Sarjus Ekka is the informant and the elder

brother of the deceased. He stated about the incident that took

place on 17.10.1999 night at the place of song and dance. He

further stated to have rushed to the spot on 18.10.1999 after

hearing about the incident from P.W.8 and found the deceased

lying dead with bleeding injuries on the front courtyard of the

appellant.

P.W.2 Jaiswani Barla is the younger sister of the

appellant. She stated that hearing hue and cry, she came out of

the house and found the deceased was lying dead in front of

court yard of her house.

// 7 //

P.W.3 Ananda Barla did not support the prosecution

case for which he was declared hostile by the prosecution.

P.W.4 Jilapatras Ekka is the elder brother of the

deceased and also a witness to the inquest report (Ext.2).

P.W.5 Srimati Ekka is the elder sister of the

deceased. She stated that Sushil Barla (P.W.8) disclosed before

her that the appellant and the co-accused Nirmal Barla

committed murder of the deceased.

P.W.6 Basil Kindo was the ward member and also a

witness to the seizure but he stated that he had no knowledge

about the contents of the seizure lists in which he put his

signatures. He further stated that police held inquest over the

dead body in his presence and he mentioned in the inquest

report (Ext.2) that the deceased died as a result of the bleeding

injury which he sustained due to assault made by the appellant

by means of a piece of iron strip.

P.W.7 Ashok Dehury was the constable attached to

Ranjangpur police station and also a witness to the seizure list

vide Ext.9 and Ext.10.

P.W.8 Sushil Barla is a co-villager of the deceased

and also an eye witness to the occurrence. He supported the

prosecution case.

// 8 //

P.W.9 Basanta Kumar Panda was the constable

attached to Rajgangpur police station and also a witness to the

seizure vide Ext.9, Ext.10 and Ext.11.

P.W.10 Sudarsan Sethi was the Inspector in-charge

of Ranjangpur police station, who is the Investigating Officer of

the case.

P.W.11 Dr. Rita Maxima Barla was the Medical Officer

attached to Rajgangpur Government Hospital, who conducted

the post mortem examination on the dead body of the deceased

on 18.10.1999 and proved her report vide Ext.16. She also

examined the appellant and the co-accused Nirmal Barla and

proved her reports vide Ext.12 and Ext.13 respectively.

P.W.12 Ajim Khan was the A.S.I. attached to

Lanjiberena Outpost, who reduced the oral report of P.W.1 into

writing which was treated as F.I.R. and he is the first

Investigating Officer of the case.

The prosecution exhibited eighteen documents. Ext.1

is the F.I.R., Ext.2 is the inquest report, Ext.3/1, Ext.4/1,

Ext.5/1, Ext.6/1, Ext.7/1, Ext.8/1, Ext.9, Ext.10 and Ext.11 are

the seizure lists, Ext.12 is the written requisition of the I.O.,

Ext.13 is the written requisition of the P.W.10, Ext.14 is the

office copy of the forwarding letter, Ext.15 is the chemical

// 9 //

examination report, Ext.16 is the post mortem report, Ext.17 is

the command certificate and Ext.18 is the dead body challan.

Defence Plea, Defence Witness & Document Exhibited By

Defence:

5. The defence plea of the appellant as per the accused

statement recorded under section 313 of Cr.P.C. is that he was

serving as a security guard in the Proton Steel Limited,

Rajgangpur and he was occasionally coming to the village. Prior

to the occurrence, P.W.1 and the deceased had assaulted the

mother of the appellant making aspersion on her as >witch?. In

that connection, a police case was instituted against P.W.1 and

the deceased for which they bore grudge against the appellant

and they were bossing around the village. On 17.10.1999, after

finishing his dinner, when the appellant was proceeding towards

Rajgangpur for his duty, on the way where the song and dance

festival was going on, he was assaulted by P.W.1 and P.W.8 for

which he returned back home. On the next day, P.W.8 and the

deceased came to the house of the appellant holding brickbat

and bhujali. The deceased tried to assault the brother of the

appellant with the brick which hit on his shoulder. When the

appellant tried to forbade the deceased, the latter chased the

appellant to kill him. For self defence, the appellant picked up an

// 10 //

iron strip and assaulted the deceased with it for which he fell

down and died and then the appellant sent his uncle (P.W.3) to

report the matter in the police station. P.W.8 ran away from the

spot holding bhujali.

One Joseph Xaxa was examined on behalf of the

defence as D.W.1. He stated about the occurrence which took

place on the previous day night of occurrence.

The defence exhibited one document i.e. Ext.A, which

is the certified copy of the charge sheet in G.R. Case No.63 of

1999.

Findings of the Trial Court:

6. The learned trial Court after analysing the evidence

of the doctor, the post mortem report findings came to hold that

the death of the deceased was homicidal in nature. It was

further held that since the co-accused Nirmal Barla had sustained

simple injury on his left shoulder and there is no material on

record to come to the conclusion that there was any reasonable

cause to apprehend that the death or grievous hurt would

otherwise be the consequence of any assault on him, the right of

private defence is not available and the defence has not

discharged the onus that was upon him. It was further held that

the prosecution has failed to prove the pre-concert or previous

// 11 //

meeting of mind between Sudarsan Barla and Nirmal Barla and

therefore, the co-accused Nirmal Barla cannot be saddled with

vicarious criminal liability under section 34 of the I.P.C. However,

it was held that the prosecution has proved beyond all

reasonable doubt that the appellant Sudarsan Barla had the

requisite intention to commit murder of the deceased. The

learned trial Court did not accept the contention raised by the

learned defence counsel that there had been suppression of

original F.I.R. Consequently, it was held that the appellant

committed murder of the deceased by assaulting him with the

iron plate on 18.10.1999 at about 6.00 a.m. at village

Rengalbahal and accordingly, found him guilty under section 302

of the I.P.C.

Contentions of the Parties:

7. Mr. Subash Chandra Pradhan, learned counsel

appearing for the appellant contended that lodging of the F.I.R.

at the Lanjiberena Outpost as stated by the informant (P.W.1) is

a doubtful feature. The original report which was lodged at the

spot by P.W.1 has been suppressed. The injury sustained by the

co-accused Nirmal Barla has not been explained and the

deceased was the aggressor and he came to the house of

appellant, entered into his front courtyard and not only

// 12 //

challenged the appellant but also assaulted the co-accused

Nirmal Barla by brick and therefore, the single blow given to the

deceased by the appellant with the iron strip, even if taken into

account, can be said to be within right of private defence of the

appellant and since the evidence of the solitary eye witness

cannot be said to be absolutely reliable, it is a fit case where

benefit of doubt should be extended in favour of the appellant.

Smt. Saswata Patnaik, learned Additional

Government Advocate appearing for the State of Odisha, on the

other hand, supported the impugned judgment and contended

that there is no dispute that the first information report in this

case was the oral report of P.W.1 which was reduced to writing

by P.W.12, A.S.I. of Police, Lanjiberena Outpost though there is

discrepancy as to where such oral report was given i.e. either at

the spot in village Alanda Rengabahal or at Lanjibehera Outpost,

but the same cannot be a ground to hold that the F.I.R. has been

suppressed. The learned counsel further argued that nature of

injury sustained by the co-accused Nirmal Barla is not so serious

that the prosecution is required to give explanation about the

same in absence of which it can be held that the prosecution has

suppressed the genesis of the case. It is further argued that the

co-accused was acquitted as no corresponding injury to his

// 13 //

assault was noticed on the person of the deceased, but when the

ocular version of P.W.8 relating to the assault made by the

appellant with an iron strip on the head of the deceased is

corroborated by the medical evidence, it cannot be said that the

learned trial Court committed any illegality in convicting the

appellant.

Whether the deceased met with a homicidal death:

8. The doctor (P.W.11), who conducted post mortem

examination over the dead body of the deceased found one

lacerated injury of size 18= x ½= x total thickness of the skull,

situated over the right parietal region and the injury started 1=

above the right eye-brow and extended up to the occipital

region. On dissection, fracture of the right frontal bone, right

parietal bone and the occupit was found. Laceration of meninges

and laceration of brain were noticed. The doctor opined that the

cause of death was due to injury to the vital organ like brain

leading to haemorrhage and shock. He further stated that the

injury found on the dead body of the deceased was sufficient to

cause his death in ordinary course and he proved the post

mortem examination report i.e. Ext.16.

The finding of the learned trial Court that it was a

homicidal death has not been challenged by the learned counsel

// 14 //

for the appellant. After going through the inquest report (Ext.2),

the evidence of the doctor (P.W.11) and the post mortem report

(Ext.16), we are also of the considered view that the learned

trial Court has rightly came to the conclusion that it was a case

of homicidal death.

Analysis of the evidence of eye witness (P.W.8):

9. Adverting to the contentions raised by the learned

counsel for the respective parties and after going through the

evidence on record, we find that there is no dispute that the star

witness on behalf of the prosecution is P.W.8 Sushil Barla.

Law is well settled that in order to act upon the

testimony of a solitary witness, the evidence must be clear,

cogent, truthful, reliable and aboveboard.

P.W.8 has stated that on 17.10.1999, while Nuakhai

festival was going on and song and dance were being performed

in the village near a church, at about 10.00 p.m., the co-accused

Nirmal Barla caught hold of his collar and torn it and when P.W.1

intervened in the matter, the said co-accused also torn the shirt

of P.W.1. Since the villagers gathered, the accused persons left

the spot. He has further stated that on the next day morning at

about 6.00 a.m., he himself and the deceased came to the house

of the appellant and the co-accused and asked them as to why

// 15 //

their shirts were torn during the previous night but all of a

sudden, the appellant assaulted the deceased on his head by

means of an iron blade which hit on his head and the deceased

sustained bleeding injury and fell down. He further stated that

the co-accused Nirmal Barla also assaulted the deceased by

means of a lathi and seeing the incident, he became panic and

left the spot and came to P.W.1, the younger brother of the

deceased and narrated the entire incident before him and then

he along with the family members of the deceased came near

the spot and found that the deceased was lying in the front

courtyard of the house of the appellant and the co-accused.

P.W.8 has stated that not only the appellant

assaulted on the head of the deceased by means of an iron blade

but also the co-accused Nirmal Barla assaulted the deceased by

means of a lathi. Of course, he has not stated which part of the

body of the deceased, the co-accused assaulted. Since only one

external injury was noticed on the person of the deceased, the

learned trial Court did not place any reliance on the prosecution

case regarding the involvement of the co-accused Nirmal Barla

and accordingly, acquitted him. Thus the evidence of P.W.8

regarding the assault made by the co-accused Nirmal Barla on

the deceased is a doubtful feature.

// 16 //

P.W.8 was specifically asked by the learned defence

counsel about the injury sustained by the co-accused Nirmal

Barla on his left shoulder at the time of occurrence, but he

pleaded ignorance. P.W.11 examined the co-accused Nirmal

Barla on 18.10.1999 at about 01.45 p.m. on police requisition

and noticed one abrasion on the left side of the neck and the

injury was opined to be simple in nature. The doctor specifically

stated that the injury mentioned in Ext.13/1 i.e. the injury report

of co-accused Nirmal Barla could be possible by a brickbat which

is the defence plea. In the case of Lakshmi Singh -Vrs.- State

of Bihar reported in A.I.R. 1976 S.C. 2263, it is held that the

witnesses, who have denied the presence of injuries on the

person of the accused are lying on a most material point and

therefore, their evidence is unreliable. It was further held that

non-explanation of injuries affects the prosecution case and the

said principle would not apply where the injuries sustained by

the accused are minor and superficial or where the evidence is so

clear and cogent, so independent and disinterested, so probable,

consistent and creditworthy, that it far outweighs the effect of

the omission on the part of the prosecution to explain the

injuries.

// 17 //

In the case in hand, the injury sustained by the co-

accused Nirmal Barla was not minor and superficial but it was on

the vital part of the body like neck. The deceased and P.W.8

seems to be aggressors and on the fateful day, they came to the

house of the appellant in the early morning. P.W.8 has stated

that the doors of both the accused persons were closed and

when they called their names, they came out of their house

opening their respective doors. He has admitted that a police

case was instituted against him, the deceased and others on the

allegation that they had assaulted the mother of the appellant

making aspersion on her to be a >witch? and that there was

previous enmity between them and the appellant because of

such criminal case. P.W.8 disclosed about the assault before

P.W.1, the younger brother of the deceased and P.W.1 in turn

reported the matter before P.W.12, the A.S.I. of Police. P.W.12

stated that P.W.1 reported before him that both the accused

assaulted the deceased by means of iron strip and killed him.

Thus, nothing was stated by P.W.1 before P.W.12 that the co-

accused Nirmal Barla assaulted the deceased by bamboo lathi.

Therefore, not only the evidence of P.W.8 relating to the

occurrence that took place in the morning hours on 18.10.1999

is discrepant from what P.W.1 has disclosed before P.W.12 when

the latter arrived in the village immediately after the occurrence

// 18 //

was over, but also his evidence relating to the involvement of co-

accused Nirmal Barla in the assault of the deceased is found to

be not acceptable and moreover, he was having previous enmity

with the appellant and has suppressed the injury caused to the

co-accused Nirmal Barla and therefore, he cannot be said to be

an absolutely reliable and truthful witness, on whom implicit

reliance can be placed for convicting the appellant. If the witness

is neither wholly reliable nor wholly unreliable, the Court has to

be circumspect and has to look for corroboration in material

particulars by reliable testimony, direct or circumstantial. (Ref.:

Vadivelu Thevar -Vrs.- The State of Madras reported in

(1957) 1 Supreme Court Reports 981)

Suppression of the Original First Information Report:

10. According to the eye witness (P.W.8), he intimated

about the occurrence to P.W.1, who is the informant in the case

and P.W.1 has stated that he along with the ward member

(P.W.6) came to the Lanjiberena Outpost and reported about the

occurrence orally and the police officer reduced his report into

writing, read over and explained it to him and finding it to be

correct, he put his signature on it and he proved the F.I.R.

marked as Ext.1. However, the evidence of P.W.6 is totally silent

// 19 //

that he accompanied P.W.1 to Lanjiberena Outpost for lodging

the first information report.

P.W.12, the A.S.I. of Lanjiberena Outpost, on the

other hand, stated that on 18.10.1999 at about 7.30 a.m., he

was in the Lanjiberena market where he heard about the murder

and mentioned the fact in Lanjiberena station diary entry bearing

no.263 dated 18.10.1999 and proceeded to the case village and

when he arrived at the village Alanda Rengabahal, there P.W.1

orally reported before him about the occurrence which he

reduced into writing, read over and explained the same to P.W.1

and after finding the contents to be correct, P.W.1 signed the

written report. P.W.12 specifically denied the suggestion given

by the learned defence counsel that on the date of occurrence,

P.W.1 and the ward member (P.W.6) had appeared before him

at Lanjiberena Outpost and orally reported about the occurrence

which he reduced into writing and on such report, both of them

signed.

Therefore, there are discrepancies in the statements

of witnesses P.W.1 and P.W.12 regarding the place of lodging of

the first information report. Whereas P.W.12 stated that the oral

report was reduced into writing by him at the spot i.e. at village

Alanda Rengabahal, but the informant (P.W.1) has stated that he

// 20 //

along with P.W.6 went to Lanjiberena Outpost and orally

reported the matter which was reduced into writing and treated

as F.I.R. As already stated, the evidence of P.W.6 is totally silent

that he accompanied P.W.1 to the Outpost for lodging of the

F.I.R. If Ext.1 is the report, which according to the informant

(P.W.1), was lodged at the Outpost then what happened to the

report which was orally given to P.W.12 at the spot by P.W.1 and

reduced into writing. Since the report which was given at the

spot was the original report, it can be said that the original first

information report has been suppressed by the prosecution.

P.W.12 has stated that when he reached at village

Alanda Rengabahal, P.W.1 orally reported before him that on

17.10.1999, while they were observing Nuakhai festival, the

appellant Sudarsan Barla and the deceased quarrelled and they

were separated and the deceased was sent to his house. On a

plain reading of the first information report (Ext.1), it would

appear that it is totally silent that on 17.10.1999 during the

observance of the Nuakhai festival, the deceased was at all

present at that place rather it indicates that whatever dispute

arose, the same was between the appellant Sudarsan Barla and

his brother co-accused Nirmal Barla on the one hand and the

informant (P.W.1) and his friend Sushil Barla (P.W.8) on the

// 21 //

other hand. This pre-supposes that the earlier information which

was given at the spot and reduced into writing where a different

picture about the incident dated 17.10.1999 was given, has been

suppressed. Similarly, P.W.12 further stated that P.W.1 also

reported before him that on the next day, the deceased and

P.W.8 went to the house of the appellant Sudarsan Barla and the

co-accused Nirmal Barla and there they quarrelled with the

deceased and assaulted the deceased by means of iron strip and

killed him. Thus, according to P.W.12, no information was given

before him by P.W.1 that the co-accused Nirmal Barla at all used

any lathi in assaulting the deceased. Since the assault by the co-

accused Nirmal Barla with a lathi on the deceased has been

mentioned in Ext.1, it pre-supposes that the original report

which was given at the spot wherein no such information was

there about the specific role played by co-accused Nirmal Barla

in assaulting the deceased by lathi, has been suppressed.

Another important feature of the case is that the first

information report was shown to have been received on

18.10.1999 at 9.00 a.m. at the spot and it was received at

Rajgangpur police station on 18.10.1999 at 10.30 a.m. and

accordingly, Rajgangpur P.S. Case No.166 dated 18.10.1999 was

registered under sections 302/34 of the I.P.C. and thus, prior to

// 22 //

10.30 a.m., there was no information before anybody that

Rajgangpur P.S. Case No.166 dated 18.10.1999 was registered

on the report of P.W.1. P.W.12 has stated that when he issued

the command certificate on 18.10.1999 at 8.00 a.m., he

mentioned the P.S. Case No.166 of 1999. If by 8.00 a.m., the

P.S. Case has not been registered, how the same was mentioned

in the command certificate. It pre-supposes that either the case

was registered before 8.00 a.m. at Rajgangpur police station on

the basis of any report and P.S. Case number was available

when the command certificate was prepared or in the command

certificate, the P.S. case number has been subsequently

incorporated. The prosecution has not offered any explanation in

that respect.

In the case of Balgopal Panda and Others -Vrs.-

State reported in Vol.70 (1990) Cuttack Law Times 1, it

was held as follows:-

<12. In consideration of the aforesaid facts and evidence, we do not hesitate to hold that the true first report submitted by P.W.1 was suppressed by the prosecution. Had it been treated as FIR and produced during trial, the story narrated in it would have been unfavourable to the prosecution. Therefore, while it was managed that it would not See the

// 23 //

light of the day, a first information which suited the prosecution, but not revealing the true incident, was brought into being. In such circumstances, it would be reasonable to infer that the first information report (Ext. 1/1) contained a tainted, embellished and exaggerated story, but not the true one.=

In view of the foregoing discussions, we find

sufficient force in the argument advanced by the learned counsel

for the appellant that the original first information report has

been suppressed. Had the report prepared by P.W.12 on the first

version of P.W.1 at the spot been treated as F.I.R., it might have

been unfavourable to the prosecution for which it was

suppressed and the second report given by P.W.1 at the Outpost

was treated as F.I.R. which makes the prosecution case

suspicious.

Conclusion:

11. In view of the foregoing discussions, analysing the

evidence on record meticulously, dispassionately and objectively,

we are of the humble view that when the original first

information report seems to have been suppressed and the

evidence of the solitary eye witness (P.W.8) cannot be said to be

clear, cogent, trustworthy and above board and when a part of

the prosecution case relating to the involvement of the co-

// 24 //

accused Nirmal Barla in the assault of the deceased has been

disbelieved by the learned trial Court, it would be risky to act

upon the version of P.W.8 to convict the appellant. We are of the

view that it cannot be said that the prosecution has successfully

established its case beyond all reasonable doubt against the

appellant.

In the result, the JCRLA is allowed. The impugned

judgment and order of conviction of the appellant and the

sentence passed thereunder is hereby set aside. The appellant is

acquitted of the charge under section 302 of the I.P.C. The

appellant, who is on bail by virtue of the order of this Court, is

discharged from liability of his bail bonds. The personal bonds

and the surety bonds hereby stand cancelled.

The trial Court records with a copy of this judgment

be sent down to the Court concerned forthwith for information.

..........................

S.K. Sahoo, J.

S.S. Mishra, J.            I agree.


                                                            ..........................
                                                               S.S. Mishra, J.
          Orissa High Court, Cuttack
          The 26th September 2023/RKMishra




  Signature Not Verified
  Digitally Signed
  Signed by: RABINDRA KUMAR MISHRA

  Location: HIGH COURT OF ORISSA, CUTTACK
  Date: 26-Sep-2023 14:25:25