MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.287 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 23rd December, 2022 passed by the learned Additional Sessions Judge, Nimapara in S.T. Case No.36 of 2018. Pramod Kumar Sahoo …. Appellant ---- State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Bikram Chandra Ghadei & R.B. Mishra (Advocates) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 04.03.2024 : Date of Judgment : 12.03.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 23rd December, 2022 passed by the learned Additional Sessions Judge, Nimapara in S.T. Case No.36 of 2018 arising out of G.R. Case No.115 of 2018 corresponding to Konark P.S. Case No.36 of 2018 CRLA No.287 of 2023 Page 1 of 12 {{ 2 }}
Legal Reasoning
in the Court of the learned Judicial Magistrate First Class, (J.M.F.C.), Konark. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months. 2. PROSECUTION CASE:- On 05.04.2018 around 8.05 p.m., Harapriya Sahoo was cooking food in her house when her husband Pabitra Kumar Sahoo was absent. The accused, who is the younger brother of Pabitra, suddenly entered into the house and assaulted Harapriya by means of a sharp Katuri. It is stated that the accused gave several blows on the head, neck and others parts of the body of Harapriya. After that, the accused fled away. Hearing the shout of Harapriya, other family members rushed to the spot. Pabitra, the husband of Harapriya, having received the information, returned home. Harapriya was immediately shifted to Hospital at Konark and then, being advised by the Doctor, when was being shifted to the Hospital at Bhubaneswar, on the way, succumbed to the injuries. The accused then threatened Pabitra and his family members. CRLA No.287 of 2023 Page 2 of 12 {{ 3 }} On 06.04.2018 around 2.00 a.m, Pabitra (Informant-P.W.2) lodged a written report with the Inspector-in-Charge (I.I.C.) of Konark P.S. The I.I.C, receiving the written report, registered the criminal case and took up the investigation. 3. The Investigating Officer (I.O.-P.W.27), in course of the investigation, examined the informant (P.W.2) and other witnesses and recorded their statements. The I.O. (P.W.27) on the same day proceeded to the spot and sent a requisition to Scientific Officer, District Forensic Science Laboratory, Puri for spot visit and collection of physical samples. The I.O. (P.W.27), having visited the spot along with the members of the scientific team, prepared the spot map (Ext.16). He (P.W.27) seized blood stained earth, sample earth under seizure list (Ext.1). On the same day around 9.00 a.m., the I.O. proceeded to Capital Hospital, Bhubaneswar and held inquest over the dead body of Harapriya and prepared his report (Ext.3). Thereafter, the dead body of Harapriya was sent for post mortem examination by issuing necessary requisition. The wearing apparels of the deceased were seized by the I.O. (P.W.27) under seizure list (Ext.12). The accused then was apprehended on 07.04.2018 and his wearing apparels were seized under Ext.13. It is stated that the accused person, while in police custody, gave the statement to have concealed the weapon, i.e., Katuri and stated that if he would be taken to the CRLA No.287 of 2023 Page 3 of 12 {{ 4 }} place, he would give recovery of the same. Accordingly, the accused led the I.O. (P.W.27) and other witnesses to the Chandrabhaga Cashew Jungle in giving recovery of Katuri, which was then seized under seizure list (Ext.10). The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the I.O. (P.W.27) submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned J.M.F.C., Konark, 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 for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. 5. The prosecution, in support of its case, has examined in total twenty-seven (27) witnesses during Trial. Out of them, the informant, who happens to be the husband of the deceased, is P.W.2 whereas P.Ws.3, 4 & 5 are the father, younger brother & sister-in-law of P.W.2 respectively and P.W.6 is the cousin brother of the Informant (P.W.2). P.W.7 is the mother of P.W.2. P.W.11 is the son of the deceased and the Informant. The brother-in-law of P.W.2 is P.W.25 and P.W.20 is the scribe of the FIR. P.Ws.21 & 22 are the independent witnesses as well as P.W.26 is a witness to the inquest. P.W.13 is the Scientific Officer. P.Ws.1, 14, 15, 16, 17 CRLA No.287 of 2023 Page 4 of 12 {{ 5 }} & 24 are the official seizure witnesses. P.W.10 is a witness to the confessional statement. P.Ws.8, 18 & 19 are the co-villagers of the Informant (P.W.2). The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.23. The I.O. of the case, at the end, has come to the witness box as P.W.27. 6. 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 22. Out of those, the important are, the FIR (Ext.2), the inquest report (Ext.3); the post mortem report (Ext.14); and the spot map (Ext.17). The report of the Chemical Examiner had been admitted to evidence and marked Ext.21. 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea.
Legal Reasoning
8. Mr.B.C. Ghadei, learned counsel for the Appellant (accused) submitted that the prosecution in this case when has projected the son of the deceased and Informant (P.W.11) as the eye witness, a careful reading being given to the deposition recorded when P.W.11 was aged around 13/14 years, it would be seen that his evidence is not at all reliable and trustworthy so as CRLA No.287 of 2023 Page 5 of 12 {{ 6 }} to form the base of a conviction of the accused. He further submitted that looking at the evidence of the Doctor (P.W.23), who had conducted the autopsy over the dead body of Harapriay, the evidence of other two witnesses (P.Ws.3 & 7) as regards the oral dying declaration made by the deceased before them is highly unbelievable as with such number of injuries, the deceased would have never been in a position to utter a single word. He also submitted that the recovery of Katuri, having been made later in course of the investigation, it is highly doubtful that the same would still continue to carry human blood. He thus submitted that the judgment of conviction and the order of sentence, impugned in this Appeal, cannot be sustained. 9. Mr.P.K. Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against this accused person, as has been returned by the Trial court, contended that the evidence of the son of the deceased and Informant (P.W.11) is wholly trustworthy and reliable. According to him, he, being a child witness, has asserted his presence at the relevant time in stating as to what he was doing then. He further submitted that P.W.11, in a very natural manner, has described the incident, which took place before him and thus when there surfaces no such cogent reason to doubt the evidence of P.W.11 during whose cross-examination, the version relating to the CRLA No.287 of 2023 Page 6 of 12 {{ 7 }} incident and the role of the accused have not even been questioned, according to him, that solitary testimony of P.W.11, can very well form the basis of conviction as the same is of sterling quality. He further submitted that the evidence of P.W.11 received full corroboration from the evidence of the Doctor (P.W.23), who had conducted the post mortem examination over the dead body of the deceased and has stated to have noticed several injuries on the person of the deceased, as noted in the post mortem report (Ext.14), which are possible by a sharp weapon like Katuri. He also submitted that the evidence of P.Ws.3, 7 & 11 as regards the deceased, having uttered before them as to what happened in the incident especially as to the indiscriminate assault being made by the accused upon her when there is no such material to doubt their version, who do not claim themselves to be the eye witnesses and stated to have come later and for whom, it was very natural to ask the deceased as to how that all happened, the same can very well form the foundation of a finding of guilt against the accused. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.27) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.22. CRLA No.287 of 2023 Page 7 of 12 {{ 8 }} 11. As it reveals from the evidence of the Doctor (P.W.23), who had conducted the post mortem examination over the dead body of the deceased, she had noticed nine incised wounds over the dead body of Harapriya and those were on the lateral aspect of right side neck with the cutting of muscles, large vessels and nerves of the right side neck with involvement of the cut fracture of the right side mandible; on the upper tracheal cartilage rings; over the right occipital region of scalp; over the left parietal region of scalp; over the left parietal occipital region; below the right wrist; over the right hand below; over the right inter scapular area of back below the left interior angle of scapula; over the left scapula; and 2 cm above and lateral to the incised wound over the left parietal occipital region. Besides the above, P.W.23 had also found one cut wound over the right hand and three abrasions over the right middle finger, left middle finger and left shoulder. On dissection of the head, she (P.W.23) had detected cutting of right occipital bone and left parietal bone. According to her evidence, all such injuries are ante mortem and the death of Harapriya was on account of shock and haemorrhage following the injury to the body and large vessels of the neck. She has also said that the seized Katuri (M.O.I), which had been sent to her for examination, can cause such injuries. When such is the evidence of P.W.23, which has gone unchallenged, we too find the evidence of the I.O. (P.W.27), who held the inquest over the dead CRLA No.287 of 2023 Page 8 of 12 {{ 9 }} body and noted all such injuries in report (Ext.3). Other prosecution witnesses including P.Ws.3, 7 & 11 have stated to have seen such injuries over the body of the deceased. With all these evidence on record, we are left with no option but to concur with the finding of the Trial Court that Harapriya met a homicidal death. 12. Coming to address the prosecution evidence as regards the complicity of the accused, first of all, let us have a look at the evidence of the son of the deceased and the Informant (P.W.2). He, at the time of his examination, was aged around 13/14 years old. The Trial Court, having tested him by putting certain questions, as mentioned in the deposition, has found him competent to depose on oath. It is his evidence that on 05.04.2018 around 8.00 p.m., he was doing his homework (school task) in his house and at that time, the accused was sitting on the verandah. Around that time, he suddenly heard the cry of his mother (deceased) and the shout that “DAUDI AA PAKU DADA MOTE HANI DELA”. The witness states that when hearing the shout of his mother, he came out of the room, he saw the accused (Uncle-Dada) assaulting his mother with the bill-hook. The natural and normal reaction of the witness has been expressed that he immediately called his grandmother and no sooner his grandmother did arrive, the accused ran away. CRLA No.287 of 2023 Page 9 of 12 {{ 10 }} This P.W.11 has further stated to have immediately lifted his mother and administered water when his father rushed and took his mother (deceased) to the Hospital. During cross-examination, he has stated that he was doing his homework (school task) in the room, which intervenes the room where his mother was cooking. It has also been elicited from him that the accused is called Paku Dada, which tallies with the cry of his mother that “DAUDI AA PAKU DADA MOTE HANI DELA”. Absolutely no cross- examination has been directed in bring out any such material so as to create any doubt in mind as to his presence in the house at the relevant time, which rather appears to be wholly acceptable as the boy was a school going one and ordinarily during the time, the school going children use to remain engaged in reading. Although a suggestion has been given to this witness (P.W.11) that he had not stated before the I.O. (P.W.27) that he heard the cry of his mother (deceased) that “DAUDI AA PAKU DADA MOTE HANI DELA” and then, having come out of the room, saw the uncle “PAKU’’ was assaulting his mother (deceased) with bill-hook and he called his grandmother, who came, the same appears to have not been proved through the I.O. (P.W.27). Nothing is also there on record to even remotely infer that this P.W.11 had any reason to falsely implicte the accused, who is none other than his uncle in screening the real offender. The evidence of this witness (P.W.11) also received the corroboration CRLA No.287 of 2023 Page 10 of 12 {{ 11 }} from the evidence of the Doctor (P.W.23), who has stated that the injuries are possible by that Katuri (M.O.I). 13. Furthermore, the evidence of P.W.3 is to the effect that when at the relevant time in the evening, he with his wife were sitting on the verandah, he heard the shout of his grandson (P.W.11) that “MO BOU KU HANI PAKAILA’’, and then he with his wife entered into the house and found the accused going away through the backdoor holding a Katuri. He is the father of the accused and father-in-law of the deceased. It is also his evidence that the deceased had disclosed that Paku @ Pramod (accused) had assaulted her. Although it was suggested to this witness (P.W.3) that he had not stated before the I.O. (P.W.27) about this declaration, being made by the accused and his rushing to the place hearing the shout, we are again find that the same has not been proved through the I.O. (P.W.27) so as to even consider for a moment as to whether the same can be treated as a material contradiction to discard the evidence of P.W.3. Then, comes the evidence of P.W.7, who is the wife of P.W.3 and the mother of the accused and the Informant and mother-in- law of the deceased. Her evidence is that when hearing the shout, she went, she saw the accused fleeing away holding a Katuri and then Harapriya (deceased), who was lying injured, asked for water and said the accused to have hacked her. The witness CRLA No.287 of 2023 Page 11 of 12 {{ 12 }} (P.W.7), having been cross-examined, we find no such material to have been elicited to entertain any doubt over her evidence and discard the same. P.Ws.3 & 7, being the parents of the accused as
Decision
well as the Informant are equally disposed of towards them. With the above discussed evidence of P.Ws.3, 7 & 11 on record, we find ourselves to be wholly in agreement with the finding of the Trial Court that the prosecution has established the charge against the accused beyond reasonable doubt. 14. In the result, the Appeal is dismissed. The judgment of conviction and order of sentence dated 23rd December, 2022 passed by the learned Additional Sessions Judge, Nimapara in S.T. Case No.36 of 2018, are hereby confirmed. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 03-Apr-2024 13:11:37 CRLA No.287 of 2023 Page 12 of 12