Appeal granted to the accused due to some discrepancies in witnesses’ statement: Odisha High Court

IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.708 From the judgment and order dated 07.08.2008 passed by Shri B.N. Das learned Additional District and Sessions Judge Nayagarh in S.T. No.1506recorded JCRLA No.708 by the learned Additional District and Sessions Judge Nayagarh in S.T. No.153 of 2006with her son went to local market to purchase some articles. Suddenly the accused came to the deceased dealt blows by means of a knife and assaulted him on different parts of his body after chasing him to a distance as a result of which the deceased died at the spot. The son of the deceased went to his house and informed his motherwho went to the spot found her husband lying dead after being assaulted severely and sustaining injuries on different parts of his body. On getting reliable information the local police went to the spot in the same night found the dead body of the deceased lying in front of the house of one Kulamani Patnaik. At the spot the wife of the deceased lodged a written report basing on which the Sub Inspector of Police Itamati Out Post took up investigation after sending the report to Inspector In Charge Nayagarh Police Station Nayagarh for registration of a case. The Inspector In Charge Nayagarh Police Station Nayagarh registered Nayagarh P.S. Case No.64 of 2006 and directed the Sub Inspector of Police Itamati Out Post to continue investigation. During course of investigation the Investigating Officer held inquest over the dead body of the deceased in presence of witnesses prepared spot map sent the dead body to the District Headquarters Hospital Nayagarh for post JCRLA No.708 mortem examination seized blood stained earth and sample earth from the spot. On 05.03.2006 he seized the blood stained shirt of the deceased on production by the escort party and on 10.03.2006 arrested the accused seized his wearing apparels and recorded statement of the accused. While in police custody the accused gave recovery of the knife by which he had assaulted the deceased from a bush near the house of one Arata Khanda of the said village. The said knife was seized by the Investigating Officer he arrested the acused and subsequently forwarded the accused to the court. After receiving the post mortem examination report he made a query to the medical officer by sending the weapon of offence and obtained the final opinion of the doctor on 17.04.2006 sent the to State Forensic Science Laboratory Rasulgarh Bhubaneswar Khurda as per order of the Court and on completion of investigation he submitted charge sheet dated 10.06.2006 against the Appellant. 4. The accused faced trial and took the plea of denial and false implication with the crime. 5. In order to prove its case prosecution examined ten witnesses and relied upon documents marked as Exts. 1 to 13 and also material objects marked as M.Os.I to IV. P.Ws.4 Nirmala Behera is the wife of the deceased P.W.7 Jayant Behera is the son of the deceased P.W.9 Daitari Ghadei is the Investigating Officer P.W.10 Dr. Narmada JCRLA No.708 Sahoo conducted post mortem examination over the dead body of the deceased P.Ws.1 Kulamani Pattanaik and 5 Rajkishore Das are the eye witnesses to the occurrence. P.Ws.2 Banshidhar Mallik 3 Raghunath Jena 6 Bidyadhar Jena 8 Satyanarayan Mishra are the formal witnesses in this case. No evidence was adduced by the defence. 6. On an appraisal of evidence on record especially the narrations of the eye witnesses P.Ws.1 5 and 7 as well as the evidence of P.W.4 Informant the wife of the deceased the evidence of the Doctor who had conducted post mortem examination over the dead body of the deceased and discovery of the weapon of offence on the basis of discovery statement of the Appellant the trial court held that the prosecution has established its case beyond all reasonable doubt and convicted the Accused Appellant under Section 302 of the I.P.C. and sentenced him as stated supra. 7. Learned counsel for the Appellant submitted that the Appellant does not dispute the homicidal nature of death of the deceased. However she submitted that the evidences of the eye witnesses P.Ws.1 5 and 7 as well as the evidence of P.W.4 informant the wife of the deceased are not reliable. JCRLA No.708 Learned Additional Standing Counsel appearing on behalf of the State while supporting the impugned judgment submitted that prosecution allegations were amply established by the evidences of P.Ws.1 4 5 and 7 coupled with the evidence of P.W.10 the Doctor who conducted post mortem examination of the dead body of the deceased and gave opinion by examining the weapon of offence. Therefore he submitted that the impugned judgment of conviction and order of sentence deserve to be confirmed. To start with we examined the evidences of the eye witnesses. P.W.1 stated in his evidence that on 04.03.2006 at about 08.30 to 09.00 P.M. in the night on hearing shout of the accused and the deceased he came outside his house and found both the persons were quarrelling. Suddenly the accused dealt a knife blow on the belly of the deceased and the deceased told ‘RAJA MARIGALI MAGIHA MARIDELA’. The deceased fell down at the spot. When Raja came to rescue the deceased accused chased him to assault. Again the accused came back and assaulted the deceased on different parts of his body and chest and then the deceased died at the spot. By the time the wife of the deceased and their son were present. Raja had got his stationary shop in his house on rent. In the same night police came after receiving telephonic information. Police seized blood stained earth and sample earth in his presence. Subsequently the wearing apparels of the deceased were seized by the police in his presence. He had been examined by the Police. It is elicited from the evidence of this witness that there was no other house adjacent to his house. But apart from 7 to JCRLA No.708 8 cubits there are houses of Jogeswar Patnaik Hadia Sahoo Nabakishore Patnaik and others. All the above persons have witnessed the occurrence. The occurrence took place in the pitch dark night and one cannot see face of another. By that time there was no electric light. He deceived the suggestion that houses of the accused and the deceased were half Kilometer away from his house. He could guess from the shouting that both the accused and deceased were very violently quarrelling. When he came outside by that time the accused had already pierced the knife in the belly of the deceased. The spot is in front of the house of Amina Bai which is in front of his house intervened by ‘Danda’ having 30 to 40 feet wide. Accused dealt blows in four places on the face of the deceased and lastly to his leg. But he did not remember on which leg he had assaulted. There were injuries on the right eye nose mouth and right leg. Except above parts and belly there was no other injury on the person of the deceased. After assault the son and the wife of the deceased arrived at the spot. P.W.5 stated in his evidence that accused Bhikari murdered Jogi on 04.03.2006 at about 9.00 P.M. By that time he was in his shop. Deceased Jogi Behera and his son came to his shop to purchase some articles. After their departure from his shop suddenly Jogi came back and told ‘MARIGALI MARIGALI’ and subsequently he fell down about 20 cubits away from his shop in front of the house of Kulamani Patnaik. When he rushed to the spot he found Bhikari was assaulting repeatedly to Jogi by means of knife. When he tried to separate Bhikari he chased him to assault. Out of fear he went away. He called other villagers and JCRLA No.708 when he returned to the spot he found Jogi dead. By that time Bhikari had left the spot. This witness further stated that his dwelling house is ½ Kilometer away from the house of Kulamani Patnaik. He had got his betel shop in the house of Kulamani Patnaik. There are houses of Chandra Jethy Chhatia Behera Sathia Swain Amina Bai near the house of Kulamani Patnaik. At the time of occurrence his shop was open but there was no electric light. Adjacent places were dark. About 10 to 15 cubits away from his shop there was nalla and he heard shout of both the deceased and the accused. The said place was not visible to him from his shop. He could not say whether Jogi had taken liquor or not. He could not say whether Jogi had forcibly possessed the land of the accused. Distance of his shop from the house of Kulamani would be 10 to 15 cubits. In the eastern side of the house of Kulamani the deceased fell down. He further specifically stated that the spot where the accused was assaulting the deceased was not visible to him due to dark night but there was lightening. It is also stated that he had not marked any injury on the person of the deceased when the deceased fell down. P.W.7 is the nephew of the accused Appellant and son of the deceased. He stated in his evidence that on 04.03.2006 at 9.00 to 9.30 P.M. his father was murdered by the accused. At about 9.00 P.M. he had accompanied his father to the shop to purchase some articles and while returning on the way immediately the accused assaulted his father by means of a knife to his belly and other parts of his body. Then out of fear he went to his house and called his mother and narrated the occurrence. Then again he came to the JCRLA No.708 spot with his mother and saw the dead body of his father was lying in front of the house of Kulamani Patnaik. He further stated that they had gone to Baunsiapada Bazar to purchase articles. House of Kulamani Patnaik is at a distance of 100 to 200 cubits from the place where his father was assaulted which is in the southern side of the house of Kulamani Patnaik. It was a dark night and no electricity was there at the relevant time. Evidences of these eye witnesses clearly indicate that the Appellant is the author of the crime. P.W.4 the informant stated that her son came running and told ‘MAMI BHIKARI BABA BAPAKU MARIDELA’. When she went to the spot found the dead body of her husband lying in front of the house of Kulamani Patnaik. There were injuries on different parts of his body and severe injury on belly. Seeing the injuries she became senseless. On the same night police came to the spot and on being dictated by her her son scribed the F.I.R. Examination of the evidence of P.W.10 the Doctor who conducted post mortem examination over the dead body of the deceased reveals that the deceased was a man of strong and stout body rigor mortis present at the time of post mortem examination pale looking injury over left foreleg and eye. There was wound over right foot intestine was visible outside the abdomen. She also noticed the following injuries: JCRLA No.708 “(i) incised wound over left forehead of size 2” x 2” x 2” with fracture of left frontal bone and damaged to left eye completely ii) incised wound of size 1” x 1” x 1” over right foot.” This medical witness also opined that all the injuries are ante mortem in nature and may be caused by heavy sharp cutting weapon. Cause of death was due to injury to brain and liver. It is elicited from the cross examination of this witness that he could not say how many blows could cause the said injury. Injury no.(ii) was caused by a single blow. She had not mentioned in her report whether death was caused instantaneously or not. Most importantly she has mentioned that the intestine was visible from outside. Curiously enough she has not mentioned that she noticed any injury on the stomach of the deceased. But her opinion will not outright the evidences of the eye witnesses. 12. Thus discussions of the evidences of the eye witnesses and the Doctor who had conducted post mortem examination of the dead body of the deceased reveal that there are some discrepancies in between the medical expert opinion and the versions of the eye witnesses. Moreover there is a major discrepancy regarding seat of injuries. While all the eye witnesses stated that the accused assaulted the deceased by means of a knife on his belly no incised injury stab wound was found on the belly at the time of post mortem examination. No such injury was specifically reported in the inquest report prepared by the Investigating Officer. JCRLA No.708 13. Therefore keeping in view the aforesaid blemishes though we are not inclined to disbelieve the eye witnesses completely we think it proper to consider that as the Appellant is in custody since 10.03.2006 and in the meantime more than 15 years have elapsed the conviction of the Appellant should be converted into one culpable homicide not amounting to murder and he should be convicted under Section 304 Part I of the Penal Code. 14. Accordingly we allow the appeal in part. The conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.5 000 in default to undergo further rigorous imprisonment for six months under Section 302 of the Penal Code recorded by the learned Additional District and Sessions Judge Nayagarh in the aforesaid case against the Appellant are hereby set aside. Instead the Appellant is convicted for the offence under Section 304 Part I of the Penal Code and sentenced to undergo R.I. for the period already undergone. The period of detention already undergone by the Appellant during investigation the trial as an U.T.P. and during the pendency of the appeal is set off under Section 428 of the Code. The Appellant be set at liberty forthwith if his detention is not required in any other case. Accordingly this JCRLA is allowed in part. The T.C.Rs. be sent back to the court below forthwith. JCRLA No.708 17. As the restrictions due to resurgence of COVID 19 situation are continuing learned counsel for the parties may utilize a printout of the judgment order available in the High Court’s website at par with certified copy subject to attestation by the concerned Advocate in the manner prescribed vide Court’s Notice No.4587 dated 25th March 2020 as modified by Court’s Notice No.4798 dated 15th April 2021. Judge Savitri Ratho J. I agree. Judge Orissa High Court Cuttack Dated the 23rd July 2021 B. Jhankar JCRLA No.708 

Summary: In a criminal case, the case of the prosecution must be proved beyond reasonable doubts. But if there is some discrepancies in the statement of witnesses, the accused can be given the benefit of doubt at the discretion of the court. A Division bench comprising of Justice S.K. Mishra &amp; Justice Savitri Ratho adjudicating the matter of Bhikari Charan Das v. State of Orissa (JCRLA No.73 of 2008) dealt with an issue of whether to allow the present appeal of the Accused. In the present case, the Appellant assails his Conviction and sentence to o undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo further rigorous imprisonment for six months under Section 302 of the Indian Penal Code, 1860 by the Dist. Judge of Nayagarh. According to the prosecution on 04.03.2006 at about 9.00 P.M., the husband of the informant-Nirmala Behera with her son went to the local market to purchase some articles. Suddenly, the accused came to the deceased, dealt blows by means of a knife, and assaulted him on different parts of his body after chasing him to a distance, as a result of which, the deceased died at the spot. The son of the deceased went to his house and informed his mother (Informant), who went to the spot, found her husband lying dead after being assaulted severely and sustaining injuries on different parts of his body. On getting reliable information, the local police went to the spot in the same night, found the dead body of the deceased lying in front of the house of one Kulamani Patnaik. At the spot, the wife of the deceased lodged a written report, and an investigation was taken place. The accused was arrested on 10.03.2006 and While in police custody, the accused gave recovery of the knife by which he had assaulted the deceased, from a bush near the house of one Arata Khanda of the said village. The accused pleads denial of the charges and states that he has been falsely implicated but produced no evidence regarding such contention. It was submitted by the Appellant that the evidences of the eyewitnesses P.Ws.1, 5, and 7 as well as the evidence of P.W.4- informant, the wife of the deceased are not reliable. The Respondents stated that there is no infirmity in the impugned judgment and all the witness’s testimony is reliable.