The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.182 of 2019 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 20th March, 2019 passed by the learned Sessions Judge, Gajapati, Parlakhemundi, in S.T. No.90 of 2015. Gopabandhu Sabar @ Gopa …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mrs.Shelly Das (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel Mr.H.K.Dash Advocate for the Informant CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 12.07.2023 : 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 20th March, 2019 passed by the learned Sessions Judge, Gajapati, Parlakhemundi, in S.T. No.90 of 2015 arising out of G.R. Case CRLA No.182 of 2019 Page 1 of 11 {{ 2 }} No.59 of 2015 corresponding to R. Udayagiri P.S. Case No.33(6) of
Facts
2015 in the Court of the learned Judicial Magistrate First Class (J.M.F.C.), R.Udayagiri. 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 six (6) months for the offence under section 302 IPC; and undergo rigorous imprisonment for five (5) years for commission of the offence under section 201 of the IPC with a direction that the substantive sentences would run concurrently. 2. On 30.06.2015, one Priyadas Mali (P.W.2) presented a written report (Ext.2) with the Inspector-in-Charge (I.I.C.) of R.Udayagiri Police Station (P.S.) stating therein that on 21.06.2015, around 8.00 p.m., his younger brother, namely, Prabhabchandra Mali @ Babudas; after having left the house on receiving a phone call, had not returned. It was also stated therein that despite search; as they could not trace him out, they had lodged a missing report at Ramagiri Outpost of 24.05.2015. On 21.06.2015, an information was received from one Jitendra Missal that accepting the request of Prabhabchandra Mali @ Babudas, he CRLA No.182 of 2019 Page 2 of 11 {{ 3 }} had dropped him in the house of Subhrakeshi Sabar and then had returned on the motorcycle of said Babudas. In course of time, further information was received from the villagers that on 21.06.2015, this accused, namely, Gopabandhu Sabar@ Gopa, his wife Subhrakeshi Sabar and one of his friends Krupana Raita (who having faced the Trial, have been acquitted) killed Prabhabchandra @ Babudash by calling him over phone and have caused disappearance of evidence by concealing the dead body somewhere. On receipt of the above written report, the I.I.C. treated the same as FIR and upon registration of the case, took up investigation. In course of investigation, the Investigating Officer (P.W.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 I.I.C. (I.O.-P.W.17) examined the Informant (P.W.2) 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). He, having made inquest over the dead body of the deceased, prepared the report to that effect (Ext.1). CRLA No.182 of 2019 Page 3 of 11 {{ 4 }} On 01.07.2015, he arrested this accused. It is stated that this accused, while in police custody, stated to have kept the iron rod in a particular place nearby the reiver near Village-Laxmipur. Having stated that he would give recovery of said iron rod, it is said that he led P.W.17 and others to that place and gave recovery of the same, which were seized under seizure list (Ext.3/2). Other incriminating articles such as motorcycle, mobile phone sets with SIM card were seized by the I.O. (P.W.17). On 02.07.2015, other accused person, who has been acquitted, i.e., Krupana Raita was arrested and thereafter the 3rd accused, Subhrakesi was also arrested from her house. The dead body of the deceased, having been sent for post mortem examination, the report to that effect was received. The incriminating articles were also sent for chemical examination by the Court on the prayer of the I.O. Since the I.O. (P.W.17) was under the order of transfer, the investigation of the case was entrusted to another Sub-Inspector (S.I.) of Police (P.W.20), who, on completion of the investigation, submitted the Final Form placing the accused to face the Trial for commission of the offences under section 302/201/34 of the IPC. 4. Learned J.M.F.C., R. Udayagiri, on receipt of the Final Form, took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions. That is CRLA No.182 of 2019 Page 4 of 11 {{ 5 }} 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 twenty (20) witnesses during Trial. As already stated, P.W.2 is the elder brother of the deceased and he had lodged the FIR (Ext.2). The parents of the deceased are P.Ws.5 & 6. The Doctor, who had conducted the autopsy over the dead body of the deceased has come to the witness box as P.W.14. P.Ws.1, 3, 4, 9, 10, 18 & 19 are the independent witnesses and the I.O., who conducted major part of the investigation when has been examined as P.W.17 when the next I.O. has come to the witness box as P.W.20. 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 25. Out of those, the important are, the FIR (Ext.2), the inquest report (Ext.1), the spot map (Ext.16); the post mortem report (Ext.13) and the statement of the accused while in police custody has been admitted in evidence and marked Ext.17. CRLA No.182 of 2019 Page 5 of 11 {{ 6 }} 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 this accused (Gopabandhu Sabar @ Gopa) beyond reasonable doubt whereas two others have been acquitted of the charges. Accordingly, the present accused has been convicted for intentionally causing the death of Prabhab Chandra Mali @ Babudas and sentenced, as afore-stated. 9.
Legal Reasoning
Now, coming to the evidence of P.W.5, we find that he has stated that on 21.06.2015, Jitendra Missal and Patita Lima (P.W.19) came to his house and called his son (deceased) to accompany them to attend the phone call. Accordingly, Babudas (deceased) went with them on his motorcycle and thereafter, he did not return. It is further stated that Jitendra and Patita (P.W.19), on being asked, informed that the deceased had gone away from the village and he would return within 2 to 3 days. When this P.W.5 says to have heard from Jitendra and Patita (P.W.19) that this accused and two others had killed his son, the CRLA No.182 of 2019 Page 8 of 11 {{ 9 }} report lodged by him is silent on that important score. That Jitendra has not been examined and only that Patita has been examined as P.W.19. But, then he has not supported the prosecution case and despite cross-examination by the prosecution, with the permission of the Court, we find that no such material has been elicited from him so as to come to the aid of case of the prosecution in any manner. The, next witness is P.W.6, who is the mother of the deceased. It is her evidence that the deceased went with Jitendra and Patita (P.W.19) and thereafter, did not return. She has further stated that when her deceased son did not return, P.W.5 lodged a report with the Police at Ramagiri P.S. and seven days thereafter, the Police Officer told P.W.5 that their son was murdered near Village Randiba under the jurisdiction of R. Udayagiri Police Station where he lodged the written report and this witness (P.W.6) and her husband (P.W.5) had been to the place where the dead body of their son was seen lying with injuries. So, both these witnesses simply state to have seen the accused leaving the house on the motorcycle with Jitendra and Patita (P.W.19) and that P.W.19 is not stating anything in support of the prosecution case as regards the deceased having gone to the house of this accused. 13. The evidence as to the recovery of the iron rod, in our considered view, even if accepted to have been made at the CRLA No.182 of 2019 Page 9 of 11 {{ 10 }} instance of this accused, we find that the prosecution case is not being improved. Even then the evidence of P.W.17 with regard to the recovery of the iron rod at the instance of the accused while in police custody do not satisfy the tests laid down for its admission with the aid of section 27 of the Evidence Act. Thus, we find that the prosecution has not been able to prove any such incriminating circumstance by reliable and clinching evidence and, therefore, the question of forming the chain of events for safe drawal of irresistible conclusion of the guilt of the accused leaving no other hypothesis other than his guilt does not arise. For the discussion, as above, we find ourselves not in a position to uphold the finding of the Trial Court that the accused is guilty for commission of the offence punishable under section 302/201 of the IPC in intentionally causing the death of Prabhaschandra Mali (Babudas). We are, therefore, of the view that the finding of the Trial Court that the prosecution has established the charge against accused, Gopabandhu Sabar @ Gopa 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. CRLA No.182 of 2019 Page 10 of 11 {{ 11 }} 14. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 20th March, 2019 passed by the learned Sessions Judge, Gajapati, Parlakhemundi, in S.T. No.90 of 2015 are hereby set aside. The accused, namely, Gopabandhu Sabar @ Gopa, 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 14:48:44 CRLA No.182 of 2019 Page 11 of 11
Arguments
Learned counsel for the Appellant (accused) submitted that the entire case of the prosecution is based on the circumstantial evidence. According to her, the circumstances, which have been projected by the prosecution are not at all incriminating and they do not point of finger of complicity as against this accused. She further submitted that those circumstances when are too weak, the question of formation of complete ring with the help of other circumstances being taken as links, does not arise in the present case. She submitted that the Trial Court, without properly examining the evidence of the witness as regards the circumstances and without noting each of the circumstances and stating as to how they stand against this accused, record the conviction, which is liable to be set aside. 10. Learned Additional Standing Counsel for the Respondent- State and the learned counsel for the informant, on the other CRLA No.182 of 2019 Page 6 of 11 {{ 7 }} hand, submitted that the Trial Court9s finding that the accused is guilty for commission of the offence under section 302/201 of the IPC is well in order. According to them, the evidence of the prosecution witnesses, being on the score that the deceased was with the company of this accused and thereafter was not seen, as the accused is not providing any explanation as to under what circumstance, the death had taken place, he has been rightly convicted. 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 20) and have perused the documents admitted in evidence marked as Exts.1 to 25. 12. The Doctor, who had conducted the post mortem examination over the dead body of the deceased, which was in gross decomposed stage, is P.W.14. He has stated to have noticed one fracture extending from bridge of nose, maxilla to fronto temporal region (right side). His evidence is that the death was due to damage to vital areas as a result of head injury. It is his evidence that the death had taken place within 7 to 14 days of his examination. He has also stated that such injuries on the head are possible in case of fall from a good height. The above, being the CRLA No.182 of 2019 Page 7 of 11 {{ 8 }} medical evidence, now let us examine the evidence of other witnesses. P.W.2 is the informant, who happens to be the elder brother of the deceased. He states to have received information from his father (P.W.5) that his younger brother was missing. He further states to have been informed by his father (P.W.5) that one Jitendra Misal and Patita Lima had taken the deceased in a motorcycle to Tikata Sahi of Village-Ranadiba to the house of this accused. It is his evidence that he heard from P.W.6 that at Village-Ranadiba, with the help of his wife Subhrakesi and Krupana, who have been acquitted, this accused killed the deceased. So, this P.W.2 is not a witness to any of the circumstances as against this accused. His entire evidence is based upon the information, which he received from P.W.5.