MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
1 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.358 of 2019 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment dated 02.03.2019 passed by the learned Addl. Sessions Judge, Gunupur in C.T. No.77 of 2016. Padman Bibhar …. Appellant -versus- State of Odisha …. Respondent For Appellant : Mr. A. Tripathy, Advocate For Respondent : Mr. S.K. Nayak, AGA CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 21.03.2024 : Date of judgment : 15.04.2024 V. Narasingh, J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 02.03.2019 passed by the learned Addl. Sessions Judge, Gunupur in C.T. Case No.77 of 2016 arising out of G.R. Case No.100 of 2016 on the file of learned J.M.F.C., Bissamcuttack. 2. The Appellant (accused) has been convicted for committing the offence under Section 302/201 Indian Penal Code (for short, “the IPC”). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for one year and rigorous imprisonment for a further period of two years and pay a fine of Rs.5000/- in default to undergo CRLA No.358 of 2019 Page 1 of 9 rigorous imprisonment for a further period of six months for commission of offence under Section 201 IPC with the stipulation that the substantive sentences shall run concurrently. 3. It is the case of the prosecution that on 4.4.2016 at about 11 A.M, the son of the Informant (P.W.3) Akash Garadia along with Budhadeba Garadia (P.W.1), Susanta Kusulia (P.W.2) and accused had been to the nearby river to take bath and from there, the accused and the son of the Informant went to cashew field situated on the other side of the river for collecting cashew. As the accused and the son of the Informant did not return for long, both Budhadeba (P.W.1) and Susanta (P.W.2) returned to the village. Since Akash (deceased) did not return, the Informant enquired about the whereabouts of his son from P.Ws.1 and 2 who told him that they had asked the accused about Akash and on such query, the accused stated that Akash will never return and threatened them that if they disclosed the same to their co-villagers, they will face dire consequence. It is the further case of the prosecution that the Informant, who is the father of Akash, asked the accused about his son but the accused expressed his ignorance and took the plea that he had not seen Akash. Thereafter, the Informant accompanied by co-villagers went to the riverside in search of Akash but could not find him. 3-A. On the next date i.e. 5.4.2016, when the Informant again went to riverside in search of his son, he found the body of his son
Legal Reasoning
floating in the river. With the firm belief that the accused had killed his son Akash and thrown the dead body in the river, he lodged the complaint which was registered as Muniguda P.S Case No.37 of 2016 under Section 302/201 IPC citing the accused appellant as the sole accused. CRLA No.358 of 2019 Page 2 of 9 4. On the basis of such FIR, IIC, Muniguda Police Station directed S.I Lakshman Majhi (P.W.19) to take up investigation of the matter and during the course of investigation, I.O (P.W.19) examined the Informant and other witnesses, visited the spot, made inquest over the dead body of the deceased, sent the dead body to CHC Muniguda for post-mortem examination, seized the alleged weapon of offence i.e. blood stained stone from the spot. On finding prima facie involvement of the accused, he arrested the accused, seized his wearing apparels and on completion of investigation, submitted charge sheet against the accused under Section 302/201 IPC to face the trial. Post commitment, learned Addl. Sessions Judge, Gunupur conducted the trial. 5. The prosecution in order to fortify its case examined 19 witnesses, out of 22 charge sheeted witnesses and 10 documents were marked as exhibits of which Ext.1- FIR, Ext.5- post-mortem report and Ext.6- query of the I.O are of significance. One material object blood stained stone was also marked on behalf of the prosecution as M.O-I. 6. No oral or documentary evidence was adduced on behalf of the defence and the plea of defence was one of complete denial and in the statement under Section 313 Cr.P.C, the accused took the plea of false implication. 7. Since admittedly the case is based on circumstantial evidence, learned trial court enlisted the circumstances on which the prosecution based its case and also referred to the doctrine of “Panchsheel” as enumerated by the Apex Court in the case of Sharad Birdhichand Sarda vrs. State of Maharashtra, AIR 1984 SC 1622, CRLA No.358 of 2019 Page 3 of 9 held the accused appellant guilty and convicted and sentenced him under Section 302/201 IPC. 8.
Legal Reasoning
Learned counsel for the Appellant, Mr. A. Tripathy argued with vehemence that the case at hand being admittedly based on circumstantial evidence and since there are gaping holes in the prosecution case and the chain of circumstance is manifestly disjointed learned Trial Court disregarding the contradiction in the evidence of the material witnesses has fallaciously found the accused appellant guilty. 9. It is his further submission that the conduct of the accused appellant that he did not hide himself and was all along present in the village was erroneously not taken into account. Only on the basis of suspicion and based on surmises and conjectures, learned trial court held the accused appellant guilty and as such the impugned judgment of conviction and order of sentence are liable to be interfered with. 10. Learned Public Prosecutor Mr. S.K. Nayak, AGA, on the other hand, submitted that evaluating the evidence on record, on the basis of the principles as laid down in the case of Sharad Birdhichand Sarda (supra), learned Trial Court on a cogent analysis of the evidence on record, has arrived at the finding of guilt which does not in any way call for interference and seeks dismissal of the appeal. 11. P.W.17 is the doctor who conducted the post-mortem examination of the deceased Akash Garadia on 5.4.2016 and found the following injuries. “(i) There was cut injury 5 cm x 2 cm x skull depth on right temporal region with subdural haemorrhage; (ii) There was fracture of parietal bone 10 cm x 1 cm; (iii) Fracture of temporal bone from left side extended upto right temporal lobe along with suture line; CRLA No.358 of 2019 Page 4 of 9 (iv)There is presence of massive intra-cranial haemorrhage; and (v) Both lungs congested with absence of water.” 11-A. In his opinion, he stated that all the injuries are ante mortem in nature. The cause of death is due to fracture of skull causing massive haemorrhage. Time since death is 24 to 36 hours. The post- mortem report is marked as Ext.5. 11-B. It is apt to note the response of the doctor (P.W 17) to the query of I.O (P.W19) was marked as Ext.6 and reply as Ext.6/1. The specific query of the I.O. (P.W.19) was “Whether the injuries detected on the temporal and parietal region can be caused by the stone produced before you?” The response of the doctor (P.W.17) was that the injuries caused on temporal and parietal region can be caused by the weapon produced. The second query was as to whether such injuries can be possible due to accidental fall on a stony surface. The response of the doctor (P.W.17) was that such injury with accidental fall on stony surface is less likely unless the fall is from a very high place. 11-C. The doctor (P.W.17) further deposed that the injuries mentioned in the post-mortem report are sufficient in the ordinary course of nature to cause death. Nothing worth discrediting the evidence of P.W.17 has been enlisted in the cross-examination. Hence, it is manifestly clear that the death of Akash son of the Informant (P.W.3) was homicidal. 12. To establish the last seen theory of the accused with the deceased, the evidence of P.W.1, 2 and 13 are of seminal importance. 13. P.Ws.1 and 2 have stated that they along with the deceased Akash were going to Bansadhara river near their village to take bath CRLA No.358 of 2019 Page 5 of 9 and on the way, the accused came and asked Akash (deceased) to join him for collection of cashew nut and as the deceased and the accused did not return, they came back home after taking bath and in the evening, when they asked the accused about the whereabouts of Akash, he gave prevaricating statement inasmuch as in the evidence of P.W.1 it is stated that the accused did not give any reply. Whereas P.W.2 has stated that it was the response of the accused that the deceased Akash came back on his own before the return of the accused and it is further borne out from the evidence of P.W.2 that the accused had asked him not to inform anyone that both he and the deceased Akash had gone to eat cashew. 14. The statement of the Informant (P.W.3) is that when he asked about the whereabouts of his son Akash, the accused did not give any reply. It is the evidence of the Informant and the father of the deceased (P.W.3) that P.Ws.1 and 2 and the accused were confined in Satsangha home of Adivash Sahi. They kept watch over those three boys and also searched for his missing son and dead body of the deceased Akash was found floating in the river. 15. The last seen theory of the prosecution gets further corroboration from the deposition of P.Ws.12 and 13. P.W.12 had stated in cross-examination that she had seen accused taking the deceased with him in the direction where the dead body of Akash was recovered. It is her further statement that after sometime the accused returned alone from the direction where subsequently the dead body of the deceased Akash was found. For convenience of reference such statement of P.W.12 is extracted hereunder: “…I had witnessed accused Padman taking Akash with him in the direction where the dead body of Akash was recovered. I had also witnesses that after some time Padman was returning CRLA No.358 of 2019 Page 6 of 9 alone from the direction where subsequently the dead body of the deceased Akash was found.” 16. The evidence of P.W.13 is that on the date of occurrence around noon he was taking bath in the village river and he had seen the accused along with deceased Akash were going towards village Madhapadar and after sometime, he saw the accused was returning alone. In his evidence, he stated that when he asked the accused about the deceased Akash he did not reply and on repeated queries the accused stated that they had gone to a nearby village for some work and thereafter the accused hurriedly took his bath and went away. 17. It is apt to note here that the defence has tried to discredit P.W.13 relating to his prevaricating statement regarding time of occurrence. But nothing material could be elicited to discredit the said witness. 18. In the considered view of this Court the discrepancies are not material so as to discredit the witness in toto. It is only natural that one stating an incident which was happened about lapse of year and half is bound to falter in stating minute details. 19. Even disregarding the evidence of P.W.13 on the basis of evidence of P.Ws.1, 2, 3 and 12, it is clearly borne out that the accused and the deceased were last seen together and his explanation as to the circumstance for his returning alone, as borne out from the evidence of P.Ws.1,2, 3 and 12 clearly established the case of the prosecution that the deceased was last seen with the accused and the intervening circumstance coupled with the proximity of time of death as proved through the evidence of the doctor (P.W. 17), there is no iota of doubt, that the deceased was done to death by the accused. CRLA No.358 of 2019 Page 7 of 9 20. The evidence led by the prosecution regarding the motive behind the commission of crime is an additional factor to establish the offence committed by the accused. 21. P.W.14 is the wife of the accused. In her evidence she has stated that two years prior to the death of occurrence, the accused had gone to Kerala leaving her in her matrimonial house and during her stay, since she fell ill, she had gone to Muniguda hospital for treatment along with her relatives. After returning from hospital, her in-laws did not allow her to enter matrimonial house on the allegation that she went to hospital with her paternal uncle and they informed the accused that she was having an affair with a co-villager. Since then she was staying with her parents. On returning from Kerala, the accused came to her house and told her that she has to pass through “Agni Parikhya” before he takes her back. Again he came to the parental house and tried to take her forcibly by dragging her and at that time, the Informant (P.W.3) father of the deceased related as paternal uncle, intervened. 22. P.W.14 has stated that due to interference of the Informant (P.W.3) in his family affairs the accused nurtured grudge and settled score with the Informant by killing his son. 23. P.W.9 to 12, 15 and 16 have lent corroboration to such statement of P.W.14. 24. Though same discrepancies were noted in the evidence of P.W.9 but the same are not significance. 24-A. In the fact situation of the case at hand, there is evidence on record that the deceased was last seen together with the accused around 11 A.M on 4.4.2016 and there is uncontroverted evidence on record to fortify the stand of the prosecution that the accused returned CRLA No.358 of 2019 Page 8 of 9 alone and it is established from the evidence of the doctor that the death of the deceased was between 3.30 A.M and 3.30 P.M of 4.4.2016. Hence in the absence of any explanation by the accused he has signally failed to discharge the burden as enjoined under Section 106 of the Evidence Act. 25. Hence, on scrutiny of the evidence on record, on the touchstone of the doctrine of “Panchsheel” as enumerated by the Apex Court in the case of Sharad Birdhichand Sarda (supra), this Court does not find any infirmity in the matter of appreciation of evidence by the learned Trial Court and affirms the order of conviction of the accused appellant under Section 302/201 IPC and the sentence imposed. 26.
Decision
In the result, the appeal is dismissed. (V. Narasingh) Judge D. Dash, J : I agree. (D. Dash) Judge Orissa High Court, Cuttack Dated the 15th April, 2024/ Pradeep Signature Not Verified Digitally Signed Signed by: PRADEEP KUMAR SWAIN Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 30-Apr-2024 14:48:42 CRLA No.358 of 2019 Page 9 of 9