The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO. 581 OF 2017 : (A), CRLA NO.585 OF 2017 : (B) AND CRLA NO.828 OF 2017 (C) In the matter of Appeals under Section-374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 19th May, 2017 passed by the learned Additional Sessions Judge, Rayagada in C.T. Case No.05 of 2016 & C.T. Case No.124 of 2016 arising out of G.R. Case No.400 of 2015 and G.R. Case No.400(A) of 2015 corresponding to Rayagada P.S. Case No.177 of 2015 of the Court of learned S.D.J.M., Rayagada. Niranjan Melaka (In CRLA No. 581 of 2017), Mali @ Malesu Miniaka (In CRLA No. 585 of 2017) & N.C. Rao @ Ansirao Bidika (In CRLA No.828 of 2018) -versus- State of Orissa (In CRLA Nos.581, 585 & 828 of 2017 ) .… Appellants. …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical ================================================== For Appellants - Mr. Biswajit Nayak, (Advocate in all CRLAs) For Respondents - Mr.S.S. Kanungo, Additional Govt. Advocate in all the three CRLAs. CORAM: MR. JUSTICE D.DASH DR.JUSTICE S.K. PANIGRAHI CRLA NOS. 581, 585 & 828 OF 2017 Page 1 of 17 {{ 2 }} Date of Hearing : 05.05.2023 : Date of Judgment: 19.05.2023 D.Dash,J. Since above three Appeals as at (A), (B) and (C) are directed against the judgment of conviction and order of sentence dated 19th May, 2017 passed by the learned Additional Sessions Judge, Rayagada in C.T. Case No.05 of 2016 & C.T. Case No.124 of 2016 arising out of G.R. Case No.400 of 2015 and G.R. Case No.400(A) of 2015 corresponding to Rayagada P.S. Case No.177 of 2015 of the Court of learned Sub-Divisional Judicial Magistrate, Rayagada; those were heard together for their disposal by common judgment. The above noted three Appellants (accused persons) with five others faced the Trial standing charged for commission of offence under section-147/148/302/201/506/149 of the Indian Penal Code, 1860 (for
Facts
short, ‘the IPC’). The Trial Court having convicted these three accused persons for commission of offence under section-147/302/149 of the IPC. Accordingly, these three accused persons have been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- on each count in default to undergo rigorous that the imprisonment for one year for murder of each of the deceased persons under section-302/149 of the IPC life sentences running concurrently. They have been further sentenced to undergo rigorous imprisonment for one year for the offence under section-147 of the IPC and rigorous imprisonment for one year CRLA NOS. 581, 585 & 828 OF 2017 Page 2 of 17 {{ 3 }} each and pay fine of Rs.5,000/- in default to pay fine to undergo rigorous imprisonment for three months for the offence under section- 201/149 of the IPC with the stipulation that the above substantive sentences would run consecutively with the life imprisonment. 2. Prosecution case is that on 01.08.2015 around 9 pm, the villagers namely, Anadhi Maleka, Balaram Maleka, Gangana, Dinabandhu, Niranjan Melaka (Appellant-Accused), Maleshu Miniaka (Appellant- Accused), Ringu, Mahadev, Chakra(Appellant-Accused), Ansirao (Appellant-Accused), Mahendra Nachika, Sudeshu Maleka, Rajesh Miniaka(Appellant-Accused), Karsena @ Krishna Melaka (Appellant- Accused) convened a meeting in their village. Lathara Pidika and Apudu Melaka, who happen to be the father and uncle of Sukri Melaka, (Informant-P.W.3) had been summoned to that meeting. In the meeting, it was alleged that Lathara and Apudu were responsible for the death of some villagers by practicing sorcery. The accused persons present there in the meeting place, then assaulted Lathara and Apudu alleging that they had killed the son of accused-Niranjan Melaka by practicing sorcery. Sukri Melaka, the daughter of Lathara having proceeded to the spot, saw such assault being made upon her father namely, Lathara and uncle namely, Apudu. She when went to offer water to her father- Lathara, the accused persons then extended threat for which she could CRLA NOS. 581, 585 & 828 OF 2017 Page 3 of 17 {{ 4 }} not proceed further. It is stated that accused persons there tied the hands of Lathara and Apudu and took them towards Kalinga Pahad asserting that they would be killed. Sukri (Informant-P.W.1) in that situation remained as mute spectator and returned home. On the next morning around 5 am, the accused persons having returned from Kalinga Pahad, declared in the village that they had killed Lathara and Apudu and have buried them. Having said that, they again extended threat that if anybody would be lodging any report before the police in relation to the said incident, he too would be killed. Sukri Melaka (Informant-P.W.3) thereafter on 20.08.2015 lodged a written report before the Inspector-in-Charge (IIC), Rayagada P.S. Having received the said report, the IIC treated the same as F.I.R. (Ext.3) and registering the case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.-P.W.15) examined the Informant (P.W.3) and other witnesses and recorded their statements under section-161 of the Cr.P.C.. He also requisitioned the service of the Dog Squad, Scientific Team and Executive Magistrate. Thereafter, the I.O. (P.W.15) arrested accused persons namely, Niranjan Maleka and Mali @ Maleshu Miniaka near that Kalinga Pahad and recorded the statement of accused-Niranjan who then led the police and other witnesses to the place where the forgo of the deceased persons had CRLA NOS. 581, 585 & 828 OF 2017 Page 4 of 17 {{ 5 }} been buried. The dead bodies thereafter were recovered. The I.O. (P.W.5) then held inquest over the dead bodies of the deceased persons and seized the physical samples collected by the members of the Scientific team. The cadavers were sent to the District Headquarter Hospital, Rayagada for postmortem examination. Accused persons namely, Mali @ Maleshu and Kodanda were arrested on 21.08.2015. On 25.08.2015, accused persons namely, Chakradhar @ Chakra Bidika, Karsena @ Krishna Kelaka and Mahendra Nachika were forwarded. On 16.12.2015, accused-Mahandra Nachika was arrested. Several incriminating articles were seized in course of investigation and all those were sent for chemical examination to Regional Forensic Science Laboratory (RFSL), Berhampur through Court. On completion of investigation, Final Form was submitted placing all those eight (8) accused persons and also others who were absconding to face the trial for commission of offence under section-147/148/302/201/120- B/506/109 /149 of the IPC and section-4/6 of the Odisha Prevention of Witch Hunting Act (for short ‘the OPWH Act’), 2013. Subsequently, on 08.09.2016, the accused N.C. Rao @ Ansirao Bidika was arrested and forward in custody to the Court. 4. Learned S.D.J.M., Rayagada, having received the Final Form, took cognizance of said offences and after observing the formalities CRLA NOS. 581, 585 & 828 OF 2017 Page 5 of 17 {{ 6 }} made, the commitment in two phases, which however stood clubbed in the Court of Sessions. That is how the Trial commenced by framing charges for the said offences against these accused persons. 5. In the Trial, the prosecution has examined in total fifteen (15) witnesses. As already stated, P.W.3 is the Informant, who happens to be the daughter of the deceased-Lathara and niece of deceased-Apudu and has lodged the F.I.R. (Ext.3). The husband of P.W.3 has been examined as P.W.10; whereas P.W.4 is the son of deceased-Apudu. The Doctors, who had conducted postmortem over the cadavers of deceased persons have come to the witness box as P.W.7 and P.W.8. The scribe of the F.I.R.(Ext.3) has been examined as P.W.13 and the I.O. has come to the witness box at the end as P.W.15. Besides leading the evidence by examination of the above witnesses, the prosecution has also proved several documents; which have been admitted in evidence and marked Exts. 1 to 17. Out of those, the F.I.R. is Ext.3, inquest reports are Exts. 4 and 5; whereas the postmortem reports are Exts.6 and 7. In the Trial, some incriminating articles having been produced and marked as Material Objects (M.O.-I to M.O.-XI). CRLA NOS. 581, 585 & 828 OF 2017 Page 6 of 17 {{ 7 }} 6. The plea of defence is that of complete denial and false implication. However, no evidence has been tendered from the side of the defence. 7. The Trial Court upon examination of the evidence and their evaluation has held the above three accused persons as guilty for commission of offences punishable under section-147/302/201 read with 149 of the IPC and they have been sentenced as aforestated whereas other five too had faced the Trial have been acquitted the charges as evidence as to their complicity was not found to be available. 8. The two Doctors had conducted postmortem examination over the cadavers of Lathara Pidika and Apudu Kelaka have deposed as P.W.7 and P.W.8. Both of them have deposed that the death of those two are homicidal and the injuries which they found over the body are antemortem in nature and sufficient to cause death in ordinary course of nature. The Doctors have in their reports, Exts. 6 and 7 they had noted all those features which have noticed over the cadavers. Practically, there is no challenge to that aspect of the case before the Trial Court and that is also the situation before us. With such evidence as discussed, find ourselves in agreement with the view taken by the Trial Court that Lathara and Apudu met homicidal death. CRLA NOS. 581, 585 & 828 OF 2017 Page 7 of 17 {{ 8 }} 8.
Legal Reasoning
of evidence of P.Ws. 3, P.W.4 and P.W.10, we find that they are wholly in consonance with one another; particularly on the aspect of initial assault upon Lathara and Apudu by these accused persons and then they being taken towards Kalinga Pahad by these accused persons. No such materials have been elicited to say that their evidence do not inspire confidence in arriving at a conclusion that have stated in the same vein and we find no material on record to entertain as doubt in mind for a moment that they were not present at the meeting place. 12. It is true that the burden to prove the guilt of the accused is always on the prosecution, however keeping in view the provision contained in Section-106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him as the CRLA NOS. 581, 585 & 828 OF 2017 Page 11 of 17 {{ 12 }} prosecution having proved the fundamental facts to the extent as in the factual settings so required; it then stands before the accused to say further as to what intervened thereafter so that the exact reason of death and how it took place could not be known by him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In a case based on circumstantial evidence, furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution was proved against him. In case of Rajender vs. State (NCT of Delhi)4, it was observed as 13. under:- “12.2.4. Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. Section 106 of the Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the CRLA NOS. 581, 585 & 828 OF 2017 Page 12 of 17 {{ 13 }} knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section-106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.” 14. In Satpal Vs. State of Haryana, the Hon’ble Court observed as under: - “6. We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only CRLA NOS. 581, 585 & 828 OF 2017 Page 13 of 17 {{ 14 }} circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.” 15 . In view of the afore-stated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case CRLA NOS. 581, 585 & 828 OF 2017 Page 14 of 17 {{ 15 }} based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does definitely the owe the obligation to offer the explanation as per the provision of section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could well be based on such evidence. In the instant case, the accused persons have simply gone to deny the happening of the incident in the village right from the time of meeting till the end and thereafter. It has been duly proved that the death of the deceased persons met homicidal death. It has also been proved beyond reasonable doubt through the evidence coming from the lips of P.W. 3, P.W.4 and P.W.10 that the accused persons had taken the deceased persons with them in the night and on the very next morning, cadavers have been found in the Kalinga Pahad area. The time gap between the period when the deceased persons were last seen with the accused CRLA NOS. 581, 585 & 828 OF 2017 Page 15 of 17 {{ 16 }} persons and recovery of the cadavers being quite proximate, the non- explanation of accused persons with regard to the circumstances under which and when they had de-parted the company of the deceased persons is a very crucial circumstance proved against them. Having regard to the evidence of the witnesses and the enmity between the deceased persons, the accused persons as have been stated and the motive behind the crime as have been stated by those three witnesses, when said versions we find to be truthful and reliable, in the absence of the explanation as to what happened after the deceased persons were taken by them towards Kalinga Pahad with the evidence standing to corroborate that the accused persons in the morning had told about the actions that they had taken had too extended threat in the village to see that no report is made about the police; we find that the Trial Court has rightly convicted the accused persons. On a conspectus of discussion of evidence as hereinabove, we are of the view that the finding of guilt recorded by the Trial Court against the three accused persons in CRLA Nos. 581, 585 and 828 of 2017 for commission of the offence under section 302/147/201/149 of IPC is well in order and the accused persons have been rightly been convicted and sentenced as aforestated. CRLA NOS. 581, 585 & 828 OF 2017 Page 16 of 17 {{ 17 }} 16. In the result, the Appeals stand dismissed. The judgment of conviction and order of sentence dated 19th May, 2017 passed by the learned Additional Sessions Judge, Rayagada in C.T. Case No.05 of 2016 and C.T. Case No.124 of 2016 are hereby confirmed. Dr.S.K. Panigrahi,J. I agree. Narayan (D. Dash), Judge. (Dr. S.K. Panigrahi), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Personal Assistant Reason: Authentication Location: OHC Date: 23-May-2023 13:17:07 CRLA NOS. 581, 585 & 828 OF 2017 Page 17 of 17
Arguments
Learned Counsel for the Appellants submitted that the Trial Court having not properly scrutinized the evidence on record and examined them critically has erred in holding that the prosecution has proved the charges as against the accused persons beyond reasonable doubt by leading clear, cogent and acceptable evidence. He further submitted that there is no direct evidence in support of the complicity of the accused persons. According to him, the version of P.Ws. 3, 4 and 10 being not free from infirmities and inherent improbabilities, the Trial Court ought not to have relied upon their evidence as they being the family members of the deceased persons were not only highly interested but also their versions implicating these accused persons on the fact of the features appearing in the evidence clearly appear to be highly doubtful. He, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeals proved by three accused persons which have been convicted cannot be sustained. 9. Learned Counsel for the State refuting the above submissions contended that with the evidence let in by the prosecution has proved its case beyond reasonable doubt by in establishing the complicity of the accused persons. According to him, the Trial Court did commit no mistake in fastening the guilt upon the accused persons for the offences. He further submitted that, when the evidence on record are at galore in CRLA NOS. 581, 585 & 828 OF 2017 Page 8 of 17 {{ 9 }} establishing the fact that the deceased persons had been taken by these accused persons towards Kalinga Pahad and then on the next morning the cadavers of those deceased persons were found out near Kalinga Pahad which was within the knowledge of these accused persons as they are not coming forward in explaining as to what happened with the two deceased persons after they were taken with them with their hands tied and as to how and under what circumstance, they have died, which was within special knowledge with the aid of the provisions of section-106 of the Evidence Act, the Trial Court has rightly convicted the accused persons of the above offences. 10. Keeping in view the submissions as above, We have carefully read the impugned judgment imposed in this Appeal. We have also gone through the depositions of the prosecution witnesses namely, P.Ws.1 to 15 and have perused the documents admitted in evidence and marked Exts. 1 to 17. 11. The important witnesses for the prosecution are P.Ws. 3, P.W.4, and 10. P.W.3 has clearly stated that her father was first of all assaulted and lost his sense and then after a little while, he regained his sense when these accused persons tied his hands, and took him with Apudu towards Kalinga Pahad; when it was midnight or so and on the next CRLA NOS. 581, 585 & 828 OF 2017 Page 9 of 17 {{ 10 }} morning the cadavers have been recovered from near the Kalinga Pahad. The Doctors have deposed that these two persons met homicidal death and the injuries that they have noticed were antemortem in nature. It has been proved through evidence that the cadavers were ultimately seen near Kalinga Pahad. It has been further stated by P.W.3 that he had to remain near about the place of meeting as a silent spectators which in the facts and circumstances as those emanate from the evidence on record. This has also been evidence of P.W.4, who is the son of other deceased-Apudu and nephew of deceased-Lathara. He is statd that when in the meeting around 10 pm, the villagers including accused persons asked the decease-Apudu as to whether he knows sorcery; Apudu denied. He has further stated that the accused persons then assaulted Lathara and Apudu by giving fist and slaps. He has further stated that he and his brother having protested they too were assaulted. He has stated in clear terms, that the accused persons took his father Apudu and uncle, Lathara (deceased persons) towards Kalinga Pahad and on the next morning, the cadavers were recovered. Although these witnesses have been cross-examined, no such material has been elicited from them to disbelieve their version that the accused persons having assaulted both deceased persons finally took them towards Kalinga Pahad. CRLA NOS. 581, 585 & 828 OF 2017 Page 10 of 17 {{ 11 }} P.W.10 is the husband of P.W.3. He has stated to have gone to the meeting place in the night and also seen the accused persons assaulting his father-in-law and uncle-in-law. He further states that in the dead night, hands of both being tied, they were taken by the accused persons towards Kalinga Pahad and on the next morning, the accused persons disclosed to have murdered his father-in-law and uncle-in-law and extended threat that if anybody would be reporting the matter to the police, he too would be killed. This part of the evidence also receive corroboration from the evidence of P.W.s 3 and 4. On conjoint reading