Orissa High Court
Sri Gunabanta Biswal (Since vs State Of Orissa on 1 July, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.205 of 2001
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 October, 2001 passed by the
learned Sessions Judge, Mayurbhanj in G.R. Case No.305 of 1998
(Trial Case No.23 of 1999).
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1. Sri Gunabanta Biswal (Since .... Appellants
dead and abated); and
2. Sri Mahiratha Siminakia;
3. Sri Bijoy Kumar Biswal;
4. Sri Sukesh Chandra Behera
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.Sangramjit Panda &
S. Panda (Advocates)
For Respondent - Mr.P.K. Mohanty,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing : 09.04.2024 : Date of Judgment : 01.07.2024
D.Dash,J. The Appellants, by filing this Appeal, have called in
question the judgment of conviction and order of sentence dated
3rd October, 2001 passed by the learned Sessions Judge,
Mayurbhanj in G.R. Case No.305 of 1998 (Trial Case No.23 of
1999) corresponding to Kaptipada P.S. Case No.92 of 1998 in the
Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.),
Udala.
The Appellants (accused persons) have been convicted for
committing the offence under section 302 read with section 34 of
the Indian Penal Code (for short, 'the IPC'). Accordingly, each of
them has been sentenced to undergo imprisonment for life for
commission of the said offence.
The Appellant (accused), namely, Sukesh Chandra Biswal
although has also been convicted for commission of the offence
under section 3(2)V) of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989, no separate sentence has been
passed for commission of the said offence.
It is pertinent to mention here that during pendency of this
Appeal, the Appellant No.1, namely, Gurubanta Biswal, having
died; this Appeal has abated as against him vide order dated
19.05.2022. So, now this Appeal is confined to other three
Appellants, namely, Mahiratha Siminakia, Bijoy Kumar Biswal &
Sukesh Chandra Behera.
2. PROSECUTION CASE:-
On 11.12.1998 around 9.30 a.m., one Raghunath Khalpalia
(P.W.1) presented a written report with the Officer-in-Charge of
Kaptipada Police Station (P.S.) stating therein that one person
during morning hour, having gone to his house, had reported
that a man belonging to Lodha community of Village-Nedam had
entered into the house of a co-villager for committing theft. It was
also stated that the villagers of Village-Jadida, having caught the
said person, had assaulted him. Hearing the same, Raghunath
(Informant-P.W.1) had been to the spot and saw that person
sitting in front of the rest shed where many people were also
present. It is further stated by said Raghunath (Informant-P.W.1)
in the said report that nobody told as to who had assaulted that
person. At that time the wife and son-in-law of that injured
person arrived and they carried him near canal bridge where the
brother of that person arrived and as the person could not sit on
the cycle, his brother went to bring a rickshaw when the
condition of said person become serious and deteriorated. It was
stated that the person was identified by his wife and son-in-law
to be Bansidhar Naik of Village-Nedan.
On receipt of the above report, the O.I.C. (P.W.7) treated the
same as FIR (Ext.1) and upon registration of the criminal case,
took up the investigation.
3. The Investigating Officer (I.O.-P.W.7), in course of the
investigation, examined the informant (P.W.1) and recorded his
statement under section 161 Cr.P.C. He (P.W.7), having visited
spot, prepared the spot map Ext.5). The injured was taken to
Kaptipada Community Health Centre where the Doctor declared
him to be dead. He held the inquest over the dead body of
Bansidhar and requested the B.D.O. Kaptipada to remain present
during inquest and prepared the report to that effect (Ext.2). The
dead body of Bansidhar was sent for post mortem examination
by issuing necessary requisition. He (P.W.7) then seized the
wearing apparels of the deceased under seizure list (Ext.6). On
completion of the investigation, the I.O. (P.W.7) submitted the
Final Form placing these accused persons to face the Trial.
4. Learned S.D.J.M., Udala, on receipt of the Final Form, took
cognizance of the said offences and after observing the formalities
committed the case to the Court of Sessions for Trial. That is how
the Trial commenced by framing the charge for the aforesaid
offence against these accused persons.
5. The prosecution, in support of its case, has examined in
total seven (7) witnesses during Trial. Out of them, as already
stated, the informant, who happens to be the Grama Rakhi is
P.W.1. P.W.2 has not supported the prosecution and turned
hostile. P.W.4 is the wife of the deceased whereas P.W.3 is the
would be son-in-law of the deceased. The Doctor, who conducted
the autopsy over the dead body of Bansidhar has been examined
as P.W.5. The I.O. of the case, at the end, has come to the witness
box as P.W.7.
6. Besides leading the evidence by examining the above
witnesses, the prosecution has proved several documents which
have been admitted in evidence and marked Exts.1 to 6. Out of
those, the important are, the FIR (Ext.1), the spot map (Ext.5),
inquest report (Ext.2); and the post mortem report (Ext.3).
7. The accused persons have taken the plea of complete denial
and false implication. They, however, have stated that no such
occurrence took place and a false case has been foisted against
them by the police.
8. Mr.Sangramjit Panda, learned counsel for the Appellants
(accused persons) submitted that the prosecution, in the case, has
not led any direct evidence to establish the complicity of these
accused persons. He, however, submitted that when the FIR
(Ext.1) had been lodged showing the culprits as unknown and the
Informant (P.W.1) does not breath a word about the complicity of
any of these accused person, the Trial Court ought not to have
relied upon the version of P.W.3, the would be son-in-law of the
deceased that the deceased had declared before her regarding the
role played and the acts done by these accused persons, which do
not at all stand to legal scrutiny. He further submitted that P.W.1,
having met P.W.3 when had lodged the FIR, he has not gone to
state anything regarding the complicity of these accused persons
and furthermore, the disclosure about the complicity of these
accused persons by P.W.3 is also at a belated stage, which too
does not find any corroboration from any other evidence. He
submitted that doubt also arises when it is seen that the accused
persons were arrested at much a later point of time even after so
called disclosure by P.W.3 and the I.O. (P.W.7) merely stating that
the accused persons were absconders does not state to have made
any such sincere attempts/efforts to find them out. In view of the
above, he urged for acquittal of these accused persons by setting
aside the judgment of conviction and order of sentence returned
against them.
9. Mr.P.K. Mohanty, learned Additional Standing Counsel for
the for the Respondent-State does not dispute the position that
here the prosecution much relies upon the evidence of the would
be son-in-law of the deceased (P.W.3) and wife of the deceased
(P.W.4). He submitted that the evidence of P.W.3, who is the a
natural witness and as he has deposed in a very clear manner as
regards the disclosure of the names of these accused persons to be
the assailants by the deceased, the Trial Court, in the absence of
any such material to discard his version, has rightly held the
same to be sufficient to fasten the guilt upon the accused persons.
10. Keeping in view the submissions made, we have carefully
read the impugned judgment of conviction. We have also
extensively travelled through the depositions of the witnesses
(P.Ws.1 to P.W.7) and have perused the documents admitted in
evidence and marked as Ext.1 to Ext.6.
11. The death of Banshidhar has been proved to bhe homicidal
through the evidence of the Doctor (P.W.5), who had conducted
the autopsy over the dead body of Bansidhar. He (P.W.5) has
stated that he death was on account of haemorrhage and shock
resulting from the injuries on different parts of the body of the
deceased caused by fist blows, kicks and assault by lathi, which
has remained unchallenged.
12. The prosecution, in order to bring home the charge against
these accused persons, has examined P.W.1. He does not name
anyone to be the assailant. His evidence is that when he arrived at
the spot, he had asked the villagers as to who had assaulted the
deceased, but they remained silent and thereafter the would be
son-in-law of the deceased, who has been examined as P.W.3,
arrived there. It is not stated by him that they asked the deceased
as to who had caused the injury on the person of Bansidhar. This
P.W.1, being the Grama Rakhi, having seen Bansidhar (deceased)
in an injured condition, showing the normal reaction has not even
asked him as to how he sustained those injuries when he does not
state nor it is the case of the prosecution that at that time, the
deceased was not in a condition to speak. It is also not stated by
this P.W.1 that the deceased volunteered but in fact he states that
no one told about assailants before him.
P.W.3 is the would be son-in-law of the deceased. It is his
evidence that having been informed by a person of their village,
when he with the wife of the deceased (P.W.4) went to Village-
Jadida, they found the deceased to have been assaulted and
sitting in front of the rest house where a number of persons had
assembled. His further evidence is that water was poured over
him and he was brought under the sun when P.W.1 reached there
and thereafter, the deceased sat on the carrier of his cycle and was
brought to some distance where only the deceased was asked by
him as to where he had committed the theft, which he denied and
then he disclosed that when he was coming during night, he
being suspected to be a thief, the villagers detained him and
assaulted. He, however, does not state that having first seen the
deceased, he had asked anything as to how he received those
injuries when he first saw him on his arrival. Having said this, he
has gone to further state that the deceased then disclosed before
him that the accused-Gunabanta (since dead) and this accused
Bijoy and one Babuli and two others had assaulted him in
specifically stating that accused Gunabanta (since dead) had
assaulted by a stick. He does not state as to whether at that time,
P.W.4 was present with him or not. P.W.4 states that when she
came with P.W.3 to the spot. He saw the deceased sitting on the
corner of the rest shed in Village-Jadida and sixty persons to have
assembled near him. Her further evidence is that out of fear, she
did not go near the deceased and stood at a little distance when
P.W.3 went near the deceased, which of course is not stated by
P.W.3. She does not state that P.W.3 thereafter had taken the
deceased on a cycle. None of the witnesses state that they had
known these accused persons prior to the incident nor it is also
stated by P.Ws.3 & 4 that the deceased had prior acquittance with
these accused persons.
The I.O. (P.W.7) when rushed to the spot receiving the FIR
(Ext.1), although states to have seen the deceased near the school
when he reached the spot, his evidence is that the deceased was
not able to talk due to his serious condition and then none were
present near the deceased except P.Ws.3 & 4. It is not in his
evidence that on his arrival, P.W.3 had disclosed before him that
the deceased had stated the names of these accused persons to be
the assailants. However, P.W.3 states about the disclosure made
by the deceased as regards his assailant, P.W.4 remains silent
although P.W.7 says that they were together near the deceased,
which is not the evidence of P.W.4. In such state of affair in the
evidence of P.Ws.3 & 4, the same being viewed cumulatively with
the evidence of P.W.1 and the I.O. (P.W.7); we feel that it would
be extremely unsafe to accept the evidence of P.W.3 as regards
the disclosure of the deceased about this assailants.
13. With the above discussed evidence of the prosecution
witnesses, we are unable to concur with the view of the Trial
Court that the prosecution has established the charged against
these accused persons for committing the murder of Bansidhar
Naik beyond reasonable doubt.
14. In the result, the Appeal is allowed. The judgment of
conviction and order of sentence dated 3rd October, 2001 passed
by the learned Sessions Judge, Mayurbhanj in G.R. Case No.305
of 1998 (Trial Case No.23 of 1999), are hereby set aside.
Since the Appellants (accused persons), namely, Mahiratha
Siminakia, Bijoy Kumar Biswal, and Sukesh Chandra Behera are
on bail, their bail bonds shall stand discharged.
(D. Dash),
Judge.
V. Narasingh, J. I Agree.
(V. Narasingh),
BASUDEV NAYAK
Location: HIGH COURT OF ORISSA : CUTTACK
Date: 04-Jul-2024 14:56:15
