The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.629 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 7th October, 2016 passed by the learned Additional Sessions Judge, Kuchinda, in S.T. Case No.05 of 2014. Suresh Ekka & Another …. Appellants ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Ms. B.L. Tripathy (Advocate) For Respondent - Mr.S.S. Kanungo Addl. Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 04.01.2023 : Date of Judgment:12.01.2023 D.Dash,J. The Appellants, in this Appeal, assail the judgment of conviction and order of sentence dated 7th October, 2016 passed by the learned Additional Sessions Judge, Kuchinda, in S.T. Case No.05 of 2014 arising out of G.R. Case No.532 of 2013 corresponding to Jamankira P.S. Case No.111 of 2013 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Kuchinda. CRLA No.629 of 2016 Page 1 of 9 {{ 2 }} The Appellants (accused person) thereunder have been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and accordingly, each of them, has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for six months. 2. Prosecution Case:- On 18.11.2013, around 1.30 p.m., Mahesh Ekka (deceased) had gone to village pond in his cycle for taking bath. The accused persons, during that time, were returning on the same road from their work to their house and they were then carrying spades with them. On that road, near Village Kamana Khandi, the accused persons attacked Mahesh Ekka (deceased) by means of said spades. They thereby caused grievous injuries on his head and back, which led to his fall on the ground. Hearing hullah, the wife of the deceased (Informant-P.W.13) rushed to the spot and found her husband lying on the side of the road with bleeding injuries. She then, with the help of some persons, took the deceased to Sambalpur Hospital for his treatment. The Doctor, however, declared the husband of the Informant to be dead. The information in writing being submitted to the Inspector-in- Charge (IIC) of Jamankira Police Station, Jamankira P.S. Case No.111 of 2013 was registered and Sub-Inspector of Police (S.I.-P.W.22) was directed to take up the investigation. During investigation, the Investigating Officer (I.O.-P.W.22) examined the Informant (P.W.13) and recorded her statement under section 161 of the Code of Criminal Procedure, 1973 (for short, ‘the CRLA No.629 of 2016 Page 2 of 9 {{ 3 }} Cr.P.C.’), visited the spot. He also recorded the statements of other witnesses under section 161 Cr.P.C. He held inquest over the dead body of the deceased and prepared the report (Ext.4). The dead body of the deceased was then sent for post mortem examination by issuing requisition. The I.O. (P.W.22), in course of investigation, also seized the spade, wearing apparels and other incriminating articles, which, in turn, were sent for chemical examination to the Regional Forensic Science Laboratory (RFSL) for examination through Court. The accused persons, being arrested, were forwarded in custody to Court. On completion of the investigation, the final form was submitted placing the accused persons to face the trial for commission of offence under section 302/34 IPC. 3. The plea of the defence is that of complete denial and false implication. They, however, have not led any evidence. 4. The prosecution, in course of trial, has examined in total twenty- two (22) witnesses. Out of them, as already stated, P.W.13 is the Informant, who happens to be wife of the deceased, P.Ws.2, 3, 5, 6, 12, 14 & 15 are the independent witnesses. The Doctor, who had conducted the autopsy over the dead body of the deceased has been examined as P.W.9. P.Ws.16 to 21 are the witnesses to the seizure of incriminating articles. The I.O. has come to the witness box at the end as P.W.22. Besides leading the evidence by examining the above witnesses, the prosecution has also proved the documents admitted in evidence and
Legal Reasoning
marked Exts.1 to 14. Out of those, importants are the FIR (Ext.1), the inquest report (Ext.4) and the post mortem report (Ext.5). The seizure CRLA No.629 of 2016 Page 3 of 9 {{ 4 }} lists have been proved and marked Exts.9 to 11. The spot map prepared by P.W.22 has been admitted in evidence and marked Ext.12. 5. The Trial Court, on going through the evidence of the Doctor (P.W.9), who had held the post mortem examination over the dead body of the deceased and his report (Ext.5), which contains her opinion as to the cause of death as well as other evidence on record falling from the lips of P.Ws.9, 13 and 22, has held that the nature of death of Mahesh Ekka (deceased) as homicidal. In fact, this aspect was not under challenge before the Trial Court. It has been the evidence of P.W.9 that she noticed several injuries on the person of the deceased and it has been deposed by her that all such injuries are anti mortem in nature and might have been caused by hard and blunt force impact. According to her, the injuries are sufficient to cause the death of the deceased in ordinary course of nature. All these have been noted in detail in her report, which has been admitted in evidence and marked Ext.5. Such evidence of P.W.9, being taken into account with the evidence of other witnesses including P.W.22, who had held inquest over the dead body of the deceased, We too are of the view that Mahesh Ekka (deceased) met a homicidal death. 6.
Legal Reasoning
Ms.B.L. Tripathy, learned counsel for the Appellants (accused persons) submitted that the evidence of P.W.13, who happens to be wife of the deceased and the Informant in the case and has proved the FIR (Ext.1) cannot be believed as she gone on improving her version from time to time. She submitted that the evidence of record, when taken on record, would clearly show that P.W.13 is not an eye witness to the occurrence and what she deposed in the Court to have seen the accused CRLA No.629 of 2016 Page 4 of 9 {{ 5 }} persons assaulting the deceased is just an exaggeration to somehow rope in the accused persons. She further submitted that except the Informant (P.W.13), the other witness is P.W.15, who having stated to have arrived at the place of occurrence to P.W.13 does not implicate accused persons and, therefore, his evidence, being viewed, completely demolishes the evidence of P.W.13 in branding her as a lier. She further stated that P.W.13, having lodged the written report at the Police Station, which has been admitted in evidence and marked Ext.1, therein she does not state to have seen the incident and that also she has not stated before the I.O. (P.W.22) in her statement recorded under section 161 Cr.P.C., which has been proved through P.W.22, which makes it clear that she has come to pose herself as the eye witnesses for the reasons best known to her. She, therefore, submitted that the Trial Court committed error in relying upon the evidence of prosecution witnesses to hold the accused persons guilty for commission of offence under section 302/34 IPC. 7. Mr.S.S. Kanungo, learned Additional Government Advocate for the Respondent (State), while refuting the submission, as above, has supported the finding of guilt returned by the Trial Court as against the accused persons. He submitted that P.W.13 is a natural witness and merely because it has not been indicated in the FIR (Ext.1) that she had seen these accused persons assaulting the deceased, when her evidence is clear on that score during trial, which has not been demolished through cross-examination or by showing any other surrounding circumstances is shown to be doubtful, the Trial Court has rightly convicted the accused persons. CRLA No.629 of 2016 Page 5 of 9 {{ 6 }} 8. Keeping in view the submissions made, We have carefully read the impugned judgment. We have also travelled through the depositions of the witnesses (P.Ws.1 to P.W.22) and have perused the documents such as Ext.1 to Ext.14. 9. The Informant in the case is P.W.13 and she is none other than the wife of Mahesh Ekka, the deceased. It has been stated by her that accused Suresh Ekka is the elder brother of her husband and the other accused Julia is the wife of accused Suresh. This witness states that on the relevant date and time, when her husband (deceased) was proceeding towards the village pond to take bath, she was following him and on their way to the pond, the accused persons, who were on their way back home returning from the opposite direction, seeing her husband near Kamna Gudi, assaulted him by means of spade for which he sustained bleeding injury on the back side of the head. She then states to have seen her husband falling on the ground and the accused persons then placing the bicycle on him, fled from the spot. It is stated that she then called Anita Tappo, Mali Sabar and others and with their help, the deceased was shifted to the Hospital where he was declared dead by the Doctor. It has also been stated that the accused persons and the deceased were having dispute in relation to the landed properties. When this witness has stated to have been following the deceased when he was going to the village pond to take bath and on the way saw the accused persons returning and assaulting the deceased all of a sudden; her statement under section 161 on that score was that while her husband was proceeding to take bath, she was following him and then saw the entire occurrence from the beginning till the accused persons CRLA No.629 of 2016 Page 6 of 9 {{ 7 }} fled from the spot. This witness, in the FIR (Ext.1), however, has stated that after the incident of assault upon her husband, on hearing hullah from the local people, she went to the spot and found her husband lying in a bleeding condition on the side of the road. However, her evidence in Court is completely otherwise. Such an important fact could not have been omitted to be indicated in the FIR and her initial statement before P.W.22. That apart when in the FIR, it is stated that the deceased was going on a bicycle; that is now not stated which can be said to be a purposeful omission or departure so as to bring the theory of her following the deceased as believable. Thus, the evidence of P.W.13 in Court is in great variance with what have been stated in the FIR as to her the very presence near the place of occurrence in having the occasion to see accused persons performing the role in assaulting the deceased causing bleeding injuries on his person. P.W.22 is the I.O., who has stated that P.W.13 has not stated before him to have seen the said part to have seen the incident. So, with all these discrepancies, the very presence of the P.W.13 at the place of occurrence is not at all believable by ignoring such vital omissions as not amounting to material contradiction more particularly on the face of her first version in the FIR (Ext.1) is to the effect that she arrived at the place of occurrence after hearing hullah and saw that her husband was lying on the side of the road in a bleeding condition. Furthermore, it has been stated by P.W.14 that when around 1.00 P.M. on that day, he was returning home, he found the deceased lying at Kamana Khandi Village with bleeding injury on his right side ear. He then called the Informant (P.W.13) and informed her about the occurrence. This witness is not saying to have seen the occurrence much less about the role of these accused persons CRLA No.629 of 2016 Page 7 of 9 {{ 8 }} therein. So, when all other witnesses are post occurrence witnesses, the Trial Court, in our view, has erred in holding that their evidence provide corroboration to the evidence of P.W.13. We are thus unable to accept the evidence of P.W.13 and rely on her version that she had seen the incident wherein the Appellants (accused persons) had played their respective role in assaulting the deceased by means of spade. In that view of the matter, the evidence of post occurrence witness are of no value in pointing the complicity of the accused persons merely because they, in their statement recorded under section 313 Cr.C.P., having stated that the deceased had received the injuries on account of fall from his cycle, the same is not deriving any support from the evidence on record. That itself ought not to have been held as enough to fasten the criminal liability upon the accused persons. Even if We say for a moment that such explanation by the accused persons guilty is false; that cannot lead to hold the accused persons guilty for causing the murder of Mahesh Ekka (deceased) by intentionally causing his death in relieving the prosecution of the obligation to establish the charge beyond reasonable doubt by leading clear, cogent and acceptable evidence. Furthermore, in addition to the above, when We take the evidence of the Informant (P.W.13) that there was some enmity between the accused persons on one hand and the deceased on the other as they were having dispute in relation to their landed properties, the same rather, in view of the evidence, provide the reason for false implication of the accused persons for more particularly when the Informant (P.W.13) has remained silent with regard to her presence and to have witnessed the incident at the earliest point of time has come up with developed version during the trial. CRLA No.629 of 2016 Page 8 of 9 {{ 9 }} 10. On the conspectus of the analysis of the evidence let in by prosecution, We are of the view that the finding of the Trial Court that the prosecution has established the charges against these accused persons beyond reasonable doubt by leading clear, cogent and acceptable evidence is not sustainable and, therefore, the judgment of conviction and order of sentence impugned in this Appeal are laible to be set aside. 11. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 7th October, 2016 passed by the learned Additional Sessions Judge, Kuchinda, in S.T. Case No.05 of 2014 are hereby set aside. Since accused Suresh Ekka (Appellant No.1) is in custody, he be set at liberty forthwith, if his detention is not required in any other case and the accused Julia Ekka (Appellant No.2) being on bail, her bail bonds stand discharged. Dr. S.K. Panigrahi I agree. (D. Dash) Judge. (Dr.S.K. Panigrahi) Judge. Basu CRLA No.629 of 2016 Page 9 of 9