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IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.73 of 2012 In the matter of an Appeal under section 383 of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 30.11.2009 passed by the learned Adhoc Additional Sessions Judge, (Fast Track), Champua in S.T Case No.38/213 of 2009. Tipu Hembram …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. S. N. Mishra (4), Advocate For Respondent- Mr. P. K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D. DASH MR. JUSTICE G. SATAPATHY Date of Hearing :17.11.2023 :: Date of Judgment:04.12.2023 D.Dash, J. The Appellant, by filing this Appeal from inside the Jail, has challenged the judgment of conviction and order of sentence dated 30.11.2009 passed by the learned Adhoc Additional Sessions Judge, (Fast Track), Champua in S.T Case No.38/213 of 2009, arising out of G.R Case No.131 of 2009, corresponding to Baria P.S. Case No.14 of 2009 of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Champua. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of Indian Penal Code, 1860 JCRLA No.73 of 2012 Page 1 of 11 {{ 2 }} (in short, ‘the IPC’) and he has been sentenced to undergo imprisonment for life and pay fine of Rs.3000/- (Rupees Three Thousand), in default to undergo Rigorous Imprisonment for three months for the offence under section 302 of the IPC. Prosecution case:- 2. On 26.05.2009 evening around 7 p.m., Jaydev Purty along with his wife Gita (P.W.4) had gone to the weekly market at village Bardhana. Around 7 p.m., they were returning home. When they reached near Bada Bandha of their village, it is said that this accused Tipu Hembram obstructed them by showing a ‘Bhalla’ and thereafter he (accused) is said to have assaulted P.W.4 and dealt successive blows on his neck and face with that Bhalla. As a result, Jaydev sustained bleeding injuries on the neck and face and fell on the ground. Accused Tipu then called his son, the other accused, namely, Chitta (since acquitted). Accused Chita (since acquitted) having arrived, is said to have assaulted upon Jaydev on his neck by taking the Bhalla from his father accused Tipu. Seeing the assault upon Jaydev by this accused and his son Chitta (since acquitted) Geeta, the wife of Jaydev (P.W.4) out of fear, rushed to her house. She then immediately disclosed about the incident to her son and others. Hearing about the incident, initially nobody could gather courage to come to the spot as they apprehended serious danger to their life, yet in the late night, Geeta (P.W.4) with her husband’s younger brother and his wife came to the spot in search of Jaydev. They however did not find Jaydev at that place. On the following morning, Geeta (P.W.4) when again came to the spot, she found Jaydev lying there dead with injuries on his face and neck. She thereafter presented a written report (Ext.3) with the Officer-in-Charge JCRLA No.73 of 2012 Page 2 of 11 {{ 3 }} (OIC) of Baria Police Station in the District of Keonjhar. The written
Legal Reasoning
report (Ext.3) received by the OIC (P.W.11), was treated as FIR (Ext.3) and after registration of the case, the OIC (P.W.11) took up the investigation. In course of investigation, the I.O (P.W.11) examined the informant (P.W.4) and visited the spot, prepared the spot map (Ext.10). He then held inquest over the dead body of the deceased in presence of the witnesses and prepared the report (Ext.1) to that effect. Thereafter he seized the sample earth and blood stained earth from the spot under seizure list (Ext.2). He examined the other witnesses and sent the dead body for post mortem to the SD Hospital, Champua. The I.O (P.W.11) then arrested accused Tipu Hembam and Chitta Hembram from their village Jalli. While accused Tipu was in custody, he voluntarily is said to have stated before the I.O in presence of the witnesses by stating that on dt.26.05.2009, he being associated with his son Chittaranjan have caused the death of Jaydev Purty in order to take revenge of the previous grudge by assaulting with Bhalla near Badabandha of their village, while the said Jaydev Purty along with wife Geeta Purty were returning from Bardhana weekly market and the accused Tipu further disclosed before the I.O (P.W.11) that, he has concealed the weapon i.e. Bhalla inside his kitchen room on the SANGA and he could give recovery to the same. The I.O (P.W.11) recorded the statement of accused Tipu under Section 27 of the Indian Evidence Act, 1872 in presence of the witnesses vide Ext.12. Then he seized the weapon of offence near the house of the accused Tipu Hembram in presence of the witnesses and prepared the seizure list vide Ext.13 at the instance of accused Tipu. He also seized incriminating articles from the accused JCRLA No.73 of 2012 Page 3 of 11 {{ 4 }} Tipu Hembram such as one white colour half banion and one red colour napkin. He also seized the wearing apparels of the acquitted accused Chitta i.e. one black half pant and one check half shirt on his production in presence of the witnesses under the seizure list vide Ext.14. He examined the scribe of the FIR Abhimanyu Singh and other witnesses. The I.O further seized the wearing apparels of the deceased. He sent the accused persons to SD Hospital for collection of their blood sample, nail clippings and seized the same vide Ext.6/3 and Ext.7/3 and forwarded them to Court. The seized incriminating articles were sent for chemical examination to SFSL, Rasulgarh, Bhubaneswar through Court. On completion of investigation, Final Form was submitted by the I.O (P.W.11) placing this accused with his son Chitta to face the Trial for commission of offence under section 302/34 of the IPC. 3. Learned SDJM, Champua, having received the Final Form as above, took cognizance of the offence under section 302/34 of the IPC and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against this accused with his son Chitta (since acquitted) by framing the charge for the said offence. 4. In the Trial, prosecution in total has examined eleven (11) witnesses. Out of whom, P.W.4 is the wife of the deceased Jaydev and she is the star witness for the prosecution and the informant who had lodged the report (Ext.3) scribed by P.W.7 whereas P.W.1, P.W.2 and P.W.3 are the witnesses to the inquest. P.W.5 and P.W.6 are the witnesses to the seizures. The Doctor, who had conducted the Post Mortem Examination over the dead body of the deceased, has come to JCRLA No.73 of 2012 Page 4 of 11 {{ 5 }} the witness box as P.W.10 whereas the Investigating Officer (I.O) is P.W.11. 5. 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.16/1. Out of those, the important are the FIR (Ext.3), Inquest Report (Ext.1), Seizure List (Ext.4), Post Mortem Report (Ext.8) and Spot Map is Ext.10. 6. The plea of the accused is that of complete denial and false implication. However, the accused has not tendered any evidence in support of defence. 7. Learned counsel for the Appellant (accused) submitted that the entire case of the prosecution is based upon the evidence of P.W.4 and the other witnesses such as P.W.1, P.W.2, P.W.3, P.W.5 and P.W.6 are said to have corroborated the evidence of P.W.4. He submitted that the evidence of P.W.4 as regards the occurrence especially as to the role of this accused what she has stated is not at all believable when viewed with the other surrounding circumstances which have emanated from the evidence let in by the prosecution both oral and documentary. He thus submitted that the evidence of P.W.4 when cannot be said to be of sterling quality, the Trial Court in the absence of due corroboration on all material particulars ought not to have held that the prosecution has proved its case beyond reasonable doubt. He also submitted that when with the same set of evidence, the Trial Court has acquitted the son of this accused namely, Chitta yet without raising a doubt over the evidence of P.W.4 and other witnesses that this accused insofar as his JCRLA No.73 of 2012 Page 5 of 11 {{ 6 }} role is concerned is being falsely implicated has committed grave error in convicting this accused. 8. Learned counsel for the Respondent-State while supporting the finding of the guilt against this accused as has been returned by the Trial Court contended that when the presence of P.W.4 at the spot is no at all doubtful and as she has stated the accused to have given the fatal blow upon the deceased, with the available corroborative evidence as regards her disclosure before the other witnesses, namely, P.W.1, P.W.2, P.W.3, P.W.5 and P.W.6 and also the FIR version, the Trial Court has rightly convicted this accused. According to him, the Trial Court even though has found the evidence to be as not acceptable in so far as the part played by the accused Chitta (since acquitted), that has no adverse impact at all as regards to the acceptance of P.W.4 and others insofar as the role played and act done by this accused is concerned. According to him, the impugned judgment of conviction and order of sentence are not liable to be interfered with. 9. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.11 and have perused the documents admitted in evidence and marked Ext.1 to Ext.16/1. 10. Before proceeding to address the rival submission and judge the sustainability of the finding of the Trial Court, the evidence of the Doctor (P.W.10), who has conducted autopsy over the dead body of Jaydev being gone through, we find him to have noticed the following incised wounds:- JCRLA No.73 of 2012 Page 6 of 11 {{ 7 }} a. incised wound of size 5 x 2 ½ x 1 ½ c.m present 2 cm above sternal notch; which was extended laterally on left side towards nape of the neck injuring the underline trachea, sterno mastoid muscle, common carotid artery and jugular vain; Margine clean cut, well defined and evicted; b. incised wound of size 5 x 1 x ½ cm from adam’s apple of neck to tragus of right ear; c. incised wound of 3 x ½ x ½ from philtrum of upper lip to right cheek , half inch below the right eye; and d. incised wound of size ½ x ½ x ½ c.m on chin. 11. As per his evidence, the death was caused on account of shock and haemorrhage resulting from the injuries to the larger vessel of the neck, which was ante mortem in nature caused by sharp cutting weapon. He has also noted all his findings in his report (Ext.8) and having the occasion to examine the seized ‘Bhalla’ has opined that by using the same, the injury noticed on the neck of the dead body as also the other injuries were possible. The evidence of P.W.8 being taken with the evidence of the I.O (P.W.11), who had held inquest over the dead body of the deceased and had noted the injuries with their seats as seen by him in his report (Ext.1), so also the evidence of the other witnesses, which have not been seriously challenged, we are of the considered view that the death of Jaydev was homicidal in nature. 12. Admittedly, the sole eye witness to the occurrence is P.W.4, who is the wife of the deceased. She is also the informant and had lodged the FIR, which has been admitted in evidence and marked Ext.3. At this JCRLA No.73 of 2012 Page 7 of 11 {{ 8 }} stage, it be stated that when she has deposed during cross-examination that the FIR had been scribed by the police. She has further stated that the incident had been written in two papers at two places one at Balinala Sahi and other one at police station. However, we find that this FIR which has been admitted in evidence and marked Ext.3 has been written by the Sarpanch of Jalli Gram Panchayat, namely, Abhimanyu Singh who has been examined as P.W.7. He has stated that having come to know about the death of Jaydev from Geeta (P.W.4), he scribed the FIR and had read over and explained the contents of the same to P.W.4, who understanding the same to have been correctly written, had given her LTI. But this is not that FIR which the P.W.4 hints at. When above is the evidence of P.W.7, we do not find P.W.4 to have at all stated that the FIR, she presented had been scribed by P.W.7 to her dictation or after hearing the incident from her. She has simply stated that she lodged the FIR at Baria Police Station after scribing the FIR through another. But who is that another is not falling from her and what happened to the FIR scribed by Police is not getting explained. Thus there arises the suppression on the part of the prosecution in pressing the first version of P.W.4 which had been reduced into writing and treated as the FIR into service and this Ext.3 we cannot take as the first version of P.W.4. Coming to the narration in the FIR, it is seen that the version of P.W.4 therein is that first of all accused Tipu assaulted her husband Jaydev on his neck by giving the blow by that Bhalla which resulted his fall and thereafter, accused Chitta being called by accused Tipu, came running to the spot and snatching away the Bhalla from this accused Tipu gave another blow on the neck of Jaydev whereafter P.W.4 out of fear ran away. That being so, during the evidence, P.W.4 does not state JCRLA No.73 of 2012 Page 8 of 11 {{ 9 }} to have seen accused Chitta giving any blow by that Bhalla upon Jaydev. Her positive evidence is that this accused Tipu assaulted Jaydev on his neck and face by giving successive blows with that Bhalla and when he called his son accused Chitta (since acquitted), P.W.4 ran away. She is not even stating about that accused Chitta ariving at spot and she simply states that accused Tipu when called his son accused Chitta, she left. Thus we find that there was a definite tendency to implicate accused Chitta from the beginning in narrating that he had also assaulted deceased by that Bhalla. But that has been given a go by during the evidence. When such is the state of affair in the evidence of P.W.4, proceeding to examine the evidence of P.W.2, we find him to have stated to have learnt the news about the death of his brother-in-law, namely, Jaydev from P.W.4. He is however silent as to what P.W.4 had told to him. On the other hand, during evidence he has gone to say that both the accused persons had killed Jaydev. The same is the state of affair in the evidence of P.W.3 when he has stated to have heard about the news of death from Geeta (P.W.4), he states to have heard that Jaydev who is related to him as agnatic brother had been killed and his death was not the natural death. At this stage, the version of P.W.3 appears important in the matter of appreciation of evidence of P.W.4. He has stated that two to three months prior to the death of Jaydev a meeting had been convened in their village for deciding the allegation labeled by the daughter-in-law of Jaydev as to have committed rape on her and in that meeting Jaydev had begged apology. It is his further evidence that in the said meeting except accused Tipu, all others present suggested to teach a lesson to the deceased Jaydev whereas accused Tipu suggested to outcast him from their community. This gives that impression that many of the villagers were unhappy with the behaviour JCRLA No.73 of 2012 Page 9 of 11 {{ 10 }} and conduct of deceased Jaydev. According the evidence of P.W.3, Jaydev had four wives and P.W.4 is the second one. It has also been stated by P.W.3 during cross-examination that sahi people were not satisfied on Jaydev as he was keeping several wives and thereby sending a wrong message in the locality. P.W.4 at the same time has stated that she was having poor eye sight because of her age and her further conduct was that seeing the incident, she had not raised hullah or shout. P.W.6 has stated that he came to know about the incident from P.W.4 that accused Tipu and his son Chitta had caused the death of Jaydev by assaulting him by means of Bhalla but that is not the evidence of P.W.4, who has confined the entire allegation as to the causing of the injury upon her husband by accused Tipu and not the acquitted accused Chitta. The Doctor when has stated the injury on the larger vessel of the neck to be fatal leading to the death. With the available evidence keeping in view the departure made by P.W.4 from her version in the FIR (Ext.3) and the statement given in the Court, we are not in a position to accept her version that this accused Tipu had given that fatal blow. 13. The Trial Court though has stated the evidence of P.W.4 to be unimpeachable, we, however, find her evidence being taken together with the circumstance emanating from the evidence as well as the factum of suppression of the written report by police as per the version of P.W.4, as discussed above to be doubtful in so far as the complicity of this accused Tipu is concerned. We are therefore of the considered view that the evidence of P.W.4 cannot be taken to be of sterling quality so as to accept the same as regards the complicity of this accused to be the author of the fatal injuries upon Jaydev. JCRLA No.73 of 2012 Page 10 of 11 {{ 11 }} 14. On a conspectus of discussion of evidence as hereinabove, we are thus of the view that the prosecution has failed to establish the charge against the accused persons beyond reasonable doubt. 15. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 30.11.2009 passed by the learned Adhoc Additional Sessions Judge, (Fast Track), Champua in S.T Case No.38/213 of 2009 are hereby set aside. The Appellant (accused) be set at liberty forthwith if his detention is not required in any other case. G. Satapathy, J. I agree. Gitanjali (D. Dash), Judge. (G. Satapathy), Judge. Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 07-Dec-2023 12:40:32 JCRLA No.73 of 2012 Page 11 of 11