The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.480 of 2016 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 12th July, 2016 passed by the learned Additional Sessions Judge, Dhenkanal in C.T.(SS) Case No.36 of 2011. Pagal Pandab …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.Asok Mohanty, Sr. Advocate Mr.Sarat Kumar Jena, Advocate For Respondent - Mr.P.C.Mohanty, ASC Mr.S.K. Das, Advocate for the Informant CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 25.07.2023 :: Date of Judgment:11.08.2023 D.Dash,J. The Appellant, by filing this Appeal, has impeached the judgment of conviction and order of sentence dated 12.07.2016 passed by the learned Additional Sessions Judge, Dhenkanal CRLA No.480 of 2016 Page 1 of 14 {{ 2 }} in C.T.(SS) Case No.36 of 2011 arising out of G.R. Case No.1035 of 2010 corresponding to Nihalprasad P.S. Case No.43 of 2010 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Dhenkanal. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life for the offence under section 302 of the I.P.C. and rigorous imprisonment for six months for the offence under section 323, I.P.C. with the stipulation that both the sentences would run concurrently 2. Prosecution case is that on 10.10.2010 around 11 a.m., the accused who is a resident of village Chadakamara assaulted one Lalu @ Ranjit Sahoo by means of a drilling rod on his head and other parts of his body causing bleeding injuries. It is stated that the accused did so as he was having the dispute with Lalu @ Ranjit Sahoo in relation to the stone quarry. The Inspector-in-Charge (I.I.C.) Nihalprasad Police Station on that day around 11.30 a.m. received the telephone message from one person identifying himself as the Sarpanch that the accused severely assaulted Lalu @ Ranjit Sahoo who having been shifted to the S.C.B. Medical College and Hospital, CRLA No.480 of 2016 Page 2 of 14 {{ 3 }} Cuttack had died. One Susanta Pradhan (P.W.4) the then Supervisor of the stone quarry of Lalu @ Ranjit Sahoo lodged a written report with the I.I.C., Nihalprasad Police Station. Receiving the said report, the I.I.C. treated the same as F.I.R. and registering the case took up investigation. In course of investigation, he examined the Informant (P.W.4) and other witnesses. He (P.W.16) then proceeded to the spot. There he received the written report from P.W.4 (Ext.2). The inquest over the dead body of the deceased having been held by the Police attached to Mangalabag Police Station since Lalu @ Ranjit Sahoo died at S.C.B. Medical College and Hospital, Cuttack, that report was collected along with the post mortem report, which was prepared by the Doctor on requisition by the Police Officer attached to Mangalabag Police Station. The I.O.-P.W.16 also seized some articles which, according to him, are incriminating and sent those for chemical examination through court. On completion of investigation, he submitted the Final Form placing the accused to face the trial for commission of offence under section 302/323, I.P.C. 3. Learned S.D.J.M., Dhenkanal, having receipt the Final Form as above took cognizance of the said offences and after observing the formalities committed the case to the Court of CRLA No.480 of 2016 Page 3 of 14 {{ 4 }} Sessions for trial. That is how the trial commenced by framing the charges for the said offences against this accused person. 4. The prosecution, in course of trial, has examined in total sixteen (16) witnesses. As already stated P.W.4 is the Informant, the then the Supervisor of the Stone Quarry of Lalu @ Ranjit Sahoo who has also been projected by the prosecution as eye-witnesses along with P.W.14. P.W.1 and P.W.2 are the two post occurrence witnesses when other witnesses are the witnesses to the seizure of incriminating articles etc., P.W.9 is the Doctor who had conducted autopsy over the dead body of the deceased and P.W.3 is the Doctor who had examined Debasis Nayak (P.W.14). 5. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in evidence and marked Exts.1 to Ext.20. Out of those, the important are the F.I.R. (Ext.2), the inquest report (Ext.7), Post Mortem Examination Report (Ext.5), the spot map (Ext.12), the station diary entry which
Legal Reasoning
had been made by P.W.16 on receiving the first telephone call as regards the incident and the injury report of P.W.14 is Ext.10 whereas the Chemical Examiner’s Report is Ext.20. During the Trial the seized drilling iron rod with other incriminating materials collected in course of investigation CRLA No.480 of 2016 Page 4 of 14 {{ 5 }} have been placed before the Court and those have been marked as Material Objects (M.O.I to M.O.III). 6. The plea of defence is that of complete denial. The accused, in support of his defence, has examined himself as D.W.1 and the two others who are his wife and brother-in- law, D.W.1 and D.W.2 respectively. 7. The Trial Court having examined the evidence of the Doctor (P.W.9), who had conducted autopsy over the dead body of the deceased and his report (Ext.5), and that of the Police Officer (P.W.15), who had held inquest over the dead body of the deceased had noted the injuries in his report (Ext.7) and other witnesses, who have stated to have been seen Lalu @ Ranjit Sahoo lying dead with injuries on his body has come to a conclusion that the prosecution has proved the nature of death of Lalu to be homicidal. In fact, this aspect of the case was not under challenge before the Trial Court and that is also the situation before us 8. It is the evidence of P.W.9, the Doctor who had conducted the post mortem examination over the dead body of Lalu @ Ranjit that he had noticed two lacerated wound on left parietal region. It is also stated by him that there were four contusions over the dead body of Lalu @ Ranjit; on the scalp area, right fore-arm and left tibia with an abrasion on left knee Page 5 of 14 CRLA No.480 of 2016 {{ 6 }} and multiple small contused abrasion on fore-head. As per his evidence, all those injuries are ante mortem in nature and are possible due to blow given by an iron rod like crow bar or a drilling rod. He has further stated that on dissection, he had noticed the scalp is contused on both parietal and occipital region with fissure fracture from left parietal region going to right side up-to the mastoid process and there was depressed fracture on left bone with a plate of skull bone driven inside. It is also his evidence that there was some subarachnoid haemorrhage on whole of base of brain with left cerebral hemisphere remaining contused and diffused haemorrhage on both lateral ventericles. It is his evidence that the death was due to coma resulting from a head injury which is fatal in ordinary course of nature. The Sub-Inspector of Police (P.W.15) attached to Mangalabag Police Station who had held inquest over the dead body of the deceased had noticed those injuries on the person of the deceased Lalu @ Ranjit which he had noted in his report (Ext.7). The other witnesses have also stated to have seen the deceased with such injuries. All these evidence having remaining, we find ourselves wholly in agreement with the finding of the Trial Court as regards the nature of death of Lalu @ Ranjit as homicidal. CRLA No.480 of 2016 Page 6 of 14 {{ 7 }} 9. Learned counsel for the Appellant (accused) submitted that the entire case of the prosecution is based on the evidence of P.W.4 and P.W.14. According to him, the evidence of P.W.4 and P.W.14 do not match with one another on the material aspects of the case. Therefore, according to him, the presence of either of them (P.W.4 and P.W.14) in seeing the incident on the relevant date and time is highly doubtful. He next submitted that the conduct of these witnesses when rightly marked tells upon the credibility of their evidence. It is also submitted that the evidence of P.W.1 and P.W.2 do not provide corroboration to the evidence of P.W.4 and P.W.14 on material particulars. He further submitted that the prosecution case as to the complicity of this accused as projected is highly suspicious. He submitted that when the F.I.R. (Ext.2) reveals that P.W.4 had lodged the same on being present at the Police Station, the I.O. (P.W.16) has stated to have received the F.I.R. (Ext.2) at the spot and the prosecution then again has withheld that Sarpanch who had telephoned to P.W.16 in informing the incident. He further submitted that with the above features, for the non-examination of the Sarpanch, adverse inference bound to be drawn. He, therefore, submitted that the Trial Court ought not to have been relied upon the version of P.W.4 and P.W.14 in further saying that the evidence of P.W.1 and CRLA No.480 of 2016 Page 7 of 14 {{ 8 }} P.W.2 provide corroboration to the same in finally recording the finding that the accused is the author of the injuries. 10. Learned counsel for the Respondent-State submitted all in favour of the finding of guilt of the accused as has been returned by the Trial Court. According to him, on through scrutiny of evidence of P.W.4 and P.W.14 it would not be permissible to say that they are not the truthful witnesses and when their evidence find support from the evidence of P.W.1 as well as other evidence, the Trial Court did commit no mistake in convicting the accused for commission of offence under section 302 of the IPC. 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.16) examined from the side of the prosecution and have perused the documents admitted in evidence and marked Ext.1 to Ext.20 from the side of the prosecution. 12. The prosecution story as laid in the F.I.R. (Ext.2) lodged by P.W.4 is that when P.W.4 was engaged in work in the quarry of the deceased and with him P.W.14 was also engaged, the accused suddenly appeared and dealt blow by means of an iron rod on the head of the deceased. The F.I.R. Page 8 of 14 CRLA No.480 of 2016 {{ 9 }} does not indicate as to whether the deceased at that time was with them. The deceased is none other than the owner of the said stone quarry. This P.W.4 next has stated that at the relevant time he with P.W.2 and P.W.14 were working in the stone quarry. The accused was working in a nearby quarry and the deceased came to the quarry where P.W.2, P.W.4 and P.W.14 were working. As per his evidence the deceased came in a motor cycle which does not find mention in the F.I.R. He states that the deceased straight way came to them and at that time P.W.14 warned the deceased that the accused would kill him. He further states that hearing the hulla from P.W.14 when they looked to that side, they saw the accused holding the drilling Rod dealt a blow on the deceased resulting his fall. He has further stated that when P.W.14 went there to intervene, the accused threatened him and so he did not proceed. It is not stated by him that accused had assaulted P.W.14. He then states that when the deceased was getting up to run away, the accused dealt two to three blows on his head and thereafter left the spot with the drilling rod. It is his evidence that 10 to 15 minutes after the incident, police came to the spot and enquired about the incident from him when he lodged the F.I.R. and handed over to the police. But the F.I.R. (Ext.2) reveals that the same has been lodged by P.W.4 appearing at the Police Station. So, a doubt arises as to CRLA No.480 of 2016 Page 9 of 14 {{ 10 }} whether this was the first information which was given in writing by P.W.4 to the I.O. (P.W.16) and thus the possibility is not ruled out that the original written report which had been given by P.W.4 at the spot being suppressed, this Ext.2 has been manufactured later on for the purpose. The conduct of this witness is to be marked that he says that he had not taken any attempt to separate or intervene in the said incident. When he has stated that by the time he saw the accused, he was holding that the iron rod, during cross-examination, he states that the iron rod by which the accused assaulted the deceased was lying on the ground and he, having picked up the same, assaulted. This witness although states that many persons had gathered at the spot, he has not been able to name any of them in saying that he was unable to recollect. This being the evidence of P.W.4, the evidence of other witness, i.e., P.W.14 now needs examination. As already stated that this P.W.4 does not state that the accused had also caused injuries upon P.W.14. The happenings as presented by P.W.4 is to the effect that it was around 8.30 a.m., the accused came to him and asked for a betel and taking a betel from him, he went to the stone quarry where he was working which is adjoining to the quarry of the deceased. He further states that it was around 10.30 a.m., the deceased came in a motor cycle and went to the stone quarry of Kanhei which is situated CRLA No.480 of 2016 Page 10 of 14 {{ 11 }} towards the western corner of the stone quarry of the deceased. As per his evidence, the accused when met the deceased suggested him to come towards his quarry and the deceased instead of going to that quarry entered into his quarry and at that time the accused was seen holding a crow- bar (drilling rod) running towards the deceased for which the deceased leaving his motor cycle rushed towards this witness- P.W.14 after hearing the shout from P.W.14 that the accused would kill him. His evidence is that the accused then coming towards the deceased, assaulted by means of a drilling rod on his head resulting his fall and when he intervened, the accused threatened him and thereafter assaulted him on his back causing injuries and he states that the accused again assaulted the deceased. It is stated by this witness that he has no knowledge as to the places to which the deceased was shifted. But in cross-examination, he says that he was present at the spot till the deceased was shifted to Badachana and he had accompanied him to that place and then returned home around 2.30 pm. This witness nowhere states that at any point of time during his presence, the police had arrived at the spot. He is also stating to have not gone to the Police Station to report about the incident. His specific evidence is that P.W.1 and P.W.2 were not present at the spot when the occurrence took place but it was only P.W.4 who was present and P.W.4 CRLA No.480 of 2016 Page 11 of 14 {{ 12 }} was only standing as a silence spectator. Thus, it is seen that the evidence of P.W.4 and P.W.14 do not tally with one another as to the happenings in the said place as also their evidence greatly differ as to how the accused came to assault the deceased and also with regard to the fact as to whether the accused came holding that weapon. P.W.4 is the brother of the deceased and he states that when he reached at the spot, he found his brother (deceased) in a serious condition and he told that the accused struck his head by means of a crow-bar. But at the same time, it has been proved from the side of the defence that P.w.12 had not stated before the police as regards such statement of the deceased to have been made at the spot on his arrival. Thus, this appears to be an introduction during trial. This P.W.15 who is the Inquiring Officer of that U.D. Case, which was registered when the deceased met his death at S.C.B. Medical College and Hospital, Cuttack that the inquest witnesses had stated before him that the accused with his family members had assaulted the deceased by means of a crow-bar. It is the evidence of P.W.1 that on 10th October, 2010 around 8 a.m., he, P.W.2, P.W.4 and P.W.14 had been to the stone quarry for work and he after working for two and half hours returned home. He further states that 10 to 15 minutes after his arrival, P.W.2 came and he told that when he was CRLA No.480 of 2016 Page 12 of 14 {{ 13 }} working in the stone quarry, one person came there in a motor cycle and somebody assaulted on his head and after hearing this from P.W.2 when he went to the quarry, he found the gathering of about 30 persons and heard that accused had assaulted the deceased Lalu @ Ranjit. P.W.2 at one stage has also stated that when after working for few hours, he came home and was taking food, he heard hulla and on his return to the quarry, he found one person lying on the ground having sustained injuries on his head and on his query, P.W.4 stated that the accused had assaulted that person and that person was found to be than Lalu @ Ranjit. Thus, on a conjoint reading of the evidence of all these witnesses gives rise to a doubt in mind as regards the role played by this accused to have been seen by P.W.4 and P.W.14. We, therefore, hold that the prosecution has failed to establish the charges against this accused person beyond reasonable doubt by leading clear, cogent and acceptable evidence. In that view of the matter, the judgment of conviction and the order of sentence impugned in this Appeal cannot be sustained. 13. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 12.07.2016 passed by the learned Additional Sessions Judge, Dhenkanal, in C.T.(SS) Case No.36 of 2011 are hereby set aside. CRLA No.480 of 2016 Page 13 of 14 {{ 14 }} Since the Appellant (accused), namely, Pagal Pandab in in jail custody, he be set at liberty forthwith, if his detention is not required in connection with any other case. Dr. S.K. Panigrahi I agree. (D. Dash) Judge. (Dr.S.K. Panigrahi) Judge. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 11-Aug-2023 15:51:20 CRLA No.480 of 2016 Page 14 of 14