The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.234 of 2023 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 30th January, 2023 passed by the learned Additional Sessions Judge, Dhenkanal, in C.T. (SS) Case No.48 of 2015. Sarbeswar Badia …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. Amit Kumar Nath (Advocate) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 21.06.2023 : Date of Judgment:24.07.2023 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 30th January, 2023 passed by the learned Additional Sessions Judge, Dhenkanal, in C.T. (SS) Case No.48 of 2015 arising out of G.R. Case No.338 of 2014 corresponding to Balimi P.S. Case No.70 of 2014 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Hindol. 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 Page 1 of 9 CRLA No.234 of 2023 {{ 2 }} undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for five (5) months for the offence under section 302 IPC. 2. Prosecution Case:- On 08.11.2014, during early morning, when it was around 5.00 a.m., Dibakar Badia, who happens to be the husband of Nayani @ Nai Badia (informant-P.W.8) was proceeding towards Kiskinda water channel for attending call of nature and it is said that near the embankment, this accused with Khujari, Bikram and Nirmal, on account of their previous enmity, had beheaded him by means of a sharp cutting weapons. The written report being lodged by P.W.8 at Balimi Police Station, the Officer-in-Charge (O.I.C) of that P.S. registered the case and took up investigation. 3. In course of investigation, the Investigating Officer (I.O.-P.W.18) examined the Informant (P.W.8) and recorded his statement and also those of other witnesses under section 161 of the Code of Criminal Procedure, 1973 (for short, the 8Code9). He visited the spot and prepared the spot map (Ext.14). Having inquest over the dead body of the deceased, he sent the same for post mortem examination. He also seized blood stained and sample earth and prepared the seizure list to that effect. The wearing apparels of the deceased were seized on production after post mortem examination. On the next day, i.e., on 09.11.2014, he
Legal Reasoning
again examined the informant (P.W.8), the scribe of the FIR (Pradeep Parida-P.W.10) and other witnesses and recorded their statements under section 161 Cr.P.C. He, on production by Narendra Badia, further seized one hand written note suspected to have been thrown by the accused on production by Narendra Badia under the seizure list. The accused being CRLA No.234 of 2023 Page 2 of 9 {{ 3 }} arrested on 11.11.2014, was medically examined. The seized incriminating articles were sent for chemical examination through Court. The weapon which was lying at the spot (M.O.VIII) was seized under seizure list. On completion of the investigation, the Final Form was submitted placing the accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Hindol, 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 offence against the accused. 5. The defence plea is that of complete denial and false implication. 6. The prosecution, in support of its case, has examined in total nineteen (19) witnesses during Trial. As already stated, P.W.8 is the informant and she is none other than the wife of the deceased. The daughters of the deceased have been examined as P.Ws.7 & 16 whereas the brother of the informant (P.W.8) and another cousin brother of P.W.8 have come to the witness box as P.Ws.9 & 10 respectively. The witnesses to the inquest are P.Ws.1 to 3. The Doctor, who had conducted the autopsy over the dead body of the deceased has come to the witness box as P.W.4. The I.O is 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, the important are, the FIR (Ext.5), the inquest reports (Ext.1 to 3) and the post mortem report (Ext.4). The seizure list showing the seizure of the CRLA No.234 of 2023 Page 3 of 9 {{ 4 }} incriminating articles have also been admitted in evidence and marked Exhibits. The Chemical Examiner9s report is Ext.18. The defence has not examined any witness in support of the plea of denial and false implication. 8. The Trial Court, upon examination of the evidence on record and their appreciation at its level, has held that the prosecution has been able to prove the charge against the accused beyond reasonable doubt. Accordingly he has been convicted for intentionally causing the death of the deceased (Dibakar Badia) and sentenced, as afore-stated.
Legal Reasoning
9. Mr.A.K.Nath, learned counsel for the Appellant submitted that the entire case of the prosecution is based upon the evidence of the informant (P.W.8), who claims herself to be the eye witness to the occurrence and to have seen the incident right from the beginning till the end. He further submitted that the Trial court had committed a grave error in accepting the solitary testimony of P.W.8 which falls far short of the requirements to establish the charge that the accused is the author of the crime beyond reasonable doubt. He submitted that when P.W.8, in her FIR (Ext.5), had implicated four persons to have committed the crime, later on she has confined it only to the present accused and, therefore, her evidence ought not to have been believed as she, being the wife of the deceased, without any reason, has either attempted to save the other persons whom she had implicated also to be the authors or to have actually not seen the incident was being guided by someone else in falsely implicating this accused. According to him, with such tendency of P.W.8, the Trial Court ought not to have believed her evidence to fasten the guilt upon this accused. He further submitted that when this P.W.8 was first examined by the I.O (P.W.18), after lodging of the FIR, CRLA No.234 of 2023 Page 4 of 9 {{ 5 }} she too having implicated all the four; her presented version during Trial that it is this accused, who alone has done the deceased to death by severing his head from the trunk is wholly unbelievable. According to him, when there is also no evidence to corroborate the evidence of P.W.8 and she has also not given any explanation as to for what reason, she had earlier alleged against this accused and three others to have jointly committed the offence in murdering her husband, which now she changes in confining to this accused alone, the view taken by the Trial Court against the accused is liable to be set aside. 10. Mr.S.K. Nayak, learned Additional Government Advocate submitted that although P.W.8 had implicated in the FIR that this accused and three others had committed the crime during her examination, at a later stage in course of investigation, she having stated implicating only the present accused and that having been reiterated during Trial, the present accused, in any case, cannot escape from the criminal liability as the author of the crime. 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 19) and have perused the documents admitted in evidence marked as Exts.1 to 20. 12. The star witness for the prosecution is P.W.8, who happens to the wife of the deceased. She has stated that when her husband was going to attend the call of nature, she was following him. It is her evidence that when her husband was walking in front of her, the accused suddenly appeared and dealt blows by means of a tabla (a sharp cutting weapon like axe) and beheaded him. It is her evidence that although she was Page 5 of 9 CRLA No.234 of 2023 {{ 6 }} returning to the village to call the villagers, on the way, she lost her sense. She has proved the FIR (Ext.5), which has been lodged on 08.11.2014 at about 8.00 a.m. It is the FIR version that near the Kiskinda water channel, the accused along with Khujari, Bikram and Nirmal, who are the co- villagers beheaded the deceased. The FIR version, if read in entirety, gives out a picture that P.W.8 was not present at the time of occurrence and, later on had gone to the place and saw her husband lying dead. It is no where stated that in the FIR (Ext.) that P.W.8 was also going with the deceased when he was proceeding to attend the call of nature near Kiskinda water channel. However, her version during Trial is that during her first examination by the I.O. (P.W.18), she had implicated four and thereafter, she implicated only the present accused. There is absolutely no explanation as to why she left out those three whom she had implicated on earlier occasion right in the FIR as well as in her statement thereafter. P.W.10 is the scribe of the FIR (Ext.5) and he is none other than the cousin brother of the informant (P.W.8). It is his version that receiving the information that his brother-in-law (deceased) was hacked to death, he proceeded to the village and there he found his sister (P.W.8) crying. He has stated that her sister (P.W.8) told before him about the occurrence and accordingly he scribed the FIR. Thus, when the first version of P.W.8 is that four persons including the present accused are the authors of the crime stands supported by the evidence of P.W.10. This P.W.10, however, is also not stating that her sister (P.W.8) had told before him that the incident took place before her eyes while she was following the deceased. CRLA No.234 of 2023 Page 6 of 9 {{ 7 }} P.W.7 is the daughter of the deceased. It is her evidence that when her mother P.W.8 regained, she disclosed that this accused had hacked her father to death and accordingly P.W.8 lodged the report before the police, which does not appear to be a fact as the FIR (Ext.5) depiction of the factual happenings at the crime scenario is quite different. It is her evidence that receiving information from one Pranati Chand, she proceeded to the spot and saw her father lying dead with her head being severed from the body and she then returned home and found her mother in an unconscious stage. When P.W.8 says that on the way she lost her sense, this P.W.7 does not state to have seen P.W.8 on the way and rather, it is her evidence that she returning home, saw P.W.8. In that state of affair in the evidence, the evidence of P.W.8 that she had gone with her husband (deceased) at the relevant time and had seen the incident in her own eyes which too is not reflected in the FIR (Ext.5) lodged immediately thereafter being scribed by none other than her cousin brother (P.W.10) is becoming highly doubtful and as such cannot be accepted. Such omission certainly creates grave doubt in mind as to the presence of P.W.8 at the relevant time when the incident took place. The evidence of P.W.8, being read with the evidence of P.Ws.7 & 10, thus does not inspire confidence in mind that it is of sterling quality that can form the sole basis of conviction in holding the present accused to be the author of the crime in beheading the deceased by means of sharp cutting weapon. Furthermore, when P.W.9, the brother of P.W.8 states that P.W.8 had told about the incident implicating only the present accused, it is not understood as to how in the FIR (Ext.5), it was not so indicated and the present accused was implicated with other three whom this P.W.8 is not implicating at a later stage of investigation and also CRLA No.234 of 2023 Page 7 of 9 {{ 8 }} during the Trial by providing absolutely no explanation of any sort whatsoever. P.W.18, the Investigating Officer, has stated that when he cross- examined P.W.8 at his level, as nothing came out regarding the involvement of other three, those three were left out and only this accused Sarbeswar was arrested. This is absolutely unacceptable that as against the positive version of P.W.8 before P.W.18 when he had no occasion to cross-examine P.W.8 in stead of directing his investigation in finding out the materials as to the involvement of those four or any out of them in such incident. This P.W.18 has further stated that after recording the evidence of other witnesses, he was of the view that it is this accused, who is the author of the crime, which appears to be an act performed by P.W.18 beyond his authority as the Investigating Officer. 13. It is the settled principle of law that a conviction can be based upon the solitary testimony of a witness when said testimony is found to be of sterling quality and free from any blemish. As per the settled position, the evidence of the solitary witness has to be above the board. In view of the discussion of evidence on record, we do not find that the evidence of P.W.8 is that of sterling quality for being accepted by inspiring implicit confidence in mind as to the truthfulness to base the conviction upon this accused for committing the murder of the deceased (Dibakar Badia) For all the discussion, as above, we find it extremely difficult to uphold the finding of the Trial Court that the accused is guilty for commission of the offence punishable under section 302 of the IPC in intentionally causing the death of Dibakar Badia. CRLA No.234 of 2023 Page 8 of 9 {{ 9 }} We are, therefore, of the view that the finding of the Trial Court that the prosecution has established the charge against accused, Sarbeswar Badia beyond reasonable doubt by leading clear, cogent and acceptable evidence cannot be sustained. Accordingly, we conclude that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 15.
Decision
In the result, the Appeal is allowed. The Judgment of conviction and order of sentence dated 30th January, 2023 passed by the learned Additional Sessions Judge, Dhenkanal, in C.T. (SS) Case No.48 of 2015 are hereby set aside. The accused, namely, Sarbeswar Badia, who is in custody, be set at liberty forthwith, if his detention is not wanted in 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 14:48:44 CRLA No.234 of 2023 Page 9 of 9