MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.640 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 16th April, 2011 passed by the learned Additional Sessions Judge, Nabarangpur, Camp at Umerkote in C.T. No.60 of 2010. ---- Bijay Bhatra; and Jugal Bisoi …. Appellants -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mrs. Bhaktisudha Sahoo (Advocate as Amicus Curiae) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 01.03.2024 : Date of Judgment :12.03.2024 D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 16th April, 2011 passed by the learned Additional Sessions Judge, Nabarangpur, Camp at Umerkote in C.T. No.60 of 2010 arising out of G.R. Case No.557 of 2009 corresponding to Dabugam P.S. CRLA No.640 of 2011 Page 1 of 10 {{ 2 }} Case No.125 of 2009 in the Court of the learned Judicial
Legal Reasoning
Magistrate First Class (J.M.F.C.), Umerkote. The Appellants (accused persons) thereunder have been convicted for committing the offence under section 304-I/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, each of them has been sentenced to undergo imprisonment for life. 2. PROSECUTION CASE:- On 13.11.2009 around 6.00 p.m., when Geeta Jani (Informant-P.W.8) was in her house, the accused persons brought her husband, namely, Nabin Jani by dragging him and left Nabin there saying that they had assaulted him. It is stated that at that time, the accused persons were assaulting Nabin and having left Nabin in his house where his wife Geeta (Informant-P.W.8) was present, they gave a sum of Rs.1800/- (Rupees One Thousand Eight Hundred) to him. Nabin was found to have sustained injuries on the backside of his waist, chest and above the ear. The accused persons then left the place. Nabin, being asked by his wife-Geeta (Informant-P.W.8) told that the accused persons (Bijay and Jugal) as well as one Anil had assaulted him. Nabin was then taken to Dabugaon Hospital and therefrom, as advised by the Doctor, was shifted to Nabarangpur Hospital for better treatment. While undergoing treatment, Nabin died after two days. The wife of Nabin, namely, Geeta (P.W.8) then reported the matter in CRLA No.640 of 2011 Page 2 of 10 {{ 3 }} writing to the Assistant Sub-Inspector (A.S.I.) of Police (P.W.16), who, in the absence of Officer-in-Charge (O.I.C.) of Dabugaon P.S., was discharging the duty as such. The A.S.I. (P.W.16) then treated the written report as FIR (Ext.4) and upon registration of the case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.16), in course of the investigation, examined the informant (P.W.8) and he (P.W.16), having inspected the dead body, held the inquest over the dead body of Nabin and prepared the report to that effect (Ext.3). The I.O. (P.W.16) sent the dead body for post mortem examination by issuing necessary requisition. He (P.W.6) arrested the accused persons, who confessed their guilt. It is stated that the accused persons, while in police custody, gave the statement to have concealed the weapons, two lathis and stated that if they would be taken to the place, they would give recovery of the same. Accused Jugal Bisoi led the I.O. (P.W.16) and other witnesses to the house of Bijay Bhatra in giving recovery of lathis from under the bushes, which were then seized under seizure list (Ext.2). On 09.12.2009, he (P.W.16) handed over the charge of the investigation to the O.I.C. (P.W.17), who after re-examining the witnesses, submitted the Final Form placing these accused persons to face the Trial for commission of the offence under section 302/34 of the IPC. CRLA No.640 of 2011 Page 3 of 10 {{ 4 }} 4. Learned J.M.F.C., Umerkote, 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 offence against these accused persons. 5. The prosecution, in support of its case, has examined in total nineteen (19) witnesses during Trial. Out of them, the informant, who happens to be the wife of the deceased, is P.W.8 whereas P.W.9 is the brother of the deceased. P.W.10 is an eye witness to the occurrence as projected by the prosecution. P.Ws.6 & 7 are the witnesses to the disclosure statement and recovery of articles thereupon. P.Ws.1, 2, 3, 4, 5, 11, 12 & 13 are the independent witnesses as to have gone to the scene of occurrence. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.18. The A.S.I. of Police, who first took up the investigation after registration of the case, has been examined as P.W.16 and the O.I.C., who is the second I.O. of the case and had submitted the Final Form has been examined as P.W.17. 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 11. CRLA No.640 of 2011 Page 4 of 10 {{ 5 }} Out of those, the important are, the FIR (Ext.4), the inquest report (Ext.3); and the post mortem report (Ext.10). 7. The accused persons have taken the plea of complete denial and false implication. They, however, have not tendered any evidence in support of such plea. 8. Mrs.B. Sahoo, learned counsel for the Appellants (accused persons), placing the deposition of the evidence of P.Ws.8, 9 & 10, who are the three important witnesses examined from the side of the prosecution, submitted that their evidence are full of inconsistencies and do not tally with one another in so far as the happenings of the incident are concerned. She further submitted that the evidence of P.W.8 to the effect that the deceased had disclosed before her that the accused persons had assaulted her is also not believable when the evidence of P.Ws.9 & 10 are carefully gone through as they being present have given no hint about that. According to her, although the prosecution has established that Nabin met a homicidal death through the evidence of the Doctor (P.W.18), who had conducted the post mortem examination over the dead body of Nabin as regards the involvement of these accused persons, there cannot be any finding that they are the authors of the injuries leading to the death of Nabin. He, therefore, urged that the judgment of CRLA No.640 of 2011 Page 5 of 10 {{ 6 }} conviction and order of sentence impugned in this Appeal are liable to be set aside.
Legal Reasoning
9. Mr.P.K. Moanty, learned Additional Standing Counsel for the for the Respondent-State, while supporting the finding of guilt against these accused persons, as has been returned by the Trial court, contended that the evidence of P.W.10, who has seen the incident has been rightly relied upon by the Trial Court and since that finds corroboration through the evidence of P.Ws.8 & 9 as also the medical evidence, the conviction recorded by the Trial Court holding the accused persons guilty of committing the offence under section 304-I of the IPC is unassailable. 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.Ws.1 to P.W.18) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.11. 11. The first important witness for the prosecution, as it appears, is P.W.10, who has been projected as an eye witness to the occurrence. It is stated that on that relevant date, the incident took place around 8.00 p.m. As per his evidence, accused Bijay and Nabin (deceased) were engaged in gambling and at that time, Sanpat and Ram were also participating therein. He states that CRLA No.640 of 2011 Page 6 of 10 {{ 7 }} since Nabin (deceased) won in the said gambling, others demanded money from him and dragged him. He further states that accused Jugal and Bijay assaulted Nabin by the lathis and dragged him to his house and told the brother of Nabin that they had assaulted him and then they handed over a sum of Rs.1800/- (Rupees Ones Thousand Eight Hundred) to the brother of Nabin (deceased). His specific evidence is that he had seen the accused persons assaulting Nabin (deceased) as by then he was in his house, which is near the house of Bijay. As already stated, this P.W.10 has said that the gambling was going in the house of Bijay. He does not state that Nabin, being dragged out of the house, he was assaulted there. During cross-examination, he has stated that the accused persons, deceased and others were playing inside the house of accused Bijay and that place was not visible to outside. It had also been stated by him that he had gone to that place to see the gambling that they were playing. He next states that he was told by one Sanpat Jani that they were gambling inside the house. This Sanpat has been examined as P.W.11 and he has not supported the prosecution case in any manner. He, being permitted by the Court, when has been cross- examined by the prosecution, we find no such material to have been elicited from him to provide any aid to the case of the prosecution and the prosecution has remained satisfied by simply CRLA No.640 of 2011 Page 7 of 10 {{ 8 }} drawing his attention to his previous statement that he had given before the I.O. (P.W.16), which even though has been proved through that I.O. (P.W.16), the same as per law, cannot be taken as substantive evidence. The conduct of this P.W.l0 also appears to be doubtful that having seen such incident of assault going on, he has not even wanted to know the reason for the same from anyone and has also not gone to intervene when he states to have not intervened. He also does not give any explanation as why he remained silent and conducted himself like that without any reaction. P.Ws.6 & 7 although have stated that the accused persons had confessed before police while in custody to have assaulted Nabin by stick, the same is having no evidentiary value being inadmissible as hit under section 25 of the Evidence Act. 12. Now, comes the evidence of P.W.8, who is none other than the wife of Nabin (deceased). It is her evidence that her husband (deceased) had left the house around 11.00 a.m. and the incident took place around 6.00 p.m when her husband (deceased) was brought to the house being dragged by the accused persons. At this stage, when we revert to the evidence of P.W.10, we find him to have stated that the incident had taken place around 8.00 p.m. and, therefore, after that, the accused had come to his house. CRLA No.640 of 2011 Page 8 of 10 {{ 9 }} It is the evidence of P.W.9 that he went to the spot and asked as to who assaulted Nabin and then accused Bijay told him that he had assaulted Nabin and then the accused persons handed over a sum of Rs.1800/- to the wife of Nabin (Informant- P.W.8). This witness (P.W.9) is none other than the brother of Nabin (deceased). He asserts that when Nabin (deceased) was brought by the accused persons, he was very much in his house but then he is not stating that P.W.8, the wife of Nabin, had asked anything to Nabin as to what happened. P.W.8 is also not stating anything as regards the presence of P.W.9 at the relevant time in the house. P.W.9 says that the incident took place in the house of accused Bijay and that is at a distance of half kilometer of their house. In view of the discussion of the aforesaid evidence, even though the prosecution is found to have established that Nabin met a homicidal death, as the Doctor (P.W.18) conducting the post mortem examination, has stated that the death was due to peritonitis caused by intestinal trauma due to rigorous injury over the abdomen, the complicity of these accused persons in causing such injuries leading to the death of Nabin is not found to have been established beyond reasonable doubt. 12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 16th April, 2011 passed by CRLA No.640 of 2011 Page 9 of 10 {{ 10 }} the learned Additional Sessions Judge, Nabarangpur, Camp at Umerkote in C.T. No.60 of 2010, are hereby set aside. Since both the Appellants, namely, Bijay Bhatra & Jugal Bisoi are on bail, their bail bonds shall stand discharged. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 03-Apr-2024 13:11:37 CRLA No.640 of 2011 Page 10 of 10