The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.16 of 2012 In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 8th December, 2011 and 12th December, 2011 respectively passed by the learned Additional Sessions Judge, FTC, Rourkela, Camp-Bonai in Sessions Trial Case No.129/4 of 2008-2009. ---- Laxman Kissan; and Bhagirathi Kissan …. Appellants -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Ms.B.L.Tripathy(A), (Advocate)
Legal Reasoning
For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 01.11.2023 : Date of Judgment:13.11.2023 D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and the order of sentence dated 8th December, 2011 and 12th December, 2011 respectively passed by the learned Additional Sessions Judge, FTC, Rourkela, Page 1 of 9 CRLA No.16 of 2012 - 2 - Camp-Bonai in Sessions Trial Case No.129/4 of 2008-2009 arising out of G.R. Case No.78 of 2008 corresponding to Lahunipada P.S. Case No.21(10) of 2008 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Bonai. The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.1,000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for one (1) month for commission of the said offence. 2. Prosecution Case:- On 15.01.2008, Nabin Kisan, after taking his food, had gone out of his house. It was around 4.00 p.m, the accused persons assaulted him near Bageda Sahi in Village-Bhogra. Some time thereafter, Nabin was taken to the house of the accused persons along with one Gunjei Kisan and they forcibly administered poison to be taken by Nabin. On account of such intake of poison, froth come out of his mouth. Around 6.30 p.m. Suren Sabar (P.W.6) was called by one Nabaghana @ Banka Kisan he knew about the incident and he (P.W.6) narrated everything. A written report to the above effect being lodged by Nabaghana @ Banka Kisan (P.W.1) with the Inspector-in-Charge CRLA No.16 of 2012 Page 2 of 9 - 3 - of Lahunipara Police Station (P.S.), the IIC (P.W.17) treated the same as the FIR (Ext.2) and upon registration of the case, directed Sub-Inspector (S.I.) of Police (P.W.20) to take up investigation. 3. The I.O. (P.W.20), in course of investigation, had recorded the statement of the Informant (P.W.1) and went to the spot. He having held the inquest over the dead body of the deceased, prepared the report to that effect (Ext.1) The dead body of the deceased was the sent for postmortem examination by issuing necessary requisition. Wearing apparels of the deceased were seized under seizure list (Ext.5). On being transferred, the I.O. (P.W.20) handed over the charge of the investigation to the IIC (P.W.17). He (P.W.17), in course of investigation, examined the witnesses and sent the seized incriminating articles for chemical examination through Court. Thereafter, on completion of the investigation, the I.O. (P.W.17) submitted the Final Form placing these accused persons to face the Trial for commission of the offence under sections 302/306/34 of the IPC. 4. Learned S.D.J.M., Bonai, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offences against these accused persons. CRLA No.16 of 2012 Page 3 of 9 - 4 - 5. In the Trial, the prosecution, in support of its case, has examined in total twenty (20) witnesses. As already stated, the informant, who happens to be the father of the deceased is P.W.1. P.Ws.2, 3, 4, 5, 9 & 10 are the family members of the deceased and have heard about the incident from P.W.6. P.Ws.4, 6, 7, 8, 11 & 12, who are the co-villager of the deceased. P.Ws.14, 15, 16 & 19 are the witnesses to the seizure of incriminating articles. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.13 and the I.Os are P.W.17 & 20. 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 11. Important of those, are the FIR (Ext.2); inquest report (Ext.1); and the post mortem report (Ext.4). The Chemical Examiner’s report has been admitted into evidence and marked Ext.8. 6. The accused persons, in support of their plea of denial and false implication have, however, not tendered any evidence despite opportunity. 7. Ms.B.L.Tripathy, learned counsel for the Appellants (accused persons), without disputing the evidence of the Doctor (P.W.13), who had conducted the autopsy over the dead body of the deceased that the death of Nabin (deceased) was due to intake of poison, however, she submitted that the evidence on record do CRLA No.16 of 2012 Page 4 of 9 - 5 - not establish the fact that these accused persons, had administered poison for causing the death of the deceased. She submitted that the prosecution evidence coming from the lips of Suren (P.W.6) is highly unbelievable and without appreciation of such evidence in taking other evidence on record into account, the Trial Court has erred in holding the accused persons to have committed the murder of Nabin by forcibly administering poison to be taken by him. In view of all these above, she urged that the judgment of conviction and order of sentence, which are impugned in this Appeal, are liable to be set aside. 8. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State, while submitting all in favour of the finding of guilt against these accused persons, as has been returned by the Trial Court, contended that P.W.6 is a reliable witness and, therefore, based on his evidence and evidence of other witnesses, who have described all the detail happenings, the Trial Court has rightly held the prosecution to have established the charge against the accused persons beyond reasonable doubt. 9. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to CRLA No.16 of 2012 Page 5 of 9 - 6 - 20) and have perused the documents admitted in evidence marked as Exts.1 to 11. 10. In order to address the rival submission and judge the sustainability of the finding of the Trial Court, let us straightway go to the evidence of P.W.6. He is a neighbour of the accused persons. It is stated by him that when Nabin returned with the cycle, which he had taken from the house of accused Laxman without his knowledge, Laxman told him that if he was unable to purchase a cycle, why not that he was dying by taking poison. He has further stated that accused Laxman, having said so, when attempted to assault, Nabin resisted by raising his hands for which accused Laxman feel on the ground and sustained injury on his right forehead. So, accused Laxman called his son Bhagirathi, the other accused saying that Nabin (deceased) was assaulting him. As per his evidence, both the accused persons then gave fist blows and slaps upon the deceased and caught hold of the shift collar and dragged him to their house. It has been further stated that some time thereafter, the accused persons drove out the deceased from their house and accused Laxman was then taking the deceased towards his house. Said accused Laxman, seeing this P.W.6, left the deceased and fled away. His next evidence is very much important to be taken note of that then he saw the deceased and found froth to be coming out of his CRLA No.16 of 2012 Page 6 of 9 - 7 - mouth and being asked, Nabin told him that the accused persons and one Gunjei forcibly took him to their house and gave poison in his mouth, which he was compelled to take. His evidence is also to the effect that he detected poison bottle from the clothes of Nabin near his house and kept the same with him, which was seized by the police. When we find that this P.W.6, being asked, has stated to have told all those things before the police during his examination in course of investigation, the defence, however, during cross-examination of the I.O. (P.W.20), has not proved that any part of it had not been stated by P.W.6 during his examination in course of investigation. Nothing has been shown that this P.W.6 was in inimical terms with the accused persons nor any such reason is shown that he had the special affinity towards the deceased. The evidence of P.W.6 finds sufficient corroboration from the evidence of P.W.7, who has said that his house being close to the house of the accused persons, it was around 4.00 p.m., he had seen the accused persons taking the deceased to their house by assaulting his shirt collar and dragging him. It is his further evidence that after some time, he heard Nabin’s hullah in the house of the accused saying “BAPAGO MAAGO MARIGALI” and in the evening, P.W.6 told him that Nabin died. CRLA No.16 of 2012 Page 7 of 9 - 8 - It has also been the evidence of P.W.8, who has stated to have seen accused Laxman and Bhagirathi dealing blows upon the deceased and taking him forcibly towards their house, which provide corroboration to the evidence of P.W.6 as regards the first part of the incident. P.W.9 is found to have seen his brother (Nabin) being brought by P.W.6 in an critical condition when froth was coming out of his mouth. True it is that one feature arises that when it is said that the deceased was forcibly administered with poison, no such external injury has surfaced. But when the deceased was taken to the house of the accused persons and it is said that there he was made to take poison, it is not ascertainable as to under what circumstance, the deceased was compelled to take whether it was by physical intervention or by threat. Be that as it may, the deceased, having been seen by the witnesses to have been taken to the house of the accused persons by them and then after coming out of the house when has met his death, which is on account of intake of poison as there is no explanation from the side of the accused persons that he himself took the poison to get rid of his life for which of course there appears no apparent reason, we are left with no option but to hold that the prosecution has established the charge against the accused persons beyond reasonable doubt by leading clear, cogent and acceptable evidence. CRLA No.16 of 2012 Page 8 of 9 - 9 - Therefore, in our considered view, the judgment of conviction and order of sentence, which are impugned in this Appeal, are well in order and do not call for interference. 11.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 8th December, 2011 and 12th December, 2011 respectively passed by the learned Additional Sessions Judge, FTC, Rourkela, Camp-Bonai in Sessions Trial Case No.129/4 of 2008-2009 are hereby confirmed. Since both the Appellants (accused persons), namely, Laxman Kissan & Bhagirathi Kissan are on bail, they are directed to surrender before the Trial Court forthwith to serve out the sentence. G.Satapathy, J. I Agree. (D. Dash), Judge. (G.Satapathy), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 14-Nov-2023 14:12:35 CRLA No.16 of 2012 Page 9 of 9