The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.27 of 2017 (An appeal U/S. 374(2) of the Code of Criminal Procedure, 1973 against the judgment passed by Shri P.K.Routray, Addl. Sessions Judge, Keonjhar in S.T. No.13/184 of 2014 corresponding to G.R. Case No. 967 of 2014, arising out of Kanjipani PS Case No. 21 of 2014 of the Court of SDJM, Keonjhar) Mangala Mantri @ Patu and others … Appellants State of Orissa -versus- … Respondent For Appellant : Mr.H.B. Dash, Advocate (Appellant No.1) Mr. C.R. Sahu, Advocate (Appellant Nos. 2 & 3) For Respondent : Mr.S.K. Nayak, AGA CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :19.01.2024 DATE OF JUDGMENT:18.04.2024 G. Satapathy, J. 1. This appeal by the convicts U/S. 374(2) of the Code of Criminal Procedure, 1973 (In short, the “Code”) CRLA No.27 of 2017 Page 1 of 22 seeks to challenge the judgment of conviction and order of sentence dated 29.09.2016 passed by learned Additional Sessions Judge, Keonjhar in S.T. Case No. 13/184 of 2014 convicting the three convicts for commission of offence punishable U/Ss. 302/201/34 of IPC and sentencing each of the convicts to undergo imprisonment for life with fine of Rs. 10,000/- in default whereof, to undergo Rigorous Imprisonment (RI) for further six months for offence U/Ss. 302/34 of IPC and to undergo RI for one year with fine of Rs. 1,000/- in default whereof, to undergo RI for further one month for offences U/Ss. 201/34 of IPC with stipulation of substantive sentences to run concurrently. 2. Briefly stated, the prosecution case is that on 11.08.2014, one Radhu Sanangi (hereinafter referred to as the “deceased”) went on missing after he left his house to somewhere by 3PM to 4PM in the afternoon. Accordingly, his son PW1 Fakira Sanangi and his elder brother searched for their father, but in vain. On CRLA No.27 of 2017 Page 2 of 22 14.08.2014, PW1 informed the Police about missing of his father, but on 17.08.2014, PW6 Para Juanga of his village intimated to PW1 that on Monday, the convicts were forcibly taking away the deceased by dragging him towards Jungle and they have killed him by throwing his dead body somewhere. On hearing this news, PW1 and his elder brother again searched for their father in nearby area and found the dead body of their father(deceased) floating in River Baitarani near their village, but PW1 suspected the convict for the murder of his father for practizing witchcraft. Accordingly, on 17.08.2014 at about 11.30
Legal Reasoning
AM, PW1 lodged an FIR against the convicts before the OIC, Kanjipani PS-cum-PW12 Yudhistir Sahoo who registered Kanjipani PS case No. 21 of 2014 and took up the investigation of the case. In the course of investigation, PW12 held inquest over the dead body of the deceased under Ext.2, dispatched the dead body for autopsy, recovered the knife (MOI) at the instance of CRLA No.27 of 2017 Page 3 of 22 convict Raju Mahakud and a Katuri (MOII) at the instance of convict Patu Mantri and seized these weapons and obtained opinion of the Doctor as to the possibility of injuries sustained by the deceased by aforesaid katuri(MOII) and knife (MOI). PW12 further sent MOI&II along with other incriminating materials i.e. seized wearing apparels of the deceased and the convicts to SFSL, Rasulgarh, Bhubaneswar for chemical examination. On completion of investigation, PW12 submitted a charge-sheet against the convicts for commission of offences punishable U/Ss.302/201/34 of IPC under which cognizance was taken and the convicts were sent up for trial resulting in trial in the present case. 3. In support of the charge, the prosecution examined altogether 12 witnesses vide PW1 to 12, proved certain documents under Exts. 1 to 19 and identified Material Objects MOI to MOXII as against the sole oral evidence of DW1 Bana Padhana. Of the witnesses examined by the prosecution, PW1 and 2 are CRLA No.27 of 2017 Page 4 of 22 the sons of the deceased, PW3 is a co-villager, whereas PW4 and 5 are Staffs of Fire Brigade who brought out the dead body from the river. PW6 Para Juanga is the main witness who had seen the convicts with the deceased together for the last time, PW7 is another co-villager and witness to disclosure statement. PW8 and 11 are the Police constables and witness to seizure, PW9 is the Doctor who had conducted PM examination over the dead body of the deceased. PW10 is another co-villager who had seen the deceased and the convicts together on 11.08.2014 and lastly, PW12 is the IO in this case. 4. The plea of the convicts in the course of trial was denial simplicitor and false implication. 5. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellants-convicts by the impugned judgment mainly relying on the circumstantial evidence of “last seen theory”, “recovery of MOI and II” and suspicion of practizing “witchcraft” as motive behind the crime. CRLA No.27 of 2017 Page 5 of 22 6. In assailing the impugned judgment of
Legal Reasoning
conviction and order of sentence, Mr. H.B. Dash, learned counsel for the Appellant No.1 has submitted that the learned trial Court on erroneous appreciation of evidence has convicted the convicts by believing PW6 and 10 whose evidence are not acceptable as evidence to last seen theory since PW6 disclosed about the incident before PW7 for the first time after 5 or 6 days of the occurrence. It is further submitted that the recovery of MOI and MOII in no way helps the prosecution case as the same was not established by the prosecution to have been used in commission of crime, especially when PW9 admits that there was no blood stain on the aforesaid Mos. It is also advanced that the evidence of leading to discovery by two convicts does not inspire confidence to be acted upon and the so-called evidence of motive behind crime being “witchcraft” as per the prosecution story, but the same having not established by the prosecution to have any connection with the convicts to CRLA No.27 of 2017 Page 6 of 22 commit murder of the deceased as the motive behind the crime. In summing up his argument, Mr.H.B.Dash, learned counsel for the Appellant No.1 has prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence by acquitting the convicts of the charge. 7. Mr. C.R. Sahoo, learned counsel appearing for the Appellant Nos.2 and 3 while reiterating the submissions of Mr. Dash has further submitted that the evidence of PW6 being shaky in view of the admitted fact that she had not disclosed about the deceased being last seen in the company of the convicts even after 6 days of the occurrence and the theory as advanced by the prosecution that PW6 had gone to her parental house appears to be not believable and the Police having not made any inquiry about the presence of PW6 in her parental house, she cannot be believed at later stage for disclosing about the last seen theory to PW1 and, therefore, conviction of the appellants being on CRLA No.27 of 2017 Page 7 of 22 unacceptable evidence, cannot sustain in the eye of law. Mr. Sahoo has, accordingly, prayed to allow the appeal. 8. On the contrary, Mr. S.K. Nayak, learned AGA, however, has strongly refuted the submission advanced for the convicts and he inter-alia has submitted that not only the last seen theory has been established by the prosecution, but also the recovery of MOI and II in addition to the motive behind crime has been well established by it and these three circumstances so established/proved against the convicts firmly and cogently form a chain of events so complete as to exclude all other hypothesis consistent with innocence of the convicts and the same is clearly consistent with the hypothesis of guilt of the convicts and, therefore, the impugned judgment of conviction does not warrant any interference in this appeal. Mr. Nayak, has accordingly, prayed to dismiss the appeal. 9. After having bestowed an anxious and careful consideration to the impugned judgment of conviction CRLA No.27 of 2017 Page 8 of 22 together with the evidence available on record keeping in view the rival submissions to examine the sustainability of the conviction of the convicts, it appears that the learned trial Court has mainly relied upon the circumstantial evidence of (i)“last seen theory” as deposed to by PW6 and PW10, (ii) the recovery of MOI and II at the instance of convicts Patu Mantri and Raja Mahakud and lastly, (iii) the motive behind crime such as practice of “witchcraft” by the deceased. Before dwelling upon the circumstantial evidence as stated above, the nature of death which assumes great significance for the charge of murder is required to be ascertained at the inception in this case inasmuch as once it is found that the deceased has not sustained homicidal death, the charge against the convicts would bound to fail in such situation. However, the learned trial Court by the impugned judgment has come to a finding that the deceased has suffered homicidal death, but such finding is required to be re-examined/cross-checked in this CRLA No.27 of 2017 Page 9 of 22 appeal. In order to ascertain the cause of death of the deceased, it would be not only prudent, but also beneficial to refer to the evidence of Doctor who had conducted autopsy over the dead body of the deceased. The Doctor being examined as PW9 in this case has testified in the Court that the death of the deceased was homicidal in nature and the time of death of the deceased was 5 to 7 days from the time of the PM examination. The above opinion of PW9 as to cause of death of the deceased is apparent from the following injuries noted by him while conducting autopsy over the dead body of the deceased: - External Injuries (i) Incised wound of size 6" x 4" x 1/2" present over the upper aspect near the sagittal suture of the right parietal bone. (ii) Incised wound of size 6" x 4"x5" present over the anterior aspect of nap of the neck over the trachea and the trachea and esophagus are incised in the same plane, along with the Jugular arteries. CRLA No.27 of 2017 Page 10 of 22 (iii) Abrasion of size 2" x 2" present over medial aspect of the right thigh above the right knee joint. (iv) Four nos. of abrasions of different size present over left arm. 10. It is also testified by PW9 that he examined the katuri (MOII) and knife (MOI) sent to him by Police with some queries and upon examination, he opined that the injuries found by him during PM examination on the dead body of deceased were possible by the aforesaid Katuri and Knife sent to him and such injuries can cause death of a person in ordinary course of nature. The Doctor PW9 was, however, cross-examined by the defence, but expects giving some suggestion to him, the defence has practically unable to elicit any materials/facts benefitting the defence to dispute the homicidal death of the deceased. It is also a material fact that the defence has not disputed the evidence of PW9 with regard to his opinion as to homicidal death of the deceased. On careful and meticulous examination of evidence on record CRLA No.27 of 2017 Page 11 of 22 together with documentary evidence of FIR under Ext.1 and PM report under Ext.14 as well as the opinion of the PW9 as to query under Ext.15, this Court does not find any justifiable reason to differ with the finding of the learned trial Court that the prosecution has established the homicidal death of the deceased beyond all reasonable doubt. 11. In a case of murder, once the homicidal death of the deceased is found to be established by the prosecution, the next question comes for discussion as to who is/are responsible for such homicidal death of the deceased. Since one of the important circumstances stated to have been established by the prosecution against the convicts is “last seen theory”, this Court straight away proceed to re-appreciate the evidence of PW6 and 10, whose evidence has been considered by the learned trial Court to conclude that “last seen theory” has been established against the convicts. In the pursuit of reappraisal of evidence in this regard, the testimony of CRLA No.27 of 2017 Page 12 of 22 PW10 transpires that on that day (11.08.2014) at about 4PM, he was in his house and at that time, convicts- accused persons Mangala Mantri @ Patu, Raju Mahakud, Lakhia Sanagi and deceased Radhu Sanangi came to his house and asked him for “Handia” (Rice fermented water used as intoxicant) and he told them that he has no Handia. What is most important is the further evidence of PW10 which transpires that at that time, the accused persons were quarrelling with the deceased Radhu Sanangi and thereafter, the accused persons and the deceased went towards Bidasahi. In the cross- examination of PW10, the defence has also elicited that the accused persons were quarrelling with the deceased on that date, but they were not beating him and river Baitarani is on the other side of their village towards which the accused persons and deceased went. 12. Now coming to the evidence of PW6, it appears that PW6 has stated that the occurrence took place on Monday in the evening and at that time, she saw the CRLA No.27 of 2017 Page 13 of 22 accused Mangala Mantri @ Patu, Raju Mahakud and Lakhia Sanangi taking deceased Radhu Sanangi towards the river Baitarani by dragging and when she asked why they were taking the deceased by dragging, one of the accused told her “Tu Kana Janichu” (What do you know). What is important is that PW6 further testified in the Court that on Saturday, she told Tikeswar Sanangi (PW7) that accused persons were taking deceased Radhu Sanangi by dragging towards the river and on the next day, she told about the occurrence to PW1 Fakira Sanangi. It is her evidence that after the occurrence, she went to her parents’ house and as such, could not speak to anyone about the occurrence earlier. It is relevant to note here that the convicts-appellants criticize the evidence on this point that had PW6 known about the convicts taking away the deceased by dragging on the date of occurrence, why she remained mum for 7 days and on that score, the learned counsel for the Appellants has prayed to not to accept the evidence of PW6, but this CRLA No.27 of 2017 Page 14 of 22 Court is of the considered opinion that if the explanation relating to belated disclosure of evidence of last seen as offered by PW6 appears to be genuine or plausible, her evidence on that point can still be taken into consideration and can be acted upon. This Court, therefore, now proceeds to scrutinize the evidence of PW6 on this aspect of belated disclosure of “last seen theory”. It is, of course, true that the defence had sought to contradict PW6 that after the occurrence, she went to her parents’ house, but at the same time, it was elicited from her mouth by the defence that when the accused persons took away the deceased, he(deceased) was near her house and she was able to see all of them and the accused persons were taking the deceased Radhu Sanangi on the next day of Gamha Purnima last year(as on the date of deposition). It is also stated by PW6 that she had told the aforesaid fact to PW7 Tikeswar Sanangi who has also stated in evidence that Radhu Sanangi died on a Monday and PW6 told him on the next Saturday that CRLA No.27 of 2017 Page 15 of 22 the accused persons were taking the deceased Radhu Sanangi by dragging towards the river Baitarani. On the contrary, the defence has not been able to dispute about PW6 telling the occurrence to PW1 on Sunday in her cross-examination. What strikes to the mind of the Court to consider the explanation of PW6 to believable one is that DW1 has admitted in cross-examination that PW1- Fakira Sanangi got to know about the incident from PW6 on her return from Basantpur and, thereafter, he submitted the FIR. It is also admitted by DW1 in cross- examination that the maternal home of PW6 is at village Basantpur. In the aforesaid circumstance and taking into consideration the aforesaid evidence of the witnesses, there appears no unnatural conduct on the part of PW6 intimating PW1 about the convicts last seen with the deceased in the evening of the day of occurrence on Monday and they (convicts) were dragging the deceased towards the river Baitarani, which evidence is strengthened by the evidence of PW10 which transpires CRLA No.27 of 2017 Page 16 of 22 that the accused persons(convicts) and the deceased were seen by him quarrelling each other on 11.08.2014 at about 4PM. The learned trial Court on analysis of evidence has rightly held that PW6 has seen the convicts while taking away the deceased, so also PW10 to have seen the deceased and accused persons on 11.10.2014 at 4PM and they were quarrelling with each other at that time. 13. It is also the evidence of PW9 that he conducted autopsy over the dead body of the deceased on 18.08.2014 and he opined that the time of death of the deceased was 5 to 7 days prior to the time of PM examination and, therefore, the date of death of the deceased according to the medical evidence was in between 11.08.2014 to 13.08.2014, since autopsy was done on 18.08.2014, but the evidence on record clearly reveals that the deceased was found missing from 11.08.2014 on which date he was also last seen with the convicts. In the aforesaid analysis of evidence, it is CRLA No.27 of 2017 Page 17 of 22 clarified that the deceased died on or about 11.08.2014. It is, therefore, a strong circumstance appearing against the convicts to explain by them as to how the deceased died inasmuch as the prosecution has discharged its initial burden of establishing the foundational facts that the deceased was last seen with the convicts on 11.08.2014 and the deceased died on or about 11.08.2014 and consequently, the time gap between both the events was so little to exclude the involvement of any other persons in the commission of crime. 14. Be that as it may, the next item of circumstantial evidence is the recovery of MOI and II at the instance of convicts Mangala Mantri @ Patu and Raju Mahakud. In the context, when the evidence of PW7 is perused, it is found that convict Mangala Mantri @ Patu disclosed to have kept the Katuri (MOII) concealed in the fence of his house and, thereafter, police recorded his disclosure statement under Ext.6. PW7 has also identified his signature thereon under Ext. 6/1 and the signature of CRLA No.27 of 2017 Page 18 of 22 the convict under Ext. 6/2. It is the further evidence of PW7 that the convict Mangala @ Patu Mantri led him and the police to his house and brought out MOII which he had kept concealed in the fence of his house and, thereafter, police seized the Katuri (MOII) under Ext.7. Similarly, it is also stated by PW7 that the convict Raju Mahakud disclosed before the Police to have concealed the knife (MOI) and his disclosure statement was recorded under Ext.4 and thereafter, the convict Raju Mahakud led him and police to the spot and gave recovery of the knife (MOI) which was kept inside the Nala. On the expectation to demolish the evidence of PW7 with regard to giving recovery of MOI and II by the convicts, the defence has cross-examined him, but it could only ended up in consolidating the recovery of MOI and II in the cross-examination by eliciting from him that first the accused persons showed the weapons on their leading to discovery and thereafter, the documents were signed by him; and the Nala from where the knife was CRLA No.27 of 2017 Page 19 of 22 recovered was in Baitarani river and people do not take bath in that place. The above evidence of PW7 with regard to recovery of MOI and II found support from the evidence of PW12 who has reiterated the same, but the defence could not demolish his evidence with regard to recovery of MOI and II. The evidence on record, however, establishes the recovery of dead body of the deceased from river Baitarani and the recovery of MOI & II at the instance of convicts Mangala Mantri @ Patu and Raju Mahakud, which are item of evidence justifying the ingredients of Sec. 201 of IPC against the convicts. On coming back to the evidence of motive behind crime, it appears that PW1 has stated in evidence that the accused persons were suspecting his father to have been practicing witchcraft and black magic which evidence was also consolidated in cross-examination of PW1 by the defence that the deceased Radhu Sanangi was practicing witchcraft and black magic. Hence, it can also safely be CRLA No.27 of 2017 Page 20 of 22 said that the prosecution has proved the motive behind crime. 15. On analysis of evidence on record together with the discussions made hereinabove, this Court has not only found the circumstantial evidence proved against the Appellants firmly established beyond all reasonable doubts, but also the circumstances taken cumulatively unerringly point towards the guilt of the convicts for committing murder of the deceased and it also excludes all other hypothesis consistent with the innocence of the convicts, rather the circumstances have definite tendency and character and establishes the only hypothesis consistent with the guilt of the convicts and, therefore, the learned trial Court has not committed any illegality in convicting the appellants for the aforesaid offences U/Ss. 302/201/34 of IPC. 16. In the result, the criminal appeal stands dismissed. Consequently, the judgment of conviction and order of sentence passed on 29.09.2016 by learned Addl. CRLA No.27 of 2017 Page 21 of 22 Sessions Judge, Keonjhar in S.T. Case No. 13/184 of 2014 are hereby confirmed. (G. Satapathy) Judge D.Dash, J. I Agree (D.Dash) Judge Orissa High Court, Cuttack, Dated the 18th day of April, 2024/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 22-Apr-2024 10:20:34 CRLA No.27 of 2017 Page 22 of 22