MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.231 of 2003 In the matter of an Appeal under section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 20.09.2003 passed by the learned Adhoc Additional Sessions Judge(Fast Track Court), Khurda in S.T Case No.20/4/68 of 2003. ---- 1) Bhalu @Balaram Naik 2) Kanhu Charan Naik 3) Alok Naik 4) Tiki @Khetramohan Naik 5) Chhuta @ Dipti Ranjan Naik …. Appellants State of Odisha -versus- …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants- Mr. R. K. Mohapatra, Amicus Curiae For Respondent- Mr. G. N. Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 06.08.2024 :: Date of Judgment:04.09.2024 The Appellants, by filing this Appeal, have assailed the judgment of conviction and the order of sentence dated 20.09.2003, CRLA No.231 of 2003 Page 1 of 11 passed by the learned Adhoc Additional Sessions Judge (Fast Track Court), Khurda in S.T Case No.20/4/68 of 2003, arising out of Khurda P.S. Case No.98 of 2002, corresponding to G.R Case No.253 of 2002, of the Court of learned Sub-Divisional Judicial Magistrate (SDJM), Khurda. The Appellants (accused persons) have been convicted for commission of offence under section 148/302/149 of the Indian Penal Code, 1860 (in short, ‘the IPC’). Accordingly, they have been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- in default to undergo Rigorous Imprisonment for six months. 2. Prosecution Case:- On 06.04.2002 past mid night, One Kuni Behera (Informant- P.W.3) reported the Inspector-In-Charge (I.I.C) of Khurda Police Station that her husband during the night had been killed by these accused persons near the village Mahavir Club. It was reported that 10 to 12 days prior to the incident, one night, Bijaya, the husband of Informant-P.W.3 was invited by one Bhali Naik to her house. Bijaya when had gone there, he had been assaulted by the husband of Bhali Naik. The matter being reported in the village, it had been settled. Be that as it may, the accused persons bore grudge and 3/4 days prior to the incident, had given life threat to Bijaya. During the night of occurrence, Bijaya as usual had been to Trinath Square for having smoke. He went around 8 P.M., and did not return till past mid night. So, the Informant (P.W.3) with her Aunt-in-law Sita Devi (P.W.4) went in search of Bijaya. Arriving near Bhagabata Ghara CRLA No.231 of 2003 Page 2 of 11 Chaka, the Informant (P.W.3) saw one Chitra Naik (P.W.5) getting down from a Tamarind tree and he told her to go and she if her husband, who was lying at Trinath Square after having been brutally assaulted by the accused persons and receiving bleeding injuries was alive or dead. The Informant (P.W.3) rushed to the place and saw her husband lying dead in a pool of blood near the house adjacent to Mahavir Club. The Informant (P.W.3) saw her husband’s head to have been crushed by a stone and there were several injuries on his face, head and other parts of the body. An iron knife (Katuri) was then lying at the spot. The report as above being reduced into writing
Legal Reasoning
by the IIC, Khurda Police Station, the same was treated as FIR and case being registered, he directed the Sub-Inspector (S.I) of Khurda Police Station to take up the investigation. 3. In course of investigation, the Investigating Officer (I.O) (P.W.11) examined the Informant (P.W.3) and her Aunt Sita Dei. He visited the spot and prepared the spot map (Ext.18). The I.O (P.W.11) also examined Nabakishore Samantasinghar (P.W.1) in front of whose house, the dead body of the deceased was lying. The I.O (P.W.11) conducted raid in the house of accused Balaram Naik and seized his wearing lungi and prepared the seizure list in presence of the witnesses (Ext.13). He then arrested accused Balaram Naik. The accused led the I.O to the spot while in custody and gave recovery of the stone which was seized in the presence of the witnesses vide Ext.8. The I.O (P.W.11) then conducted raid in the house of Kanhu and arrested him from his house and while in custody, he gave the same statement as that of accused Balaram and at the same time stated that he along with others namely, Dipti CRLA No.231 of 2003 Page 3 of 11 Ranjan Naik, Khetramohan, Balaram, Prasana, Amina & Alok had assaulted the deceased by means of lathi, baton & hockey stick when the deceased threatened them to kill by means of a Katuri. The I.O (P.W.11) seized the hockey stick from the club under the seizure list vide Ext.9 in presence of witnesses. He then raided the house of accused Alok Naik and arrested him. While in police custody, accused Alok stated to have assaulted the deceased by means of beton while others assaulted the deceased by means of hockey sticks & lathis. The I.O also seized the blood stained napkin from his possession under seizure list vide Ext.12. He then made inquest over the dead body at 6.15 a.m in presence of witnesses. After completion of inquest, the I.O found a blood stained Katuri (M.O-I) and seized sample of blood stained earth along with M.O-I vide Ext.10. The dead body of Bijaya was sent for Postmortem Examination by issuing necessary requisition. The I.O (P.W.11) conducted raid in the house of accused Khetramohan, Deepti, Prasana Behera & Amina Naik and arrested Khetramohan and Deepti. He sent all the accused persons to Khurda Hospital for their medical examination and collection of nail clippings and scrapings and forwarded them in custody to Court. The wearing apparels of the deceased were seized by the I.O (P.W.11). The I.O (P.W. 11) sent all seized incriminating articles for Chemical Examination to F.S.L., Rasulgarh through Court. On completion of investigation, the I.O (P.W.11), submitted the Final Form showing Prasana Behera & Amina Naik as absconder and other accused persons to face the Trial for commission of the offence under section 148/302/149 of the IPC. CRLA No.231 of 2003 Page 4 of 11 4. Learned SDJM, Khurda receiving the Final Form as above, took cognizance of the said offences and after observing the formalities committed the case to the Court of Sessions and that is how the trial commenced. 5. 6. The plea of the accused is that of denial and false implication. In the Trial, prosecution in total has examined eleven (11) witnesses. P.W.1 is the persons, in front of whose house, the deceased was lying whereas P.W.3 is the wife of the deceased and P.W.5 is the person from whom P.W.3 learnt about the incident. Another person, who had heard about the occurrence from P.W.5 has been examined as P.W.2. The Doctor, who had conducted autopsy over the dead body of the deceased is P.W.6 and P.W.7 is the Doctor, who had examined accused Balaram, kanhu, Deepti, Khetramohan and Alok. P.W.8 is the witness, who had arrived at the spot hearing hulla and the other important witness is the Investigating Officer (I.O-P.W.11). Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.24. The Trial Court upon examination of the evidence and their evaluation has held the prosecution to have established the charges against the accused persons beyond reasonable doubt. Accordingly, accused persons have been convicted for the offences under section 148/302/149 of the IPC and they have been sentenced as aforestated. CRLA No.231 of 2003 Page 5 of 11 7.
Legal Reasoning
Learned counsel for the Appellant (accused) submitted that the sole eye witness to the occurrence examined in the trial as P.W.5 having not supported the prosecution case and as no such material has been elicited by the prosecution from him during cross- examination being so permitted by the Trial Court as also in the absence of any other reliable evidence, the Trial Court ought not to have convicted the accused persons merely basing on the circumstance that human blood of the same group as that of the deceased had been noticed on their wearing apparels as also found in their nail clippings and scrapings; when the same has been properly explained deriving support from the evidence that these accused persons had gone near the injured and had nursed him as also had given water to drink showing all the possibility of the oozed blood of the deceased coming to stick on their wearing apparels and nails. He further submitted that the Trial Court has unnecessarily placed reliance upon the evidence of P.W.2 to P.W.4, who in no way have implicated the accused persons. According to him, when P.W.5 does not speak anything against the accused persons, the evidence of P.W.2 to P.W.4 that before them P.W.5 had so spoken implicating the accused persons being not believable and admissible ought to have been wholly discarded. It was also submitted that the evidence as to the recovery of wearing apparels from the house of accused Balaram Pradhan pursuant to his statement while in police custody as also the disclosure statement of accused Alok ought not held to have been proved as per law for being acted upon. In view of all these above, he contended that the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. CRLA No.231 of 2003 Page 6 of 11 8. Learned Counsel for the Respondent-State supporting the finding of guilt against the accused persons as has been rendered by the Trial Court, submitted that even though P.W.5 has not supported the prosecution case by resiling from his previous version when it is stated by P.W.1 to P.W.4 that P.W.5 had told them about the complicity of the accused persons as the author of the injuries received by the deceased leading to his death, no fault can be found with the Trial Court. He next submitted that coupled with the evidence of P.W.2 to P.W.4 when the circumstance as regards detection of human blood of the same group as that of the deceased on the wearing apparels of the accused persons as well as their nail clippings and scrapings stands proved; the conviction of the accused persons has to be held to be well in order. 9. Keeping in view the submissions made, we have carefully read the judgment of conviction impugned in this Appeal. We have also gone through the depositions of all the witnesses P.W.1 to P.W.11. We have also perused the documents which have been admitted in evidence and marked Ext.1 to Ext.24. 10. The prosecution having proved the nature of death of Bijaya to be homicidal by examining the Doctor (P.W.6), who had conducted Post Mortem Examination over the dead body and prepared the report Ext.2 as well as evidence of other witnesses including the I.O (P.W.11), who had conducted inquest over the dead body and other witnesses, who had seen Bijaya with such injuries; that had not faced any challenge before the Trial Court and now also it is not facing any challenge in this Appeal. CRLA No.231 of 2003 Page 7 of 11 11. The question before us is whether the prosecution has established the charge against these accused persons that they being members of unlawful assembly in prosecution of the common object of the said assembly had intentionally caused the death of Bijaya by inflicting injuries on him by lethal weapons such as katuri, hockey stick and stone. The prosecution in order to bring home charges has examined P.W.5 as the star witness. This P.W.5 during the trial however has not supported the prosecution case. His evidence is that after he saw Bijaya being called by five outsiders, who had come there in a motorcycle taking Bijaya towards Bauri Sahi when he heard the cry “Marigali Marigali”. He (P.W.5) straightway came to their Sahi instead of going towards the spot. He has not named any of these accused persons to have arrived there in a motor cycle in taking Bijaya with them. He has further stated that eight to ten persons including the accused persons were sitting in the Sahi when he returned and these accused persons were among them, who were told about the incident by him (P.W.5). He has further stated that these accused persons and others then had gone to the spot in rescuing the deceased and some of them had given water to Bijaya who died there. The witness being permitted to be cross-examined by the prosecution, we find that except drawing attention to the previous statement said to have been made before the I.O (P.W.11), no further material has been elicited to provide any aid to the prosecution case especially giving any indication as to the presence of these accused persons at the spot before P.W.5 left the area and came to Sahi. He has further stated that these accused persons as well as Amina and CRLA No.231 of 2003 Page 8 of 11 Prasana and four others had come to the spot where Bijaya was lying dead and then they had made the attempt to verify as to if he was drunk but he was seen bleeding at that time. He has further stated that when they were engaged in that exercise, the oozed blood of the deceased came in contact with their clothing etc. Thus P.W.5 is not only found to have not implicated the accused persons in the said incident in any manner but also he is found to have stated these accused persons had come to save the deceased and acted in that direction by providing water. P.W.2 to P.W.4 are the witnesses before whom that it is said that the P.W.5 had told that the accused persons had assaulted the deceased. When P.W.5 does not state the said fact, the evidence of P.W.2, P.W.3 and P.W.4 that P.W.5 had told that all the accused persons had killed the deceased by assaulting in no way stand to fevour the prosecution as that in our view is not admissible since going without foundation. The Trial Court, therefore is not found to be right in accepting the version of P.W.2 and P.W.4 in ruling the complicity of these accused persons when the source i.e. P.W.5 is silent in that regard. Moreover, P.W.8 when states that he and P.W.3 reached at the spot simultaneously; he does not state P.W.3 to have told him anything implicating these accused persons in inflicting the injuries upon the deceased which thus completely stand belie the version of P.W.3 that she by the time of arrival at the spot knew about the happenings in the incident especially the role of these accused persons. Had it been so, the conduct on the part of P.W.3 is maintaining silence before P.W.8 tells upon the credibility of the evidence of P.W.3. CRLA No.231 of 2003 Page 9 of 11 12. The circumstance projected by the prosecution being that human blood of the same group as that of the deceased was found on the wearing apparels of the accused persons and in their nail clippings and scrapings, the explanation from the side of the accused persons is that they having gone to the spot saw Bijaya lying with bleeding injury and asking water and therefore they gave some water to Bijaya who died sometime thereafter. It is stated that in that situation and in the process, some oozed blood had fallen on their wearing apparels of the accused persons. The above explanation derives support from the evidence of P.W.5 as already discussed. He too has stated to have told the accused persons about the happenings with Bijaya and then all had gone with him to the spot in rescuing the deceased. The accused Kanhu having been examined himself as D.W.1 has stated in support of the said explanation as regards some injury found on the accused persons. They have also provided explanation through D.W.1 that being assaulted by police after their arrest; they had received such injuries on their persons. The explanations of the accused persons as appear in evidence thus cannot in the circumstance be said to be afterthought. 13. In that view of the matter, the recovery of the wearing apparels etc. even if accepted for a moment to have been so made at the instance of the accused persons pursuant to their statement, the said evidence would not suffice the purpose of ruling upon the complicity of these accused persons. We are, therefore, of the considered view that the finding of the Trial Court that the prosecution as established the charges against the accused persons beyond reasonable doubt cannot be sustained. CRLA No.231 of 2003 Page 10 of 11 14. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 20.09.2003 passed by the learned Adhoc Additional Sessions Judge (Fast Track Court), Khurda in S.T Case No.20/4/68 of 2003 are hereby set aside. Since the Appellants (accused persons) are on bail, the bail bonds executed by the Appellants (accused persons) shall stand cancelled. (V. Narasingh) Judge (D. Dash) Judge Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Sep-2024 12:22:22 CRLA No.231 of 2003 Page 11 of 11