MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.180 of 1998 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment dated 08.05.1998 passed by the learned Additional Sessions Judge, Bhubaneswar in S.T. Case No.16/373 of 1996. Prasanna Bhoi …. Appellant -versus- State of Odisha …. Respondent For Appellant : Ms. G. Patra, Amicus Curiae For Respondent : Mr. G.N. Rout, ASC CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 09.04.2024 : Date of judgment :20.08.2024 V. Narasingh, J. The Appellant has called in question the judgment of conviction and the order of sentence dated 08.05.1998 passed by the learned Additional Sessions Judge, Bhubaneswar in S.T. Case No.16/373 of 1996. 2. The Appellant has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, „the IPC‟). Accordingly, he has been sentenced to undergo imprisonment for life. CRA No.180 of 1998 Page 1 of 10 3. The case of the Prosecution is that in the intervening night of 11/12.05.1996 at about 1 A.M. one Ramakrushna Behera @ Musa (the deceased) was murdered at village Sahani Kasipur situated under Khandagiri police station in the District of Khurda. At that time, the deceased was sleeping on the outer verandah of his house and whereas, his wife Tula Behera (P.W.8) and daughter Sabita Behera (P.W.9) both were sleeping inside the house. Tula Behera and Sabita Behera woke up hearing the shouting “Boulo Marigali” of Ramakrushna Behera-the deceased. After that Sabita
Legal Reasoning
Behera (P.W.9) first came out of the house and found her father, Ramakrushna Behera (deceased) lying below the verandah with bleeding injuries on his chest and at that point of time, the Appellant-accused was found running away holding a “Kanka”. After that Sabita Behera-P.W.9 narrated the incident before her mother Tula Behera (P.W.8) who followed her and the other co- villagers who had by then assembled at the spot, on hearing the hulla. The injured Ramakrushna Behera was taken to the Capital Hospital, Bhubaneswar where he was declared dead. 4. On receipt of telephonic message about the incident, the Inspector In-charge of Khandagiri police station (P.W.13) reached the spot and reduced the oral report of Tula Behera (P.W.8), wife of CRA No.180 of 1998 Page 2 of 10 the deceased, relating to the alleged incident and directed the S.I. of police Khandagiri police station (P.W.12) to take up investigation vide Ext.7 (F.I.R.). 5. During the course of investigation, the I.O. (P.W.12) held inquest over the dead body, took steps for post-mortem examination and examined the witnesses and recorded their statement U/s.161 of Cr.P.C., arrested the accused and seized the alleged weapon of offence i.e. the Kanka (M.O.I) after one month from the date of occurrence. On conclusion of investigation, charge sheet was submitted against the Appellant-accused U/s.302 of IPC. 6. To fortify the charge under Section 302 of IPC, the Prosecution has examined 13 witnesses. P.W.1 P.W.2 P.W.3 P.W.4 P.W.5 P.W.6 P.W.7 P.W.8 Gagan Bhoi (brother of the accused) Prema Bewa (mother of the accused) Ramakrushna Pradhan Harihar Behera-co-villager Babaji Bhoi (Constable) Santos Kumar Misra (Doctor) Nabakishore Swain (Constable) Tula Behera- informant (the CRA No.180 of 1998 Page 3 of 10 P.W.9 P.W.10 P.W.11 P.W.12 P.W.13 wife of the deceased) Sabita Behera (daughter of the deceased) Benu Behera Ankura Bhoi Bhabani Sankar Patnaik (I.O) Rahas Bihari Pani (I.I.C) 7. Besides above, the prosecution also proved several documents which were admitted into evidence and marked as Exts.1 to 13, out of which Ext.7-FIR, Ext.1-Inquest report, Ext.2 and 2/1-Post mortem report, Exts.6, 9 & 12-seizure list, are of seminal significance and several material objects were also admitted into evidence, out of which M.O.I-Kanka is the alleged weapon of offence. 7.A. No evidence was let in by the defence and defence plea is one of complete denial and false implication. 8. Admittedly, the case at hand is based on circumstantial evidence and the prosecution in order to drive home the charge primarily relied on the dying declaration of the deceased and the conduct of the accused running away from the spot holding the alleged weapon of offence “Kanka-M.O.I” and the said M.O.I not CRA No.180 of 1998 Page 4 of 10 being found in the house of the accused since the night of the occurrence. So as far as the dying declaration is concerned, P.W.8-wife of the deceased (informant) in her deposition stated that the deceased named the present appellant-accused as the assailant by means of a Kanka along with others. 9. Learned Trial court on an analysis of evidence on record came to the categorical finding since that P.W.9 the daughter of the deceased had not stated anything about the dying declaration and referring to the evidence of P.Ws.10 and 11 who reached the spot on hearing the shouts of P.Ws.8 & 9, the wife and the daughter of the deceased respectively, did not state about such dying declaration, disbelieved the evidence of P.W.8 relating to dying declaration that the present appellant was implicated by the deceased and hence did not take into account the so called dying declaration, while evaluating the evidence relating to the complicity of the appellant. 10. The factor which weighed with the learned Trial Court in holding the appellant as the author of the crime is the evidence of P.W.9 that the accused was going away from the spot along with the alleged weapon of offence Kanka (M.O.I) and the learned Trial CRA No.180 of 1998 Page 5 of 10 Court also relied on the evidence of P.W.2-the mother of the appellant that there were two kankas in their house and one kanka was missing after the occurrence and she identified the Kanka- M.O.I being used by the accused. 11. Learned Trial Court has also referred to the evidence of P.W.10 that present accused person was running away holding a kanka and relying on the evidence relating to the M.O.I as discussed above, the learned Trial Court came to the finding that the chain of circumstances regarding the involvement of the accused is complete and that the present accused caused the death of the deceased by means of the Kanka-M.O.I in the night. 12. Learned counsel for the appellant submitted that the appreciation of the evidence is ex-facie perfunctory, if analyzed on the touchstone of the judgment of the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116. 13.
Legal Reasoning
Learned counsel for the State Mr. G.N. Rout, ASC & Public Prosecutor on the other hand supported the judgment of conviction and the sentence imposed. CRA No.180 of 1998 Page 6 of 10 14. It is apt to note that M.O.I, the alleged weapon of offence kanka was recovered from a water channel. 15. No attempt was made on behalf of the prosecution to put that kanka for T.I. Parade to conclusively establish that the same belongs to the accused and that attains significance from the evidence of P.W.1 as well as the seizure witness-P.W.13 who have categorically stated that such Kankas like M.O.I are available in each house and it is on record that the said M.O.I. was recovered on 11.06.1996, one month after the date of occurrence which was on 11/12.05.1996. 16. The prosecution has not brought the evidence on record to indicate that the Kanka-M.O.I belongs to the accused-appellant, in the face of evidence on record that such kankas were commonly available in the entire village. 17. Learned Trial Court allowed its judgment to be clouded by the evidence of P.W.2-the mother of the appellant that one kanka had gone missing. 18. The learned Trial Court relied on the evidence of P.Ws. 8 and 10 that as the accused was going away with M.O.I., he is the author of the crime. However, there was no conclusive evidence to CRA No.180 of 1998 Page 7 of 10 connect M.O.I. with the appellant as noted. It is also worth noting that P.W.9, who reached the spot immediately on hearing the hulla and relying on whose version the prosecution case was built up in labeling the appellant as the author of the crime, has not identified M.O.I. in court. 19. Learned Trial Court has also referred to the evidence of P.W.4 stating about the presence of the accused in his backyard soon after the occurrence and held the same to be an incriminating material so as to complete the chain of circumstances to establish the guilt of the appellant. 20. It is apt to note that the said P.W.4 did not support the prosecution. Though it has been rightly held by the learned Trial Court that the evidence of this witness cannot be discarded merely because he resiled. But the same has to be subjected to greater scrutiny. 21. It militates against the normal human conduct that the appellant who has committed a crime in the dead of the night will go and stand in the backyard of a co-villager thereby exposing himself to be easily identified. CRA No.180 of 1998 Page 8 of 10 Learned Trial Court has failed to take such aspect into consideration which is manifestly clear from the manner of appreciation of evidence of the said P.W.4 which runs thus:- “In the instant case the unchallenged evidence of P.W.4 that the accused was standing in the backyard of his house at relevant time can safely be relied upon”. 22. Learned Trial Court has also arrived at the finding of the guilt of the appellant since he did not give any explanation relating to the circumstances pointing towards his guilt. In the circumstances of the case at hand, on an evaluation of the evidence on record, this Court finds that the foundational facts which are necessary to shift the burden on to the accused were not proved by the prosecution. Hence, the non-explanation of the accused cannot be used to fasten him with guilt, as has been done in the impugned judgment by the learned Trial Court. 23. In a case based on circumstantial evidence, it is the settled law that the chain of evidence must be so intertwined which should not only unerringly point to the guilt of the accused but must exclude any possibility of his non-involvement and inconsistent with his innocence. CRA No.180 of 1998 Page 9 of 10 In the factual backdrop of the case at hand, on close scrutiny of the evidence on record, more than reasonable doubt arises regarding the involvement of the Appellant and “the benefit of it cannot be withheld from him”. Ref:- Kali Ram vs. State of Himachal Pradesh reported in AIR 1973 SC 2773. 24. Thus, on an analysis of the evidence on record, this Court is not persuaded to hold that the case of the prosecution is conclusively established against the accused-appellant so as to exclude the probability of his innocence. 25. Accordingly, the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Bhubaneswar in S.T. Case No.16/373 of 1996 (arising out of G.R. Case No.1322 of 1996) are hereby set aside. 26.
Decision
The appeal is allowed. Since the appellant was allowed to be enlarged on bail by this Court, the bail bond stands cancelled. (V. Narasingh) Judge D. Dash, J : I agree. Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 03-Sep-2024 16:28:29 Orissa High Court, Cuttack Dated the 20th August, 2024/Ayesha (D. Dash) Judge CRA No.180 of 1998 Page 10 of 10