MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.28 of 2010 In the matter of an Appeal under section 383 of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 08.04.2010 passed by the learned Additional Sessions Judge, Nayagarh in S. T No.113 of 2008. 1) 2) Bhagabat Mallik … Appellants Bidyadhar Mallik . -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants- Mr. R. Acharya Advocate For Respondent- Mr. S. K. Nayak Additional Government Advocate CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of Hearing: 04.09.2024 :: Date of Judgment:09.10.2024 D. Dash, J The Appellants, by filing this Appeal from inside the Jail,
Legal Reasoning
have challenged the judgment of conviction and order of sentence dated 08.04.2010, passed by the learned Additional Sessions Judge, Nayagarh in S.T No.113 of 2008, arising out of G.R No.34 of 2008, corresponding to Dasapalla P.S. Case No.23 of 2008 of the Court of the learned Judicial Magistrate First Class (JMFC), Dasapalla. JCRLA No.28 of 2010 Page 1 of 10 The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (in short, ‘the IPC’) and each has been sentenced to undergo imprisonment for life and fine of Rs.2,000/- in default to undergo rigorous imprisonment for one year. 2. Prosecution Case:- On 21.03.2008, around 7 am, Narayan, son of Padmanava (Informant-P.W.3) had been to attend the call of nature in the field locally known as “Jada Kiari” in his village Banibiri. It is stated that these accused persons with 7 others being armed with lathi and axe, attacked him and intentionally caused his death. Padmanava (P.W.3), father of the deceased Narayan lodged a written report on 21.03.2008 at 8.30 am with the Officer-in-Charge (OIC), Dasapalla Police Station. Receiving the said report, the OIC (P.W.7) treated the same as FIR (Ext.3) and registering the case, took up the investigation. 3. In course of investigation, the I.O (P.W.7) examined the Informant (P.W.3) and proceeding to the spot, held inquest over the dead body of the deceased and prepared the report (Ext.1/3) to that effect in presence of the witnesses. He (P.W.7) then sent the dead body for post mortem examination by issuing requisition. He also seized two axes as well as the wearing apparels of the deceased which according to him were incriminating. Those seized incriminating articles were sent for chemical examination through Court. On completion of investigation, he (P.W.7) submitted the Final Form showing Surendra Dehury as absconder and placing accused JCRLA No.28 of 2010 Page 2 of 10 persons to face the trial for commission of the offence under section 302/34 of the IPC. 4. Learned JMFC, Dasapalla, having received the Final Form as above, took cognizance of the offence under section 302/34 of the IPC and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against these accused persons framing the charge for the said offences. 5. In the Trial, prosecution in total has examined seven (07) witnesses. As already stated, P.W.3 is the Informant, who happens to be the father of the deceased whereas P.W.4 is the mother of the deceased. P.W.1 to P.W.5 are the witnesses to inquest and seizure and P.W.2 is an independent witness. The Doctor, who had conducted autopsy over the dead body of the deceased is P.W.6 and the I.O is P.W.7. 6. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.11. Out of those, the important are the FIR, Ext.3, Inquest Report, Ext.1/3, Spot Map, Ext.7, Post Mortem Report, Ext.5 and the Chemical Examination Report is Ext.11. In the trial, the seized incriminating articles being produced and those have been marked Material Objects (M.O-I to M.O-VI). 7. The plea of the accused persons is that of complete denial. Being called upon, no evidence has been let in from the side of the defence. The Trial Court holding the trial against these two accused persons as also one Uttam Bagh when another co-accused, namely, JCRLA No.28 of 2010 Page 3 of 10 Surendra Dehury having absconded, his case had not been committed for trial; upon examination of evidence and their evaluation, has held that the prosecution has established the charges against these two accused persons while holding that with the available evidence, the prosecution has failed to prove its case in respect of the accused Uttam Bagh. Accordingly, these accused persons were convicted for commission of the offence under section 302/34 of the IPC whereas said Uttam Bagh has been acquitted. We are told by the learned Additional Standing Counsel that no Appeal has been filed challenging the judgment of acquittal passed in respect of the accused Uttam. 8. Learned counsel for the Appellants (accused persons) submitted that the so called eye witnesses , i.e., P.W.3 & P.W.4 although have stated to have seen the occurrence; said part of their evidence when viewed with all the facts and circumstances emanating from the evidence of other prosecution witnesses as well as the documents admitted in evidence and marked exhibits on behalf of the prosecution, said evidence would not be safe to be relied upon. In support of the same, he has invited our attention to the depositions of P.W.3 and P.W.4 as also the FIR (Ext.3). He further submitted that the FIR (Ext.3) is a manipulated one and it can usually be so found that when the Informant (P.W.3) states to have lodged the FIR at the spot, the I.O (P.W.7) very much asserts to have received the said FIR (Ext.3) at the Police Station at 8.30 p.m., when the distance from the spot and the Police Station is around 35 km as indicated in the FIR (Ext.3) which the I.O (P.W.7) states to be 25 km and the occurrence is said to have taken place around 7 am. He further submitted that the FIR (Ext.3) is highly suspicious JCRLA No.28 of 2010 Page 4 of 10 document inasmuch as its scribe as would be found from the note in the FIR (Ext.3) has not been examined to say that he had so scribed the FIR as per the direction of P.W.3. He further submitted that although it reveals from Ext.3 that said scribe was an Advocate’s Clerk, this P.W.3 states to have got the FIR written through an unknown person. He next placing the deposition of P.W.3 and P.W.4 contended that if those are read side by side, lack of consistency on material aspects of the case would be glaring. He submitted that the evidence of P.W.3 and P.W.4 when read simultaneously, would clearly raise doubt in mind as regards that their presence in witnessing the occurrence since their version on the role of the accused persons greatly differ. He, therefore, submitted that the evidence on record being properly scanned would not justify the finding of the Trial Court holding the accused persons guilty for committing the murder of Narayan. He also submitted that when the Trial Court has disbelieved the version of P.W.3 & P.W.4 insofar as the role said to have been played by that Uttam Bagh with these accused persons is concerned, the very same evidence could not have been relied upon to fasten the guilt upon these accused persons in accepting their evidence as regards the role played by these accused persons as the parts are so inextricably mixed up that it is not possible to separate. He, therefore, contended that the judgment of conviction and order of sentence impugned in this Appeal Cannot be suspended. 9.
Legal Reasoning
Learned counsel for the Respondent-State submitting all in favour of the finding of the Trial Court holding these accused persons guilty for commission of the offence under section 302/34 of the IPC submitted that the Trial Court has rightly accepted the version of P.W.3 & P.W.4 JCRLA No.28 of 2010 Page 5 of 10 by ignoring the minor discrepancies. He further submitted that the manner in which the incident took place when viewed in its proper perspective, the variations in the evidence of P.W.3 and P.W.4 are bound to occur and in the facts and circumstances, those being minor, has been rightly ignored by the Trial Court to take note of in having any adverse impact upon the substitution of the prosecution case. 10. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.7 and have perused the documents admitted in evidence and marked Ext.1 to Ext.11. 11. It is not in dispute that Narayan met homicidal death which the prosecution has proved through the Doctor, P.W.6, who had conducted Post Mortem Examination over the dead body and submitted his report Ext.5 noting six (6) number of injuries on different parts of the body of the deceased as also the evidence of the I.O (P.W.7), who having held inquest had noted such injuries on the person of the deceased in his report (Ext.1/3) and other witnesses, who had seen the deceased lying dead with all those injuries which are not seriously challenged by the defence. 12. The question now arises as to whether with the available evidence on record, the accused persons can be said to have intentionally caused the death of the deceased in holding that the prosecution has proved the charge against them beyond reasonable doubt. JCRLA No.28 of 2010 Page 6 of 10 At this stage, it be taken note of that the case having been registered in total against nine (9) persons showing them as the accused in the relevant column of the FIR (Ext.3), the Final Form was submitted placing these two accused persons, Uttam Bagh (since acquitted) and one Surendra Dehury. Accused Uttam Bagh having faced the trial has been acquitted whereas Surendra has remained an absconder. The father of the deceased (P.W.3) in his FIR (Ext.3) which he has lodged on 21.03.2008 at 8.30 a.m, at the P.S. which is at a distance of 35 k.m from village where the incident took place has implicated all the nine (9) persons which include these accused persons in stating that all holding lethal weapons having surrounded the deceased had assaulted him and had caused his death. In the entire FIR, it is not stated that he had seen the incident happening before him. He rather mentions there that when he with others rushed to the spot, those assailants fled away. It is also not stated in the FIR as to exactly where the incident took place and also whether these accused persons and others assaulted the deceased somewhere near the house of the deceased. While deposing in Court, it has been stated by P.W.3 that on his reaching near the ditch, he saw none except his son lying dead with injuries and he remained there till 8 am when the police arrived and there only, his statement was recorded and he signed thereon. He does not state to have gone to the police station in lodging the FIR. The scribe of the FIR has not been examined. During examination-in-chief, this P.W.3, placed the happenings in a different way that it was accused Bidyadhar and Surendra guarded his son when the deceased had been to attend the call of nature and accused Bhagabata and Surendra hacked him by tangia. JCRLA No.28 of 2010 Page 7 of 10 He also does not state that above happenings were in their presence. He further states to have rushed to the police station and got an FIR scribed from an unknown person and lodged the same. He states that he had seen the incident standing near his house. It is stated that the passage from his house to the Jada Bila is the ridge and through the bushes whereas the spot where his son was assaulted is a ditch having the depth of 5-6 feet. He again states that accused Bidyadhara and Surendra guarded his son by the side of the ditch and accused Bhagabta and Surendra hacked his son inside the ditch. When in the FIR it is seen that the total nine (9) persons were present in the occurrence; during Trial, he states that except four persons, none were present there were his son was being assaulted. Although he states that seven/eight inhabitants of their village had seen the incident, he is not able to name them saying that they were ladies. Having stated that his wife (P.W.4) was witnessing the assault with him, he states that she (P.W.4) did not go to the spot with him. He having stated at one stage to have gone to the police station and lodged the FIR, next states to have given the FIR at the spot and that he asserts that he had not submitted any report except that which he submitted at the spot. Thus the evidence of P.W.3 greatly varies with his FIR version and the FIR itself appears to be a suspicious document which tells upon the credibility of the prosecution case. 13. Coming to the evidence of P.W.4, it is found that when she had gone outside after sweeping the house she heard hullah that Narayan told that MAALO HANIDELE and so she rushed to Jada Bari. It is her evidence that her son Narayan waylaid the Buffaloes in the Kothighara JCRLA No.28 of 2010 Page 8 of 10 and went to attend the call of nature to Jada Bari. She states that having rushed to Jadabari, she saw accused Bhagabata and Surendra dealing tangia on his son Achyuta and then Ashoka, Bidyadhara, Sania, absconding accused Sridhara and acquitted accused Uttam were guarding his son holding thenga. The version of P.W.3 and P.W.4 on this score, are not only inconsistent but also highly discrepant. She says that when she shouted and cried seeking protection, her husband, P.W.3 came but, P.W.3 has stated something else as already pointed out above. During cross-examination, she says to have seen accused Surendra and Bhagabata hacking Narayan inside the ditch. She is again saying that when police arrived there, she was very much present whereas her husband was not. She denies that her husband had given the report to the police at the spot. More interestingly, this P.W.4 as has been proved had not stated about the fact that she had heard her son shouting HANIDELE during her examination in course of investigation. P.W.3 had also not stated during investigation that he had seen accused Bidyadhara and Surendra guarding his son who was then returning after attending call of nature and accused Bhagabata and Surendra hacked him. No other independent witnesses have been examined from the side of the prosecution. 14. On an overall analysis of the evidence of P.W.3, P.W.4 and P.W.7, we are unable to conclude that it would be safe to rely upon them in holding that prosecution has proved the charge against these accused persons beyond reasonable doubt. 15. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 08.04.2010, passed by the JCRLA No.28 of 2010 Page 9 of 10 learned Additional Sessions Judge, Nayagarh in S.T No.113 of 2008 are hereby set aside. V.Narasingh, J. I Agree. (D. Dash) Judge (V. Narasingh) Judge Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Oct-2024 11:49:19 JCRLA No.28 of 2010 Page 10 of 10