The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.109 of 2018 (From the judgment of conviction and order of sentence dated 05.12.2017 passed by the learned Sessions Judge, Nuapada in C.T. Case No.80 of 2013 and S.T. No.60 of 2014) Prabhulal Bandichhor …. Appellant -versus- State of Odisha …. Respondent Advocates appeared in the case: For Appellant : -versus- Mr. D.P. Dhal, Sr. Adv. For Respondent : Mr. S. K. Nayak, AGA CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-04.07.2023 DATE OF JUDGMENT:-24.07.2023 Dr. S.K. Panigrahi, J. 1. In this CRLA, the Convict/ Appellant (Prabhulal Bandichhor) has assailed the correctness of the judgment of conviction and order of sentence dated 05.12.2017 passed by the learned Sessions Judge, Nuapada, in C.T. Case No.80 of 2013 and S.T. No.60 of 2014, whereby the Appellant has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 1 and in default of payment of fine, to further undergo Rigorous Imprisonment of one year for the offence under Section 302 of the I.P.C., to undergo imprisonment for two years and to pay a fine of Rs.2000/- and in default of payment of fine to further undergo simple imprisonment for two months under Section 25(1-B)(a) of the Arms Act and to undergo simple imprisonment for three years and to pay a fine of Rs.3000/- and in default of payment of fine to further undergo simple imprisonment for three months under Section 27(1) of the Arms Act. It was further directed that the substantive sentences shall run concurrently. I. CASE OF THE PROSECUTION: 2. The prosecution case in brief is that on 31.05.2013 night after having dinner, the informant and the members of his family went to sleep in the house. The eldest son of the informant slept on the roof of the house along with his wife and his eldest daughter. Beside them, the younger son and the son-in-law of the informant had slept there. On 01.06.2013 morning at about 6.00 A.M. the younger son of the informant woke up and saw and being frightened came down from the roof and called the informant. The informant along with the members of his family went to the roof and saw that the elder son and the daughter-in-law of the informant were lying dead. The blood was oozing from their mouths. They died due to gunshot injuries. Thereafter the informant lodged F.I.R. at the Police Station. The I.I.C., Boden P.S. Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 2 registered P.S. Case No.72 dated 01.06.2014 under Sections 302/ 109 of I.P.C. read with Sections 25 and 27 of the Arms Act and investigation of the case was taken up. On completion of investigation, the I.O. submitted charge sheet under section 302/ 109 of the I.P.C. read with Sections 25 (1-B) (a)/27 of the Arms Act against the accused. II. APPELLANT’S SUBMISSIONS:
Legal Reasoning
3. Learned counsel for the Appellant completely denied the charges pressed herein and decried false implication. It was submitted that the judgment of conviction and sentence passed by the trial is unjust, illegal, improper and without proper verification of the case record which is not sustainable in the eye of law for the trial court failed to consider that this case does not lie within the four corners of under Section 302 I.P.C. 4. He submitted that there are material contradictions in the statement of the witnesses and that the conviction is based on surmises and conjectures. 5. He has further contended that the appellant was not provided an opportunity to defend his case properly as all the witnesses declined during trial in their cross-examination and though an application under Section 311 of Cr.P.C. was filed for recalling them, but the same was rejected for which the case of the prosecution should be viewed with suspicion. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 3 6. Moreover, the case of the prosecution is based on circumstantial evidences. On the other hand, the prosecution has failed to complete the chain of circumstances in order to link the appellant in the alleged crime. 7. Learned Counsel further contended that P.W.5 and P.W.7 have categorically stated that on the fateful night while they were watching C.D. player in their village road, they saw the accused persons came in a motor cycle and the accused Prabhulal Bandichhor went to his father-in-laws house and returned back and sat on the motor cycle driven by the appellant. But, it appears the prosecution planted these two witnesses in order to rope the appellant under Section 109 of I.P.C. III. SUBMISSIONS ON BEHALF OF STATE: 8. The prosecution, in order to bring home the charges against the accused examined 17 witnesses and exhibited the documents marked as Ext.1 to Ext.24 in support of its case. P.W.1 is the informant, P.W.2 is the wife of the informant, P.W.3 is the daughter of the informant, P.W.4 is the son of the informant, P.W.5 and P.W.7 are the occurrence witnesses, P.W.6 is a witness to inquest, P.W.8 and P.W.9 are the immediate neighbourers of the informant, P.W.10 and P.W.12 are the witnesses to seizure of pistol, P.W.11 is a co-villager of village Dulkamunda, P.W.13, P.W.14 and P.W.15 are the witnesses to seizure of physical exhibits of the deceased, P.W.16 is the Medical Officer who Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 4 conducted postmortem over the dead bodies of the deceased persons and P.W.17 is the Investigating Officer. 9. The prosecution has submitted that from the unassailed testimony of the P.Ws. 1, 2, 3, 4, 5 and 7 as well as the medical evidence i.e. the evidence of the doctor (P.W.16), it can be safely concluded that, none else but the accused is the author of the injuries found on the body of the deceased. 10. The prosecution submitted in favour of the findings returned by the trial court in holding the accused to be the author of the crime. According to him, the Trial Court on detail analysis of evidence on record did commit no error in returning the finding that the prosecution has established its case against the accused in causing the murder of the deceased beyond reasonable doubt and therefore, the judgment of conviction and order of sentence are not liable to be interfered with. IV. COURT’S ANALYSIS AND REASONING: 11. Keeping in view the submissions made, we have carefully read the judgment passed by the trial court. We have also bestowed our due attention to the evidence on record, both oral and documentary. 12. P.W.1, the informant has deposed that the deceased Dhaneswar was his son and the deceased Nirupama was his daughter-in-law. The Appellant is his son-in-law. He also knew the accused Siba Nial (Appellant No.1), the nephew of Appellant. On 31.05.2013 at Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 5 about midnight the occurrence took place on the roof of his house. His son Dhaneswar and his daughter-in-law Nirupama had come to his house to attend the ’KUMARI BRATA’ of his granddaughter. At night, both of them were sleeping on the roof of the house. His younger son namely Dhanjaya Kata and his younger son-in-law Kishor Bachha were also sleeping on the roof. Another small boy was also sleeping there. On the next morning his younger son Dhanjaya came down and called him and his wife to up-stair. Both of them went to the roof and saw that Dhaneswar and Nirupama were shot dead. There was bleeding from their mouth, nose and year. They were shot at their heads. Their wearing apparels were stained with blood. He also found empty cartridges there. There was no good relationship between Prabhulal and Dhaneswar due to property dispute. There was also no good relationship between the Appellant and Nirupama as stated by him. 13. P.W.2 stated that the informant is her husband. The deceased Dhaneswar was her son and the deceased Nirupama was her daughter-in-law. Prabhulal is her son-in-law. She also knew the accused Siba Nial, the nephew of the Appellant. On 31.05.2013 at about midnight the occurrence took place on the roof of her house. She has corroborated the deposition of P.W.1. 14. P.W.3 stated that the informant is her father. The deceased Dhaneswar was her brother and the deceased Nirupama was her Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 6 sister-in-law. The Appellant is her husband. She also knew the accused Siba Nial, the nephew of her husband. On 31.05.2013 at about midnight the occurrence took place on the roof of her house. Her brother Dhaneswar and her sister-in- law Nirupama had come to their house to attend the ’KUMARI BRATA’ of her niece. She has also corroborated the deposition of P.Ws.1 and 2 and reiterated the same. 15. P.W.4 stated that the deceased Dhaneswar was his elder brother. The deceased Nirupama was his sister-in-law. The Appellant is his brother-in-law. The accused is the uncle of Siba Nial. On 31.05.2013 the occurrence took place in the night on the roof of their house. On that night he along with his brother Dhaneswar, sister-in-law Nirupama, brother-in-law Kishor Bachha and two children were sleeping on the roof. At 6.30 A.M. he woke up and saw that both Dhaneswar and Nirupama were lying dead in a pool of blood. Both of them had received gunshot injuries on their heads. Two empty cartridges were lying there. There was bleeding from the mouth and ear of his brother. There was dispute between Dhaneswar and the Appellant relating to landed property. He called the other members of the family to the spot. The police came and conducted inquest over the dead bodies of his brother and sister- n-law. The police prepared the inquest reports and he signed therein. He proved the inquest report of Dhaneswar Kata as Ext.2 and his signature thereon as Ext.2/1. He Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 7 also proved the inquest report of Nirupama as Ext.3 and his signature thereon as Ext.3/1. During cross-examination by the defence he stated that his brother Dhaneswar married in the house of Achuta Behera, who is a Brahmin. There was love marriage between Dhaneswar and his sister-in-law. They are ’Gouda’ by caste. After marriage both of them stayed at Kopia for one year. Then they stayed at a nearby village for about three to four months. As both of them fled away from their houses after marriage they stayed at village Kopia. Dhaneswar married Nirupama against the will of their family. At that time the members of Behera family had abused his father and quarreled with him. Muna is the brother of Nirupama. 16. P.W.5 stated that he knew the informant. He knew the deceased persons. He knew the accused. The incident took place at night on 31.05.2013. There was CD program on the village road. He was witnessing it along with Krutibash Chhatria and others. At 12.30 a.m. he went out to urinate. Krutibash Chhatria accompanied him. At that time he saw that accused SibaNial was driving a motorcycle and Prabhulal was the pillion rider. At about a distance of 100 meters Siba Nial parked the vehicle. The Appellant went to his father-in-law’s house. After five minutes he heard two sounds "DHO DHO". The Appellant returned and sat on the motorcycle and Siba Nial drove it. He then returned to C.D. program. On the next day morning he heard that someone Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 8 killed Dhaneswar Kata and his wife Nirupama Kata by firing. He doubted that as the Appellant came on that night, he might have done. On 09.06.2013 he had gone to Agriculture office to collect ’Bihana’ (seeds). Krutibash Chhatria had accompanied him. They went to the P.S. to find out the progress of the case. At that time police babu was examining Siba Nial. While in police custody he heard accused Siba Nial saying that he and the Appellant wrapped the pistol by a piece of black cloth, kept it in a polythene packet, dug the earth in their field situated on the western direction of the village and covered it with earth and bamoor thorns. Then SibaNial led the police party to the spot. He and Krutibash Chhatria accompanied the police to the spot. There accused Siba Nial removed the earth and gave recovery of that pistol and one magazine to the police. 17. The police seized those materials by preparing the seizure list and he signed therein. He proved the seizure list as Ext.4 and his signature thereon as Ext.4/1. What Siba Nial stated before police, the police recorded it and read it over to him. He proved the said statement as Ext.5 and his signature thereon as Ext.5/1. He also proved the signature of accused Siba Nial as Ext.5/2. On the date of murder the police seized from the spot blood sample, two empty cartridges, one bed sheet, one banyan, one bloodstained chappal and prepared the seizure list and he signed therein. He proved the seizure list as Ext.6 and his signature thereon as Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 9 Ext.6/1. He also proved M.O.I as the pistol seized by the police at the instance of Siba Nial and M.O.II as the magazine seized by the police at the instance of SibaNial. He proved M.O.III as the chapal seized by the police at the instance of Siba Nial and M.O.IV as the empty cartridge seized by the police at the instance of Siba Nial. There was previous dispute between the Appellant and Dhaneswar Kata relating to family property as stated by him. The defence declined to cross- examine P.W.5. 18. P.W.6 has deposed that he knew the informant, deceased persons as well as the Appellant. The occurrence took place in the year 2013 at midnight. In the next morning he went to the spot and saw that Dhaneswar Kata and Nirupama were lying dead. They had received gunshot injuries. on their heads. Empty cartridges were lying at the spot. Police babu conducted inquest over their dead bodies and prepared inquest reports and he signed therein. He proved Ext.2/2 and Ext.3/2 as his signatures on the inquest reports. There was previous dispute between Dhaneswar Kata and the Appellant relating to family properties as stated by him. 19. P.W.7 stated that he knew the informant, the deceased persons and both the accused. The incident took place at night on 31.05.2013. There was CD program on the village road. He was witnessing it along with Manoranjan Behera and others. At 12.30 a.m. he went out to urinate. Manoranjan Behera accompanied him. At that time he saw that accused Siba Nial was driving a Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 10 motorcycle and the Appellant was the pillion rider. At about a distance of 100 meters SibaNial parked the vehicle. Prabhu Bandichhod went to his father-in- law’s house. After five minutes he heard two sounds "DHO DHO". Prabhulal Bandichhod returned and sat on the motorcycle and Siba Nial drove it. He then returned to C.D. program. On the next day morning he heard that someone killed Dhaneswar Kata and his wife Nirupama Kata by firing. He doubted that as the Appellant came on that night, he might have done. On 09.06.2013 he had gone to Agriculture office to collect ’Bihana’ (seeds). Manoranjan Behera had accompanied him. They went to the P.S. to find out the progress of the case. At that time police babu was examining Siba Nial. While in police custody he heard Siba Nial saying that he and the other accused the Appellant wrapped the pistol by a piece of black cloth, kept it in a polythene packet, dug the earth in their field situated on the western direction of the village and covered it with earth and bamoor thorns. Then, Siba Nial led the police party to the spot. He and Manoranjan Behera accompanied the police to the spot. There accused Siba Nial removed the earth and gave recovery of that pistol and one magazine to the police. The police seized those materials by preparing the seizure list and he signed therein which he proved as Ext.4/2. What Siba Nial stated before police, the police recorded it and read it over to him. He proved his signature on the statement as Ext.5/3. On the date Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 11 of murder the police seized from the spot blood sample, two empty cartridges, one bed sheet, one banyan, one bloodstained chappal and prepared the seizure list and he signed therein. He proved his signature on the seizure list as Ext.6/2. He also supported the M.Os. already marked as M.O.I to M.O. IV. There was previous dispute between the Appellant and Dhaneswar Kata relating to family property as stated by him. He has corroborated the stance of P.W.5. 20. P.W. 16 stated that on 01.06.2013 he was working as Medical Officer at C.H.C., Boden. On that day on police requisition he conducted postmortem over the dead body of Dhaneswar Kata, S/o. Hrushikesh Kata of village Dharanimal, P.S. Boden, District Nuapada and found as follows;- a. punctured lacerated wound of size 1cm x 1cm on the scalp of the center of the middle of the both parietal amines. b. on shaving the hairs surrounding wound there was abraded collar of 1mm diameter uniformly all around and not touting detected. c. One punched injury just underneath the skull wound, beveling of inner trouble in bain medial surface of both the parietal lobe, purpose callosum, mid brain lacerated. d. A deformed bullet was found adhere to the pituitary fossa, mild subarachoind haemorrhage on both the hemisphere. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 12 21. The above mentioned external and internal injuries were ante- mortem in the nature. The external injury found on the head could have been due to rifle firearm bullet. The cause of death was cranio-cerebral injury. The range of firearm injury was beyond the range of flame and powder. Firing was not from close range. The time of death was in between 12 to 18 hours from the time of autopsy. He had removed the bullet from the dead body of Dhaneswar Kata and handed it over to the escort party who had brought the dead body to postmortem centre. He proved the postmortem report as Ext.9 and his signature thereon as Ext.9/1. 22. In this case the F.I.R. lodged by the informant reveals that on 31.05.2013 the son of the informant Dhaneswar Kata and his daughter-in- law Nirupama Kata were sleeping on the roof of the house. On the next day morning Dhananjaya Kata, his younger son came down and shouted. Thereafter the informant went to the roof and saw that Dhaneswar Kata and Nirupama Kata were shot dead and there were bullet injuries on their heads. He also found empty Cartridge Cases(Khokas) near the spot. He lodged the F.LR. which revealed no names of the accused persons. But during the investigation the involvement of the accused came to light. The perusal of the testimonies of P.W.s 1, 2, 3, 4, 5, 6, 7 and 8 clearly reveals that there was previous dispute between the Appellant and the deceased persons. P.W.3 who is the wife of the Appellant has deposed before the Court that there was no good Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 13 relationship between Dhaneswar and the Appellant due to property dispute. There was also no good relationship between Prabhulal and Nirupama. Besides this witness the property dispute of Prabhulal Bandichhor with deceased Dhaneswar Kata and deceased Nirupama Kata have been categorically stated by almost eight of the P.Ws including the informant. In this case P.W.5 and P.W.7 are the most vital witnesses though they had not witnessed the murder of the deceased persons being shot by the accused and another as eye witnesses, but they witnessed the circumstance that gathers. credible inspiration about the commission of the offences by accused Siba Nial and another. 23. P.W.5 and P.W.7 have categorically stated that on the fateful night there was a C.D. Programme on the village road. At about 12.30 A.M. they went out to urinate and they saw that Siba Nial and the Appellant came by a motorcycle. Siba Nial was driving the motorcycle and the Appellant was the pillion rider. At a distance of 100 metres Siba Nial parked the vehicle. The Appellant went to his father-in-law’s house. After five minutes they heard two sounds "DHO DHO". Then the Appellant returned, sat on the motorcycle and Siba drove that. The testimonies of these witnesses cannot be evaluated less than the eye witnesses as they have direct knowledge about the arrival of the accused with another to the place of occurrence just before the commission of the offences. Both the P.W.s also heard the sound Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 14 of gunshot a few minutes after the Appellant climbed the roof where the deceased persons were slept. Moreover their evidence is corroborated by the evidence of P.W.8 and P.W.9. 24. P.W.8 who is the immediate neighbor of the occurrence house stated that at midnight of the date of occurrence he heard motorcycle sound and the motorcycle stopped there. After a few minutes again the motorcycle was started and ran away. P.W.9, the wife of P.W.8, the immediate neighbor of the occurrence house also stated that at about 1 A.M. night she heard the sound of a motorcycle which stopped near their house. After few minutes she heard sounds of crackers for two times and then she heard a sound of motorcycle that ran away. Their testimony corroborates with the testimonies of P.W.5 and P.W.7. During investigation of the case Siba Nial had confessed while he was in police custody and the confessional statement was recorded u/s. 27 of the Indian Evidence Act which is there on the record marked as Ext.5. At the instance of him the I.O. recovered and seized M.O.I with live ammunitions, the alleged weapon of offence which is the country made Pistol and M.O.II magazine, vide seizure list Ext.4. The witnesses to the recovery of the weapon of offence at the instance of accused Siba Nial under Section 27 of Indian Evidence Act have described about the leading to discovery clearly and cogently. The evidence of P.W.5 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 15 and P.W.7 supports the seizure of the country made pistol and magazine following disclosure statement of the accused. 25. The Trial Court has rightfully clarified that Section 27 of the Evidence Act is an exception to Section 25 to 26, which prohibit the proof a confession made to a Police Officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not", which relates distinctly to the fact thereby discovered to be proved. Thus, even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under Section 27, it is only that part which distinctly relates to the discovery which is admissible. For the applicability of Section 27, two conditions are the pre- requisites, namely, (i) the information must be such as has caused discovery of the fact and (ii) the informaton must "relate distinctly" to the fact discovered. It is now well settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. It is also settled that the Court must disregard the inadmissible part of the statement and take note only that part of his evidence, which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further settled that discovery of the fact Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 16 in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to his existence. 26. Moreover, the Appellant managed to escape from being arrested and absconded for about one year and was arrested on 23.04.2014. The very conduct of him after the occurrence links positively to the case of prosecution. The Appellant is none other than the son-in-law of the informant. The de- ceased Dhananjaya Kata is his brother-in-law being the brother of his wife and deceased Nirupama Kata is his sister-in- law. Hence it is quite suspicious that the Appellant so closely related to the informant family and to the deceased persons absconded after such a sensational incident. Hence the subsequent conduct proves that the act must have been done by the Siba Nial and the Appellant who are the authors of the crime. Undisputedly, the deceased persons died out of Gunshot injuries. P. W. 16, the Medical officer who conducted autopsy over the dead bodies of the deceased Dhaeswar Kata and Nirupama Kata has stated that the injuries found on the dead bodies have been due to firearm bullets and found punctured wound in the scalp of the deceased Dhanewar Kata and punctured lacerated wound over the skull of the deceased Nirupama Kata. 27. The Medical Officer also removed the two fired bullets each from the dead bodies of the each of the deceased persons which were Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 17 marked as M.O.VIII and M.O.IX. Exts.9 and 10, the P.M. reports corroborate the case of prosecution. Adding to this the examination report of the firearm vide Ext. 17 adds corroboration to the case of the prosecution. The weapon seized at the instance of Siba Nial was sent for examination and the report obtained vide Ext. 17 reveals that the same has been used for firing prior to the receipt of the same in the laboratory. Ext. 17 well corroborates the case of the prosecution. In fact, Ext.17, the report of the Ballistic Expert is a strong corroboration to the prosecution case and the use of M.O.I in the commission of alleged offences is well inferred from Ext.17. Hence in this case the prosecution has well established the guilt of the accused in the commission of the offences beyond any doubt. The motive behind the commission of the offence is the dispute regarding property between Prabhulal Bondichor and the deceased persons. The witnesses to the circumstances were P.Ws. 5, 7, 8 and 9 whose evidence well corroborate the involvement of the accused with another in the commission of alleged offences beyond any reasonable doubt. 28. Additionally, in this case though charge has not been formed under Section 34 of I.P.C., but the common intention of both the accused persons is well inferred as both of them came together and after commission of crime left the place together. The accused Siba Nial though had not shot the deceased persons but has intentionally aided the accused the Appellant in the commission Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 18 of offences and hence is liable under Sections 302/ 109 of I.P.C. Although Section 34 is not added to Section 302 the accused persons had clear notice that they were being charged with offence of committing murder in pursuance of the common intention. Therefore the omission to mention the charge under Section 34 of I.P.C. is only an academic significance which shall not in any way mislead the accused persons. The evidence in this case is clear to the effect that the appellant was clearly involved in this crime. Albeit some minor discrepancies, the depositions of the P.Ws., including eye-witness P.W.2, are credible and consistent. The prosecution has adduced sufficient evidence to show that the appellant was present at the spot at the time of the crime. The defence has been blatantly unsuccessful in rebutting their claim. Furthermore, the samples collected during the investigation and the later post-mortem also solidifies the story of the prosecution. 29. It is significant to notice that the defence has been unable to provide a satisfactory explanation to the accusations of the prosecution save rebut them effectively. We are aware of the fact that it is not necessary for the appellant to adduce evidence in their favour and they can rely on the evidence adduced by the prosecution to show that the prosecution has not succeeded in establishing the case beyond reasonable doubt. In the present case, the entire evidence has already been discussed and it has Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 19 been found that the circumstances relied on by the prosecution have been established. Herein, the non-explanation or the false explanation given by the Appellant is yet another circumstance which go against him. V. COURT’S RASONING AND ANALYSIS: 30. There is no reason to believe that the Appellant has been falsely implicated in this case. No such suggestion was made by the witnesses or the investigating officer. All the circumstances relied on by the prosecution have been proved and they form a chain which leads to the only conclusion that the offence must have been committed by the appellant persons. 31. The result is that the Appeal is without merit and they are liable to be dismissed. We do so, confirming the conviction and sentence passed by the court below. 32. Accordingly, this CRLA is dismissed. ( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree. Judge ( D. Dash ) Orissa High Court, Cuttack, Dated the 24th July, 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 20