The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.252 of 2011 In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 4th February, 2011 passed by the learned Additional Sessions Judge, Rourkela in Sessions Trial Case No.85 of 2010. ---- Ranjit Kumar …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms. Sevati Soren (Advocate) For Respondent - Mr. G.N. Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing : 06.10.2023 : Date of Judgment : 01.11.2023 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and the order of sentence dated 4th February, 2011 passed by the learned Additional Sessions Judge, Rourkela in Sessions Trial Case No.85 of 2010 arising out of G.R. Case No.390 of 2010 corresponding to CRLA No.252 of 2011 Page 1 of 12 - 2 - Brahmani Tarang P.S. Case No.32 of 2010 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Panposh. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life for commission of the said offence. 2. Prosecution Case:- On 14th March, 2010 around 11.30 a.m., Durjan Kumbhar (deceased) was dragged by accused Ranjit Kumar to his house so as to be taught a lession. Thereafter, it is said that the accused dealt blows on the back side neck of Durjan (deceased) by means of Budia (axe), which resulted his fall. The villagers, having gathered, the accused took to his heels by carrying that Budia with him. Somehow when the villagers successfully foiled that move, the accused entered into his house. The matter was reported with the Sarpanch (P.W.1), namely, Laxman Lakra. He reached the spot around 12.30 p.m. and saw Durjan lying in front of the hosue of Nira Kamar. Thereafter, Bilambar Singh (P.W.8) and Laxman (P.W.1) lodged a written report with the Inspector-in-Charge (IIC) of Brahmani Tarangi Police Station (P.S.). Receiving the said report, the IIC CRLA No.252 of 2011 Page 2 of 12 - 3 -
Legal Reasoning
(P.W.17) treated the same as the FIR (Ext.1) and upon registration of the case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.17) commencing the investigation recorded the statement of the informant (P.W.8) and other witnesses. The I.O. (P.W.17) then having visited the spot, has prepared the spot map (Ext.12). The I.O. (P.W.17) had held inquest over the dead body of the deceased and prepared the report to that effect (Ext.2). The blood stained earth and sample earth were seized under seizure list (Ext.6). Then, the I.O. (P.W.17), having arrested the accused from his house, seized the blood stained weapon under seizure list (Ext.5). The dead body of the deceased was sent for postmortem examination by issuing necessary requisition. The wearing apparels of the deceased and the accused were seized under Ext.3 and Ext.10 respectively. The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.17) submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Panposh, on receipt of the Final Form, took cognizance of said offence 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 offence against the accused. CRLA No.252 of 2011 Page 3 of 12 - 4 - 5. In the Trial, the prosecution, in support of its case, has examined in total seventeen (17) witnesses. As already stated, the informant, who had lodged the FIR (Ext.1) is P.W.8 and P.W.1 is the Sarpanch, who accompanied the informant to the P.S. in lodging the FIR. P.Ws.2 & 3 are two police personnels and the witnesses to the seizure. P.W.4 is the nephew of the deceased whereas P.W.6 is the brother-in-law of P.W.5 and also an eye witness and P.W.12 is the younger brother of the deceased and that P.W.5 is a co-villager and an eye witness to the occurrence. P.W.7 is also a co-villager and P.Ws.9 and 10 are the father and elder brother the deceased respectively. P.W.14 is the Scientific Officer. The Doctor, who had conducted the the post mortem examination over the dead body of the deceased, is P.W.16. The I.O., at the end, has been examined as P.W.17. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 16. Important of those, are the FIR (Ext.1); inquest report (Ext.2); the post mortem report (Ext.11); and the spot map (Ext.12). The biological and serological examination report had been admitted in evidence and marked Ext.14. 6. The accused has taken a plea of complete denial and false implication. The accused, in his statement under section 313 CRLA No.252 of 2011 Page 4 of 12 - 5 - Cr.P.C. has taken a specific plea that a false case has been foisted against him. He, however, has not tendered any evidence in support of such plea. 7. The Trial Court, having gone through the evidence and upon their scrutiny, while finding Durjan Kumbha to have met homicidal death, has held this accused guilty for commission of the offence under section 302 of the IPC in intentionally causing the death of Durjan. Accordingly, he has been sentenced as afore- stated.
Legal Reasoning
8. Ms.Sevati Soren, learned counsel for the Appellant (accused) submitted that the Trial Court, without proper scrutiny of the evidence of P.Ws.5 & 6, which varies from one another on material aspect and particulars of the case and as they present completely different pictures of the occurrence especially as to the role played by the accused and the act done, has committed the error in relying upon their version in saying that the prosecution has proved the charge against the accused beyond reasonable doubt. In support of the same, he has taken us through the depositions of P.Ws.5 & 6. In placing that, when both are said to have been together at the relevant time, he dissected before us as to how the version of P.W.5 as regards the incident of assault is in variance with the version of P.W.6. According to him, the evidence of P.Ws.5 & 6, being wholly irreconcilable, the Trial CRLA No.252 of 2011 Page 5 of 12 - 6 - Court ought not to have relied upon the same to record the finding of guilt as against the accused as to have assaulted the deceased by means of a Budia in causing his death. He submitted that upon simultaneous reading of the evidence of P.Ws.5 & 6, genuine doubt would arise in mind as to their presence at the relevant time and seeing the incident and what they have asserted is not believable. Therefore, he urged that the impugned judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. 9. Mr.G.N. Rout, learned Additional Government Advocate for the Respondent-State submitted that the evidence of P.Ws.5 & 6 although are in variance on some phase of the incident, yet such variance does not touch upon their credibility in so far as the role played and the act done by the accused upon the deceased is concerned, which they have echoed. According to him, when both have stated to seen the accused assaulting the deceased by means of Budia on the back side of his neck, which ultimately led to his death and that receive corroboration from the evidence of the Doctor (P.W.16), who had conducted the autopsy over the dead body of the deceased that the injuries are possible by the Budia, which he had the occasion to examine at the request of the I.O. (P.w.17), the conviction of the accused for committing the offence under section 302 of the IPC must sustain. CRLA No.252 of 2011 Page 6 of 12 - 7 - 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.W.1 to P.W.17) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.16. 11. Before going to address the rival submission and find out the sustainability of the finding of guilt against the accused, as has been returned by the Trial Court in ascertaining as to how far the prosecution has proved the charge against the accused, some background facts emerging from the evidence are required to be placed for proper appreciation. P.W.1 is the Sarpanch, who was informed by the villagers about the occurrence. He has stated that receiving the telephone call from the villagers that the deceased had been murdered by the accused, he went to the spot and saw the dead body of Durjan lying in front of the house of his brother. This part is completely hearsay. He has further stated that the accused, after the incident was fleeing away from the village, but as the villagers did not allow him to leave, he entered into his house. Having said so, he, however, is not stating to have seen the accused in his house. It is he (P.W.1), with the informant (P.W.8) had gone to the P.S. and informed the matter in writing vide Ext.8. The informant (P.W.8) has stated to have been told by the villagers that accused had CRLA No.252 of 2011 Page 7 of 12 - 8 - murdered the deceased by Kuradhi (Budia-Axe). He, however, does not state to have ever gone to the exact place where the dead body of Durjan was lying even after hearing from the villagers, but he states to have gone with Sarpanch (P.W.1) to the P.S. and lodged the FIR (Ext.1). Be that as it may, both have not seen the occurrence nor the villagers causing obstruction for the accused from fleeing away. From the side of the prosecution, the nephew of Durjan (deceased) has been examined as P.W.4. He says that when he reached the spot, he found the deceased lying on the ground with cut injury on his neck. He has also stated to have found the accused to be decamping being armed with Budia and he could spot him as he threatened to kill and then went inside his house. It is his further evidence that two persons, namely, Sukra and Jayapal, whom he also terms to be the accused persons to be there inside the house of the accused Ranjit. So, when P.W.4 says that there was involvement of two others, namely Sukra and Jayapal in the said incident with the present accused, the Sarpanch (P.W.1) and the informant (P.W.8) do not at all state so. Now, when we come to the evidence of P.W.5, we find him to have stated that on that day around 11.30 a.m., he with P.W.6 were talking bath near the well and they saw this accused dragging the deceased from the road and taking him near his house. CRLA No.252 of 2011 Page 8 of 12 - 9 - P.W.6 has stated that when he with his brother-in-law (P.W.5) were near the well, they saw the present accused taking the deceased near his house by dragging. So, we get the evidence of both these witnesses that they had seen the accused dragging the deceased towards his house. The situation being unusual, they do not say to have either asked anyone of them the reason for the same, nor as the co-villagers did make any attempt to free the deceased the clutch of the accused. Such conduct of P.Ws.5 & 6 to continue with bathing despite seeing a known man being dragged by another known person and even not raising any shout/cry drawing attention of others in saving the situation, tell much upon the credibility of the witnesses especially, as they hail from rural background where such reaction takes place spontaneously. The conduct of these two witnesses in seeing such incident of dragging the deceased by the accused remained wholly non-responsive. The natural human instinct is wanting when they do not say to have either protested to it or asked the accused about the reason of doing so. Be that as it may more particularly is that P.W.5 when states that Sukra Mahali and Jayapal were in the house of accused Ranjit, it was that Sukra, who told accused Ranjit to teach a lession to the deceased and thereafter accused Ranjit said to have brought out a Budia from his house and dealt two blows on the backside neck of the deceased. P.W.5 does not state that Sukra and Jayapal had ever CRLA No.252 of 2011 Page 9 of 12 - 10 - come out of the house of the accused and so stated at any given point of time. P.W.6 has, however, given a different picture when he was stated that Sukra and Jayapal, who are inside the house of accused Ranjit, came and caught hold the hands of the deceased and then Sukra told the accused to finish him whereafter accused Ranjit dealt blows by Budia on the backside of the neck of the deceased. When P.W.5 states that accused Ranjit went inside the house and brought out a Budia and thereafter dealt the blows, P.W.6 does not state so. P.W.6 gives a different picture of the incident that Sukra and Jayapal caught hold of the deceased and thereafter accused Ranjit, being asked, gave the Budia blows on the backside neck of the deceased by bringing it from his house. Fact remains that Sukra and Jayapl have not been arraigned as accused persons and it is not explained on the face of evidence of P.W.6, which shows the tendency of the prosecution in making the endeavour to save those two from the arena. When P.Ws.1 & 8 told that the accused was inside the house and so also Sukra and Jayapal, the I.O. (P.W.17) does not state to have found all the three in the house. He has also not stated to have arrested the accused from his house. P.W.5 has further stated that when the local police arrived, this accused Ranjit, his wife and Sukra as well as Jayapal were inside the house and police took them. P.W.6 when has stated about the role of Sukra and Jayapal, that is CRLA No.252 of 2011 Page 10 of 12 - 11 - conspicuously missing in the evidence of P.W.5. Thus, we find the evidence of P.Ws.5 & 6 to be in such variance as regards the exact happenings in the incident, which according to us, even being viewed with other evidence is not reconcilable When P.W.5 has suppressed the role of Sukra and Jayapal, P.W.6 has come out to say about that. Furthermore, doubt arises when the I.O. (P.W.17) does not state to have seen this accused Ranjit in his house and so also P.Ws.1 & 8 do not say so and the I.O. (P.W.17) is also not stating to have arrested this accused from his house. Said discrepancies in the evidence of P.Ws.5 & 6 as to the happenings of the incident and more particularly, the role of two others, namely, Sukra and Jayapal is being suppressed by P.W.5 and the investigation in that direction is also silent, we are of the considered view that it would be safe to rely upon the evidence of P.Ws.5 & 6 as to the role played and the act done by the accused. 12. On the conspectus of the analysis of the evidence let in by prosecution, we are of the view that the finding of the Trial Court that the prosecution has established the charge against accused Ranjit Kumar beyond reasonable doubt by leading clear, cogent and acceptable evidence cannot be sustained. 13. In the result, the Appeal is allowed. The judgment of conviction and the order of sentence dated 4th February, 2011 CRLA No.252 of 2011 Page 11 of 12 - 12 - passed by the learned Additional Sessions Judge, Rourkela in Sessions Trial Case No.85 of 2010 are hereby set aside. Since the accused (Ranjit Kumar) is on bail, his bail bonds stand discharged. G. Satapathy, J. I Agree. (D. Dash), Judge. (G. Satapathy), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 02-Nov-2023 17:18:01 CRLA No.252 of 2011 Page 12 of 12