The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.28 of 2022 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 6th January, 2022 passed by the learned Additional Sessions Judge, Sundergarh in S.T. Case No.10/23 of 2019-21. Duleswar @ Umakanta Gandha …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Miss.A.K.Dei (Advocate) For Respondent
Legal Reasoning
- Mr.S.K.Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 03.07.2023 : Date of Judgment:24.07.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and order of sentence dated 6th January, 2022 passed by the learned Additional Sessions Judge, Sundergrh in S.T. Case No.10/23 of 2019-21 arising out of G.R. Case No.865 of 2018 corresponding to Lephripada P.S. Case JCRLA No.28 of 2022 Page 1 of 8 {{ 2 }} No.139 of 2018 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundergarh. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, he 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 one (1) year for the said offence. 2. Prosecution Case:- On 17.09.2018 evening; around 5.30 p.m., interior decoration was being made in the fabrication shop of one Nabakanta Gandha, the youngest son of Souki Gandha (informant-P.W.8). It is stated that at that point of time, Meera, the wife of the present accused and this accused, came there by holding an iron rod and they directed the persons then working in the shop room to stop the work. So stating, they started pelting stones at them. At this hour, the husband of the informant, namely, Manbhula tried to enter into house of Nabakanta by opening the gate. At this, the present accused and his wife Meera are said to have rushed near him and assaulted him on his head by the weapons hold by them. Receiving the blows, Manbhula (deceased) lost his sense. He was immediately shifted by Nabakanta (P.W.8) and Priyanka (P.W.16) to Sargipali Hospital and then shifted to Sundargarh Hospital where he was declared dead. JCRLA No.28 of 2022 Page 2 of 8 {{ 3 }} It be stated that this Nabakanta is the brother of this accused and the deceased-Manbhula is their father whereas the informant (P.W.6) is their mother. The written report being lodged by Souki Gandha (P.W.6) to the above effect with the Officer-in-Charge (O.I.C.) of Lephripada Police Station (P.S.), the O.I.C, receiving the said written report from P.W.6, treated the same as FIR, registered the case and took up investigation. 3. In course of investigation, the Investigating Officer (I.O- P.W.18) examined the informant and other witnesses, proceeded to the spot and made the spot map (Ext.13), held inquest over the dead body of the deceased and prepared the inquest report (Ext.5). He also got the post mortem examination conducted by issuing necessary requisition. He also seized several incriminating materials under seizure lists and those were sent for chemical examination through Court. On completion of the investigation, the I.O (P.W.18) submitted the Final Form placing the accused and his wife, Meera (since acquitted) to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Sundergarh, on receipt of the Final Form, as above, took cognizance of the offence and after observing the formalities, committed the case to the Court of Sessions. That is how JCRLA No.28 of 2022 Page 3 of 8 {{ 4 }} the Trial commenced by framing the charge for the aforesaid offence against the accused. 5. The defence plea is that of complete denial and false implication. 6. The prosecution, for establishing the charge, has examined in total nineteen (19) witnesses during Trial. Out of those, as already stated, P.W.6 is the mother of the accused and the informant of the case, who lodged the FIR (Ext.6), which has been scribed by P.W.7. The brother of the accused is P.W.8 whereas the sister of P.W.6 is P.W.13 and she is none other than the first wife of the deceased Manbhula. The Doctor, who had conducted the autopsy over the dead body of the deceased has been examined as P.W.1. The other important witness is the I.O. (P.W.18). 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 20. Out of those, important are the FIR (Ext.6), inquest report (Ext.5), post mortem (Ext.1), spot map (Ext.13) and the Chemical Examiner9s report (Ext.20). 8. The Trial Court, upon examination of the prosecution witnesses and on going through the documents admitted in evidence, having held the nature of death of the deceased to be homicidal especially relying upon the evidence of the Doctor Page 4 of 8 JCRLA No.28 of 2022 {{ 5 }} (P.W.1), who held the autopsy over the dead body of the deceased and the I.O. (P.W.18), who had held inquest over the dead body of the deceased; has ultimately found that the prosecution has established the charge of murder of Manbhula (deceased) as against this accused alone. Therefore, while holding this accused to be guilty of committing murder of Manbhula and as such convicting him for the offence under section 302 of the IPC., the wife of the present accused has been acquitted. This accused has then been visited with the sentence, as afore-stated. 9. Learned counsel for the Appellant (accused) submitted that the evidence of the prosecution witnesses on which the Trial Court has placed implicit reliance in holding that the prosecution has established the charge against this accused beyond reasonable doubt are irreconcilable and those greatly differ with one another on material aspects. He, therefore, contended that the finding rendered by the Trial Court is liable to be set aside in providing support to the above, she took us through the depositions of all the prosecution witnesses in great detail. 10. Mr.S.K.Nayak, learned Additional Government Advocate for the State-Respondent submitted all in favour of the finding of the Trial Court in convicting the accused for the offence under section 302 of the I.P.C., He submitted that after the evidence, the accused since has given the blow on the head of the deceased by an iron rod, which is heavy, the Trial Court did commit no mistake in Page 5 of 8 JCRLA No.28 of 2022 {{ 6 }} holding the accused guilt for commission of the offence under section 302 of the IPC notwithstanding the fact that it was a solitary blow leading to the death of the deceased. 11. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also gone through the depositions of the witnesses (P.W1 to P.W.19) and have perused the documents, which have been admitted in evidence and marked Exts.1 to Ext.20. 12. In order to address the rival submission in judging the sustainability of the finding of guilt of the accused for which the accused would be liable for the role played and the act done by him in the incident, as has been returned by the Trial Court, let us have a glance at the evidence of P.W.6. It is stated that the younger son Nabakanta had a wielding shop and accused Umakanta raised hullah when things were being arranged in the shop for the purpose of holding Viswakarma Puja and the interior decoration was being made for the said purpose. She has stated that this accused, having raised hullah, started pelting stone at the persons, who were engaged in the decoration work in the shop. It is her further evidence that by that time when her husband Manbhula was entering into the new house constructed by Nabakanta, this accused brought an iron rod and dealt on the back side of the head of Manbhula for which he fell down and on being taken to the Hospital, was declared dead. It is Page 6 of 8 JCRLA No.28 of 2022 {{ 7 }} her evidence that this accused had a quarrel with his brother. This witness although states that the accused had sustained injuries on his head, yet she says that since she ran away from the spot after assaulting her husband, she could not know as to how the injuries were sustained by the accused. This witness states that her son Nabakanta was present at the time of occurrence. On being asked that whether her husband (deceased) had consumed excess liquor, she has expressed her ignorance. Nabakanta (P.W.8) has stated that at the relevant time, he was busy in the interior decoration in his shop and at that time, P.W.6 raised hullah and shouted that his father had been assaulted. He further states that when he came out of the shop, he found his father lying on the ground with the injuries on his head. He is not stating anything against the accused either to have seen the accused at the spot or even running away. So, P.W.6 when says that P.W.8 had seen the incident, this P.W.6, who is also her sister says that when they were busy in the interior decoration work in the shop of P.W.8 all of a sudden accused came and assaulted her husband on his head by means of an iron rod, which resulted his fall. With such evidence on record, which are highly discrepant and irreconcilable, we find that the Trial Court has gone wrong in holding that the prosecution has established the charge against the accused beyond reasonable doubt. JCRLA No.28 of 2022 Page 7 of 8 {{ 8 }} 13. 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, Duleswar @ Umakanta Gandha beyond reasonable doubt by leading clear, cogent and acceptable evidence cannot be sustained. 14. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 6th January, 2022 passed by the learned Additional Sessions Judge, Sundergarh in S.T. Case No.10/23 of 2019-21 are hereby set aside. The accused, namely, Duleswar @ Umakanta Gandha, who is in custody, be set at liberty forthwith, if his detention is not wanted in connection with any other case. 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 JCRLA No.28 of 2022 Page 8 of 8