GUPTESWAR BEHERA versus STATE OF ODISHA AND ANOTHER on 14 December 2018

1. This appeal by special leave challenges the judgment and orderdated 29.08.2017 passed by the High Court of Orissa at Cuttack inCriminal Appeal No.50 of 1999.

2. In the present case, crime was registered at 9.00 pm onC15.11.1995 vide FIR No.93 with Rayagada P.S. pursuant to reporting byPradeep Kumar Patra, later examined as PW1. It was submitted thatone Kumurika Nabina informed said PW1 Pradeep that his brotherRaghumani was attacked and was lying by the side of a road. SaidPW1 Pradeep immediately rushed to the place and found cut marks onDvarious parts of the body of said Raghumani who was lying in a pool ofblood. It was further stated that when questioned about the attack,Raghumani replied that persons named Natabar Guru, Trinath Guru,Gupteswar Behera, Chandeswar Behera, Malikeswar Behera attackedhim with sticks, axe and a large knife. According to the report, whilesuch statement was being made by Raghumani, Trinath Nayak andEMandangi Ramamurty were present.

3. According to the prosecution, Police Officer Utkal RanjanDas (later examined as PW 15) reached the place of occurrence at 8.15pm and removed said Raghumani to Gunpur Hospital at 8.45 pm in apolice vehicle and while inside the vehicle, Raghumani regainedFconsciousness. It is further the case of the prosecution that while in thepolice vehicle Raghumani made a statement (Ext. 5) giving the namesof the assailants. Raghumani was, however, dead when he was broughtto the hospital.

4. After conducting due investigation, six accused, namely, RamaGRao Patika, Chandeswar Behera, Gupteswar Behera, MalikeswarBehera, Natabara Guru and Trinath Guru were tried for having committedoffences punishable under Sections 148, 149 read with Section 302 IPCin Sessions Case No.15 of 1997 in the Court of the Additional SessionsJudge, Rayagada. The prosecution relied upon the evidence of PW1Pradeep and PW15, the Investigating Officer in support of its case thatHthe deceased Raghumani had named the assailants in his dying declarations. PW1 admitted in his cross-examination that the place ofoccurrence was at a distance of 15 minutes by walk. Apart from this,two other sets of witnesses were also relied on. PWs 4 and 5 werestated to be eye witnesses to the occurrence. Their statements underSection 161 Cr.P.C. were, however, recorded 4 to 5 days after the incident.The second set of witnesses were PWs 2, 8 and 9, who were not eyewitnesses but were said to be present when the statement was made bythe deceased to PW1 Pradeep.

5. The medical evidence was unfolded through PW13 Dr. BrajaKishore Das who had declared said Raghumani to be dead when hewas brought to the hospital and PW 14 Dr. Bipin Chandra Padhy whoconducted the post-mortem examination. According to PW14 Dr. Padhythere were fourteen injuries on the person of the deceased, out of whicheleven were incised injuries. According to said PW 14, all the injurieswere ante-mortem; that the death was due to haemorrhage and shockresulting from extensive injuries over the body of the deceased; thatinjury Nos.1 and 2 were sufficient in ordinary course of nature to causedeath. The aforesaid doctors made following statements in their cross-examination:- PW 13 Dr. Das stated, “… …By receiving such injuries asreflected in P.M. report the patient must have lost sense withinfive minutes. The death might have been possible within tenminutes by receiving such injuries.”

PW 14 Dr. Padhy stated, “… …The injured can survive forfew minutes by receiving such injuries. The patient cannot regainsense by loosing sense in this particular type of case” and “……The death might be instantaneous taking haemorrhage shockand neurogenic shock. The patient must have become unconsciouswithin five minutes by receiving those injuries. The death my bepossible within ten minutes.”

6. The Sessions Court found that the prosecution was able toprove its case and that all six accused were guilty of the charges leveledagainst them. The Sessions Court thus convicted them under Section148 IPC and also under Section 149 read with Section 302 IPC andsentenced them to undergo rigorous imprisonment for three years underthe first count and imprisonment for life under the second.

7. All six convicted accused preferred Criminal Appeal No.50 of1999 in the High Court challenging their conviction and sentence. During A

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Athe pendency of appeal, original Accused Nos.4,5 and 6, namelyMalikeswar Behera, Natabara Guru and Trinath Guru died and as suchtheir appeal stood abated.

8. The High Court found that the evidence of so called eye-witnesses, namely, PWs 4 and 5 did not inspire confidence as theirBstatements were recorded belatedly. The High Court relied upon thetestimony of PWs 1 and 15 insofar as original accused Nos.2 and 3,namely, Chandeswar Behera and Gupteswar Behera were concernedand confirmed their conviction and sentence. The High Court, however,gave benefit of doubt to accused No.1, Ramarao Patika and acquittedhim. The aforesaid judgment and order dated 29.08.2017 was challengedCby Chandeswar Behera and Gupteswar Behera by filing special leavepetition in this Court. Since Chandeswar Behera did not file appropriateproof of surrender, his challenge stood dismissed for non-prosecutionvide order dated 14.09.2018 passed by learned Chamber Judge of thisCourt. We have been informed that said Chandeswar Behera hasDsince then expired. However, no proof in that behalf has been filed.

9. In this matter, we are, thus, concerned with Gupteswar Behera.We have heard Mr. Sibo Sankar Mishra, learned Advocate in support ofthe appeal and Mr. Rom Raj Choudhury, learned Advocate for the State.

10. In the instant case the eye-witness account was rejected byEthe High Court and was found unworthy of reliance. We are, thus, leftwith two sets of evidence, the first concerning dying declarations madeby the deceased separately to PWs 1 and 15 and the second set ofevidence regarding PWs 2, 8 and 9, who were said to be present whenthe dying declaration was made by the deceased to PW1.F

11. If the number of injuries suffered and their location and extentare considered, the assertions made by both the medical professionals,namely, PWs 13 and 14 that the deceased may not have survived formore than ten minutes after receiving the injuries appear to be quitecorrect. These assertions have come in their respective crossGexaminations and no re-examination was even sought by the prosecutor.There is, thus, no contrary evidence in that behalf. We, therefore, haveto accept that the deceased must have survived only for a short durationafter he received the injuries.

12. If we analyse the evidence, PW 1 received the intimation thathis brother was lying in a pool of blood whereafter he rushed to theH

GUPTESWAR BEHERA v. STATE OF ODISHA AND ANOTHER[UDAY UMESH LALIT, J.]

place of occurrence. The place of occurrence was admittedly at a distanceof 15 minutes by walk. This means the time was taken twice over. Theperson who had not seen the assault but informed PW1, had to coverthe distance first and thereafter PW1 reached the place of occurrence.The Investigating Officer, namely, PW 15 arrived at the scene ofoccurrence even later. It would, therefore, be extremely doubtful whetherthe deceased had survived long enough for PWs 1 and 15 to arrive atthe scene of occurrence and then make separate statements to thesewitnesses.

13. The appellant is, therefore, entitled to the benefit of doubt. Inthe circumstances, this appeal is allowed. The judgments and orderspassed by the Sessions Court and the High Court are set aside and theappellant is acquitted of all the charges leveled against him. He be setat liberty unless his custody is required in connection with any othercase.

Nidhi Jain

Appeal allowed.

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