The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.65 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 18.09.2018 passed by the learned Additional Sessions Judge, Paralakhemundi, Gajapati in S.T. No.59 of 2017. ---- Sanjaya Mallick …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s. B. P. Das, M. K. Panda, A. Pattnaik, S. K. Mishra Advocates For Respondent - Mrs. S. Pattnaik, Additional Government Advocate CORAM:
Legal Reasoning
we are of the view that the prosecution has failed to establish the charge against the accused beyond reasonable doubt. 14. In the result the Appeal stands allowed. The judgment of conviction and order of sentence dated dated 18.09.2018 passed by the learned Additional Sessions Judge, Paralakhemundi, Gajapati in S.T. No.59 of 2017 are hereby set aside. The Appellant (accused) be set at liberty forthwith, if his detention is not warranted in connection with any other case. G. Satapathy, J. I Agree. (D. Dash), Judge. (G. Satapathy), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 29-Jan-2024 18:17:39 CRLA No.65 of 2019
Arguments
MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing : 19.01.2024 :: Date of Judgment: 29.01.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and the order of sentence dated CRLA No.65 of 2019 {{ 2 }} 18.09.2018 passed by the learned Additional Sessions Judge, Paralakhemundi, Gajapati in S.T. No.59 of 2017, arising out of G.R. Case No.141 of 2017, corresponding to Gurandi P.S. Case No.24 of 2017, of the Court of learned Sub Divisional Judicial Magistrate (SDJM), Paralakhemundi. The Appellant (accused) has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’) and he has been sentenced to undergo imprisonment for life and fine of Rs.5000/- in default to suffer rigorous imprisonment for one (1) year for the offence under section 302 of the IPC. 2. Prosecution case is that on 04.04.2017, around 11 p.m., accused assaulted his mother, namely, Rohini Mallick by means of a wooden plank and a kati in causing her death. The brother of the accused, namely, Kirti Mallick being informed about the incident by one Surendra Patra (P.W.8), a co-villager rushed to the spot and saw his mother lying dead with serious bleeding injuries. He (P.W.12) then lodged a written report in the morning of 05.04.2017 with the Officer-in-Charge (OIC) of Gurandi Police Station who having received such written report, treated the same as FIR and upon registration of the case, took up investigation. CRLA No.65 of 2019 {{ 3 }} 3. In course of investigation, the Investigating Officer (I.O- P.W.16) examined the informant and other material witnesses, visited the spot and prepared the spot map vide Ext.11. The I.O (P.W.16) held inquest over the dead body of the deceased and prepared the report vide Ext.1. He examined some inquest witnesses and collected sample earth as well as blood stain earth from the spot under seizure list vide Ext.6. He then sent the dead body of the deceased for post mortem examination by issuing necessary requisition. He apprehended the accused and arrested him. Upon examination, in presence of the independent witnesses namely, Surendra Patra and Kartika Mallick, the accused confessed to have committed the offence and concealed the weapon of offence in the heap of a straw. The accused is said to have led the I.O. to the spot in giving recovery of one blood stain wooden bar attached with rope, one blood stain iron kati and one torch light. The I.O. (P.W.16) seized those articles in presence of witnesses and prepared the report to that effect under seizure list vide Ext.5/1. On 06.04.2017, the accused was forwarded in custody to Court. The wearing apparels of the deceased were seized vide Ext.2. On 05.06.2017, the seized incriminating articles were sent for chemical examination to RFSL, Berhampur through Court. Finally, on completion of the investigation, on 30.06.2017, the I.O (P.W.16) submitted the Final Form placing the accused to CRLA No.65 of 2019 {{ 4 }} face the Trial for commission of offence under section 302 of the IPC. 4. Learned SDJM, Paralakhemundi receiving the Final Form as above, took cognizance of the offence and after observing the formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing charge against the said offence against the accused. 5. In the Trial, the prosecution in total has examined sixteen (16) witnesses. Out of whom, P.W.5 is the informant, who had lodged the written report (Ext.3) whereas P.W.7 is the scribe of the same. P.W.6, P.W.9 and P.W.15 are the witnesses to the seizure. P.W.12 is the brother of the Informant and accused. P.W.13 is the Gram Rakhi. The Doctor, who had conducted autopsy over the dead body of the deceased, has been examined as P.W.14 and the I.O is P.W.16. 6. The prosecution besides leading the evidence by examining above the witnesses has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.15. Out of those, the important are the FIR, Ext.3, inquest report, Ext.1, Post Mortem Report, Ext.9, spot map; Ext.11 and Chemical Examination Reports are Ext.13, 14 & 15 respectively. 7. The accused has not led any evidence in support of his plea of denial and false implication. CRLA No.65 of 2019 {{ 5 }} 8. Learned counsel for the Appellant (accused) submitted that the entire case of the prosecution as to the complicity of this accused is resting upon the evidence of P.W.12, as no other evidence on record has come during Trial in support of the charge, which the accused faced. He submitted that when all the witnesses have turned hostile and the prosecution has not been able to elicit anything from them, except in proving that they had stated something in some way implicating the accused in their statement recorded in course of investigation under section 161 of Cr.P.C., the Trial Court ought not to have held the accused guilty of commission of murder of his mother by placing reliance upon the solitary testimony of P.W.12. 9. Learned counsel for the State-Respondent while supporting the finding of guilt against the accused as has been rendered by the Trial Court submitted that the Trial Court did no mistake in placing reliance upon the evidence of P.W.12 to hold the accused guilty of the charge. 10. Keeping in view the submissions made, we have carefully read the judgment of conviction impugned in this Appeal. We have also gone through the depositions of all the witnesses P.W.1 to P.W.16. We have also perused the documents which have been admitted in evidence and marked Ext.1 to Ext.15. CRLA No.65 of 2019 {{ 6 }} 11. The Doctor (P.W.14) having conducted the post mortem examination over the dead body of Rohini had noted in his report several injuries to have been detected, which he has stated in detail during his examination in the Trial. As per his evidence, all such injuries were ante mortem in nature and the cause of death was on account of haemorrhage and shock due to bleeding from large vessels on account of the injures. He has proved his report which has been admitted in evidence and marked Ext.9. In addition to the above, we also find the evidence of the I.O (P.W.16), who had noted those injuries in his own language in the inquest report which he had prepared, which has been proved as Ext.1. The evidence of the above witnesses have not faced any challenge from the side of the defence. Thus, we are left with no option but to concur with the finding of the Trial Court that Rohini met a homicidal death. 12. This now takes us to find out as to how far the prosecution has proved the fact that it is the accused, who having caused such injuries on the body of his mother Rohini had caused her death. P.W.1 and P.W.2 are two co-villagers of the accused, informant and the deceased. They have stated to have no knowledge as to how Rohini died. The prosecution has remained satisfied by drawing attention of these witnesses to their previous statements made to that effect that hearing the noise in the house CRLA No.65 of 2019 {{ 7 }} of the Rohini, they having gone there, had found accused present in an intoxicated state and had caused death of his mother by assaulting her by means of a plank and giving a kati blow. Such statements of P.W.1 and P.W.2 before the I.O. have been proved through the I.O. (P.W.16). But then these two witnesses although can be said to be suppressing the real fact yet said evidence without any other material being elicited during cross- examination, do not stand to help the prosecution in any manner. The evidence of other witnesses P.W.3 is also in the same vein. P.W.5, the brother of the accused and the son of the deceased is also remaining silent as to any role of the accused either in any direct manner or even indirectly. That has also been the evidence of P.W.8 and P.W.9. Now comes the evidence of P.W.12, who is the younger brother of said P.W.5, the informant, who too has not supported the prosecution case. P.W.12 states that in the early morning, P.W.5 told him about the death of his mother, so when he went to the spot, he saw his mother lying dead and accused standing nearby with a Thenga. It is stated that the accused then fled away from the spot when he saw this witness (P.W.12). The occurrence had taken place in the night. He has stated that during the night, he was with his mother Rohni and then the accused was not present. It is his evidence that having taken dinner around 8.30 P.M., he went to bed and his mother was waiting for the arrival of the accused. It has been stated by him that around CRLA No.65 of 2019 {{ 8 }} 10.30 p.m. being called by P.W.5, he came out and saw the dead body of his mother and accused was present near the dead body holding a Thenga. So even if the evidence of P.W.12 is accepted in toto, it can be said that the accused sometime around 10.30 p.m., or so found standing near the dead body of his mother. But P.W.5, from whom this P.W.12 had heard about the incident, is not stating anything about the presence of this accused. He rather states he was told by two persons about the death of his mother. In the totality of the facts and circumstances, the prosecution cannot be said to have discharged the burden of proof in such a way that the onus can be said to have shifted upon the shoulder of the accused to explain as to what happened to his mother and how she received injuries and died. Evidence of P.W.12 as to the confessional statement of the accused before the police is not admissible in the eye of law. In addition to the above, the evidence of P.W.16 (I.O) as regards recovery of the blood stained wooden bar attached with rope, iron kati and one torch light at the instance of the accused, too do not receive support from any other independent witnesses and that also do not satisfy the tests as regards admissibility of that portion of the statement as to recovery of the weapon at the instance of the accused from a place known to him. So, we find the said evidence also to be of no aid to the prosecution. CRLA No.65 of 2019 {{ 9 }} 13. On a conspectus of discussion of evidence as hereinabove,