LexGUPTESWAR BEHERA versus STATE OF ODISHA AND ANOTHER
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A B C D E F G H 1209 GUPTESWAR BEHERA v. STATE OF ODISHA AND ANOTHER (Criminal Appeal No. 1586 of 2018) DECEMBER 14, 2018 [UDAY UMESH LALIT AND R. SUBHASH REDDY, JJ.] Penal Code, 1860: ss. 148, 149 and 302 – Prosecution case that victim attacked by five persons with sticks, axe and knife – PW 1, brother of the victim and investigating officer reached the place of occurrence – Victim, named the assailants in his dying declarations made separately to PW 1 and the investigating officer – On basis of the evidence of PW 1 and the investigating officer, eye witnesses and witnesses who were present when the dying declaration was made by the deceased to PW1, conviction and sentence of the accused u/ss. 148 and 149 r/w s. 302 – Upheld by the High Court – On appeal, held: On consideration of the number of injuries suffered and their location and extent, the assertions made by both the medical professionals, that the deceased may not have survived for more than ten minutes after receiving the injuries is accepted – There is no contrary evidence in that behalf – Furthermore, PW 1 received the intimation that his brother was lying in a pool of blood whereafter he rushed to the place of occurrence, admittedly at a distance of 15 minutes by walk – This means the time was taken twice over – Person who had not seen the assault but informed PW1, had to cover the distance first and thereafter PW1 reached the place of occurrence – Investigating Officer, arrived at the scene of occurrence even later – Thus, it is doubtful whether the deceased had survived long enough for PW 1 and investigating officer to arrive at the scene of occurrence and then make separate statements to these witnesses – Thus, the appellant entitled to the benefit of doubt and is acquitted of all the charges leveled against him. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1586 of 2018. From the Judgment and Order dated 29.08.2017 of the High Court of Orissa at Cuttack in Criminal Appeal No. 50 of 1999. [2018] 14 S.C.R. 1209 1209 A B C D E F G H 1210 SUPREME COURT REPORTS [2018] 14 S.C.R. Sibo Sankar Mishra, Niranjan Sahu, Tejaswi Kumar Pradhan, Advs. for the Appellant. Som Raj Choudhury, Adv. for the Respondents. The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. This appeal by special leave challenges the judgment and order dated 29.08.2017 passed by the High Court of Orissa at Cuttack in Criminal Appeal No.50 of 1999. 2. In the present case, crime was registered at 9.00 pm on 15.11.1995 vide FIR No.93 with Rayagada P.S. pursuant to reporting by Pradeep Kumar Patra, later examined as PW1. It was submitted that one Kumurika Nabina informed said PW1 Pradeep that his brother Raghumani was attacked and was lying by the side of a road. Said PW1 Pradeep immediately rushed to the place and found cut marks on various parts of the body of said Raghumani who was lying in a pool of blood. 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 attacked him with sticks, axe and a large knife. According to the report, while such statement was being made by Raghumani, Trinath Nayak and Mandangi Ramamurty were present. 3. According to the prosecution, Police Officer Utkal Ranjan Das (later examined as PW 15) reached the place of occurrence at 8.15 pm and removed said Raghumani to Gunpur Hospital at 8.45 pm in a police vehicle and while inside the vehicle, Raghumani regained consciousness. It is further the case of the prosecution that while in the police vehicle Raghumani made a statement (Ext. 5) giving the names of the assailants. Raghumani was, however, dead when he was brought to the hospital. 4. After conducting due investigation, six accused, namely, Rama Rao Patika, Chandeswar Behera, Gupteswar Behera, Malikeswar Behera, Natabara Guru and Trinath Guru were tried for having committed offences punishable under Sections 148, 149 read with Section 302 IPC in Sessions Case No.15 of 1997 in the Court of the Additional Sessions Judge, Rayagada. The prosecution relied upon the evidence of PW1 Pradeep and PW15, the Investigating Officer in support of its case that the deceased Raghumani had named the assailants in his dying A B C D E F G H 1211 declarations. PW1 admitted in his cross-examination that the place of occurrence was at a distance of 15 minutes by walk. Apart from this, two othe
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