The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.75 OF 2012 (A) AND CRLA NO.564 OF 2012 (B) & CRLA NO.436 OF 2014 (C) In the matter of an Appeal as at (A) under Section-383 of the Code of Criminal Procedure, 1973 and Appeals as at (B) & (C) under Section-374(2) of the Code of Criminal Procedure, 1973 from the judgment of conviction and the order of sentence dated 17th April, 2012 passed by the learned Adhoc Additional Sessions Judge (F.T.C-1), Baleswar, in Sessions Trial No.48/185 of 2009. …. Appellants ---- Chagulia Singh (In JCRLA No.75 of 2012) Kalia Singh (In CRLA No.564 of 2012) & Narayan Majhi (In CRLA No.436 of 2014) -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Sk. Zafarulla, (Advocate in JCRLA No.564 of 2012 & CRLA No.436 of 2014). Mr. Biswajit Nayak, (Advocate in JCRLA No.75 of 2012) For Respondent - Mr.S.K. Nayak, Additional Government Advocate. (In the JCRLA & CRLAs) CORAM: MR. JUSTICE D.DASH MR. JUSTICE A.C.BEHERA DATE OF HEARING: 22.09.2023: DATE OF JUDGMENT: 03.10.2023 JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 1 of 16 {{ 2 }} D.Dash,J. Since in all the Appeals, the judgment of conviction and the order of sentence dated 17th April, 2012 passed by the learned Adhoc Additional Sessions Judge (F.T.C-1), Baleswar, in Sessions Trial No.48/185 of 2009 arising out of C.T. Case No.1435 of 2008 corresponding to Remuna P.S. Case No.102 of 2008 on the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baleswar have been called in question, those were heard together for being disposed of by this common judgment. The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302/323/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, each of them has been sentenced to undergo imprisonment for life and rigorous imprisonment for three months under Section- 302/34 and 323/34 of the IPC respectively with the stipulation that the sentences shall run concurrently. 2. Prosecution Case:- On 22.09.2008, which was a Saturday around 8 pm, Sambhunath (deceased), his wife-Ruimani (Informant-P.W.14) were sitting on the verandah of their house. On that day, the parents of Sambhunath had gone to the house of their daughter and as such were absent at home. It was stated that during the time, when Sambhunath (deceased) and JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 2 of 16 {{ 3 }} Ruimani (Informant-P.W.14) were on the verandah of the house, brother of Ruimani namely, Kalia Singh (accused) and two other accused persons namely, Narayan and Chagulia arrived and talked with Sambhunath. In course of discussion, those three accused persons said to have dealt blows on Sambhunath by means of bhujali and katuri. Ruimani (Informant-P.W.14) when raised protest, the accused persons outraged her modesty. They caught hold of her heir and assaulted and thereafter lifted Sambhunath to the verandah and went on giving blows on him. They finally took him somewhere in the night. Ruimani (Informant-P.W.14) in that helpless condition and out of fear had to remain in the house. When her parents-in-laws arrived, she disclosed the incident before them and they went out to search Sambhunath, but failed to trace out. A written report then being lodged by Ruimani (Informant- P.W.14) with the Officer-In-Charge, Remuna Police Station, the same was treated as F.I.R. (Ext.7) and upon registration of the case; the OIC (I.O.-P.W.16) took up investigation. 3. In course of investigation, the Investigating Officer (I.O.-P.W.16) examined the Informant (P.W.14) and other witnesses. He issued the requisition for medical examination of the Informant (P.W.14). The dead body being found lying in a paddy field, the I.O. (P.W.16) visited JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 3 of 16 {{ 4 }} the place and held inquest over the said dead body in presence of witnesses and prepared the report to that effect, Ext.1. He also prepared the spot map, Ext.12. The I.O. (P.W.16) then seized the blood stained and sample earth and other incriminating articles. On 29.09.2008, the I.O. (P.W.16) arrested the accused persons from the house of accused- Narayan. It was stated that accused Kalia while in Police custody disclosed who had kept bhujali near a Neem tree and stated that if he would be taken that place, he would give recovery of that bhujali. Accordingly, accused-Kalia led the I.O. (P.W.16) and other witnesses to the particular place and is said to have given the recovery of the bhujali. The I.O. (P.W.16) had recorded the statement of said accused-Kalia vide Ext.13. It was also stated that accused-Narayan and Chagulia having disclosed to have kept two bamboo handles, those weapons were recovered at the instance of the accused persons and seized under seizure lists, Ext.11 and Ext.16 respectively. The statements of accused persons were separately recorded vide Ext.13, Ext.14 and Ext. 15. The dead body of the deceased-Sambhunath was sent for postmortem examination by issuing requisition. The I.O. (P.W.16) seized the wearing apparels of the deceased under seizure list and thereafter, took steps to send the seized incriminating articles for chemical examination through Court. In course of investigation, he examined other witnesses JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 4 of 16 {{ 5 }} too. On completion of the investigation, he submitted the Final Form placing the accused persons to face the Trial for commission of the offences under section 302/201/506/354/323 read with 34 of the IPC. 4. Learned S.D.J.M., Baleswar, 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 offences against the accused persons. 5. In the Trial, the prosecution has in total examined sixteen (16) witnesses, who are P.W.1 to P.W.16. As already stated P.W.14 is the Informant, who had lodged the F.I.R. (Ext.7) and she is none other than the wife of the deceased, in whose presence, the occurrence took place and continued till the accused persons took away her husband. P.W.1 and P.W.2 are the witnesses to the recovery of the dead body, P.W.3 who is co-villagers and is an eye witness whereas P.Ws.4 and 7 are the witnesses in respect of later part of the incident. The Doctor who had conducted autopsy over the dead body of the deceased is P.W.9; whereas the other Doctor who had examined the Informant (P.W.14) has been examined as P.W.10. The I.O. has come to the witness box at the end and has been examined as P.W.16. JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 5 of 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 22. Out of those; important
Legal Reasoning
are the FIR (Ext.7); inquest report (Ext.1); post mortem report (Ext.4). The report of medical examination of the Informant (P.W.14) has been admitted in evidence and marked as Ext.6. The disclosure statement of the accused persons are Ext. 13, Ext.14 and Ext.15 and the corresponding seizure lists are Ext.17, Ext.18 and Ext.19. The Chemical Examiner’s report has been admitted in evidence and marked Ext.22. 6. The accused persons have taken the plea of complete denial. It was said that accused Kalia was having dispute with his sister, Ruimani (Informant-P.W.14) regarding the partition of their ancestral property. The husband of Ruimani namely, Sambhunath was having criminal antecedent and for his criminal activities, several times in past he had been assaulted by the people of the locality. It was said that Sambhunath might have died after having received the injuries from those persons who were highly disturbed on account of the involvement of the deceased in such objectionable deeds. From the side of accused persons, two witnesses have been examined as D.W.1 and D.W.2. 7. The Trial Court, on examination of evidence and upon their scrutiny from different angles at its level, has held that the prosecution Page 6 of 16 JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 {{ 7 }} has proved the charges under section-302/323/34 of the IPC against the accused persons beyond reasonable doubt. Thus, the accused persons having been convicted for commission of offence under section- 302/323/34 of the IPC, they have been sentenced as aforestated. 8. Sk. Zafarulla, learned Counsel for the Appellants (accused persons-Kalia & Narayan) submitted that the Trial Court is not right in accepting the version of P.W.14 (Informant) as credible. He further submitted that as per the prosecution case, this P.W.14 being the sole eye witness to the occurrence, her evidence as to the happening in the said incident till her husband was taken away by the accused persons especially as to the individual role of the accused persons greatly differ from the evidence of P.Ws.3 and 4. He submitted that the evidence regarding details of the happening in the said incident as has been spelt out by P.Ws. 3, 4, 7 and 14 are wholly irreconcilable. It was alternatively submitted that in so far as accused-Narayan is concerned, even accepting the version of P.W.14, he ought to have been held liable for commission of offence under section-323 of the IPC with the aid of section-34 of the IPC. He submitted that the evidence of all the above four witnesses do not show any such circumstance or other happenings from which it can be said that accused-Narayan was carrying the common intention with accused-Kalia in giving the fatal blows upon the JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 7 of 16 {{ 8 }} deceased. When it reveals that accused-Kalia being the brother-in-law of the deceased was having dispute in relation to their landed property with his sister-P.W.14 and this accused-Narayan even was having no knowledge of the intention of accused-Kalia in intentionally death of Sambhu by giving fatal blows by means of bhujali ought not to have been fastened with the criminal liability of having committed the offence under section-302 of the IPC with the aid of section-34 of the IPC. He further submitted that in view of evidence on record, the accused-Kalia ought not to have been held guilty for intentionally committing the death of Sambhunath and his criminal liability on the basis of the evidence available on record ought to have been one under section-302 of the IPC.
Legal Reasoning
9. Mr. Biswajit Nayak, learned Counsel for the Appellant (accused- Chagulia) reiterating the submission of the Sk. Zafarulla, learned Counsel for the accused persons-Kalia and Narayan submitted that the evidence of P.Ws.3, 4, 7 and 14 are not credible to form the basis of conviction of the accused persons. He contended that even accepting the version of those witnesses in so far as the accused-Chagulia is concerned, his liability would not attract the offence under section- 302/34 of the IPC. He submitted that the evidence on record is wholly insufficient to conclude that this accused-Chagulia had prior meeting of JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 8 of 16 {{ 9 }} mind with accused Kalia and shared the common intention with accused-Kalia, who is said to have dealt the fatal blow by means of bhujali on the head of the deceased. He further submitted that the circumstances emanating from the evidence of the above witnesses, negate the case of attraction of the provision of section-34 of the IPC to rope in accused-Chagulia for commission of the principal offence under section-302 of the IPC. 10. Mr.S.K. Nayak, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt of the accused persons, as has been returned by the Trial Court, contended that the evidence of P.Ws.3, 4, 7 & 14 are consistent in so far as the material particulars as to the incident especially, the role of the accused persons are concerned and their evidence, being read in entirety, would reveal that they are truthful witnesses and their versions are the true reproduction of what they had seen at the relevant time, which are free from any infirmity. 11. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 16) and have perused the documents admitted in evidence marked as Exts.1 to 22. JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 9 of 16 {{ 10 }} 12. In order to address the rival submissions so as to find out the complicity of the accused persons, let’s undertake the exercise of the scrutiny of the evidence of P.W.14, P.W.3, P.W.4 and P.W.7, whose evidence have been relied upon the Trial Court in respect of the role played by all these accused persons in the incident and their culpability thereof. P.W.14 is the wife of the deceased. She states to have seen the accused persons arriving in their house. At the risk of repeatation, it be placed here that said accused-Kalia is the brother of P.W.14 and the other two accused persons namely, Narayan and Chagulia are not stated either to be in any way related to Kalia or P.W.14 but it is stated by P.W.14 that they too had gone with accused-Kalia. It is her further evidence that the accused persons having arrived in the house of the deceased started arguing with him. This part appears to be exaggerated, when the F.I.R. narration on this particular aspect is gone through. P.W.14 in the F.I.R. had stated that accused persons arrived in their house and talked with her husband. It does not speak of any argument which refers to an aggravated from indicative/ suggestive of the aggressive mood of the accused persons from the beginning. During trial, P.w.14 when now states that they came and argued with her husband, as per the F.I.R. version, the mood of the accused persons is JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 10 of 16 {{ 11 }} not stated to be running at a high tamper. It is narrated in the F.I.R. that sometime after the discussion, accused-Narayan caught hold the hands of Sambhunath (deceased), when other two accused persons namely, Kalia and Chagulia assaulted Sambhunath by means of bhujali and katuri. This P.W.14 in her evidence has also stated that Narayan caught hold the hands of her husband and Kalia dealt blows by means of bhujali. She further states that accused-Chagulia dealt blows on the person of the deceased by a katuri. The F.I.R. narration as well as the evidence of P.W.14 run on the score that when she (P.W.14) went to rescue Sambhunath, the accused persons pushed her for which she fell on the ground and she then states that the accused persons dragged her husband towards village Durgadevi. The dead body of Sambhunath was found lying in his paddy field. P.W.14 does not say that when accused- Kalia arrived, he was seen carrying bhjujali with him and she has also not stated that other accused namely, Chagulia was carrying a katuri. As would be evident from the evidence of P.W.14, the accused-Narayan has however not used any weapon nor was carrying anything with him when he arrived. P.W.14 stated that in course of discussion, Narayan caught hold the hands of the deceased and thereafter accused-Kalia dealt bhujali blows on his head. The evidence of P.W.14 does not reveal that accused-Narayan had given any indication or direction to accused-Kalia JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 11 of 16 {{ 12 }} after having caught hold the hands of the deceased. It is also not there in the evidence that accused-Narayan knew that accused-Kalia was having a bhujali with him or that it was seen by him in the hand of accused- Kalia. It is not stated by any of the witnesses that accused-Narayan had any such animosity with the deceased. The evidence of P.W.3 is omnibus in nature. He states that all the accused persons were dealing blows with bhujali and katuri upon the Sambhunath. P.W.4 has also stated in the same vein that accused persons armed with bhujali and katuri were found dragging Sambhunath. He has not stated as to who was holding the bhujali, who was holding katuri or that any of them was not armed. P.W.7, the other eye witness has stated that he had seen the accused persons dragging the deceased on the road. It is his evidence that all the accused persons were armed with weapons. The above being the ocular testimony of P.Ws.14, 3, 4 and 7, the medical evidence coming from the lips of P.W.9, the Doctor, who had conducted postmortem examination over the dead body of the deceased, is to the effect that he had noticed five incised wounds on the dead body of Sambhunath. Out of those, four are on the head and one, on the dorsum of left foot. It is also his evidence that he had noticed four abrasions over the scrotum, groin, knee and fracture on the right elbow joint. As JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 12 of 16 {{ 13 }} per the evidence of P.W.14, who is the star witness for the prosecution and asserts to have seen the assault by the accused persons upon the deceased; accused-Kalia had dealt bhujali blow on the head of the deceased, and it is said that accused-Narayan was catching hold of the hands of the deceased. Thus, the authorship of the four incised wounds on the head of the deceased is attributed to accused-Kalia and those are said to have been caused by bhujali, a sharp cutting weapon. When P.W.14 had stated that accused-Chagulia assaulted the deceased by a katuri, it is not stated that he had given successive blows. The consequence of said blow is referable to the incised wound on the dorsum on left foot since P.W.14 is not stating that accused-Chagulia had given the blow by means of katuri on the head region of the deceased. It is just her evidence that accused-Chagulia dealt the blows on the person of the deceased. 13. The prosecution is not led any evidence that these three accused persons had any prior meeting nor it is stated that they together had started the journey to the house of the deceased, although it is said they arrived together. No such evidence is forthcoming as regards any discussion amongst them or even us to exchange of indication amongst themselves silently by gestures nor it is said that any one was directed the other in any manner. It is also not surfacing from the evidence that JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 13 of 16 {{ 14 }} the accused-Narayan and Chagulia had the knowledge that accused- Kalia was having dispute with his sister, wife of the deceased- Sambhunath or animosity with Sambhunath and that when they went with accused-Kalia that was Kalia carrying bhujali which they had noticed or were in a position to know. In so far as accused Chagulia is concerned, P.W.14 does not states that he was even carrying katuri, when he arrived at the spot. It is also not stated that accused-Chagulia having kept that katuri concealed under the wearing apparels brought it out and passed into service by dealing blows on the deceased. 14. In the above state of affairs, in the evidence in our considered view accused-Narayan and Chagulia who are not the authors of four numbers of fatal injuries on the head of the deceased which are attributed solely to the accused-Kalia, they cannot be said to have played their role as aforestated in furtherance of common intention so as to be held liable for the role played and act done by accused-Kalia. Thus while placing reliance on the evidence of P.W.14, we are of the view that they would be liable only for their individual acts but not for the act of accused-Kalia in saying that their individual acts were in furtherance of the common intention of intentionally causing the fatal blows on Sambhunath leading to his death. JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 14 of 16 {{ 15 }} On a conspectus of analysis of the evidence hereinabove, this Court finds that the prosecution has proved its case against the accused- Kalia to have committed the murder of Sambhunath beyond reasonable doubt and in assaulting P.W.14. Thus, we hold accused-Kalia to be liable for commission of offence under section-302/323 of the IPC for having intentionally caused the death of Sambhunath and causing voluntarily hurt upon the Ruimani (P.W.14). The judgment of conviction and order of sentence passed by the Trial Court in respect of accused-Kalia are hereby confirmed. Accordingly, the CRLA No.564 of 2012 stands dismissed. Accused –Kalia being on bail, he is directed to surrender before the Trial Court forthwith to serve out the sentence. We hold the accused-Narayan to be liable for commission of offence under section-323 of the IPC. Accordingly, the sentence imposed by the Trial Court as against accused-Narayan for the above offence under section-323 of the IPC being confirmed, his conviction and sentence for the commission of the offence under section-302 of the IPC are set aside. While holding accused-Chagulia to be liable for commission of the offence under section-323/326 of the IPC; we set aside his conviction and sentence for the offence under section-302 of the IPC. JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 15 of 16 {{ 16 }} Accordingly, he is sentenced to undergo rigorous imprisonment for seven (7) years for commission of the offence under section-326 of the IPC and rigorous imprisonment for three(3) months for the offence under section-323 of the IPC with the stipulation that those would run concurrently. With the above modification as to judgment of conviction and order of sentence in so far as accused Narayan and Chagulia are concerned; the CRLA No.436 of 2014 and JCRLA No.75 of 2012 filed
Decision
by them stand disposed of. Mr. A.C.Behera, J. I Agree. (D. Dash), Judge. (A.C.Behera), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 11-Oct-2023 15:03:37 JCRLA No. 75 of 2012, CRLA Nos.564 of 2012 & 436 of 2014 Page 16 of 16