The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO. 330 OF 2018 : (A) AND CRLA NO.331 OF 2018 : (B) In the matter of Appeals under Section-374 of the Code of Criminal Procedure, the judgment of conviction and order of sentence dated 7th learned Sessions Judge, Gajapati- April, 2018 passed by Paralakhemundi in S.T. Case No.91 of 2015 arising out of Mohana P.S. Case No.61 of 2015 of the Court of learned J.M.F.C., Mohana. the Santosh Mallik (In CRLA No. 330 of 2018) & Kalia Mallik & Another (In CRLA No. 331 of 2018) -versus- .… Appellants. State of Orissa (In CRLA Nos. 330 & 331 of 2018 ) …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical ================================================== For Appellants - Ms. Bijaylaxmi Tripathy, (Advocate in CRLA Nos.330 & 331 of 2018. For Respondents - Mr.S.K. Mishra, Addl. Standing Counsel, (Advocate in CRLA Nos.330 & 331 of 2018. CORAM: MR. JUSTICE D.DASH MR.JUSTICE SASHIKANTA MISHRA Date of Hearing : 10.03.2023 : Date of Judgment: 27.03.2023 D.Dash,J. Since both these Appeals are directed against the judgment of conviction and order of sentence dated 07.04.2018 passed by the learned CRLA Nos. 330 & 331 of 2018 Page 1 of 14 {{ 2 }} Sessions Judge, Gajapati-Parlakhemundi in S.T. Case No.91 of 2015 arising out of G.R. Case No.70 of 2015 in the Court of learned J.M.F.C., Mohana corresponding to Mohana P.S. Case No.61 of 2015; those were heard together for their disposal by this common judgment. All these three Appellants (accused persons) with five others faced the trial for commission of offence under sections 302/201/506/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). The Trial Court having convicted these three accused persons has acquitted the other five accused persons. These three accused persons being convicted for offence under section-302/34 of the IPC, they have been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- each, in default to undergo rigorous imprisonment for six months. The accused, namely, Kalia Mallik and Jala Mallik have also been sentenced to undergo rigorous imprisonment for a period of seven years and pay fine of Rs.5,000/- each, in the default to undergo rigorous imprisonment for six months with the stipulation that the substantive sentences would run concurrently. 2. Prosecution case is that in the night of 05.07.2015, when the informant (P.W.7) and her husband Purna Mallik (deceased) were sleeping in their house, accused persons namely, Santosh, Kalia and Jala came and called Purna Mallik (deceased) to go with them to attend Page 2 of 14 CRLA Nos. 330 & 331 of 2018 {{ 3 }} village meeting. Accepting the request, Purna Mallik (deceased) having gone with them, did not return home in the night. On the next morning, the wife of the deceased, P.W.7 went in search of her husband-Purna. In course of search, she met accused, Kalia, Jala and Santosh. So she asked them the whereabouts of her husband-Purna (deceased). These accused persons then disclosed before her (P.W.7), to have killed Purna and burnt the dead body. Having told that, they threatened this P.W.7 that if she would report the matter to police, she would also be killed. So, out of fear, the Informant (P.W.7) remained silent for that day and on the next day i.e. on 07.07.2015 having mustered/gathered courage, she went to Mohana Police Station and presented the written report as regards all those happenings. The Inspector-in-Charge (IIC) of Mohana P.S. receiving the report, treated the same as F.I.R.(Ext.11), registered the case and he then took up investigation. 3. In course of investigation, the Investigating Officer (I.O.) examined the Informant (P.W.7) and also other witnesses. He visited the spot and collected half burnt bones and ashes from the place where the dead body of the Purna had been burnt to ashes. Accused persons namely, Kalia and Jala thereafter were apprehended and arrested. They are then stated to have then confessed to have committed the crime that
Facts
by assaulting Purna by means of wooden plank to death, have set fire to CRLA Nos. 330 & 331 of 2018 Page 3 of 14 {{ 4 }} the dead body. Other accused persons (since acquitted) are stated to have taken part in the burning the dead body and thereby causing disappearance of evidence. The I.O. (P.W.10) then seized the wearing apparels of the accused persons and collected their nail clippings. The incriminating articles were sent to Regional Forensic Science Laboratory (RFSL), Berhampur for chemical examination through Court. On completion of investigation, Final Form was submitted placing the accused persons to trial for commission of offence under section-302/201/506/34 of the IPC. 4. Learned Judicial Magistrate First Class, Mohana having received the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the trial commenced against these accused persons as also five others by framing the charges for the above mentioned offences. 5. In the Trial, the prosecution has examined in total fifteen (15) witnesses. Out of whom, the important are P.W.7, the Informant and P.Ws. 2 and 3 are her brother and sisters respectively. The mother of the Informant (P.W.7) has been examined as P.W.13. The Investigating Officer who was associated in the investigation from the beginning, has come to the witness box as P.W.14; whereas P.W.15 is the IIC, who at CRLA Nos. 330 & 331 of 2018 Page 4 of 14 {{ 5 }} the fag end, having received the charge of investigation from P.W.14 submitted the charge-sheet. Besides leading the evidence through above witnesses, the prosecution has also proved several documents; of which the F.I.R. is Ext.11, the statement of the accused persons are Ext.2/2 and 3/2 etc. During Trial, the half burnt wooden plank and wearing apparels of the accused persons etc. having been produced as Material Objects, those have been marked M.O.-I to M.O.-XIII. 6. The plea of defence is that of denial and false implication. The accused persons being called upon to tender evidence if any have however not done so. 7. The Trial Court on examination of the evidence of the prosecution and upon their assessment has held these three accused persons guilty for commission of offence under section-302/34 of the IPC and two of them namely, Kalia Mallik and Jala Mallik have also been found guilty for the offence under section-201/34 of the IPC. The Trial Court has acquitted the other five accused persons holding that the prosecution has failed to establish the charges against them beyond reasonable doubt. Accordingly, these three accused persons have been sentenced as aforestated. CRLA Nos. 330 & 331 of 2018 Page 5 of 14 {{ 6 }} 8.
Legal Reasoning
made during the trial by P.W.7, in our view cannot be so lightly brushed aside by stating to be too minor to be taken note of for testing the credibility of the version of P.W.7 more particularly, when it is coupled with the delay in lodging the F.I.R. which has remained unexplained during the trial by leading acceptable evidence. CRLA Nos. 330 & 331 of 2018 Page 9 of 14 {{ 10 }} 12. At this juncture, We may turn our attention to the evidence of P.W.2, who is the younger brother of P.W.7 and the deceased is his brother-in-law. Although he has stated that on 05.07.2015 night, these accused persons killed Purna and burnt his dead body in the Bari of Purna, admittedly, he is not a witness to have seen that or any part of it and is also not stating as to under what circumstance he could witness the same and it was at what time. It is his evidence that in the early morning around 8.00 am, P.W.7 ran to his and told him about the occurrence. So from that it is clear that he is a witness to have only heard about the occurrence from his sister, P.W.7. He is also not stating that P.W.7 had disclosed before him that she by then had enquired from these accused persons and had known that those accused persons had done Purna to death. It is his evidence that on the request of P.W.7, he accompanied her to the police station to lodge the report. But it is also not stated as to on which date they had gone and what they did for a day and how it was passed. He has again stated that accused-Kalia and Jala led the police to the place where the dead body of Purna had been burnt and prior to that, before police they had confessed to have killed Purna and burnt his dead body. So called confession since falls from the mouth of this P.W.2 to have been in presence of Police Officer is not admissible in evidence and thus cannot looked into. Furthermore, when CRLA Nos. 330 & 331 of 2018 Page 10 of 14 {{ 11 }} he is not stating that his sister P.W.7 had told that accused persons had confessed before her to have intentionally caused the death of Purna, the evidence of P.W.7 on that score is rendered doubtful as she could not have missed to divulge such an important fact to her own brother. This witness is also not stating as to when accused-Kalia and Jala led the police to the place where dead body had been burnt and wherefrom they started the journey for that and then where the accused persons gave their statements in that regard before the police in his presence. 13. Now the evidence of P.W.3 when is gone through, it reveals that although he states that accused persons namely, Kalia, Santosh and Jala had come to the house of Purna around 10.00 pm in the night of 05.07.2015, how he came to know about the same is not stated. He is also not stating that he in that night of 05.07.2015, was in the house of Purna. He straightway goes to say that around mid day, he with the Informant went to the police station. But then also he has not stated that P.W.1 had also accompanied them. It is not also stated by P.W.3 that P.W.7 had disclosed all those facts that her husband left the house in the night of 05.07.2015 with the accused persons and then on the morning, the accused persons being asked, told P.W.7 to have killed Purna. The fact however remains that the F.I.R. has been lodged on 07.07.2015 at 5.30 pm. When this witness states that accused Jala and kalia being CRLA Nos. 330 & 331 of 2018 Page 11 of 14 {{ 12 }} arrested and taken to custody by police in his presence, they confessed that they with other accused persons killed Purna and burnt his dead body; she is not stating that on which date, at what time, and at which place these accused persons namely, Kalia and Jala divulged the said acts done by them. Furthermore, the so called confession as stated by this P.W.3 being made before police is of no value in the eye of law. When he states that these two accused persons namely, Jala and Kalia had led the police to the place where the dead body had been burnt and then police had recovered the half burnt wood, bones and ashes etc., he is not stating as to from which place they started journey for the mission after the accused persons namely, Jala and Kalia gave their statements. 14. Interestingly enough, the P.W.14, who is the first I.O. has stated to have visited the spot on 08.07.2015 at 8.00 am in the morning being identified by P.W.7 and there he saw the burnt bones and ashes and accordingly, prepared the spot map, Ext.12 and seized those ashes and bones. His evidence being trailed, it is seen that he is not stating the time, when he arrested the accused persons namely, Kalia and Jala. He has gone to state that the accused persons confessed before him about the details of the occurrence and thereafter, led him and others in showing the place where the dead body had been burnt. This practically makes no sense and in view of the evidence discussed above rather gives CRLA Nos. 330 & 331 of 2018 Page 12 of 14 {{ 13 }} rise to a doubt in mind that as by that time, P.W.14 had already visited the place where the dead body had been burnt, and that place was no more unknown to him as also others. In view of that without any further details being stated by P.W.14 as to where the accused persons were arrested and at what time, they gave the statements and then, accordingly the journey started, the evidence as to the recovery of the wooden planks at the instance of these accused persons from the place where they had kept those under concealment is not acceptable. During cross-examination, this P.W.14 has again stated that he arrested all the accused persons on 08.07.2015 at 5.00 pm. But then he is again stating that two accused persons were not physically present, but then who was present and who were absent is not clarified. At the risk of repeatation, it be stated that the prosecution case from the beginning is that accused persons namely, Jala and Kalia gave their statements and led the police and other witnesses. 15. In such state of affairs, in the evidence even if we accept the evidence of P.W.7 that in the night of 05.07.2015, the accused persons and the deceased left the house of the deceased together to attend the village meeting. Since no evidence is forthcoming that it was a false declaration from the side of these accused persons regarding holding of the meeting and there being also no evidence on record that no meeting CRLA Nos. 330 & 331 of 2018 Page 13 of 14 {{ 14 }} in fact had been held in the village, We are not in a position to accept the version of P.W.7 that accused persons had confessed before her to have intentionally caused the death of her husband-Purna. So that lands prosecution nowhere. Thus, We are of the considered view that the prosecution has not been able to establish the charges against these accused persons by beyond reasonable doubt by leading clear, cogent and acceptable evidence. Therefore, We are constrained to hold that the judgment of conviction and order of sentence impugned in these Appeals cannot be sustained. 16.
Arguments
Learned Counsel for the Appellants submitted that the prosecution case when rests with circumstantial evidence, no circumstances unerringly pointing at the guilt of the accused persons have been proved through clear, cogent and acceptable evidence. She submitted that even accepting for a moment that the deceased had gone with these accused persons in the night and was thus last seen by his wife P.W.7 in the company of these accused persons, that itself is not enough to return the finding in saying that in all human probabilities, it is these accused persons who had caused the death of the deceased and none else. Inviting our attention to the depositions of the P.W. 7 as well as P.Ws, 2, 3 and 13, she submitted that basing on their versions, the Trial Court ought not to have held these accused persons as the authors of the crime in intentionally causing the death of Purna and to have set fire to the dead body. She further submitted that there being absolutely no corroboration available from other evidence to the evidence of P.W.7 in support of the last seen theory; the Trial Court’s finding against these accused persons is not sustainable in the eye of law. 9. Learned Counsel for the State while supporting all in favour of the finding of guilt rendered by the Trial Court as against these accused persons submitted that the evidence of P.W.7 being clear and remaining unshaken that the deceased was taken by these accused persons from his CRLA Nos. 330 & 331 of 2018 Page 6 of 14 {{ 7 }} house, when it is proved that he thereafter did not return, it being detected on the next morning that the dead body had been burnt to ashes and when as per the evidence of the P.W.7, all the three accused persons confessed to have killed the deceased and set the dead body to fire, the same provide full corroboration to the last seen theory. He thus submitted that all these evidence are enough to fasten the guilt upon the accused persons. He further submitted that the evidence being record that accused Kalia and Jala led the police and other witnesses to the place of concealment of the wooden planks and gave recovery of those two wooden plank, which have been seized, that being a strong circumstance pointing at the guilt of the accused persons; the Trial Court has rightly concluded that the chain is complete in every respect in ruling out all the hypothesis other than the guilt of the accused persons and therefore, the conviction of the accused persons recorded by the Trial Court has to sustain. 10. Keeping in view the submissions as above, We have carefully read the impugned judgments. 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 12. 11. The wife of the deceased (P.W.7) in her F.I.R., Ext.1 as narrated that accused persons namely Kalia, Santosh and Jala came to their house CRLA Nos. 330 & 331 of 2018 Page 7 of 14 {{ 8 }} around 10.00 pm in the night and called her husband (deceased) to accompany them for attending a meeting and the husband of the deceased went with them. It is further stated therein that till morning her husband did not return and therefore, when she went for search, in that process, she asked accused persons-Kalia and Santosh as to why her husband did not return after having gone with them in the night; when they told to have killed her husband and set the dead body to fire. In the trial, she has stated that when she was searching for her husband in the early morning and enquired regarding the whereabouts of her husband from these accused persons, they told her to have killed her husband and set the fire to the dead body. Thus, when in the F.I.R., Ext.11, it is narrated that accused-Kalia and Santosh was asked by P.W.7; in the evidence, there comes the improvement that all the three including accused-Jala were asked and they told to have killed the deceased and set fire to the dead body. This gives rise to a doubt as to whom she asked. It is further seen that in the night of 05.07.2015, the deceased having left his house did not return. The F.I.R., Ext.11 has been lodged on 07.07.2015 by none other than P.W.7 at 5.30 pm. The explanation although is provided in the F.I.R. that the delay had occasioned due to the threat given by those two accused persons namely, Kalia and Santosh for which it took time to gather courage; that is not at all stated CRLA Nos. 330 & 331 of 2018 Page 8 of 14 {{ 9 }} by her in the evidence before the Trial Court. P.W.7 again is not stating which normally under the circumstance would be the reaction of a wife that she had ever asked the accused persons about the place where dead body was set fire and then to have made any attempt to reach that place either on her own or with the help of others. In the entire F.I.R., it is not stated by P.W.7 that after hearing from those two accused persons namely, Kalia and Santosh, she had disclosed the same before any one and that is also not stated by her in the trial. She when states in cross- examination that three accused persons stated before her to have killed her husband, other villagers being also present had heard the words which has fallen from the mouth of the three accused persons and this is also conspicuously absent in the F.I.R., Ext.11. No other villagers have deposed in support of the said fact that these accused persons had made any confession to have committed the murder of Purna in their presence or in presence of P.W.7. These omissions in the F.I.R. and improvement
Decision
In the result, the Appeals are allowed. The impugned judgment of conviction and order of sentence dated 07.04.2018 passed by the learned Sessions Judge, Gajapati, Parlakhemundi in S.T. Case No.91 of 2015 are hereby set aside. The accused persons (Appellants) be set at liberty forthwith, if their detention is not required in connection with any other case. Sashikanta Mishra,J. I agree. Narayan (D. Dash), Judge. (Sashikanta Mishra), Judge. CRLA Nos. 330 & 331 of 2018 Page 14 of 14