Orissa High Court
Ramesh Chandra Acharya @ Jagannath Das @ ... vs State Of Orissa on 11 April, 2014
Author: Biswajit Mohanty
Bench: Pradip Mohanty, Biswajit Mohanty
HIGH COURT OF ORISSA: CUTTACK.
JAIL CRIMINAL APPEAL No.40 of 2004
From the judgment and order dated 25.3.2004 passed by Sri S.P.
Sarangi, Adhoc Additional District and Sessions Judge, Fast Track
Court, Nayagarh in S.T. No. 8/131 of 2003.
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Ramesh Chandra Acharya @
Jagannath Das @ Ramu ............ Appellant
-versus-
State of Orissa ............ Respondent
For Appellant : M/s. Prasanna Kumar Mishra,
Niranjan Panda and C. Behera
For Respondent : Mr. Sk. Zafarulla
Addl. Standing Counsel
P R E S E N T:
THE HON'BLE MR. JUSTICE PRADIP MOHANTY
AND
THE HON'BLE MR. JUSTICE BISWAJIT MOHANTY
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Date of Judgment: 11.04.2014
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BISWAJIT MOHANTY,J. The present Jail Criminal Appeal has been
directed against the order dated 25.3.2004 passed by the learned Ad
hoc Additional Sessions Judge, Fast Track Court, Nayagarh convicting
the appellant under Sections 302 and 307 of the I.P.C. and sentencing
him to undergo R.I. for life for the offence under Section 302 of the
I.P.C. and R.I. for 5 years for the offence under Section 307 of the
I.P.C. Learned Ad hoc Additional Sessions Judge has further directed
2
that both the sentences are to run concurrently in S.T. Case No.8/131
of 2003.
2. The prosecution case in brief is that the deceased Janaki
Ballav Patnaik with the help of local villagers established a temple in
village Tavapalli installing deity Lord Jagannath. A Committee was
formed for managing the affairs of the temple. The deceased along with
many others of the village were the members of the Managing
Committee. P.W.10 (Lalit Narayan Mishra) was appointed to do Seva
Puja of the Deity. About 8 months prior to the occurrence, the
appellant had joined as 'Babaji' of the temple and was staying in a
thatched house near the temple. Six months prior to the occurrence,
Sadasiva Kar came there and stayed with the appellant in the said
thatched house. Sarbeswar also used to visit both of them. Sarbeswar
Brahma, Sadasiva Kar and the appellant started making plans for
removing Lalit Narayan Mishra (P.W.10). One day while Surya Narayan
Mishra (P.W.5), the other Pujaka was preparing Bhog, the appellant
came to the spot with a stick and Sadasiva Kar threw away the Dal
Bhog. It may be noted here that P.W.10 is the son of P.W.5. Further,
Sadasiva Kar threatened both the father and son with dire
consequences. After this incident, Surya Narayan Mishra (P.W.5)
represented to P.W.4 about the incident. In order to discuss all these
things, a meeting was convened on 29.9.2002. Around 2 P.M. while the
members of the Managing Committee including deceased Janaki Ballav
Patnaik and Nikunja Patnaik were sitting in front of the temple,
3
suddenly the appellant emerged from inside the temple holding a Gupti
(M.O.I) and saying "Jay Sri Ram" stabbed Janaki Ballav Pattnaik
(deceased) on his chest by the said Gupti and thereafter, he pulled out
the Gupti and tried to stab Nikunja Patnaik (P.W.12). When P.W.12
caught hold of the Gupti, he sustained injuries on his both palms.
Thereafter, the appellant again dealt a blow by the Gupti on him and
stabbed P.W.12 on his shoulder for which P.W.12 sustained injuries.
Extricating himself out of fear, P.W.12 started running towards the
village. At this, the appellant chased P.W.12 for a short distance and
then immediately rushed back to the front of the temple where
deceased Janaki Ballav Patnaik was lying injured and again repeatedly
stabbed Janaki Ballav Patnaik at his belly, chest and neck for which
Janaki Ballav Patnaik died at the spot. At this, Balabhadra Mandal
(P.W.2) raised hullah and many villagers of Tavapalli arrived at the
spot. Seeing them, the appellant entered into the temple with Gupti
and kept the Gupti inside the temple. Subsequently the son of the
deceased (P.W.1) got the F.I.R. drafted through P.W.8 under Ext.1 and
presented it at the police station which resulted in investigation and
finally police filed charge sheet against the appellant and two others,
namely Sarbeswar and Sadasiva. The appellant and two others pleaded
not guilty to the charges and accordingly, the trial ensued.
3. Prosecution in order to prove the charges examined 16
witnesses including two doctors and investigating officers and
exhibited 15 documents. The defence examined none. Under Section
4
313 Cr.P.C. the appellant admitted that the deceased had constructed
the temple with the help of villagers of Tavapalli and P.W.5 and P.W.10
were doing Sevapuja of the said Deity. The appellant admitted that the
appellant was brought by the deceased to the said temple and he was
staying in the thatched room situated close to the temple. The
appellant also admitted that the other two co-accused were staying
with him, but stated that they have never used to consume Ganja. The
rest of the questions put to the appellant in his examination under
Section 313 Cr.P.C. were denied by him. On completion of trial, the
appellant was found guilty for commission of offences punishable
under Sections 302 and 307 of the I.P.C. by the learned trial court.
However, two other accused, namely, Sadasiva Das @ Kar and
Sarbeswar Bramha were held not guilty and accordingly were
acquitted.
4. Mr. N. Panda, learned counsel for the appellant submitted
that the learned court below had gone wrong in convicting the
appellant under Sections 307 and 302 of the I.P.C. for the following
reasons. Firstly, according to him there existed material contradictions
in the evidence of the eye-witnesses like P.Ws.1,2,3,5 and 12.
Secondly, he submitted that the prosecution had nowhere been able to
prove that the appellant had any ill-intention towards the deceased,
thus motive for committing crime has not been proved. Thirdly, he
submitted that in absence of human blood in the weapon offence
marked as M.O.I, it could not be said that M.O.I was used by the
5
appellant in causing death of Janaki Ballav Patnaik. Fourthly, he
submitted that the learned court below had not taken into account the
evidence of P.W.16, the Investigating Officer, whose evidence
completely negatived in the evidence of other eye-witnesses. Fifthly, he
submitted that the seizure of weapon of offence (M.O.I) having not been
proved in a positive manner, such seizure became doubtful. He also
highlighted about non-production of M.O.I soon after the occurrence
before the Magistrate. He submitted that the evidence of P.W.1
(informant) should have been discarded by the learned court below as
his evidence had not been corroborated by other eye-witnesses.
According to him, P.W.1 was not an eye-witness at all. The learned
counsel for appellant relied on decisions reported in 2012 (II) OLR
(S.C.) 879 (Dayal Singh and others -v- State of Uttaranchal, 2012
(I) OLR 652 (Sonia Muduli -v- State of Orissa), 2011 (1) ILR-
Cuttack 65 (Madan Mohanta -v- State of Orissa and 2011 (11)
ILR-Cuttack 460 (Srikanta Pattanaik -v- State).
5. Mr. Zafarulla, learned Addl. Standing Counsel for the State
vehemently defended the judgment of the learned court below and
contended that the evidence of eye-witnesses like P.Ws.2, 4 and 12
corroborated each other with regard to core prosecution story. Further,
their evidence was corroborated by the Doctors P.W.6 and P.W.14.
Further, he submitted that as per Chemical Examination Report under
Ext.15, M.O.I and earth stained with human blood had been found.
Accordingly, he submitted that the appellant had been rightly
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convicted by the learned court below and the said judgment did not
require interference by this Court.
Perused the L.C.R.
6. P.W.1 in his examination-in-chief has stated that his
father established the temple in question and P.Ws.5 and 10 were
'Pujakas' in the said temple. Eight months before the date of
occurrence i.e. 29.9.2002, his deceased father had kept the appellant
in the said temple to look after the affairs of the Deity. Later on
Sadasiva came there and stayed in the temple with the appellant in a
thatched house close to the temple. Sarbeswar Bramha used to
frequently visit both the above noted persons and all the accused
persons used to consume Ganja everyday. As all the above persons
used to consume Ganja and disturbing the Sevapuja of the Deity,
P.W.5 and P.W.10 objected to the same and reported the matter to his
deceased father. On account of this, the above three persons including
the appellant bore grudge against them and threatened to kill both of
them. Accordingly, they reported this matter to the temple
Management Committee. Brajabandhu Behera (P.W.4) was the
President of the said Committee. The deceased and P.W.12, who
happens to be the injured witness were also the members of the said
Committee. It was decided that all the members of the Committee
would meet at 2.00 P.M. on 29.9.2002 in the temple premises. On
29.9.2002around 2.00 P.M. the members of the Committee like P.Ws.2, 3, 4, 9 and 12 along with others which included the deceased 7 had gathered at the temple. P.W.1 also had gone to attend the meeting. While the above noted persons were sitting in front of the temple, P.W.1 along with P.W.5 and P.W.10 were standing at a distance of 10 to 15 cubits and were talking with each other. Suddenly, the appellant emerged from inside the temple with a big Gupti saying "JAY SRIRAM"
and stabbed the deceased on his chest with force. After pulling it out with the same Gupti the appellant assaulted P.W.12. While assaulting P.W.12, P.W.12 caught hold of the Gupti but the appellant again pulled it and while tried to stab on his neck P.W.12 warded off the Gupti but the same hit his shoulder. At this P.W.12 ran away out of fear and then the appellant chased P.W.12 shouting to kill him. But as the appellant could not get him, he returned and again stabbed the deceased by the Gupti on his neck, chest and belly. He dealt three blows to the belly repeatedly. The other two persons, namely, Sadasiva Kar and Sarbeswar Bramha were asking the appellant to completely finish the deceased. The members of the Committee, who were present at the time of occurrence being afraid of the conduct of the appellant, ran away. When P.W.2, who was also present at the spot started shouting, villagers came with lathi and seeing them the appellant entered inside the temple with Gupti and other two persons fled away. The villagers then guarded the temple and tied the appellant with the help of a rope. The father of P.W.1 died at the spot. On the instruction of P.W.1, P.W.8 scribed the F.I.R and read it over to P.W.1 and thereafter P.W.1 signed on it. Ext.1 was that F.I.R. According to P.W.1 8 thereafter police came to the spot and held inquest over the dead body in his presence and in presence of other witnesses and prepared the report as Ext.2. P.W.1 stated that M.O.I was the Gupti in which the appellant stabbed his father. In cross-examination, P.W.1 made it clear that P.W.12 was no way related to them but he was a friend of his deceased father. He also stated that prior to the date of occurrence his father had no good relation with the appellant and two other accused persons. In his cross-examination, he also stated that he had seen the appellant stabbing his father with Gupti. While the appellant stabbed P.W.12, the other members of the Committee out of fear ran in all directions. On return after chasing P.W.12, the appellant again successively dealt five blows on the deceased by the Gupti. At this P.W.2 shouted calling the villagers and only at that time, the appellant left his father and entered into the temple. The villagers then brought out the appellant from the temple and tied him and the Gupti was lying inside the temple. P.W.16 in his cross-examination had stated that P.W.1 had not stated before him that he heard Sarbeswar saying the appellant to completely finish Janaki Ballav Patnaik otherwise he would put them into trouble if he was left alive. P.W.16 had also stated in his cross-examination that P.W.1 did not state before him that P.W.2 raised hullah and villagers of Tavapalli arrived at the spot being armed with lathi and seeing them the appellant entered inside the temple. P.W.16 also stated that P.W.1 did not state before him that all the accused persons used to consume Ganja and disturb the Sevapuja 9 for which P.W.5 and P.W.10 reported the matter in writing and for that the appellant along with two other accused bore grudge and threatened to kill them.
P.W.2 in his examination-in-chief has stated that the occurrence took place on 29.9.2002 at 2.00 P.M. Deceased Janaki Ballav Patnaik had constructed the said temple with the help of many villagers and had formed a Committee for its Management. Eight months prior to the date of occurrence, the deceased Janaki had kept the appellant in the temple to look after the affairs of the deity. Thereafter, the appellant kept Sadasiva, co-accused in the temple. P.Ws.5 and 10 were performing the Puja of the deity. One day on the written allegation of P.Ws.5 and 10, P.W.4 called a meeting of the members. The meeting was decided to be held on 29.9.2002 at 2.00 P.M. in the temple. Accordingly, he along with P.Ws.3,4,9 and 12 and others were sitting in front of the temple, but suddenly the appellant emerged from inside the temple holding a Gupti and saying "JAY SRIRAM" stabbed Janaki Ballav Patnaik (deceased) on the chest by the said Gupti. He then pulled out the said Gupti and when he tried to stab P.W.12, who was sitting by the side of Janaki, P.W.12 caught hold of the Gupti as a result of which he sustained bleeding injuries. Thereafter, the appellant again pulled the Gupti and stabbed him at his shoulder. At this P.W.12 panicked and ran away from the spot but the appellant chased him for further assault. Other members including P.W.2 out of fear, ran away from the spot but stood at a distance. The 10 Appellant after chasing P.W.12 for about 300 cubits returned to the spot and again stabbed Janaki on his neck, chest and belly successively for 6 times after which the deceased died at the spot. At this he (P.W.2) raised hullah and many villagers arrived at the spot. Seeing them the appellant entered into the temple with the Gupti. When many villagers called the appellant, he came out keeping the Gupti inside the temple. Then P.W.2 along with others tied the appellant with a rope. Thereafter, the police came and held inquest over the dead body of the deceased and prepared an inquest report under Ext.2. P.W.2 clearly identified that M.O.I was the Gupti in which the appellant assaulted the deceased. In his cross-examination, P.W.2 stated that except P.Ws.1 and 7 none others of village Tavapalli were present at the spot. Later on in the cross-examination P.W.2 had stated that except the members, who were sitting like P.Ws.3,4,9, 12 and others as stated by him in his examination-in-chief, none has seen the occurrence. In his cross-examination he had also stated that subsequently he heard that P.W.7 and P.W.1 came to the place of occurrence and that P.W.I reached the spot about 1½ hour of arrival of the police at the spot. A conjoint reading of the above would show that there is little inexactitude in recording the cross-examination of P.W.2. In view of the later statements of P.W.2 in his cross-examination, the first sentence of his cross-examination has to be read as that except P.W.7 and P.W.1, others of Tavapalli were present at the spot. P.W.2 has also stated that when for the second time the appellant stabbed 11 the deceased after his return from chasing P.W.12, he pushed down the deceased and stabbed him. He had seen three stabs on the belly of the deceased. He had seen two stab injuries on the chest and one on the neck of the deceased. Within ½ an hour of the occurrence police arrived at the spot. When police came and asked the appellant as to where he had kept the Gupti, the appellant told them to have kept the same inside the temple and then police and some villagers went inside the temple and brought the Gupti. The Gupti which police brought was stained with blood. In his cross-examination he further stated that the sons of the deceased came to the spot around two hours after the police arrived and then he did not know the sons of the deceased. But by now he knew them. P.W.2 in his cross-examination specifically stated that he could identify M.O.I because of its handle which was made of Sisu. With regard to the evidence of P.W.2, P.W.16 stated that P.W.2 did not state before him that he raised hullah thereafter some villagers came and tied the appellant.
P.W.3 in his examination-in-chief reiterated the version as narrated by P.W.1 and P.W.2. However, in his cross-examination he has stated that he was not examined by the police and for the first time he was deposing before the Court.
P.W.4 in his examination-in-chief has stated that he was the President of the Managing Committee of the said temple. Deceased Janaki Ballav Patnaik and injured Nikunja Patnaik (P.W.12) were also the members of the Managing Committee. P.W.5 and P.W.10 were the 12 Pujakas of the said temple. About 8 months before the occurrence deceased Janaki Patnaik brought the appellant to look after the temple affairs and the appellant was staying in a thatched house close to the temple. Accused Sadasiva also stayed with Ramesh in that thatched house. As accused Sarbeswar Bramha prevented P.W.5 from preparing Bhog of the deity, he had complained against him in writing. On receipt of the application he noticed all the members of the Managing Committee to gather at the temple at 2.00 P.M. on the date of occurrence. Accordingly, P.W.4 himself along with P.Ws.2,3,9 and 12 and other members gathered at the temple and were sitting in front of it. P.W.5 and P.W.7 were coming to join them. While they were so sitting, the appellant suddenly emerged from inside the temple holding a knife and saying "JAY SRIRAM" stabbed the chest of the deceased. But after pulling the knife, when the appellant tried to stab P.W.12 he caught hold of the said knife for which he had sustained injuries on his palm. But the appellant again stabbed P.W.12 with that knife on his shoulder for which he ran away. Seeing this he (P.W.4) and other members started running in all directions. The appellant after chasing a distance of about 50 meters again returned and repeatedly stabbed the deceased by the said knife for which he died at the spot. After returning from the chase, the appellant dealt three stabs on the belly of Janaki Ballav Patnaik and one stab at his throat. The appellant also stabbed at the chest. At that time P.W.2 was shouting and calling the villagers. Accused Sadasiva was standing at the place of occurrence. 13 The appellant stabbed Nikunja and the injured P.W.12 by the knife marked as M.O.I. In his cross-examination P.W.4 stated that the appellant had brought the knife concealing the same under the napkin which he was holding. Though he initially stated that he was never examined by the police during investigation, however, later he stated that the police examined him at the police station and he identified M.O.I from a red spot on its handle. He denied a suggestion to the effect that he had not stated to the I.O. that he saw Sarbeswar Bramha at the time of occurrence and even prior to that. However, P.W.16 in his cross-examination had stated that P.W.4 had not stated before him that he saw accused Sarbeswar Bramha at the time of occurrence or even prior to the occurrence.
P.W.5 in his examination-in-chief has stated that he was the Pujaka of the temple being so engaged by the deceased and the Managing Committee of the temple. He used to cook Bhog for the deity and do Sevapuja and the appellant was staying in a thatched house near the temple. Subsequently, the accused Sadasiva came and stayed with him and Sarbeswar Bramha also used to come there. One day while he (P.W.5) was cooking Bhog appellant came with other two and challenged him (P.W.5) as to why he was taking Bhog to his house and asked him to leave the place. Then accused Sadasiva threw away the 'Dal' Bhog. When he (P.W.5) asked for his arrear remuneration accused Sarbeswar Bramha told him that he would pay the same but asked him to vacate the place immediately. P.W.5 also stated that around 8 14 days before the occurrence one day while he was sitting with P.W.12 accused Sarbeswar Bramha came to his house and threatened to kill him and P.W.10 if they would attend the meeting held on 29.9.2002. On 29.9.2002 around 1.00 P.M. P.Ws.1,2,3,4 and 7 along with others had gathered at the temple. At that point of time the appellant was inside the temple. At that time P.W.5 and P.W.1 were talking, standing on the road, which was about 20 to 30 cubits from the temple and P.W.7 was standing around 10 cubits away from the place where P.W.5 and P.W.1 were standing. He (P.W.5) saw the appellant came from the temple wearing a white napkin and suddenly stabbed Janaki Ballav Patnaik by a knife at his chest. When he attempted to stab P.W.12, P.W.12 caught hold of the knife and sustained injuries on the palm. The appellant also stabbed the right side chest of P.W.12 and out of fear P.W.12 ran away. The appellant chased P.W.12 with the knife and when P.W.12 ran and entered into the house of a person, the appellant returned and at that time the other two accused persons asked the appellant to finish Janaki Ballav Patnaik. At this the appellant successively dealt three stabs on the belly, one stab on the chest and one at the neck, as a result of which Janaki died at the spot. In his cross-examination he had stated that he had witnessed the entire occurrence standing at the place where he was talking with P.W.1. With regard to the evidence of P.W.5, P.W.16 had stated that P.W.5 had not stated before him that about 8 days prior to the date of occurrence accused Sarbeswar Brahma came near the house and 15 threatened him and at that point of time P.W.12 was present. P.W.16 in his cross-examination also stated that P.W.5 did not state before him that he was standing with P.W.1 at the time of occurrence at a distance of 20 feet from the spot and at that time P.W.7 was standing 10 feet ahead of them. P.W.16 also made it clear that P.W.5 did not state before him that he had seen accused Sadasiva and Sarbeswar in the thatched house situated close to the temple and that Sarbeswar asking the appellant to completely finish Janaki Ballav Patnaik.
P.W.6 is the doctor, who examined P.W.12. He gave the following finding.
1. Incised wound 1"x1/2x/1/2" on the middle phalanx of left middle and index finger.
2. Incised wound of 2"x1/4"x1/8" over the base of middle, index and ring finger.
3. Incised wound of ½"x1/4"x1/6" over the left side shoulder.
He also made it clear that all the injuries were simple in nature and were probably caused by sharp cutting weapon and those injuries were possible by M.O.I. In his cross-examination P.W.6 admitted that all these injuries could not cause the death of a person either conjointly or independently and that M.O.I was not produced before him.
P.W.7 in his examination-in-chief has stated that the occurrence took place on 29.9.2002 at about 2.00 P.M. in front of the Jagannath temple of village Tavapalli. With the help of villagers the deceased had constructed the temple and installed the Deity. P.W.5 and his son Lalit Narayan Mishra (P.W.10) were performing Sevapuja 16 of the Deity. The appellant was brought to the temple by Janaki Ballav Patnaik about 8 months prior to the date of occurrence. Few months thereafter accused Sadasiva came and stayed with appellant. Both of them were staying in a thatched house closed to the temple. Sarbeswar Bramha used to visit them. All these three persons conspired to remove P.W.5 and planned to do Sevapuja and enjoy the benefit. One day as the accused persons threw away the 'Dal' Bhog, which was being cooked by P.W.5, P.W.5 lodged a written complaint against the accused persons. Accordingly, Brajabandhu Behera (P.W.4) called a meeting of all the members and decided to meet at 2.00 P.M. of 29.9.2002 in front of the Jagannath temple. He (P.W.7) was one of the members of the Managing Committee and on 29.9.2002 at 2.00 P.M. he was going to attend the said meeting and saw P.Ws.2,3,4,12 and others members sitting in front of the temple. Then he saw appellant suddenly emerged from inside the temple and jumped to the centre where all the above members were sitting and saying "JAY SRIRAM", stabbed Janaki Ballav Patnaik with a Gupti on his chest and after pulling it out tried to assault P.W.12 which P.W.12 caught hold of and as a result he sustained injuries on his palm. But again the appellant dealt a blow by the said Gupti on his shoulder. Thereafter, P.W.12 out of fear ran away towards Tavapalli village. But the appellant chased him to a distance of 100 cubits and then returned running to the place where meeting was held and again stabbed Janaki Ballav Patnaik by the said Gupti on his belly, chest and neck for total five times. In his 17 cross-examination, he has stated that he saw the incident standing at a distance of 100 feet but could not venture to go to the meeting place. After appellant chased P.W.12, he (P.W.7) shifted to a place which was about 25 feet away from the place where he was standing and saw the incident of second assault on Janaki Ballav Patnaik from that place. As accused Sarbeswar Bramha was abusing Janaki Ballav Patnaik on the village danda, he could know that the accused persons were conspiring to remove P.W.5 from the temple. He (P.W.7) admitted that he called Janaki Ballav Patnaik as "Bapa" out of respect. With regard to the evidence of P.W.7, P.W.16 stated in his cross-examination that he did not state before him to have heard accused Sarbeswar Brahma saying the appellant to completely finish Janaki Patnaik.
P.W.8 is the witness, who scribed Ext.1. In his examination-in-chief he has stated that after preparing the report he read it over to P.W.1, who thereafter signed in his presence. He proved the F.I.R. under Ext.1. In his cross-examination he has stated that he did not know P.W.1 prior to the date of writing Ext.1 (F.I.R.). He denied a suggestion that he did not draft Ext.1 as per the instruction of P.W.1.
P.W.9 in his examination-in-chief has admitted the presence of P.Ws.2,3,4 and 12 along with others in front of the temple. He also stated that the appellant came out of the temple and stabbed Janaki on his stomach. Thereafter, appellant also dealt blows to P.W.12 on his shoulder whereafter P.W.12 ran away towards the village. Later he came to know about the death of the deceased. In his 18 cross-examination he stated that he had never seen accused Ramesh prior to giving evidence.
P.W.10 in his examination-in-chief has stated that his father (P.W.5) and he himself used to look after the Sevapuja of the deity Jagannath installed by the deceased Janaki Patnaik with the help of other villagers. On 17.6.2002 while he was performing Arati of the Deity and P.W.5 was cooking Bhog, accused persons came and told him that he could not perform Sevapuja and asked him to leave the temple. All the accused persons intended to perform Sevapuja after driving them out. He (P.W.10) reported the matter to P.W.4, who was the President of the Managing Committee and on 29.9.2002 at about
2.00 P.M. meeting was decided to be held in front of the temple and about 9 members had gathered there. He (P.W.10) was sitting on the varanda which was in front of the temple. There he saw P.W.12 running being chased by the appellant who was holding a long knife. After chasing, the appellant returned and dealt stab by the said knife to the deceased. He stabbed the belly, chest and neck repeatedly. In his cross-examination he stated that all along the appellant was holding the knife which was stained with blood. However, he also stated that whatever he had stated in the Court, was being stated by him for the first time and he was never examined by the police.
P.W.11 proved the inquest report.
P.W.12 is the injured eye-witness. In his examination-in- chief he has stated that he knew all the accused persons and the 19 deceased, who was killed on 29.9.2002 in front of the temple of Deity Jagannath of village Tavapalli. Three years prior to the date of occurrence, Janaki Patnaik had installed deity Jagannath in a temple with the help of the villagers of Tavapalli. A committee for the management of the Deity was constituted of which P.W.4 was the President. The deceased Janaki and he himself were the members of the Committee. P.W.10 used to do Sevapuja of the Deity. The deceased Janaki Patnaik had brought accused Ramesh Patnaik to the temple about 8 months prior to the date of occurrence. The other accused Sadasiva came 2 months thereafter and stayed with the appellant in a thatched room closed to the temple. On 17.6.2002 all the accused persons obstructed Lalit Narayan Mishra (P.W.10) and his father from doing Sevapuja. At this P.W.5 lodged a written complaint before the President of the Committee, who called the members of the management to meet on 29.9.2002 at 2.00 P.M. in front of the temple. On 5.9.2002 while P.W.12 was sitting with Suryanarayan, Sarbeswar Brahma came and threatened Suryanarayan (P.W.5) to kill him and his son. He also threatened Janaki Patnaik to kill him if he allowed them to do Sevapuja. Again on 11.9.2002 while deceased was cleaning the front of the temple, appellant came to the spot along with Sadasiva and threatened Janaki Patnaik to kill him if he again came to the temple. On 29.9.2002 at about 2.00 P.M. while he himself along with others namely, P.Ws.2,3,4,9, Yudhistira Pradhan, Ashok Panda and Radhakant Dash were sitting in front of the temple, Sadasiva and 20 Sarbeswar were inside the thatched room close to the temple and the appellant was inside the temple. He was sitting to the left of Janaki Ballav Patnaik. Suddenly, appellant emerged from the temple and stabbed Janaki by a Gupti on his chest. When he shouted, accused pulled out Gupti from the chest of Janaki and stabbed him, but he caught hold of the Gupti as a result of which he sustained injuries on his palm. The appellant pulled out the Gupti and again stabbed him aiming at his chest but as he shifted, it hit his shoulder for which he sustained injury. After the assault he escaped and started running towards Tavapalli village. But the appellant chased him up to a distance and then he returned to the place of meeting. When he (P.W.12) looked back, he saw appellant dealing stabs repeatedly by the Gupti on the belly, chest and neck of Janaki (deceased). P.W.2 then shouted for help. At this he (P.W.12) again returned to the place of occurrence. He heard Sadasiva and Sarbeswar telling accused appellant to completely finish Janaki Patnaik (deceased) as he would trouble them if he was left alive. Thereafter, many villagers went to the spot and by then Janaki Patnaik was dead. As he (P.W.12) sustained severe bleeding injuries, he was sent by the police to the hospital for treatment. He identified M.O.I with which, the appellant stabbed the deceased and himself. He stated that M.O.V was his blood stained shirt. In his cross-examination he stated that he knew deceased Janaki Ballav Patnaik since 30 years and respected him as elder brother, though the deceased was in no way related to him. Janaki Ballav 21 Patnaik alone had called the appellant to perform a Saptanga Puja. P.W.5 was appointed by the committee to perform Sevapuja of the Deity. Surya Narayan Mishra filed written complaint against the accused persons concerning a dispute. He also stated that P.W.3 was present when Sarbeswar Brahma threatened P.W.5 and Janaki Ballav Patnaik to kill them. The incident was also to be taken up in the meeting scheduled to be held on the date of occurrence. While the appellant emerged from the temple, he had concealed the Gupti under a Chadar. He also stated in his cross-examination that he saw the appellant stabbing the deceased after returning from the chase and he saw all these things standing at a distance of 40 to 50 feet. With regard to the evidence of P.W.12, P.W.16 in his cross-examination has stated that P.W.12 never stated before him that he saw accused Sarbeswar Bramha inside the thatched room at the time of occurrence and that he heard accused Sadasiva and Sarbeswar asking the appellant to completely finish Janaki Ballav Patnaik.
P.W.13 has proved the seizure of Gupti (M.O.I) in his presence and preparation of seizure list under Ext.4. In his examination-in-chief he stated that the police seized blood stained earth and sample earth. Ext.5 was the seizure list and Ext.5/2 was his signature. The police also seized blood stained shirt and Ganjee of P.W.12 in his presence and prepared the seizure list under Ext.6. In his cross-examination, he stated that the police showed him the knife in front of the temple and seized the same. He further stated that the 22 knife was lying at the back of the Deity from where the police brought it.
P.W.14 is the doctor, who conducted the post mortem examination and proved the post mortem report as Ext.9. In course of conducting post mortem examination, he found the following injuries on the deceased.
"1. One stab injury on the neck which pierced from front to Back size ½"x1/2".
2. Stab injury on the chest pierced deep to thorax bleeding clotted in thorax.
3. One stab injury on the left side of chest which pierced through heart and lungs, bleeding clotted on the thorax.
4. Three stab injuries in abdomen in different locations pierced to stomach and bleeding clotted. Stomach also contains half digested food".
Further, in his examination-in-chief he stated that the heart was pierced and he also found one of the lungs was pierced and visceras were congested and all the injuries were ante mortem in nature. He stated that the death was due to stab injuries and due to shock and heavy bleeding. Time since death was within 24 hours. He further stated that all the injuries he found on the person of the dead body could be caused by a weapon like M.O.I. In his cross- examination, he stated that six stab injuries could only be caused if six different blows were dealt. If a person was stabbed at the neck from the back side injury no.1 was possible and all the three stab injuries which he noticed on the abdomen were not possible by a single blow. 23 Thus, it is clear that in the cross-examination the evidence of doctor (P.W.14) has remained un-demolished.
P.W.15 was a police constable attached to Mahipur Out Post under Nuagaon Police Station, who escorted the dead body of Janaki Ballav Patnaik for post mortem examination to Nayagarh District Headquarters hospital. After post mortem was over, he produced the blood stained wearing apparels of the deceased together with H.M.T. watch, steel ring and one Tulasi Mali along with command certificate before the O.I.C., who seized those in his presence and prepared seizure list under Ext.11.
P.W.16 in his examination-in-chief has stated that on 29.9.2002 he was the O.I.C., Nuagaon Police Station. On that day at 3.10 P.M. he registered P.S. Case No.64 of 2002 on the report of P.W.1 and took up investigation. During investigation he saw the dead body of Janaki Ballav Patnaik lying at the spot and held inquest over the dead body in presence of witnesses. He immediately sent P.W.12 for his medical examination to Distict Headquarters hospital, Nayagarh. He also seized sample blood stained earth from the spot under seizure list Ext.5. He sent the dead body of the deceased for post mortem. On the same day i.e. on 29.9.2002 he also seized the blood stained check shirt and Ganjee of injured P.W.12 under seizure list Ext.6. On 30.9.2002 he arrested all the accused persons including appellant. The appellant while in custody, confessed his guilt in presence of the witnesses and disclosed to have concealed the Gupti on the back side of the Deity 24 Jagannath. He recorded his statement and proceeded to the temple with witnesses and recovered the Gupti from the back side of the deity under seizure list Ext.4. Ext.4 was witnessed by P.Ws.2 and 13. On the same day at about 7.30 P.M. he forwarded the appellant for his medical examination. He also seized the wearing apparels of the deceased after the post mortem examination was over along with the command certificate issued to the constable who accompanied the dead body, under seizure list Ext.11. On 1.10.2002 he forwarded the appellant along with other accused persons to Court. He also examined the witnesses and during spot visit he had taken photograph of the spot. On 5.10.2002 he seized xerox copy of the notice requesting the members to attend the meeting. The xerox copy of application of P.W.10 and an invitation card and the photographs of deceased Janaki Ballav Patnaik were seized under seizure list Ext.13. On 28.10.2002 he received the injury report of the injured Nikunja Kishore Patnaik (P.W.12). On 18.11.2002 he received the opinion of the doctor under Ext.10. On 7.1.2003, he forwarded the blood stained earth, sample earth, Gupti, the wearing apparels of the deceased for their chemical examination to S.F.S.L. through S.D.J.M., Nayagarh. Ext.15 is the Chemical Examination Report. On 21.3.2003 on completion of investigation he submitted charge sheet against all the accused persons. In his examination-in-chief he made it clear that M.O.I was the Gupti which he had seized during investigation. M.O.II and M.O.III were the pant and shirt stained with blood. M.O.IV and M.O.V were the 25 shirt and Ganjee belonging to injured. M.O.VI was the diary belonging to the deceased. In his cross-examination he pointed out that he received Ext.1 only at P.S. which was not scribed in his presence. However, immediately thereafter he examined the complainant at the P.S. On his arrival at the spot, he saw three to four persons and they were P.Ws.2, 7 and 12. P.W.1 had accompanied him to the spot. The dead body was lying in front of the temple. He did not notice the accused persons at the spot. He arrested the appellant on 30.9.2002 at 4.00 P.M. He had not seen the appellant earlier. He arrested him inside Maichheli forest, where he had concealed himself. At the time of arrest inside Maichheli jungle being interrogated the appellant Ramesh stated to have concealed the weapon of offence (M.O.I) on the back side of Deity Jagannath temple and from that place he led him to the spot and gave recovery of M.O.I. stained with blood. He stated in his cross- examination that he had kept M.O.I in a sealed cover but he did not mention it in his diary. P.W.2 and P.W.13 were also present with him inside Maichheli jungle when the appellant told him about concealment of the M.O.I. He seized the Gupti (M.O.I) which was stained with blood. Even though he seized M.O.I on 30.9.2002, he forwarded the same to the doctor for its medical opinion on 8.11.2002 i.e. the date on which he received the post mortem report and M.O.I was all along with him at the police Malkhana. He kept M.O.I in a sealed cover. He further stated that he kept M.O.I after its seizure under his personal seal. He pointed out in his cross-examination that 26 P.W.1 had not stated before him to have gone to village Tavapalli with the deceased Janaki Patnaik and that he was standing with P.W.5 and P.W.10 about 10 to 15 cubits from the place where his father and others were sitting and that he heard Sarbeswar saying to the appellant to finish the deceased otherwise he would put them into trouble if he is left alive. P.W.16 also stated that P.W.1 did not state before him that when P.W.2 raised hullah, villagers of Tavapalli arrived at the spot being armed with lathis etc. and seeing them the appellant entered inside the temple while other two accused fled and that the villagers caught hold of the appellant and tied him in a rope. He further stated that P.W.1 did not state before him that all the accused persons used to consume Ganja and disturb in the Sevapuja, for which P.W.5 and his son Lalita (P.W.10) reported the matter in writing and for that the appellant and other accused persons bore grudge and threatened them to kill for which they had stopped coming to the temple. With regard to P.W.2, P.W.16 stated that he did not state before him that he raised hullah and thereafter some villagers came and tied the appellant. With regard to P.W.4, P.W.16 stated that P.W.4 had not stated before him to have presented a report against the accused Sarbeswar Brahma and that he saw accused Sarbeswar Brahma at the time of occurrence or even prior to the occurrence. With regard to P.W.5, P.W.16 stated that P.W.5 had not stated before him that 8 days prior to the date of occurrence accused Sarbeswar Brahma came and threatened him coming to his house and at that time P.W.12 27 was present. Further, P.W.5 did not state before him that he was standing with P.W.1 at the time of occurrence at a distance of 20 feet from the spot and at that time P.W.7 was standing 10 feet ahead of them. P.W.5 never stated before P.W.16 to have seen accused Sadasiva and Sarbeswar in the thatched house situated close to the temple and that Sarbeswar asking the appellant to completely finish Janaki Patnaik. With regard to P.W.7, P.W.16 in his cross-examination stated that P.W.7 did not state before him to have heard accused Sarbeswar saying the appellant to completely finish Janaki Patnaik. With regard to P.W.12, P.W.16 deposed that P.W.12 did not state before him that he saw accused Sarbeswar Brahma inside the thatched room at the time of occurrence and that he heard accused Sadasiva and Sarbeswar asking the appellant to completely finish Janaki Patnaik. P.W.16 denied the suggestions that he had not examined the eye-witnesses in the case and the appellant never led him and witnesses to the temple and gave recovery of M.O.I and that he had not properly investigated the case.
7. According to the learned counsel for the State, there are 9 eye-witnesses to the occurrence and they are P.Ws.1,2,3,4,5,7,9,10 and 12. From an analysis of the evidence, it seems that the presence of P.Ws.1 and 7 at the spot when occurrence took place is doubtful. It is important to note here that P.W.1 has not whispered about the presence of P.W.7 at the spot and P.W.7 has not spoken about the presence of P.W.1 at the spot. Further, P.W.2 has stated in his cross- 28 examination that P.Ws.1 and 7 came to the spot at a later stage. Therefore, that part of evidence of P.Ws.1 and 7 both narrating the actual occurrence as eye-witnesses is not believable. We are also not inclined to accept the evidence of P.W.3 and P.W.10 as both in their cross-examination have admitted that they were deposing for the first time in the Court about the occurrence. Both of them in their cross- examination have also stated that they were never examined by the police earlier. So far as the evidence of P.W.9 is concerned, we are not inclined to accept him as one of the eye-witness as in his cross- examination he has admitted that he had never seen the appellant prior to giving evidence and that he saw him only in the Court while giving evidence. Despite the above, there exists evidence of other eye- witnesses like P.Ws.2,4,5 and 12, who corroborate each other so far as the core story of assault by the appellant with a Gupti (M.O.I) on the deceased as well as the injured i.e.,P.W.12 is concerned. In the cross- examination of P.Ws.2,4,5 and 12 nothing significant has come out to disbelieve their version as untrustworthy though there exists some minor contradictions here and there. Here there is no doubt about the presence of eye-witnesses like P.Ws.2,4,5 and 12 at the spot. P.W.12 is an injured eye-witness. As per settled position of law once the presence of eye-witness is not doubted and it has been established that his statement is reliable, there is no reason for the Court not to rely on the statement of such eye-witnesses (See 2012 (II) OLR (S.C.) 879 (Dayal Singh and others -v- State of Uttaranchal). Further, the version of 29 P.Ws.2,4,5 and 12 with regard to nature of injury and location of assault have been corroborated by the doctors, namely, P.W.6 and P.W.14. With regard to eye-witness i.e. P.Ws.2,4 and 12 a reading of cross-examination of P.W.16 would make it clear that there are only some minor contradictions. The Chemical Examination Report under Ext.15 belies the contention of the learned counsel for the appellant that there was absent of human blood in the Gupti (M.O.I). Ext.15 makes it clear that M.O.I Gupti was deeply stained with human blood. Learned counsel for the appellant contended that from the evidence on record it is clear that the appellant had no ill-motive towards the deceased and since motive is absent, prosecution version becomes doubtful. We repel such contention by stating that if the evidence against the accused persons is direct, clear, cogent and reliable, absence of proof of motive is of no consequence. Prosecution is not bound to prove motive always. Here the evidence of P.Ws.2,4 and 12, who are eye-witnesses are clear, cogent and reliable with regard to core story of assault and corroborate one another. Therefore, even if prosecution failed to prove motive, conviction can be sustained under Sections 302 and 307 of the I.P.C. It is equally well settled that when direct evidence of eye-witnesses are available, the question of motive becomes academic. With regard to submission of the learned counsel for the appellant relating to existence of material contradictions appearing in the evidence of the eye-witnesses like P.Ws.1,2,3,5 and 12, as indicated earlier we have not accepted that P.W.1 as an eye- 30 witness and we have totally rejected the evidence of P.W.3 as in his cross-examination he stated that he was deposing for the first time in the Court about the occurrence. With regard to contradictions amongst P.Ws.2,5 and 12, a scanning of evidence would show that such contradictions, are minor contradictions which in no way demolish the core prosecution story of assault on the deceased and P.W.12 by the appellant by using a Gupti (M.O.I). With regard to the contention of learned counsel for the appellant that the learned court below has not taken details of evidence of P.W.16 into account and that his evidence negatives the evidence of all eye-witnesses, we find that the learned court below has not examined the evidence of P.W.16 in details but it is incorrect to say that evidence of P.W.16 completely negatives the evidence of other eye-witnesses. For our satisfaction we have scanned the evidence of P.W.16 as indicated earlier and with regard to the version of eye-witnesses like P.Ws.2,4 and 12, the evidence of P.W.16 do not reveal major contradictions to make the version P.Ws.2,4 and 12 untrustworthy. Further, according to the learned counsel for the appellant since seizure of weapon of offence has not been proved as required under Section 27 of the Evidence Act, the seizure of weapon of offence (M.O.I) becomes doubtful one and for this the appellant should be acquitted. In this regard, our answer would be when the evidence of eye-witnesses are clear and cogent even non-recovery of weapon of offence would not demolish the case of the prosecution. This is more so when the nature of injury stated to have been inflicted by the eye- 31 witnesses have been corroborated by the doctors, namely, P.W.6 and P.W.15. In the instant case, upon the signed statement of the appellant under Ext.4, the weapon of offence was discovered from the backside of the deity by P.W.16 in presence of P.W.2 as per evidence of both P.Ws.2 and 16. However, another witness, who has signed Ext.4 i.e. P.W.13 has given a different version with regard to seizure. Thus, the information leading to seizure may not be strictly in adherence to Section 27 of the Evidence Act, however fact remains that M.O.I was seized from the temple and further, P.Ws.2,4 and 12 have clearly identified M.O.I as the weapon of offence, which was used by the appellant to mount his assault. In such background, seizure of M.O.I cannot be doubted. Similarly, the contentions of the learned counsel for the appellant relating to non-production of M.O.I soon after the occurrence before the Magistrate and non sending of F.I.R. under Ext.1 before the Court soon after the incident thereby creat serious doubt against the genuineness of the prosecution case, are to be rejected. P.W.16 in his evidence clearly points out that even though he seized M.O.I on 30.9.2002, he sent the same to the doctor for his medical opinion on 8.11.2002, on the date when he received post mortem report and M.O.I was all along with him in the Malkhana. He kept M.O.I in a sealed cover with noting of P.S. Case number. With regard to non-sending of F.I.R. under Ext.1 to the Court soon after the incident, a perusal of evidence of P.W.16 reveals that the F.I.R. dated 29.9.2002 was dispatched on 30.9.2002 to the Court. Though learned 32 counsel for the appellant made submission that the genuineness of the prosecution case becomes doubtful for non-production of the material object M.O.I soon after the occurrence before the Magistrate and due to non-sending of F.I.R. (Ext.1) to the Court soon after the incident, however he was not able to draw the attention of this Court, to any authority in favour of such contention. The other decisions cited by Mr. Panda namely 2012(1) OLR 652 (Sonia Muduli -v- State of Orissa), 2011 (I) ILR-Cuttack 65 (Madan Mohanta -v- State of Orissa) and 2011 (II) ILR-Cuttack 460 (Srikanta Pattanaik -v- State) are factually distinguishable and have no application to the present case.
For all these reasons, this Court is of the considered view that the trial court has committed no error in convicting the appellant under Sections 302 and 307 of the I.P.C. Accordingly, Jail Criminal Appeal is dismissed by confirming the impugned judgment of conviction and sentence.
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(BISWAJIT MOHANTY,J)
Pradip Mohanty,J. I agree.
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(PRADIP MOHANTY, J.)
Orissa High Court, Cuttack
The 11th April, 2014/RNS
33