The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 83 of 1993 From order dated 23.02.1993 passed in S.T. Case No.64 of 1987 of learned Sessions Judge, Balasore. Sk. Jangu ...… Appellant --------------- -Versus- State of Odisha ...…. Respondent Advocate(s) appeared in this case :- _______________________________________________________ For Appellant : M/s. D. Nayak, P. Nayak, S. Swain, D.P. Pradhan,R.C. Swain, Sk. S. Ali & D.P. Pattnaik, Advocates
Legal Reasoning
For Respondent : Mr. S.N. Das, _______________________________________________________ CORAM: [Addl. Standing Counsel] MR. JUSTICE SASHIKANTA MISHRA JUDGMENT 05.07.2023 SASHIKANTA MISHRA, J. The appellant calls in question the correctness of judgment and the sentence passed on 23.02.1993 by learned Sessions Judge, Balasore in S.T. Case No. 64 of 1987 whereby, he being convicted for the offence under Sections 147/323/149 of IPC was sentenced to undergo Page 1 of 8 R.I for one year for the offence under Section 147 of IPC and R.I. for fifteen days for the offence under Sections 323/149 IPC with both the sentences directed to run concurrently. Be it noted at the outset that the appellant was originally acquitted of the charges by judgment dated 21.09.1987. The matter was carried in revision to this Court in Criminal Revision No.23 of 1988. This Court, while setting aside the order of acquittal in respect of the appellant Sk. Jangu, remitted the case to the trial court to consider the matter afresh on the existing evidence as also to examine if he had committed the crime in prosecution of a common object with the other accused persons keeping the provision under Section 141 of IPC in view. This Court also directed the trial court to consider if there is any material to show that there was common object of the accused persons to commit the crime, if not, whether there was common intention as per Section 34 of the IPC. Being thus remanded, the matter was heard afresh by the court below. 2. The prosecution case, in brief is that one Saiban Bibi was the maid servant of Sk. Abbas (deceased) with who she had an ill-feeling which led to a quarrel on Page 2 of 8 07.02.1987. On the next morning at about 10.00 A.M, when the deceased and his grandson were proceeding to the bus stand in a rickshaw being followed by his son, the rickshaw was intercepted near Hazi Nasiruddin High School by Sk. Imran. However, because of intervention of the local people, the rickshaw could proceed. But only after nearly 100 yards, the accused persons, namely Sk. Imran, Sk. Furkhan and Saiban Bibi came running and detained the rickshaw again. They dragged the deceased out of the rickshaw and assaulted him by fist and kick blows. At that time, Sk. Iran and Sk. Jangu (present appellant) arrived at the spot and also took part in the assault. In course of assault, Saiban Bibi gave a blow to the back of the head of the deceased by an iron rod as a result of which he fell down. The son of the deceased interfered and with the help of others carried the deceased to the hospital, where he was declared dead. Accordingly, the son of the deceased, namely, Sk. Mohammed Sakil lodged FIR before the Town Police Station, Balasore leading to registration of P.S. Case No. 22(5)/87 dated 08.02.1987 under Sections 304/34 IPC. Charge sheet Page 3 of 8 having been submitted charge was framed under Sections 148/302/149 of IPC. 3. The accused persons including the present appellant took the plea of denial. 4. Prosecution examined eight witnesses including the informant as P.W.1, autopsy surgeon as P.W.2, occurrence witnesses, P.Ws. 3, 4, 5 and 6, P.W. 7 is the seizure witness and P.W. 8 is the I.O. Besides, prosecution proved nine documents and four material objects. Defence did not any adduce any evidence, either oral or documentary. 5. After considering the evidence on record the trial court, taking note of the specific evidence regarding presence of the present appellant at the spot as also of his participation in the assault, held that he did not have an intention of causing death of the deceased by his axe. But he had the intention of causing hurt. Moreover, death of deceased was caused by a solitary blow by Saiban Bibi for which the other accused persons cannot be held guilty. Nevertheless, the trial court found enough evidence to hold that the offence under Sections 147 and 323 read with Section 149 was clearly established. On such Page 4 of 8 findings, the trial court convicted the appellant and sentenced him as aforesaid. 6. Heard Mr. Pratik Nayak, learned counsel for the appellant and Mr. S.N. Das, learned Additional Standing Counsel for the State. 7. Assailing the impugned judgment of conviction Mr. Nayak would argue that in so far as the present appellant is concerned, the evidence adduced by prosecution allegedly showing his presence at the spot and of participation in the assault is not credible at all. Mr. Nayak has referred to the evidence of the autopsy surgeon P.W.2 to submit that no external injury whatsoever was found on the body of the deceased which by itself falsifies the prosecution case that the appellant had assaulted the deceased by means of kicks and fist blows. Mr. Nayak, further argues that the reliance placed by the trial court on the version of P.Ws.1 and 4 is erroneous because of the fact that their statements implicating the appellant was taken in contradiction by way of confronting their previous statements to the Investigating Officer. 8. On the other hand, Mr. S.N. Das has argued that the appellant Sk. Jangu was named in the FIR. Further Page 5 of 8 P.Ws.1 and 4 who are the eyewitnesses clearly deposed not only about his presence but also about his participation in the assault. It is further submitted that P.W.1 being the son of the deceased cannot be expected to have stated falsehood as regards his father’s assailant. The Court below must therefore, be held to have rightly relied upon his version as corroborated by that of other witnesses. 9. I have gone through the evidence on record carefully. P.W.1, the informant deposed that after the initial confrontation with accused Sk. Imran, the deceased proceeded further in his rickshaw but was again detained by Sk. Imran, Sk. Furkan and Saiban Bibi who came running from the front near Motigunj post office. They asked his father to get down but when his father refused they forcibly dragged him from the rickshaw to the ground. At that time, Sk. Iran and Sk. Jangu (appellant) arrived there and then all five persons started giving him fist blows, slaps and kicks. In cross examination on behalf of the appellant, it was suggested that he had not stated so before the IO during investigation and significantly he admitted that on the previous evening, accused-Jangu Page 6 of 8 had not abused or threatened his father. P.W.4 is another eyewitness who, also more or less stated the same thing as P.W.1. It was also suggested to him in cross examination that he had not stated so before the Investigating Officer. A reading of the deposition of the I.O. (P.W-8) reveals that on being confronted, he admitted that though he had examined P.W.1 but P.W.1 had not stated before him that Jangu had assaulted his father and that Jangu was the friend of the main accused persons. P.W-8 also admitted that he had examined P.W.4 who had not stated before him naming accused Jangu that he gave kicks blows and slaps to Sk. Abbas. He also admitted that P.W.3 had not stated anything about accused Jangu so also P.Ws.5 and 6. Thus, this Court finds that the only evidence put forth by the prosecution of the presence of accused-Jangu at the spot and of his assaulting the deceased is completely demolished by the admission of the I.O. that the witnesses had not stated so before him during investigation and that they had said so for the first time in Court. In other words, the Court is left with no legally acceptable evidence against the accused so as to hold him guilty. Page 7 of 8 10. Reading of the impugned judgment reveals that these vital aspects have not been considered at all. On the contrary, the trial court appears to have proceeded to find out whether there was a common intention or object on the part of accused-Jangu vis-à-vis the co-accused persons without first finding out if he was actually present at the spot or not. Obviously in the absence of the foundational fact required to establish the guilt of the accused that is, his presence at the spot, such discussion appears to be redundant. Under such circumstances, it is difficult to concur with the findings of the trial court and therefore, the impugned order must be held to be unsustainable in the eye of law. 11. In the result the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The accused-appellant being on bail, his bail bond be discharged. Before parting, this Court records its appreciation for the able assistance rendered by the young learned counsel Mr. Pratik Nayak. Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 19-Jul-2023 10:05:15 B.C. Tudu (Sashikanta Mishra) Judge Page 8 of 8