Orissa High Court
Kishore Bhoi vs State Of Odisha on 2 April, 2024
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.326 of 2011 & JCRLA No. 51 of 2011
(These two Appeals U/Ss. 374 & 383 of the Code of
Criminal Procedure, 1973 respectively are directed
against the common judgment passed by Shri P.C.
Mohapatra, Addl. Sessions Judge (F.T.C.), Bargarh in
Crl.Trial No.43/5 of 2008 arising out of G.R. Case No.
539 of 2007 corresponding to Attabira P.S. Case
No.119(5) of 2007 of the Court of S.D.J.M., Bargarh)
Kishore Bhoi ... Appellant
(In CRLA No.326 of 2011)
-versus-
State of Odisha ... Respondent
Khirasindhu Karna @ ... Appellant
Khirod Padhan
(In JCRLA No.51 of 2011)
-versus-
State of Odisha ... Respondent
For Appellants : Mr. S.J. Mohanty, Advocate
(In CRLA No.326 of 2011) &
Ms. G. Majhi, Advocate
(In JCRLA No.51 of 2011)
For Respondents : Mr. S.K. Nayak, AGA
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :03.01.2024
DATE OF JUDGMENT:02.04.2024
G. Satapathy, J.
1. These two criminal appeals are directed
against the judgment of conviction and order of
sentence dated 05.03.2011 passed by the learned
Additional Sessions Judge (F.T.C.), Bargarh in C.T.
No.43/5 of 2008 convicting the appellants for
commission of offences punishable U/Ss. 302/324/34
of the Indian Penal Code, 1860 (in short "the IPC")
and sentencing each of them to undergo
imprisonment for life and to pay a fine of Rs.1,000/-,
in default whereof, to undergo further rigorous
imprisonment(RI) for six months for offence U/Ss.
302/34 of the IPC, but, no separate sentence was
awarded to the appellants-convicts for offence U/Ss.
324/34 of the IPC.
2. Briefly stated, the prosecution case is, one
Rushav Mahakud (hereinafter referred to as "the
deceased") of village Gariatikira was the owner of a
hotel located at Patrapali, which was situated near
the broiler-chicken shop of P.W.4-Makhini Garia. On
04.08.2007 at about 9.30 P.M., while the deceased
was gossiping with P.W.4 at later's broiler chicken
shop, the convict Khirasindhu Karna @ Khirod
Pradhan came there and on seeing him, the deceased
asked "why they assaulted his(deceased) child in the
presence of him", to which the convict Khirasindhu
replied "why he(deceased) misbehaved him in his
hotel". On this issue, there was a serious altercation
between convict Khirasindhu and deceased Rushava
and they went towards the hotel of the deceased and
there, the deceased assaulted the convict Khirasindhu
by means of an iron plate. On this incident, the
convict-Khirasindhu ran away from the spot and
returned back there after half an hour with convict
Kishore Bhoi and two others namely Digbasha
Bhoi(Juvenile) and Petu @ Srichandra Rout
(absconding accused) being armed with axe and iron
rods and they suddenly attacked the deceased. In the
course of such attack, when convict-Kishore was
about to give a blow on the deceased by means of an
axe, P.W.4 caught hold of the handle of the axe held
by the convict Kishore and tried to snatch away, but
when others assaulted him(PW4) by means of an iron
rods to his neck and head, he(PW4) fell down on the
ground with bleeding injury on his head and
thereafter, all of them by encircling the deceased
indiscriminately assaulted him by means of axe and
iron rods. When the elder brother of P.W.4 namely
PW7 Geru Garia @ Leheru tried to rescue the
deceased from the clutches of the appellants-
assailants, they also assaulted him(PW7) and
accordingly, PW7 Geru went away from the spot by
running. However, convict-Kishore assaulted on the
head of the deceased by means of an axe which he
was holding then and others assaulted the deceased
by means of iron rods, as a result, the deceased fell
down there with a pool of blood and thereafter, the
assailants-convicts considering the deceased to have
died fled away from the spot by leaving the deceased
there. Soon after the assault, the deceased and
P.W.4 were shifted to nearby hospital at Attabira on a
Autorickshaw by the persons present there and the
Doctor at Attabira on examination of Rushava
declared him dead and treated P.W.4. After treating
P.W.4, the Doctor advised him to lodge an F.I.R. at
Police Station.
Accordingly, PW4 and others proceeded to
Attabira Police Station by taking the dead body of
Rushava in the said Autorickshaw and P.W.4-Makhini
Garia orally reported the incident at the Police Station
at about 11.30 P.M. on 04.08.2007 and such oral
report of PW4 was reduced into writing under Ext.2
by O.I.C., Attabira P.S. P.W.13-Mihir Kumar Panda,
who thereafter, registered Attabira P.S. Case No.119
of 2007 and took up the investigation of the case.
2.1 In the course of investigation, P.W.13
examined the witnesses, prepared the spot map, held
the inquest over the dead body of the deceased
under Ext.1 and dispatched the dead body to F.M.T.
Department, V.S.S., M.C.H., Burla for Post Mortem
Examination, seized the blood stained earth and
sample earth from the spot under seizure list Ext.7
and sent the injured-P.W.7 Geru Garia @ Leheru for
medical examination, seized the wearing apparels of
the deceased under Ext.12/1. On 07.08.2007, P.W.13
arrested the convicts-Kishore Bhoi and Khirasindhu
Karna @ Khirod Padhan and recovered the iron rod
(MO-II) and axe (MO-I) pursuant to the disclosure
statement of the convicts and seized the same. On
08.08.2007, P.W.13 also seized the wheel wrench
(MO-III) on production by juvenile Digbasha Bhoi
under Ext.6 and issued injury requisition in respect of
P.Ws. 4 and 7 and obtained the opinion as to his
query about the possibility of the inflicting injuries on
the deceased vide MOs-I to III and finally sent all the
incriminating articles to RFSL, Sambalpur for
chemical examination which was received under
Ext.18. On completion of investigation, P.W.13
submitted charge sheet against the convicts for
offences U/S 302/307/34 of the IPC by showing the
accused Petu @ Srichandra Rout as absconder.
2.2 Finding sufficient materials being collected in
the investigation, the learned S.D.J.M., Bargarh took
cognizance of the offences U/Ss 302/307/34 of the
IPC and committed the case to the Court of Sessions.
The record being received on transfer, the learned
Addl. Sessions Judge (F.T.C.), Bargarh proceeded
with the trial by framing charge against the convicts,
who pleaded not guilty to the charge for offences
U/Ss 302/307/34 of the IPC and sent for trial. This is
how the trial in this case commenced.
3. In support of the charge, the prosecution
examined altogether 14 witnesses and relied upon
documents under Exts.1 to 18 as well as identified
Material Objects under MOs.-I to III as against no
evidence whatsoever by the defence. Of the 14
witnesses examined by the prosecution, P.Ws.4 and 7
are the injured eye witnesses to the occurrence,
whereas P.W.12 Dukhabandhu Karna is another eye
witness to the occurrence. P.Ws.1 to 3 are the
waiters of the hotel of the deceased and they have
stated about the incident prior to the transaction in
which the deceased died. P.W.9-Dr. Manoj Kuma Jena
is the doctor, who had conducted the Post Mortem
Examination over the dead body of the deceased,
whereas P.W.10-Dr. Biranchi Narayan Pati is the
doctor, who had examined P.W.4, whereas P.W.15-
Dr. Narayan Prasad Mishra is the doctor, who had
examined the injured-P.W.7 and P.W.13-Mihir Kumar
Panda is the I.O. and rest of the witnesses are either
the seizure witness or witness to the inquest or post
occurrence witness.
4. The plea of the convicts in the course of trial
was one of complete denial and false implication.
5. After appreciating the evidence on record upon
hearing the parties, the learned trial Court convicted
the appellants by relying upon mainly on the
evidence of injured eye witnesses P.Ws.4 and 7 and
other eye witness P.W.12, so also the recovery
evidence of MOs.I to III.
6. In assailing the impugned judgment of
conviction, Mr. S.J. Mohanty, learned counsel
appearing for the convict-Kishore Bhoi has submitted
that there are material contradiction and omission
available on record, but the learned trial Court has
ignored such material contradiction and omission
while recording the conviction against the appellant.
It is also submitted by him that the learned trial
Court has taken into account the recovery evidence
which was not at all believable and the recovery of
MOs.I to III being not reasonably connected with the
convict, it lost all its significance to be used against
the convict. Mr. Mohanty by drawing attention of the
Court to the evidence P.Ws.4, 7 and 12 has
submitted that the witnesses had deposed differently
about the time of occurrence, which creates a cloud
of doubts on the version of so called eye witnesses
and destroy their credibility since P.W.4 has said that
the incident took place at about 9.30 P.M., whereas
P.W.7 has deposed that the incident took place
between 8.00 PM. to 9.00P.M. and P.W.12 has
deposed that the incident took place at 10.00 P.M. It
is also submitted that when there is no evidence to
substantiate the charge, the conviction of the
appellant is liable to be set aside. In summing up his
argument, Mr. Mohanty has prayed to allow the
appeal by setting aside the impugned judgment of
conviction and order of sentence by acquitting the
appellant of the charges.
6.1 In reiterating the submission advanced on
behalf of convict-Kishore Bhoi, Ms. G. Majhi, learned
counsel appearing for appellant-Khirasindhu Karna @
Khirod Padhan has submitted that the evidence of
prosecution witnesses is not only full of inconsistent
and contradictory, but also the conclusion arrived at
by the learned trial Court is on wrong appreciation of
evidence and the trial Court has taken into
consideration irrelevant and unworthy evidence to
convict the appellant, who is innocent of the offences.
She further by highlighting the evidence of P.Ws.4, 7
and 12 has submitted that there exists material
contradiction on the timing of the alleged incident as
deposed to by the above three witnesses, who cannot
be considered to be the truthful witnesses and
therefore, the conviction recorded against the
appellant is unsustainable in the eye of law. Ms. Majhi
has, accordingly, prayed to allow the appeal.
6.2 On the other hand, Mr. S.K. Nayak, learned
AGA by drawing attention of the Court to the evidence
of P.Ws.4, 7 and 12 has submitted that the evidence
of these three witnesses are not only credible, but
also reliable and acceptable and they being the
injured and eye witnesses to the occurrence and the
defence having not demolished their evidence in any
manner, the conviction of the appellants cannot be
faulted with. It is also submitted by Mr. Nayak that
not a single contradiction has been elicited from the
mouth of these three witnesses and the defence has
failed to make any inroad in the evidence of these
witnesses and why the impugned judgment of
conviction cannot be sustained is never explained by
the learned counsel for the appellants. Mr. Nayak
ultimately has prayed to dismiss the appeal by
concluding his argument.
7. For examining the sustainability of the
conviction of the convicts/appellants, this Court not
only feels the necessity to go through the evidence
on record, but also actually went through the
impugned judgment of conviction passed by the
learned trial Court together with the entire evidence
on record extensively and meticulously keeping in
view the rival submissions. There seems no dispute
that the learned trial Court has of course relied upon
the direct evidence of P.Ws.4, 7 and 12 at the first
instance. In scrutinizing the evidence, the evidence of
P.W.4 being one of the injured witness transpires that
the occurrence took place on Saturday in the month
of August, 2007 at about 9.30 P.M. and the accused
persons-appellants being armed with iron rods and
Tangi(MO-I) came near to him and the deceased,
who were then sitting in the broiler-chicken shop and
convict-Kishore by holding MO-I and others being
armed with iron pipes attacked the deceased, but
when he (P.W.4) caught hold of the handle of the axe
(MO-I) in possession of convict-Kishore, the other
three accused persons attacked him and in the
process, one iron rod blow was dealt upon his head
causing bleeding injury to him and he left the convict-
Kishore to save himself and thereafter, they dealt
blow to the deceased, who sustained cut injuries on
his face, backside of neck and hands etc and the
deceased fell down on the ground. According to
P.W.4, the deceased was taken to hospital, so also he
had been to there and the doctor declared the
deceased as dead. It is also the evidence of PW.4
that he orally reported the matter to P.S., which was
reduced into writing by the O.I.C. under Ext.2 and he
put his signature under Ext.2/1. On the expectation
of demolishing the evidence of P.W.4, the defence
cross-examined him at length, but only ended up
with his(PW4) presence at the spot. The cross-
examination of P.W.4 further resulted in bringing
about the evidence of presence of P.W.7-Geru Garia
@ Leheru at the spot and the presence of convict-
Kishore standing by the right side of the deceased
being armed with MO-I. It is also brought out in the
cross-examination of P.W.4 that P.W.4, his nephew
and Pahilman and another person shifted the
deceased to hospital in a Tempo, but in the entire
cross-examination of P.W.4, not a single contradiction
was elicited from his mouth to discredit his evidence.
Besides, the evidence of P.W.4 is squarely
corroborated by F.I.R. under Ext.2 with regard to the
mode and manner of assault on the deceased and the
presence of P.W.7 at the spot. It is of course true
that P.W.4 has not stated about the assault on P.W.7
by the convicts, but in case of truthful witness, it is
quite natural for him not to reproduce the entire story
or entire transaction while giving the evidence
because human memory is fallible and when there is
a significant incident attracting the attention of
others, it is quite naturally possible for not being able
to produce some part of the incident or connected
incident.
8. On coming back to evidence of P.W.7, it
appears that P.W.7 has reiterated the evidence what
P.W.4 has testified in the Court in addition to the
evidence that when he intervened and separated the
accused persons-appellants, convict-Khirod dealt an
iron rod blow on his left upper arm, back side of waist
and lower lip, and due to such blow on his face, he
lost two of his teeth and he sustained swelling injury
at the other two places. P.W.7 has also testified in
the Court by saying that the deceased sustained cut
injury on his lip, backside of neck, both thighs and
chest. The cross-examination of P.W.7 only resulted
in proving the occurrence to have taken place in front
of the shop of P.W.4 and the presence of P.W.7 at the
spot, when the accused persons-convicts dealt blow
to P.W.4. Further, not a single contradiction was
elicited from the mouth of P.W.7 to discard his
evidence in any manner in material particulars.
9. In this case, P.W.10 being the doctor, who has
examined P.W.4 on police requisition has testified in
the Court about the injuries sustained by P.W.4.
Similarly, P.W.15 being another doctor, who
examined P.W.7 has stated in his evidence alike
P.W.10 that P.W.7 has sustained three lacerated
wounds on the scapula, left cheek and left shoulder.
The above medical evidence not only corroborates the
version of P.Ws. 4 and 7, but also reveals that P.Ws.
4 and 7 had received injuries on their person, which
only go to support the case of the prosecution, but
also proves their presence at the spot at the time of
occurrence. It is, therefore, very clear that PWs4 & 7
are the eye witness to the occurrence and the
defence could not demolish their evidence in material
particulars.
10. Be that as it may, P.W.12 being an
independent eye witness has stated about the
occurrence corroborating the evidence of P.Ws. 4 and
7. According to P.W.12, on 04.08.2007 at about 9.00
A.M. there was an altercation between the deceased
and the convict-Khirasindhu on account of quarrel
between their children and at about 10.00 A.M.
convict-Khirasindhu and Kishore being accompanied
by Petu and Giribas came to the spot being armed
with axe and iron rods and convict-Kishore was about
to assault Rushav by MO-I, but P.W.4 intervened and
all of them assaulted P.W.4 on his head and he
(P.W.4) fell down and P.W.7 came to rescue of P.W.4,
but the accused persons assaulted P.W.7 by means of
iron rod and his (P.W.7) tooth was uprooted. The
evidence of P.W.12 further revealed that convict-
Kishore dealt an axe blow on the face of the deceased
and others assaulted him by means of iron rod and
the deceased fell down on the ground and they
assaulted him abruptly. In the cross-examination of
P.W.12, nothing was elicited benefiting the defence,
rather the evidence of place of assault and assault by
the convicts got strengthened in view of the fact that
it was elicited from the mouth of P.W.12 that the
occurrence took place in front of the hotel and P.W.4
became senseless and first axe blow of convict-
Kishore hit on the face of deceased-Rushav and he
fell down there. There is nothing to disbelieve the
evidence of P.W.12. A careful and thorough scrutiny
of evidence of P.Ws. 4, 7 and 12, it appears to the
Court that the prosecution has established its case
against the convicts for giving fatal blows to the
deceased causing his death and causing hurt to
P.Ws.4 and 7 beyond all reasonable doubt by leading
clear, cogent and acceptable evidence.
11. The oral evidence of P.Ws. 4, 7 and 12 with
regard to homicidal death of the deceased were
squarely corroborated by the medical evidence of
Doctor-P.W.9- Manoj Kumar Jena, who has not only
vividly described the external and internal injuries on
the deceased, but also has given opinion about all the
injuries individually. According to P.W.9, the death
was due to injuries to the vital organ-brain along with
shock and hemorrhage resulted from all other injuries
and the external injuries Nos.(i) to (iv) and (viii) with
the corresponding internal injuries of injury Nos. (i) &
(ii) would be possible by the sharp edge of the axe-
MO-I, which was sent to him for giving opinion. The
above medical evidence was remained firm since
nothing was elicited from the mouth of the doctor in
cross-examination to discredit his evidence. P.W.1 to
3 have also stated about the motive behind crime
which according to them was for the deceased giving
slap to accused-Kishore. Besides, P.W.6 being the
witness to seizure and disclosure of convicts giving
recovery of weapons, has testified and stated in his
oral testimony that while the accused-Kishore being
in custody had voluntary disclosed to have concealed
MO-I inside a sand heap near Nilam Rice Mill and
accused-Khirasindhu while being in custody had
voluntary disclosed to have concealed the iron rod-
MO-II in his house and both the convicts led the
Police Party as well as them to the respective place of
concealment and gave recovery of MOs-I and II,
which were seized. It is of course true that the
chemical examination does not disclose about the
presence of blood stains in MOs.I to III, but the same
cannot assume great significance in view of the
consistent evidence of eye and injured witnesses to
the occurrence.
12. On a careful conspectus of evidence on record
together with the discussions made hereinabove, this
Court has no hesitation to concur with the findings of
the learned trial Court which has rightly convicted
appellants for offence U/S 302/324/34 of the IPC by
considering the prosecution to have established its
case beyond all reasonable doubt.
13. Resultantly, both the appeals stand dismissed
on contest. Consequently, the judgment of conviction
and order of sentence dated 05.03.2011 passed by
the learned Additional Sessions Judge (F.T.C.),
Bargarh in C.T. No.43/5 of 2008 are hereby
confirmed.
14. Since the sentence of the appellant-Kishore
Bhoi was directed to be suspended by an order of this
Court passed on 05.02.2021; and the convict
Khirasindhu Karna @ Khirod Pradhan was directed to
go on bail by an order of this Court passed on
14.09.2015; both the appellants are hereby directed
to surrender to custody to suffer their sentence,
failing which the trial Court is at liberty to take
appropriate steps in accordance with law.
(G. Satapathy)
Judge
D.Dash, J. I Agree
(D.Dash)
Judge
Location: High Court of Orissa
Orissa High Court, Cuttack,
Dated the 2nd day of April, 2024/S.Sasmal
