MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.336 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 27th March, 2003 passed by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.71 of 2000. ---- 1. Lal Mohan Singh @ Sai; 2. Mangal Singh; and 3. Bara Singh -versus- …. Appellants State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.P.R.Barik, S.P. Mohanty and Prakash Choudhury (Advocates) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 14.08.2024 : Date of Judgment : 04.09.2024 The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 27th March, 2003 passed by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.71 of 2000 Page 1 of 17 CRLA No.336 of 2003 arising out of G.R. Case No.198 of 1999 corresponding to Kaptipada P.S. Case No.58 of 1999 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Udala. These Appellants (accused persons) including one Bada Chamuru Naik have been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, these accused persons have been sentenced to undergo imprisonment for life. 2. PROSECUTION CASE:- On 01.08.1999 around 2.30 p.m. one Sami Bhakta (Informant-P.W.1) lodged a written report with Officer-in- Charge (O.I.C.) of Kaptipada Police Station (P.S.) stating therein that on the previous day, when she was returning with her husband, namely, Bhamara Bhakta from Padmapokhari Market, two persons came running to them and out of them, one, namely, Bada Chamaru Naik, dealt a blow with the blunt side of the axe on the head of Bhamara. Receiving the said blow, Bhamara fell on the ground and then he was further assaulted. The Informant (P.W.1) ran away from the spot to the house of her friend and staying there for some time, informed her father-in-law and other villagers. CRLA No.336 of 2003 Page 2 of 17 On receipt of the above report, the O.I.C (P.W.6) treated
Facts
the same as FIR (Ext.1) and upon registration of the case, took up the investigation. 3. The Sub-Inspector (S.I.) of Police, namely, Angada Pradhan, (dead by the time of trial), investigated the case and in course of investigation, he had recorded the statement of the Informant (P.W.1) under section 161 Cr.P.C. He, having visited the spot, prepared the spot map (Ext.6) and held the inquest over the dead body of the deceased and prepared the report to that effect (Ext.2). He sent the dead body of the deceased for post mortem examination by issuing necessary requisition. On 10.10.1999, the second I.O. (P.W.6) took charge of the investigation from S.I.-Angada Pradhan. He (P.W.6) on completion of the investigation, submitted the Final Form placing the accused persons, namely, Lal Mohan @ Sai, Mangal Singh and Bara Singh to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Udala, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the CRLA No.336 of 2003 Page 3 of 17 charge for the offence under section 302 of the IPC against the accused persons, namely, Lal Mohan @ Sai, Mangal Singh and Bara Singh to face the Trial. It be stated at this stage that in the midst of the trial, after examination of seven prosecution witnesses, an application under section 319 of the Cr.P.C. was filed by the prosecution and move thereby was to arraign Bada Chamuru Naik as an accused. The order to that effect, being passed on 18.04.2001, the Trial commenced and all the witnesses were examined afresh against all including that accused, namely, Bada Chamuru Naik. 5. The prosecution, in support of its case, has examined in total six (6) witnesses during Trial. Out of them, the informant, who is the wife of the deceased, is P.W.1 whereas the P.W.2 is the father of the deceased. P.W.3 is a friend of the Informant (P.W.1) to whom the Informant (P.W.1) had told that the accused persons had killed her husband. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.5. The I.O, at the end, has come to the witness box as P.W.6. CRLA No.336 of 2003 Page 4 of 17 6. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 8. Out of those, the important are, the FIR (Ext.1), the inquest report (Ext.2); the post mortem report (Ext.3); and the spot map (Ext.6). 7. The accused persons, in their statement recorded under section 313 Cr.P.C., have taken the plea of complete denial and false implication. They, however, have not tendered any evidence in support of such plea.
Legal Reasoning
In view of all the aforesaid, we find that the finding of guilt against these accused persons, as has been returned by the Trial Court, is liable to be set aside. Accordingly, it is held CRLA No.336 of 2003 Page 11 of 17 that the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained. 14. Accordingly, we allow this Appeal and set aside the judgment of conviction and order of sentence dated 27th March, 2003 passed by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.71 of 2000 against the Appellants, namely, Lal Mohan Singh @ Sai; Mangal Singh; and Bara Singh. 15. Having held as above, since this Appeal has been preferred by three accused persons, namely, Lal Mohan Singh @ Sai, Mangal Singh and Bara Singh out of four accused persons, who have been convicted by the Trial Court under section 302/34 of the IPC and that other convict, namely, Bada Chamuru Naik, who was on trial with the present accused persons (Lal Mohan Singh @ Sai, Mangal Singh; and Bara Singh) standing charged for the same offence, we have heard Mr.P.K. Mohanty, learned Additional Standing Counsel as to what would be the impact of our foregoing findings upon the fate of the judgment of conviction and order of sentence in so far as accused, Bada Chamuru Naik, who has not appealed is concerned. He has ably and in a fair way, has assisted the Court in the matter. CRLA No.336 of 2003 Page 12 of 17 In this context, it may be stated that while dealing with a Criminal Appeal filed by only one of the convicts if the Court finds that there is no evidence worth the name to sustain the conviction of not only the accused, who has filed the Appeal but also the other accused, who has not appealed, we find no reason or justification as to why the power of this Court in view of the provisions contained in sections 401 & 482 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.’) cannot be exercised in certain eventuality to aside the conviction and sentence passed against the other accused, who has not appealed so as to see that manifest injustice may not be continued to be perpetrated for merely non filing of the Appeal by the co-convict. We are of the view that if in such eventuality, the Court would simply rule upon the judgment of conviction and order of sentence in so far as the convict, who has filed the Appeal is concerned, then such provisions as noted above in the Cr.P.C. would serve no purpose as having no life. 16. Upon discussion of evidence on record in great detail in the foregoing paragraphs, we have arrived at the conclusion that the prosecution has failed to establish its case. The findings rendered by us are inter-dependent and inextricably integrated insofar as these accused persons (Appellants) as well as the convict namely, Bad Chamru who has not filed the Appeal are concerned. In this CRLA No.336 of 2003 Page 13 of 17 context, we may refer to few authorative pronouncements which provide full supports to the view that we are going to take. 17. In case of Parbati Devi -V- The State; AIR 1952 Calcutta 835; two persons were convicted under section 120-B read with section 366 of the IPC. One of them appealed against the judgment of conviction and order of sentence. The Court came to the conclusion that there was absolutely no evidence to sustain the conviction of the Accused-Appellant as well as the other Accused-Non-Appellant. The question then arose for consideration was whether the conviction and sentence passed on that Accused (Non-Appellant) be set aside even, though he had not appealed. While dealing with that question, it has been observed as under:- “When we were considering the appeal by Parvati Devi we came to the definite conclusion that there was no evidence on the record which would justify a conviction for conspiracy as between Parvati Devi arid Shew Nath. It is not only in the exercise of the inherent power, but we consider it to be the duty of the Court to exercise jurisdiction in such a manner that manifest injustice may not be continued to be perpetrated. It does not matter that Shew Nath has not appealed. This matter having come to the notice of the Court, we think that we have got sufficient jurisdiction under the inherent powers of the Court under Section 561-A, Criminal P. C., 1898 to pass appropriate orders in the case of Shew Nath also.” 18. In case of Hari Nath & Another -V- State of U.P.; AIR 1988 SC 345, the Hon’ble Supreme Court, while setting aside the judgment of conviction and order of sentence passed against the CRLA No.336 of 2003 Page 14 of 17 Appealing Accused, who had been convicted under section 396 of the IPC and sentenced thereunder, also set aside the conviction and order of sentence passed against the Non-Appealing Accused holding that the same cannot sustain, consistent with the finding in and the result of the Appeal as the findings are inter- dependent and inextricably integrated. 19. In case of Nirmal Pasi & Another -V- State of Bihar; (2003) 24 OCR (SC) 431, the Hon’ble Apex Court, upon discussion of the evidence, came to conclude that the prosecution case, which relates to the arrest of the Accused-Appellants suffers from serious infirmities. The Trial was also held to be defective as most of the relevant incriminating evidence had not been put to the Accused-Appellants during their examination under section 313 Cr.P.C. in seeking explanation from them. So, the conviction of the Accused-Appellants and the order of sentence for the offence under section 396 of the IPC and the consequential order of sentence were set aside. Having said so, coming to deal with the case of the third Accused whose conviction, having been maintained by the High Court, he had not chosen to file an Appeal before the Apex Court, it has been held as follows:- “However, in view of what has been stated hereinabove, we find the case of Accused Krishna Choudhary not distinguishable from the cases of Sona Pasi and Nirmal Baheliya, Accused-Appellants and his conviction and the sentence passed therein should also be set aside.” CRLA No.336 of 2003 Page 15 of 17 With the above, the Hon’ble Court, while directing that the Accused-Appellants, namely, Sona Pasi and Nirmal Baheliya to be set at liberty forthwith, if not wanted in any other case, has also set aside the conviction for commission of offence under section 396 of the IPC and the sentence passed thereon as against the third Accused, namely, Krishna Choudhary though he has not appealed and directed that he too be released forthwith if his detention was not required in connection with any other case. 20. In view of our foregoing discussion and the position of law, as noted above, we, in the case at hand, conclude that the judgment of conviction and order of sentence passed by the Trial Court against Accused Bada Chamuru Naik though he has not appealed cannot be sustained and as such are liable to be set aside. 21. Resultantly, the judgment of conviction and order of sentence dated 27th March, 2003 passed by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.71 of 2000 arising out of G.R. Case No.198 of 1999 in respect of accused, Bada Chamuru Naik, who has not Appealed, are hereby set aside. Since the Appealing accused persons, namely, Lal Mohan Singh @ Sai, Mangal Singh and Bara Singh are on bail, the bail CRLA No.336 of 2003 Page 16 of 17 bonds executed by them shall stand cancelled. In case, the Non- Appealing accused Bad Chama is still in custody in serving the sentence, he be released forthwith in case his detention is not required in connection with any other case. (V. Narasingh) Judge (D. Dash) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 05-Sep-2024 12:32:47 CRLA No.336 of 2003 Page 17 of 17
Arguments
8. Mr.P.R.Barik, learned counsel for the Appellants (accused persons) submitted that the appreciation of evidence of P.W.1, who happens to be the wife of the deceased and is the most important witness for the prosecution since she claims to have seen the incident in her FIR (Ext.1), as has been made by the Trial Court in fastening the guilt upon the accused persons is wholly perverse. It was submitted that P.W.3 had implicated in total two persons including Bada Chamuru Naik, but then the charge-sheet was submitted against these three accused persons excluding Bada Chamuru, who had been later on during trial arraigned CRLA No.336 of 2003 Page 5 of 17 as an accused. He further submitted that when in the first round of examination of P.W.1, she has stated on oath that Bada Chamuru snatched away the axe from her husband and assaulted her husband on the blunt side of that axe and the accused persons, meaning these three accused persons were also with axe and assaulted her husband with the blunt side of the axe, it runs against the FIR version that two persons came and Bada Chamuru snatched away the axe from her husband, assaulted her husband, who was further assaulted. She (P.W.1) in the second round of examination, has stated that accused Bada Chamuru never came to the place and states that this accused Lal Mohan snatching away the axe from her husband (deceased) gave the blow on his head whereas the accused persons other than certainly excluding accused Bada Chamuru, assaulted by giving fists and kicks. He, therefore, submitted that with such great variance, in the evidence of the Informant (P.W.1) during her examination on both rounds as also the FIR version, the Trial Court, under no circumstance, ought to have placed reliance upon the version of P.W.1. to conclude that the prosecution has proved the charge against these accused persons beyond reasonable doubt. He also submitted that basing upon the evidence of CRLA No.336 of 2003 Page 6 of 17 P.W.3 that the accused Bada Chamuru, who has not joined in this Appeal as the Appellant, ought not to have convicted. He further submitted that the evidence of P.W.3 completely ruins the evidence of P.W.1 as regards the involvement of these accused persons, who being not the co-villager of P.W.1 has stated that P.W.1, having gone to her house, had disclosed that on the way, two persons holding an axe, chased her husband (deceased) and so she ran away from the spot out of fear, which again finds support from the version of P.W.6. He, therefore, submitted that the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained. 9. Mr.P.K. Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against these accused persons, as has been returned by the Trial court, submitted that the Trial Court, on detail discussion of the evidence of P.W.1 receiving corroboration from the evidence of P.Ws.3 & 6 as also the medical evidence is right in convicting these accused persons. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We CRLA No.336 of 2003 Page 7 of 17 have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.6) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.8. 11. The prosecution, has proved that Bhamara has met a homicidal death by examining the Doctor (P.W.5), who had conducted the autopsy over the dead body of Bhamara as he has stated that the death was on account of the injuries found on the head of the deceased, which are ante mortem in nature, which have not been challenged before the Trial Court nor is questioned before this Court. 12. In that view of the matter, we are now called upon to examine the evidence let in by the prosecution to judge the sustainability of the finding of the Trial Court that with the said evidence, the prosecution has established the charge against these accused persons. 13. The star witness for the prosecution is P.W.1, who is the wife of the deceased and the prosecution, has projected her as the sole eye witness. The FIR lodged by her (P.W.1), which has been admitted in her evidence and marked (Ext.1) carries the content that when this P.W.1 was coming with her husband (deceased) on the way, two persons came running CRLA No.336 of 2003 Page 8 of 17 and one named Bada Chamuru snatched away the axe from the hands of her husband assaulted him on his head by its blunt side and then her husband was further assaulted. It is not stated that both assaulted her husband after he fell down receiving the blow by Bada Chamuru by means of that axe on his head. The case accordingly was registered against Bada Chamuru and another being shown as ‘Unknown’ and on conclusion of the investigation, charge-sheet was, however, was not submitted against accused Bada Chamuru but against these three accused persons. P.W.1, in the first round of examination, has implicated accused Bada Chamuru to have first of all dealt the blow on the head of her husband by means of an axe by snatching the same from her husband. She has next stated that the accused persons were then armed with the axe and they assaulted her husband with the blunt side of axe. During the first round of examination, Bada Chamuru being not arraigned as an accused was not facing the trial and he came to the arena of trial, being so arraigned by virtue of an order upon an application filed by the prosecution under section 319 of the Cr.P.C. Be that as it may, P.W.1 even in the first round of examination, had not explained the discrepancy as regards CRLA No.336 of 2003 Page 9 of 17 the number of persons appearing before them when they were coming on the way as indicated in the FIR (Ext.1) and as stated by her on oath on 17.04.2001 when she was first examined. She has clearly stated that these accused persons do not belong to her village but states to have known these accused persons. Had it been so, it is found that the name of these accused persons were not stated in the FIR although the name of Bada Chamuru had been mentioned and even the number of persons coming and committing the offence as against her husband differs both in the FIR and her examination in the first round. When she was examined in the second round on 25.11.2002, she has gone to say that accused Bada Chamuru had never come to that place and accused Lal Mohan, having snatched away the axe from her husband, gave that blow on his head when other accused persons meaning Mangal Singh and Bara Singh to have assaulted her husband by giving fists and kicks. The evidence of P.W.1 greatly differs as regards the happening in the incident right from the beginning till the end as tendered during the first and second round of examination in the trial and that also do not tally with the narration in the FIR when P.W.1 states to have ran away from the spot out of fear and CRLA No.336 of 2003 Page 10 of 17 went to inform the villagers as well as her father-in-law (P.W.3), who clearly sates that P.W.1, having gone to them, had stated that on their way, they were chased by two persons and, therefore, she left the spot. Whereas P.W.6 says that P.W.1 told him that on the way, two persons snatched away the umbrella, bag and axe from her husband and chased after her husband to assault when she left the place. At the same time, P.W.5, who is the father-in-law of P.W.1 has stated to have simply been told by P.W.1 that when they were returning, her husband was killed. Thus, the evidence of P.W.3, in view of all the aforesaid discussion and reasons, in our view, is not at all reliable when that instead of receiving the corroboration from the evidence of other witnesses, rather gets the jolt therefrom. In such state of affair in the evidence, we conclude that the Trial Court, under no circumstance, could have relied upon the same to hold these accused persons are guilty of committing the murder of Bhamara Bhakta.