Allowed

Birasingh Say v. State

Orissa HC15 Nov 2018JCRLA/53/2002

Case brief

AI extract

What is this about?

Alone appeal against conviction and sentence for attempted murder in a jail assault case. The High Court set aside the conviction due to glaring infirmities, lack of motive, and insufficient corroboration of the injured's solitary account, acquitting the appellant.

What did the court decide?

Impugned judgment and order of conviction under Section 307 IPC set aside; appellant acquitted; if in judicial custody, released forthwith unless detention required for another case.

Birasingh Say Vs State — Murder and Culpable Homicide | Orissa HC (2018)

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IN THE HIGH COURT OF ORISSA, CUTTACK.

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JCRLA No. 53 Of 2002

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From judgment and order dated 02.11.2002 passed by the Adhoc Addl. Sessions Judge, Fast Track Court No.II, Puri in S.T. Case No.22/214 of 2002.

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----- Birasingh Say	-------------------- …..…	--- Appellant
	-Versus-
State of Orissa	……..	Respondent
For Appellant:	-	Mr. Dibya Jyoti Sahoo
For State: ----	- --------------------	Mr. Anupam Rath Addl. Standing Counsel ----

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P R E S E N T:

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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--------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 15.11.2018 ---------------------------------------------------------------------------------------------------

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S. K. SAHOO, J . The appellant Birasingh Say has challenged the impugned judgment and order dated 02.11.2002 passed by the learned Adhoc Addl. Sessions Judge, Fast Track Court No.II, Puri in S.T. Case No.22/214 of 2002 in convicting him for the offence

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under section 307 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of five years.

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The prosecution case as per the first information report lodged by the Superintendent, District Jail, Puri on 30.11.2001 before the Officer in charge of Kumbharpada police station is that the appellant was confined in ward no.13 of the District Jail, Puri and he assaulted another under trial prisoner namely Partha Sarathi Mishra (P.W.6) with a broken brick over his head while the later was sleeping, as a result of which P.W.6 sustained fatal head injury and was shifted to District Headquarters Hospital, Puri.

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On receipt of the first information report, Kumbharpada P.S. Case No.192 of 2001 was registered under section 307 of the Indian Penal Code against the appellant by the Officer in charge and P.W.7 Makar Hota, S.I. of police was entrusted to investigate the matter by the Officer in charge. During course of investigation, P.W.7 visited the spot, examined the witnesses, sent injury requisition for the injured. He also seized lungi, napkin, brick stained with blood as per the seizure list Ext.4 and further seized the discharge certificate, brain scanning report, report of the neurologist of the injured as the injured was hospitalized at S.C.B. Medical College and Hospital, Cuttack as per seizure list Ext.5. After completion of

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investigation, charge sheet was submitted on 10.04.2002 under sections 307/326 of the Indian Penal Code.

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After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellant under section 307 of the Indian Penal Code and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.

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During course of trial, in order to prove its case, the prosecution examined seven witnesses.

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P.W.1 Sunil Kumar Mohanty was the Superintendent, District Jail, Puri and on getting information about the assault on P.W.6, he rushed to the jail and then came to the District Headquarters Hospital, Puri where the injured was in a critical condition and then arranged for his shifting to S.C.B. Medical College and Hospital, Cuttack. He is the informant in the case.

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P.W.2 Surendra Kumar Pattnaik was the Jailor, District Jail, Puri. He is a post occurrence witness who also stated to have noticed injuries on the person of P.W.6 and shifted him to the hospital.

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P.W.3 Ranjan Jena was the night watchman in ward

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no.13 and found the injured with head injury and he also stated about the presence of the appellant inside ward no.13 at the relevant time with a brick.

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P.W.4 Bhagat Prasad Parida was a U.T.P. in District

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Jail, Puri at the relevant point of time in ward no.13. He also stated to have noticed bleeding injuries on the head of the injured and also shifting of the injured to the hospital.

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P.W.5 Dr. Sarbeswar Acharya was the Asst. Surgeon, D.H.H., Puri who examined the injured (P.W.6) and noticed some injuries and he proved the injury report marked as Ext.2.

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P.W.6 Partha Sarathi Mishra is the injured.

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P.W.7 Makar Hota was the S.I. of police attached to

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Kumbharpada police station who was the Investigating Officer.

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The prosecution exhibited six documents. Ext.1 is the

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written report submitted by P.W.1, Ext. 2 is the medical examination report, Ext.3 is the formal F.I.R., Exts. 4 and 5 are the seizure lists and Ext.6 is the injury requisition.

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The prosecution also proved three material objects. M.O.I is the seized lungi, M.O.II is the seized napkin and M.O.III is the seized broken brick.

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The defence plea of the appellant is one of denial.

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The learned trial Court after assessing the evidence on record has been pleased to hold that the evidence of P.W.6 is clear to the effect that a blow was given on his head and he looked up and found the accused was raising the brick for the second time and there is nothing to disbelieve such statement of P.W.6. It is further held that accepting the evidence of P.W.3 and P.W.6, it can be safely concluded that the prosecution has been able to adduce satisfactory evidence to believe that it is the appellant who gave the blow on the head of P.W.6. The learned trial Court further held that the medical evidence corroborates the ocular testimony and accordingly holding that the appellant not only attempted to cause death but his act was likely to cause death of P.W.6, found him guilty under section 307 of the Indian Penal Code.

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Mr. Ramesh Chandra Swain-2 who was engaged by the High Court Legal Services Committee to argue the appeal is not present in Court and therefore, Mr. Dibya Jyoti Sahoo was engaged for the appellant as amicus curiae to assist the Court and he was supplied with paper book and given time to prepare the case. After going through the case records, he placed the evidence on record and impugned judgment.

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Mr. Sahoo argued that nobody has seen the actual assault on P.W.6 by the appellant and the evidence adduced by the prosecution is shaky in nature and the impugned judgment is not sustainable in the eye of law and there is no clinching material to establish the charge against the appellant.

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Mr. Anupam Rath, learned Addl. Standing Counsel appearing for the State on the other hand argued that even though the injured has not seen the actual assault on him but the presence of the appellant in the vicinity with a brick at the time of assault which has been stated by the injured is sufficient to hold him liable for the offence. It is further stated that the doctor has noticed number of injures on the person of the injured on the vital part of the body like head and there is nothing to disbelieve the prosecution case and therefore, the appeal should be dismissed.

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After going through the evidence of the witnesses placed by the Mr. Sahoo, it appears that the star witnesses on behalf of the prosecution is none else than P.W.6, the injured.

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P.W.6 has stated that on 29.11.2001 he was

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confined in District Jail, Puri in connection with a case under section 307 of the Indian Penal Code in ward no.13 and while he was sleeping, he had covered his body with a blanket. He further

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stated that the appellant was confined in that very ward and at about 9.30 p.m. while he was sleeping, the appellant assaulted him with a brick on his head and when he looked up, he found that the appellant was raising a brick to assault him for the second time but in the meantime he lost his sense and when he regained his sense after two days, he found himself in S.C.B. Medical College and Hospital, Cuttack. He further stated that he was treated at S.C.B. Medical College and Hospital for about five days and thereafter, he was discharged.

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In the cross-examination, P.W.6 has stated that he had not seen the first blow given by the appellant as he had covered his face by the blanket but after the first blow, when he removed the blanket, he found the appellant had raised the brick for the second time to give another blow.

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Admittedly the prosecution has not proved any motive behind the assault on the injured (P.W.6) by the appellant. Though there were other U.T.Ps inside ward no. 13 and two of them have been examined as P.W.3 and P.W.4 but their evidence is silent regarding the actual assault made by the appellant to P.W.6. The injured has stated about only one blow on him which according to him he had not seen. P.W.3 has also stated that he had not seen the first assault and his evidence is

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silent about the subsequent assault on P.W.6. Therefore, the only evidence relevant is that the appellant was standing with a brick near P.W.6 and immediately P.W.6 lost his sense. The presence of the brick inside the ward no.13 appears to be a doubtful feature in as much as Ext.4 which is the seizure list of the brick indicates that the brick was produced by the jailor Surendra Kumar Patnaik (P.W.2) before the investigating officer. The evidence of P.W.2 is silent as to where from he brought the brick (M.O.III) and produced it before the investigating officer. Even though the doctor’s evidence has remained unchallenged and the medical examination report indicates that the inured had sustained number of injuries on his right ear, nose but since from the evidence of the injured (P.W.6), the evidence relating to the assault by the appellant is not clinching, in my humble view, it would not be proper and justified to accept the solitary evidence of P.W.6 to convict the appellant for an offence under section 307 of the Indian Penal Code. There are certain glaring infirmities in the prosecution case which have not been properly assessed by the learned trial Court and therefore, the impugned judgment and order of conviction of the appellant under section 307 is not sustainable in the eye of law and accordingly, the same is hereby set aside and the appellant is acquitted of the

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charge. It seems that the appellant has not been granted bail Peither during trial or during pendency of this appeal. If he is still in judicial custody in connection with this case, he shall be released forthwith if his detention is not required in any other case.

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Before parting with the case, I would like to put on record my appreciation to Mr. Dibya Jyoti Sahoo, 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.5,000/- (rupees five thousand only).

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The JCRLA is allowed.

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…………………………..

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Orissa High Court, Cuttack The 15^th November, 2018/Kabita/Sukanta

Birasingh Say v. State

Case brief

What is this about?

What did the court decide?

Birasingh Say v. State

Case brief

What is this about?

What did the court decide?

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