The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.231 of 2018 (A); CRLA No. 218 of 2018 (B); CRLA No.257 of 2018 (C); AND CRLA No.258 of 2018 (D) In the matter of Appeals under section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 07.03.2018 passed by the learned Additional Sessions Judge, Bhanjanagar in S.T. No.113 of 2013. …. Appellants ---- Kulu Bhuyan & Others (In CRLA NO.231 Of 2018) Manoj @ Muna Jena (In CRLA No.218 Of 2018) Panchanan Behera & Another (In CRLA No.257 of 2018) Manoranjan Bisoyi (In CRLA No.258 of 2018) -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. Asok Mohanty, Sr. Advocate, Mr. G.M. Rath, Advocate, (In CRLA No.231 of 2018), Mr.Gopal Krishna Nayak, Advocate (In CRLA No.218 of 2018), Mr. Jyotirmaya Sahoo, Advocate, (In CRLA No.257 & 258 of 2018) CRLA Nos.231,218,257 & 258 of 2018 Page 1 of 18 {{ 2 }} For Respondent- Mr. P.K. Mohanty, Additional Standing Counsel Mr. A.K. Budhia, Advocate for Informant. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K.PANIGRAHI Date of Judgment: 19.10.2023 D.Dash,J. Since in all these four appeals as at (A) to (D), the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Bhanjanagar in S.T Case No.113 of 2013, arising out of G.R Case No.98 of 2012, corresponding to Bhanjanagar P.S. Case No.57 of 2012 of the Court of learned Sub Divisional Judicial Magistrate (SDJM), Bhanjanagar are under challenge; those were heard together for their disposal by this common judgment. The above named nine (09) Appellants with eight (08) others stood charged for commission of offence under section 147/148/302/114/149 of the Indian Penal Code, 1860 (in short, ‘the IPC’). The Trial Court in the said Trial while acquitting eight (08) others of the charges has convicted these Appellants (accused persons) for commission of offence under section 147/148/114/302/149 of the IPC and they have been sentenced as under:- (a) rigorous Imprisonment for two (02) years each and pay fine of Rs.2000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for one Month each for the offence under section 147 of the IPC. (b) rigorous Imprisonment for three (03) years each and pay fine of Rs.3,000/- (Rupees Three Thousand) each in default to undergo rigorous Imprisonment for three (03) months each for the offence under section 148 of the IPC; and CRLA Nos.231,218,257 & 258 of 2018 Page 2 of {{ 3 }} (c) imprisonment for life and to pay fine of Rs.5000/- in default to undergo rigorous Imprisonment for one (01) year for the offence under section 114/302/149 of the IPC. with the stipulation that substantive sentences would run concurrently.” 2. Prosecution case:- On 16.02.2012 around 9.30 a.m., one Pramila Gouda, wife of Udayanath Gouda (Informant-P.W.1) presented a written report with the Inspector-in-Charge (IIC) of Bhanjanagar Police Station stating therein that in the morning hours, around 8 am, when her son Duti Krushna Gouda (deceased) had gone to Tulasipalli main road to take tea, at the relevant time, these accused persons and others in total numbering (22)
Legal Reasoning
twenty-two (as named in the relevant column in the Formal FIR) forming an unlawful assembly came from the side of Byaghradevi Rice Mill. They were then armed with swords, katis etc. It is further stated that they came in a group, surrounded Duti Krushna on the main road and went on inflicting injuries upon him by means of sword and kati. Receiving the injuries when Duti Krushna shouted for help, mother of Duti Krushna, Pramila (Informant-P.W.1) who was then in the nearby vegetable shop, hearing the shout of her son, rushed to the spot and requested these accused persons and others to refrain from assaulting her son. The accused persons, however, did not listen and continued to assault Duti Krushna. Duti Krushna having sustained several injuries on his person on account of such indiscriminate assault by deadly weapon was then lying on the ground and struggling for life. The IIC, receiving the above noted written report from Pramila (Informant-P.W.1), treated the same as FIR and registering the case, took up investigation. Shortly thereafter, Duti Krushna expired. The CRLA Nos.231,218,257 & 258 of 2018 Page 3 of {{ 4 }} Investigating Officer (I.O-P.W.21) then examined the informant (P.W.1) and other witnesses. He visited the spot and prepared the spot map. He also seized the blood found on the road under seizure list in presence of the witnesses. He then went to the hospital where Duti Krushna had been taken for treatment and died. The I.O (P.W.21) thereafter held inquest over the dead body of the deceased and prepared report to that effect. The dead body was sent for post mortem examination by issuance of necessary requisition. On that day, accused persons namely Kulu Bhuyan, Manoranjan Bisoi, Rabi @ Rabindra Bisoi, Rabi @ Rabindra @ Akula Mallik, Panchanan Behera, Ananta Maharatha, Manoj @ Manoj Jena and Prabhakar Gouda were arrested. It is stated that those accused persons led the I.O. (P.W.21) and others in giving recovery of the weapons from the place where those had been kept. It is specifically stated that accused Prabhakar gave recovery of sword which was kept by the side of the rice mill. The weapon was recovered and was seized under seizure list by the I.O (P.W.21). It is further stated that accused Manoj Jena @ Muna then gave recovery of another sword which was kept by the side of a well situated near the rice mill and that too was seized. Accused Manoranjan is said to have given recovery of one sword from the northern side of the rice mill and accused Panchanan gave recovery of another sword from the western side of the rice mill. Since accused Manoj had sustained some bleeding injury on his chin, he was sent for treatment and medical examination. The above named accused persons were then forwarded in custody to Court. The wearing apparels of the deceased being produced by the Police constable, who was present at the time of Post Mortem Examination were seized under seizure list. Accused Basanta Pradhan was arrested by the I.O (P.W.21) CRLA Nos.231,218,257 & 258 of 2018 Page 4 of {{ 5 }} on 19.02.2012 and he too was forwarded in custody to the Court. The weapons seized were sent by the I.O (P.W.21) to the Medical Officer to examine and opine as regards their user in causing the injuries found upon the deceased. The bed-head ticket of the deceased was seized and thereafter the I.O (P.W.21) seized the incriminating articles for their chemical examination through Court. As the I.O (P.W.21) could not apprehend few other accused persons namely, Sujit Bhuyan, Susanta Nayak, Sanjay Swain, Duti Krushna Swain, Sunil Swain, Sima Marath, Rana Naik, Dhunda Gouda and Nilamani Pradhan, he prayed before the Court in seisin of the case for issuance of NBWS. 3. On 13.06.2012, on completion of investigation, the I.O (P.W.21) submitted the Final Form placing in total nineteen (19) accused persons to face the Trial for commission of offence under section 147/148/114/302/ 149 of the IPC. 4. Learned S.D.J.M., Bhanjanagar, having received the Final Form as above took cognizance of the said offences and after observing the formalities committed the case as against the eighteen(18) accused persons to face the Trial before the Court of Sessions. Since one out of those 19 accused persons, namely, Ranka Nayak, s/o- Bhagaban Nayak could not be apprehended, his case was spilt up. Thus, the case against eighteen (18) accused persons being committed to the court of Sessions, Trial commenced by framing charge against them for the said offences. It be stated at this stage that at the towards the fag end of the trial one accused, namely, Ananta Maharatha having died, the case stood abated as against him. So, finally, seventeen (17) accused persons faced CRLA Nos.231,218,257 & 258 of 2018 Page 5 of {{ 6 }} the trial in the first round leaving the second round for that absconding accused, namely Ranka Nayak. 5. The prosecution, in course of trial, has examined in total twenty- three (23) witnesses. Out of them, the mother of Duti Krushna Gouda (deceased), who has lodged the F.I.R. (Ext.1) has been examined as P.W.1 and P.W.5, namely, Udayanath Gouda is the father of the deceased-Durikrushna. They have been projected as the eye-witnesses from the side of the prosecution. P.W.2 is another eye-witness who says to have gone near the place of occurrence at the relevant time and so also P.W.7. P.W.3 is an after occurrence witness whereas P.W.4 is a witness to the inquest and so also P.W.6 is a witness to the seizure of incriminating materials by the Investigating Officer (P.W.21) at the spot and so also P.W.10, P.W.12, P.W.13, P.W.17 and P.W.18. The Doctor who had conducted the post mortem examination over the dead body of the deceased has been examined as P.W.9 and the Investigating Officer (I.O.) is (P.W.21). 6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in evidence and marked Ext.1 to Ext.21. Out of those, the important are the F.I.R. (Ext.1), inquest report (Ext.2), spot map (Ext.10) and Post Mortem Examination Report (Ext.4). The recorded statements of the accused persons, namely, Manoranjan Bisoi, Muna @ Manoj Jena, Pravakar Gouda and Panchanan Behera have been admitted in the evidence and marked Ext.12, Ext.13, Ext.14 and Ext.17. The report of CRLA Nos.231,218,257 & 258 of 2018 Page 6 of {{ 7 }} the Chemical Examiner is Ext.22 whereas the Biological and Serological examination report is Ext.23. 7. The accused persons, in support of their defence and false implication on account of prior enmity, have examined seven witnesses as D.W.1 to D.W.7. 8. The Trial Court on going through the evidence of the prosecution witnesses and the relevant documents while acquitting eight (8) accused persons, namely, Basanta Pradhan, Susanta Nayak, Sanjay Swain, Duti Krushna Swain, Sunil Swain, Dillip Mallik, Sima Maharatha and Gunda Gouda of all the charges, has found the prosecution to have well proved the charges against these nine (9) accused persons, namely, Kulu Bhuyan, Sujit Bhuyan, Manoranjan Bisoi, Rabindra Bhuyan, Rabindra @ Akuli Mallik, Panchanan Behera, Muna @ Manoj Jena, Pravakar Gouda and Nilamani Pradhan (Appellants in all these Appeals as at (A) to (D).
Legal Reasoning
9. Mr. Asok Mohanty, learned Senior Counsel for the Appellants in Criminal Appeal as at ‘A’ at the outset instead of raising any controversy as regards the nature of death of Duti Krushna Gouda to be homicidal, inviting out attention to the judgment passed by the Trial Court contended that the Trial Court has not at all undertaken the exercise of appreciation of evidence let in during the trial, which is its primary duty in finally saying whether those pass through the test of reliability and acceptability. He submitted that the Trial Court having simply reproduced the depositions of all the witnesses including that of the I.O. (P.W.21) in its own language has finally concluded that the charges against these nine (9) accused persons have been established. CRLA Nos.231,218,257 & 258 of 2018 Page 7 of {{ 8 }} He further submitted that in the entire judgment there has been no discussion of the evidence of the eye-witnesses and the infirmities contained therein as pointed out which in fact are glaring to come to a conclusion as to whether their versions are reliable to conclude that the prosecution has established the complicity of all these accused persons beyond reasonable doubt. He contended that when the Trial Court going through the evidence of the prosecution witnesses has disbelieved the prosecution case insofar as eight (8) accused persons are concerned, the conclusion arrived at to the complicity of these nine (9) accused persons stood proved through their version is without any reason/s. Placing the deposition of P.W.1, who is the Informant and has lodged the F.I.R. (Ext.1), who happens to be the mother of the deceased, he submitted that her presence at the spot at the relevant time cannot to be believed when the F.I.R. version as well as the evidence of her husband (P.W.5) are gone through with the evidence of other prosecution witnesses who have been projected as the eye-witnesses to the occurrence. He submitted that here prosecution witnesses coming forward to say about the complicity of these accused persons are highly interested as they were the members of the rival group of these accused persons and when for such rivalry earlier criminal cases had been instituted. He, therefore, urged for strict scrutiny of their evidence as according to him the tendency always has remained to roping as many persons as possible which can be seen on comparison of the F.I.R. and Final Form. It was submitted that when P.W.1 says to have gone to the spot to purchase vegetable, her presence is to be doubted in view of the evidence of P.W.10, P.W.17, P.W.18 and P.W.22 and more so when CRLA Nos.231,218,257 & 258 of 2018 Page 8 of {{ 9 }} P.W. 1 neither in the F.I.R. nor in her statement has indicated about the presence of P.W.5 at the relevant time at the spot, P.W.5 has, however, stated to have gone with P.W.1 near the place where the assault upon their son was going on. He then placing the depositions of all other witnesses finally contended that in this case there being no consistency in the evidence of all these witnesses as to the involvement of these accused persons, the Trial Court has gone completely wrong in concluding that the prosecution has established the charges against these accused persons beyond reasonable doubt. Learned counsel for the Appellants (accused persons) of other three Appeals as at (B) to (D) have repeated the submission of the learned Senior Counsel, Mr. Mohanty in further pointing out the discrepancies in the evidence of those prosecution witnesses who are said to be the eye-witnesses to the occurrence, which would be discussed later. They submitted that when some of the Appellants like Manoj @ Muna have not been named by the P.Ws and there is also no positive finding that they did any overt act, the Trial Court without even coming to conclude that they were present there in prosecution of the common object of the unlawful assembly in holding them guilty all the charges. 10. Mr. P.K. Mohanty, learned Additional Standing Counsel while supporting the finding of guilt against these accused persons as has been held by the Trial Court submitted that the evidence of the mother and father of the deceased (P.W.1 and P.W.5) when receive corroboration from the evidence of other witnesses, merely because, P.W.5 has not stated about the presence of P.W.1 and so also P.W.1 has not stated about the presence of P.W.5; the prosecution case in view of evidence of CRLA Nos.231,218,257 & 258 of 2018 Page 9 of {{ 10 }} other witnesses cannot be doubted. According to him, the Trial Court on detail discussion of evidence on record has rightly held these accused persons to have committed the murder of Duti Krushna by causing several injuries by means of deadly weapons all over his body leading to his death. 11. 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.23) examined from the side of the prosecution as well as those of D.W.1 to D.W.7 and have perused the documents admitted in evidence and marked Ext.1 to Ext.23 from the side of the prosecution. 12. Although the Trial Court has not recorded any finding with regard to the nature of death of the deceased to be homicidal, which was/is not under challenge, we find the same from evidence of the Doctor (P.W.8) with the evidence of I.O. (P.W.21) and their reports as well as the evidence of other witnesses who had seen the deceased with several injuries on his persons. The Doctor (P.W.8) in his evidence has stated that the deceased had received several incised wounds all over his body and those injuries were ante mortem in nature and the death was on account of the injury to the brain as well as the cut injuries all over the body causing hamerohhage and shock leading to death. Practically, there is even no attempt to impeach the evidence of P.W.8. The I.O. (P.W.21) has also noted all such injuries in his inquest report (Ext.2.) Besides the above, we find the evidence of P.W.1, P.W.5 and other witnesses who had seen the deceased with such injuries all over his body. In view of CRLA Nos.231,218,257 & 258 of 2018 Page 10 of {{ 11 }} the above evidence on record, we conclude that the death of Duti Krushna was homicidal in nature. 13. In order to address the rival submission, in judging the sustainability of the finding of guilt against these accused persons as has been returned by the Trial Court, we are called upon to undertake the exercise of scrutiny of the evidence of the prosecution witnesses in appreciating their version in a just and proper manner. 14. The mother of the deceased who has been examined in the Trial as P.W.1 is the Informant and she had lodged the F.I.R. (Ext.1) which has set the criminal law into motion. Admittedly, she has not written this F.I.R. (Ext.1) in her own hand. It is stated that the F.I.R. (Ext.1) was scribed at the Police Station when she went to the Police Station after her son was taken from the spot to the Hospital. However, she having said during her examination-in-chief that she did not know as to who wrote out that F.I.R. (Ext.1), it is not said that the F.I.R. version is not her as then told. Be that as it may, we find in her evidence that she having specifically named accused Kulu Bhuyan, Sujit Bhuyan, Manoranjan Bisoi, Akuli Mallik and Ananta Maharatha (dead), has not named other thirteen (13) accused persons who too were facing the Trial, even though she has said to have known all those accused persons, i.e., eighteen (18) then present in the dock as they are the co-villagers. Interestingly, we find that in the F.I.R., twenty-two (22) persons have been implicated to be the assailants of Duti Krushna. One name, i.e., the name of accused Manoranjan Bisoi has been written twice and, accordingly, the case stood registered against twenty-two accused persons. It has been specifically mentined in the F.I.R. that all those CRLA Nos.231,218,257 & 258 of 2018 Page 11 of {{ 12 }} twenty-two accused persons forming an unholy combination came running from a Rice Mill holding sword, kati etc. and went on indiscriminately causing injuries upon Duti Krushna. On completion of investigation, the I.O. (P.W.21) has, however, found no material to be available to implicate persons like Sabita Bhuyan w/o. accused Sujit, Bandita Bisoi w/o- accused Manoranjan, Sunita Swain and w/o- Biswanath. This it appears that this P.W.1 during Trial having implicated Kulu, Sujit, Manoranjan, Akuli and Ananta (dead) in total five (5) has not implicated any other accused persons facing the Trial by their name. It would be clearly evident from her deposition that when she states that others; she, however, does not state the other accused persons in the dock. But then she has improved her version in saying that other accused persons were also armed with sword and kati at that time and then all accused persons entered inside that Rice Mill. At the same time, she is not stating as to who are those other accused persons who were holding the sword and kati but not assaulting. This witness, however, has admitted that her sons were accused persons in the murder case initiated for the death of one Dandapani Bisoi who happens to be the father of accused, Manoranjan and father in-law of one of the F.I.R. named accused, i.e., Banita who has been exonerated in the Final Form submitted on completion of investigation. 15. In the F.I.R. (Ext.1) it has been mentioned that P.W.1 (Informant) heard the cry of her son when she was purchasing vegetables from a shop which was near about the tea stall where the incident took place where her son Duti Krushna was taking tea. She has further averred in the F.I.R. that immediately hearing the cry she having rushed to the spot, requested the assailants not to assault her son, which was not listened to. CRLA Nos.231,218,257 & 258 of 2018 Page 12 of {{ 13 }} Though nowhere it been stated that at any point of time during the occurrence her husband P.W.5 had gone to that place, nonetheless her husband (P.W.5) has stated that at the relevant time he was going from his house for morning walk and saw the accused persons, which he means twenty-two (22) as would reveal from his prior sentence of his deposition recorded during Trial to be assaulting her son Duti Krushna @ Lulu. He has further stated that at that time, his wife (P.W.1) had gone to the local market to purchase vegetable and seeing the assault on their son, he with his wife (P.W.1) shouted for help from both the side. Thus when P.W.1 is totally silent with regard to the arrival or presence or shouting of her husband (P.W.5), P.W.5’s statement stands that he had very much seen the incident and he with his wife (P.W.1) had shouted for help seeing the assault on their son. Moreover, when P.W.1 is implicating five (5) accused persons by name, P.W.5 has implicated twenty-two (22) accused persons whereas out of the said twenty-two (22) as named in the F.I.R. actually there were twenty-one who had been implicated and the Trial was going on against eighteen (18) leaving only one (1) who absconded. Be that as it may, this P.W.5 is not naming anyone. But it has been stated by him that on that day, seventeen (17) accused persons were in the dock and he further states to have found those accused persons being armed with sword and kati were assaulting her son when he does not state that other one not present in dock on that day or about the absconding accused. 16. Another feature appears on going through the evidence of P.W.1 and P.W.5 which tells upon their credibility and affect ultimately the reliability. It has been stated by P.W.1 that after the incident her son was taken to the Hospital and died on the way and thereafter, she came to the CRLA Nos.231,218,257 & 258 of 2018 Page 13 of {{ 14 }} police station. She does not state that she too had accompanied her son to the Hospital or that her husband (P.W.5) had gone. But P.W.5 states that he shifted his son to the Hospital. The evidence of P.W.5 as regards the presence of P.W.1 at the spot at the relevant time was not there in his previous statement before Police during investigation. The attention of P.W.5 to such omission in his previous statement being drawn that has been proved through the I.O. (P.W.21). P.W.7 the other eye-witness does not state that P.W.1 and P.W.5 had also accompanied their son to the Hospital when he states that he with others shifted deceased-Lalu to the Hospital and that is also the version of P.W.10 who P.W.10 does not also state that P.W.1 and P.W.5 had accompanied Lalu to the Hospital although he states the name of others who had accompanied him in shifting Lalu to the Hospital. The version of P.W.14 is also not on the score that P.W.1 and P.W.5 had accompanied Lalu to the hospital from the spot and that is also the state of affair in the evidence of P.W.17 and P.W.18. 17. The witness of P.W.2 who has come to the witness box as an eye- witness is also not stating that P.W.1 and P.W.5 had accompanied Lalu to the Hospital. His evidence is also not to the effect that P.W.1 and P.W.5 were present near the spot and had rushed to the place where their son was being assaulted. It is his evidence that accused Kulu and his supports, i.e., accused Manoranjan Bisoi, Sujit Bhuyan, Nilamani Pradhan, Rabindra Mallik, Rabi Bhuyan and other accused persons (in total eighteen) arrived there and first accused Kulu after abusing the deceased Lalu gave a sword blow whereafter other accused persons assaulted Lalu. This witness P.W.2 in his previous statement before the Police has, however, not stated that accused Kulu first gave a sword CRLA Nos.231,218,257 & 258 of 2018 Page 14 of {{ 15 }} blow on the back of deceased Lalu, which has been proved through the I.O. (P.W.21) after drawal of the attention of P.W.2 to such omission which in our view in the facts and circumstances cannot be brushed aside saying to be a minor one as it is the first overt act by one amongst the whole lot. 18. When such is the state of affair in the evidence of the prosecution witnesses, i.e., P.W.1, P.W.2 and P.W.5 being projected as the eye- witnesses to the occurrence, the evidence of other eye-witness P.W.7 is now required to be touched upon. He is a chance witness like P.W.2 who has stated that at the relevant time he was standing in front of saloon waiting for his turn to come for hair cutting. He has further stated that during that period accused Kulu with accused Sujit, Manu, Akuli, Rabi and others came in a group. His specific evidence is that it was only accused Kulu and Sujit were armed with kati and then accused Kulu assaulted Lalu by means of kati and seeing the accused persons when Lalu tried to escape, accused Sujit dealt a kati blow for which deceased Lalu fell down and thereafter accused Manu dealt another kati blow on Lalu and accused Akuli and Rabi followed the same path. During cross-examination, however, it has been brought out that this P.W.7 had not stated in his earlier statement before the I.O. (P.W.21) during investigation about these important facets. The attention of this witness to his previous statement has been drawn which he has replied as under:- “it is not a fact that I had not stated to police that the accused Kulu Bhuyan, Sujit Bhuyan, Rabi Bhuyan, Akuli Mallik, Manu Bisoi were armed with katies and that they came in a group and assaulted Lalu in the manner which I had stated in my examination-in-chief CRLA Nos.231,218,257 & 258 of 2018 Page 15 of {{ 16 }} with the intention to kill him. It is not a fact that whatever I have stated in my examination-in-chief were not stated by me before the police when my statement was recorded under section 161, Cr.P.C.” That has been proved through the I.O. (P.W.21) who has deposed as follows:- that “P.W.7 Abhimanyu Nayak had not stated before the accused Kullu Bhuyan me specifically assaulted the deceased Lalu by means of a kati and that Lalu restrained the kati blow with his nads and that Lalu sustained injuries on his hands. P.W.7 had also not stated before me that Sujit Bhuyan assaulted Lalu while standing behind Kulu Bhuyan, and that Akuli assaulted Lalu. He had also not stated before me that the accused Rabi Bhuyan had assaulted Lalu Gouda.” The omission as aforesaid on the vital aspect and on such important fact as to the complicity of the accused persons touches upon the credibility of the evidence of the evidence of P.W.7. Therefore, what P.W.7 as stated during Trial without being corroborated by other evidence would not be safe to be relied upon. 19. Furthermore, we find from the evidence of P.W.10 that he having been projected by the prosecution as an eye-witness, is not implicating anyone in the occurrence. He simply states that seven to eight persons came in motor cycle and they assaulted the deceased. He does not implicate any one of these accused persons when P.W.12 projected as an eye witness has stated that accused Kulu Bhuyan and his supporters, the other accused pesons came in a group and assaulted Lalu by deadly weapons, we find that such was not his statement before the I.O. (P.W.21) during investigation which has also been proved through I.O. (P.W.21) after attention of P.W.12 has been drawn that he had not stated CRLA Nos.231,218,257 & 258 of 2018 Page 16 of {{ 17 }} to have seen the actual assault upon Lalu. Keeping in view the material contradiction, his evidence cannot be said to be providing any corroboration to the evidence of witnesses as earlier discussed. The other projected eye-witness-P.W.13 has also turned hostile and during cross-examination by the prosecution with the permission of the Court, we find no such material to have been elicited except to show that he had stated about the incident in his statement before the I.O. (P.W.21) during investigation. The owner of the tea stall (P.W.18) where the incident took place is then not implicating any of these accused persons to have played any role and committed the overt act as against Lalu. His positive evidence is that seven to eight persons came in three motor cycles and they assaulted the deceased-Lalu. This witness (P.W.18) is found to have not even been declared hostile by the prosecution and cross-examined so as to present before the Court that he was suppressing the truth. With the above state of affair in the evidence of the important prosecution witnesses as discussed in detail, we are at a loss to follow the view taken by the Trial Court that the evidence of the I.O. (P.W.21) thoroughly corroborated the prosecution case.
Decision
20. In the result, the Appeals are allowed. The judgment of conviction and order of sentence dated 7th March, 2018 passed by the learned Additional Sessions Judge, Bhanjanagar in Sessions Trial No.113 of 2013 are hereby set aside. Since the Appellants in CRLA No.231 of 2018, namely, Kulu Bhuyan, Sujit Bhuyan @ Sujit Kumar Bhuyan, Rabindra @ Rabindra Bhuyan, Rabindra @ Akula Mallik, Nilamani Pradhan, the Appellant in CRLA No.218 of 2018, namely, Manoj @ Muna Jena and the Appellant CRLA Nos.231,218,257 & 258 of 2018 Page 17 of {{ 18 }} in CRLA No.258 of 2018, namely, Manoranjan Bisoi, are in jail custody, they be set at liberty forthwith, if their detention is not warranted in connection with any other case. As the Appellants in CRLA No.257 of 2018, namely, Panchanan Behera and Pravakar Gouda are on bail; their bail bonds shall stand discharged. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. True Copy P.A. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: ORISSA HIGH COURT Date: 19-Oct-2023 18:18:56 CRLA Nos.231,218,257 & 258 of 2018 Page 18 of