The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA Nos.46 & 47 of 2011 AND CRLA No.664 of 2011 In the matter of Appeals under section 383 & 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 29th March, 2011 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.48 of 2010 (G.R. Case No.34 of 2010). ---- …. Appellants Lapa Purty (In JCRLA No.46/2011) Lodu @ Subash Khuntia (In JCRLA No.47/2011) Smt. Jambi Purty (In CRLA No.664/2011) -versus- State of Orissa (In all the Appeals) …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants -
Legal Reasoning
Mr.B.K. Behera, Advocate (In all the Appeals) For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel (In all the Appeals) CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 03.01.2024 : Date of Judgment : 08.01.2024 JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011 Page 1 of 8 - 2 - D.Dash,J. The Appellants, in the above noted three Appeals, have Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 faced the trial in the Court of the learned Additional Sessions Judge, Rairanghpur in S.T. Case No.48 of 2010 (G.R. Case No.34 of 2010) arising out of G.R. Case No.34 of 2010, T.C. No.465 of 2010 corresponding to Jamda P.S. Case No.4 of 2010 on the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Rairangpur standing charged for commission of the offence under sections 341/342/302/201/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). The Trial Court has convicted all the Appellants (accused persons) for committing the offences under section 302/201/34 of the IPC. Accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for two (2) years for commission of the offence under section 302/34 of the IPC; and undergo to rigorous imprisonment for five (5) years and pay fine of Rs.1000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the offence under section 201/34 of the IPC. In view of the above, we heard all these Appeals together for their disposal by this common judgment. 2. Prosecution Case:- On 27.01.2010 around 4.00 p.m., one Sagar Bage (Informant- P.W.), who is a contractor and usually resides in Tatanagar Page 2 of 8 JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011 - 3 - Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 received an information over telephone from his sister-in-law, namely, Basi Bage (P.W.1) that on account of previous enmity, accused Makar Purti (since dead) assaulted his father, namely, Kanhu Bage and by tying took him from Hatbadra market to Village-Sunamara keeping him confined in a house there. On receiving the said information over telephone, the Informant (P.W.2) rushed to Village-Sunamara and made enquiry regarding the whereabout of his father (Kanhu Bage) from accused Makar and his mother, who replied that his father had been kept confined in their house but thereafter had gone somewhere-else in the morning. The Informant (P.W.2) went for search of his father (Kanhu) but did not trace him out. So, on 31.01.2010, he (P.W.2) lodged a written report with the Officer-in- Charge of Jamda Police Station. The O.I.C. (P.W.7) received the written report of the (Informant-P.W.2) and treated the said report as FIR (Ext.1) and upon registration of the case, took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.7) examined the Informant (P.W.2). He having visited the spot, prepared the spot map (Ext.2). Thereafter, he (P.W.7) apprehended the accused persons and forwarded them in custody to Court. On completion of the investigation, the I.O. (P.W.7) submitted the Final Form placing these accused persons JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011 Page 3 of 8 - 4 - to face the Trial for commission of the offense under section Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 341/342/302/201/34 of the IPC. 4. Learned S.D.J.M., Rairanghpur, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offences against these accused persons. 5. The prosecution, in support of its case, has examined in total seven (7) witnesses during Trial. As already stated, the informant who happens to be the son of the deceased is P.W.2. P.Ws.1, 3, 4, 5 & 6 are the co-villagers. The I.O. of the case, at the end, has come to the witness box as P.W.7. Besides leading the evidence by examining the above witnesses, the prosecution has also proved two documents which have been admitted in evidence and marked Exts.1 to 2. Out of those; important are the FIR (Ext.1); and the spot map (Ext.2). 6. The accused persons, having taken the plea of complete denial and false implication, have not tendered any evidence in support of such plea. 7. Mr. B.K. Behera, learned counsel for the Appellants (accused persons) submitted that in the absence of any direct evidence on record, the Trial Court simply, relying on the JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011 Page 4 of 8 - 5 - Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 evidence of P.Ws.3, 4 & 5 that they had last seen the deceased in the company of the accused persons, ought not to have based the conviction against these accused persons holding them to be the authors of the crime. He further submitted that even accepting the evidence of P.Ws.3, 4 & 5, there cannot be a finding that the accused persons had assaulted the deceased to death when the dead body of the deceased has not been discovered at all and the accused persons explain that the deceased, while under confinement, escaped and remained traced. He submitted that even though it is so held that they were seen together, the complicity of these accused persons with the available evidence, cannot be so held. In view of all these above, the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained. 8. Mr.P.K. Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against these accused persons, as has been returned by the Trial Court, submitted that the evidence of P.Ws.3, 4 & 5, being very clear that they had seen the accused persons taking the deceased to Village-Sunamara in a tying condition and the dead body even though has not been recovered, that circumstance itself in the absence of any explanation coming from the side of the accused JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011 Page 5 of 8 - 6 - Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 persons is itself enough to hold the accused persons guilty of committing the murder of Kanhu Bage. 9. 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.W.1 to P.W.7) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.2. 10. P.W.1 has stated that these accused persons took Kanhu (deceased) to the house of Makar to Village-Sunamara. He then says that Kanhu was murdered on the next day and, therefore, he intimated the matter to the Informant (P.W.2). During cross- examination, it has been said by him that sometimes, Kanhu (deceased) was going to the house of accused-Makar. It is stated by the Informant (P.W.2) that he was told by P.W.1 that these accused persons took his father in a tying condition from Hatbadra area to Village-Sunamara. He further states that when he went to that village of the accused persons, they told him that they had taken has father but there he (P.W.2) he did not find his father. It is not the evidence of P.W.1 as to where at which place he saw these accused persons taking Kanhu (deceased) to the house of Makar of Village-Sunamara. It is also not stated by him as to whether accused Makar was then among JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011 Page 6 of 8 - 7 - the accused persons. It be stated here that accused Makar, in view Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 of his death, had not faced the trial. The statement of P.W.1 thus appears to be vague when it is also not stated by him as to what he did after seeing the incident. His conduct does not appear to be normal that having seen the accused persons taking Kanhu (deceased), he as usual not won’t even not ask any of them about the reason for doing so or to have rushed to the village in informing others to rescue Kanhu or trek all of them. It is also not stated by P.W.1 that he had seen the accused persons while taking away Kanhu (deceased) and they were assaulting him. But P.W.3 states about such assault, being made by the accused persons upon Kanhu, while being taken away, which is not the evidence of P.W.1. He is also not stating as to where actually he saw that the accused persons were taking Kanhu (deceased) and his silence is a conduct, which is certainly to be adversely viewed. He is also not stating to have informed anywhere about this or to have followed them or even to have asked anything to them. The evidence of P.W.4 also run in the same vein. Thus, it appears that the evidence of P.W.3 and P.W.4 are quite cryptic without the required further details. The evidence of the above witnesses, according to us to the effect that they had seen these accused persons taking Kanhu (deceased) with them cannot be accepted as trustworthy. Page 7 of 8 JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011 - 8 - Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33 On a conspectus of analysis of the evidence hereinabove, we find that the prosecution has not proved the charges against these accused persons beyond reasonable doubt. 11. In the result, the Appeals are allowed. The judgment of conviction and the order of sentence dated 29th March, 2011 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.48 of 2010 (G.R. Case No.34 of 2010), are hereby set aside. Since all the Appellants, namely, Lapa Purty, Lodu @ Subash Khuntia and Smt. Jambi Purty are on bail, their bail bonds shall stand discharged. (D. Dash) Judge G.Satapathy, J. I Agree. (G.Satapathy) Judge Basu JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011 Page 8 of 8