MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.205 of 2001 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 3rd October, 2001 passed by the learned Sessions Judge, Mayurbhanj in G.R. Case No.305 of 1998 (Trial Case No.23 of 1999). …. Appellants ---- 1. Sri Gunabanta Biswal (Since dead and abated); and 2. Sri Mahiratha Siminakia; 3. Sri Bijoy Kumar Biswal; 4. Sri Sukesh Chandra Behera -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.Sangramjit Panda & S. Panda (Advocates) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 09.04.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 3rd October, 2001 passed by the learned Sessions Judge, CRA No.205 of 2001 Page 1 of 10 Mayurbhanj in G.R. Case No.305 of 1998 (Trial Case No.23 of 1999) corresponding to Kaptipada P.S. Case No.92 of 1998 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Udala. The Appellants (accused persons) have been convicted for committing the offence under section 302 read with section 34 of the Indian Penal Code (for short, ‘the IPC’). Accordingly, each of them has been sentenced to undergo imprisonment for life for commission of the said offence. The Appellant (accused), namely, Sukesh Chandra Biswal although has also been convicted for commission of the offence under section 3(2)V) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, no separate sentence has been passed for commission of the said offence. It is pertinent to mention here that during pendency of this Appeal, the Appellant No.1, namely, Gurubanta Biswal, having died; this Appeal has abated as against him vide order dated 19.05.2022. So, now this Appeal is confined to other three Appellants, namely, Mahiratha Siminakia, Bijoy Kumar Biswal & Sukesh Chandra Behera. 2. PROSECUTION CASE:- On 11.12.1998 around 9.30 a.m., one Raghunath Khalpalia (P.W.1) presented a written report with the Officer-in-Charge of CRA No.205 of 2001 Page 2 of 10 Kaptipada Police Station (P.S.) stating therein that one person during morning hour, having gone to his house, had reported that a man belonging to Lodha community of Village-Nedam had entered into the house of a co-villager for committing theft. It was also stated that the villagers of Village-Jadida, having caught the said person, had assaulted him. Hearing the same, Raghunath (Informant-P.W.1) had been to the spot and saw that person sitting in front of the rest shed where many people were also present. It is further stated by said Raghunath (Informant-P.W.1) in the said report that nobody told as to who had assaulted that person. At that time the wife and son-in-law of that injured person arrived and they carried him near canal bridge where the brother of that person arrived and as the person could not sit on the cycle, his brother went to bring a rickshaw when the condition of said person become serious and deteriorated. It was stated that the person was identified by his wife and son-in-law to be Bansidhar Naik of Village-Nedan. On receipt of the above report, the O.I.C. (P.W.7) treated the
Legal Reasoning
same as FIR (Ext.1) and upon registration of the criminal case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.7), in course of the investigation, examined the informant (P.W.1) and recorded his statement under section 161 Cr.P.C. He (P.W.7), having visited CRA No.205 of 2001 Page 3 of 10 spot, prepared the spot map Ext.5). The injured was taken to Kaptipada Community Health Centre where the Doctor declared him to be dead. He held the inquest over the dead body of Bansidhar and requested the B.D.O. Kaptipada to remain present during inquest and prepared the report to that effect (Ext.2). The dead body of Bansidhar was sent for post mortem examination by issuing necessary requisition. He (P.W.7) then seized the wearing apparels of the deceased under seizure list (Ext.6). On completion of the investigation, the I.O. (P.W.7) submitted the Final Form placing these accused persons to face the Trial. 4. Learned S.D.J.M., Udala, on receipt of the Final Form, took cognizance of the said offences and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against these accused persons. 5. The prosecution, in support of its case, has examined in total seven (7) witnesses during Trial. Out of them, as already stated, the informant, who happens to be the Grama Rakhi is P.W.1. P.W.2 has not supported the prosecution and turned hostile. P.W.4 is the wife of the deceased whereas P.W.3 is the would be son-in-law of the deceased. The Doctor, who conducted the autopsy over the dead body of Bansidhar has been examined CRA No.205 of 2001 Page 4 of 10 as P.W.5. The I.O. of the case, at the end, has come to the witness box as P.W.7. 6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in evidence and marked Exts.1 to 6. Out of those, the important are, the FIR (Ext.1), the spot map (Ext.5), inquest report (Ext.2); and the post mortem report (Ext.3). 7. The accused persons have taken the plea of complete denial and false implication. They, however, have stated that no such occurrence took place and a false case has been foisted against them by the police.
Legal Reasoning
8. Mr.Sangramjit Panda, learned counsel for the Appellants (accused persons) submitted that the prosecution, in the case, has not led any direct evidence to establish the complicity of these accused persons. He, however, submitted that when the FIR (Ext.1) had been lodged showing the culprits as unknown and the Informant (P.W.1) does not breath a word about the complicity of any of these accused person, the Trial Court ought not to have relied upon the version of P.W.3, the would be son-in-law of the deceased that the deceased had declared before her regarding the role played and the acts done by these accused persons, which do not at all stand to legal scrutiny. He further submitted that P.W.1, CRA No.205 of 2001 Page 5 of 10 having met P.W.3 when had lodged the FIR, he has not gone to state anything regarding the complicity of these accused persons and furthermore, the disclosure about the complicity of these accused persons by P.W.3 is also at a belated stage, which too does not find any corroboration from any other evidence. He submitted that doubt also arises when it is seen that the accused persons were arrested at much a later point of time even after so called disclosure by P.W.3 and the I.O. (P.W.7) merely stating that the accused persons were absconders does not state to have made any such sincere attempts/efforts to find them out. In view of the above, he urged for acquittal of these accused persons by setting aside the judgment of conviction and order of sentence returned against them. 9. Mr.P.K. Mohanty, learned Additional Standing Counsel for the for the Respondent-State does not dispute the position that here the prosecution much relies upon the evidence of the would be son-in-law of the deceased (P.W.3) and wife of the deceased (P.W.4). He submitted that the evidence of P.W.3, who is the a natural witness and as he has deposed in a very clear manner as regards the disclosure of the names of these accused persons to be the assailants by the deceased, the Trial Court, in the absence of any such material to discard his version, has rightly held the same to be sufficient to fasten the guilt upon the accused persons. CRA No.205 of 2001 Page 6 of 10 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.7) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.6. 11. The death of Banshidhar has been proved to bhe homicidal through the evidence of the Doctor (P.W.5), who had conducted the autopsy over the dead body of Bansidhar. He (P.W.5) has stated that he death was on account of haemorrhage and shock resulting from the injuries on different parts of the body of the deceased caused by fist blows, kicks and assault by lathi, which has remained unchallenged. 12. The prosecution, in order to bring home the charge against these accused persons, has examined P.W.1. He does not name anyone to be the assailant. His evidence is that when he arrived at the spot, he had asked the villagers as to who had assaulted the deceased, but they remained silent and thereafter the would be son-in-law of the deceased, who has been examined as P.W.3, arrived there. It is not stated by him that they asked the deceased as to who had caused the injury on the person of Bansidhar. This P.W.1, being the Grama Rakhi, having seen Bansidhar (deceased) in an injured condition, showing the normal reaction has not even CRA No.205 of 2001 Page 7 of 10 asked him as to how he sustained those injuries when he does not state nor it is the case of the prosecution that at that time, the deceased was not in a condition to speak. It is also not stated by this P.W.1 that the deceased volunteered but in fact he states that no one told about assailants before him. P.W.3 is the would be son-in-law of the deceased. It is his evidence that having been informed by a person of their village, when he with the wife of the deceased (P.W.4) went to Village- Jadida, they found the deceased to have been assaulted and sitting in front of the rest house where a number of persons had assembled. His further evidence is that water was poured over him and he was brought under the sun when P.W.1 reached there and thereafter, the deceased sat on the carrier of his cycle and was brought to some distance where only the deceased was asked by him as to where he had committed the theft, which he denied and then he disclosed that when he was coming during night, he being suspected to be a thief, the villagers detained him and assaulted. He, however, does not state that having first seen the deceased, he had asked anything as to how he received those injuries when he first saw him on his arrival. Having said this, he has gone to further state that the deceased then disclosed before him that the accused-Gunabanta (since dead) and this accused Bijoy and one Babuli and two others had assaulted him in CRA No.205 of 2001 Page 8 of 10 specifically stating that accused Gunabanta (since dead) had assaulted by a stick. He does not state as to whether at that time, P.W.4 was present with him or not. P.W.4 states that when she came with P.W.3 to the spot. He saw the deceased sitting on the corner of the rest shed in Village-Jadida and sixty persons to have assembled near him. Her further evidence is that out of fear, she did not go near the deceased and stood at a little distance when P.W.3 went near the deceased, which of course is not stated by P.W.3. She does not state that P.W.3 thereafter had taken the deceased on a cycle. None of the witnesses state that they had known these accused persons prior to the incident nor it is also stated by P.Ws.3 & 4 that the deceased had prior acquittance with these accused persons. The I.O. (P.W.7) when rushed to the spot receiving the FIR (Ext.1), although states to have seen the deceased near the school when he reached the spot, his evidence is that the deceased was not able to talk due to his serious condition and then none were present near the deceased except P.Ws.3 & 4. It is not in his evidence that on his arrival, P.W.3 had disclosed before him that the deceased had stated the names of these accused persons to be the assailants. However, P.W.3 states about the disclosure made by the deceased as regards his assailant, P.W.4 remains silent although P.W.7 says that they were together near the deceased, CRA No.205 of 2001 Page 9 of 10 which is not the evidence of P.W.4. In such state of affair in the evidence of P.Ws.3 & 4, the same being viewed cumulatively with the evidence of P.W.1 and the I.O. (P.W.7); we feel that it would be extremely unsafe to accept the evidence of P.W.3 as regards the disclosure of the deceased about this assailants. 13. With the above discussed evidence of the prosecution witnesses, we are unable to concur with the view of the Trial Court that the prosecution has established the charged against these accused persons for committing the murder of Bansidhar Naik beyond reasonable doubt. 14. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 3rd October, 2001 passed by the learned Sessions Judge, Mayurbhanj in G.R. Case No.305 of 1998 (Trial Case No.23 of 1999), are hereby set aside. Since the Appellants (accused persons), namely, Mahiratha Siminakia, Bijoy Kumar Biswal, and Sukesh Chandra Behera are on bail, their bail bonds shall stand discharged. V. Narasingh, J. I Agree. Signature Not Verified Digitally Signed Basu Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 04-Jul-2024 14:56:15 CRA No.205 of 2001 (D. Dash), Judge. (V. Narasingh), Judge. Page 10 of 10