MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.85 of 2008 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment dated 14.08.2008 passed by the learned Adhoc, Addl. Sessions Judge, Fast Track Court, Padampur in C.T. Case No.147/47 of 2007. Pankaj Pruseth …. Appellant -versus- State of Orissa …. Respondent For Appellant : Ms. Bhaktisudha Sahoo, Amicus Curiae For Respondent : Mr. P.K. Mohanty, ASC CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 19.03.2024 : Date of judgment : 15.04.2024 V. Narasingh, J. The Appellant, has called in question the judgment of conviction U/s.302 of the Indian Penal Code, 1860 (‘IPC’) and order of sentence dated 14.08.2008 passed by the learned Adhoc Addl. Sessions Judge, Fast Track Court, Padampur, in Criminal Trial No.147/47 of 2007 corresponding to Bijepur P.S. Case No.13 of 2007 in the Court of learned J.M.F.C., Sohela directing him to undergo rigorous imprisonment for life and pay a fine of JCRLA No.85 of 2008 Page 1 of 13 Rs.10,000/- in default to undergo simple imprisonment for one year more. 2. The case of the prosecution is that the deceased Sagar Pradhan, aged about 60 years having renounced the world around year 2000 was leading ascetic life and staying in Sidheswar Matha at Village-Majhipali, P.S.- Bijepur. The informant, who is the son- in-law of the deceased, Pandaba Sahu-P.W.1 got information that on 23.02.2007 his father-in-law was severely injured and on getting such information, he went to the spot along with Govinda Pradhan, Daitari Pradhan and Bhojaraj Pradhan, namely, P.Ws.2, 4 and 3 respectively and on reaching the spot, he found his father-in-law, Sagar Pradhan was lying dead with bleeding injuries on his shoulder and ear. 3. It is also stated that one Banamali Bhoi and Daka Majhi, while passing by the Matha at about 6 A.M. on the day of occurrence, saw the deceased lying with bleeding injuries and it was their version that the deceased disclosed before them that one monk locally known as “Kumpatia Baba” had assaulted him and while saying so, he asked them to take him inside the Matha. It is relevant to note that they were not cited as witnesses in the trial. JCRLA No.85 of 2008 Page 2 of 13 4. It is the case of the prosecution that the Appellant, who also belongs to the sect of “Alekha Mahima”, had picked up a quarrel with father-in-law (deceased) of the informant, P.W.1 to stay in the Matha, is the perpetrator of crime. Accordingly, on the
Legal Reasoning
basis of FIR by P.W.1, Bijepur P.S. Case No.13 dated 23.02.2007 was instituted. 5. On perusal of the FIR (Ext.1), it is seen that in the accused column, it has been mentioned as “unknown monk (Kumpatia Baba)”. During the course of investigation, on 19.05.2007, almost 2½ months of the date of occurrence and institution of FIR dated 23.02.2007 on getting telephonic information from Bijepur police station of village Bangidunguri, that one Kumpatia Baba (Appellant) has been detained and being identified as the person who committed the crime in question, the Appellant was taken into custody. 6. It is alleged that the accused confessed to his guilt and identified the spots where he had assaulted the deceased and thrown the weapon of offence Bamboo thenga. On receipt of the post- mortem report and examination of witnesses, the I.O.-P.W.14 filed the charge sheet against the Appellant U/s.302 of IPC in G.R. Case No.47 of 2007 on the file of learned J.M.F.C. Sohela and the case JCRLA No.85 of 2008 Page 3 of 13 was committed to the Court of learned Additional Sessions Judge, Bargarh and on being transferred, the trial was conducted by the learned Adhoc, Addl. Sessions Judge, Fast Track Court, Padampur in C.T. Case No.147/47 of 2007. 7. The prosecution in order to establish its case, examined 14 witnesses and also documents were marked as exhibits of which Ext.1-FIR, Ext.8-Post-mortem Examination Report, Ext.18- Chemical Examination Report are of significance. 8. No evidence was led on behalf of the defene nor any documents were exhibited. 9. It is apposite to note that the prosecution chose not to produce any M.Os. during the course of trial. 10. P.W-12, Dr. Prasanta Kishore Dash is the Doctor, who conducted the post-mortem. And, on such examination P.W.12 found thus; “xxx xxx xxx 2. The bruise and abrasion noticed in the person of the dead body may be possible on fall over hard and blunt surface. The fracture on the femur as noticed on the person of the dead body may be possible due to violent fall from a upper lavel on the ground. Possibility cannot be excluded about survival of the deceased,, if immediate medical intervention would have been extended, to him after the sustaining of noted injuries on his person. I cannot deny the JCRLA No.85 of 2008 Page 4 of 13
Legal Reasoning
suggestion that distance between Bijepur and Bargarh is 30 Kms. To my knowledge one hospital is situated at Bijepur. xxx xxx xxx” [Extract of Ext.-8 Post-mortem report] 11. Hence, there is no iota of doubt that death of Sagar Pradhan, the father-in-law of the P.W.1-Informant was homicidal. 12. Admittedly, there is no direct evidence in the case at hand and the allegation of the prosecution is based on circumstantial evidence and the approach of Courts in evaluating circumstantial evidence is no longer res integra, has been reiterated recently by the Apex Court in the case of Raja Naykar vrs. State of Chhattisgarh (in Criminal Appeal No.902 of 2023 disposed of on 24.01.2024, 2024: INSC 56) reiterating the “Panchsheel” Principles as stated in the case of Sharad Birdhichand Sarda vrs. State of Maharashtra reported in (1984) 4 SCC 116. 13. In order to establish the guilt of the Appellant, the prosecution primarily relied on the evidences of P.Ws.7 and 10. 14. It is the evidence of P.W.7 that he saw the deceased lying in a pool of blood and as the deceased called him, he rushed to his side to help him and there the deceased stated to have disclosed that “one Kumputia Baba that means a monk having grey coloured JCRLA No.85 of 2008 Page 5 of 13 dresses and believer of Mahima Alekh” has assaulted and deceased requested to inform the family so as to shift him to the hospital for his treatment. 15. P.W.10 is the other star witness on behalf of the prosecution. He has stated that on the fateful day, he had been to the Matha and saw the deceased-Sagar Pradhan was trembling and lying in a pool of blood and it is his version that the deceased had told him that “Gotia Lal Baba Pitikori Polaijaichi se pandoro badi pitichi abom se ethare rohe” (in vernacular) which means that one person, who used to reside in that Matha and wears red apparels, assaulted about 15 times and then fled away. 16. In his cross examination, P.W.10 has clarified that the deceased did not name the Appellant but gave description about identity of the accused persons saying “Lal Baba jiye tomor gaanre rahuthila” (in vernacular). Translated into English, it means “Baba wearing red clothes who was staying in your village” 17. It is relevant to note here that in the first instance, during the course of investigation, P.W.10 has not stated so before the I.O.- P.W.14. 18. The relevant extract of statement of I.O. runs thus; “3. P.W.10 has not stated before me in specific that accused person assaulted to the deceased by JCRLA No.85 of 2008 Page 6 of 13 inflicting 15 successive thenga blows but he has stated before me that accused person Kumputia Baba assaulted by means of Thenga Badi. The witness P.W.10 had stated before me that one Kumputia Baba had assaulted the deceased. xxx xxx xxx” 19. P.W.11- Dutia Bag is also stated to be a witness to the oral dying declaration of the deceased. He has stated thus; “……… The deceased disclosed before us that a Baba has assaulted him. We came back and intimated the fact to his family members. ……….” 20. The learned trial Court, on the basis of evidence of P.Ws.7, 10 and 11 who are witnesses to the oral dying declaration and considering that the witnesses are independent and have no motive in falsely implicating the deceased, arrived at the conclusion that the Appellant is the perpetrator of the crime. 21. Learned Amicus Curiae, Ms. B. Sahoo submits that the Appellant has been falsely implicated in the case at hand only because he also belong to ‘Alekha Mahima Sect’ and as it is customary and ritualistic, he wears red clothes. 22. It is her further submission that the identity of the accused- Appellant has never been established beyond reasonable doubt. On a mechanical appreciation of the evidence of P.Ws.7, 10 and 11, the learned Trial Court jumped to the conclusion that the Appellant is Page 7 of 13 JCRLA No.85 of 2008 the author of the crime disregarding his plea of innocence and in this context, she also invites the attention of this Court to the statement of the accused recorded U/s.313 of the Cr.P.C. wherein, the Appellant has taken a specific stand that he has renounced the world leads the life of a Sanyasi and he was arrested from Nrusinghanath Temple and has been falsely implicated in this case. 23. Per contra, learned Additional Standing Counsel, Mr. Mohanty-Public Prosecutor supports the judgment of conviction and the sentence imposed. 24. The identity of the accused is of seminal importance in the case at hand, since admittedly the FIR is against “unknown” and the accused has been described as “Kumputia Baba” Judicial notice can be taken of the fact followers of “Alekha Mahima Sect” wear red clothes. Admittedly, Appellant is a follower of the said Sect and wears red clothes. 24-A. Hence this Court is called upon to examine as to whether the accused-Appellant in the dock who wears red dress being the believer of “Alekha Mahima Sect” is the author of the crime as held by the learned Trial Court. 25. The prosecution has relied heavily on the evidence of P.Ws.7, 10, and 11. JCRLA No.85 of 2008 Page 8 of 13 26. P.W.7 in his very opening statement has stated “I do not know accused person standing in the dock.”. P.W.11 has also not identified the accused-Appellant. He has stated, “I have no acquaintance with the accused person standing in the dock.”. P.W.10 is the other witnesses to the alleged oral dying declaration. It has come out from the evidence of P.W.10 that since he was frequenting the Matha, he knows the accused-Appellant and referring to the statement of Sagar Pradhan (deceased) that Lal Baba who was staying there had assaulted, tries to implicate the Appellant as the author of the crime. 27. It is apt to note that P.W.10 in his cross examination has admitted that he has not stated regarding the involvement of the accused before the I.O. The statement of the I.O.-P.W.14 which has already been quoted above at the cost of repetition, for convenience of reference and appreciation is extracted hereunder; “3. P.W.10 has not stated before me in specific that accused person assaulted to the deceased by inflicting 15 successive thenga blows but he has stated before me that accused person Kumputia Baba assaulted by means of Thenga Badi. The witness P.W.10 had stated before me that one Kumputia Baba had assaulted the deceased. xxx xxx xxx” JCRLA No.85 of 2008 Page 9 of 13 28. Special features of the case at hand which ought to have been examined by the learned Trial Court are as under, more so when one is dealing with an accusation U/s.302 of IPC. 29. It is curious to say the least that the weapon of offence sent for chemical examination report and on which human blood was found though no opinion regarding grouping could be done because the quantity was insufficient as borne out from the chemical examination report Ext.18 was not produced nor even the wearing apparels of the deceased. 29-A. It is of relevance to note that P.Ws.7, 10, and 11 do not state the presence of each other at the time when the deceased is said to have made the statement that one Lal Baba assaulted him. Such conduct creates a doubt regarding the authenticity of the said statement. 29-B. In the case at hand the presence of the accused in a nearby Bhagabat Tungi under the same Police Station after two months lends credence to the presumption of his innocence because it is common human behavior that a perpetrator of crime, who has escaped without being detected, would try to conceal himself rather than to expose himself to be implicated. JCRLA No.85 of 2008 Page 10 of 13 29-C. The prosecution has not been able to place on record any evidence that the accused had made any attempt to wear different apparels instead of wearing the red ones so as to conceal his identity. 29-D. The specific stand by the accused U/s.313 Cr.P.C statement also cannot be lost sight of in the background of the case at hand, as has been held in the judgment of the Apex Court in the case of Sharad Birdhichand Sarda (supra) in a case based on circumstantial evidence, the circumstances must be so intrinsically linked so as to form a chain which will exclude any hypothesis of innocence of the accused. 30. In the case at hand on an analysis of evidence on record, this Court is persuaded to hold that the prosecution has signally failed to link accused-Appellant as author of the crime but unfortunately, since he belongs to “Alekha Mahima Sect” and wears red apparels has found him guilty of commission of offence. The prosecution has not made any attempt to place on record the evidence that save and except the present accused, there was no one else of this sect around. 31. The learned Trial Court relying on the sanctity of dying declaration failing to appreciate that identity of accused in the dock JCRLA No.85 of 2008 Page 11 of 13 having not been established, without proper appreciation of evidence on record hastily arrived at the conclusion that the accused-Appellant is the author of the crime and allowed his assessment to be prejudiced by the so called motive that the accused-Appellant wanted to stay in the Matha which was resisted by the deceased. 32. This Court on close analysis of the evidence on record, cannot persuade itself to hold that the prosecution has been able to establish the chain of circumstance. Since patently there are gaping holes in the case of the prosecution and analyzing the evidence on record relating to a case on which the accusation is based on circumstantial evidence, on the touchstone of the law laid down by the apex Court in the case of Sharad Birdhichand Sarda (supra), this Court holds that the judgments of guilt as pronounced and sentence imposed are liable to be set aside. 33. 34.
Decision
Accordingly, the Appeal is allowed. Since the Appellant has been released on bail, the bail bonds stands discharged. 35. Before parting with the case, this Court places on record its appreciation for the assistance rendered by the learned Amicus JCRLA No.85 of 2008 Page 12 of 13 Curiae Ms. Bhaktisudha Sahoo and the fairness of the learned Public Prosecutor, Mr. P.K. Mohanty, ASC. (V. Narasingh) Judge D. Dash, J : I agree. (D. Dash) Judge Orissa High Court, Cuttack Dated the 15th of April, 2024/ Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 09-May-2024 18:20:48 JCRLA No.85 of 2008 Page 13 of 13