MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.17 of 2010 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 18th February 2010 & 19th February, 2010 respectively passed by the learned Ad hoc Additional Sessions Judge, (FTC-IV), Bhubaneswar in Criminal Trial Case No.19/71 of 2008. ---- Bijaya @ Binoda Munda ….. Appellant -versus- State of Odisha ….. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ======================================================== For Appellant - Ms. Agnisikha Ray, Mr. Laxminarayan Patel, Advocate. For Respondent - Mr. S.K. Nayak, Additional Govt. Advocate. CORAM:
Legal Reasoning
MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING :11.07.2024: DATE OF JUDGMENT: 20.08.2024 D.Dash, J. The Appellant by filing this Appeal from inside the jail has challenged the judgment of conviction and order of sentence dated 18th February 2010 & 19th February, 2010 respectively JCRLA No.17 of 2010 Page 1 of 11 passed by the learned Ad hoc Additional Sessions Judge, (FTC- IV), Bhubaneswar in Criminal Trial Case No.19/71 of 2008 arising out of G.R. Case No.1783 of 2004 corresponding to Chandrasekharpur P.S. Case No.154 of 2004 of the Court of the learned Sub-Divisional Judicial Magistrate, Bhubaneswar. The Appellant (accused) thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for three months. 2. Prosecution Case: - Prosecution case is that in the night of 14.06.2004 around 10.30 pm, the accused with another namely Guru Charan Samak assaulted Majura (deceased) by means of sword at the place behind the house of one Nanda situated in mouza Kanchanjanga Munda Basti of Jagannath Lane within the jurisdiction of Chandrasekharpur Police Station. Due to such assault, Majura fell on the ground being severely injured and then it is stated that this accused with his associate Guru left the place carrying the sword. The incident is said to have been witnessed by Srimati Hansdah (P.W.2), Siba Hembram (P.W.4) and one Mangal Purty. Out of fear, they did not disclose the JCRLA No.17 of 2010 Page 2 of 11 incident before anybody in that night. However, on the next morning, the incident being disclosed to the headman of their Sahi namely, Narasingha Sinku (P.W.1); who in turn informed the matter to the Inspector-In-Charge (IIC), Chandrasekharpur Police Station. The then IIC, Sri Prakash Chandra Jena having reduced the version of P.W.4 into writing, treated the same as F.I.R. (Ext.1/1). Upon registration of the case, the IIC directed the Sub-Inspector of Police (Ext.9) attached to that police station to take up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.9) examined the Informant (P.W.1) and other witnesses. He visited the spot, held inquest over the dead body of the deceased in presence of witnesses and prepared the report, Ext.7. He also examined other witnesses and sent the dead body of Majura for postmortem examination by issuing necessary requisition. This I.O. (P.W.9) also seized incriminating articles including wearing apparels of the deceased after those were returned by the Police Constable who had accompanied the dead body of the Majura. In view of transfer of P.W.9, he handed over the charge of investigation to P.W.8, the then IIC. P.W.8 arrested the accused on 11.05.2007 and forwarded him into custody to Court. On account of transfer of P.W.8, investigation was handed over to another S.I. of Police namely, JCRLA No.17 of 2010 Page 3 of 11 Shri Makara Hota (P.W.7), who finally completed the investigation and submitted the Final Form placing this accused to face the trial for commission of offence under section-302 of the IPC who being not able to apprehend Guru Charan Samak, submitted charge-sheet. 4. Learned S.D.J.M., Bhubaneswar receiving Final Form, took cognizance of the above offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing charge for the said offences against the accused. 5. In the Trial, the prosecution in total has examined nine (9) witnesses. Out of whom as already stated P.W.1 is the Informant, who had orally reported the matter at the Police Station, which was reduced into writing under Ext.1 and P.Ws.2 and 4 are the two eyewitnesses. The Doctor who had conducted autopsy over the dead body of the deceased has been examined as P.W.5 and P.Ws.7 to 9 are the three Investigating Officers. The prosecution besides leading the evidence through the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 7. Important of those are the F.I.R., Ext.1/1, the inquest report, Ext.7 and postmortem report, Ext.3. JCRLA No.17 of 2010 Page 4 of 11 6. The plea of defence is that of complete denial. The defence has however not adduced any evidence in support of the plea so taken. 7. The Trial Court upon examination of evidence of prosecution witnesses, more particularly P.Ws.2 and 4 side by side, the evidence of P.W.1 has arrived at a conclusion the charge against the accused under section-302 of the IPC in intentionally causing the death of Majura has been established beyond reasonable doubt. Accordingly, the accused has been sentenced as aforestated. 8. Learned Counsel for the Appellant (accused) submitted that the Trial court has erred in accepting the evidence of P.Ws.2 & 4 who are the so-called eyewitnesses insofar as they have implicated this accused. He submitted that the evidence of P.Ws. 2 and 4 that it was this accused who had been seen by them to be inflicting injuries upon the deceased by sword is highly doubtful. She further submitted that when it is the prosecution case from the very beginning that this accused, and another Guru Charan Samak were inflicting injuries upon the deceased and brutally assaulted him, P.Ws. 2 and 4 during the Trial having stated only as to the complicity of this accused, their evidence on that ground ought to have been held to be highly unsafe to be relied upon. He further submitted that the F.I.R. lodged by P.W.1 after hearing Page 5 of 11 JCRLA No.17 of 2010 the incident when also implicates another person’s with this accused during trial the tendency only to implicate this accused makes the entire prosecution case unbelievable. Inviting the attention to the deposition of P.Ws.2 and 4, she pointed out that their evidence as to the identification of this accused as the assailant is highly doubtful when tested with the surrounding circumstances which emanate from the evidence on record. She further submitted that the evidence of P.Ws.2 and 4 that they knew the deceased from an anterior date is highly unbelievable and therefore, when no step has been taken for identification of this accused by those witnesses, P.Ws. 2 and 4 by holding test identification parade, their evidence were that it was the accused who had been seen by them to be inflicting injuries upon the deceased are liable to be rejected. In view of all these above; he urged for acquittal of this accused. 9. Learned Counsel for the Respondent-State while supporting the finding of guilt of the accused as has been returned by the Trial Court submitted that by assigning good reasons and upon discussing the evidence of P.Ws.2 and 4 from every possible angle the Trial Court has rightly held those two witnesses to be reliable and trustworthy and thus having acted upon their evidence did no mistake has been committed in convicting this accused for committed the murder of Majura. Page 6 of 11 JCRLA No.17 of 2010 10. 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.9 and have perused the documents which have been marked Exts.1 to 7. 11. It be stated at this stage that the defence has not challenged that Majura met a homicidal death. When we go through the evidence of P.W.5, the Doctor who had conducted autopsy over the dead body of the deceased, we find him to have noticed one lacerated wound on the left side of the neck, incised wound on the middle of the left scapula region and abrasion on right side back. As per his evidence, all these injuries were ante-mortem in nature and caused by hard and blunt object. It has been brought out that lacerated wound on the left side of the neck is sufficient in ordinary course of nature to cause death and that has resulted death of the deceased. The defence has not challenged the evidence of P.W.5 on the above score. Moreover, the other witnesses including P.Ws.2 and 4 have stated to have seen the deceased with such injuries and that has also been noted by P.w.9, who had held inquest over the dead body and prepared the report, Ext.7. with the above discussed evidence, we find no difficulty in concerning with the JCRLA No.17 of 2010 Page 7 of 11 finding of the Trial Court that Majura (deceased) met homicidal in deaths. 12. Proceeding to address the rival submission as regards to complicity of this accused in causing fatal injuries upon the deceased, let’s first of all undertake the examination of the evidence of P.Ws.2 and 4. It first stated that the F.I.R. (Ext.1/1) which has set the criminal action into motion being lodged by P.W.1, this accused as well as one Guru Charan Samak had been implicated therein to have caused the death of Majura. It has been stated therein that P.Ws.2 and 4 had seen the incident. P.W.1 has mentioned to have been told about the incident by them. Said witness P.W.2 during trial, however, has not breathed a word against that Guru Charan Samak. Here specific evidence is that she saw accused giving sword blow to Majura and having seen that she felt nervous and entered into the house and lost her sense. She states that after some time having regained, the sense she had informed the matter to P.W.4, who was in the house, when P.W.4 came out of the house and called persons of the street. She does not state even about the presence of any other person with this accused at the relevant time. P.W.4 has stated that after P.W.2 regained her sense, she told him that a man was killed and nothing more. His evidence is that he (P.W.4) came out of the house. It is his further JCRLA No.17 of 2010 Page 8 of 11 evidence that when he came out, he saw a person lying with cut injuries on his body and therefore, he called some persons of that locality and informed the fact to them. P.W.4 does not state that P.W.2 had ever told him that it was the accused who was seen by her in assaulting the deceased by means of sword. It be noted here that P.W.2 had married P.W.4 for the second time. Although P.W.1(Informant) in the Trial has stated that he had informed about the murder of Majura to the Police, during cross-examination, he states to have no knowledge as to what were written by the Police after hearing the incident from him. He denied even to have put his signature. P.W.1, states that accused was then staying in their Basti and therefore, he knew him. But he does not state that P.Ws.2 and 4 had ever told him that it was the accused who had inflicted the injuries upon the deceased by means of sword. Even though P.W.1 states that he had been to the spot when Police arrived and then five to six persons were also present there, he does not state to have then even disclosed about the involvement of this accused in the said incident before those other persons there had so informed the Police. 13. P.W.2 has specifically stated to have no knowledge as to whether she had seen anybody with the accused in giving the blows with a sword upon Majura. Attention of P.W.2 having JCRLA No.17 of 2010 Page 9 of 11 been drawn to her previous statement that she had not sated before the I.O. (P.W.9) during investigation that one Kana inflicted blows on the deceased during the occurrence, the same has been proved through P.W.9. P.W.4, when states that accused was being called by Kana, it was not his statement before the I.O. (P.W.9) that such was the nick name of the accused. More interestingly, the F.I.R. does not find mention of this nick name of this accused as “Kana” although it is said by P.Ws.2 and 4 that they knew him by that name. When P.Ws.2 and 4 stated that accused was residing nearby; P.W.1 does not say so. As per the evidence of P.W.2, it was raining during that night and there was no light on the street. She has not been able to even recollect that whether at that time other persons were moving on the street or not. At the same time, although she states that Siba, P.W.4 called one Nanda in that night and went to the spot; that Nanda has not been examined by the prosecution. The accused and P.Ws. 2 and 4 are natives of different Districts of the State, and the address of the accused is not same as that of P.Ws.2 and 4. 14. We too find that this accused was never put to the test of identification parade during investigation. In the F.I.R., this accused and another being implicated both the accused persons were named in the charge-sheet as P.Ws.2 and 4 also had JCRLA No.17 of 2010 Page 10 of 11 implicated both during their examination by the I.O. (P.W.9) but P.W.2 during trial has implicating this accused to be the lone assailant leaving the other and that too without even stating about his presence nearby when the charge stands that this accused and other in furtherance of their common intention had committed the offence. For the discussion and reasons as aforesaid, the prosecution case cannot be held to be free from doubt and the evidence let in are thus found unsafe to be relied upon to conclude that this accused by inflicting the injuries upon the deceased by means of sword had caused the death of Majura. 15.
Decision
In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 18th February 2010 & 19th February, 2010 respectively passed by the learned Ad hoc Additional Sessions Judge, (FTC-IV), Bhubaneswar in Criminal Trial Case No.19/71 of 2008, are hereby set aside. Since, the Appellant, namely, Bijaya @ Binoda Munda is on bail, his bail bonds shall stand cancelled. V. Narasingh, J. I Agree. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Narayan Location: OHC Date: 22-Aug-2024 18:46:43 JCRLA No.17 of 2010 (D. Dash), Judge. (V. Narasingh), Judge. Page 11 of 11