The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.669 of 2016 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 4th February, 2013, passed by the learned Sessions Judge, Rayagada, in C.T. No.32 of 2011. Sekhar Huika & Others …. Appellants ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.Biswajit Nayak (Advocate) For Respondent - Mr.SK. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing :30.06.2023 : Date of Judgment:24.07.2023 D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 4th February, 2013 passed by the learned Sessions Judge, Rayagada, in C.T. No.32 of 2011 arising out of G.R. Case No.398 of 2010 corresponding to Seshkal P.S. Case No.16 of 2010 in the CRLA No.669 of 2016 Page 1 of 13 {{ 2 }} Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Rayagada. The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302/201/34 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for two (2) years for the offence under section 302 of the IPC; and undergo rigorous imprisonment for two (2) years and pay fine of Rs.2000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for six (6) months for the offence under section 201 of the IPC. 2. Prosecution Case:- On 08.11.2010, One Bairagi Urlaka, the uncle of the informant (P.W.1), namely, Ramesh Urlaka had been to the village Gurusubadi along with these accused persons, namely, Sekhar Huika, Silli Huika and Gompa Huika and others to attend one Deepawali feast, which was being hosted in the house of Prahallad Bidika. While they were retuning, on the way, these three accused persons went with that Bairagai Urlaka. It is stated that then they started assaulted him when Kasana and Kartika Mandangi (P.W.2) requested them to refrain them from doing so. They were, however, threatened by the accused persons and consequent upon the same, Kasana and Karitka ran away from CRLA No.669 of 2016 Page 2 of 13 {{ 3 }} that spot. It is next stated that Bairagi did not return to house. Therefore, his nephew Ramesh (P.W.1) and other family members went in search of Bairagi. But they could not trace him out. Later on, getting the hint from some whispering of some villagers that the accused persons killed Bariragi and had kept the dead body concealed somewhere; Ramesh (P.W.1) lodged a written report with the Inspector-In-Charge (I.I.C.) of Seshal Police Station (P.S). The I.I.C., having received the written report from Ramesh,
Legal Reasoning
treated the same as the FIR and registering the case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.13) examined the Informant (P.W.1), recorded his statement and also those of other witnesses under section 161 of the Code of Criminal Procedure, 1973 (for short, the 8Code9). He then arrested the accused Sekhar Huika on 13.11.2010 at about 10.00 a.m. It is said that the accused Sekhar, while in police custody, gave the statement to have concealed the dead body of Bairagi (deceased) in the village pond and that he would show the exact location. The statement of the accused was recorded by the I.O. (P.W.12) and others he then led P.W.12 and others to Jilani tank village-Kunjabali and gave recovery of the dead body kept in a gunny bag. Upon recovery of the said dead body, the I.O. (P.W.12), made requisition for securing the presence of CRLA No.669 of 2016 Page 3 of 13 {{ 4 }} Executive Magistrate at the time of holding the inquest. On arrival of the Executive Magistrate (P.W.5), the inquest over the dead body of the deceased was held and the I.O.(P.W.12), prepared the inquest report (Ext.2). The dead body was then sent for post mortem examination by issuing necessary requisition. It is stated that on that day, around 3.30 p.m., accused Sekhar produced a knife, which was under seizure list (Ext.1/1). Around 5.00 p.m., accused Silli Huika and Gumpha Huika were arrested. The I.O. (P.W.12) also seized other incriminating materials in course of investigation and sent those for chemical examination through Court. On completion of the investigation, the I.O.(P.W.12) submitted Final Form placing the accused persons to face the Trial for commission of the offence under section 30302/201/34 of the IPC. 4. Learned S.D.J.M., Rayaga, on receipt of the Final Form, took cognizance of the said offence 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. 5. The defence plea is that of complete denial and false implication. CRLA No.669 of 2016 Page 4 of 13 {{ 5 }} 6. The prosecution, in support of its case, has examined in total thirteen (13) witnesses during Trial. As already stated, P.W.1 is the informant whereas P.W.2 is an eye witness to the occurrence, who claims to have seen the assault made by the accused persons upon the deceased Bairagi. P.W.3 is the wife of the deceased whereas P.W.4 is the witness to the recovery of the dead body of Bairagi tied with stone from the tank and also the knife. The Executive Magistrate, in whose presence, inquest was held, has come to the witness box as P.W.5 whereas P.W.6 is the mother of the deceased and P.W.7 is a co-villager and a witness before whom P.W.2 had disclosed about the initial part of the incident. P.W.11 is a witness, who had seen dead body in the village pond. The Doctor, who had conducted autopsy over the dead body of the deceased has been examined as P.W.13 whereas the I.O. has been examined as P.W.12. 7. 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 14. Out of those, the important are, the FIR (Ext.5), the inquest report (Ext.2), statement of the accused Sekhar (Ext.6), spot map (Ext.8) and the post mortem report (Ext.14). The defence has not examined any witness in support of the plea of denial and false implication. CRLA No.669 of 2016 Page 5 of 13 {{ 6 }} 8. The Trial Court, on going through the evidence of the Doctor (P.W.13) and his report (Ext.14) as also the evidence of other witnesses including the I.O. (P.W.12) and the inquest report (Ext.2), has arrived at a conclusion that Bairagi9s death was homicidal. In fact, this aspect of the case was not under challenge before the Trial court and that is also the situation before us. It is the evidence of the Doctor (P.W.13) that he had noted four external injuries over the dead body of Bairagi and on dissection, he had noticed multiple fractures of temporal bone involving injury to the canine teeth and incisor teeth, which too had been loosened. During his examination, he had noticed haemorragic decomposition of brain matters, which were palpic. As per the evidence of the Doctor (P.W.13) and his report, the 6th, 7th, 8th and 9th ribs had been fractured and his scrotum as well as penis were cut leaving the stumps. All these injuries are said to be ante mortem in nature. This P.W.13 has indicated all those in detail in his report (Ext.14). The I.O. (P.W.12), who held inquest over the dead body of the deceased in presence of the Executive Magistrate (P.W.5) has noted all such external injuries in his report (Ext.2), which has been prepared in the presence of P.W.5. Other witnesses have also stated to have seen the dead body with such injuries. In view of all these evidence remaining unchallenged, we are wholly in agreement with the finding of the Trial Court that Bairagi9s death was homicidal. CRLA No.669 of 2016 Page 6 of 13 {{ 7 }} 9.
Legal Reasoning
Learned counsel for the Appellants submitted that there is no direct evidence to connect these accused persons with the murder of Bairagi. He further submitted that the evidence of P.W.2 that he had seen the accused persons assaulting the deceased and then being threatened by the accused persons, he left the place whereafter Bairagi was not seen is not at all acceptable. He submitted that when as per the prosecution case and as has been stated by the informant (P.W.1) that Kartika and Kasana told him about initial happenings in the incident that the deceased was assaulted by the accused persons, it is only that Kartika (P.W.2), who has been examined as P.W.2 and the other one namely, Kasana, has been withheld. Inviting our attention to the deposition of P.W.2, he pointed out the glaring discrepancies and doubtful circumstances appearing therein for which according to him, no reliance can be placed upon the evidence of P.W.2. He further submitted that the evidence of P.W.3 with regard to the recovery of the dead body, at the instance of the accused and also that of P.W.4 when read with the evidence of P.W.12, cannot be accepted as those differ in material aspects. He, therefore, submitted that the Trial Court did commit the grave error by holding the accused persons guilty of murder of Bairagi as to have intentionally caused the death of killed that Bairagi. CRLA No.669 of 2016 Page 7 of 13 {{ 8 }} 10. Learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt, as has been returned by the Trial Court, contended that the evidence of P.W.2 is wholly believable and, therefore, the Trial Court, viewing the evidence of P.W.2 with the evidence of P.Ws.1, 2, 3 & 6, has rightly convicted the accused persons having very rightly accepting the prosecution evidence as to the recovery of the dead body of Bairagi at the instance of the accused from that pond pursuant to his statement, which he had given while in police custody after his arrest. 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 13) and have perused the documents admitted in evidence marked as Exts.1 to 14. 12. The question posed before us essentially is as to how far the prosecution has proved the charges against the accused persons in establishing their complicity in intentionally causing the death of Bariragi (deceased). Admittedly, no witness has been examined to have seen the death of the deceased taking place and some other subsequent happenings involving role of anybody thereafter till recovery of the dead bdoy. The solitary witness for the prosecution in pointing the finger of guilt at the accused is CRLA No.669 of 2016 Page 8 of 13 {{ 9 }} P.W.2. He states to have seen the accused persons holding the deceased and hitting a stone on his head but he is silent as to what happened in view of such assault upon the deceased. When he claims that he was following the accused persons and the deceased, it is not his evidence that as how so suddenly, the accused persons started assaulting the deceased and what was the reason behind. He is also not stating whether the stone, with which the head of the deceased was hit, was collected from a place itself or any of the accused persons was carrying the same. His evidence again just being given a careful reading, it seems something vague. When he says that the head of the deceases was hit by a stone, he is not stating as to whether one of the accused persons holding the stone hit on the head of the deceased and if by one, who is that accused is not stated by this P.W.2. Furthermore, such statement of P.W.2 appears to be highly improbable that how three accused persons would hit the head of the deceased by means of a stone when his evidence is not in the line that the deceased, for some reason having fallen on the ground, the accused persons carried the stone together thrashed it on his head. He although has stated to have informed P.W.1 about the said happenings and it is also his evidence that one Kasana was with him at the relevant time. The conduct of this witness (P.W.2) is wholly against that of an ordinary human being as it ought to have been in that situation. He thus is not CRLA No.669 of 2016 Page 9 of 13 {{ 10 }} saying that he with that Kasana had any reaction in seeing the same which they had expressed. It is as if this P.W.2 saw the incident in his own eyes and silently returned and he is also not saying to have received any threat from any of the accused persons. Thus, we are not a position to rely the version of P.W.2 to conclude that the prosecution case has been established thereby regarding the deceased being assaulted by those accused persons. 13. Having said above, we are now led to examine the evidence with regard to the recovery of the dead body of Bairagi (deceased) from that pond at the instance of accused Sekhar. As per the evidence of the I.O. (P.W.12), he arrested the accused on 13.11.2010 at 10.00 a.m. His evidence is that said accused Sekhar confessed his guilt before him that he with accused Gumpha and Silli had murdered Bairagi and to have kept the dead body concealed in the village pond, which he would show. This P.W.12 does not state as to if when accused Sekhar made such statement, any other witness was present nearby. First of all, the confessional part is wholly inadmissible but then whether the accused Sekhar had disclosed to have kept the dead body in the village pond, there is no independent witness as per the evidence of the I.O. (P.W.12). He has stated that when the accused Sekhar9s statement was so recorded, which has been admitted in evidence CRLA No.669 of 2016 Page 10 of 13 {{ 11 }} and marked Ext.6 and thereafter accused Sekhar led him and the witnesses to the village pond, but then who are those witness is not in the evidence of P.W.12. P.W.1, who is the informant, does not state to have seen the accused being arrested by P.W.12, but he stands up to speak that the accused, while in police custody, disclosed that he, with other two assaulted the deceased by means of a stone hitting on his head and in anticipation of he being alive, they brought the deceased to the nearby pond whereafter accused Sekhar went to his house and brought a knife and a gunny bag and by means of that knife, cut away the penis and testicles of the deceased and the accused Silu, by means of that knife, cut away the head of the deceased and thereafter, they put the dead body in the gunny bag and threw in the village pond. All these facts which are being stated by P.W.1 is not in the evidence of the I.O. (P.W.12). This P.W.1 does not say that who is that accused who then led the police and other and gave recovery of that gunny bag from inside the pond. During cross- examination, he has stated that four days after the death of the deceased, police came to their village and at the time when the accused gave his statement, so many persons were present. He has also stated that the villagers were suspecting that deceased Bairagi, by practicing whitch craft, was causing immense harm to the villagers and five of the villagers had been the victims of such act. So, from the evidence of P.W.1, it is evident that many CRLA No.669 of 2016 Page 11 of 13 {{ 12 }} persons other than the accused persons were standing as the enemies of the deceased. At this juncture, the evidence of P.W.3, who happens to the wife of Bairagi (deceased) bears great significance. She has stated that first of all, police saw the dead body of her husband in the pond and thereafter, he called the accused persons, although she has stated during her examination in chief that all the accused persons had led the police to the pond and gave recovery of the dead body of her husband (Bairagi). Her evidence, is completely in variance with the evidence of P.W.1 and P.W.12. We are, therefore, of the considered view that the prosecution has not proved the factum of recovery of the dead body being kept in a gunny bag from pond pursuant to the disclosure statement made by any of the accused more particularly accused Sekhar, who having led the police and other witnesses to the place in giving recovery of the same. With such evidence on record, we find that the Trial Court has gone wrong in holding that the prosecution has established the charges against the accused persons beyond reasonable doubt. 14. On the conspectus of the analysis of the evidence let in by prosecution, we are of the view that the finding of the Trial Court that the prosecution has established the charge against accused CRLA No.669 of 2016 Page 12 of 13 {{ 13 }} persons beyond reasonable doubt by leading clear, cogent and acceptable evidence cannot be sustained. 15. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 4th February, 2013, passed by the learned Sessions Judge, Rayagada, in C.T. No.32 of 2011 are hereby set aside. Since the accused persons, namely, Sekhar Huika, Gumpa Huika and Silli Huika are on bail, their bail bonds stand discharged. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 24-Jul-2023 14:48:45 CRLA No.669 of 2016 Page 13 of 13