Orissa High Court
) Brajen @ Brajendra Panda vs State Of Odisha on 1 October, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA 74 OF 2007
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
05.01.2007 passed by the learned Sessions Judge,
Sambalpur in S.T Case No.343 of 1999.
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1) Brajen @ Brajendra Panda .... Appellants
2) Pinku @ Bikram Keshari
Chouhan
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- :: Mr. Devasish Panda,
Advocate.
For Respondent- :: Mr. S.K. Nayak,
Additional Government
Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing :12.09.2024 ::Date of Judgment: 01.10.2024
The Appellants, by filing this Appeal have assailed
the judgment of conviction and order of sentence dated
05.01.2007, passed by the learned Sessions Judge,
Sambalpur, in S.T. Case No.343 of 1999, arising out of
GR Case No.754 of 1998, corresponding to Katarbaga
P.S. Case No.52 of 1998 of the file of learned Sub-
Divisional Judicial Magistrate (SDJM), Sambalpur.
The Appellants (accused persons) thereunder have
been convicted for commission of offence under section
147/148/302/149, 323/149 & 324/149 of the Indian Penal
Code. Accordingly, they have been sentenced to undergo
imprisonment for life for the offence under section 302
read with section 149 of the IPC; rigorous imprisonment
for two years for the offence under section 324/149 of the
IPC; rigorous imprisonment for one year for the offence
under section 323/149 of the IPC; rigorous imprisonment
for one year for the offence under section 147 of the IPC;
and rigorous imprisonment for two years for the offence
under section 148 of the IPC with the stipulation that all
such sentences shall run concurrently.
It would be worth mentioning at this stage that
accused persons, namely, Gyanendra Panda, Brajen @
Brajendra Panda, Titu @ Srikanta Tripathy, Bhagaban
Oram & Pinku @ Bikram Keshari Chouhan in total five
(05) had faced the trial being charged for commission of
offence under section 147/148/302/323/324/149 of the IPC
and section 25 of the Arms Act, 1959. One more accused,
namely, Mahadev Oram having died, had not faced the
trial. All the above noted five accused persons, who faced
the trial, stood convicted for the offence under section 147
& 148 of the IPC and they too stood convicted for
commission of offence under section 302/323/324 with the
aid of 149 of the IPC. Accused persons, namely,
Gyanendra Panda and Srikanta Tripathy had filed CRLA
No.80 of 2007. Both having died during pendency of the
Appeal, and as none of their near relations came forward
to pursue the Appeal further on their behalf, that Appeal
has been dismissed as to have abated vide order dated
12.09.2024.
In the present Appeal, Bhagaban Oram, having died
during pendency of the Appeal, none of his near relation
has come forward to further pursue the appeal on his
behalf. Therefore, this Appeal has also been dismissed as
to have abated in respect of the accused Bhagaban Oram
and order to that effect has been passed on 12.09.2024.
Thus the present appeal is confined to the accused
persons, namely, Brajen @ Brajendra Panda and Pinku @
Bikram Keshari Chouhan.
2. Prosecution Case:-
On 28.06.1998, around 8.30 p.m, Gopal Sharma
(Informant-P.W.12) was present in a video hall at Rengali.
His employees, namely, Manoj Pradhan (P.W.6) & Shamy
Sharma (P.W.1) had gone to Mahaveer Chaka to take tea.
Fifteen minutes after their departure, Gopal Sharma
(Informant-P.W.12) was informed that the accused
persons were assaulting his employees Manoj Pradhan
(P.W.6) & Shyam Sharma (P.W.1). Therefore, Gopal
Sharma (P.W.12), Bisu @ Biswanath Sharma (deceased)
rushed near that Mahaveer Chaka. There, they saw Manoj
Pradhan (P.W.6) lying on the ground being assaulted by
the accused persons giving kicks and Shyam Sharma
(P.W.1) then tried to protect Manoj (P.W.6). But he was
then assaulted by the accused persons. Gopal Sharma
(Informant-P.W.12) and Bisu @ Biswanath Sharma
(deceased) therefore had to intervene in the matter and
they dissuaded accused Gyanendra from assaulting
Manoj Pradhan (P.W.6) & Shyam Sharma (P.W.1). At that
time, other accused persons including one Girindra
Panda came to the spot from a nearby hotel being armed
with swords and hockey sticks. Brother of accused
Gyanendra, i.e. accused Brajendra was shouting and
instigating others to finish Bisu @ Biswanath. Another
brother of accused Gyanendra namely Girindra was also
instigating the other accused persons to finish Bisu @
Biswanath stating that he would look after the case that
would come to be instituted for the said killing. It is
stated that the accused persons assaulted Bisu @
Biswanath by means of swords and hockey sticks. As a
result of the same, he fell down with serious bleeding
injuries. Bisu @ Biswanath was thereafter repeatedly
assaulted and stabbed by sword. The employee of Gopal
Sharma (Informant-P.W.12), namely, Shyam Sharma
(P.W.1) also received injuries being dealt with blows and
assaulted by hockey sticks. After the incident, the accused
persons ran away from the spot carrying the weapons
with them.
Gopal Sharma (Informant-P.W.12) then having
lodged a written report (Ext.10) with the Sub-Inspector
(SI) of Police attached to Rengali Police Out Post under
Katarbaga Police Station (P.W.13), the same was entered
in the Station Diary Book maintained at the Police Out
Post. The said written report (Ext.10) received on
29.06.1998 around 8 p.m. was then sent to the Officer-in-
Charge (OIC) of Katarbaga Police Station for registration
of the FIR and case. Having done so, the SI of Police
(P.W.13) took preliminary steps for investigation. The first
I.O (P.W.13) examined the Informant (P.W.12). He then
went to the spot. There he saw Bisu @ Biswanath Sharma
lying in a seriously injured condition. The I.O (P.W.13)
examined Bisu @ Biswanath Sharma, who disclosed the
names of his assailants as Gyana Panda, Titu Tripathy
and Mahadeb Oram and stated that they had assaulted
by sword. Bisu @ Biswanath Sharma was then shifted to
the Burla Medical College and Hospital. The spot was
guarded and requisition was sent to the Scientific Officer
for visiting the spot and collecting the incriminating
articles. From the spot, a pair of black and grey leather
chappal, white and black check full shirt stained with
blood worn by injured Biswanath Sharma along with the
blood soaked earth and sample earth were seized under
seizure list (Ext.1). The I.O (P.W.13) thereafter handed
over the charge of investigation of the case to the OIC
(P.W.14) as directed. The OIC (I.O- P.W.14), who had
already registered the case receiving the written report
from the previous I.O (P.W.13), took charge of
investigation. It was around 8 am, he received the
information that Bisu @ Biswanath succumbed to the
injuries. He (P.W.14) proceeded to the hospital and held
inquest over the dead body of Bisu @ Biswanath in
presence of witnesses and prepared the report (Ext.4) to
that effect. The dead body was sent for Post Mortem
Examination by issuing necessary requisition. The
wearing apparels of the deceased were seized being
produced by the police constable, who had accompanied
the dead body for post mortem examination under
seizure list (Ext.2). Few other incriminating articles were
seized under that seizure list. On 30.06.1998, the Circle
Inspector Sadar, Sambalpur, (P.W.15) took charge of the
Investigation. He then examined some witnesses after
visiting the spot and got the statements of one
Chaturbhuja Khamani recorded under section 164 of the
Cr.P.C. He arrested the accused persons, namely,
Gyanendra & Titu and seized their wearing apparels
under separate seizure lists and forwarded them in
custody to the Court. Other accused persons being
subsequently arrested were forwarded in custody to
Court. Seized incriminating articles were sent for
chemical examination through court.
3. Finally, on completion of investigation, Final Form
was submitted by the I.O (P.W.15) placing the accused
persons to face the trial for commission of the offence
under section 147/148/302/323/324/149 of the IPC and
section 25 of the Arms Act.
4. Learned SDJM, Sambalpur having received the
Final Form as above, took cognizance of the offence
under section 147/148/302/323/324/149 of the IPC and
section 25 of the Arms Act and after observing the
formalities, committed the case to the Court of Sessions
for trial and that is how the Trial commenced.
5. In the trial, the prosecution in total has examined
fifteen (15) witnesses. As already stated, the Informant,
who had lodged the FIR (Ext.10) is P.W.12. P.W.1 is the
younger brother of the deceased Bisu @ Biswanath
Sharma. P.W.2 is another witness, who had rushed to the
spot hearing the incident and seen the accused persons
inflicting injuries upon Bisu @ Biswanth. P.W.3 is a
witness to the seizure of incriminating articles whereas
P.W.4 is a witness to the inquest. The Doctor, who had
examined P.W.12 and one Manoj Kumar Pradhan being
projected as an injured eye witness has come to the
witness box as P.W.6. P.W.7 although had been projected
as an eye witness to the occurrence has turned hostile and
the Doctor, who had examined Shyam Sharma (P.W.1) has
come to the witness box as P.W.8. Another witness, as to
have seen the incident has been examined as P.W.9 and
P.W.10 is the Doctor, who had conducted autopsy over
the dead body of the deceased Bisu @ Biswanath. The
Scientific Officer, whose service had been requisitioned
during investigation when has been examined as P.W.11.
P.W.13 is the first Investigating Officer whereas P.W.14 &
P.W.15 are the Investigating Officers carrying out the
investigation till completion.
6. The prosecution besides leading the evidence by
examining above the witnesses, has also proved several
documents which have been admitted in evidence and
marked as Ext.1 to Ext.18. Out of those, the important are
the FIR, Ext.10, Injury Reports, Exts.5, 6 & 7 as also the
Post Mortem Report, Ext.8. The Chemical Examiner's
Report has been admitted in evidence and marked as
Ext.9. The inquest report being Ext.4, the rest are the
seizure lists and other documents prepared in course of
investigation. Few incriminating articles being produced
during trial, those have been marked as Material Objects
(M.O-I to M.O-X).
7. The plea of the accused persons is that of denial and
false implication. They however have not tendered any
evidence in support of the said defence being provided
the opportunity in that regard.
8. The Trial Court, upon examination of the evidence
of the prosecution witnesses and their analysis at its level
has held the all the charges except one under section 25 of
the Arms Act against the accused persons to have been
established. Accordingly, the accused persons stood
convicted for offence under section 147/148/302/
323/324/149 of the IPC and they have been sentenced as
aforestated.
9. At this juncture, it attracts our attention when we
find the Trial Court to have convicted the accused
persons for commission of the offence under section 147
& 148 of the IPC. The Trial Court has found the accused
persons to be the members of the unlawful assembly and
as such in prosecution of the common object of the said
assembly, they had assaulted the Informant (P.W.12) and
others and thus committed the offence of rioting being
armed with deadly weapons such as Sword, Bhujali,
Hockey sticks etc. Section 148 of the IPC being a graver
offence than the offence under section 147 of the IPC,
which is rioting without being armed with deadly
weapons and without using the same, the Trial Court
should not have again convicted the accused persons for
the offence under section 147 of the IPC. Thus, said
conviction of the accused persons under section 147 of the
IPC and the sentence imposed thereunder are liable to be
set aside.
10. Learned counsel for the Appellants (accused
persons) submitted that the present Appeal being
pursued at the instance of the two convicts, namely,
Brajen @ Brajendra Panda and Pinku @ Bikram Keshari
Chouhan, the evidence on record being properly scanned,
the Trial Court's finding as against them holding them
liable for above noted offences cannot be sustained. In
support of the same, he has invited our attention to the
evidence of all the prosecution witnesses in great detail.
He first of all submitted that the evidence of P.W.1, being
read in entirety, it would not be possible to conclude that
these accused persons namely, Brajen @ Brajendra Panda
and Pinku @ Bikram were the members of the unlawful
assembly and as such it cannot be said that they had
played any role in furtherance of the common object of
the said assembly in intentionally causing the death of
Bisu @ Biswanath or to have assaulted others. He next
submitted that the evidence of P.W.1 in respect of the role
played by accused Brajendra is not at all acceptable and
believable. Since he during investigation had not stated
anything on that score as against this accused Brajendra
before the I.O (P.W.14), which has been proved and the
same being a material contradiction, the evidence of P.W.1
implicating accused Brajendra is liable to be discarded.
He also submitted that this P.W.1 being the eye witness
does not implicate the other accused namely, Pinku @
Bikram, although he has implicated the other accused
persons as against whom the case has abated. He next
submitted that it being the prosecution case that P.W.1
was assaulted by accused Brajendra during trial, he has
not earlier stated anything about that and he has stated
before the I.O that when accused Brajendra was trying to
assault Bisu @ Biswanath, this witness, P.W.1 having
warded of the blow, he had received cut injury on his
right palm and that has been well proved through the I.O
(P.W.14). He then submitted that the evidence of P.W.2
when is to the effect that accused Gyanendra being armed
with sword was present there, he does not state accused
Gyanendra to have committed any over tact in the entire
incident, and, therefore, even if his evidence to that effect
is accepted, since that contradicts with the evidence of
P.W.1, cannot be accepted being not reconcilable and
furthermore, for mere presence of accused Gyanendra
with a sword, without being attributed with any over
tact, no criminal liability can be fastened on him.
He submitted that as per the evidence of P.W.2
when he arrived with Bisu@Biswanath in the hospital, the
Doctor had asked Bisu@Biswanath about the occurrence
and it was told by him that accused Gyanendra, Titu &
Mahadev were his assailants. According to him, when
P.W.2 does not implicate any of these two accused
persons i.e., Brajendra and Pinku @ Bikram and that is
also not stated by the Doctor concerned, the charge
against them is bound to fail. He next submitted that the
evidence of P.w.6 is not against any of these two accused
persons and so also that of P.W.7. Inviting our attention to
the evidence of P.W.9, he contended that as per his
evidence, accused Brajendra and Pinku had also
assaulted the deceased by means of sword but the
conduct of this witness P.W.9 renders his evidence highly
doubtful and suspect. He has clearly stated that he did
not inform anybody about the occurrence nor he reported
the matter to the parents of the deceased that night and
he only reported the matter to the police on the next day
and there police recorded his statement. He then
submitted that no evidence has been led by the
prosecution in proving the report that P.w.9 had given
before the police and the Case Diary reveals that he had
been examined by P.W.15 only on 28.06.1998 after more
than a month of the incident. He therefore submitted that
the evidence of P.W.9 is of no avail to the prosecution,
more particularly, in so far as these accused persons are
concerned. He submitted that P.W.12 having not stated
anything about these accused persons, his version in the
FIR cannot stand as the substantive evidence to support
the case of the prosecution as against these accused
persons. He, therefore, contended that the judgment of
conviction and order of sentence insofar as these accused
persons are concerned cannot be sustained and are liable
to be set aside.
11. Learned counsel for the State submitted that the
prosecution having proved that twenty four (24) numbers
of external injuries received by him and the evidence on
record when clearly establish that these two accused
persons had formed the unlawful assembly with others,
even though, for a moment, it is said that there is no
specific evidence as to any over tact in respect of these
two accused persons, they being very much present at the
spot, holding lethal weapons, have been rightly held
liable for commission of offence as aforestated and
accordingly, sentenced. He also invited our attention to
the deposition of the prosecution witnesses insofar as the
roles played by these accused persons are concerned and
contended that the Trial Court did commit no error in
fastening the guilt upon these accused persons under
section 148 of the IPC and section 323/324/302 with the
aid of section 149 of the IPC.
12. Keeping in view the submissions made, we have
carefully read the judgment of conviction impugned in
this Appeal. We have also gone through the depositions
of all the witnesses P.W.1 to P.W.15. We have also perused
the documents which have been admitted in evidence
and marked Ext.1 to Ext.18.
13. The death of Bisu@Biswanath as to have resulted
from the large number of ante mortem injuries received
by him was neither under challenge before the Trial Court
nor has been questioned before us. The evidence let in by
the prosecution through the Doctor, who had conducted
autopsy over the dead body of Bisu @ Biswanath i.e.
P.W.10 and also the evidence of the first I.O (P.W.13) and
the second I.O (P.W.14) as well as other witnesses, who
had seen Bisu@Biswanath lying in a seriously injured
condition clearly establish that Bisu@Biswanath met a
homicidal death.
At present, the question posed before us is whether
with the available evidence on record, the complicity of
these two accused persons namely Brajen @ Brajendra
and Pinku @ Bikram in the said incident of causing death
of Bisu@Biswanath has been proved beyond reasonable
doubt. In order to find out the answer to the same by
addressing the rival submission, we are thus called upon
to undertake the examination of the evidence of the
prosecution witnesses.
The brother of the deceased has been examined as
P.W.1. He has stated that on 28.06.1998, around 7.30 to 8
p.m, he had been to Mahaveer Chaka to take tea and
when they were about to return, they (he and Manaoj
(P.W.6)) saw accused persons (meaning the five who were
facing the trial and the other (Mahadev, dead by then) to
be standing on the road. He further states that they
abused them in filthy language and assaulted them by
giving fist blows and kicks. He further evidence is that
his elder brother Biswanth (deceased) and Gopal
(P.W.12)then were passing by the side and they
intervened asking the accused persons as to why they
were assaulting P.W.1 and P.W.6. It is stated that then
accused Gyanendra opened his shirt and asked
Biswanath to come for a fight when Biswanath expressed
his unwillingness to accept his challenge. He has further
stated that when they were about to return, accused
Titu@Srikanta(dead) brought out two swords from a
nearby house and made over one sword to accused
Gyanendra (dead) and then Titu (dead) who assaulted
the deceased and thereafter Gyanendra also assaulted
Biswanath. His further evidence is that Girindra
instigated the accused persons. Insofar as this accused
Brajendra is concerned, his evidence is that he then took
the sword from accused Titu and tried to assault the
deceased and that being warded of by this P.W.1, he
received the cut injury on his right palm. It would reveal
from the evidence of the I.O (P.W.14) that this part insofar
as implication of accused Brajendra is concerned, had not
been stated by P.W.1 during investigation before P.W.14.
Although, this P.W.1 has asserted to have stated so before
the I.O (P.W.14), the I.O (P.W.14) has stated that such was
not the version of P.W.1 before him. This P.W.1 when has
further attributed accused Gyanendra to have repeatedly
stabbed on the belly of Biswanath by sword and twisted
the sword while stabbing, that is also not the version of
Manoj (P.W.6). The evidence of P.W.6 is completely
different. He has not stated anything about the
occurrence and he being cross-examined by the
prosecution with the permission of the Court, we find no
such material to have surfaced therein in support of the
evidence of P.W.1 attributing any role to any of these two
accused persons.
Next coming to the evidence of P.W.2, we find him
to have stated in a general way that he saw accused
Gyanendra, Titu, Mahadeb to have been assaulting the
deceased; Gyanendra armed with sword, Mahadev with
hockey sticks and Titu with bhujali. He has further stated
accused Titu to have assaulted the deceased with Bhujali
on the back of his head and accused Gyanendra to have
stabbed the deceased on the belly repeatedly by means of
sword. His evidence is also to the effect that the deceased
being asked by the Doctor, had named accused
Gyanendra, Titu and Mahadeb to his assailants. Nothing
is stated about these two accused persons namely,
Brajendra and Pinku @ Bikram. Thus the evidence of
P.W.2 belies the evidence of P.W.1 that accused Brajendra
had even attempted to give a blow by means of sword on
the deceased.
Next comes the evidence of P.W.9. On a careful
reading of the entire evidence of P.W.9, we find him to
have stated to the effect that accused Brajendra and Pinku
had assaulted Biswanath by means of swords which are
not the evidence of P.W.1 and P.W.2. Furthermore, the
conduct of P.W.9 raises the eyebrows for accepting his
evidence as that of a truthful witness. He has stated to
have never informed anybody about the occurrence nor
to have reported the matter to the parents of the
deceased. Astonishingly, when he states to have reported
the matter in the Police Station on the next day, in further
asserting that the police (S.I-Suresh Das) recorded his
statement. Said S.I of Police (P.W.13) states to have
received the written report first from P.W.12 but not from
this P.W.9. P.W.13 has clearly stated to have not at all
examined P.W.9 nor to have received any oral or written
report from him (P.W.9). When it is stated by P.W.15 (I.O)
that he had examined P.W.9, Case Diary being perused
for proper appreciation, shows that this P.W.9 had been
examined by P.W.15 only on 28.06.1998 which is after
more than a month of the occurrence. There is no
explanation from the side of P.W.9 nor from the side of
the prosecution as regards such delayed examination of
P.W.9. Therefore, we find the evidence of P.W.9 to be
wholly unsafe to be relied upon. The last witness for the
prosecution is P.W.12, who is none other than the
informant himself and had lodged the FIR (Ext.10). He
has given a go-bye to the FIR version and, therefore, the
prosecution seeking permission of the Court has cross-
examined him. As regards the incident, it is his version
that, when he went to the spot and saw the gathering
Mahadeb Oram came to him and charged him and dealt
fist blows on his face. His further evidence is that
Mahadev gave a push at him for which he fell down and
then he started assaulting him. It is also his version that
Mahadev was then drunk. He further states that in order
to save himself, he ran away from the place. He has stated
nothing about any role of any other accused persons,
much less, these two accused persons, namely, Brajen@
Brajendra and Pinku@Bikram. Although, prosecution has
cross-examined P.W.12, we find no such material to have
been elicited from him during then in order to provide
any support to the case of the prosecution in attributing
any role to these accused persons.
With the evidence of the prosecution witnesses as
discussed above, we are of the considered view that the
charges against these two accused persons have not been
established beyond reasonable doubt. Accordingly, we
find the judgment of conviction and order of sentence
passed by the Trial Court insofar as these two accused
persons (Brajen@Brajendra Panda and Pinku@Bikram
Keshari Chouhan) cannot be sustained.
In the result we allow this Appeal now at the
instance of the Appellants, namely Brajen@Brajendra
Panda and Pinku@Bikram Keshari Chouhan and set aside
the judgment of conviction and order of sentence
returned by the trial court as against them.
These two accused persons being on bail, their bail
bonds shall stand cancelled.
(V. Narasingh) (D. Dash)
Judge Judge
Gitanjali
