1. The appellant Badashiba Majhi faced trial in the Court of the learned Sessions Judge, Kalahandi, Bhawanipatna in Criminal Trial No.33 of 2014 (Sessions) for offence punishable under section 302 of the Indian Penal Code on the accusation that on 01.01.2014 at about 5.30 p.m., he committed murder of Manasingh Majhi (hereafter ‘the deceased’) by dealing lathi blows on his head and back in front of the house of the informant Beshu Majhi (P.W.1) under Thuamul-Rampur police station.The learned trial Court vide impugned judgment and order dated 25.01.2018 while acquitting the appellant of the charge under section 302 of the Indian Penal Code found him guilty under section 304 Part-II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for eight years.2. The prosecution case, as per the F.I.R, in short, is that on 01.01.2014 at about 5.30 p.m. the appellant Badashiba Majhi was quarreling with the wife of the informant Benu Majhi (P.W.1). Since the wife of the appellant had left him and she was staying at her father’s place, the appellant was insisting the wife of the informant to bring back his wife. At that point of time, the deceased Mansingh Majhi, who was aged about fifteen years and son of the informant returned home after grazing the cattle and he challenged the appellant as to why he was quarreling with his mother. At this stage, the appellant being enraged assaulted on the head and back of the deceased with a lathi by giving three to four blows for which the deceased sustained bleeding injuries over the head. On 03.01.2014 while the deceased was being shifted to the hospital in a boat, on the way, he expired. It is further stated in the first information report that P.W.2 Bhakta Majhi, P.W.3 Sukru Majhi and P.W.5 Rengtu Majhi are the eye witnesses to the occurrence and P.W.4 Ravana Naik came to the spot and seeing the deceased lying on the ground, took him to the house of the informant. After the death of the deceased, the F.I.R. was presented on 03.01.2014 at 11.00 p.m. and the Officer-in-Charge of Th. Rampur police station registered P.S. Case No.1 dated 03.01.2014 under section 302 of the Indian Penal Code.During course of investigation, the Investigating Officer Pravat Kumar Behera examined the informant, deputed the constable to guard the dead body of the deceased. He visited the spot at village Bhitaraganga and prepared the spot map Ext.7. He also held the inquest over the dead body of the deceased and prepared inquest report Ext.8. He examined the inquest witnesses and also seized one wooden thenga from the spot in presence of the witnesses as per the seizure list Ext.1/1. The dead body was sent to Medical Officer, C.H.C., Th. Rampur for post mortem examination through escort constable after preparation of the dead body challan and P.W.8 Dr. Biswajit Sahoo who was the Medical Officer, C.H.C., Th. Rampur conducted post mortem examination over the dead body of the deceased and found fracture injuries on the frontal bone and left parietal bone and opined the cause of death to be on account of cerebral haemorrhage. The doctor further opined that the time since death was within 48 hours of the post mortem examination. The query was made by the Investigating Officer to the Medical Officer regarding possibility of injuries with the lathi which was seized from the spot and the doctor after examining the lathi opined that death could be possible by the said lathi and sent the query report to the Investigating Officer. The appellant was apprehended on 04.01.2014 and the Investigating Officer also seized blood stained earth and sample earth from the spot in presence of the witnesses under seizure list Ext.3. The appellant was sent for medical examination to the Medical Officer, C.H.C., Th. Rampur. The wearing apparels of the appellant were seized under seizure list Ext.5 and his blood sample and nail clippings collected by the Medical Officer were also seized. The I.O. seized the wearing apparels of the deceased under seizure list Ext.2/1. The post mortem report was received by the Investigating Officer. The seized exhibits were sent for chemical examination through the Court of learned S.D.J.M., Bhawanipatna to the Deputy Director, R.F.S.L., Berhampur and chemical examination report (Ext.12) was received. Pravat Kumar Behera, the Officer-in-charge, Th. Rampur police station handed over the charge of investigation to S.K. Nanda, Inspector-in-charge who also subsequently handed over the charge of investigation to Mr. Binod Lakra (P.W.7), the Inspector-in-charge of Th. Rampur police station who examined the scribe and the Medical Officer, C.H.C., Th. Rampur and on completion of investigation, finding prima facie case under section 302 of the Indian Penal Code against the appellant, submitted charge sheet.3. After submission of charge sheet, the case was committed to the Court of Session where the leaned trial Court framed the charge under section 302 of the Indian Penal Code against the appellant to which the appellant pleaded not guilty and claimed to be tried and accordingly, the sessions trial procedure was resorted to prosecute him and establish his guilt.4. In order to establish its case, the prosecution examined eight witnesses.P.W.1 Basu Majhi is the informant in the case who is a post-occurrence witness and stated that he found his son lying on the road in a pool of blood with injuries on his head and chest and he was in an unconscious state and on being asked, P.W.2 Bhakta Majhi and P.W.3 Sukru Majhi disclosed before him that the appellant assaulted the deceased by means of cudgel (thenga). He further stated that while he was shifting the deceased to the hospital in a boat at Th. Rampur, the deceased died.P.W.2 Bhakta Majhi, P.W.3 Sukru Majhi and P.W.5 Rengtu Majhi are the eye witnesses to the occurrence.P.W.4 Ravana Naik is the post-occurrence witness who stated to have shifted the deceased in an injured condition to his house. He further stated about the death of the deceased while he was being shifted to the hospital in a boat over the Indravati reservoir. He further stated about the seizure of blood stained earth and sample earth as per seizure list Ext.3.P.W.6 Sumal Bag was the A.S.I. of police attached to Th. Rampur police station and he stated about the seizure of blood sample and nail clippings of the appellant under seizure list Ext.4. He is also a witness to the seizure of wearing apparels of the appellant.P.W.7 Binod Lakra was the Inspector-in-charge, Th. Rampur police station who is one of the Investigating Officer.P.W.8 Biswajit Sahoo was the Medical Officer, C.H.C., Th. Rampur who conducted post mortem examination over the dead body of the deceased and proved the report (Ext.13)The prosecution exhibited thirteen numbers of documents. Exts.1/1, 2/1, 3, 4 and 5 are the seizure lists, Ext.6 is the first information report, Ext.7 is the spot map, Ext.8 is the inquest report, Ext.9 is the dead body challan, Ext.10 is the requisition to query, Ext.11 is the copy of forwarding report, Ext.12 is the chemical examination report and Ext.13 is the post mortem examination report.The prosecution also proved four material objects, M.O.I is the thenga, M.O.II is the cofee colour full shirt, M.O.III is the blue colour half pant, M.O.IV is the white colour half shirt and M.O.V is the multi colour banian.The defence plea of the appellant is one of the denial.5. The learned trial Court on analysing the oral and documentary evidence on record, has been pleased to hold that on the face of the evidence, there is no shadow of doubt that the deceased died a homicidal death. It was further held that the eye witnesses have offered a consistent, coherent and convincing narration thereof which does not admit of any doubt of their truthfulness. The medical evidence reveals injuries on the deceased compatible with the weapon used and thus on the basis of the evidence of the Investigating Officer (P.W.7), it was concluded that prosecution has successfully proved that it was due to successive blows given by the appellant on the deceased that he succumbed to the injuries and met with his death. Learned trial Court however held that the incident took place out of grave and sudden provocation and the appellant is entitled to the benefit of Exception 4 to Section 300 of the Indian Penal Code and therefore, the offence would come squarely within Part-II of 304 of the Indian Penal Code.6. Mr. Samvit Mohanty, learned Amicus Curiae appearing for the appellant placed the evidence of the witnesses and relevant parts of the impugned judgment and contended that there is inordinate delay of forty hours in lodging the first information report and the prosecution has not satisfactorily explained the same which creates a doubt about the authenticity of the prosecution case. It is further contended that the scribe of the F.I.R. has not examined and the F.I.R. has not been proved in accordance with law. The eye witnesses gave the same version in a parrot like manner. It is his further contention that the seizure of ‘thenga’ was also not proved and the chemical examination report indicates that no bloodstain was noticed on the ‘thenga’ which creates doubt as to whether the same was used as a weapon of offence in the case. Mr. Mohanty while concluding the argument contended that since the genesis of the prosecution case is the quarrel between the wife of the informant and the appellant and the wife of the informant has not been examined by the prosecution, the prosecution case becomes doubtful and therefore, benefit of doubt should be extended in favour of the appellant and if this Court is not inclined to acquit the appellant of the charge under section 304 Part- II of the Indian Penal Code, since the appellant has remained in judicial custody for seven years and seven months and the sentence imposed by the learned trial Court is rigorous imprisonment for eight years, the sentence be reduced to the period already undergone and the appellant be set at liberty.Mr. P.K. Mohanty, learned Additional Standing Counsel for the State, on the other hand, supported the impugned judgment and argued that the distance between the village of occurrence to the Th.Rampur police station was sixty kilometers and the occurrence took place in the evening hours on 01.01.2014 and since the deceased was in a critical condition, there was no scope for the family members of the deceased tocome to the police station to lodge the F.I.R. on the date of occurrence. The evidence has come on record that an attempt was made to shift the deceased in an injured condition to the hospital at Th.Rampur in a boat but on the way, the deceased died. He further submitted that in the factual scenario, it cannot be said that the delay in lodging the F.I.R. is that fatal that the entire prosecution case is to be discarded on that score. It is further submitted that the informant was an illiterate person and he has put his L.T.I. on the written report, which was scribed by somebody and the initial Investigating Officer Pravat Kumar Behera, who was also the Officer in-charge of Th.Rampur police station died for which he could not be examined during trial and that is the reason why the F.I.R. was only proved by P.W.7, who was acquainted with the handwriting and signature of Pravat Kumar Behera. He further submitted that the weapon of offence i.e. the ‘thenga’ was seized from the spot and the Medical Officer on examining the said ‘thenga’ has opined that the injuries sustained by the deceased could be possible with it and since there was delay in examination of the ‘thenga’ by the F.S.L. Authorities, mere non-finding of bloodstain on the ‘thenga’ cannot be a ground to discard the evidence of seizure of ‘thenga’ or that it is the weapon of offence. He further submitted that there is no infirmity or illegality in the impugned judgment and the learned trial Court has rightly convicted the appellant under section 304 Part-II of the Indian Penal Code taking into account that the incident took place out of grave and sudden provocation and it cannot be said that the sentence imposed was on a higher side and therefore, the appeal should be dismissed.7. Adverting to the contention raised by the learned counsel for the respective parties, let me now first deal with the contention raised regarding the delay in lodging the first information report.Learned counsel for the appellant placed reliance on a decision of this Court in the case of Gokula Naik -Vrs.- State of Orissa reported in (2016) 65 Orissa Criminal Reports 999 wherein it is held as follows:“Law is well settled that delay in lodging the F.I.R. quite often results in embellishment which is a creature of afterthought. Delay creates a dent in the prosecution story and ushers suspicion in concocting such story. Because of delay, the F.I.R. not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of coloured version. There are certain aspects which require the appreciation of the Court when the delay in lodging the F.I.R. is pointed out. One category of such cases is where the delay has not been explained at all whereas in the other, the prosecution tries to explain the delay. Even in the first category of cases, the Court cannot outright reject the prosecution case. The Court has a duty to see whether there is any material on record which explains the delay in lodging the F.I.R. and whether the delay has got any adverse effect on the prosecution case which has been otherwise established. In the second category of cases, the Court has to see whether the explanation for delay is satisfactory or not. There is no straight jacket formula that if the prosecution fails to explain the delay, the entire prosecution case should be disbelieved in toto and the accused should be acquitted. Permissibility in condoning the delay depends upon the facts and circumstances of each case. The Court must place itself in the position of a victim, an informant or a family member of the deceased and assess the situation under which the F.I.R. has been lodged. Mechanical approach to this vital aspect and blindly following some citations of different Courts without considering the facts and circumstances of that particular case will result in miscarriage of justice.”In the case in hand, the occurrence in question took place on 01.01.2014 at about 5.30 p.m. and it is specifically mentioned in the F.I.R. that P.W.4 Ravana Naik shifted the deceased lying at the spot in an injured condition to the house of the informant. The informant being examined as P.W.1 stated in his cross-examination that Bhakta Majhi (P.W.2) and Sukru Majhi (P.W.3) took his injured son to his house and he kept his injured son in his house in the night and on the next day dawn, he shifted his injured son to the hospital. He further stated that while trying to shift his son Mansingh Majhi to hospital at Th.Rampur in a boat over the river Dimjodi, on the way his son died and thereafter, he lodged the F.I.R. scribed by one person at Th.Rampur police station. From the evidence of P.W.1, it is apparent that even though the deceased in an injured condition remained in his house on 01.01.2014 but on the next day i.e. on 02.01.2014 early morning attempt was made to shift him to the hospital situated at Th. Rampur and he died on that day on the way to the hospital. If the deceased died while being shifted to Th. Rampur on 02.01.2014, the F.I.R. could have been lodged on that day but it was presented at Th. Rampur police station on 03.01.2014 at 11.00 a.m. P.W.1 stated in this cross-examination that they stayed in village Mahulpatna after the death of the deceased and on the next day he lodged the F.I.R. Most peculiarly in the first information report dated 03.01.2014, it is mentioned as follows:“Today, while we are shifting the deceased to the hospital in a boat, on the way, my son Mansingh Majhi died”.This statement in the F.I.R. shows that the deceased was shifted to the hospital on 03.01.2014 and not on 02.01.2014 as stated by P.W.1 in his evidence. It further reveals that the death of the deceased took place on 03.01.2014. This goes contrary to the evidence of P.W.1 from whose evidence, it appears that the death of the deceased took place on 02.01.2014. If the death has taken place on 02.01.2014 on the way to Th. Rampur, there was any reason for non-lodging the F.I.R. on that day, the prosecution should have given satisfactory explanation in that respect, which has not been done rather it was mentioned in the F.I.R. that death took place on 03.01.2014. Therefore, there are discrepancies as to when the deceased was shifted to the hospital from his house and when he died. The contention of the learned counsel for the appellant that on account of delay in lodging the first information report, there is possibility of an afterthought story been introduced in the F.I.R. cannot be lightly brushed aside. No doubt, the eye witnesses P.Ws.2, 3 and 5 have stated that they have seen the occurrence and that the appellant assaulted the deceased on his head by means of cudgel (thenga) and their names are mentioned in the F.I.R. as eye witnesses to the occurrence but when there is delay in lodging the F.I.R., there is possibility of creation of an afterthought story and introduction of eye witnesses to the occurrence.8. The eye witnesses P.Ws.2, 3 and 5 have given the same version in a parrot-like manner and therefore, such evidence cannot be accepted as gospel truth. The ‘thenga’ (M.O.I) which is stated to be weapon of offence was not shown to any of the eye witnesses by the prosecutor for identification and M.O.I was only proved by the Investigating Officer (P.W.7), who has not even seized that weapon. P.W.2 is a witness to the seizure of cudgel (thenga) as per seizure list Ext.1/1 and though in the examination in-chief, he has stated that the police seized the cudgel (thenga) in his presence and in presence of the witnesses but in the cross-examination, he has stated that he had not seen as to where from the police brought the cudgel (thenga). Therefore, it is very difficult to believe that P.W.2 is a witness to the seizure of ‘thenga’ from the spot rather it appears that he has put just his signature on the seizure list Ext.1 on being asked by the Investigating Officer. The seizure of ‘thenga’ was made on 04.01.2014 and the Medical Officer examined the same on 13.01.2014 and thereafter, the ‘thenga’ was sent for chemical analysis to the Deputy Director and Chemical Examiner to the Government of Odisha, Regional F.S.L., Berhampur on 13.01.2014. No blood was noticed on the ‘thenga’ as per the chemical examination report (Ext.12) dated 24.10.2014. The learned trial Court held that in view of the fact that due to lapse of time of nine and half months between the date of occurrence (01.01.2014) and the date of serological examination (24.10.2014), it is quite probable for the chemical examiner not to find any blood stain on the seized M.O.I. When the delayed examination of the weapon of offence was on account of lapse by the prosecuting agency, it cannot be said that the appellant is prevented from raising the point regarding the absence of blood stain on the ‘thenga’ and that the said weapon is not the weapon of offence. Therefore, when the eye witnesses to the occurrence have not proved the weapon of offence by identifying the same in Court while giving their evidence and the police officer, who seized the ‘thenga’ was not examined on account of his death and such ‘thenga’ is commonly available in the houses of village and when the chemical examination report indicates that the ‘thenga’ was having no blood stain on it, even though it is the prosecution case that repeated blows were given to the deceased by ‘thenga’ for which the deceased sustained bleeding injuries, it creates doubt about the authenticity of the prosecution case that M.O.I is the weapon of offence.9. Admittedly, the scribe of the F.I.R. has not been examined. P.W.1, the informant is unable to say as to who the scribe of the F.I.R. was. Though P.W.7 has stated that on 01.04.2014, he examined the scribe but the prosecution has not offered any explanation as to why the scribe was not examined during trial. Of course, in every case, merely b
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ecause the scribe is not examined, it cannot be said that the lodging of the F.I.R. is a suspicious feature or fatal for the prosecution but in the case in hand, when there is no evidence as to who scribed it and neither the informant nor the prosecution has adduced any evidence in that respect and the Investigating Officer of the case, who received the F.I.R. could not be examined on account of his death, in such a scenario, non-examination of the scribe cannot be taken lightly, particularly, when false statements seem to have been made in the F.I.R. that the deceased was shifted to the hospital on 03.01.2014 and the death of the deceased also took place on 03.01.2014.10. In view of the foregoing discussions, when the prosecution has not offered any satisfactory explanation regarding the inordinate delay in lodging of the F.I.R. and the prosecution has presented two different dates relating to the shifting the deceased to the hospital and the death of the deceased, the scribe of the F.I.R. has not examined, the seized ‘thenga’ has not been proved to be the weapon of offence and when the eye witnesses have deposed in a parrot like manner and there is possibility of introduction of eye witnesses by the prosecution in view of the delay in lodging of the F.I.R., I am of the humble view that it is a fit case where benefit of doubt should be extended in favour of the appellant.11. Accordingly, the Jail Criminal Appeal is allowed. The impugned judgment and order of conviction of the appellant and the sentence passed thereunder is hereby set aside and the appellant is acquitted of the charge under section 304 Part-II of the Indian Penal Code. He shall be set at liberty forthwith, if his detention is not otherwise required in any other case.Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.Before parting with the case, I would like to put on record my appreciation to Mr. Samvit Mohanty, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only).