The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.633 OF 2017 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 17.07.2017 passed by the learned Sessions Judge, Jagatsinghpur in C.T. Case No.158 of 2013. ---- Sambhu Nath & Another …. Appellants -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellants - Mr. A. Tripathy, Advocate. For Respondent - Mr. S.S. Mohapatra, Additional Standing Counsel. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING : 09.05.2023 : DATE OF JUDGMENT:21.06.2023 D.Dash,J. The Appellants, by filing this Appeal has challenged the judgment of conviction and order of sentence dated 17.07.2017 passed by the learned Sessions Judge, Jagatsinghpur in C.T. Case No.158 of 2013 arising out of G.R. Case No.607 of 2012 corresponding to Jagatsinghpur P.S. Case No.132 of 2012 of the Court of learned Sub- Divisional Judicial Magistrate, (S.D.J.M.), Jagatsinghpur. By the same, the Appellants (accused persons) have been convicted for commission of offence under section-148/341/302/149 of the Indian Penal Code, 1860 (for short called as ‘the IPC’). CRLA No.633 of 2017 Page 1 of 10 {{ 2 }} Accordingly, they have been sentenced to undergo imprisonment for life for the offence under section-302 read with section-149 of the IPC; rigorous imprisonment for three years of the offence under section-148 of the IPC; and simple imprisonment for one month for the offence under section-341 read with section-149 of the IPC with the stipulation that the sentences would run concurrently. 2. The prosecution case is that two years before the incident for which the present case has been initiated i.e. on 28.06.2010, these
Facts
accused persons with others had set fire to the house of Arakhita Nath, the husband of Trupti Rekha Nath (Informant-P.W.1) and since then, they were threatening to kill Arakhita and his wife, Trupti Rekha (Informant-P.W.1) by giving out that since they were the close associates of the Member of Legislative Assembly no one could do any harm to them. Arakhita and his wife (P.W.1) in view of such threat being to their life and property were residing in village Atamala by taking a house on rent. Arakahita was working as a Mason and during the period, when the occurrence took place, he had been engaged in construction of a temple of the village Deity at Khamango. On 23.06.2012 around 10 am, Arakhita (deceased) was going to the temple in connection with the construction work, when these accused persons with others namely, Sambhu Nath, Abhaya Nath, Rabindra Nath, Ashok Nath, Fakir Nath, Sadasib Nath, Debaraj Nath, Lingaraj Nath, Jagu Nath, Sarada Prasad Nath, Abhimanyu Nath, Bijay Nath, Sanjay Nath, Uma Nath and Tuni Nath forming an unlawful assembly being armed with deadly weapon such as Khanda (sword), Bhujali, Tenta and Farsa encircled Arakhita near canal embankment of village Khanmango and chased him. It is stated that they then dealt blows by CRLA No. 633 of2017 Page 2 of 10 {{ 3 }} means of deadly weapons held by them all over the body of Arakhita, causing injuries on the different parts of his body. The deceased receiving such blows raised shout. Hearing the shout, the mother of the deceased namely, Pramila (P.W.3) rushed to the spot and saw this accused persons as well as others dealing blows on her son Arakhita using the weapons held by them. She too was then threatened to be killed. So, the mother of the deceased (P.W.3) being frightened, left the spot and informed the matter to the wife of the deceased (Informant-P.W.1), rushed to the spot and saw her husband (deceased) lying on the ground with bleeding injuries all over his body. The deceased was then shifted by the villagers and the Gramarakhi (P.W.5) to the District Headquarter Hospital (DHQ), Jagatsinghpur. He was declared dead by the Doctor present there. Information in writing being lodged before the Inspector-In-Charge (IIC), Jagatsinghpur P.S., he immediately treated the same as the F.I.R. and then registering the case, took up investigation. The Investigating officer (I.O.-P.W.8) immediately, examined the Informant (P.W.1) and other witnesses. He then went to the DHQ Hospital and deputed one Assistant Sub-Inspector of Police namely, Rabindra Senapati to guard the spot. He saw the present deceased lying dead on a stretcher on the verandah of a room in the DHQ Hospital with multiple injuries on his person. There he held the inquest over the dead body of the deceased in presence of the witnesses and prepared the report, Ext.2. He then issued requisition for Postmortem examination over the dead body. He also visited the spot and prepared the spot map, Ext.5 in presence of the witnesses. From the spot, he seized several incriminating articles and thereafter seized the wearing CRLA No. 633 of2017 Page 3 of 10 {{ 4 }} apparels of the deceased on production by the Constable, who had deputed for the purpose under seizure list, Ext.6. Thereafter, the I.O. (P.W.8) arrested the accused Kanhu Nath, Ashok Kumar Nath and forwarded them in custody to the Court. He received the Postmortem examination report and submitted the Final Form. 3. The learned SDJM, Jagatsinghpur having received the Final Form as above took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions, sending the accused Kanhu and that has been disposed of by the learned Additional Sessions Judge, Jagatsinghpur. The case against present accused persons having been split up, after their appearance, it was committed to the Court of Sessions in the second phase and accordingly, the Trial was held. 4. In the Trial, the prosecution has examined in total ten (10) witnesses. The wife of the deceased who is the Informant, who lodged the F.I.R., Ext.1 has been examined as P.W.1. The witnesses to the occurrence are P.Ws. 2, 3, 6 and 7. This P.W.3 is the mother-in-law of the deceased and mother of P.W.1; whereas the P.Ws. 2, 6 and 7 are the villagers. The Doctor who had conducted Postmortem examination over the dead body of the deceased has been examined as P.W.9 and the Investigating Officer, who had conducted major portion of the investigation has been examined as P.W.8 when the other Investigating Officer who came to the picture at the end in submitting the Final Form has been examined as P.W.10. 5. The prosecution besides leading the evidence by examining the above witnesses has proved several documents, which have been CRLA No. 633 of2017 Page 4 of 10 {{ 5 }} admitted in evidence and marked Exts.1 to 8. Out of those as already stated, the F.I.R. is Ext.1 where as inquest report is Ext.2. The Postmortem report submitted by P.W.9 has been admitted in evidence and marked Ext.7 and the spot map is Ext.5. 6. The case of the defence is that of complete denial and false implication. The accused persons, in support of the plea, have examined one witness namely, Baidhar Kandi as D.W.1. 7. The Trial Court upon examination of the evidence of the Doctor, P.W.9 and on going through his report, Ext.7 as also the evidence of other witnesses including that of the I.O. (P.W.8) has arrived at a conclusion that the death of Arakhita was homicidal. Having said so, the evidence of the prosecution witnesses being scanned, the Trial Court has held the accused persons guilty for commission of offence under section-148/341/302/149 of the IPC. 8. Coming to the nature of death of Arakhita, on going through the evidence of Doctor, who had conducted postmortem examination over
Legal Reasoning
the dead body of Arakhita i.e. P.W.9, we find that during Postmortem examination, he has noted nineteen (19) injuries all over the body of the deceased. The injuries are on the head, face, hand, palm, chest, back, the neck etc. His evidence is that all said injuries are antemortem in nature and the death was due to shock and haemorrhage resulting from the injury to the vital organs. His specific evidence is that the death of the evidence is homicidal in nature. We find that such evidence of the Doctor (P.W.9) has not all been challenged, which remains the position before us. Besides the above, what P.W.9 has stated, we find that his report, Ext.7 is very clear on that score and it CRLA No. 633 of2017 Page 5 of 10 {{ 6 }} finds mention of all those injuries with their sizes and seats which would show that the deceased was inflicted with all these injuries over his body by several weapons and by several persons. The Investigating Officer, P.W.8 in his inquest report, Ext.2 has also noted such injuries and that has also been the evidence of other witnesses who have seen deceased with bleeding injuries all over his body, being caused by lethal weapons. Base on such overwhelming evidence remaining wholly unchallenged and un-impeached; we are not faced with any difficulty at all in accepting the finding of the Trial Court that Arakhita met homicidal death leading from these injuries inflicted upon him by means of lethal weapons. 9. Learned Counsel for the Appellants submitted that the evidence of the prosecution witnesses that these accused persons were assaulting the deceased by means of lethal weapons which thus ought not to have relied upon the Trial Court without deeper scrutiny as they are highly interested witnesses. He further submitted that the Trial Court has failed to appreciate the evidence of eye witnesses in which according to him, major discrepancies. It was submitted that the evidence of P.W.3, who is the star witness for the prosecution being projected as the eye witnesses to the occurrence and so also the evidence of P.W.7 are not at all reliable as they have given the exaggerated version as to the said happenings and have gone on developing the case from time to time. In this connection, he has invited our attention to the depositions of all those prosecution witnesses, i.e. P.Ws. 2, 3, 6 and 7 in showing as to how they are surfaces the discrepancies for which their evidence cannot be held to be trustworthy and thus unsafe to base the conviction upon the accused persons. CRLA No. 633 of2017 Page 6 of 10 {{ 7 }} 10. Learned Counsel for the State-Respondent on the other hand submitted all in favour of the finding returned by the Trial Court holding accused persons guilty for the above noted offences. According to him, the evidence of P.Ws. 2, 3, 6 and 7 are quite consistent as to what role have been played by these accused persons and the blows inflicted by them with the lethal weapons which they were held in the relevant time. He submitted that despite scathing cross-examination, as no such material surfaces even to remotely doubt as to the presence of these witnesses in the nearby area in seeing the incident. 11. Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.10 and have perused the documents which have been marked as Exts.1 to 8. 12. In order to address the rival submission as above noted in judging the sustainability of the finding of guilty as against these accused persons as has been returned upon the Trial Court, we are now called upon to examine the evidence let in by the prosecution. Admittedly, the P.W.1, who is the Informant and had lodged the F.I.R., Ext.1 was not present at the scene of occurrence nor in the nearby area as to have in seen the occurrence. She has stated at the relevant time, she was in the Jagatsinghpur Hospital where she was working as Asha Worker. It is her evidence that she has heard from her mother who is examined as P.W.3. The accused persons with his family members namely, Sambhu Nath, Abhaya Nath, Debraj Nath and Sarada as well as his brothers had killed Arakhita who happens to CRLA No. 633 of2017 Page 7 of 10 {{ 8 }} be her husband. So, the source of knowledge on the happening of the incident as against her husband for this P.W.1 is her mother i.e. P.W.3. It has been stated that by P.W.3 that at the relevant time, she had been to Nalabandha (canal embankment) to attend call of nature and at that time, accused Rabindra, Sarada and Ashok came in a motor cycle. She has further stated that accused Ashok dealt a Katuri blow on the head of the deceased and accused-Rabindra assaulted by means of sword on the neck of the deceased and Sarada Nath assaulted the deceased by means of bhujali. She has also stated that at that time, this accused Sambhu, Abhaya Kanta and Debraj being armed with deadly weapons like Katuri, Farsa etc and come out from the area, densely populated bushes. It is her evidence that all of them brutally assaulted the deceased and chased the deceased and further assaulted him by means of deadly weapons. Since she has stated that she with Sudarsan, P.W.2 had come to the medical; learned Counsel for the Appellants submitted that the presence of this witness P.W.3 as well as P.W.2 become doubtful as P.W.2 is not stating anything as regards the presence of P.W.3, who too is also not stating anything as regards the presence of P.W.2. At this stage, when we turn our attention to the evidence of P.W.2, we find that he has stated that on that day at the relevant time, he was returning after leaving his wife at village Purunagada and on the way was urinating, and then having heard heard screaming sound, rushed to the spot and saw accused Sambhu Nath, Abhaya Nath @ Abhi (present Appellants), Sarada Nath, Ashok Nath, Rabindra and Debraj Nath assaulting the deceased by means of Sword, Bhujali and Katuri. He is no doubt a chance witness but then, his presence in the area near to the place of occurrence, in view of the reason given by CRLA No. 633 of2017 Page 8 of 10 {{ 9 }} him as regards his presence at the place cannot be doubted only for that reason as his evidence as to the part of the incident seen by him is not shaken or no such doubtful features appear to put his evidence on that score as unreliable. When incident has not happened just for a fractions of second and here when different persons arriving at different point of time in close proximity have played their role in the incident, the witnesses are not expected to say as to every tit bit of the incident from the beginning till end but only what he had seen on his arrival till leaving. Therefore, if we do not get from the evidence all these witnesses as to exactly who did what, that won’t make their evidence unbelievable. The submission of the learned Counsel for the Appellants with regard to the discrepancy on important factual aspect, under the circumstance, does not merit consideration. 13. The evidence of P.W.6 is that he had seen accused Sambhu Nath, Rabindra Nath, Ashok Nath, Debendra Nath and Babuni Nath along with others assaulting the deceased by means of Katuri and sword. Furthermore, we cannot loose sight of the fact that the allegations from the very beginning remains that the investigation was not going in right direction and, therefore, not much of emphasis can be given to those omissions in the statement of witnesses recorded during investigation unless those relate to the extremely important aspect which is not noticed by us. 14. P.W.7 has also stated to have seen accused persons with others assaulting the deceased by dangerous weapons. Although the defence has suggested to P.W.3 that she had not stated before the police to have seen the incident, that has not been proved through P.W.8, the CRLA No. 633 of2017 Page 9 of 10 {{ 10 }} I.O., who rather has stated that P.W.3 had very well stated before him to have seen the incident. We find that no such material has been elicited from the lips of all these above eye witnesses to discredit them or to doubt their version as such for a moment as to their presence at the relevant time in witnessing the occurrence and especially as regards the role of these accused persons. Therefore, the finding of the Trial Court that the accused persons are guilty for commission of offences as aforesaid and the prosecution has established the charges against these accused persons beyond reasonable doubt by leading clear, cogent and acceptable evidence, in our view, have to receive the seal of affirmation. 15. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 17th July, 2017 passed by the learned Sessions Judge, Jagatsinghpur in C.T. Case No.158 of 2013 are hereby confirmed. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Dr. S.K. Panigrahi, J. I Agree. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Personal Assistant Reason: Authentication Location: OHC Date: 26-Jun-2023 13:54:52 CRLA No. 633 of2017 Page 10 of 10