The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.69 of 2011 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 28th January, 2005 and 29th January, 2005 respectively passed by the learned Adhoc Additional Sessions Judge (FT), Keonjhar in S.T. Case No.145/13 of 2003/04. Babu @ Ajit Kumar Biswal …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.R.N. Nayak (Advocate) For Respondent - Mr.G.N. Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 10.10.2023 : Date of Judgment : 01.11.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and order of sentence dated 28th July, 2005 and 29th July, 2005 respectively passed by the learned Adhoc Additional Sessions Judge (FT), Keonjhar in S.T. Case No.145/13 of 2003/04 arising out of G.R. Case No.203 of 2003 corresponding to Keonjhar Town P.S. Case Page 1 of 12 JCRLA No.69 of 2011 {{ 2 }} No.49 of 2003 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Keonjhar. The Appellant (accused) thereunder has been convicted for committing the offence under section 302/201 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life for commission of the offence under section 302 of the IPC and undergo rigorous imprisonment for three (3) years and pay fine of Rs.3,000/- (Rupees Three Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the offence under section 201 of the IPC, with the stipulation that the substantive sentences would run concurrently. 2. PROSECUTION CASE:- On 19.03.2003 around 9.00 a.m., one Pyare Moharana (P.W.7), son of Kanda Maharana orally reported before the Inspector-in-Charge (IIC-P.W.11) of Keonjhar Town Police Station (P.S.) that he had married Bandita Maharana sometime in the year 2002. On 16.03.2003 around 5.00 p.m., he saw his wife moving with the accused and, therefore, he had a quarrel with his wife. After that, his wife again left the house and went to the accused. Kanda Maharana, the father of Pyare (P.W.7) then went in search of the wife of Pyare (P.W.7) in that night and he did not return home. As father Kanda did not return home, the informant JCRLA No.69 of 2011 Page 2 of 12 {{ 3 }} (P.W.7), his mother and cousin brothers together went in search of the wife of Pyare and Kanda. However, they did not get any clue. On 19.03.2003, around 7.00 am, Pyare (P.W.7) was informed by one Bhimasen Naik (P.W.3), who was staying near the pond in the vicinity of the Collectorate compound that Kanda had been killed by someone and his dead body had been thrown in the septic tank in the premises of District Collectorate, Keonjhar. Getting the said information, Pyare (P.W.7) and his brother went to the spot and saw that Kanda lying dead with injuries on his head other places. Pyare (P.W.7) stated therein that the accused had then absconded and he alleged that the accused killed his father Kanda (deceased). Said report being reduced into writing by the IIC (P.W.11),
Facts
he treated the same as FIR (Ext.17), registered the case and directed Sub-Inspector (S.I.) of Police (P.W.10) to take up the investigation. 3. The Investigating Officer (I.O.-P.W.10), in course of the investigation, examined the informant (P.W.7). The I.O. (P.W.10), having visited the spot, prepared the spot map (Ext.5). He too held inquest over the dead body in presence of the witness and prepared the report (Ext.6). The blood stained earth, sample earth and two blood stained bricks were seizure by the I.O. (P.W.10) under seizure list (Ext.7). He sent the dead body of Kanda for Page 3 of 12 JCRLA No.69 of 2011 {{ 4 }} post mortem examination by issuing necessary requisition. He (P.W.10) then seized the wearing apparels of the deceased and accused under seizure lists; Ext.10 & 11 respectively. It was stated that the accused, while in police custody, gave the statement to have concealed the weapon and stated that if he would be taken to the place, he would give recovery of the same. Pursuant to the statement, the accused is said to have led the police and other witnesses in giving recovery of the weapon, which was seized under seizure list (Ext.4). The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302/201 of the IPC. 4. Learned S.D.J.M., Keonjhar, on receipt of the Final Form, 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 commenced by framing the charge for the aforesaid offences against the accused. 5. The prosecution, in support of its case, has examined in total eleven (11) witnesses during Trial. Out of them, P.W.7 is the informant. P.W.2 is the person, who on getting information from one Hari went to see the dead body of the deceased. P.W.3 is the JCRLA No.69 of 2011 Page 4 of 12 {{ 5 }} person, who saw the dead body of the deceased and went to the house of the deceased to give information. P.W.4 is the wife of the informant and daughter-in-law of the deceased. P.W.5 is the Doctor, who had medically examined the accused whereas P.W.6 is the Doctor, who had conducted the post mortem examination over the dead body of the deceased. P.W.9 is the younger brother of the accused. P.W.10 is the I.O., who had submitted the Final Form and P.W.11 is the IIC, who initially received written report and registered the case. 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 20. Out of those, the important are, the FIR (Ext.17), the inquest report (Ext.6), the post mortem report (Ext.2), spot map (Ext.5) and the statement of accused (Ext.16). 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of his defence.
Legal Reasoning
14. Furthermore, we find that when the dead body having been found out from inside the tank, the matter had been reported to the police and this witness when reached near the police, the dead body had already been discovered much prior to that. But, then the evidence of P.W.8 is that the accused told to have kept the dead body in a well, which is factually found to be incorrect. He further states that the accused then led them to the place of concealment of the weapon and showed the exact place of concealment. When he states no, he does not state as to concealment of what. It makes no sense and means nothing. It is his evidence that the weapon of offence was not visible to the ground but then what kind of weapon it was is not stated by P.W.8. He has further stated that the accused when climbed up to the window slab and brought out the window, he again does not state as to what kind of weapon that the accused brought out and gave to the police, which was seized. This, having been stated to have taken place on 16.03.2003, the I.O. (P.W.10) says to have arrested the accused on 20.03.2003 in specifically stating that on 20.03.2003 having searched, he arrested the accused from nearby Sisupal jungle at about 8.00 a.m. The evidence of P.W.10 is completely belies the version of P.W.8. Thus, without any further analysis, we are not in a position to accept the evidence of the prosecution that the accused had led the police and others to give JCRLA No.69 of 2011 Page 11 of 12 {{ 12 }} recovery of any weapon when it has been stated by the I.O. (P.W.10) that after the arrest of the accused, he confessed to have killed Kanda (deceased) by a chopper and then disclosed to have concealed that chopper on the window slab of the DRCS Office and accordingly, led the I.O. (P.W.10) and others to the place in giving recovery of the same, which is not the evidence of P.W.8. All these being the evidence on record, we find the prosecution to have not at all established the charges against the accused beyond reasonable doubt through clear, cogent and acceptable evidence. 15. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 28th January, 2005 and 29th January, 2005 respectively passed by the learned Adhoc Additional Sessions Judge (FT), Keonjhar in S.T. Case No.145/13 of 2003/04 are hereby set aside. Since the accused, namely, Babu @ Ajit Kumar Biswal, is on bail, his bail bonds shall stand discharged. G.Satapathy, J. I Agree. Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Basu Location: HIGH COURT OF ORISSA CUTTACK Date: 02-Nov-2023 17:18:01 JCRLA No.69 of 2011 (D. Dash), Judge. (G.Satapathy), Judge. Page 12 of 12
Arguments
8. Mr.R.N.Nayak, learned counsel for the Appellant (accused) submitted that the prosecution case is based on circumstantial evidence. He submitted that except the circumstance that Kanda (deceased) met a homicidal death on account of injury received JCRLA No.69 of 2011 Page 5 of 12 {{ 6 }} by him and some of them have stated about the relationship between the accused and the wife of Pyare (P.W.7), there was some dispute and ill-feeling between the accused and the wife of of Pyare (P.W.7) on one hand and the members of the family of Pyare including Pyare on the other, no such other circumstance has been proved to say that by those, the finger of guilt against the accused gets pointed. He submitted that when the prosecution has sought to prove the recovery of the weapon at the instance of the accused pursuant to his statement before the police while in custody in connection with the case, the said evidence is absolutely unbelievable. According to him, the evidence as to the recovery of weapon of offence at the instance of the accused have been later on manipulated. He submitted that the circumstances, which appear in the evidence of the prosecution witnesses, are neither incriminating nor those as appear being joined together, complete the chain of events in every respect that all such hypothesis other than the guilt of the accused gets ruled out. He, therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 9. Mr.G.N.Rout, learned Additional Standing Counsel for the Respondent-State although does not dispute the position that the prosecution relies upon the circumstances proved through the Page 6 of 12 JCRLA No.69 of 2011 {{ 7 }} evidence coming fromt eh lips of the witnesses examined on its behalf, contended that those circumstances are directly pointing the finger of guilt at the accused and when cumulatively viewed, the irresistible conclusion would stand that it was the accused, who was the perpetrator of the crime being the author of the injuries received by Kanda (deceased), which have led to his death. 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.11) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.20. 11. Prosecution evidence as regards the nature of death of Kanda to be homicidal was not under challenge during the Trial nor it is so before us. The Doctor (P.W.6) has narrated in detail as to have seen around nine such external injuries on different parts of the body of Kanda. His positive evidence is that all such injuries were ante mortem in nature and those had appeared within seventy-two hours from the time of his examination. Stating the chopped wound of size 10 cm X 2.5 cm X 5 c.m. over left side on lateral aspect 3 cm below the left ear on submandibular area and the chopped wound over the head on JCRLA No.69 of 2011 Page 7 of 12 {{ 8 }} left side on lateral aspect of parietal and occipital region to be grievous and fatal, he has gone to state that those injuries were possible by sharp cutting heavy weapon. It is his evidence that the death was due to external haemorrhage as well as brain injury and the haemorrhage was due to cutting of the jugular vein and external carotid artery. He had the occasion to examine the chopper (M.O.I) and two bricks (M.O.II & III) being sent by the I.O. (P.W.10). it has been stated and reported under Ext.3 that the chopped wound over the left side of the neck of lateral aspect was possible by that chopper and the lacerated wound over the head on right side occipital regional, which he had noticed during post mortem examination was possible by the seized two bricks. With the above overwhelming evidence on record, we find no difficulty to say that Kanda met a homicidal death. 12. Now comes the question as to the proof of other incriminating circumstances as against this accused. In order to ascertain those, we propose to look at the evidence of the prosecution witnesses one by one. P.W.3 is the witness, who supplies drinking water to different hotels situated near the Collectorate compound. He has stated that when on that day, while going to attend the call of nature within the premises of Collectorate and was sitting to ease, he found large number of flies coming out of the septic tank and JCRLA No.69 of 2011 Page 8 of 12 {{ 9 }} out of curiosity, he went there and detected the dead body of Kanda inside that tank. Thus, said evidence of P.W.3 being not challenged, the same coupled with other evidence including that of the I.O. (P.W.10) and other witnesses to the recovery of the dead body, the recovery of the dead body from inside the septic tank situated in the Collectorate compound, stands proved. P.W.4 has stated that on the day of occurrence, when he was returning from her work place, accused stopped her and attempted to abduct her. At that time, her husband arrived and saved her and then she, with her husband to their house. She has stated that on that day, around 9.00 p.m., one Hari Biswal informed her that accused and the deceased-Kanda were quarrelling. That Hari Biswal has been examined as P.W.9. He has not supported the prosecution and he, being cross-examined from the side of the prosecution with the permission of the Court, except throwing the suggestion to him that he had stated before the I.O. (P.W.10) in course of investigation to have seen the accused and the deceased quarrelling etc. which he has denied, nothing has been elicited. The I.O.(P.W.10), having stated that Hari (P.W.9) had told before him to have seen the accused and the deceased quarrelling, that cannot be taken as a circumstance incriminating as against the accused. JCRLA No.69 of 2011 Page 9 of 12 {{ 10 }} P.W.7, who is the son of the deceased when has stated to have informed by Bhimsen Naik (P.W.3) that accused had killed his father and concealed him in a septic tank in the Collectorate premises, we have already discussed the evidence of P.W.3. 13. From the evidence of P.W.7, we find no other circumstance to have emerged. Next comes the evidence of P.W.8 through whom the prosecution has sought to prove the confession of the accused that he had intentionally caused the death of Kanda and to have concealed the dead body of Kanda as well as the weapon in a particular place. P.W.8 has stated that on 16.03.2003 around 8.00 a.m., when he was passing through the road near the Collectorate compound, he noticed the presence of police and others. So, he went there and saw the police interrogating the accused about the murder. He states that in course of that, the accused disclosed that he had killed Kanda by means of an instrument and also stated to have kept the dead body in a well and disclosed that he had kept the weapon on the window slab of the DRCS Office. The evidence of P.W.8 as to the confession is not admissible in the eye of law in view of the bar contained in Section 25 of the Evidence Act. JCRLA No.69 of 2011 Page 10 of 12 {{ 11 }}