MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.5 of 2018 In the matter of an Appeal under section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 23rd August, 2017 passed by the learned 1st Additional Sessions Judge, Sambalpur in S.T. Case No.117/19/84 of 2012-13-14. Sanjeeb Kumbhar State of Odisha ---- -versus- …. Appellant …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms.Bijayalaxmi Tripathy (Advocate) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 22.03.2024 : Date of Judgment : 15.04.2024 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 23rd August, passed by the learned 1st Additional Sessions Judge, Sambalpur in S.T. Case No.117/19/84 of 2012-13- 14 arising out of G.R. Case No.191 of 2012 corresponding to Burla P.S. Case No.17 of 2012 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sambalpur. Page 1 of 11 JCRLA No.5 of 2018 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/- (Ten Thousand) in default to undergo rigorous imprisonment for one (1) year. 2. Prosecution Case:- On 30.01.2012, one Surendra Nag (Informant-P.W.1) lodged a written report with the Inspector-in-Charge (I.I.C.) of Bula Police Station (P.S.) stating therein that on that day around 6.00 p.m., a group of persons, namely, Santosh Nag (P.W.5), Sanat Singh (P.W.3) and others were playing cards in a place in 3R Colony of Gosala. That game was being watched by his paternal uncle, namely, Pakhiraj Nag. It is stated that this accused came there being armed with an axe and dealt three successive blows with that axe on the neck of Pakhiraj by shouting “Khatam Karidebi”. Pakhiraj, having received such blows on his neck, sustained severe bleeding injuries, which led to his death. The Informant (P.W.1), with his father had gone to the place and saw Pakhiraj lying dead with bleeding injuries over his neck. Although, Pakhiraj was shifted to V.S.S. Medical College & Hospital, Bural for treatment, he was declared dead. JCRLA No.5 of 2018 Page 2 of 11 The I.I.C. (P.W.15), receiving the written report of the
Legal Reasoning
Informant, treated the said report as FIR (Ext.1) and upon registration of the criminal case, took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.15) examined the Informant (P.W.1) and recorded his statement under section 161 of the Cr.P.C. The I.O. (P.W.15) proceeded to the V.S.S. Medical College & Hospital, Burla where the dead body of Pakhiraj was lying and as it was night, he could not held the inquest over the dead body of Pakhiraj for which he deployed police personnel to guard the dead body of Pakhiraj. On the next day, i.e., on 31.01.2012, the I.O. (P.W.15) visited the spot along with the Informant (P.W.1) and the members of the scientific team. He (P.W.15) seized the blood soaked gauge, sample gauge, sample earth, blood stained earth and the axe with wooden handle and playing cards under the seizure list (Ext.3). On that day, the I.O.(P.W.15), having proceeded to V.S.S. Medical College & Hospital, Burla, held inquest over the dead body of Pakhiraj and prepared the report to that effect (Ext.2). He then sent the dead body for post mortem examination by issuing necessary requisition. The I.O. (P.W.15) seized the wearing apparels of the accused under seizure list (Ext.5) and sent the him for medical examination. The seized incriminating articles were sent for chemical examination through Court. On 08.03.2012, the Page 3 of 11 JCRLA No.5 of 2018 I.O. (P.W.15) handed over the charge of the investigation to the I.I.C. (P.W.14), who revisited the spot, re-examined some of the witnesses and recorded their statement and after completing of the investigation, Final Form was submitted placing the accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Sambalpur, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. 5. The prosecution, in support of its case, has examined in total sixteen (16) witnesses during Trial. Out of whom, as already stated, the Informant, who happens to be the nephew of the deceased, P.W.1. P.Ws.2, 3, 4, 5, 6, 8 & 11 are the co-villagers of the deceased and the post occurrence witnesses. P.W.7 is another nephew of the deceased and an eye witness to the occurrence. P.W.8 is a seizure witness. P.W.9 is the widow of the deceased whereas P.W.10 is the brother of the deceased. P.W.13 is also a nephew of the deceased and a seizure witness. The I.O., who has done major part of the investigation, has been examined as P.W.15 whereas the I.O., who submitted the Final Form, is P.W.14. The Doctor, who had conducted the autopsy over the Page 4 of 11 JCRLA No.5 of 2018 dead body of Pakhiraj (deceased), has come to the witness box, as P.W.16. 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 10. Out of those; important are the FIR (Ext.1); the inquest report (Ext.2) and the post mortem examination report (Ext.8). 6. The accused, having taken the plea of complete denial and false implication, has, however, not tendered any evidence in support of such plea.
Legal Reasoning
7. Ms.B.L. Tripathy, learned counsel for the Appellant (accused) submitted that the finding of guilt against the accused, as has been returned by the Trial Court, is based on conjectures and surmises rather than legal evidence. He further submitted that although the prosecution has proved the nature of death of Pakhiraj to be homicidal by examining the Doctor (P.W.16), who has conducted the autopsy over the dead body of the deceased and also relating evidence through other witnesses, who had seen Pakhiraj lying dead with external injuries on his neck. The evidence of P.Ws.1, 7, 10 & 13, which have been relied upon by the Trial Court placing them in the position of eye witnesses to have seen the occurrence dealing with the blows by axe on the neck of the deceased, cannot be sustained. In support of the same, Page 5 of 11 JCRLA No.5 of 2018 he took us through the depositions of P.Ws.1, 7, 10 & 13. He further submitted that the Trial court has completely erred both on fact and law in accepting the version of P.Ws.1, 7, 10 & 13 as reliable in fastening the guilt upon the accused. He contended that the judgment of conviction and the order sentence, which are impugned in this Appeal, are liable to be set aside. 8. Mr.S.K. Nayak, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial Court, submitted that when P.Ws.1, 7, 10 & 13 have stated about the accused assaulting the deceased by giving the axe blows on his neck, which has been proved to be fatal through the evidence of the Doctor (P.W.16), who had conducted the autopsy over the dead body of Pakhiraj, the conviction of the accused recorded on that basis, is not liable to be interfered with. 9. 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) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.10. 10. It reveals from the evidence of the Doctor (P.W.16), who had conducted the post mortem examination over the dead body JCRLA No.5 of 2018 Page 6 of 11 of Pakhiraj that he found one cruciate shaped laceration over the middle of vertex of head with fracture of underlying skull; cut wound over left side of front neck, placed transversely 7 cm below the body of mandible (jaw line); and cut would over front of neck extending obliquely down ward and right laterally from the mid line of sixe 7 cm X 2 cm and placed 7.5 cm below the jaw line. The right lateral extreme of the wound was found to be superficial. On dissection of the dead body of Pakhiraj, the under surface of the scalp was contused corresponding to external injury no.1 with depressed communited indentation of the outer table of scalp situated at vertex, just right to the mid line. The inner table was also found to be cracked and depressed into the cranial cavity without any dislodgment of fractured pieces and the dura was found to be intact. On dissection of the neck, extra vassation was noticed into the neck tissues. The sternocleidomastoid muscle was found to be partly cut at its anterior aspect whereas on the right side, corresponding external injury on the left side of the front neck which was found to be contused. The larynx was found to be cut through and through over the body of thyroid cartlege. The oesophagus was also found to be partly cut on its right half and a cut fracture was noticed over the of C5 bertibra. According to him, all such injuries were ante mortem and the death of Pakhiraj was on account of choking JCRLA No.5 of 2018 Page 7 of 11 and asphyxia as a result of cut throat injuries over the neck. Such the evidence of P.W.16 when has gone unchallenged, we too find the evidence of the I.O. (P.W.15), who held the inquest over the dead body of Pakhiraj and noted all such injuries in report (Ext.2). With all these evidence on record, we concur with the finding of the Trial Court that Pakhiraj met a homicidal death. 11.
Decision
In view of the above rival submission, we are called upon to examine the sustainability of the finding of guilt against the accused, as has been recorded by the Trial Court by examining the evidence on record especially those, which have fallen from the lips of P.Ws.1, 7, 10 & 13. P.W.1 is the nephew of Pakhiraj (deceased). It is his evidence that hearing from Sanat (P.W.3) that his uncle (deceased) had been assaulted by the accused, he went to the spot. So, this P.W.1 is not an eye witness to the occurrence, but he states to have rushed to the spot immediately after hearing about the incident. He has clearly stated to have seen the incident as to how his uncle (deceased) received the injuries. P.W.4 from whom the Informant (P.W.1) says to have learnt about the incident, being so informed has, however, not supported the prosecution case. Although he has been cross- examined by the prosecution seeking the leave of the Court, a reading being given to his evidence, we find no such important Page 8 of 11 JCRLA No.5 of 2018 material to have come to surface providing even any remote support to the evidence of P.W.1. Thus, the evidence of the Informant (P.W.1), according to us, is of no aid to the prosecution case. Coming to the evidence of P.W.7, we find him to have stated that the accused came and dealt a blow by an axe on the neck of the deceased, who then fell down sustaining bleeding injury on the backside of his neck. So, this witness is found to have stated the accused to have come and suddenly dealt the blows by axe on the backside of Pakhiraj (deceased), who then was playing cards. When this is the version during his examination in chief, he again during cross-examination has stated to have seen the accused assaulting the deceased when he arrived at the spot. He also says that accused ran away from the spot at his sight. This witness, being asked, has assertively stated that he had told the I.O. (P.W.15) to have heard about the incident from Kartika, Santanu and Nabin. Karitka and Santanu have not been examined whereas Nabin, being examined as P.W.4, has not breathed a word about the incident to have taken place in his presence nor to have informed (P.W.7) as regards the happenings of the incident. So, when P.W.7 positively asserts to have earlier stated to have heard about the incident from Kartika, Santanu and Nabin (P.W.4) and by that time, accused had fled away from JCRLA No.5 of 2018 Page 9 of 11 the spot throwing the axe when during trial, after lapse of about three years, he, for the first time, states to have seen the incident, which happened before him. In such state of affairs, we are of the view that it would not be safe to rely upon the evidence of P.W7 that to by placing him in a position of a ocular witness and his evidence is ocular testimony, which would be hazardous. When P.W.10 has stated that the accused had left the spot and he even does not name as to who is the accused whether this accused or not , we do not find his evidence to be of any help in chasing the accused pointing his complicity in the incident. 12. Next, remains the evidence of P.W.13, who has stated that the accused came to the spot and assaulted Pakhiraj (deceased) by means of an axe. Although he asserts to have stated before the I.O. (P.W.15) that his uncle Pakhiraj (deceased) when was playing cards, the accused came there, being armed with an axe and dealt 3/4 blows on his neck and other places of the body causing bleeding injuries and has denied the suggestions of the defence to have not seen the occurrence and as such deposing falsehood, it is seen that the I.O. (P.W.15) has proved that this P.W.13 had not stated before him that when his uncle (deceased) was playing cards, the accused came to the spot being armed with an axe and dealt 3 to 4 axe blows on his neck and his uncle had sustained bleeding injuries. Such important part of the incident, which this Page 10 of 11 JCRLA No.5 of 2018 P.W.13 in the pedestal of an ocular witness, when had not stated during investigation, as has been proved through the I.O. (P.W.15), we are of the considered view that it would be hazardous to place reliance on the evidence of P.W.13, who is the nephew of Pakhiraj (deceased). 13. On a careful conspectus of analysis of the evidence on record together with the discussions made hereinabove, we find that the prosecution has not proved the charge against the accused beyond reasonable doubt. 14. In the result, the Appeal is allowed. The judgment of conviction and the order of sentence dated 23rd August, 2017 passed by the learned 1st Additional Sessions Judge, Sambalpur in S.T. Case No.117/19/84 of 2012-13-14, are hereby set aside. Since the Appellant, namely, Sanjeeb Kumbhar is in custody, he be set at liberty forthwith, if his detention is not wanted in connection with any other case. V. Narasingh, J. I Agree. (D. Dash) Judge (V. Narasingh) Judge Signature Not Verified Basu 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 JCRLA No.5 of 2018 Page 11 of 11