MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.15 of 2008 In the matter of an Appeal under section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 31st January, 2007 passed by the learned Adhoc Additional Sessions Judge, Fast Track Court, Athagarh in Sessions Trial No.517 of 2005. Kala @ Kishore Ghadei …. Appellant --- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mrs.Sonita Biswal Advocate as Amicus Curiae For Respondent - Mr.P.K. Maharaj Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing :29.07.2024 :: Date of Judgment: 20.08. 2024 D.Dash,J. The Appellant, by filing this Appeal, from inside the jail, has assailed the judgment of conviction and order of sentence dated 31st January, 2007 passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court, Athagarh in Sessions Trial No.517 of 2005 arising out of C.T. Case No.204 of 2005 corresponding to Athagarh P.S. Case No.48 of 2005 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Athagarh. The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 JCRLA No.15 of 2008 Page 1 of 11 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six months with the stipulation that the fine amount, if recovered, be paid to the wife of the deceased (P.W.2) towards compensation. 2. Prosecution Case:- On 20.05.2005 one Sankar Das, who happens to be the nephew of Arjuna Das (Deceased) lodged an information in writing with the Officer-in-Charge (OIC), Tigiria Police Station that his uncle Arjuna, on that day around 10.30 a.m. when was sitting on the verandah of the house of Kalindi Ghadei (P.W.7), had been assaulted by the accused by means of a katari and he met his death in the cowshed of one Rama Behera where he with much difficulty managed to reach in that injured condition. Receiving the above report from the Informant (P.W.1), the O.I,C.
Facts
(P.W.18), treated the same as FIR (Ext.1) and upon registration of the criminal case, took up investigation. 3. In course of investigation, the I.O. (P.W.18) examined the Informant (P.W.1) and other witnesses and recorded their statement under section 161 Cr.P.C. The I.O. (P.W.18), having visited the spot, prepared the spot map (Ext.13). Having reached at the spot, the I.O. (P.W.18) made a requisition to the scientific team for ascertaining the clues from the spot and on arrival of the scientific team and dog squad, incriminating articles were seized from the spot. The I.O. (P.W.18) then held inquest over the dead body of the deceased and prepared his report (Ext.2/2) and sent the dead body of the deceased for post mortem examination by issuing necessary requisition. The I.O. (P.W.18) arrested Page 2 of 11 JCRLA No.15 of 2008 the accused and it is said that this accused, while in police custody, confessed that he has concealed one knife under cashew plant near Daramana Munda and told that if he would be taken to that place, he would give recovery of the same. Thereafter, he (accused) led the I.O. (P.W.18) and other witnesses to that place in giving recovery of knife. The seized incriminating articles were sent for chemical examination through court. On completion of investigation, the I.O. (P.W.18) submitted the Final Form placing this accused to face the trial for commission of offence under sections 302 I.P.C. 4. Learned S.D.J.M., Athagarh having received the Final Form as above took cognizance of the said offence and after observing the formalities, committed the case to the Court of Sessions for Trial. That is how the Trial against this accused commenced by framing the charge for the above offence as against him. 5. In the Trial, the prosecution in total has examined 18 witnesses. Out of whom, the Informant, who happens to be the nephew of the deceased is P.W.1 whereas P.W.2 is the wife of the deceased whereas P.W.10 is another nephew of the deceased. P.Ws.3, 12, 13 & 16 are the co-villagers of the accused. P.W.4 is witness to the seizure of the wearing apparels of the deceased whereas P.W.5 is a witness to the seizure of wearing apparels of the accused. P.W.8 is the scientific officer. P.W.9 is the wife of the Informant. The Doctor, who had conducted the autopsy over the dead body of the deceased has come to the witness box as P.W.14. P.W.15 is a witness to the seizure of blood stained earth, broken bangles and other incriminating articles. P.W.17 is the Grama Rakhi. The I.O. of the case has come to the witness box at the end as P.W.18. JCRLA No.15 of 2008 Page 3 of 11 6. The prosecution, besides tendering the evidence through the above witnesses, has also proved several documents which are Ext.1 to 20. Out of those, the important are F.I.R. (Ext.1), the inquest report is (Ext.2/2) and the spot map (Ext.13). The Chemical Examiner’s Report had been admitted in evidence and marked Ext.6. 7. The defence plea is that he had land dispute with the Informant (P.W.1) and for that, a false case has been foisted against him. However, the accused has not tendered any evidence in support of that plea. 8. Learned counsel for the Appellant (accused) from the beginning without questioning the finding of the Trial Court that Arjuna met a homicidal death submitted that the evidence on record is wholly in sufficient to come to a finding that the prosecution has proved the charge against the accused for commission of offence under section 302 of the IPC in intentionally causing the death of Arjuna beyond reasonable doubt. She submitted that there being no direct evidence to connect the accused with the crime, the Trial Court without due proof of any such incriminating circumstances have erred in relying upon those in fastening the guilt upon the accused. It was submitted that the Trial Court has not properly scrutinized the evidence of P.W.1, P.W.2 and P.W.3 who happen to be the nephew, wife and wife of Kalandi (P.W.7) respectively. According to him, upon due analysis of these three witnesses, the Trial Court ought not to have relied upon the same in pointing out the complicity of this accused in the said crime. She next submitted that when it is said that the accused while in police custody gave recovery of the knife pursuant to his statement by leading the police and witnesses to the occurrence, the same being not supported by P.W.12 and P.W.16 and when the evidence of the I.O. JCRLA No.15 of 2008 Page 4 of 11 (P.W.18) on that score do not pass through the test of reliability and acceptability, the same is of no avail to the prosecution. She next submitted that the sole eye-witness to the occurrence is P.W.3 and she having not supported the prosecution version, the entire case of the prosecution as laid through the evidence of other witnesses ought not to have been believed to conclude that it was the accused who had inflicted such fatal injuries upon the deceased. She further submitted that the circumstance that the Chappal of the accused seized in course of investigation not carrying human blood with the group of the deceased ought not to have been accepted as the very seizure of the Chappal of the accused form the spot has not been proved and the sole independent witness on that score having stated about the seizure of other articles has remained silent as regards the seizure of the Chappal. She submitted that when P.W.18, the I.O. has stated about the seizure of the said Chappal with other incriminating articles, the same is not receiving any corroboration and that apart the evidence of P.W.18 on that score is highly unbelievable. She, therefore, contended that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 9.
Legal Reasoning
detain the accused. That being so, we find that the defence has drawn the attention of this witness that she had not stated before the I.O. (P.W.18) in course of investigation that when she rushed to the spot, she had found the accused there holding the Katari and Bhujali. This omission on vital aspect amounting to contradiction has been proved through the I.O. (P.W.18) who has stated that P.W.2 had not stated before that when hearing the shout she went to the spot, she had seen the accused holding Katari and Bhujali in his both hands and threatened to finish her. Thus the evidence of P.W.2 as regards the accused standing near the place holding the Katari and Bhujali falls foul as material contradiction being a development at a later stage. Therefore, we are not in a position to place any reliance upon the evidence of P.W.2 that she had seen the accused at the place holding Katari and Bhujali. Thus, when the prosecution’s case does not derive any support from the evidence of P.W.3, the evidence of P.W.1 and P.W.2 too do not come to the aid of the prosecution case in so far as the complicity of this accused is concerned. 14. The wife of the Informant (P.W.1) examined as P.W.9 has stated that hearing the shout of the brother-in-law of her father-in-law, namely, JCRLA No.15 of 2008 Page 8 of 11 Srinibas that “CHAKRA DAUDI ASA” and that the accused was assaulting the deceased by Kati, she went to the village Danda with Chakra, who happens to be her brother-in-law. She has stated that on arrival, they found the deceased lying with bleeding injuries and P.W.2 being present there informed them that the accused assaulting the deceased ran away and then they too saw the accused running away through the Bari of Kalika. Although she has denied to have not stated before the I.O. (P.W.18) that Srinibas shouted “CHAKRA DAUDI ASA”, accused Kishore was assaulting Arjuna by Kati. It has been proved through the I.O. (P.W.18) that she had not stated before him that Srinibas shouted “CHAKRA DAUDI ASA”, accused Kishore Ghadei was assaulting. It has also been proved through P.W. 18 that she (P.W.9) had only stated that Srinibas shouted Chakra Daudi Asa, accused Kishore Ghadei assaulting Arjun had fled away. Thus, the evidence of P.W.9 in the Trial is not in consonance with her version during investigation. Said Srinibas has been examined as P.W.13. He has not supported the version of P.W.9. He has completely denied to have any knowledge as to how Arjuna died. P.W.9 has rather stated before the I.O. (P.W.18) that hearing the shout of Srinibas, first her brother-in-law Chakra ran towards village Danda and P.W.2 (wife of the deceased) followed her. This Chakra examined as P.W.10 is completely silent that accused was seen by him to be present there at the spot holding any weapon or was seen by him to be leaving the place. Thus, on cumulative reading of all these evidence, we do not find the prosecution to have proved said incriminating circumstance/s as against the accused beyond reasonable doubt. 15. Coming to the recovery of the axe at the instance of the accused while in police custody; we find the independent witnesses, P.W.12 and JCRLA No.15 of 2008 Page 9 of 11 P.W.16 to have not stated anything on that score. P.W.18, the I.O. is simply stating that after apprehending the accused while in police custody, he gave a disclosure statement that he had concealed the knife inside the cashew plant situated near Baramana Mundia (hillock) and that he would show the place if would be taken there. The statement of the accused has been admitted in evidence and marked Ext.10/1. P.W.18 further states that accused after making the disclosure took them to the place and gave recovery of the knife which he seized. It be first said that knife, we find to have not been independently connected with the commission of the offence when no blood has been detected over the same as would be seen from the Chemical Examiner’s Report (Ext.6). That apart, P.W.18 is not stating as to where such disclosure statement was made by the accused and wherefrom they started the journey when as already stated the independent witnesses, P.W.12 and P.W.16 are not stating anything about such recovery at the instance of the accused. In such state of affair in the evidence, we are led to hold that the prosecution cannot take advantage of the said circumstance in showing that the knife seized was kept in a place which was only known to the accused. More so, when that knife has not been connected in any way with the crime except showing through the evidence of the Doctor that the same might have been used in causing the injuries upon the deceased, that even is so accepted to have been recovered at the instance of the accused cannot form the sole basis of conviction. 16. The other incriminating circumstance projected by the prosecution and accepted by the Trial Court is that of detection of human blood of the same group as that of the deceased in one out of the pair of Chappal of the accused. When P.W.18 in this connection states that he had seized a pair of Chappal from the spot after he arrived there, P.W.15 although has stated about the seizure of blood stained earth, broken bangles at the spot, Page 10 of 11 JCRLA No.15 of 2008 after the arrival of the police, his evidence is just silent as regards seizure of Chappal. Moreover none has stated to have seen the accused wearing those Chappals and those were his Chappals. Furthermore, P.W.8 is silent as to how he kept those Chappals after the seizure in excluding the possibility of there being any foul play. Thus, we find that the above circumstance has not been proved beyond reasonable doubt by leading clear, cogent and acceptable evidence to stand as an incriminating circumstance against the accused. On a conspectus of the foregoing analysis of evidence, we are constrained to say that the prosecution has not been able to establish its case against the accused to be the author of the fatal injuries upon the deceased leading to his death beyond reasonable doubt. The Trial Court, in our view, having nor properly appreciated the evidence on record in the light of all the surrounding circumstances, as discussed above, is not right in holding the accused guilty for commission of offence under section 302 IPC. 17. In the wake of aforesaid, the Appeal stands allowed. The judgment of conviction and order of sentence dated 31st January, 2007 passed by the learned Adhoc Additional Sessions Judge, Fast Track Court, Athagarh in Sessions Trial No.517 of 2005, are hereby set aside. Since the accused (Kala @ Kishore Ghadei) is on bail, his bail bonds shall stand cancelled. V. Narasingh, J I agree. (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Himansu Location: OHC Date: 22-Aug-2024 18:15:11 JCRLA No.15 of 2008 (V. Narasingh), Judge Page 11 of 11
Arguments
Learned counsel for the State while supporting the finding of guilt as has been returned by the Trial Court contended that the evidence of P.W.2, P.W.9 and P.W.10 clearly establish the guilt of the accused and the same coupled with the evidence of P.W.18 as regards the recovery of the katari at the instance of the accused while in police custody leading to that place where it was kept as also the detection of human blood of the same group as that of the deceased are enough to record the finding of guilt against the accused. JCRLA No.15 of 2008 Page 5 of 11 10. Keeping in view the submissions made, we have carefully read the judgment passed by the Trial Court. We have also gone through the depositions of the witnesses P.W.1 to 18 and have perused the documents admitted in evidence from the side of the prosecution and marked Ext.1 to 20. 11. The death of Arjuna has been proved by the prosecution to be homicidal by leading the evidence of the Doctor (P.W.14) who had conducted autopsy over the dead body of the deceased. We find from the evidence of P.W.14 that he had noticed several cut injuries numbering eight (8) over the dead body of the deceased and that according to him, has led to the death. It is also his evidence that said injuries, which are ante mortem in nature, were possible by sharp pointed object. The evidence of the Doctor (P.W.14) appears to have not been shaken that the death has resulted from such cut injuries found by him on the body of the deceased. That apart, we find the evidence of P.W.18, the I.O. who holding the inquest over the dead body, has noted all such injuries in his inquest report prepared in presence of witnesses, which has been admitted in evidence and marked Ext.2/2. Over and above, other witnesses, such as, P.W.2, P.W.9 and P.W.10 have also stated to have seen the deceased with such injuries on his person. With all these above discussed unimpeached evidence, we find the finding of the Trial Court that Arjuna met a homicidal death is well in order. 12. Coming to the evidence as to the complicity of this accused, it be stated from the beginning that P.W.3 had been projected by the prosecution as the eye-witness to the occurrence. However, during trial she has not stated so. She is none other than the wife of the Kalandi (P.W.7) on whose Verandah it is alleged by the prosecution that the accused had inflicted cut injuries upon the deceased. P.W.3 states that Page 6 of 11 JCRLA No.15 of 2008 hearing the shout of deceased when she came out of the house, she found the deceased with bleeding injuries lying in front of the house of one Rama Behera and she also noticed the blood marks from the verandah of their house to the place where the deceased was found lying. The prosecution having been permitted by the Trial Court although has cross- examined this witness, it is found that except drawing the attention of this witness as to her previous statement recorded by the I.O. (P.W.18) that she had seen the accused assaulting the deceased by means of a knife which she had denied, no further material has been brought out to provide any aid to the prosecution. Although the prosecution has proved through P.W.18 that P.W.3 had stated to have seen the deceased being assaulted by the accused by means of a knife; that is of no avail to the prosecution as it cannot be taken to be the substantive evidence. So at best this P.W.3 when can be said to be suppressing the real facts relating to the incident by resiling from her previous version, nothing more, when her husband P.W.7 has also not stated anything to have been told by P.W.3 as regards happenings in the said incident. It is the evidence of P.W.1 who is the Informant and nephew of the deceased who had lodged the F.I.R. (Ext.1) that when he rushed to the place to his house hearing hullah, he found a gathering of people and heard from them that accused had committed the murder of his uncle. Although, he states that P.W.3 the wife of Kalandi-P.W.7 had disclosed before him that accused Kala had assaulted the deceased by means of a katari when the deceased was sitting on the Verandah of their house that being not so stated by P.W.3, the evidence of P.W.1 on that score falls flat. 13. Then comes to the evidence of P.W.2, who is the wife of the deceased. She has stated that hearing the hullah from the villagers that Page 7 of 11 JCRLA No.15 of 2008 Kala committed the murder, she rushed towards the sahi and found accused was holding a Katari and a Bhujali on his hands, then her husband (deceased) was lying with bleeding injuries in front of the house of Rama Behera. It being the version of P.W.2 that he had seen the accused standing there near about the spot holding Katari and Bhujali; that is not stated by P.W.1, who too had rushed to the spot. P.W.2 also does not state that whether the accused in that position remained there or he went away after some time. It is also not her version that when villagers started shouting if they had attempted to