MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.60 of 2019 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 29th November, 2017 passed by the Judge, Baripada, District- learned 1st Additional Sessions Mayurbhanj in S.T. Case No.19/79 of 2013. Babu Hembram @ Badhu Hembram ---- …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.L. Bhuyan (Advocate) For Respondent - Mr.G.N. Rout, ASC, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 18.03.2024 : Date of Judgment : 15.04.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 29th November, 2017 passed by the learned 1st Additional Sessions Judge, Baripada, District-Mayurbhanj in S.T. Case No.19/79 of 2013 arising out of G.R. Case No.236 of 2012 (C.T. No.946 of 12) CRLA No.60 of 2019 Page 1 of 16 corresponding to Udala P.S. Case No.80 of 2012 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Udala. 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 and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo. Rigorous imprisonment for one (1) year for commission of the said offence. It is pertinent to mention here that along with this accused Badu Hembram @ Badhu Hembram, two other accused persons, namely, Raghu Hembram & Pitho Hembram, had faced the trial.
Legal Reasoning
The Trial Court, while acquitted Raghua and Pitho of the charges under section 302/34 of IPC, has convicted this accused under section 302 of the IPC and sentenced him as aforesaid. 2. PROSECUTION CASE:- On 30.08.2012 around 12.05 a.m., one Ruibari Hembram, wife of Guruva Hembram of Village-Jamdiha under the jurisdiction of Udala Police Station (P.S.) in the District of Mayurbhanj presented a written report, being scribed by one Abdhan Soren (P.W.7) before the Inspector-in-Charge (I.I.C.) of Udala P.S. stating therein that in the evening of 29.08.2012 around 6.00 p.m. her husband, namely, Guruva Hembram was sleeping CRLA No.60 of 2019 Page 2 of 16 under tamarind tree when she (Informant-P.W.6) was cooking food. At that time, this accused with Pitho Hembram & Raghua Hembram of their village (since acquitted) suddenly made their entry into their courtyard. Then, they attacked Guruva by giving first blows and kicks and lifted him towards the entrance gate of their courtyard. Seeing the incident, when Ruibari (Informant- P.W.6) went to save her husband (Guruva), she could not succeed and fell on the ground. It is further stated that this accused (Badu) and others were challenging Guruva as he had grabbed all the lands without giving any share to them. They then made Guruva lie flat on the village road adjoining the entrance gate (Tati) to Tati and thereafter when Raghu caughthold of the hands of Guruva, this accused, bringing a sharp age Katuri, cut the throat of Guruva. Ruibari (Informant-P.W.6), having tried her best to save the life of her husband, failed in that attempt and on account of profuse bleeding, her husband (Guruva) died at the spot. Hearing hullah, the villagers such as Dakhin Hembram when and his mother Joba Hembram came running to the spot this accused and two others escaped. When Ruibari (Informant-P.W.6) was crying, other villagers arrived at the spot and before them Ruibari narrated the incident. CRLA No.60 of 2019 Page 3 of 16 The above written report, being received by the I.I.C., Udala P.S., he treated the same as FIR (Ext.4) and upon registration of the criminal case, took up the investigation of the case. 3. The Investigating Officer (I.O.-P.W.16), in course of the investigation, examined the Informant (P.W.6). He (P.W.16), having proceeded to the spot at night, could not make the spot visit for which he waited there and intimated about the incident to the Superintendent of Police, Mayurbhanj and sent a requisition to the scientific team for collection of clues. He (P.W.16) visited the along with the Informant (P.W.6) and prepared the spot map (Ext.17). Thereafter, the I.O. (P.W.16) held inquest over the dead body of Gurva and prepared the report to that effect (Ext.1). The I.O. (P.W.16) sent the dead body of Guruva for post mortem examination by issuing necessary requisition. The I.O. (P.W.16) seized the sample earth, blood stained earth and blood sample under seizure list (Ext.2). Thereafter, the I.O. (P.W.16) arrested the accused Badhu Hembrarm, who confessed his guilt. It is said that this accused, while in police custody, gave his statement to have concealed the weapon and stated that if he would be taken to the place, he would give recovery of the same. Thereafter, he led the I.O. (P.W.16) and other witnesses to Village- Gardhankhuad in giving recovery of Katuri stained with blood, CRLA No.60 of 2019 Page 4 of 16 one blue colour lungi stained with blood. The said Katuri has been seized by the I.O. under seizure list (Ext.3). The seized incriminating articles were sent by the I.O. (P.W.16) for chemical examination through Court. On completion of the investigation, the I.O. (P.W.16) submitted the Final Form placing this accused along with other two other accused persons (since acquitted) to face the Trial for commission of the offence under section 302/34 of the IPC. 4. Learned S.D.J.M., Udala, 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 this accused with accused Raghu and Pitho persons. 5. The prosecution, in support of its case, has examined in total sixteen (16) witnesses during Trial. Out of them, the informant, who happens to be the wife of the deceased, is P.W.6. P.Ws.1, 2 & 8 are the post-occurrence witnesses and the witnesses to the inquest. P.Ws.3, 9, 11, 13, 14 & 15 are the seizure witness. P.W.4 is a post-occurrence witness. P.W.7 is the scribe of the FIR (Ext.4). P.W.10 is the son of the deceased and informant and a witness to the inquest. The Doctor, who had conducted the post CRLA No.60 of 2019 Page 5 of 16 mortem examination over the dead body of Guruva is P.W.12. The I.O. of the case, at the end, has come to the witness box as P.W.16. 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 25. Out of those, the important are, the FIR (Ext.4), the inquest report (Ext.1); the post mortem report (Ext.11); spot map (Ext.17); and the chemical examiner’s report (Ext.25). 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea.
Legal Reasoning
8. Mr.L. Bhuyan, learned counsel for the Appellant (accused) submitted that the prosecution case is essentially based on the solitary testimony of P.W.6, who is none other than the wife of Guruva (deceased) and although the prosecution has sought to rely upon the factum of recovery of Katuri at the instance of this accused, that has, however, not been established, not only that the independent witness (P.W.7) has not stated so but also the evidence of the I.O. (P.W.16) is vague on that score. Inviting our attention to the deposition of the wife of the deceased (P.W.6), he placed as to how her evidence is inconsistent and according to CRLA No.60 of 2019 Page 6 of 16 him, giving a reading to the entire deposition of P.W.6, it is to be held to be extremely unsafe to be relied upon by accepting her position as the eye witness to have seen the entire incident including the role played by this accused and others. He submitted that when with that evidence of P.W.6, the Trial court has disbelieved the role said to have been played by Raghua and Pitho in the very incident applying different standard of appreciation of evidence, the Trial Court ought not to have accepted the evidence of P.W.6 in so far as the role of this accused in the incident is concerned. He submitted that one part of the evidence of P.W.6 concerning Raghu and Pitho, having been discarded her evidence as against this accused would not have been accepted to find out the complicity of this accused. He also submitted that the evidence as to the recovery of the weapon at the instance of this accused, as has been stated by the I.O. (P.W.16) does not satisfy the legal tests and that also does not find support from the evidence of the independent witness (P.W.7). In view of all these above, he contended that the judgment of conviction and order of sentence, which are impugned in this Appeal, are liable to be set aside. 9. Mr.P.K. Mohanty, learned Additional Standing Counsel for the for the Respondent-State, while supporting the finding of guilt against this accused, as has been returned by the Trial court, CRLA No.60 of 2019 Page 7 of 16 contended that even though the evidence of P.W.6 as regards the role of Raghua and Pitho has not been relied upon by the Trial Court, finding no inconsistency in her evidence as to the part played by this accused in the incident in causing the fatal injury upon the deceased, when no such discrepancies appear in that part of the evidence of P.W.6, which also is consistent with her FIR version on that score, the Trial Court has rightly convicted this accused and accordingly, sentenced. 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.16) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.25. 11. The prosecution by examining the Doctor (P.W.12) has proved that Guruva (deceased) had sustained deep cut throat injury measuring 8” X 3’’ X 4’’ situated on the anterior aspect and a little lower to the middle of the neck, which had passed through skin, subcutaneous tissue, deep fascia, mussels and deep carotid vessels with clean cut margin and lower margin was ragged at one place indicating multiple thrust in the neck. He has stated the cause of death to be due to profuse bleeding for the said injury. These findings have been noted in his post mortem report CRLA No.60 of 2019 Page 8 of 16 (Ext.11). The evidence of the Doctor (P.W.12) on that score not faced challenge from the side by the defence. This Doctor (P.W.12), having examined the seized Katuri, has opined that the injury, which he found on the neck of the deceased, could have been possible by that Katuri. In addition to the above evidence, we have the evidence of the I.O. (P.W.16), who had held the inquest over the dead body of Guruva (deceased) and noted the injury on the neck and other places in his report (Ext.1). Besides the above evidence, the evidence of the wife of the deceased, who being the Informant, has been examined as P.W.6, who had lodged the FIR (Ext.4), has stated to have seen her husband Guruva with such fatal injury on the neck and injuries on other places, which has also been the version of the other witnesses, who had gone to the spot and saw Guruva lying dead with injuries. Faced with such overwhelming evidence on record, which have not even been questioned, we find the prosecution to have established that Guruva met a homicidal death. 12. Having said, as above, before going to examine the evidence of the prosecution witnesses first, it be stated here that when it is the prosecution case that this accused and others, namely, Raghu and Pitho had together gone to the spot and those two had also played their respective role. The Trial Court has held the evidence of prosecution witnesses to be not acceptable to CRLA No.60 of 2019 Page 9 of 16 conclude that Pitho and Raghua had any involvement in the incident of causing death of Guruva. The Trial Court has disbelieved the evidence of P.W.6 in so far as the attribution of the role of those two, namely, Raghua and Pitho in the said incident. 13. P.W.6 no doubt is the solitary eye witness to the occurrence and she has appeared as the most important witness for the prosecution. She is none other than the wife of the deceased. When she states to be present at home at the relevant time; we find no material on record to disbelieve her evidence on that score. Further, keeping in view the time of the incident, presence of the home maker like P.W.6 in the rural area at their home ordinarily cannot be doubted when she says so. Merely because P.W.6 is the wife of the deceased, that is no ground to doubt her evidence by raising any suspicion that she being interested witness, has falsely implicated the accused. But, in view of the settled position of law that the evidence of solitary witness to form a finding of guilt against the accused must be of sterling quality that it must either be wholly reliable or when it is partly reliable, it must receive the corroboration from other evidence; we are called upon to put the evidence of P.W.6 through said tests. CRLA No.60 of 2019 Page 10 of 16 P.W.6 when in the FIR (Ext.4), has stated that at the relevant time, her husband (deceased) was sleeping on a cot under tamarind tree and she was cooking in her house, during evidence, she has gone to say that at the time of occurrence, she and her husband (deceased) were sitting on a cot near the courtyard. She has further stated that this accused with Raghua and Pitho then came there and dragged Guruva and they made him (deceased) lie on the ground in front of the house near the fence. Her further evidence is that Raghua caught hold of the hands of Guruva when Pitho held his legs and this accused gave the blow on his neck resulting profuse bleeding. She has further stated that Raghua, Pitho and this accused did so in order to take revenge of the land dispute. During cross-examination, she has again stated that the courtyard is in front of the house and at the time of occurrence, she was inside the house engaged in cooking when her husband was sleeping on a cot in the courtyard. The distance between the place where her husband (deceased) was sleeping and the place where P.W.6 was cooking is stated to be at a distance of 4 to 5 cubits. She has specifically stated that at that time she was cooking inside the house and she only came out when she heard the shout of her husband. The FIR (Ext.4) narration reveals as if she had seen the incident while cooking, which takes a departure when during trial, she has stated that she CRLA No.60 of 2019 Page 11 of 16 was cooking inside the house when her husband was sleeping on a cot under tamarind tree and she came out only after hearing the hullah. The normal reaction/response of a witness like P.W.6, the wife of the deceased here lacks when we find that she has not immediately rushed to some other villagers to tell the incident before them. When she states during trial that Pitho had held the legs of Guruva whereas Raghua his hands whereafter this accused gave a Katuri blow on the neck of Guruva (deceased); the FIR narration is quite different that this accused and two others dragged Guruva (deceased) from the cot and all assaulted him by giving slaps and kicks and having taken him near the wicket gate at the entrance point of the courtyard, they made Guruva lie on the ground whereafter Raghua caught hold of the hands of Guruva (deceased) and Pitho pressed him by using his hands and then this accused gave the Katuri blow. The son of the deceased and the Informant (P.W.6), having been examined as P.W.10, P.W.6 does not state to have even seen him at any time after the occurrence. She is also not stating to have disclosed the incident before her son (P.W.10). But, even then P.W.10 very much says that his mother (P.W.6) had disclosed before him that the accused persons committed the murder of the deceased on account of previous dispute relating to the landed properties. In order to appreciate the evidence of CRLA No.60 of 2019 Page 12 of 16 P.W.6 in ascertaining the truth as to her status as the eye witness, which she asserts, when we go to the evidence of the I.O. (P.W.16), we find him to have clearly stated that during spot visit, he had seen the place where the cot was lying and the house of the accused and the deceased. According to him, the distance between the two is around 30 to 40 cubits. Therefore, when P.W.6, as per her evidence, was inside the kitchen engaged in cooking and she says to have seen the incident after coming out by hearing the hullah, doubt arises in the mind as to if P.W.6 had the occasion to mark the role of these accused persons by properly identifying that P.W.6 says the distance the distance between the place where the cot was lying and the house to be 4 to 5 cubits, the I.O. (P.W.16) says it approximately to be 30 to 40 cubits. The Informant (P.W.6) does not state that after she came out of the house, she saw this accused giving the Katuri blow on the neck of the deceased. Furthermore, she having stated that the role of two others, namely, Raghua and Pitho, the Trial court has not placed any reliance upon the same. The Trial Court having held that the presence of P.W.6 by the side of her husband (deceased) at the cot at the relevant time is highly improbable has, however, not carried that further in considering its impact upon the evidence of P.W.6 as to the role of this accused. There is no other evidence on record that the villagers after the incident had gone to search for CRLA No.60 of 2019 Page 13 of 16 this accused and two others, which usually expected in such a situation in a rural area. This again casts doubt that if by then this accused’s name had surfaced. The I.O (P.W.16) says to have appreciated this accused during noon hour but he is also silent that at which place, the accused was apprehended. Such being the state of affair in the evidence, the Informant (P.W.6), we do not find her evidence to be wholly reliable for being accepted as regards the role said by her to have been played by this accused in the incident that this accused caused the injury on the neck of the deceased leading to his death. At this stage, we do not find any corroboration to her evidence especially from the evidence of her son (P.W.10) when we find his evidence also to be not believable that P.W.6 had immediately on his arrival disclosed about the incident especially the role of this accused before him as P.W.6 herself has not breathed a word on that score. 14. The prosecution then has sought to rely upon the circumstance regarding recovery of that Katuri at the instance of the accused pursuant to his statement while in police custody in order to provide corroboration to the available evidence. The I.O. (P.W.16) when states to have recorded the statement of the accused at the police station, he has said that this accused, pursuant to the said statement, led him and others to Village- CRLA No.60 of 2019 Page 14 of 16 Gardhankhuad and gave recovery of Katuri. He does not state as to exactly from which place at Village-Gardhankhuad the accused gave the recovery of the weapon. The evidence of the I.O. (P.W.16) in that way appears to be vague and that also does not receive the support from the evidence of P.W.7, the lone witness to the so-called recovery as he has not stated anything about that during trial. In view of such evidence on record, even if it is found that the prosecution has proved through the report of the Serologist that human blood of Group-B was sticking on that Katuri and that too was also found on the lungi of the accused, those are not enough to stand in pointing the complicity of the accused and, therefore, are of no such significance. 15. Thus, on a conspectus of analysis of the evidence hereinabove, we find that the prosecution has not proved the charge against the accused beyond reasonable doubt by leading clear, cogent and acceptable evidence. 16. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 29th November, 2017 passed by the learned 1st Additional Sessions Judge, Baripada, District-Mayurbhanj in S.T. Case No.19/79 of 2013, are hereby set aside. CRLA No.60 of 2019 Page 15 of 16 Since the Appellant, namely, Badu Hembram @ Badhu Hembram is in custody, he be set at liberty forthwith if his detention is not wanted in any other case. 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: 16-Apr-2024 14:39:42 CRLA No.60 of 2019 Page 16 of 16