MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.272 OF 2003 In The matter of an Appeal under section-374(2) of the Code of Criminal Procedure, 1973 and from the judgment and order of sentence dated 21st October 2003 passed by the learned Sessions Judge, Jeypore in Criminal Trial No.209 of 2002. Kishore Chandra Bagh …. Appellant ---- State of Orissa …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant -
Legal Reasoning
Mr. N.K. Mohanty, Advocate, For Respondent - Mr. G.N. Rout, Additional Standing Counsel. CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH DATE OF HEARING :13.08.2024 : DATE OF JUDGMENT:04.09.2024 The Appellant by filing this Appeal has assailed the judgment of conviction and order of sentence dated 21st October 2003 passed by the learned Sessions Judge, Jeypore in Criminal Trial No.209 of 2002 arising out of G.R. Case No.530 of 2002 corresponding to Koraput P.S. Case No.60 of 2002. CRLA NO. 272 OF 2003 Page 1 of 8 The Appellant (accused) thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short called as the IPC). Accordingly, the Appellant (accused) has been sentenced to undergo imprisonment for life and pay fine of Rs.2,000/- in default to undergo rigorous imprisonment for a period of six (6) months each. 2. Prosecution Case:- On 20.05.2002, one Madhu Mali was in his house in village Badaliguda, when his wife Dohana Muduli (P.W.1) had been gone outside for attending the work. It was during 7 to 8 pm, she returned home and found here husband Madhu sleeping. Being asked, Madhu informed that he was having severe pain after he was assaulted by accused by means of a lathi. Thereafter, she (P.W.1) again went outside. After some time one Ghasi Muduli (not examined) came and informed P.W.1 that her husband had died. Dohana (P.W.1) immediately rushed to her house and saw her husband lying dead. She (P.W.1) then lodged a written report with the Inspector-In-Charge (IIC), Koraput Police Station. That written report being treated as F.I.R., case was registered and the investigation commenced. The I.O.(P.W.7) examined the Informant (P.W.1) and other witnesses, proceeded to the spot, prepared spot map (Ext.4), conducted inquest over the dead body of the deceased and sent CRLA NO. 272 OF 2003 Page 2 of 8 the dead for postmortem examination. He (P.W.7) arrested the accused on 21.05.2002, seized the bamboo stick from the house of the accused on production by the wife of the accused, received the postmortem report from the Medical Officer. On being transferred, the I.O. (P.W.7) handed over the charge of investigation to P.W.6, who having taken over the charge of investigation, finally submitted the Final Form placing the accused to face the trial for commission of offence under section- 302 of the IPC. 3. Learned S.D.J.M., Koraput, having received the Final Form as above, took cognizance of the said offence and after observing formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the said offences against the accused persons. 4. In the Trial, the prosecution in total examined seven (7) witnesses. Out of them, as already stated the wife of the deceased, namely, Dohana who had lodged the F.I.R., Ext.3/1 is P.Ws.1 whereas P.W.2 and 3 are the co-villagers of the deceased and post occurrence witnesses, P.W. 4 is projected as the witness to the occurrence, P.W.5 is the Doctor, who had conducted autopsy over the dead body of the deceased. P.W.6 is the Investigating Officer, who took charge of investigation after transfer of first I.O. (P.W.7) and submitted final form. CRLA NO. 272 OF 2003 Page 3 of 8 5. The prosecution besides leading evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 7. Out of those, the important are; the F.I.R. (Ext.3/2), inquest report (Ext. 5), postmortem report (Ext.1), the spot map (Ext.4). 6. The accused persons being called upon have however not tendered any evidence in support of their defence of complete denial and false implication. 7. The Trial Court on going through the evidence of prosecution witnesses and embarking upon the exercise of critical examination at its level has arrived at a finding that the prosecution has established the charges against the accused beyond reasonable doubt. Accordingly, the accused has been convicted and sentenced as aforestated. 8. Learned Counsel for the Appellant (accused) submitted that the Trial Court has held the accused guilty of committing in intentional causing the death of Madhu without there being any legal evidence on record. According to him, the conviction is based on mere conjectures and surmises and the evidence which is wholly inadmissible in as much as the Trial Court has taken the statement of the prosecution witnesses P.Ws.1, 2 and 3 during investigation before the I.O. (P.W.7) as stated by him as the subjective evidence which ought not to have been. He further submitted that the Trial Court committed grave error in saying CRLA NO. 272 OF 2003 Page 4 of 8 that although the statement of the witnesses recorded in course of investigation are not admissible in evidence during trial but nevertheless that itself stands as a circumstance. She submitted that even though the same is taken as it is that do not stand as an incriminating circumstance as against the accused. He further submitted that the said circumstance is not at all incriminating and in the absence of any other incriminating circumstances being proved to complete the chain of event leaving no hypothesis other than guilt of the accused; the Trial Court has fallen in grave error in convicting the accused he therefore, He, therefore, urged that the judgment of conviction and order of sentence cannot be sustained. 9. Learned Additional Standing Counsel for the Respondent submitted all in favour of the finding of guilt against the accused as has been returned by the Trial Court. He however, did not dispute the position that the star witnesses projected from the side of the prosecution i.e. P.Ws.1, 2 and 3 would have not supported the case of the prosecution; although they had stated everything during investigation in their statements recorded under section-161 of the Cr.P.C. which has been proved. 10. Keeping in view the submissions made; we have carefully read the judgment passed by the Trial Court and have extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 7. The documents admitted CRLA NO. 272 OF 2003 Page 5 of 8 in evidence and marked Exts.1 to 7 from the side of the prosecution have been perused. 11. The Informant is none other than the wife of the deceased and had lodged the written report (Ext.1). She has been examined as P.W.1. Although it has been stated in the F.I.R. that her husband had disclosed before her as to have been assaulted by the accused by means of thenga and for that he was having acute pain in his chest, during cross-examination, she states that her husband being asked was not in a condition to speak. When she has not supported the case of the prosecution with permission, the prosecution has cross-examined her. But then except doing her attention to the previous statement and not even to the contents of the F.I.R. (Ext.3) that she had stated that on being asked, her husband had disclosed the accused to be the assailant nothing more has been elicited to provide any support in any manner to the prosecution case in the direction that it was the accused who was assaulted of her husband. It having been proved through the I.O. that such was the version of P.W.1 during investigation, the same cannot be taken as the substantive evidence; save and except to say that P.W.1 has resiled from her previous version and thus not telling the truth. Be that as it may, that does not help the prosecution in any manner. Furthermore, the P.W.1 has stated that the F.I.R. version was as per the statement of the villagers. The same state of affair CRLA NO. 272 OF 2003 Page 6 of 8 exists in the evidence of P.Ws.2 and 3, who being projected as the eye witnesses have stated nothing implicating the accused. They also having been cross-examined, we find no such material to have surfaced therein. With regard to the complicity of the accused, thus we find the conclusion of the Trial Court running as:- “But nevertheless that fact itself indicate to a circumstance quite probable with the F.I.R. allegations. Consequently even though that may not be admissible evidence, but while judging the probability of the case, the facts disclosed during the evidence of the I.O. can be taken as a connecting circumstance” to be wholly untenable. Thus, there being no evidence on record to connect the accused with the authorship of the injuries found by the Doctor (P.W.5) during postmortem examination, the finding of guilt against the accused as has been returned by the Trial Court is held to be wholly unsustainable. In that view of the matter, the finding of the Trial Court holding the accused persons guilty for commission of the offence under section-302 of the IPC cannot be sustained. Therefore, we hold that the judgment of conviction and the order of sentence impugned in this Appeal are liable to be set aside. 12. In the wake of aforesaid, the Appeal stands allowed. The judgment of conviction and order of sentence dated 21st October 2003 passed by the learned Sessions Judge, Jeypore in Criminal Trial No.209 of 2002 are hereby set aside. CRLA NO. 272 OF 2003 Page 7 of 8 The accused being on bail, his bail bonds shall stand cancelled. (V. Narasingh) Judge. (D. Dash) Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 04-Sep-2024 16:46:26 CRLA NO. 272 OF 2003 Page 8 of 8