MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.254 of 2001 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 10th December, 2001 passed by the learned 1st Additional Sessions Judge, Cuttack in Sessions Trial No.152 of 1997. Narayan Dalai ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms. Bini Mishra (Advocate) For Respondent - Mr.G. N. Rout Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 13.05.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentenced dated 10th December, 2001 passed by the learned 1st Additional Sessions
Facts
Judge, Cuttack in Sessions Trial No.152 of 1997 arising out of G.R. Case No.923 of 1996 corresponding to Cuttack Sadar P.S. Case No.195 of 1996 in the Court of the learned Judicial Magistrate First Class, (R), (J.M.F.C.), Cuttack. Page 1 of 11 CRA No.254 of 2001 The Appellant (accused) thereunder has been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life for commission of the said offence. 2. PROSECUTION CASE:- On 24.07.1996 around 9.00 p.m, the Informant (P.W.3), being told by one Kalandi Behera, when went to the spot near a tubewell, he found his brother Siba Naik lying in a serious condition with bleeding injury on his neck, hands and other parts of the body. Siba was then shifted to S.C.B. Medical College & Hospital, Cuttack where he succumbed to those injuries on the next day. A report to the above effect being lodged on 24.07.1996 by P.W.3 with the Officer-in-Charge (O.I.C.), Cuttack Sadar Police Station at his camp at Telengapitha, the O.I.C. (P.W.11) send the same to the P.S. for registration of the case. Accordingly, upon registration of the case at the P.S., he (P.W.11) took up the investigation. 3. The Investigating Officer (I.O.-P.W.11), in course of the investigation, shifted the injured Siba to S.C.B. Medical College & Hospital, Cuttack for treatment, visited the spot and deputed a police constable to guard the spot. He (P.W.11) made a CRA No.254 of 2001 Page 2 of 11 requisition to the scientific team for collection of the clues. On receipt of the information that Siba succumbed to the injuries while undergoing treatment, he (P.W.11) proceeded to the Hospital and held inquest over the dead body of Siba and prepared the report to that effect (Ext.8). He (P.W.11) sent the dead body of Siba for post mortem examination. He (P.W.11) arrested this accused and one Bidyadhar Mohapatra on 03.08.1996 and sent them to Court in custody. Since he (P.W.11) was under the order of transfer, the investigation of the case was handed over to his successor (P.W.10). The second I.O. (P.W.10), in course of his investigation, examined some of the witnesses and submitted the Final Form placing this accused along with four others to face the Trial for commission of the offence under section 302/34 of the IPC. 4. Learned J.M.F.C. (R), Cuttack, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused and four others. 5. The prosecution, in support of its case, has examined in total eleven (11) witnesses during trial. Out of them, as already stated, the informant, who is the brother of Siba (deceased) is P.W.3. P.Ws.1 & 2 are the eye witnesses as projected by the CRA No.254 of 2001 Page 3 of 11 prosecution. The Doctor, who conducted the autopsy over the dead body of Padmini has been examined as P.W.4. P.W.9 is the Scientific Officer. P.Ws.5, 7 & 8 are the witnesses who have turned hostile. The first I.O. of the case has been examined as P.W.11 whereas the I.O., who submitted the Final Form is P.W.10. 6. 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 8. Out of those, the important are, the FIR (Ext.1), the spot visit report (Ext.5), inquest report (Ext.8); the post mortem report (Ext.2). The chemical examiner’s report had been admitted in evidence and marked Ext.7. 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of said plea.
Legal Reasoning
we are of the view that the prosecution has failed to establish the charge against the accused beyond reasonable doubt. 14. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 10th December, 2001 passed by the learned 1st Additional Sessions Judge, Cuttack in Sessions Trial No.152 of 1997, are hereby set aside. Since the Appellant (accused), namely, Narayan Dalai, is on bail, his bail bonds shall stand discharged. V. Narasingh, J. I Agree. Signature Not Verified Digitally Signed Basu Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 04-Jul-2024 14:56:15 CRA No.254 of 2001 (D. Dash), Judge. (V. Narasingh), Judge. Page 11 of 11
Arguments
8. Ms.Bini Mishra, learned counsel for the Appellant (accused) submitted that six persons, in total, having faced the trial, it is only this accused, who has been convicted for the offence under section 302 of the IPC and all those have been acquitted as the Trial Court has found the evidence of the prosecution witnesses to be highly deficient to fasten the guilt upon those five. She further submitted that the conviction of this accused is based on the evidence of P.Ws.1 and 2 and when disbelieving their version, Page 4 of 11 CRA No.254 of 2001 other accused persons have been acquitted; the ground taken by the Trial Court to accept their evidence insofar as this accused is concerned is that they have stated that this accused had dealt Bhujali blows on the belly of Siba (deceased) whereas those two witnesses, having also implicated one Chitua @ Chittaranjan Pradhan, the Trial Court has acquitted said accused Chitua. She thus submitted that when these two witnesses have stated about the occurrence in one go, the Trial Court, having disbelieved major part of their evidence and discarded the same to fasten the guilt upon them; at least that Chitua, applying the same principle of appreciation of evidence, this accused ought to have been acquitted. She further submitted that the Trial Court has failed to take note of the material contradictions in the evidence of P.W.1 particularly as regards the role of this accused, which he had not stated before the I.O. (P.W.10), which has been proved during trial. She, therefore, submitted that such improved version of P.W.1 after a long lapse of time in implicating this accused attributing him the particular role is wholly unsafe to be relied upon. She further submitted that the evidence of P.Ws.2 & 3 do not provide corroboration on material particulars to the evidence of P.W.1. In view of all these above, she urged for acquittal of this accused by setting aside the judgment of conviction and order of sentence impugned herein. CRA No.254 of 2001 Page 5 of 11 9. Mr.G. N. Rout, learned Additional Standing Counsel for the for the Respondent-State, submitted that the finding of guilt against the accused, as has been returned by the Trial Court is supported by very good reasons. He contended that the Trial Court, having refused to rely upon the evidence of P.W.1 in respect of other accused persons, has rightly relied upon the evidence of P.W.1 only in respect of this accused. He further submitted that P.W.1, having specifically stated this accused to be the author of the injuries on the belly of Siba (accused), which is fatal and has resulted his death, the Trial Court has rightly convicted this accused. It was further submitted that although the evidence of P.Ws.2 & 3 do not provide any specific corroboration to the evidence of P.W.1 insofar as this accused is concerned, yet those provide general corroboration and that coupled with the evidence of the Doctor (P.W.4), who had conducted the autopsy over the dead body of the deceased and had noted his finding in the report (Ext.2), the conviction of this Appellant is well in order and does not invite interference. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.11) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.8. CRA No.254 of 2001 Page 6 of 11 11. The Doctor (P.W.4), who had conducted the autopsy over the dead body of Siba, has noticed several cut wounds over the body of Siba. He had also noticed penetrating wounds, stab wounds and two abraded contusions and the corresponding internal injuries. As per his evidence, all those injuries had been caused by pointed and cutting weapons except those two abraded contusions, which had been caused by blunt trauma. He has deposed that the death was due to shock and haemorrhage resulting from the multiple injuries. The evidence of the Doctor (P.W.4) is very clear that the death was homicidal in nature and on account of indiscriminate assault upon the deceased by dangerous weapons like sword etc. The evidence of this witness (P.W.4) receive full support from the evidence of P.W.11, who had held inquest over the dead body of Siba and prepared the report Ext.8. Besides the same, the evidence of P.Ws.1 to 3 also run to support the fact that the deceased, had received those injuries on his person. With all these evidence on record remaining un-assailed, we find no difficulty in holding that Siba met a homicidal death. 12. Admittedly, six persons including this accused were facing the Trial standing charged for commission of the offence under section 302/34 of the IPC. The Trial Court, upon examination of the evidence and their scrutiny, has found the prosecution to CRA No.254 of 2001 Page 7 of 11 have only established the charge against this accused and not against the others, who are Bidyadhar, Chitua, Kumara, Durga and Laxmidhar. Addressing the rival submission as regards the appreciation of evidence by the Trial Court, when we turn our attention to the evidence of P.W.1, who is a star witness for the prosecution and none other than the elder brother of Siba (deceased), we find him to have stated that one Dhadi Mohapatra (not on trial) coming from backside, covered the face of Siba by means of a napkin spreading over his face and thereafter one Balua Khuntia (not on trial) caught-hold of the hands of Siba from his back. His specific version is that the accused Chitua (since acquitted) then gave a blow by means of a Bhujali on the neck of Siba from backside, which part of the evidence has not been accepted by the Trial Court in as much as, it has acquitted that Chitua. It is said by P.W.1 that thereafter one Bisei Mulia (not on trial) also gave the blow by Bhujali on the neck of the deceased; Satrughna (not on trial) and this accused gave Bhujali blows on the belly of Siba. The Trial Court has not relied upon the version of P.W.1 in so far as accused Chitua (since acquitted) is concerned and he has been acquitted. This P.W.1 has narrated the incident and the role of this accused on Trial and other culprits in continuity to have been played by them, one after the other. Therefore, if one part of his evidence is not believable even though the principle falsus in uno CRA No.254 of 2001 Page 8 of 11 falsus in omnibus is not applicable, under the circumstance, it being not possible to separate the grains from the chaff, the evidence of P.W.1 as against this accused is also liable to be rejected as unbelievable. Be as it may, we find P.W.1 to have not stated the before the first I.O. (P.W.11) in course of investigation, which was recorded under section 161 Cr.P.C as regards the particular acts and deeds of this accused. Paragraph-12 of the deposition of P.W.1, being relevant, is reproduced hereinbelow:- “12. It is not a fact that I have not stated before the police that I saw the occurrence as an eye witness, while I was in the market at Telengapentha as the time of occurrence. It is not a fact that I have stated before the police that on the date of occurrence in between evening till 9 p.m. I was present in my house after finishing my work. It is not a fact that I have not stated before the police that at the time of occurrence accused Dhadi Mohapatra covered the face of Shiba by name of a napkin spreading over his face from his back side and that accused Chittaranjan Pradhan gave a blow on the neck of Shiba from his back side by means of a Bhujali; and that Bisei Mulia gave a bhujali blow on the neck of Shiba and that accused Satrughna Behera and Narayan Dalai also gave Bhujali blow on the belly of Shiba and that thereafter injured Siba fell down on the ground near the tube well adjacent to the spot; and that half hour before the occurrence, accused Balua Khuntia and Amiya Mohapatra had been to my house to search for Siba.” It has been proved through the I.O. (P.W.10), who had recorded the statement of P.W.1, which reads as under:- “7. … P.W.1 did not say before me that during the occurrence, Dhadi Mohapatra covered the face of Siba with a napkin. So also he did not say before me that Balu Khuntai CRA No.254 of 2001 Page 9 of 11 and Amiya Mohapatra caught hold of both the hands of the deceased. P.W.1 named two persons having the name Chitua, while giving names of the assailants. Out of both the persons named Chitta by him, one was named as Chitta Pradhan and the other was named as Chitua Rout. He said before me specifically that Chitua Rout gave the Bhujali blow to the neck. (Chitta Rout being an absconder not yet facing trial). P.W.1 did not say before me that Chita Pradhan gave the blow to the neck, although he said that accused Chitta Pradhan and others gave blows to different parts of the body. Chitua Rout was named also as Chittaranjan. P.W.1 did not say before me that accused Bisoi Milia gave blows by Bhujali to the deceased or that such blow by Bhujali was given to the neck of the deceased. P.W.1 did not say before me that Bhujali was the weapon of accused Narayan. So also P.W.1 did not say although he said that Narayan gave blows to different parts of the body.” This P.W.1, who has been projected as an important eye witness for the prosecution, has stated before the I.O. (P.W.11) that he returned home in the evening after finishing his work and that at 9.00 p.m., his mother (P.W.2) came running and told that Siba was being killed in the market. However, it is now stated by P.W.1 as if he had seen the incident in his own eyes, which in view of the above, is hazardous to accept. The Trial Court, as it appears, has lost sight of the above important aspects when it has been said by the Trial Court that the evidence of P.Ws.1 & 2, being read together, suspicion arises as regards the role of five accused persons including and more importantly; Chitua, who faced the Trial and have been acquitted, in again saying their CRA No.254 of 2001 Page 10 of 11 evidence is free from suspicion in respect of the role, P.W.1 has attributed against this accused, is untenable. 13. On a careful conspectus of the evidence on record as per the discussions made hereinabove, this Court is unable to hold that the prosecution has proved the charge against the Appellant beyond reasonable doubt. Therefore, with the available evidence,