The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.270 of 2012 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 07.04.2012 passed by the learned Adhoc Additional Sessions Judge, Keonjhar in S.T. Case No.48/107 of 2011-10. ---- Padmanava Mahanta @ Padmalava Mahanta & Another …. Appellants -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.Amrit Baral, (Amicus Curiae) For Respondent - Mr. S.S.Kanungo, Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K.PANIGRAHI Date of Hearing :02.02.2023 : Date of Judgment: 10.02.2023 D.Dash,J. The Appellants, in this Appeal, have challenged the judgment of conviction and order of sentence passed by the learned Ad-hoc Additional Sessions Judge, Fast Track Court, Keonjhar in S. T. Case No.48/107 of 2011-10 arising out of G.R Case No. 1071 of 2009 corresponding to Ghatagaon P.S Case No.141 of 2009 of the Court of the learned S.D.J.M., Keonjhar. CRLA No.270 of 2012 Page 1 of 10 {{ 2 }} The Appellants (accused persons) have been convicted for commission of offence under section 302/34 of the Indian Penal Code (in short, ‘IPC’) and have been sentenced to undergo imprisonment for life with payment of fine of Rs.5,000/- each in default to undergo rigorous imprisonment for six (6) months. Accused Padmanava is the father of accused Tankadhara. 2. Chudamani Mahanta (P.W.1), who happens to be the wife of Tuna@Laxmidhara Mahanta (Deceased) lodged a written report at Ghatagaon Police Station on 20.12.2009 stating therein that sometime prior to the incident, which took place on 19.12.2009, her husband Laxmidhara had given door frames to his elder brother i.e. accused Padma Lochana. On 19.12.2009 around 9 p.m., accused Padma Lochana, instead of returning the door frames, offered cash in lieu of the same to deceased Laxmidhara. For that reason, a quarrel ensued between the deceased on the one hand and accused Padma Lochana on the other. It is stated that accused Padma Lochana then assaulted the deceased by means of a split wood, for which the deceased fell down and, thereafter, accused Padma Lochana assaulted on the forearms of the deceased by means of an axe which led to his death. On receipt of the above written report, Inspector-in-Charge (I.I.C) of Ghatagaon Police Station on 20.12.2009 at about 7.20 a.m., registered the case against accused Padma Lochana and the investigation commenced. In course of investigation, the I.I.C. (P.W.8) examined, the wife of the deceased (P.W.1), who is the informant of this case and had lodged the F.I.R. (Ext.1) and recorded her statement under section 161 of Cr.P.C. He then visited the spot, prepared the spot map (Ext.6). He also held inquest over the dead body of the deceased Laxmidhara in presence of the witnesses and prepared the inquest report (Ext.7). He Page 2 of 10 CRLA No.270 of 2012 {{ 3 }} further seized the blood stained and sample earth along with the axe and one piece of split wood under seizure list (Ext.2). The dead body of the deceased was sent for Post Mortem Examination by issuing requisition. On 20.12.2009, he arrested the accused namely, Padmanava and his son Tankadhara. He also seized their wearing apparels under seizure list (Ext.2). The wearing apparels of the deceased were also seized after Post Mortem Examination under seizure list (Ext.9). The accused persons were forwarded in custody to the Court on 21.12.2009. He further examined Gobardhana Mahanta (P.W.5) and others. The incriminating articles were sent for chemical examination to State Forensic Science Laboratory, Rasulgarh, Bhubaneswar through Court. He too had examined the mother of the accused Padmanava, who is the grandmother of accused Tankdhara and is also the mother of the deceased Laxmidhara. The investigation then being handed over to the Sub-Inspector (SI) of Police attached to the said Police Station (P.W.7), he completed the same and submitted Final Form placing the accused persons to face the Trial for Commission of Offence under section 302/506/34 of IPC. 3. On receipt of the above Final Form, learned S.D.J.M., Keonjhar having taken cognizance of the said offences and after observing formalities, committed the case to the Court of Sessions for trial. That is how the trial commenced by framing charges against the accused persons under section 302/34 of IPC and 506/34 of IPC. 4. In the trial, the prosecution, in total has examined eight (8) witnesses. Out of whom, as already stated, P.W.1 is the informant and wife of the deceased, who had lodged the F.I.R (Ext.1). P.W.4 is the mother of accused Padmanava and grandmother of accused Tankadhara CRLA No.270 of 2012 Page 3 of 10 {{ 4 }} who is also the mother of deceased Laxmidhara. Raghunatha Panda,
Facts
who is the scribe of the FIR has come to the witness box as P.W.2. P.W.3 & P.W.5 namely Dhruba Charana Mahanta and Gobardhana Mahanta respectively are the co-villagers. The Doctor, who had conducted post mortem examination over the dead body of deceased Laxmidhara, is P.W.6. Besides leading the evidence through examination of above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Ext.1 to 9. The important of those are the FIR (Ext.1), Post Mortem Examination Report (Ext.3), Inquest Report (Ext.7), Spot Map (Ext.6), Seizure lists (Ext.2) as well as Ext.9 etc. 5. The plea of the accused persons is that of denial and false implication, while further stating that the deceased had received the injuries while being on fight with outsiders in the weekly market. The defence has examined one witness (D.W.1) in support of their case. 6. The Trial Court on going through the evidence of the Doctor (P.W.6) who had held autopsy over the dead body of the deceased and taking into consideration other evidence as that of the initial I.O. P.W.8, who had conducted inquest over the dead body of the deceased has held that the death of Laxmidhara was homicidal in nature. Having said as above, the Trial Court, on scrutiny of the evidence of prosecution witnesses and the documents admitted in evidence, has held that the prosecution has established the charge under section 302/34 as against the accused persons. Accordingly, the accused persons have been convicted thereunder and sentenced as aforestated. CRLA No.270 of 2012 Page 4 of 10 {{ 5 }} 7. Learned counsel for the Appellants (accused persons) submitted that here the Trial Court has returned the finding of guilt as against the accused person solely relying upon the evidence of P.W.1 who happens to be the wife of the deceased. According to him, the veracity of the statement of P.W.1 is wholly doubtful. It was argued that this witness P.W.1 having not stated anything with regard to the involvement of accused Tankadhara in the entire incident, right from the beginning till the end and even without stating about her presence in the vicinity at any point of time during said happening of the incident; in the trial has developed the story in falsely implicating said accused Tankadhara. He submitted that when the tendency of P.W.1 is clear in falsely implicating accused Tankadhara in the incident of murder of her husband, the evidence of such a witness ought not to have been held to be reliable. He submitted that under the above circumstance, in the absence of any corroboration to the evidence of P.W.1 from any other source, the Trial Court has erred in convicting the accused persons for commission of offence under section 302/34 of IPC. 8.
Legal Reasoning
means of a Tangia. Thus here, We find that not only she has improved her version during trial in arraigning accused Tankadhara in the incident, but also she has implicated accused Tankadhara to have played specific the role therein in inflicting the fatal blows. The attention of this witness having been invited to her previous statement in course of investigation, she has denied to have not stated anything about accused Tankadhara. The I.O (P.W.8), who had recorded the statement of P.W.1 during the trial, in clear terms has stated as under:- “I had examined P.W.1 Chudamani Mahanta. P.W.1 had not stated before me that accused Tankadhara caught hold of the deceased and Padmanava assaulted. Thus, We are faced with a situation that where this P.W.1 having all along implicated accused Padmanava to be the author of the crime, has during the trial gone to implicate accused Tankadhara too.” On going through the evidence of the two Investigating Officers P.W.7 and 8, We too do not find as to how and based on which materials being collected in course of investigation, said accused Tankadhara was arraigned as an accused and he being arrested was forwarded in custody to Court. We are conscious of the position that falsus uno falsus in omnibus is not applicable in the matter of appreciation of evidence in our country, but with the above nature of evidence of P.W.1, We are not in a position to separate the grain from the chaff so as to separate the two parts in such a way that even discarding one part, We can place reliance on the other part. What she has stated in the trial with regard to the role of the two accused persons is so inextricably mixed up that the role of each of the accused persons is not at all segregable. Therefore, the evidence of P.W.1 does not inspire confidence in our mind to hold that what she is stating about the role of accused Padmanava is also true and thus, acceptable. CRLA No.270 of 2012 Page 9 of 10 {{ 10 }} For all these aforesaid, We are of the view that the evidence of P.W.1 suffers from severe credibility deficit. Therefore, We hold that the prosecution has failed to establish its case against the accused persons beyond reasonable doubt. Accordingly, the Judgment of conviction passed by the Trial Court holding the accused persons guilty for commission of offence under section 302/34 IPC cannot be sustained. 13. In the result, the Appeal is allowed and the judgment of conviction and order of sentence dated 07.04.2012 passed by the learned Adhoc Additional Sessions Judge, Keonjhar in S.T. No.48/107 of 2011- 10 are hereby set aside. The accused Tankadhara, being on bail, his bail bonds shall stand discharged. Accused Padmanava, being in custody, he be released forthwith, if his detention is not required in connection with any other case. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Dr.S.K.Panigrahi, J. I Agree. Gitanjali CRLA No.270 of 2012 Page 10 of 10
Arguments
Learned counsel for the State although does not dispute that this P.W.1, while lodging the FIR, had not implicated the accused Tankadhara in the crime in any manner and so also that it was not stated by her during her examination in course of investigation, yet during trial she has so stated yet, he submitted that as there is no material to disbelieve her evidence with regard to the involvement of the two accused persons, the Trial Court did commit no mistake in holding both the accused persons guilty for commission of the offence of murder of deceased Laxmidhara. He submitted that simply because P.W.1 had not earlier stated about the involvement of accused Tankadhara, her evidence during trial implicating both Padmanava and Tankadhara is Page 5 of 10 CRLA No.270 of 2012 {{ 6 }} wholly acceptable as there arises no other suspicious feature to doubt her testimony. He, therefore, submitted that the order of conviction has to sustain even though other witnesses have turned hostile. He submitted that P.W.1 being the eye witness to the occurrence and when under the circumstances, her presence cannot be doubted, her evidence has been rightly relied upon by the Trial Court base the conviction of the accused persons. 9. Keeping in view the submissions made, We have carefully read the impugned judgment of conviction. We have also gone through the depositions of the prosecution witnesses P.W.1 to 8 as well as the defence witness (D.W.1) and have perused the documents which have been admitted in evidence and marked Ext.1 to 9. 10. When it is the evidence of P.W.1 that her husband was assaulted to death by accused Padmanava, she having lodged the FIR (Ext.1), inquest over the dead body has been held. P.W.8 having held the inquest has noted in his report to have noticed the injuries sustained by the deceased. The Doctor (P.W.6), during post mortem examination, has found three deep cut injuries on the right forearm, above wrist and lower end of left forearm severing the forearm. He has also noticed the lacerated injuries on the fronto temporal region and the left pinna being cut into three pieces. Besides the above, bruises have also been found all over the body. This P.W.6 has stated that the death was due to profuse bleeding from the cut artery of both the arms as well as the multiple injuries over the body. His positive evidence is that the injuries are all ante moretm and the death is homicidal in nature. In reply to the query made by the Investigating Officer, he has reported that the injuries are possible with the weapons i.e. Tangia and wooden stick sent for his CRLA No.270 of 2012 Page 6 of 10 {{ 7 }} examination after their seizure. With all these evidence on record, when this aspect of the case is not at all challenged by the defence, We find ourselves wholly in agreement with the conclusion of the Trial Court that the death is homicidal in nature. 11. In order to judge the sustainability of the finding of the Trial Court holding the accused persons guilty for committing the murder of deceased Laxmidhara, before proceeding to scrutinize the evidence of P.W.1, the other evidence on record be placed. It has been stated by P.W.2 who is the scribe of the FIR that as per the dictation of P.W.1, he had written the report (Ext.1). At this stage, it be noted that P.W.1 has also stated to have presented the written report written by P.W.2. She has also stated that P.W.2 has written the said FIR as per her dictation and she finding the contents of the FIR to be true, had signed on the said FIR. Perusal of FIR (Ext.1) reveals that this P.W.1 is not an illiterate person. She has signed on Ext.1 in English. The FIR (Ext.1), being read, however, does not show anything regarding the role or even the presence of the accused Tankadhara, the son of accused Padma Lochan. It has nowhere even been stated in the FIR that accused Tankadhara was present in the vicinity when the occurrence was taking place. The case has been registered only against accused, Padma Lochan mentioning his name in the relevant column. P.W.3 is a post occurrence witness who is stated to have rushed to the spot on hearing about the occurrence. Then, it is his evidence that on his arrival when he asked Padmanava about the incident, he confessed before him to have committed the murder of the deceased. But this clearly appears to be an after thought and to have been developed during the trial itself as can be seen that this P.W.3 had not stated in his previous statement during investigation recorded under section 161 of Page 7 of 10 CRLA No.270 of 2012 {{ 8 }} Cr.P.C. such important fact that on his asking, accused Padmanava had confessed his guilt as to have committed the murder of the deceased. The evidence of P.W.8, who is the Investigating Officer, proves this fact that P.W.3 had never stated before him to have asked the accused Padmanava as to what happened and that then Padmanava had confessed to have committed the murder of the deceased. Therefore, this extra judicial confession sought to be introduced through evidence of P.W.3 is not at all believable and cannot be accepted. It has been being stated by him for the first time on 30.01.2012 as against the incident happening on 19.12.2009. P.W.4, who is the mother of the deceased and accused Padmanava as well as the grandmother of accused Tankadhara has not supported the prosecution case. The prosecution except inviting her attention to her previous statement has brought out no other material in providing any support to the prosecution case. This is also the state of affair in so far as P.W.5 is concerned. 12. Thus, We are left with the solitary testimony of P.W.1. and called upon to examine her evidence to find out as to if the same is wholly reliable and if can form the foundation of guilt of both the accused persons who have been convicted by the Trial Court on the basis of said evidence on record. From the beginning We find the tendency of this P.W.1 in implicating accused Tankadhara in such crime of murder of her husband in stating for the first time during trial that the accused persons instead of returning the door frame, gave Rs.1000/- to her deceased husband and they then picked up the quarrel with her husband and assaulted her husband jointly. She has further stated that accused Padmanava assaulted her husband by split wood and caught hold her husband when accused Padmanava’s son namely, Tankadhara assaulted her husband by Page 8 of 10 CRLA No.270 of 2012 {{ 9 }}