The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.229 of 2019 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 18th March, 2019 passed by the learned Additional Sessions Judge, Bhanjanagar in S.T. No.21 of 2016. ---- Pramod Behera & Another …. Appellants -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. Gyanendra Chandra Swain, (Advocate) For Respondent - Mr. S.S. Kanungo Addl. Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 17.04.2023 :: Date of Judgment: 05.05.2023 D.Dash,J. The Appellants, by filing this Appeal, have impeached the judgment of conviction and order of sentence dated 18.03.2019 passed by the learned Additional Sessions Judge, Bhanjanagar in S.T. No.21 of 2016 arising out of G.R. Case No.170 of 2014 corresponding to Badagada P.S. Case No.77 of 2014 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Sorada. CRLA No.229 of 2019 Page 1 of 15 {{ 2 }} The Appellants (accused persons) with seven others having been charged for commission of offence under sections 302/120(B)/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) faced the trial and it is only these two Appellants (accused persons) have been convicted for committing the offence under sections 302/34, I.P.C. whereas the other seven accused persons who had been arraigned as accused have been acquitted of all the charges. These Appellants (accused persons) have accordingly been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- each in default to undergo rigorous imprisonment for six months each for the offence under section 302, I.P.C. with the stipulation that the realized fine be paid to the wife of the deceased (P.W.12). 2. Prosecution case is that on 03.06.2014 around 7 a.m. Chandra Nayak (deceased) who happens to be the brother of Bhaba Charan Nayak (P.W.14) had gone to village Gangapur on his Motor Cycle after having sent his Tractor to get a load of sand from Sorada. While returning to his village from Gangapur through Badagada, it is said that persons, namely, Tuna Swain, Kishore Panda and Raju Sethi (arraigned as accused and have been acquitted) who were having enmity with the deceased followed him. So, it is said that they had hatched a criminal conspiracy at Badagada Chhak with two others, namely, Sima Behera and Panchu Behera (arraigned as accused and since acquitted). It was around 8.30 a.m. on the way near the house of one Mahadev Gouda, these accused persons, namely, Pramod Behera, and Baya Behera with three others, namely, Basanta Behera, Susanta Behra and Sarata Behera (arraigned as accused and since acquitted) restrained the deceased with the help of Page 2 of 15 CRLA No.229 of 2019 {{ 3 }} a rope. It is stated that Basanta, Susanta and Sarata (since acquitted) caught hold of the deceased and these two accused persons then assaulted him by means of Kati and Katua causing bleeding injuries on his head and neck leading to his death. Receiving the information, as to the said incident, the brother of the deceased (Informant-P.W.14) rushed to the spot and found his brother lying dead. He then reported the matter in writing to the Sub- Inspector of Police (S.I. of Police-P.W.26) present at Badagada Police Station. The S.I.(P.W.26) in the absence of Inspector-In- Charge (I.I.C.) of the Police Station immediately registered the case by treated the same as F.I.R. (Ext.6) and took up investigation. The S.I. of Police (I.O.-P.W.26 ) examined the Informant (P.W.14) and deputed the Constable to guard the dead body at the spot. He then went to the spot and prepared the spot map in presence of witnesses. He also held inquest over the dead body of Chandra Nayak (deceased) and prepared the inquest report (Ext.1). The dead body of Chandra Nayak (deceased) was then sent for post mortem examination by issuing necessary requisition. He also seized blood stained and sample earth with the Hero Honda Motor Cycle bearing registration no.OD-07A 3119, one plastic rope, one colour Yxtel mobile phone and one black colour Nokia mobile phone from the spot and prepared the seizure list. He also seized one blood stained Katua from the spot and prepared the seizure list to that effect in presence of witnesses. He, however, having searched for the accused persons in their respective houses could not traced them out. He then examined two other witnesses and thereafter seized the wearing apparels of the deceased on production of those by the Police CRLA No.229 of 2019 Page 3 of 15 {{ 4 }} Constable, who had gone with the dead body for post mortem examination. Necessary seizure list to that effect was also prepared. On 05.06.2014 around 3.30 a.m. getting the reliable information, he apprehended the accused Pramod and then the other accused Baya was arrested when he was there at Berhampur Railway Station. Their wearing apparels were seized under seizure list. On that day around 6.40 p.m., it is said that accused Pramod while in police custody confessed the guilt and gave his statement before P.W.26 in presence of the witnesses. That accused Pramod then led the I.O. (P.W.26) and other witnesses to the bank of Tirtha Bandha and at that place from near a Neem tree, he gave recovery of some blood stained iron kati fitted with wooden handle. That iron kati fitted with wooden handle was seized under the seizure list in presence of witnesses. In course of investigation, the I.O. (P.W.26) gathered the information that these accused persons were having long standing enmity with the deceased. On completion of investigation, he submitted the Final Form placing these two accused persons with seven others to face the trial for commission of offence under section 120-B/302/34, I.P.C. 3. Learned J.M.F.C., Sorada having receipt the Final Form as above took cognizance of the said offences and after observing the formalities committed the case to the Court of Sessions for trial. That is how the trial commenced by framing the charges for the said offences against these accused persons and seven others. 4. The prosecution, in course of trial, has examined in total twenty-eight (28) witnesses, which include the Informant (P.W.14) who happens to be the brother of the deceased and P.W.12 who is the wife of the deceased. The parents of the deceased have been Page 4 of 15 CRLA No.229 of 2019 {{ 5 }} examined as P.W.15 and P.W.16. The witnesses to the inquest are P.W.1, 9 and 27. The villagers of the deceased and accused persons have come to the witness box as P.W.2 to 5 and 10. One resident of village Surekhadeipur has been examined as P.w.6 and the witnesses to the statement of accused Pramod while in police custody in leading the police and others to the place in giving recovery of the Kati are P.W.7 and 8. The other villagers who had rushed the spot after the incident are P.W.11 and 13 whereas the seizure witnesses are P.W.17,18,20,22,23 and 24. The scribe of the F.I.R. (Ext.6) has come to the witness box as P.W.25 whereas P.W.26 is the I.O. The doctor who had conducted autopsy over the dead body of the deceased has been examined as P.W.19. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in evidence and marked Exts.1 to 24. Out of those, the F.I.R. is Ext.6 whereas the inquest report and post mortem report are Exts.1 and 8 respectively. The statement of the accused Pramod has been admitted in evidence and marked Ext.3 whereas the consequential seizure list is Ext.4. The report of the Chemical Examiner has been admitted in evidence and marked Ext.23. During the Trial the seized Katua and Kati with other incriminating materials collected in course of investigation have been placed before the Court and those have been marked as Material Objects (M.O.I to XVII). 5. The defence case is that of complete denial and false implication on account of their long standing enmity with the CRLA No.229 of 2019 Page 5 of 15 {{ 6 }} deceased. The accused persons, however, have not tendered any evidence, either oral and documentary, in support of their defence.
Legal Reasoning
The Trial Court having gone through the evidence of P.W19, the Doctor who had conducted the Post Mortem Examination over the dead body of Chandra Nayak as also other prosecution witnesses, who had seen the deceased lying dead with injuries on his persons and more importantly, the evidence of P.W.26 who had held inquest over the dead body of the deceased and prepared the report (Ext.1) has arrived at a conclusion that the deceased met a homicidal death. In fact, this aspect of the case was not under challenge before the Trial Court and that is also the situation before us. P.w.14 the brother of the deceased who is the Informant has said to have reached the spot and found his brother Chandra lying dead with injuries on his head and neck and then he says to have reported the matter to the I.O. (P.W.26). The I.O. (P.W.26) having held inquest over the dead body has noted all those features noticed in his report (Ext.1). The Doctor conducting the Post Mortem Examination over the dead body of the deceased (P.W.19) has stated to have noticed two incised wounds on the left fronto-parietal region and left side of neck cutting all the muscles and large vessels. He also deposed to have noticed one stab injury on the middle of the chin. All these injuries have been reflected in his report Ext.9. His evidence is that the said injuries are ante mortem in nature and have taken place within 8 to 12 hours of his examination. He has stated that the injuries to the neck and brain with other injuries have caused the haemorrhagic shock and the death has been the consequence. It is also his evidence that he having examined the Kati and Katua sent CRLA No.229 of 2019 Page 6 of 15 {{ 7 }} by the I.O. (P.W.26) was of the opinion that the injuries sustained by the deceased could be possible by user of said weapons. His further evidence is that the injuries are sufficient in ordinary course of nature to cause the death. With such evidence on record remaining unassailed, we are wholly in agreement with the finding of the Trial Court that the deceased met a homicidal death. 6. Learned counsel for the Appellants (accused) submitted that the prosecution having projected P.W.3 and 14 as the eye-witnesses to the occurrence, admittedly P.W.3 has not supported the prosecution version of the incident and the Trial Court has gone wrong in relying upon the evidence of P.W.14, the brother of the deceased and the Informant who had lodged the F.I.R. (Ext.6). He submitted that on going through the F.I.R. (Ext.6) as also the material omissions in his statement before the I.O. (P.W.26) as those amounts to serious contradictions, the Trial Court ought not to have accepted the version of P.W.14 as to have at all seen the occurrence. He further submitted that the evidence of P.W.14 who is an interested witness has not all been put to strict scrutiny by the Trial Court and what he has stated in his examination-in-chief has been accepted as the gospel truth. In this connection, he has invited our attention to the averments made in the F.I.R. (Ext.6) and the deposition of P.W.14 as well as the deposition of the I.O. (P.W.26) through whom such material omissions as to the important facts have been proved. He, therefore, submitted that under no circumstance, the evidence of P.W.14 can be relied upon to fasten the guilt upon these accused persons as stated to have taken part in the killing of the deceased. He further submitted that when the evidence of P.W.14 is acceptable, no such circumstance unerringly pointing at the guilt of Page 7 of 15 CRLA No.229 of 2019 {{ 8 }} these accused persons has also been proved. According to him, the circumstances such as the recovery of the iron Kati pursuant to the statement of accused Pramod has not been proved beyond reasonable doubt by leading clear, cogent and acceptable evidence and the prosecution has also not led any evidence to establish the motive behind the crime. He also submitted that the confession of accused Pramod ought not to have been accepted as the same is inadmissible in evidence being made in presence of P.W.26 and the Trial Court having concluded that the said confession is voluntary and free and has been made by the accused in a free state of mind has committed grave error of law. He submitted that simply because the Katua and one full shirt (M.O.I and IV) have been found to contain human blood are of no significance in so far as the complicity of these accused persons are concerned. It was stated that the Katua being seized from the spot traces of human blood even though is noticed, the same per se is not a circumstance against any of these accused persons when there is no direct evidence on record that any of these accused persons had used that Katua in causing injuries on the deceased. He also submitted that the seizure of the wearing apparels of the accused Baya having been made two to three days after the incident, trace of human blood being found on it without any proof that it was of the same group as that of the deceased, that is of no significance. 7. Learned Additional Government Advocate for the Respondent submitted all in favour of the finding of guilt returned by the Trial Court as against these accused persons. According to him, P.W.14 is a natural witness and merely because in the F.I.R. (Ext.6) and in his previous statement in course investigation, he had not stated to have Page 8 of 15 CRLA No.229 of 2019 {{ 9 }} seen the incident, the same would not be fatal to his version in court which has not been shaken by cross-examination. He further submitted that the circumstances such as the long standing enmity between the accused persons on one hand and the deceased on the other as well as the discovery of Kati from the place where accused Pramod had kept it concealed have been rightly taken into account to convict these accused persons. 8. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction passed by the Trial Court. We have also extensively travelled through the depositions of the witnesses (P.W.1 to 28) examined from the side of the prosecution and have perused the documents admitted in evidence and marked Ext.1 to Ext.24 from the side of the prosecution. 9. The prosecution during trial has presented two witnesses, i.e., P.W.3 and P.W.14 as its star witnesses. It be stated here that P.W.3 during trial has not supported the prosecution case and, therefore, reliance is placed upon the solitary testimony of the P.W.14, who happens to be the Informant-brother of the deceased and had lodged the written report, which has been treated as F.I.R. (Ext.6). The F.I.R. (Ext.6) has been received at 10.45 a.m. on 03.06.2014, which is shortly after the occurrence. It is a written one and has been scribed by P.W.25. In the F.I.R. P.W.14 has stated in clear terms that he having got the information about the incident had gone to the spot and saw his brother lying dead and then he went to the Police Station to lodge the F.I.R. Although in the F.I.R., the narration as to the happenings of the incident are there, in view of the very averment that Informant went to the spot after receiving the information about CRLA No.229 of 2019 Page 9 of 15 {{ 10 }} the incident does not place him in the position of a witness to have seen the occurrence in his own eyes. Now P.W.14 in his deposition states that he with his brother had gone to Gangapur village and when his brother returned, he for some time stayed back at Gangapur village and after 10 to 15 minutes came on foot. He states to have then gone to the local Anganwadi Centre and there he saw his deceased brother to have been restrained by accused persons who were armed and then accused Pramod was seen to have holding a Kati. It is his evidence that he was then standing at a distance of 150 to 200 meters from the exact place where the incident took place, and had seen the incident. It is further stated by him that he could see a rope lying nearby and by that rope, he says his brother has been restrained when he was coming on his Motor Cycle. The witness does not appear to be telling the truth that when he had not seen the accused persons restraining his brother while coming on Motor Cycle, he had even gone to state so by simply seeing the rope lying nearby, more so, when he does not stated to have been so informed by anyone regarding that part of the incident which happened at the beginning. His evidence is that accused Pramod then was holding a Kati. Although he says that other accused persons were armed, he does not state as to who was holding what type of weapon. It is his further evidence that accused Baya assaulted his brother on his back by means of Katua and then accused Pramod assaulted on the neck of his brother by Kati. During cross-examination, he has stumbled by stating that by the time of his arrival at the spot, the accused persons had already assaulted his brother and he was lying on the ground. The Trial Court has said that since this witness was present at a distance of 150 to 200 meters from the place of occurrence, it was CRLA No.229 of 2019 Page 10 of 15 {{ 11 }} well within his visible range and as all the accused persons are known and it was during morning hours, his version is quite acceptable. He has denied to have stated before the I.O. (P.W.26) during investigation that after getting phone call from the wife of the deceased (P.W.12) regarding assault on his brother by the members of the Behera family, he had been to the spot and saw his brother lying dead. He has also denied to have not mentioned in the F.I.R. about his presence near the place of occurrence from at a distance of 150 to 200 meters and to have seen the assault on his brother by the accused persons. The Investigating Officer who had recorded the statement of P.W.14 during cross-examination has, however, stated as under:- “P.W.14 Bhaba Charan Nayak had not stated before me that he returned from Gangapur by walking to the village and that deceased Chandra returned to is village via Badagada and that after returned, he went to the Anganwadi Centre and that he found his deceased brother to have been restrained by the accused persons of whom most were armed and that accused Pramod was holding a Kati and a rope was lying nearby”. PW.26 has also stated that P.W.14 had not stated before me to have seen the occurrence and rather had stated before him to have heard about the incident from one Tuna Badtia. The omission on the part of this P.W.14 to state about his presence at a distance of 150 to 200 meters from the place of occurrence and to have seen the incident in detail especially as to the role of these accused persons in assaulting the deceased by means of Kati and Katua when it has also CRLA No.229 of 2019 Page 11 of 15 {{ 12 }} been categorically stated in the F.I.R. that he having heard about the incident had gone to the spot, which he now says to have witnessed the incident from a distance and afterwards had gone to the exact place of occurrence are certainly the contradictions as all these facts in our considered view ought to have been so stated by P.W.14 when he had the occasion to narrate the incident in the F.I.R. as well as before P.W.26. These contradictions, according to us are material and run to brand this P.W.14 as an unreliable witness. Thus, we conclude that his testimony is not trustworthy and the prosecution thus has not been able to prove the happenings in the incident covering the roles of these accused persons played therein through this witness. The evidence of P.W.14 thus when do not come to aid of the prosecution in establishing the charges against these accused persons; now let us see how far the circumstances projected by the prosecution have been proved and whether those being cumulatively viewed unerringly point at the guilt at these accused persons ruling out all such hypothesis other than their guilt. The first circumstance is the motive. Simply because P.W.14 has stated that because of previous enmity these accused persons have committed the murder of the deceased and that having been said by PW.7 and 8, in our considered view the prosecution cannot be said to have established the motive behind the crime. Prior enmity between the parties being not proved with some definite instances, that enmity being stated in a general manner to stand as the motive behind the crime would not inspire confident in mind. The Trial Court has relied much upon the version of P.W.7 and 8. But it is their version that the accused persons being in police custody has stated so, which in our Page 12 of 15 CRLA No.229 of 2019 {{ 13 }} considered opinion is not admissible and not being the version of P.W.7 and 8 having knowledge of their own. Next comes to the statement of accused Pramod before P.W.26 while in his custody. It be stated that what it is said by the prosecution to have been stated by Pramod before Police regarding the role in the incident in killing the deceased which is not admissible in evidence being hit under section 25 of the Evidence Act. The other evidence now calls for examination is that how far the prosecution has proved that accused Pramod while in police custody pursuant to his statement that he had kept that Kati in a particular place had led P.W.26 and P.W.7 and 8 to that place in giving to recovery of the same, which was seized. Let us first come to the evidence of P.W.7. It has been stated by P.W.7 that accused after confessing his guilt while in police custody stated to have concealed the Kati near Tritha Bandha under a Neem tree. His specific evidence is as under: “Pramod further confessed that he had concealed the Kati near one Tritha Bandha and accordingly he led the police along with us to the above spot where one blood stain Kati kept concealed below the Neem tree was recovered by the police at the instance of Pramod in our presence”. Then the evidence of P.W.8 reads as under:- “Pramod further confessed that he had concealed the above Kati below one Neem tree situated near one Tritha Bandha and accordingly he led the police to the Page 13 of 15 CRLA No.229 of 2019 {{ 14 }} above place and gave recovery of Kati in our presence and the above Kati was stained with blood at that time”. The above being the evidence of P.W.7 and 8, it has been stated by P.W.26 as under:- “On the same day at 6.40 p.m. Pramod Behera confessed his guilt and I recorded his statement under section 27 of the Evidence Act in presence of the witnesses and the accused had also signed on the same in my presence after admitting the contents to be true. Thereafter the above accused led him and other witnesses to the place of concealment, i.e., on the bank of Tritha Bandha under a Neem tree of village Padmapur from where I recovered one blood stained iron Kati having wooden handle and I also seized the same and prepared seizure list in presence of witnesses and accused who all had singed on the seizure list in my presence. The statement has been admitted in evidence and marked Ext.3. The above evidence being read together fail to pass through the required tests as to admissibility of the fact discovered, i.e., the recovery of the Kati from the place which was known to accused Pramod and it was
Decision
within his special knowledge. Thus we hold that the prosecution has failed to establish the charges against these accused persons beyond reasonable doubt by leading clear, cogent and acceptable evidence and the judgment of conviction and the order of sentence impugned in this Appeal cannot be sustained. 10. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 18.03.2019 passed by the CRLA No.229 of 2019 Page 14 of 15 {{ 15 }} learned Additional Sessions Judge, Bhanjanagar, in Sessions Trial No.21 of 2016 are hereby set aside. The Appellants (accused persons), namely, Pramod Behera and Baya Behera be set at liberty forthwith, if their detention is not required in connection with any other case. Dr. S.K. Panigrahi I agree. (D. Dash) Judge. (Dr.S.K. Panigrahi) Judge. HIMANSU SEKHAR DASH Digitally signed by HIMANSU SEKHAR DASH Date: 2023.05.05 17:09:16 +05'30' Himansu CRLA No.229 of 2019 Page 15 of 15