Orissa High Court
Baibasuta Kharsel; vs State Of Orissa on 1 July, 2024
Bench: D. Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.117 of 2022
In the matter of an Appeal under section 383 of the Code of
Criminal Procedure and from the judgment of conviction and
order of sentence dated 12.10.2022 passed by the learned Sessions
Judge, Nuapada in S. T Case No.31 of 2021.
Baibasuta Kharsel; .... Appellants
Arakhita Kharsel
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- Mr. Sapan Kumar Pal
Advocate (Amicus Curiae)
For Respondent- Mr. S. K. Nayak
Additional Government Advocate
CORAM:
MR. JUSTICE D. DASH
MR. JUSTICE V. NARASINGH
Date of Hearing: 07.05.2024 :: Date of Judgment: 01.07.2024
D.Dash, J. The Appellants, by filing this Appeal from inside the
Jail, have challenged the judgment of conviction and order of
sentence dated 12.10.2022, passed by the learned Sessions Judge,
Nuapada in S. T Case No.31 of 2021, arising out of C.T Case
No.31 of 2021, corresponding to Sinapali P.S. Case No.31 of 2021
of the Court of the learned Judicial Magistrate First Class (JMFC),
Sinapali.
The Appellants (accused persons) thereunder has been
convicted for committing the offence under section
302/341/323/34 of the Indian Penal Code, 1860 (in short, 'the IPC')
and they have been sentenced to undergo imprisonment for life
and fine of Rs.10,000/- each in default to undergo rigorous
imprisonment for six months each for the offence under section
302 of the IPC; simple imprisonment for one month and fine of
Rs.500/- each in default to undergo simple imprisonment for five
days each for the offence under section 341 of the IPC and
undergo rigorous imprisonment for one year and fine of
Rs.1000/- each, in default to undergo rigorous imprisonment for
one month each for the offence under section 323 of the IPC with
the stipulation that the substantive sentences would run
concurrently.
2. Prosecution Case:-
On 16.01.2021, around 10 am, Nanda Kharsel, the husband
of the Informant (P.W.1) had gone to the house of Basu Hans
(P.W.14) situated at village Kirkita. After having stayed there for
few hours, Nanda had returned to his village Gambhariguda and
having parked his vehicle had been to the village pond to take
bath. It is stated that when after taking bath, he returned to his
house, these accused persons with four others coming from
behind jointly attacked him and they assaulted him on his head
by means of sharp edged wooden thenga. The informant (P.W.1)
when intervened to save her husband (deceased), these accused
persons and also four others assaulted and chased her. The
Informant (P.W.1) in order to save herself budged to a place and
witnessed the incident helplessly. These accused persons were
seen to have assaulted Nanda by means of thenga on his head
which ultimately led to his death. The wife of the deceased
Nanda (Informant- P.W.1) having lodged a written report with
the IIC, Sinapali Police Station, the same was treated as FIR
(Ext.1) and case being registered, investigation was taken up.
3. In course of investigation, the I.O (P.W.17) examined the
Informant (P.W.1) and other witnesses and recorded their
statements under section 161 of the Cr.P.C. He also visited the
spot and prepared the spot map (Ext.11). He (P.W.17)
requisitioned the service of the members of the scientific team
DFSL, who had collected biological exhibits from the spot. The
I.O (P.W.17) then held inquest over the dead body of the
deceased and prepared report (Ext.3). The dead body was sent for
post mortem examination by issuing requisition. After the post
mortem examination on production by the police constable, who
had carried the dead body to the morgue, the wearing apparels of
the deceased were seized under seizure list. On 17.01.2021 these
accused persons were arrested. It is stated that pursuant to the
statements of these accused persons, while in police custody they
had led P.W.17 and other witnesses in giving recovery of the
weapon (thenga). The seized incriminating articles were sent for
chemical and serological examination through Court. The I.O
(P.W.17) having received the orders of transfer handed over the
charge of investigation to P.W.19, (I.O-P.W.17) who on
completion of investigation submitted the Final Form placing
these accused persons to face the trial for commission of the
offence under section 341/323/302/34 of the IPC.
4. Learned JMFC, Sinapali, having received the Final Form as
above, took cognizance of the offence under section
341/323/302/34 of the IPC and after observing the formalities,
committed the case to the Court of Sessions for trial. That is how
the Trial commenced against these accused persons framing the
charge for the said offences.
5. In the Trial, prosecution in total has examined nineteen (19)
witnesses when the defence has also examined three witnesses,
who are D.W.1 to D.W.3. From the side of the prosecution several
documents have been admitted in evidence and marked Ext.1 to
Ext.21. Out of those, the important are the FIR, Ext.1, Inquest
Report, Ext.3, statements of the accused persons, Ext.5 and 6 and
Post Mortem Report, Ext.7 and the Chemical Examination Report
is Ext.21.
As already stated, P.W.1 is the informant, who happens to
be the wife of the deceased and had lodged the FIR, Ext.1 and she
is the injured eye witness. P.W.2, P.W.3, P.W.4, P.W.7 and P.W.16
have been examined as the eye witnesses. P.W.5 is an after
occurrence witness and he is the father of the deceased and
father-in-law of the Informant-P.W.1. P.W.8 and P.W.14 are the
witnesses to the recovery of thenga and Kathaphalia whereas
P.W.9 is the Doctor, who had conducted post mortem over the
dead body of the deceased and as already stated P.W.17 and
P.W.19 are the two I.Os.
6. The plea of the accused persons are that of complete denial
and false implication.
7. Learned counsel for the Appellants (accused persons)
submitted that the evidence adduced by the prosecution in
directly implicating these accused persons to be the author of the
injuries sustained by the deceased including the injury, which has
been proved to be fatal is not believable as said evidence come
from highly interested witnesses, who had the axe to grind
against these accused persons because of their rivalry. He further
submitted that the FIR story when narrates the role of these two
accused persons as also four others and that too having jointly
attacked the deceased, during trial, P.W.1 has given a complete
go-bye to the same and that also had been found by the I.O
(P.W.17) and P.W.19) as they have not submitted the Final Form
placing those four persons, who as per the FIR were the
companions of these accused persons and had assaulted deceased
and along with these accused persons had assaulted P.W.1
holding those weapons. He further submitted that the evidence of
other so called eye witnesses are cryptic and since they have not
stated as to how they could witness the incident, their evidence
ought to have been held to be highly unreliable. He also
submitted that these eye witnesses for the first time have
introduced themselves as the eye witnesses as when they had not
stated about the role of these accused persons during
investigation, they have so developed in the trial. He further
submitted that the narration of the incident and the role played
by these accused persons therein as given by P.W.1 in her FIR has
been differently stated during trial which creates grave doubt in
mind as regards the presence of P.W.1 in the place where the
occurrence took place and merely because she had sustained
some injuries that in view of the divergence in her statement as
aforestated is liable to be rejected. He further submitted that the
evidence as to recovery of the weapon etc. at the instance of the
accused are unsafe to be relied upon and those also do not pass
through the test under section 27 of the Evidence Act so as to be
admissible.
8. Learned counsel for the Respondent-State submitted all in
favour of the finding against the accused persons as has been
returned by the Trial Court. According to him, the evidence of all
the eye witnesses and most importantly, P.W.1 run at par with
one another and there surfaces no such material discrepancies
therein so as to doubt their version as regards these accused
persons assaulting the deceased and P.W.1 by means of thenga.
He submitted that merely because FIR narrates the role of four
others with the role of these accused persons and as now P.W.1
has now not stated about anything against those four, the same is
of no fatal consequence to discard the positive evidence of P.W.1
in toto; when there is no major discrepancy in her evidence as
regards the overtact committed by these accused persons. He
submitted that the evidence of eye witnesses coupled with the
evidence of recovery of weapon have been rightly taken by the
Trial Court to be sufficient to base the conviction.
9. Keeping in view the submissions made, we have carefully
read the impugned judgment passed by the Trial Court. We have
also gone through the evidence of the prosecution witnesses i.e.
P.W.1 to P.W.19 and have perused the documents admitted in
evidence and marked Ext.1 to Ext.20/2.
10. The prosecution in order to bring home the charge against
the accused has first of all proved the death of the deceased to be
homicidal in nature which aspect was not under challenge before
the Trial Court nor it has been so questioned before us in this
Appeal.
Be that as it may, we find the evidence of P.W.9, the Doctor,
who had conducted Post Mortem Examination over the dead
body that she had noticed one small wound of the size of 0.5 x
0.25 x 0.25 c.m on the right with nasal bleeding and heavy
bleeding in the posterior side of the head. She has stated these
injuries to be possible on account of heavy blows by weapons
such as thenga which she had examined. According to her, the
death was on account of intra cranial haemorrhage and its
complications. The defence has not challenged said part of the
evidence of P.W.9. With the above evidence on record, when the
evidence of the I.O (P.W.17) and other witnesses, who had seen
the deceased with such injuries are taken together, we find no
difficulty in recording the finding that Nanda Kharsel met a
homicidal death.
11. Now coming to address the rival submission as regards the
complicity of these accused persons in ascertaining the
sustainability of finding of guilt of these accused persons as has
been returned by the Trial Court, let us first have a look at the
evidence of P.W.1. She has stated that on that relevant date and
time, her husband after taking bath returned on his motorcycle
and having kept the same on the way, came to the house on foot.
She states that at the relevant time, she was going to fetch water
from the tube well situated on the way to the pond and the
accused Arakhita then assaulted her husband by means of a
'Wooden Plank' on the backside of her head resulting his fall and
the other accused Baibasuta assaulted her husband repeatedly on
different parts of his body by means of 'Geda' and at that time,
when she intervened she was assaulted by accused Arakhita by
the wooden plank on her back. So her evidence is that when she
was going out of the house to fetch water, her husband was
coming on foot after parking the motorcycle and there he was
assaulted by these two accused persons. Having implicated these
accused persons as aforesaid, she admits to have implicated in
total six (6) persons including these accused persons in the FIR as
the assailants of her husband by means of wooden thenga, while
further stating that the FIR was scribed under her instruction and
she had given her nod to all those narrations in the FIR after
being read over and explained. This P.W.1 admits to have stated
before the I.O that all the six accused persons including these two
accused persons had assaulted her husband by means of
Kathaphalia. The I.O (P.W.17) has also stated to have recorded
the version of P.W.1 and says that she had fully corroborated the
FIR story. This P.W.1 does not state about any prior enmity of the
accused persons on one hand and the deceased on the other. Her
FIR version is very assertive as regards the assault upon her
husband by these two accused persons as also four others. She
has also stated in the FIR that when she wanted to intervene, she
was assaulted and chased by all these persons numbering six (6).
She had not stated before the I.O that her husband after taking
bath returned on his motor cycle and kept the same on the way
and came to their house by walk and by that time she was going
to fetch water from the tube well on the way to the pond. The I.O
(P.W.17) states as under:-
"it is a fact that P.W.1 has not stated before me that after taking
his bath returned on his motor-cycle and kept the same on the
way and came to our house by walk and that by that time he was
going to fetch the water from the tube-well on the way to pond
and that accused Arakhita assaulted her husband by means of one
wooden plank (Katha Phalia) on the backside of his head and that
as a result of such assault her husband immediately fell down on
the ground and that accused Baibasuta Kharsel who was present
there assaulted her husband repeatedly on the different parts of his
body by means of 'Geda' and that when she intervened into the
matter the accused Arakhita assaulted her by means of wooden
plank on her back and sustained three swelling injury and that
the accused persons were left the spot after killing her husband."
"it is a fact that P.W.1 has not stated before me that the accused
Baibasuta Kharsel was protesting the supply of water through the
'Gali Rasta' in front of their house to which her husband told him
saying "eta ta ama dadi purusa jaga pani jiba pain tu kahinki
mana karuchu."
Thus, we find first the definite tendency with this P.W.1 in
implicating innocent persons in a crime of murder and her
evidence to be also bristling with contradictions. When she has
implicated six (6) persons including these accused persons in
indiscriminately assaulting her husband, the medical evidence
falling from lips of the Doctor (P.W.9) belies her version in the
FIR and that also to some extent belies her version in Court when
P.W.9 states to have noticed only one injury. It is true that as
against her version that she was assaulted and had sustained
swellings, the Doctor (P.W.9) had seen her with those swellings
but she having sustained those injuries in the said incident stands
doubtful if her versions in the FIR and during trial are placed side
by side. All these being cumulatively viewed, makes the presence
of P.W.1 at the relevant time doubtful.
12. P.W.2 when has stated that hearing hullah, he came out of
the house, he saw Nanda lying on the ground and these accused
persons were assaulting him for which Nanda sustained bleeding
injuries, it is again found that he had not stated the same during
his examination in course of investigation. The attention of this
witness to the same being drawn although he has denied yet it
has been proved through the I.O which reads as under:-
"it is a fact that P.W.3 has not stated before me that on the alleged
date and relevant time she was in her house and that hearing
hulla she came outside from her house immediately and that she
saw that Nanda Kharsel was lying on the ground and the accused
Baibasuta Kharsel holding one 'thenga' and accused Arakhita
Kharsel holding one wooden plank (katha phalia) were assaulting
Nanda Kharsel and that as a result of such assault Nanda Kharsel
was sustaining severe bleeding injury and that the dispute
between accused and Nanda Kharsel was for supply of water."
The same state of affair we notice in the evidence of P.W.3,
P.W.4, P.W.7 and P.W.16. It would be suffice to place the
evidence of the I.O (P.W.17) and the evidence of those witnesses
side by side for proper appreciation.
Prosecuti Prosecution Witness I.O (P.W.17)
on Statement Statement
Witness
P.W.3
It is not a fact that I have not It is a fact that P.W.3
stated before police that on has not stated before
the alleged date and relevant me that on the alleged
time I was in my house and date and relevant time
that hearing hulla I came she was in her house
outside from my house and that hearing hulla
immediately and that I saw she came outside from
that Nanda Kharsel was her house immediately
lying on the ground and the and that she saw that
accused Baibasuta Kharsel Nanda Kharsel was
was lying on the ground lying on the ground
and the accused Baibasuta and the accused
Kharsel holding one 'thenga' Baibasuta Kharsel
and accused Arakhita holding one 'thenga'
Kharsel holding one wooden and accused Arakhita
plank (katha phalia) were Kharsel holding one
assaulting Nanda Kharsel wooden plank (katha
and that as a result of such phalia) were
assault Nanda Kharsel was assaulting Nanda
sustaining severe bleeding Kharsel and that as a
injury and that the dispute result of such assault
between accused and Nanda Nanda Kharsel was
Kharsel was for supply of sustaining severe
water. bleeding injury and
that the dispute
between accused and
Nanda Kharsel was for
supply of water."
P.W.4 It is not a fact that I have not It is a fact that P.W.4
stated before police that on has not stated before
the alleged date and relevant me that on the alleged
time I was in front of my date and relevant time
house and that at that time he was in his house
Nanda Kharsel was coming and that hearing
towards his house after hullah he came
taking bath and that I saw outside from his
accused Arakhita Kharsel house immediately
assaulted Nanda Kharsel by and that he saw that
means of wooden plank Nanda Kharsel was
(katha phalia) on back side lying on the ground
of his head as a result he fell and the accused
down on the ground and Baibasuta Kharsel
sustained severe bleeding holding one 'thenga'
injury from his head and and accused Arakhita
that at that time accused Kharsel holding one
Baibasuta Kharsel assaulted wooden plank (katha
Nanda Kharsel by means of phalia) were
'thenga' and that as a result assaulting Nanda
the brain materials come out Kharsel and that as a
from the brain along with result of such assault
severe bleeding injury and Nanda Kharsel was
that the occurrence took sustaining severe
place due to throwing of bleeding injury and
dirty water. that the dispute
between accused and
Nanda Kharsel was
for supply of water.
P.W.7 It is not a fact that I have not It is a fact that P.W.7
stated before police that has not stated before
accused Arakhita Kharsel me that accused
assaulted Nanda Kharsel by Arakhita Kharsel
means of wooden plank assaulted Nanda
(katha phalia) on the Kharsel by means of
backside of his head as a wooden plank (katha
result Nanda fell down on phalia) on the
the ground and that accused backside of his head
Baibasuta came and as a result Nanda fell
assaulted Nanda by means down on the ground
of a 'thenga' on his head and that accused
causing severe bleeding Baibasuta came and
injury. assaulted Nanda by
means of a 'thenga' on
his head causing
severe bleeding
injury.
P.W.16 It is not a fact I have not It is a fact P.W.16 has
stated before police that not stated before me
accused Baibasuta Kharsel that theaccused
was holding a thenga and Baibasuta Kharsel was
accused Arkhita Kharsel was holding a thenga and
holding a wooden plank and accused Arkhita
both assaulted repeatedly to Kharsel was holding a
the deceased Nanda Kharsel wooden plank and
and as a result of such both assaulted
assault Nanda Kharsel was repeatedly to the
sustained injury on his deceased Nanda
backside of his head and Kharsel and as a result
back and when Hamanti the of such assault Nanda
wife of the deceased came to Kharsel was sustained
the spot to rescue her injury on his backside
husband the accused of his head and back
persons assaulted her and and when Hamanti
Hemanti fell down on the the wife of the
ground. deceased came to the
spot to rescue her
husband the accused
persons assaulted her
and Hemanti fell
down on the ground.
13. On the above analysis of the evidence of all these
witnesses who have been projected by the prosecution as the eye
witness, grave doubt in mind arises for their introduction made
in the trial which also makes their presence at the place during
the time highly doubtful. Therefore, we are not in a position to
conclude that the evidence of all these witnesses are safe to be
relied upon in ruling in favour of the complicity of these accused
persons.
Furthermore, when P.W.1 from the beginning had
implicated six (6) persons including these two accused persons
and has asserted during the trial to have so stated before the
scribe of the FIR and that it had been rightly so mentioned in the
FIR, there comes no explanation from the side of P.W.1 as to why
she is now silent about the other four. So her tendency in another
way can said to be to save some other offenders which makes her
entire evidence as suspect and that apart other eye witnesses
when are implicating these two accused persons, their version
during investigation and trial stand as contradictory.
The prosecution in the case has relied upon the evidence as
to the recovery of the weapons at the instance of these accused
persons. In fact when evidence of all the witnesses, who had been
projected as the eye witnesses are found to be unreliable even if
for a moment it is believed that these accused persons had given
recovery of the weapons that itself would not independently be
enough to fasten guilt upon them as the authors of the fatal injury
upon the deceased. Be that as it may coming to the witness
(P.W.14) to the said recovery, we find his evidence to be not on
the score that wherefrom these accused persons gave recovery of
those bamboo lathi, wooden plank and yellow colour napkin.
When he states that they all had been to the house of the accused,
he does not state that wherefrom these accused persons produced
those or which place they had indicated to be the place where
those weapons and napkin had been kept. That apart, during
cross-examination he has stated to have not even seen the
accused persons being examined and he also states that the
accused persons being not asked anything by the I.O (P.W.17),
their statements had been recorded. That being the evidence of
P.W.14, evidence of the I.O (P.W.17) on that score appears to be
wholly unsatisfactory. He states to have seized the weapon of
offence as per section 27 of the Evidence Act which makes no
sense. He then straightway proves the confessional statements of
the accused persons as Ext.5 and 6 already marked. He does not
state a word as to where such statements had been recorded, in
whose presence the statements were recorded and after recording
such statements what happened and wherefrom those weapons
were seized and how the recovery was made and as if these
accused persons at all were associated in the process.
14. On a conspectus of discussion of evidence as hereinabove,
we are thus of the view that the prosecution has failed to establish
the charge against the accused persons beyond reasonable doubt.
15. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 12.10.2022 passed by the
learned Sessions Judge, Nuapada in S. T Case No.31 of 2021 are
hereby set aside.
The Appellants (accused persons) being in custody, they be
set at liberty forthwith, if their detention is not warranted in
connection with any other case.
(D. Dash),
Judge
V. Narasingh, J. I agree.
(V. Narasingh),
Judge
Gitanjali
Designation: Junior Stenographer
