The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.44 of 2016 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 5th January, 2016 passed by the learned Additional Sessions Judge, Jajpur in C.T. No.141 of 2014. ---- Ananda Rana & Another …. Appellants -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.B.S.Dasparida (Advocate) For Respondent - Mr.S.S.Mohapatra, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K.PANIGRAHI Date of Hearing :27.03.2023: Date of Judgment: 06.04.2023 D.Dash,J. The Appellants, by filing this Appeal have called in question the judgment of conviction and order of sentence dated 05.01.2016 passed by the learned Additional Sessions Judge, Jajpur in C.T No.141 of 2014 arising out of G.R Case No. 845 of 2013 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Jajpur. CRLA No.44 of 2016 Page 1 of 13 {{ 2 }} The Appellants (accused persons), thereunder have been convicted for commission of offences under section 302/34 of the Indian Penal Code (in short, ‘the IPC’) and accordingly, they have been sentenced to undergo imprisonment for life and pay fine of Rs.25,000/- with the default stipulation to undergo rigorous imprisonment for three years. 2. Prosecution case is that in the night of 13.11.2013, accused Ananda and his two sons, namely, accused Amulya and Ajaya (Child in Conflict with Law- CCL) with one Ashok Mishra created disturbance in the house of Abhimanyu Rana (Informant-P.W.2). In the morning, Anirudha, the father of Abhimanyu had been to Kalyanpur for selling earthen pots. One to two hours after Anirudha left the house; some persons came and informed his son Abhimanyu (Informant-P.W.2) that the accused persons killed his father.
Facts
Abhimanyu (P.W.2) then ran to Mukundadas Ghat and found the fire brigade to be standing there and the dead body of his father was being recovered from the river. He then noticed that his father had been brutally killed. On 14.11.2013 around 11 a.m., Abhimanyu (Informant-P.W.2) lodged a written report with the Inspector-in-Charge (IIC) of CRLA No.44 of 2016 Page 2 of 13 {{ 3 }} Binjharpur Police Station (IIC). On receiving the said report, the I.I.C (P.W.20) registered the case and took up investigation. 3. In course of investigation, the Investigating Officer (P.W.20) examined the informant. He also visited the spot and prepared the spot map (Ext.10). There he also examined other witnesses and then held inquest over the dead body and prepared the report (Ext.2). He also seized sample earth and blood stained earth under seizure list (Ext.4) as also other incriminating articles under seizure lists. The accused persons namely, Amulya and Ananda and that CCL, Ajaya being detained by the public, they were apprehended by one Assistant Sub- Inspector of Police (ASI) and he at that time, had seized the Bhujali from accused Amulya and had prepared the seizure list. The I.O. then sent the dead body for Post Mortem Examination by issuing requisition. It be stated here that the ASI having received telephonic call from reliable sources relating the murder of the deceased and detention of the accused persons nearby had then got it entered through another Sub-Inspector of Police (S.I.) attached to the Police Station in the Station Diary of Police Station and both had gone and brought those accused persons with the CCL to the police station. The accused persons, namely, Amulya and Ajaya were then forwarded in CRLA No.44 of 2016 Page 3 of 13 {{ 4 }} custody to the Court whereas that Ajaya, the CCL, was dealt under Juvenile Justice (Care and Protection of Children) Act, 2015. On completion of investigation, Final Form was submitted placing the accused persons to face the trial for commission of offence under section 302/34 of IPC. 4. Learned Sub-Divisional Judicial Magistrate (SDJM), Jajpur, on receipt of the Final Form as above took cognizance of the said offences and after observing formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the above offences against the accused persons. 5. In the Trial, the prosecution in support of its case has examined twenty (20) witnesses. As already stated P.W.2 is the informant and P.W.1 is the Boatman whereas P.W.8, P.W.9, P.W.10, P.W.14 and P.W.15 are the eye witnesses. The post occurrence witnesses are P.W.4, P.W.6, P.W.11, P.W.13 whereas P.W.16. P.W.7 and P.W.19 are the witnesses to the seizure and P.W.3 is the witness to the inquest. The S.I. of Police, who had entered telephonic message about the happenings received by the ASI and then had gone with ASI is P.W.12 and that accompanying ASI has been examined as P.W.17. The Investigating Officer of the case has come at the end as P.W.20. The prosecution besides leading the evidence by examining the above CRLA No.44 of 2016 Page 4 of 13 {{ 5 }} witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.16. The important of those are the FIR (Ext.1), Inquest Report (Ext.2) and Post Mortem Report (Ext.8) with the Chemical Examiners Report (Ext.16). Other documents are the seizure list, spot map etc. 6. The case of the defence is that of complete denial and false implication. In support of the same, the accused persons have examined two witnesses. 7. The Trial Court having examined the evidence of the the Doctor, who had conducted the Post Mortem over the dead body of the deceased and submitted his report (Ext.8) as well as other evidence on record coming from the lips of witnesses that the deceased was injured, a finding has been rendered that the deceased namely, Anirudha met a homicidal death. In fact this aspect was not under challenge before the Trial Court that is also the situation before us. The Doctor, who had conducted the Postmortem Examination i.e. P.W.18 has noted four incised wounds; one the parietal occipital junction, fracture of occipital and parietal bone of right side exposing the brain matter and near that the other one with the brain matter herniated through it and blood clots found in cranial cavity and next CRLA No.44 of 2016 Page 5 of 13 {{ 6 }} near the 6th cervical vertebra No.6 dissecting the bone touching the spinal cord. It has been the evidence of P.W.18 that all these injuries are ante mortem in nature and sufficient in ordinary course of nature to cause death. It is stated by P.W.18 that the weapon i.e. Bhujali produced before him can cause such injuries which he noticed upon the dead body of the deceased. In the report (Ext.8), he has noted all such injuries giving there sizes and specifying the seats and the opinion has been reflected in Ext.9. He has not stated the death to have been on account of asphyxia and further stated to have not noted excess drinking of water by the deceased. With such evidence on record, we also find the evidence of other witnesses who have seen the dead body on being recovered from the river with injuries on different parts of the body. With all these evidence on record remaining under challenge, we are wholly in agreement with the finding of the Trial Court that Anirudha met a homicidal death. 8. Learned counsel for the Appellants submitted that the prosecution case as presented through P.W.1, P.W.8, P.W.9 and P.W.10 cannot be believed. According to him, when P.W.1 has not supported the prosecution case in entirety and for that he having been cross-examined by the prosecution with the permission of the Court, his evidence is of no avail to provide any support of the prosecution CRLA No.44 of 2016 Page 6 of 13 {{ 7 }} allegations as laid and said evidence of P.W.1 when runs contrary to the evidence of P.W.8, P.W.9 and P.W.10, who also differ on material particulars as amongst themselves, he urged that it is a fit case for acquittal of the accused persons in holding that the prosecution has not been able to prove the charge beyond reasonable doubt. 9.
Legal Reasoning
cross-examined at length, we find that his evidence with regard to the role of the accused persons in the said incident in assaulting the deceased by means of Bhujali one after another, has not at all been shaken nor any such facts have been elicited from him so as to entertain doubt in our mind as to his presence at the relevant time. 12. The evidence of this P.W.8 is found to have been fully corroborated by the evidence of P.W.9 and P.W.10. P.W.9 is a witness, who has stated to have been travelling in the same boat in which the accused persons were travelling and so also the deceased Anirudha. He has stated that when hearing some sound, he turned CRLA No.44 of 2016 Page 10 of 13 {{ 11 }} back, he saw that the deceased receiving the blows from the accused persons fell into the river. He has categorically stated that accused Amulya dealt two to four blows and then accused persons directed the boat man P.W.1 to take back the boat to the Ghat and when the boat returned to the Ghat, those accused persons started running, who were apprehended by the persons present nearby. Nothing substantial has been brought out during cross-examination to impeach the evidence of this P.W.9. Some variations which we notice in the evidence of P.W.8 and P.W. 9 are bound to occur as both of them were not in the same place in the boat and each at different point of time turned their attention. Thus, it is seen that the evidence of P.W.9 is providing full corroboration to the evidence of P.W.8 and that further stands corroborated by the evidence of P.W.10. Said P.W.10 has also stated that he was going from Kalyanpur to Ranpur and these accused persons as well as deceased were also going in the same boat. He has stated that hearing sound, when he turned back, he saw deceased had fallen in the river and both the accused persons were assaulting on his hands when accused Amulya dealt kata blows on the head of the deceased and thereafter accused persons asked the boatman to return to the Ghat when he saw them to be fleeing away. Although, we find that with regard to the sequence as to the role played by the accused CRLA No.44 of 2016 Page 11 of 13 {{ 12 }} persons as stated by P.W.10 do not tally with the evidence of P.W.8 and P.W.9 yet under the circumstance, the incident happened with all travelling in a boat and being in attentive as well as each looking at different side, such features appearing in evidence P.W.8, P.W.9 and P.W.10 in our view cannot be taken to stamp the evidence of these witnesses as unworthy of any credit. With such evidence of P.W.8, P.W.9 and P.W.10 which is also partly receiving support from the evidence of P.W.1 and when the evidence of the Doctor, P.W.18, provide further support; we find that the prosecution has proved the fact that accused persons dealt fatal blows by means of Bhujali upon the deceased. Besides the above, we also find the evidence to be there on record that these accused persons had been detained by the people present nearby after chasing them and the evidence is also there that the Bhujali was seized when it was being held by the accused- Amulya. The evidence of defence witnesses that the deceased having died in the river, since he was having the enmity with the accused persons these accused persons, have been falsely implicated is wholly acceptable when we look at the evidence of the Doctor and as these defence witnesses are not providing any explanation at all as to how the deceased sustained such ante mortem injuries. CRLA No.44 of 2016 Page 12 of 13 {{ 13 }} 13. On a conspectus of discussion of evidence as hereinabove, We are of the view that the finding of guilt recorded by the Trial Court against the accused persons for commission of the offence under section 302/34 of IPC is well in order and the accused persons have rightly been convicted thereunder. 14. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 5th January, 2016 passed by the learned Additional Sessions Judge, Jajpur in C.T. No.141 of 2014 are hereby confirmed. Dr.S.K.Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Gitanjali CRLA No.44 of 2016 Page 13 of 13
Arguments
Learned counsel for the State submitted that even keeping aside the evidence of P.W.1, if the evidence of P.W.8, P.W.9 and P.W.10 are given a plain reading, since there appears no such material contradiction in their evidence and when on material particulars version of the above witnesses has not differed from the other, the Trial Court has rightly convicted the accused persons as the authors of the crime in intentionally causing the death of Anirudha. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have extensively travelled through the depositions of the prosecution witnesses P.W.1 to P.W.20 as well as D.W.1 and D.W.2. We have also perused the documents admitted in evidence and marked exhibits on behalf of the prosecution which are Ext.1 to 16. 11. On the above rival submission, when there is a challenge to finding of the Trial Court as regard the complicity of the accused persons as not based on proper appreciation of evidence tendered by CRLA No.44 of 2016 Page 7 of 13 {{ 8 }} the prosecution, we are called upon to undertake the exercise of critical examination of the evidence of all those witnesses especially P.W.1, P.W.2, P.W.8, P.W.9 and P.W.10. P.W.1 is a boatman, who had placed his boat at Ranpur Ghat. He had taken Anirudha (deceased) in his boat from the one side of the river to enable Anirudha to go to his Kalyanpur village from that side. It is his evidence that the accused persons namely Ananda and Anirudha, who are the father and son, were standing on the river embankment at Ranpur Ghat and then they also went in his boat to the other side of the river in order to go to village Kalyanpur. It is his evidence that accused persons met the deceased on the other side of the river and during the third trip, he had taken the CCL, Ajaya with his friends from Ranpur Ghat to the other side of the river in his boat. It is his further evidence that Ajaya, the younger son of the accused Anand declined to get down for which accused Anand and his son Amulya returned. He has stated to have seen accused Anirudha assaulting the deceased by dealing blows by means of a Bhujali on his head resulting Anirudha’s fall in the river. The witness has been permitted to cross-examine by the prosecution and he having stated before the police that the accused Ananda had carried a jerry bag and brought out the Bhujali from said bag and Amulya had then dealt CRLA No.44 of 2016 Page 8 of 13 {{ 9 }} some blows with that Bhujali on the deceased after his father accused Ananda assaulted the deceased and that while accused Amulya was dealing blows, accused Ananda was holding the hands of the deceased and thereafter, accused Amulya dealt blows and Ananda left the hands of the deceased; he has denied to have earlier so stated. This witness as it appears has not stated about the incident narrating the role of the accused persons in detail as to what he had stated during investigation before the I.O. (P.W.20), who had recorded his statement under section 161 of Cr.P.C. Be that as it may, the evidence of this witness leads to show that the occurrence took place in his presence and he had seen these accused persons as well as the CCL-Ajaya and the deceased who were traveling in a boat reaching the other side of the river in order to go to their village Kalyanpur. But his evidence cannot belie the ocular evidence of other witnesses if the same are worthy of acceptance. P.W.8 is an independent witness and is the co-villager of deceased Anirudha. It is his evidence that on that day, he had gone to cross the river on the boat to Kalyanpur to Ranpur and just before his arrival, the boat had left the shore. As per his evidence, the deceased was standing on the next side of the cabin of the boat and accused Ananda went near the deceased and he was standing on the other side CRLA No.44 of 2016 Page 9 of 13 {{ 10 }} of the cabin. It is stated that accused Ananda having been handed over a bag, brought out one Bhujali from that bag and dealt blows with that Bhujali upon the deceased on the back side of the neck for which the deceased fell into the river but still he was catching the boat when accused Amulya dealt blows with that Bhujali on his head and, thereafter, the boatman brought back the boat to the river shore when the accused persons fled away. He has stated that the people present nearby made hullah and then captured them. It is his evidence that local Sarpanch telephoned to the Police and thereafter, Police arrived at the spot and after sometime fire brigade personnels came and recovered the dead body from the river water. The witness being