Mr. P.K. Maharaj, Addl. Standing Counsel. CORAM MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.139 of 2003 In the matter of an Appeal under section-374(2) of the Code of Criminal Procedure, 1973 and from the judgment and order of sentence dated 14th May 2003 passed by the learned Ad hoc Additional Sessions Judge, Fast Track, Jajpur in S.T. Case No.190/16/22 of 2002. ---- Narendra @ Narahari Bhuyan & Others …. Appellants -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellants - Mr. D. Panda, Advocate. For Respondent - Mr. P.K. Maharaj, Addl. Standing Counsel. CORAM MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH DATE OF HEARING :18.07.2024 : DATE OF JUDGMENT: 20.08.2024 D.Dash,J. The Appellants by filing this Appeal have assailed the judgment of conviction and order of sentence dated 14th May 2003 passed by the learned Ad hoc Additional Sessions Judge, Jajpur in S.T. Case No.190/16/22 of 2002 arising out of G.R. Case No.792 of 1998 corresponding to Binjharpur P.S. Case No.157 of CRLA No.139 of 2003 Page 1 of 15 1998 of the file of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Jajpur. The Appellants (accused persons) thereunder have been convicted for commission of offence under section-302/201/34 of the Indian Penal Code, 1860 (for short called as the IPC). Accordingly, the Appellants (accused persons) have been sentenced to undergo imprisonment for life and pay fine of Rs.2000/- each in default to undergo rigorous imprisonment for a period of six months each for the offence under section-302/34 of the IPC and undergo rigorous imprisonment for three (3) years and to pay fine of Rs.1000/- each in default to undergo rigorous imprisonment four (4) months each for the offence under section-201 of the IPC with the stipulation that the substantive sentences would run concurrently. 2. Prosecution case:- On 16th July 1998, the Gramarakhi of village Bainsiria (P.W.10) submitted a written report with the Sub-Inspector of Police-In-Charge of Bari Police Outpost (P.W.11) that while he was going to his village, he had received credible information that the dead body of a female was lying at Sarangapur Chhinda Pata. When he rushed to the spot, getting information, he saw the dead body of unknown female lying in that place with injuries on her mouth and eyes. The S.I. of Police attached CRLA No.139 of 2003 Page 2 of 15 to Bari Police Outpost (P.W.11) sent the same to Binjharpur Police Station and Unnatural Death Case No.25 of 1998 being registered, he took up the inquiry. In course of inquiry, he (P.W.11) visited the spot, took photographs of the dead body from different angles and held inquest over the dead body in presence of the witnesses and the Block Development Officer-cum-Executive Magistrate. He (P.W.11) then prepared inquest report, Ext. 1. In course of inquiry, he noticed injuries on the backside of the head of the deceased and bleeding from the injuries on the eyes, mouth as also black mark on the left cheek. Finding the name of the deceased to have been inscribed on her left hand, he noted all those in his report, Ext.1. He having visited the spot, he prepared the spot map, Ext.16. On the next day that is on 17.07.1998, he sent the dead body for postmortem examination by issuing necessary requisition. The postmortem report being received on 21.07.1998, it came to notice that it was a case of homicidal death. So P.W.11 by placing a written report sent the record of the U.D. Case to the OIC, Binjharpur Police Station for registration of the regular case. In course of inquiry, he had seized the wearing apparels of the deceased under seizure list, Ext.19. The OIC (P.W.12), treating the written report of P.W.11 as F.I.R. (Ext.11), registered the case and took up the investigation. In course of Page 3 of 15 CRLA No.139 of 2003 the same, he searched the house of accused-Sakarsan and the sister of accused-Narendra @ Narahari. During search of the house of accused-Sankarsan, he seized a letter under the seizure list, that letter has been marked as Ext.20. Investigation in this way continued and ultimately Final Form was submitted placing the accused persons to face the trial for commission of offence under section-302/201/34 of the IPC. 3. Learned S.D.J.M., Jajpur, having received the Final Form as above, took cognizance of the said offences and after observing formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the said offences against the accused persons. 4. The prosecution in the trial has examined in total thirteen (13) witnesses. Out of whom as already stated, the Informant-
Facts
Gramarakhi is P.W.10, who had lodged the first report, Ext.15. P.W.1 is the witness to the inquest; whereas P.W.2 is the owner of the land where the dead body was found lying. Agnatic relation of the deceased has been examined as P.W.3, whereas P.W.4 is the photographer whose service had been taken by the P.W.11. Two other agnatic brothers of accused-Narendra @ Narahari have been examined as P.Ws. 5 and 6 and the father of the deceased has been examined as P.W.9. The Doctor who had conducted autopsy over the dead body of the deceased has CRLA No.139 of 2003 Page 4 of 15 come to the witness box as P.W.7; whereas P.Ws. 11 and 12 are two Investigating Officers, who had carried out the investigation of the case in part and P.W.13 is the Investigating officer, who submitted Final Form on completion of the investigation. The prosecution besides piloting the evidence by examining the above witnesses has proved several documents which have been marked as Exts.1 to 22. Out of those, important are the F.I.R. (Ext.15), inquest repot (Ext.1), postmortem report (Ext.12), injury repot (Ext.13), spot map (Ext.16), one letter sent by accused-Sankarsan said to be incriminating, has been admitted in evidence and marked Ext.21. 5. The defence case is that of denial and false implication on account of previous grudge and enmity. The brother of accused Narendra namely, Natabara has examined as D.W.1 and he has proved one document concerning the civil litigation which has been admitted in evidence and marked Ext.A. 6. The Trial Court on examination of the evidence let in by the prosecution and upon their evaluation has finally found that the charges against the accused for commission of offences under section -302/201/34 of the IPC have been established beyond reasonable doubt. Accordingly, the accused persons CRLA No.139 of 2003 Page 5 of 15 having been convicted for commission of those offences have been sentenced as aforestated. 7.
Legal Reasoning
explanation. Furthermore, we find that the prosecution has not examined the son of the deceased although it is stated that he had come with accused-Narahari and the deceased. The letter, Ext.21 which has been stated by the Trial Court to an incriminating circumstance against the accused persons, we find the same to have been admitted in evidence through the I.O. (P.W.12). It is stated by him that during search of the house of the accused Sankarsan, that was seized. However, we find that no evidence has been tendered that said letter had been written by accused-Sankarsan, when accused Sankarsan has denied the factum of such seizure and he too does not as regards the authorship of the said letter. Therefore, the contents of the said letter cannot be taken to have been duly proved to have play for any purpose whatsoever. CRLA No.139 of 2003 Page 14 of 15 14. For the aforesaid discussion of evidence, we led to hold that the Trial Court is not right in holding that the incriminating circumstances against the accused persons taken together complete the chain in every respect which unerringly points towards the guilty of the accused persons without any missing links. Therefore, according to us, the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained and are liable to be set aside. 15. In the wake of aforesaid, the Appeal stands allowed. The judgment of conviction and order of sentence dated 14th May 2003 passed by the learned Ad hoc Additional Sessions Judge, Jajpur in S.T. Case No.190/16/22 of 2002 are hereby set aside. Since the Appellants (accused persons) namely, Narendra @ Narahari Bhuyan, Sankarsan Parida and Basanti Singh are on bail; their bail bonds shall stand discharged. V. Narasingh, J. I Agree. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Narayan Location: OHC Date: 22-Aug-2024 18:46:42 CRLA No.139 of 2003 (D. Dash), Judge. (V. Narasingh), Judge. Page 15 of 15
Arguments
Learned Counsel for the Appellants submitted that there is no eyewitness to the occurrence and the entire case of the prosecution is based on circumstantial evidence. According to him, the circumstances projected by the prosecution which has been accepted by the Trial Court are not all incriminating in pointing finger of guilt in any way at the accused persons. He submitted that when the prosecution heavily banks upon the last seen theory, the Trial Court while believing the evidence laid on that score has not taken into account the material contradictions surfacing in the evidence of those prosecution witnesses which greatly tells upon their credibility. In support of the same, he has invited out attention to the depositions of P.Ws.3, 5, 6 and 8. He further submitted that the prosecution in this case having not examined the first wife of the accused- Narahari and also the son of accused-Narahari is to be blamed and adverse inference has to be drawn against the prosecution case since such non-examination goes without any explanation. He also submitted that the letter, Ext.21 having not been proved in accordance with law, the Trial Court has erred in relying upon its contents in support of the case of the prosecution in taking that as an incriminating circumstance. In view of all CRLA No.139 of 2003 Page 6 of 15 these above, he urged that the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. 8. Learned Additional Standing Counsel for Respondent- State while supporting the finding of the guilt against the accused persons as has been returned by the Trial Court submitted that it having been proved through evidence that the deceased and the accused persons were last seen together, since no explanation is coming from the side of the accused persons as to what happened thereafter and when the deceased left and how all that happened, the Trial Court is right in convicting the accused persons for commission of offence under section- 302/201/34 of the IPC. He submitted that the Trial Court upon proper analysis of evidence on record has rightly concluded that the prosecution has established the charge against the accused persons beyond reasonable doubt, since the chain of events complete the ring excluding all the hypothesis other than the guilt of the accused persons. 9. Keeping in view the submissions made; we have carefully read the judgment passed by the Trial Court and have extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 13. The documents admitted in evidence and marked Exts.1 to 22 from the side of the prosecution have been perused. One document has also CRLA No.139 of 2003 Page 7 of 15 been admitted in evidence and marked Ext.A from the side of the defence. 10. Death of the deceased has been proved by the prosecution to be homicidal in nature. It is seen from the evidence of P.W.7 that when he examined the dead body, he noticed pealing of the hair on the frontal region, haematoma of the size of 6cm X 2cm on frontal occipital region of the head and there was an abrasion of the size of 2 cm X 2.1/2 cm over left side of the head. On dissection, he has found one haematoma on the right occipital reason of the cerebral uterios with non-gravid. It is his specific evidence that the death was on account of shock due to head injury which is possible by hard and blunt weapon. In addition to the above, P.W.11 having held inquest over the dead body of the deceased has also noted such injuries in his report, Ext.1 in his own language. That apart, other witnesses have stated to have seen such injuries on the deceased after the dead body was recovered. All said evidences having remained unchallenged, we find no difficulty in concluding that the death of the deceased was homicidal in nature. 11. Now coming to address the rival submission as to the complicity of the accused persons and thereby, to judge the sustainability of the finding of the guilt against the accused CRLA No.139 of 2003 Page 8 of 15 persons as has been recorded by the Trial Court, it must be first stated that the prosecution here is not relying upon any direct evidence to establish the same. The dead body of the deceased having been recovered, the Gramarakhi (P.W.10) had lodged the written report, Ext.15 and that had led to the registration of an U.D. case which later on having turned to regular case as it was reported by the Doctor that the death was homicidal. The prosecution case is that relationship having been developed between accused –Narendra @ Narahari and the deceased, the same was objected to by the villagers since accused-Narendra was a married person having children. So, when the villagers in the meeting imposed fine upon said accused-Narendra and Sanjukta, they left the village. This incident having happened four years before the death of the deceased, it is further stated that after both left the village at a times, accused-Narendra used to come to village and when father of accused-Narendra died, he came with the deceased with whom he was residing outside. But then the family members of the accused-Narendra did not allow the deceased to take part in the Sudhikriya. So, accused-Narendra took her to the house of his brother-in-law, Sankarsan. The dead body of the deceased was recovered on the next day. Thus, the prosecution banks upon the last seen theory that the deceased having been taken by accused-Narendra to the house of Page 9 of 15 CRLA No.139 of 2003 accused-Sankarsan was not seen thereafter till her dead body was recovered. In order to prove the above fact, the first witness from the side of the prosecution is P.W.3. He having stated that when the family members of accused-Narendra did not allow the deceased to take part in the Sudhikriya, accused-Narendra took the deceased to the house of accused-Sankarsan, when he was asked that such was not his version before the I.O. (P.W.11), he has gone to assert that he had so stated before the P.W.11. However, when we read the evidence of P.W.11, we find him to have stated as under:- “P.W.3, Madhu Sajhu has not stated before me that at 4 years back accused Narendra came with Sanjukta @ Tukuli to our village at the time of death of his father. He has also not stated before me that the other family members of the accused did not allow Sanjukta to take part in the Sudhi Kriya, and that accused Narendra took her to his house of his brother-in-law i.e. to the house of Sankarsan Parida and Basanti Parida. He has also not stated before me that two days thereafter he heard the dead body of Sanjukta @ Tukuli was laying in the village of Sarangapur.” So, when for the first time, P.W.3 is stating in support of the last seen theory, only during trial, his evidence on that score stands doubtful as that contradiction appears to be material. This P.W.3 has further stated to have never asked the accused- CRLA No.139 of 2003 Page 10 of 15 Narendra regarding the whereabouts of the deceased. He also states to be not pulling on well with accused-Narendra as he was a party in imposing fine upon him for establishment of his relationship with the deceased. The material contradictions being taken with the above facets appearing in his evidence, we find that it would not be safe to rely upon his evidence that the deceased was last seen with the accused-Narendra and she had been taken to the house of accused-Sankarsan. The other witness in support of the said last seen theory is P.W.5. His evidence is that accused-Narendra on the 9th day of death of his father came with the deceased to attend Sudhikriya, when family members opposed that Sanjukta could not attend Sudhikriya there was a quarrel. He however, states that then this accused-Narendra supported his first wife but his evidence is not to the effect that accused-Narendra thereafter took the deceased to the house of accused-Sankarsan. His evidence is that other two accused persons aiming at accused persons Sankarsan and Basanti had taken the deceased to their house. He further states that accused-Narendra also accompanied them. Thus, his evidence is not also at par with the evidence of P.W.3, who has stated that it was accused-Narendra who had taken the deceased to the house of accused-Sankarsan without further ascribing any role therein to the accused Sankarsan and Basanti in taking the deceased from the house of accused- Page 11 of 15 CRLA No.139 of 2003 Narendra to some other place or even stating them to have accompanied accused-Narahari and the deceased. Again, it is found that this P.W.5 had not stated during his earlier examination in course of investigation before P.W.11 that on the 9th day of the death of the father of accused-Narendra, said Narendra had come with the deceased to the village and that participation of the deceased in the Sudhikriya was opposed by the family members of accused-Narendra including his first wife and that deceased was not allowed to attend the said Sudhikriya and that two other accused persons took Sanjukta to their house along with accused –Narendra. Although P.W.5 has asserted to have so stated; it has been stated by the I.O. (P.W.11) as under:- “He has not stated before me that on the 9th day of his father Narendra came to his village along with Sanjukta. He has not stated before me that the family members including the 1st wife of accused Narendra opposed and did not allow Sanjukta to attend the Sudhikriya and other two accused persons took Sanjukta to their house along with Narendra at about 8 to 8.30 pm.” 12. The next witness P.W.6 having stated that on the 9th day of death of father of accused-Narendra. Accused-Narendra and the deceased had come to the village to attend Sudhikriya, when the family members opposed regarding participation of Sanjukta in the said Sudhikriya, the accused persons-Sankarsan CRLA No.139 of 2003 Page 12 of 15 and Basanti took Sanjukta (deceased) to their house; whereafter accused-Narendra followed them, the same appears to be an introduction during the trial as like P.Ws.3 and 5 and it has been well proved through during examination of P.W.11 (I.O.) who is stated as under:- “P.W.6, Judhistira Bhuyan has not stated before me that on the 9th day of father’s death of accused Narendra both of them return back to village to attend Sudhikriya. He has not stated before me that the family members and relation of accused Narendra did not allow Sanjukta to enter inside their house and perform Sudhikriya and at last Sankar and Basanti took her to their house along with accused- Narendra at about 9 pm.” 13. Thus, the evidence of this P.Ws. 5 & 6, according to us is unsafe to be relied upon to say that the deceased was last seen with the company of the accused persons, when they left accused-Narendra, around 9 pm. P.W.8 is the last witness in support of the last seen theory. His evidence is the slightly different than that of P.Ws.5 and 6, when he says that accused-Narahari, Basanti and Sankar took the deceased to the house of accused-Basanti around 8 pm after the family members objected to the participation of the deceased in the Sudhikriya of the father of the accused- Narendra. But again we find this part of his evidence to be the introduction during trial. His evidence is running in different CRLA No.139 of 2003 Page 13 of 15 directions, when he states that accused, Narahari, Basanti and Sankarsan took the deceased to the house of Basanti and Sankarsan, which is not stated by other witnesses as already discussed. For the aforesaid discussion, according to us, the evidence of all these prosecution witnesses are not safe to be relied upon to conclude that the deceased was last seen with the accused persons around 8 to 9 pm in the night. Thus being unable to arrive at the conclusive finding on the score of last seen; the accused persons cannot be blamed for not offering any