MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.92 of 2008 In the matter of an Appeal under section 383 of the Code of Criminal Procedure,1973 from the judgment of conviction and order of sentence dated 22.08.2008 passed by the learned Addl. Sessions Judge, Gajapati, Parlakhemundi in Sessions Case No.37 of 2007. ---- Arjanta Bhuyan …. Appellant -versus- State of Orissa …. Respondent For Appellant - Mr. P. Mohanty, Advocate For Respondent - Mr.P.K. Mohanty, ASC CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of hearing : 05.03.2024 Date of Judgment:15.04.2024 V. Narasingh, J. 1. Heard Mr. P. Mohanty, learned counsel for the Appellant and Mr. P.K. Mohanty, learned Public Prosecutor for the State. 2. Assailing the judgment of conviction and order of sentence dated 22nd August, 2008 passed by the learned Addl. Sessions Judge, Gajapati, Parlakhemundi in Sessions Case No.37
Facts
of 2007 arising out of Serango P.S. Case No.02 of 2007 thereby JCRLA No.92 of 2008 Page 1 of 12 adjudging him guilty under Section 302 of IPC and directing him to undergo R.I. for life and fine of Rs. 5,000/-(Rupees Five Thousand) and to undergo further period of Rigorous Imprisonment for six months in default, the present appeal has been preferred by the Appellant from inside the jail. 3. It is the case of the prosecution that on 13.02.2007 at about 4 P.M. when the deceased a resident of village Abasing Sahi(Surangi) within the jurisdiction of Serango P.S. was asleep on the verandah of his house, the appellant came there being armed with Kati(sickle) and assaulted the deceased (Gajaru Bhuyan) by the blunt side of the same and thereafter tying the said Gajaru Bhuyan in a rope and dragged him up to his house. And, he did not relent even when the wife of the deceased tried to intervene and infact threatened her. 4. It is stated that because of such assault the deceased died instantaneously. 5. It is on record through the evidence of I.O., P.W.9 that on receipt of intimation regarding the occurrence on 13.02.2007, on 14.02.2007, he initially made a station diary entry No.240 at 5.30 P.M. at P.S. Thereafter he visited the spot, and received plain paper intimation of P.W.6, who fixed his L.T.I. The content of the same was read over and explained to him and he found to the same to be correct as per his version and treating the same as F.I.R., Serango P.S. Case No.02 of 2007 was instituted. 6. Investigation got underway. The inquest of the dead body was held and the same was sent for post mortem to D.H.H, Parlakhemundi and the accused was taken into custody on the same day i.e. on 14.02.2007. JCRLA No.92 of 2008 Page 2 of 12 7. After examining the material witnesses, the P.M. report and discovery of the alleged weapon of offence vide M.O.I, final form was submitted by the I.O., under Section-302 of IPC against the Appellant-accused and on the basis of the same Learned SDJM, Parlakhemundi in G.R. No.30 of 2007 committed the matter to the learned Addl. Sessions Judge, Gajapati, Paralakhemundi for the Appellant to face charge under Section- 448/302 of Indian Penal Code,1860 hereinafter referred to as “IPC”. 8. To drive home the charge, the prosecution examined 9(Nine) witnesses. Their description runs thus: P.W.1,3,5 & 7 are eye and as well as seizure witnesses. P.W.2 is the medical officer. P.W.4 is the widow of the deceased. P.W.6 is the informant. P.W. 8 is the constable, who took the dead body of the deceased from the spot to D.H.H., Parlakhemundi. P.W.9 is the Investigation Officer. 9. Several exhibits and material objects were marked on behalf of the prosecution of which Exhibit-1 is the post mortem report, exhibit-4/1 the F.I.R. are of significance. No evidence was let in by the defence and defence plea is one of complete denial and false implication, which is also borne out from the statement of the accused(Appellant) under Section-313 of Cr.P.C. 10. Learned counsel for
Legal Reasoning
as well as the defence and in our considered opinion the judgment of the High Court suffers from several defects as discussed in the preceding paragraphs. xxx xxx xxx 25. The learned Trial Court also failed to take note of the conduct of the accused which is a relevant factor under Section-8 of the Evidence Act. The appellant is accused of killing a co- villager. He being present all along in the absence of any evidence on record that the villagers confined him or restricted his movement lends credence to plea of the innocence of the accused-Appellant. 26. It is also worth noting that in the case at hand the information regarding the death was telephonically conveyed only the next day at about 10.50 A.M. on 14.02.2007 where as the occurrence is on 13.02.2007 at about 4 P.M. 27. There is no explanation relating to delay in institution of F.I.R. and in the background of the case at hand since the deceased allegedly had a relationship with the wife of the Appellant and there was altercation to the said effect one day prior to the incident and which has been cited as motive assumes significance as a plausible cause of false implications. JCRLA No.92 of 2008 Page 11 of 12 28. In the considered view of this Court, the case of the prosecution suffers from inherent contradictions and woefully lacks in material corroboration. 29. Hence, on a conspectus of evidence on record, on detailed analysis thereof, this Court cannot persuade itself to concur with the finding of guilt as arrived at by the learned Trial Court since the prosecution has not been able to establish the case beyond reasonable doubt. The judgment of conviction and consequential imposition of sentence is liable to be set aside. 30. 31. The Appellant is thus entitled to be acquitted. On perusal of the record, it is seen that the accused was released on bail by order dated 14.07.2014. The bail bonds stand cancelled. 32.
Arguments
the Appellant Mr. Mohanty submitted with vehemence that the learned Trial Court failed to JCRLA No.92 of 2008 Page 3 of 12 appreciate that P.W.1 and 4, who have been cited as an occurrence witnesses are the most interested ones. In as much as deceased was the nephew of P.W.1 and P.W.4 is the widow of the deceased. 11. It is his further submission that material contradictions which came to the fore through the evidence of I.O., P.W.9 have also been ignored. And because of such perverse appreciation, it is submitted that the Appellant is entitled to be acquitted since the prosecution have miserably failed to prove the guilt of the Petitioner beyond reasonable doubt. 12. Per contra, the learned counsel for the State supports the impugned judgment and submits that there is no infirmity in the appreciation of evidence on record and rightly taking into account the version of the prosecution witnesses P.W.1,4,5 & 7, order of conviction has been passed. And, as such the appeal does not merit consideration. 13. P.W.2 is the Medical Officer, who conducted the post mortem of Gajaru Bhuyan and found the following external and internal injuries. xxx xxx xxx 3. There is a ligature mark over the neck above the thyroid cartilage running transversely across the neck and extending on the right side up to the occipital region and the left side of the neck up-to the angle of mandible. There is bruise over right side of the face of size 2"x2". There is bruise over left side of the scalp above left ear of size 3"x 21/2". JCRLA No.92 of 2008 Page 4 of 12 Bruise over front sice of the chest of size 21/2"x 1- 1/2". Bruise over left side of the chest of size 1/2" x 2". There are multiple small abrasions over both lower limbs and over left fore arm. 4. On dissection it is found the subcutaneous tissues under the ligature mark are ecchymosed. There is extensive bruising of the neck mussle on both sides of the neck. Larnex and trachea are conjested and contain frothy blood stained mucus. Both the lungs are partly conjusted. All other viscera are conjusted. xxx xxx xxx Also noted, inter alia, discharge of faceal material from the anus and that Rigor mortis present in the lower limbs and opined that all the injuries are ante mortem in nature and cause of death is Asphyxia with strangulation. It is apposite to note that the said expert witnesses also stated that if a person is dragged with a rope tied to his neck there would be Asphyxia causing death and the same is also a form of strangulation. From the evidence of P.W.2 there is no iota of doubt that the death of Gajaru Bhuyan was homicidal. 14. The learned Trial Court relied on the evidence of P.W.1, the neighbor, P.W.4 widow of the deceased and P.W.5 uncle of the deceased and the recovery of alleged weapon of offence and M.O.I(Kati), M.O.IV(rope) and found the Appellant guilty of the charges under Section-302 & 448 of IPC. 15. P.W.4 is the widow of the deceased and a star witness of the prosecution. She categorically states that JCRLA No.92 of 2008 Page 5 of 12 “ the accused came to her verandha and assaulted the deceased by means of sickle(Dau). On his neck by his blunt side and the accused thereafter tied the neck of the deceased by a rope and holding that rope the accused dragged the deceased towards his house. When I rushed towards the deceased to save him the accused threatened me to kill.” In the cross-examination her attention is drawn to her previous statement in as much as it is put to her that she has not stated the same to the police that the accused assaulted the deceased by sickle. The same runs thus: xxx xxx xxx “It is not a fact that I did not State to the police that the accused assaulted the deceased by the sickle” xxx xxx xxx 15A. At this stage it is worth referring to the statement of the I.O. in paragraph-3 of the cross-examination the I.O. has stated thus: xxx xxx xxx “It is a fact that P.W.4 did not say to me that the accused assaulted the deceased by Kati(sickle).” xxx xxx xxx 16. P.W.5 is another witness on whose evidence the learned Trial Court relied on to pronounce the Appellant-accused guilty. P.W.5 states about the assault on the deceased and the Appellant dragging the deceased towards his house by pulling that rope. He is also noted as a witness to confession made by the accused-appellant in the presence of police about his guilt and JCRLA No.92 of 2008 Page 6 of 12 also a witness to recovery of the weapon of offence given by the Appellant, as per the statement recorded under Section-27 of the Evidence Act, bringing out the same from his thatched roof. The statement has been marked as exhibit-5. 16A. The attention of the said P.W was also drawn to his previous statement to the police and it has been brought out in cross-examination that he had not stated about the involvement of the Appellant. The I.O. was confronted with the statement of P.W.5 and in his cross-examination he has stated as under: xxx xxx xxx “it is a fact that P.W.5 did not state to me that the accused killed the deceased by sickle and rope” xxx xxx xxx 17. In her deposition P.W.1(the Aunt of the deceased) does not name any one who has seen the occurrence including P.W.4(the wife of the deceased). She has stated that 3 years prior to the death of the deceased she has come to the village as bride. She also stated that: “10 to 15 persons saw the murder. I cannot name any one of them” 18. In the considered opinion of this Court the non mention of P.W.4 is material omission and raises serious doubt regarding the testimony of both P.W.1&4. 19. Coupled with the same not mentioning about the assault to the I.O, who arrived at the village almost after 22-24 hours by the most interested witnesses P.W.4, widow and also P.W.1 JCRLA No.92 of 2008 Page 7 of 12 seriously dents the credibility of the prosecution regarding the involvement of the Appellant. 20. The other factor which weighed with the learned Trial Court was recovery in terms of the Section-27 of the Evidence Act, the weapons of offence M.O.I (kati), M.O.IV(Rope). Seizure of Mo-I(Kati), was proved through P.W.7, who claimed to be an eye witness. 21. It is important to note that admittedly the police reached the village on 14.02.2007 on the basis of information received on 14.02.2007, 10.50 A.M and occurrence is on 13.02.2007 at 4 P.M. But surprisingly P.W.7 states in his evidence that police reached the village on 13.02.2007 and he is a witness to recovery M.O-I(Kati). He also admits that he never told the I.O that he is an ocular witness. The relevant extract of the evidence of P.W.7 is culled out hereunder: xxx xxx xxx At that time, I was passing by that way and saw that the accused assaulted the deceased by means of a Kati already marked M.O.I on his neck causing his death on the spot itself. The police came to our village on the same day and arrested the accused and on interrogation by police the accused brought the kati vide M.O.I from his house and handed the same over to the police and stated that by the said Kati vide No.1 he killed the deceased. xxx xxx xxx JCRLA No.92 of 2008 Page 8 of 12 On an analysis of the same, this Court holds that the said witness cannot relied upon. This aspect has escaped the scrutiny of the case. 22. Recovery of weapon of offence is undoubtedly is an important facet of evidence. But as held by Apex court in the case of Venkatesh @ Chandra & Another Vs. State of Karnataka reported in 2022 SCC Online SC765 conviction cannot be solely based on account of the statement recorded under Section 27 of the Evidence Act, when the other material on record does not measure up to the scrutiny of the Court. 23. The learned Trial Court while analyzing the evidence on record has ignored the non-mentioning of P.Ws 4 and 5 about the Appellant being the perpetrator of crime to the I.O(P.W.9) as a mere “omission” so also the statement of the P.W.9 relating to P.W.7: “xxx xxx xxx It is a fact that P.W.7 did not state to me that he saw the occurrence while passing by that way and about the neck of the deceased on which he was assaulted. xxx xxx xxx” And held that the manner in which they describe the offence the non-mentioning of the Appellant as the person who gave the fatal blow has to be ignored and thus placing reliance on evidence P.Ws held the Appellant guilty. 23A. In doing so the learned Trial Court lost sight of the cardinal principle that any infirmity/lacuna in the prosecution case would enure to the benefit of the accused. This Court finds JCRLA No.92 of 2008 Page 9 of 12 the omission of P.W.4 & 5 regarding the appellant being the author of the crime as a material one which shakes the very foundation on which the accusation qua appellant rests. 24. The non-mentioning of P.W.4 about presence of P.W.1 and vice versa has not at all been addressed. Such conduct on the part of the said P.Ws, who are related to each other, non- attributing the assault to the Appellant in her statement by P.W.4, widow cannot be brushed aside as being done by the learned Trial Court and in the considered view of the Court is fatal to the prosecution. The same is against normal human conduct. This Court cannot persuade itself to hold that P.W.1 will not name the wife of the deceased (P.W.4) being present at the time of occurrence when it is the prosecution case that, the Appellant- accused also threatened the P.W.4. Such non mention raises a serious doubt regarding the trust worthiness of such witness. And the learned Court has signally failed to address the same. In this context reliance is placed on the judgment of the Apex Court in the case of Krishnegowda and Others Versus State of Kranataka reported in (2017)13 SCC 98. Paragraphs-33 & 44 of the said judgment is extracted hereunder for convenience of ready reference: xxx xxx xxx 33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, “witnesses are the eyes and ears of justice”. In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible JCRLA No.92 of 2008 Page 10 of 12 conclusion that the evidence of these witnesses cannot be a basis to convict the accused. 44. The Court should always make an endeavour to find the truth. A criminal offence is not only an offence against an individual but also against the society. There would be failure of justice if innocent man is punished. The Court should be able to perceive both sides i.e. the prosecution
Decision
Accordingly, the Appeal is allowed. Mr. D.Dash, J. I Agree. (V. Narasingh), Judge. (D. Dash) Judge. Orissa High Court, Cuttack Dated the 15th April, 2024/ Soumya Signature Not Verified Digitally Signed Signed by: SOUMYA RANJAN SAMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-May-2024 18:31:57 JCRLA No.92 of 2008 Page 12 of 12