MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.34 of 2010 : (A) AND CRLA No.320 of 2010 : (B) In the matter of Appeals under section 383 & 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 22nd June, 2010 passed by the learned Additional Sessions Judge (F.T.C.), Balangir at Patnagarh in Sessions Case No.78/32 of 2009. Smt. Sanju Bentakar (In JCRLA No.34/2010) ---- …. Appellants Tirtha Bisi; and Surendra @ Kulu Sunani (In CRLA No.320/2010) -versus- State of Orissa (In both the Appeals) …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants -
Legal Reasoning
Mr.R.N.Mohanty, Advocate (In JCRLA No.34/2010) Mr.D.P.Dhal, Senior Advocate (In CRLA No.320/2010) For Respondent - Mr.S.K. Nayak, AGA (In both the Appeals) CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 04.10.2024 : Date of Judgment : 09.10.2024 JCRLA No.34/2010 & CRLA No.320/2010 Page 1 of 9 D.Dash,J. The three Appellants, in the above two Appeals as at (A) & (B), having faced the trial in the Court of the learned Additional Sessions Judge (F.T.C.), Balangir at Patnagarh in Sessions Case No.78/32 of 2009 arising out of G.R. Case No.447 of 2008 corresponding to Patnagarh P.S. Case No.241(4) of 2008 on the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Patnagarh standing charged for commission of the offence under sections 302/201/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’), have been convicted and sentenced as stated hereunder. The Appeal as at (A) has been filed by the Appellant (Sanju Bentakar) from inside the jail wherein she has challenged the conviction recorded against her for commission of the offence under section 302/201 of the IPC. She has been to undergo imprisonment for life with fine of Rs.2000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the offence under section 302 of the IPC and rigorous imprisonment for three (3) years and fine of Rs.1000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for three (3) months for commission of the offence under section 201 of the IPC, which are to concurrently. The two Appellants as at (B), namely, Tirtha Bisi & Surendra @ Kulu Sunani, have challenged their conviction recorded by the Trial Court for commission of the offence under section 201 of the IPC. They have been sentenced to undergo JCRLA No.34/2010 & CRLA No.320/2010 Page 2 of 9 rigorous imprisonment for three (3) years and pay fine of Rs.1000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for three (3) months for commission of the said offence. 2. Prosecution Case:- In course of inquiry, on 13.12.2008 as regards the facts noted in the Station Diary Book maintained at Patnagarh Police Station (P.S.) dated 12.12.2008 as to the missing of one Braja Bentakar, the Sub-Inspector (S.I.) of Police (Informant-P.W.14) ascertained that Braja was missing after the quarrel with his wife, the Appellant- accused of the Appeal as at (A), concerning some extra marital relationship between said Appellant with other accused Alekh Bisi. So, foul play was suspected in the matter. Accused Alekh, who has been convicted by the Trial Court for commission of the offence under section 201 of the IPC and the sentenced passed thereunder, has not filed any Appeal and it is stated that he has served out the sentence. The Appellant of the Appeal as at (A) and said Alekh had been brought to the P.S. for interrogation. In course of said interrogation, both have disclosed that some time in the third week of February, 2008 on a Satuday, Braja left his house in the early morning and returned around 8.00 a.m. and he then picked up quarrel with Jagdish Bentakar. In course of such quarrel, Jagdish tied a towel around the neck of Braja and strangulated him to death. It is also stated that he then dragged JCRLA No.34/2010 & CRLA No.320/2010 Page 3 of 9 the dead body of Braja from courtyard to the house and then matter was informed to accused Alekh. Thereafter, with the help of others, the dead body was thrown into a well situated at a distance of 2.00 k.m from the house. The S.I. of Police (P.W.14), having presented the written report to the Inspector-in-Charge (IIC) of Patnagarh P.S., the same being treated as FIR, the investigation commenced. Accused Alekh, being apprehended, is stated to have given his statement and pursuant to the same, it is said that he took the police and others to the place where the dead body had been concealed. From that place, one pair of shoes and some bones were seized by the I.O. (P.W.21). The dead body, being thrown in a well, the water of the well was drained out and skeleton of the deceased with his wearing apparels and his shoes were recovered and seized. The dead body was identified to be that of Braja by his daughter (P.W.16). The I.O. (P.W.21) held inquest over the dead body of the deceased and prepared the report to that effect. He also prepared the spot map (Ext.19). Other incriminating articles were also seized and sent for chemical examination through Court. That accused Alekh and the Appellant of the Appeal as at (A) were forwarded in custody to Court. Other accused persons being arrested, later too forwarded in custody to Court. The investigation was then handed over to the new IIC, Patnagarh P.S. (P.W.20), who on completion of the investigation, JCRLA No.34/2010 & CRLA No.320/2010 Page 4 of 9 submitted the Final Form placing these accused persons to face the Trial for commission of the offence under section 302/201/34 of the IPC. 3. Learned S.D.J.M., Patnagarh, on receipt of 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 by framing the charge for the aforesaid offence against these accused persons. 4. In the Trial, the prosecution, in support of its case, has examined in total twenty-two (22) witnesses. P.W.16 has been examined as an witness to the occurrence and she happens to be the daughter of the deceased and accused-Appellant of the Appeal as at (A). P.W.10 is witness to the extra judicial confession of the accused-Appellant of the Appeal as at (A). The Informant, as already stated, is P.W.14 whereas P.W.1 is the Scientific Officer of the District Forensic Science Laboratory. P.Ws.2, 3 & 6 are the fire brigade staffs, who were engaged in draining out the water from the well for recovery of the dead body. The Secretary of the local Gram Panchayat has been examined as P.W.4 and P.W.7 is a co-villager. 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 23. JCRLA No.34/2010 & CRLA No.320/2010 Page 5 of 9 Out of those; important are the FIR (Ext.11) and the report of P.W. is Ext.1. The inquest report is Ext.14/1 whereas the spot map is Ext.19. The Chemical Examiner’s report has been admitted in evidence and marked Ext.11. 5. The accused persons, having taken the plea of denial and false implication have, however, not tendered any evidence in support of their defence. 6. The Trial Court, upon examination of the evidence and their evaluation, has held the accused-Appellant of the Appeal as at (A) to be guilty of commission of the offence under section 302/201 of the IPC and the other two accused persons, who are the Appellants of the Appeal as at (B) along with that accused Alekh have been found guilty of commission of offence under section 201/34 of the IPC and accordingly, all have been sentenced as aforestated. 7. Heard Mr. D.P. Dhal, learned Senior Counsel for the Appellants of the Appeal as at (B) and Mr. R. N. Mohanty, learned counsel for the Appellant as at (A). We have heard Mr. S. K. Nayak, learned Additional Government Advocate for the Respondent-State in both the Appeals. We have also gone through the judgment impugned in these Appeals and perused the evidence both oral and documentary let in by the prosecution. JCRLA No.34/2010 & CRLA No.320/2010 Page 6 of 9 8. The daughter of the deceased (P.W.16) although had been projected by the prosecution to be an eye witness, as regards the incident wherein the death of Braja was caused, she during the Trial has not supported the prosecution case. It is her positive version that on the date of incident, she was not in the house and on return, she saw the dead body of her father. She has simply stated that her statement was recorded under section 164 Cr.P.C. and there she has stated that a quarrel, having ensued between her father and mother, who was having an illicit relationship with another person, her brother Jagdish pressed the neck of her father by a towel and thereafter, her father died. Although she states that statement as above was recorded by the learned Magistrate, she does not state all said facts so during the trial. It is her evidence that she deposed everything before the learned Magistrate as per the saying of the Police. Thus, the evidence of P.W.16 is of absolutely no help to the case of the prosecution. When the evidence of P.W.16 is eschewed from the arena of consideration, it is now required to be seen as to any incriminating circumstances and emanating from the evidence so as to conclude that the chain of events is getting complete in every respect in ruling all the hypothesis other than the guilt of these accused persons. JCRLA No.34/2010 & CRLA No.320/2010 Page 7 of 9 9. The evidence of P.Ws.1, 2, 3, 4, 5, 6 & 7 in no place any circumstance/s pointing the finger of guilt against these accused persons for the offences for which they stood charged. P.W.8 although is a witness to recovery of some incriminating articles at the instance of Jagdish, this witness has also remained unsupportive to the prosecution and that is also the position in the evidence of P.W.9, who had been projected as an eye witness to the recovery of one Merha at the instance of accused Jagdish. 10. P.W.10 is none other than the brother of the accused- Appellant of the Appeal as at (A). He has stated that when in the Kartika Purnima of the year 2008, he had gone to the house of his sister (Appellant of the Appeal as at (A)), he did not see his brother-in-law and then his sister (Appellant of the Appeal as at (A)) disclosed about the death of his brother-in-law. He further states to have then left for the place. Although he has stated to have been examined by the Judicial Magistrate on 14.12.2008 whatever he had stated during then, had not been stated during trial. He simply states that his statement has been recorded to the effect that during his visit to the house of his sister (Appellant of the Appeal as at (A)), she confessed before him that her son Jagdish had committed the murder of Braja in further saying that she was having extramarital relationship with accused Alekha. JCRLA No.34/2010 & CRLA No.320/2010 Page 8 of 9 The facts noted in the statement of P.W.10 recorded under section 164 Cr.P.C. when is not reiterated by him in the trial where his evidence was recorded on oath, cannot be taken as substantive evidence to come to the aid of prosecution in any manner. With the available evidence on record, we are not in agreement with the finding of the Trial Court that the prosecution has proved the charges against these accused persons beyond reasonable doubt. 11.
Decision
In the result, the Appeals as at (A) and (B) are allowed. The judgment of conviction and the order of sentence dated 22nd June, 2010 passed by the learned Additional Sessions Judge (F.T.C.), Balangir at Patnagarh in Sessions Case No.78/32 of 2009 are hereby set aside. Since all the Appellants of the Appeals as at (A) & (B) are on bail, the bail bonds executed by them shall stand cancelled. (D. Dash) Judge I agree. (V. Narasingh) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 09-Oct-2024 14:05:09 JCRLA No.34/2010 & CRLA No.320/2010 Page 9 of 9