The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.152 of 1995 Jayaram Mattary @ Mathari …. Appellant Mr. A. Mohanty, Advocate -versus- State of Orissa …. Respondent Mr. C.K. Pradhan, AGA COROM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No
Decision
ORDER 18.12.2024 13. 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel for the parties. 3. The present appeal has been filed challenging order of conviction passed by the learned Sessions Judge, Sambalpur in convicting the appellant to undergo R.I. for 2 years and fine of Rs.1000/- in default R.I. for 1 year for the offence under Section 304(Part-I) of the IPC in S.T. Case No.203 of 1994. 4. Learned counsel for the appellant contended that basing on the FIR lodged by the brother of the deceased namely Chhotelal Oram, the prosecution case was set into motion against the appellant for the offence under Section 302 IPC. // 2 // 4.1. It is contended that after submission of the charge-sheet, charge was also framed against the appellant for the offences U/s.302 of the IPC and petitioner faced Trial accordingly in the Court of learned Sessions Judge, Sambalpur. It is contended that even though allegation of Section 302 could not be proved, but taking into account the evidence so laid by the prosecution, the appellant was convicted and sentenced for the offence U/s.304(Part-I) of the IPC. 4.2. In support of the appeal, learned counsel for the appellant contended that even though FIR was made by the brother of the deceased-P.W. 6, but the same was written by the Constable of the local police station. But as found from the statement of the I.O.-P.W. 8, the said constable was not examined as an witness. 4.3. It is also contended that one Tikeran Oram, whose statement was recorded under Section 164 of Cr.P.C. and examined as P.W. 1, also turned hostile in course of his examination during Trial. It is contended that the alleged act was done because of the sudden provocation and on coming to know that the deceased who was having earlier affair with the appellant, developed further intimacy with P.W.4. It is contended that since allegation of Section 302 was not proved taking into account evidence laid by Page 2 of 6 // 3 // the prosecution, the appellant could not even have been convicted for the offence under Section 304 (Part-I) of the IPC. The Statement of I.O. with regard to non-examination of the scriber so reflected in cross-examination reads as follows:- “The literate Constable No.184 Lijat Khan reduced the oral information of Chhotelal into writing in my presence. I have not examined the said constable. I have not cited him as a witness in the charge sheet. The place off occurrence is at a distance of 3 K.Ms. from the P.S.. I have visited the village road where Kiabati was said to be lying injured. I have not shown the place where Kiabati was lying injured in the spot map Ext.4. I did not notice any incriminating stains sticking the deceased. I examined the witnesses named in the FIR and recorded their statements U/s.161 Cr.P.C.. I sent Tike Oram to Court for recording his statement U/s.164 Cr.P.C. along with Constable No.325. I prepared the dead body Challan on 2.11.93. I have mentioned in the dead body challan Ext.5 that the place of assault is Chhunkupada Rasta.” the wearing apparels of to Similarly, statement of P.W.1 who turned hostile is also not disputed. 4.4. Making all these submissions, learned counsel for the appellant contended that the impugned order of conviction and sentence is not sustainable in the eye of law and requires interference of this Court. Not only that it is also contended that after being released on bail vide order dated 06.06.1995, petitioner is continuing as such and at no point of time, he has violated any of the terms and conditions of the bail. Page 3 of 6 // 4 // 4.5. A further submission was made that taking into account the age of the appellant at the time of occurrence and his present age, a lenient view be taken while considering the present appeal. 5. Learned Addl. Govt. Advocate on the other hand while supporting the impugned judgment, placed reliance on the statement of P.W. 3, who happens to be an eye witness to the alleged occurrence as per the prosecution version. 5.1. It is contended that in his cross-examination P.W. 2 clearly implicated the accused who have committed the offence that the deceased was sleeping over a cot. Similarly reliance was placed on the statement of P.W. 2. P.W. 2 in his cross- examination has stated as follows:- “2. Kiabati was drunk while she was sleeping near my inner courtyard. She was under the influence of liquor just before the occurrence. Soon after assaulting Kiabati the accused escaped. She did not try to apprehend the accused. Kiabati was sleeping over a cot placed in the verandah just before assault. My house consists of one room and adjacent verandah. When I was about to close the door for going out of my house at that time the accused affected his entry inside our house. No sooner the accused arrived near Kiabati he started assaulting. 3. I was examined by the police. It is not a fact that I did not state before the I.O. that the accused jumped over the chest and belly of Kiabati. It is not a fact that I did not state before the I.O. that I protested but the accused did not pay and heed. Kiabati was lying senseless on my verandah soon after the assault. Soon after the incident I reported about it to Chhotelal Oram and others. Kiabati was also lying on my verandah by the time I returned to Page 4 of 6 // 5 // my house. It is not a fact that no such incident took place and that I am deposit falsely against the accused.” 5.2. It is contended that taking into account the statement of P.Ws. 2 and 3 and the evidence of the Doctor-P.W.5, the appellant has been rightly convicted and it requires no interference. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the petitioner was arrayed as an accused for the offence in question, basing on the FIR lodged by the brother of the deceased Chhotelal Oram. But as found, the FIR was scribed by some other person, which is not disputed taking into account the evidence of the I.O.-P.W. 8. It is also found that scriber of the FIR has not been examined by the I.O. nor he was shown as a witness to prove, that the FIR story was scribed by him as per the statement given by the informant. 6.1. It is also found from the record that in the FIR though names of various witnesses were indicated save and except, one Joseph, no other witness were shown as prosecution witness. It is also found from the record that the appellant who was having previous affair with the deceased, committed the offence is not borne from the record. It is also found from the record that while the prosecution Page 5 of 6 // 6 // allegation is that the incident occurred in the village road, but statement of P.W. 2 and 3 clearly indicates that the incident occurred inside the house of the deceased. 6.2. In view of such contrary statement recorded by the P.Ws. and non-examination of the scriber of the FIR as well as a witness reflected in the FIR itself as P.Ws, this Court is of the view that there was no occasion on the part of the learned Sessions Judge to convict the appellant for the offence U/s.304(Part-I) of the IPC. Therefore, this Court is inclined to set aside the order of conviction and sentence passed against the appellant and set aside the same accordingly. The appellant be also discharged from the bail bond. 7. The appeal accordingly stands disposed of. Judge (Biraja Prasanna Satapathy) Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Dec-2024 16:24:29 Page 6 of 6