MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.261 of 1998 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 4th August 1998 passed by the learned Sessions Judge, Ganjam-Gajapati at Berhampur in Sessions Case No.289 of 1997. ---- Surendranath Sahu ….. Appellant -versus- State of Orissa ….. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. Sarbeswar Prusty Advocate, For Respondent - Mr. S.K. Nayak, Addl. Government Advocate. CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING :09.07.2024: DATE OF JUDGMENT: 20.08.2024 D.Dash, J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 4th August 1998 passed by the learned Sessions Judge, Ganjam-Gajapati at
Legal Reasoning
Berhampur in Sessions Case No.289 of 1997 arising out of G.R. Case CRA No.261 OF 1998 Page 1 of 12 No.97 of 1997 corresponding to Nuagaon P.S. Case No.56 of 1997 of the Court of learned Judicial Magistrate First Class, (J.M.F.C.) Patrapur. 2. The Appellant (accused) has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (for short ‘the IPC’) and he has been sentenced to undergo imprisonment for life. 3. Prosecution Case:- Sadananda Badtiya (deceased) was in love with a girl (name being not disclosed is hereinafter said as “X”) at their village. The accused was close friend of said Sadananda. When he too ran after “X” in having love relationship; that gave rise to ill feeling between the accused and Sadananda. For the reason, there being show- down between the two, Sadananda was apprehensive and trying to avoid the accused. As the matter stood thus, on 23.07.1997, when four young boys were sitting on the bed of Bahuda river near the village, Bholasingi , it was around 6.30 pm, they heard the alarm raised by Sadananda from a place nearby. They then rushed that place and saw Sadananda lying in pool of blood with cut injury on his throat. No sooner did they arrive, they saw this accused holding a Kati (locally made sword) running away from the place towards Padar. Two other persons, who were nearby then, attaining the call of nature had seen the accused dealing the sword blows upon the deceased (Sadananda) and running away from the place. One CRA No. 261 OF 1998 Page 2 of 12 Harekrushna who happens to be the cousin brother of Sadananda (P.W.3) who was among those four boys, who had rushed to the spot and tried to administer water to Sadananda, however, found no response from the side of Sadananda, who by then, had breathed his last. P.W.3 and others thereafter carried the dead body of Sadananda to the village and told about the incident before the father of Sadananda and other villagers. P.W.3 with one Apanna proceeded to Chikiti Police Outpost and narrated the incident before the Police Officer In-Charge of that Outpost who reduced the version of P.W.3 into writing and obtained his signature on the same after P.W.3 admitted the contents to have correctly written as stated by him on being read over and explained. That writing Ext.1 was then sent to Nuagaon Police Station for registration of the case being treated as F.I.R. The S.I. of Police attached to the Outpost (P.W.11) then took up the preliminary investigation. He examined the Informant (P.W.3) and Apanna and went to the spot. He (P.W.11) saw the dead body lying in front of his house. On the next morning, he (P.W.11) held inquest over the dead body and prepared report, Ext.7. Deady body was then sent for postmortem examination by issuing necessary requisition. The First I.O. (P.W.11) prepared the spot map, Ext.8 and seized the incriminating articles. He (P.W.11) apprehended the accused and thereafter the accused while in police custody, is stated to have led P.W.11 and others to the place on the river bed and gave recovery of that Kati, which he had concealed at a place Page 3 of 12 CRA No. 261 OF 1998 under the sand of the river bed. The accused is said to have given his statement in that regard before leading P.W.11 and others to the place in giving recovery of that Kati followed by its seizure. The I.O. (P.W.11) then seized that Kati under seizure list, Ext.10, which was made in pursuance of the statement given by the accused under Ext.11 before leading for the said recovery. On 24.07.1997, said I.O. is P.W.11 as directed by the Superintendent of Police handed over the charge of investigation to the OIC of Nuagaon Police Station (P.W.12). On completion of investigation, the second I.O. (P.W.12) submitted the Final Form placing the accused, to face the Trial for commission of the offence under section-302 of the IPC. 4. Learned J.M.F.C., Patrapur having received the Final Form as above, took cognizance of the above noted offences and after observing the formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing charge against the accused for the said offence. 5. The plea of accused is that of complete denial and false implication. It is his further defence that he had no involvement in the death of the deceased, but it is the family members of that girl “X”, who had actually killed the deceased and by influencing the police have foisted the case against him. CRA No. 261 OF 1998 Page 4 of 12 6. In the Trial, the prosecution examined in total 12 (twelve) witnesses. Out of whom, the important are P.Ws.1, 3, 4 and 5, who had immediately arrived at the spot hearing the alarm of the deceased and state to have seen the accused running away from the place holding the Kati when deceased was found lying with cut injuries on his throat in pool of blood. The Doctor who had conducted autopsy over the dead body of the deceased has been examined as P.W.6. Those four witnesses P.Ws.1, 3, 4 and 5 are also witnesses to the recovery of Kati said to have made pursuant to the statement of the accused while in police custody from inside the sand of the riverbed. Besides leading the evidence by examining those witnesses, the prosecution too has proved several documents which have been admitted in evidence and marked, Ext.1 to 15. Important of those are the plain paper F.I.R. (Ext.1), inquest report, Ext.7, spot map, Ext.8, chemical examination report, Ext.15 etc. 7. The defence having not examined any witness as however proved several documents which have been admitted in evidence and marked Exts.A to E relate to some criminal cases. 8. The Trial Court upon examination of evidence and their analysis having arrived at a conclusion that the death of Sadananda was homicidal in nature had found the prosecution to have established the charge against the accused beyond reasonable doubt. Accordingly, the accused has been convicted for committing Page 5 of 12 CRA No. 261 OF 1998 the offence under section-302 of the IPC and sentenced as aforestated. 9. Learned Counsel for the Appellant (accused) submitted that the F.I.R. (Ext.1) is a manipulated one. In this connection, he contended that when P.W.11 states to have reduced the version of P.W.3 into writing in his own hand, the other documents prepared by him such as the seizures lists, inquest report etc. being perused would reveal that all those were not written by the same person. He, therefore, submitted that this feature from the beginning gives rises to a doubt in mind as to the veracity of the prosecution case. He next submitted that the prosecution witnesses such as P.Ws. 1, 3, 4 and 5 who have been projected as the eyewitnesses had actually not seen the incident and later on, the idea of implicating this accused being floated, they have falsely implicated the accused in saying that they had seen him running away from the spot holding the Kati. He further submitted that the prosecution having not examined any of the family members of “X”, when even no such explanation has been offered on that score adverse this inference is bound to be drawn against the prosecution case and this provides good indication in favour of the defence as regards foisting the case against the accused after due deliberation. He also submitted that the evidence as to the recovery of the Kati at the instance of the accused pursuant to his statement while in police custody as those emanate from the evidence of the prosecution CRA No. 261 OF 1998 Page 6 of 12 witnesses and the I.O. (P.W.11) is highly doubtful. In view of all these above, he urged that the finding of guilty against the accused as has been returned by the Trial Court cannot be sustained.
Legal Reasoning
10. Learned Counsel for the State (Respondent) while supporting the finding of guilt against the accused as has been returned by the Trial Court submitted that the plea as to the manipulation of the F.I.R. had never been raised during trial and, therefore, the contentions for the first time being raised in appeal is liable to be rejected. He further submitted that in view of rock solid evidence coming from the lips of P.Ws.1, 3, 4 and 5 which had remained wholly unshaken and as there surfaces no such material to even doubt credibility of those witnesses and their version when have specifically implicated the accused, the Trial Court has rightly held the prosecution to have established the charge against the accused beyond reasonable doubt. He also submitted that by further taking aid of the evidence that the accused had given recovery of that Kati whose user in causing the injury upon the deceased has been proved through evidence, the Trial Court did commit no mistake in ruling in favour of complicity of the accused in causing the said injury on the neck of the deceased resulting her death. He, therefore, submitted that the Trial Court has rightly convicted the accused for offence under section-302 of the IPC and imposed the sentence. CRA No. 261 OF 1998 Page 7 of 12 11. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction impugned in this Appeal. We have also travelled through the depositions of the prosecution witnesses, P.Ws. 1 to 12. We too have perused the documents admitted in evidence and marked as Exts. 1 to 15. 12. We find from the evidence of the Doctor (P.W.6) that during postmortem examination, he had noticed deep cut wounds on the neck of the deceased. It is his evidence that the carotid artery and muscle of the neck on the left side jugular vein, nerves and the 5th cervical vertebra along with the spinal cord had been cut. The deep cut injuries as per his evidence have led to the death. The postmortem report reflects all these details. The I.O. (P.W.11) having held the inquest over the dead body had also noted such injuries in his inquest report Ext.7 in his own language. Other evidence is also available that the deceased had sustained all these injuries. With the above overwhelming evidence, we have no other option to hold that the deceased met homicidal death. 13. Next coming to the complicity of this accused in causing cut injuries on the neck of the deceased leading to his death, let’s first of all examine the evidence of P.Ws.1, 3, 4 and 5. It has been stated by P.W.1 and 3 that on that day, around 6 pm, they were sitting with Ramakanta and Bailadu on the bed of the river Bahuda running near their village. They state that at that time, they heard Page 8 of 12 CRA No. 261 OF 1998 deceased shouting and when they immediately rushed to the place, they saw deceased Sadananda lying in pool of blood with his throat being cut and then they too noticed the accused running away towards Padar carrying a sword. They carried the dead body of the deceased and disclosed about the incident to the father of the deceased and other villagers. P.W.1 has stated to have reached the spot little while later then P.W.3 and they he saw deceased lying in a pool of blood with his throat being cut into two pieces. He states that P.W.3 then told them that the accused having killed his brother Sadananda was running away. This P.W.1 also states to have seen the accused going away from a distance of two meters. The witness has honestly stated that since he saw accused from his backside and from a distance, his recognition was not so positive but then P.W.3 who according to P.W.1 arrived at the spot before him goes to clearly implicate the accused in seeing him running away from the place towards Padar holding the sword. Said evidence of P.W.3 clears the doubt as regards the identification. His evidence about his arriving at the spot and seeing the accused running away despite cross-examination has not been shaken. P.W.3 too has denied the suggestion that he was then not present on the riverbed. P.Ws. 4 and 5 have stated that they were then attaining the call of nature nearby place and heard the shout of the deceased. They state that when they looked up, they saw accused giving two sword blows on the neck of the deceased and then running away. Page 9 of 12 CRA No. 261 OF 1998 They too also say that P.W.3 arrived there and P.W.3 and others thereafter carried the dead body of the deceased to the village. The sword used by the accused has been identified by this P.W.4 during trial. The distance between the place where P.W.1 and others sitting and the place when the incident took place as said by P.W.1 is 150 meters to 200 meters and that has been so reflected in the spot map, Ext.8. These witnesses being the inhabitant of the area, keeping in view the short distance, the time log in their arrival at the spot as immediately after hearing the cry carries the ring of truth. 14. On a careful reading of the evidence of P.Ws.1 and 3, we find that the same do not carry out any such inherent improbability. That is also the state of affairs in the evidence of P.Ws.4 and 5 who are not at all in enmical terms with the accused and having any reason to falsely implicate him by screening the real offender. We, in the absence of any major contradictions and inherent improbability, find the evidence of P.Ws.1, 3, 4 and 5 to be reliable and trustworthy. The contention of the learned Counsel for the accused as regards manipulation of the F.I.R. as that has been made for the first time in this Appeal and more importantly, P.W.11 having not been confronted with all those documents during trial, at this stage; we are unable to find out any material in support of said manipulation which too is not so glaring. CRA No. 261 OF 1998 Page 10 of 12 15. In additional to the above ocular testimony, we find P.Ws.2 to 11 to have stated that accused giving his statement about concealment of the weapon told about willing to give recovery of the same. The first I.O. (P.W.11) states to have recorded the statement which has been proved as Ext.11. It is the evidence of P.W.11 that accused had led him and witnesses to the riverbed and removing sands from a particular place brought out the sword, M.O.-I. The statement was recorded around 2 pm on that day i.e. 24.07.1997 and the recovery of the weapon has been made at 4 pm. Although the formal arrest of the accused has ben shown to be around 6 pm, it is having been established that the accused before that was in custody of P.W.11 (I.O.) that would clearly fall within the ambit of ‘Custody’ as worded in section-27 of the Evidence Act. Furthermore, the prosecution has proved that the Lungi which has seized from the possession of the accused and marked Ext.G was having human blood of the Group-AB, which is the blood group of the accused as has been found out during chemical examination as per the report under Ext.15. This incriminating circumstance has not at all been explained by the accused. The evidence as discussed above thus, in our view establish the charge under section-302 of the IPC as against this accused in intentionally causing the death of the deceased by inflicting cut injuries on her neck beyond reasonable doubt. CRA No. 261 OF 1998 Page 11 of 12 16.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 4th August 1998 passed by the learned Sessions Judge, Ganjam-Gajapati at Berhampur in Sessions Case No.289 of 1997, are hereby confirmed. The accused, namely, Surendranath Sahu, being on bail, is directed to surrender before the Trial Court forthwith to serve out the sentence. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 22-Aug-2024 18:46:42 CRA No. 261 OF 1998 Page 12 of 12