The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.453 of 2011 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 18th May, 2011 passed by the learned Ad hoc Additional Sessions Judge, Sundergarh in Sessions Trial No.6/3 of 2011. Padmanava Mahakul @ Mahakud; and Suresh Bhainsal ---- -versus- …. Appellants State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.Brahmananda Tripathy (Advocate) For Respondent - Mrs.Saswata Patnaik, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 13.02.2024 : Date of Judgment : 29.02.2024 D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 18th May, 2011 passed by the learned Ad hoc Additional Sessions Judge, Sundergarh in Sessions Trial No.6/3 of 2011 arising out of G.R. Case No.181 of 2010 corresponding to Lephripara P.S. Case CRLA No.453 of 2011 Page 1 of 11 {{ 2 }} No.10 of 2010 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundergarh. The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, each of them 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 a further direction that if the fine amount is realized the same shall be paid to the father of the deceased. 2. PROSECUTION CASE:- On 19.03.2010 morning, these two accused persons had gone to the house of Benudhar Mahakula at Village Bakuldihi (Chandrapur) under Tikayatpali Police Station in the District of Sundergarh in a scooter. From the house of Benudhar, they along with Benudhar started for Rourkela in that very scooter in order to purchase one Hero Honda Motorcycle for Benudhar. Benudhar had taken cash of Rs.50,000/- (Rupees Fifty Thousand) with him for paying the price of the motorcycle. Benudhar along with the accused persons thereafter came to Sundergarh from Rourkela to purchase the motorcycle. As the colour of the motorcycle was not up to the choice, they moved in the said scooter towards the house of the accused Suresh at Village-Chhotoanga. When CRLA No.453 of 2011 Page 2 of 11 {{ 3 }} Benudhar did not return to his house till night, it was around 8.00 p.m., his younger brother Muralidhar (P.W.3) telephoned to him. Benudhar, having received the call, replied that he along with the accused persons were returning in the jungle route in the scooter and he would take when the scooter would stop. However, Benudhar did not further call Muralidhar (P.W.3) over telephone. So, it was around 10.00 p.m. Muralidhar (P.W.3) again called Benudhar over telephone. The mobile phone of Benudhar was then found to have been switched off. On the next day, i.e., 20.03.2010 around 1.00 p.m., one Mangal Kisan (P.W.1) of Village- Bijadihi was moving on the road Mayurmunda of Village- Bijadihi. He then found a bhujali stained with blood and blood patches on the side of the said road. Thereafter, he found a dead body of a male lying with injuries on his head and blood clots over there. He suspected someone to have killed that person. So, he reported the matter at Sargipali Police Out Post in writing vide Ext.1. The Assistant Sub-Inspector (ASI) of Police attached to that Police Out Post, receiving that information, entered the said fact in the Station Diary book maintained at the Police Out Post and sent the same to Lephripada P.S. for registration of the case and follow up action. CRLA No.453 of 2011 Page 3 of 11 {{ 4 }} The Officer-in-Charge (OIC) of Lephripada P.S. (P.W.9), receiving the said written report from the ASI of Sargipali Police Out Post, registered the criminal case and took up investigation. 3. The Investigating Officer (I.O.-P.W.99), in course of the investigation, examined the informant (P.W.1) and went to the spot, i.e., Podmundi Jungle at Mayurmunda of Village-Bijadihi. Having found the dead body of a male person lying on the ground by the side of the road with injuries on his head and few documents such as the money receipts issued by Sarsara Lamp, he seized those documents under the seizure list (Ext.8). He then held inquest over the dead body of the Benudhar and prepared the report to that effect (Ext.3) after having ascertained that the dead body is none other than that of Benudhar of Village- Bakuldihi. The I.O. (P.W.9) sent the dead body for post mortem examination by issuing necessary requisition. The wearing apparels of the deceased and accused were seized by the I.O. (P.W.9) under seizure list Ext.13 & 14 respectively. The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the Final Form was submitted placing these accused persons to face the Trial for commission of the offence under section 302/34 of the IPC. CRLA No.453 of 2011 Page 4 of 11 {{ 5 }} 4. Learned S.D.J.M., Sundergarh, on receipt of the Final Form, took cognizance of the said offences and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against these accused persons. 5. The prosecution, in support of its case, has examined in total nine (9) witnesses during Trial. Out of them, the informant is
Legal Reasoning
P.W.1, who saw the dead body first. P.W.2 is a witness to the seizure of sample earth, blood stained earth and the weapon of offence. P.Ws.3, 4 & 5 are the younger brother, father and co- villager of the deceased respectively. P.Ws.6 & 8 are the witnesses to the disclosure statement of accused Suresh. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.7. The I.O. of the case, at the end, has come to the witness box as P.W.9. 6. 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 18. Out of those, the important are, the FIR (Ext.1), the inquest report (Ext.3); the post mortem report (Ext.6); and the spot map (Ext.11). 7. The accused persons have taken the plea of complete denial and false implication. They, however, have not tendered any CRLA No.453 of 2011 Page 5 of 11 {{ 6 }} evidence in support of such plea, but have stated in their statement recorded under section 313 Cr.P.C. that they are in no way connected with this case and had no acquittance with the deceased.
Legal Reasoning
8. Mr.B. Tripathy, learned counsel for the Appellants (accused persons), without disputing the finding of the Trial Court as regards the nature of death of Benudhar to be homicidal in view of the evidence of the Doctor (P.W.7), who had conducted the autopsy over the dead body of the deceased and the I.O. (P.W.9), who held inquest over the dead body of the deceased and prepared the report (Ext.3) as also other witnesses, who had the occasion to see the dead body with injuries, submitted that the entire case of the prosecution is based on circumstantial evidence and the prosecution having not proved the circumstances which are said to be incriminating by leading clear, cogent and acceptable evidence, the trial court has erred in holding the charge against the accused to have been proved beyond reasonable doubt. According to him, here the circumstances are that the deceased had left his house with the accused persons in the morning next before the detection of the dead body. He submitted that the said evidence is not believable and the time gap, being too much when the evidence as to the telephonic exchange of words between the deceased and P.W.3 and others CRLA No.453 of 2011 Page 6 of 11 {{ 7 }} has not been proved, it cannot be said that the prosecution is relieved of the obligation in saying that the burden of proof has shifted upon the shoulder of the accused persons to show as to what happened to the deceased after he left with them. He further submitted that the evidence as to the seizure of cash and mobile phone of the deceased and the blood stained wearing apparels of the accused under seizure list (Ext.5), which is said to have been based upon the statement of the accused Suresh purported to have been recorded under Ext.4 is highly unbelievable. He, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 9. Mrs.S. Patnaik, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt against these accused persons, as has been returned by the Trial court, contended that there being positive evidence coming from the lips of P.Ws.3, 4 & 5 on the score that there was telephonic conversation between the accused and P.W.3 when the deceased had disclosed to be with the accused persons in the night and that the dead body, having recovered on the next day afternoon when the accused persons are not coming forward with any explanation as to how the deceased left their company with the attraction of the provisions contained in section 106 of the CRLA No.453 of 2011 Page 7 of 11 {{ 8 }} Evidence Act the Trial Court has rightly convicted the accused persons. 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.9) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.18. 11. P.W.1 is the person, who had first seen the dead body of Benudhar. P.W.3 is an important witness for the prosecution and he is none other than the brother of deceased- Benudhar. It is his evidence that on 19.03.2010, his brother Benudhar with the accused persons went to Rourkela from their village in order to purchase a Hero Honda CD Delux Motorcycle. But, they did not return and, therefore, around 8.00 p.m, he is saying to have telephoned to his brother Benudhar, who, receiving the same, told that he along with these accused persons were returning through the jungle route and they would talk when the vehicle would stop. Thereafter, there has been no communication. Most interestingly, this important part of the evidence was not the version of P.W.3 before the I.O. during the investigation, as has been recorded by I.O. (P.W.9). The attention of this witness, CRLA No.453 of 2011 Page 8 of 11 {{ 9 }} having been drawn to the said omission, it has been proved through the I.O. (P.W.9), which certainly is a material contradiction. Accepting the evidence of P.W.3 that the accused persons and the deceased had left the house in the morning, the dead body, having been recovered in the next afternoon, in the absence of any other evidence that the deceased was seen in the company of these accused persons at any time towards the late night or even in the afternoon, it would not be permissible to hold that since the accused persons were having the special knowledge as to what happened to the deceased and how he left their company. Therefore, in the absence of any explanation coming from them, presumption would not come in that they are responsible for all said happenings with the deceased. P.W.4, who is the father of the deceased. He although has stated that Muralidhar (P.W.3) had a telephonic conversation with the deceased in asking him as to whether they were coming to the house or not and Benudhar told that they were returning from Sundergarh to the house of the accused Suresh, that is not the version of P.W.3. P.W.5, who is a neighbour, has stated that he had been told by P.W.3 about the telephonic conversation which, however, runs little different from what have been disclosed by P.Ws.3 & 4. CRLA No.453 of 2011 Page 9 of 11 {{ 10 }} The mobile set of the deceased although has been seized has not been produced in Court and identified. It has not been ascertained as to whether the SIM card had been issued in the name of the deceased. Call detail reports are also not proved. The evidence as to the recording of disclosure statement of accused Suresh coming from the lips of the I.O. (P.W.9.), on a plain reading does not inspire confidence in mind. He says that on 27.03.2010, accused Padmanava was arrested. It is also his evidence that on 03.04.2010 morning, accused Suresh was arrested. When he states that he was arrested from his house at Village-Chutbanga, he says that then the accused Suresh gave his statement. It is his evidence that Suresh led him and witnesses to his in-law’s house in giving recovery of cash of Rs.10,000/- along with the mobile set of the deceased and his wearing apparels. As already stated, there is no cogent evidence to establish that the seized mobile set was belonging to the deceased as the same has not been identified nor produced during trial and marked as a material object. No evidence has been given in the trial that it was seen by anybody to being so used by the deceased. The seizure of cash from the house is not that incriminating a circumstance. The incriminating articles, having been sent to the Director, RFSL, Sambalpur, during the trial only the forwarding report has been proved. CRLA No.453 of 2011 Page 10 of 11 {{ 11 }} With the available evidence on record, we are of the considered view that the Trial Court is not right in holding that the prosecution has proved the charge against these accused persons beyond reasonable doubt. 12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 18th May, 2011 passed by the learned Ad hoc Additional Sessions Judge, Sundergarh in Sessions Trial No.6/3 of 2011, are hereby set aside. Since both the Appellants, namely, Padmanava Mahakul @ Mahakud; and Suresh Bhainsal, are on bail, their bail bonds shall 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: 01-Mar-2024 17:59:51 CRLA No.453 of 2011 Page 11 of 11