Cirl. Appeal No.1586 of 2018                 Gupteswar Behera  Vs. State of Odisha & Anr..                                          1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1586 OF 2018

Gupteswar Behera …Appellant

VERSUS

State of Odisha and Another          …Respondents

JUDGMENT

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

             Cirl. Appeal No.1586 of 2018                 Gupteswar Behera  Vs. State of Odisha & Anr..                                          2

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

             Cirl. Appeal No.1586 of 2018                 Gupteswar Behera  Vs. State of Odisha & Anr..                                          3

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 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 other sets of witnesses were also relied on.  PWs 4

and 5 were stated to be eye witnesses to the occurrence.  Their statements

under  Section  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 eye

witnesses but were said to be present when the statement was made by the

deceased to PW1 Pradeep.

5. The medical evidence was unfolded through PW13 Dr. Braja Kishore

Das who had declared said Raghumani to be dead when he was brought to the

hospital and PW 14 Dr. Bipin Chandra Padhy who conducted the post-mortem

examination.   According to PW14 Dr. Padhy there were fourteen injuries on

the  person  of  the  deceased,  out  of  which  eleven  were  incised  injuries.

According to said PW 14, all the injuries were ante-mortem; that the death

was due to haemorrhage and shock resulting from extensive injuries over the

body of  the deceased;  that  injury Nos.1  and 2 were sufficient  in  ordinary

             Cirl. Appeal No.1586 of 2018                 Gupteswar Behera  Vs. State of Odisha & Anr..                                          4

course  of  nature  to  cause  death.   The  aforesaid  doctors  made  following

statements in their cross-examination:-

PW13  Dr.  Das  stated,  “…  …By  receiving  such  injuries  as

reflected  in  P.M.  report  the  patient  must  have  lost  sense  within  five

minutes.   The death might have been possible  within ten minutes by

receiving such injuries.”  

PW 14  Dr.  Padhy  stated,  “…  …The  injured  can  survive  for  few

minutes by receiving such injuries.  The patient cannot regain sense by

loosing sense in this particular type of case” and “… …The death might

be instantaneous taking haemorrhage shock and neurogenic shock. The

patient must have become unconscious within five minutes by receiving

those injuries. The death my be possible within ten minutes.”

6. The Sessions Court found that the prosecution was able to prove its

case and that all six accused were guilty of the charges leveled against them.

The  Sessions  Court  thus  convicted  them under  Section  148  IPC and  also

under Section 149 read with Section 302 IPC and sentenced them to undergo

rigorous imprisonment for three years under the first count and imprisonment

for life under the second.

             Cirl. Appeal No.1586 of 2018                 Gupteswar Behera  Vs. State of Odisha & Anr..                                          5

7. All six convicted accused preferred Criminal Appeal  No.50 of 1999

in the High Court  challenging their  conviction and sentence.    During the

pendency  of  appeal,  original  Accused  Nos.4,5  and  6,  namely  Malikeswar

Behera, Natabara Guru and Trinath Guru died and as such their 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  their  statements were

recorded belatedly.  The High Court relied upon the testimony of PWs 1 and

15 insofar as original accused Nos.2 and 3, namely, Chandeswar Behera and

Gupteswar  Behera  were  concerned  and  confirmed  their  conviction  and

sentence.  The High Court, however, gave benefit of doubt to accused No.1,

Ramarao Patika and acquitted him.   The aforesaid judgment and order dated

29.08.2017 was challenged by Chandeswar Behera and Gupteswar Behera by

filing special leave petition in this Court.   Since Chandeswar Behera did not

file appropriate proof of  surrender,  his challenge stood dismissed for  non-

prosecution vide order dated 14.09.2018 passed by learned Chamber Judge of

this Court.   We have been informed that said Chandeswar Behera has since

then expired.   However, no proof in that behalf has been filed.

             Cirl. Appeal No.1586 of 2018                 Gupteswar Behera  Vs. State of Odisha & Anr..                                          6

9. In this matter, we are, thus, concerned with Gupteswar Behera.   We

have heard Mr. Sibo Sankar Mishra, learned Advocate in support of the appeal

and Mr. Rom Raj Choudhury, learned Advocate for the State.    

10. In the instant case the eye-witness account was rejected by the High

Court and  was found unworthy of reliance.  We are, thus, left with two

sets of evidence, the first concerning dying declarations made by the deceased

separately to PWs 1 and 15 and the second set of evidence regarding PWs 2, 8

and 9, who were said to be present when the dying declaration was made by

the deceased to PW1.

11. If the number of injuries suffered and their location and extent are

considered, the assertions made by both the medical professionals,  namely,

PWs 13 and 14 that the deceased may not have survived for more than ten

minutes  after  receiving  the  injuries  appear  to  be  quite  correct.   These

assertions  have  come  in  their  respective  cross  examinations  and  no  re-

examination was even sought by the prosecutor.  There is, thus, no contrary

evidence in that behalf.  We, therefore, have to accept that the deceased must

have survived only for a short duration after he received the injuries.

             Cirl. Appeal No.1586 of 2018                 Gupteswar Behera  Vs. State of Odisha & Anr..                                          7

12. If  we analyse  the evidence,  PW 1 received the intimation that  his

brother was lying in a pool of blood whereafter he rushed to the place of

occurrence.    The place of  occurrence was admittedly at  a distance of  15

minutes by walk.  This means the time was taken twice over.  The person who

had not seen the assault but informed PW1, had to cover the distance first and

thereafter PW1 reached the place of occurrence. The Investigating Officer,

namely,  PW 15  arrived  at  the  scene  of  occurrence  even  later.   It  would,

therefore,  be  extremely  doubtful  whether  the  deceased  had  survived  long

enough for PWs 1 and 15 to arrive at the scene of occurrence and then make

separate statements to these witnesses.     

13. The appellant  is,  therefore, entitled to the benefit  of doubt.   In the

circumstances, this appeal is allowed. The judgments and orders passed by the

Sessions Court and the High Court are set aside and the appellant is acquitted

of all the charges leveled against him.   He be set at liberty unless his custody

is required in connection with any other case.

………..…..……..……J.                                                                                (Uday Umesh Lalit)

..………….……………J.                                 (R. Subhash Reddy)

New Delhi, December 14, 2018.