The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.669 OF 2012 In the matter of an Appeal under section 374(2) of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 8th October, 2012 passed by the learned Additional Sessions Judge, Kuchinda in Sessions Trial Case No.27 of 2010. ---- …. Suresh Naik Appellant State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ==================================================== - For Appellant Mr. A.K. Sharma, Advocate. For Respondent - Mr. P.K. Mohanty, Addl. Standing Counsel. CORAM:
Legal Reasoning
MR. JUSTICE D.DASH MR. JUSTICE A.C. BEHERA DATE OF HEARING:25.09.2023 : DATE OF JUDGMENT:03.10.2023 D.Dash, J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 8th October, 2012 passed by the learned Additional Sessions Judge, Kuchinda in Sessions Trial Case No.27 of CRLA NO.669 OF 2012 Page 1 of 10 {{ 2 }} 2012 arising out of G.R. Case No.143 of 2010 corresponding to Jamankira P.S. Case No.33 of 2010 of the Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Kuchinda. The Appellant (accused) has been convicted for commission of offences under section-302/201/309 of the Indian Penal Code, 1860 (for short ‘the IPC’). For the above conviction, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in default to pay fine, undergo rigorous imprisonment for one year for offence under section-302 of the IPC and to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/- in default to pay fine, undergo rigorous imprisonment for six months under section-201 of the IPC and to undergo simple imprisonment for six months under section-309 of the IPC with the stipulation that the substantive sentences would run concurrently. 2. Prosecution Case:- Some time in the year 2005, the marriage between the accused and Laxmipriya Naik, who happens to be the daughter of P.W.1 and elder sister of P.W.2 had taken place. From about the year 2007, they were staying in the house of Prasanta Naik (Informant-P.W.2) and they used to maintain his livelihood working as daily labourers. In the year 2010 as Mahula flower were stored in the room where the accused, CRLA NO. 669 OF 2012 Page 2 of 10 {{ 3 }} his wife Laxmipriya were staying; they had to leave the house and stay in the house of one Mangal Badjore at village Goudpada. On 20.04.2010, around 6 pm, the accused came to the house of his brother-in-law (Informant-P.W.2) and started quarreling with Narendra, who is the elder brother of Informant (P.W.2). He then challenged as to why Mahula flowers had been kept in that room and they were not allowed to stay therein. He threatened Narendra and told that he would not attend his marriage ceremony scheduled to be held on 25.04.2010. It is stated that during mid night, hearing some unusual sound, the Informant (P.W.2) and other members of the family woke up and found that the accused was assaulting Narendra by means of axe. The accused after giving axe blows on Narendra leaving his chappals at the spot and fled away. It was then found that Narendra had sustained deep bleeding injuries on the left side neck, hands and other parts of body. Narendra being shifted to the hospital underwent treatment. Narendra disclosed before his father (P.W.1) and mother that the accused had assaulted him. In course of treatment, Narendra died on 21.04.2010. The brother of Narendra namely, Prasanta (Informant-P.W.2) then lodged a written report before the Assistant Sub- CRLA NO. 669 OF 2012 Page 3 of 10 {{ 4 }} Inspector of Police attached to Goudapalli Police Outpost which was entered in the station diary book maintained at the Police Outpost and the IIC, Jamankira Police Station (P.W.13) receiving the said written report, registered the case and took up investigation. In course of investigation, the I.O. (P.W.13) examined the Informant (P.W.2) and other witnesses. He went to the spot and prepared spot map, Ext.11. He also seized certain incriminating articles from the spot under seizure list. The dead body was sent for postmortem examination. It was said that the accused being arrested and when he was in the police station the accused stated to have kept the tangia near a mango tree near a Khajuri Buda by the side of Pradhanpalli road. He also stated that if he would be taken to the place, he would give recovery of the tangia. The statement of accused was recorded by the I.O. (P.W.13) under Ext.5 and pursuant to the statement; the accused led the I.O. (P.W.13) and others to the place and gave recovery of that tangia, which was seized under seizure list, Ext.2. It was stated that the accused then was trying to commit suicide and the situation was somehow managed. On completion of investigation, the Final Form was submitted placing the accused to face the Trial for commission of offences under section-302/201/309 of the IPC. CRLA NO. 669 OF 2012 Page 4 of 10 {{ 5 }} 4. Learned S.D.J.M., Kuchinda, having received the Final Form as above, took cognizance of the said offences and after observing formalities, committed the case to the Court of Sessions for Trial. That is how, the Trial commenced by framing the charge against this accused for the said offences. 5. In the Trial, the prosecution has examined in total fourteen (14) witnesses. As already stated that P.W.2, the brother-in-law of the accused, who has lodged the F.I.R., Ext.1, whereas P.W.2 is the father-in-law of the accused and father of the Informant and deceased and P.W.3 is one of their relations. The witnesses to the seizure of tangia at the instance of the accused are P.Ws.4 and 5. The other witness is the daughter of P.W.1 and sister of P.W.2 and has appeared in the witness box as P.W.6. The Doctor who had conducted postmortem examination over the dead body of the deceased is P.W.14 whereas the I.O. is P.W.13. 6. The prosecution, besides leading the evidence by examining the above witnesses, has also proved several documents which are marked as Exts.1 to 17. Out of those, the important are the F.I.R., Ext.2; inquest report Ext.12, the postmortem report Ext.15. The disclosure statement of the accused has been admitted in evidence and marked Ext.5. CRLA NO. 669 OF 2012 Page 5 of 10 {{ 6 }} 7. The defence plea is that of complete denial. Being called upon, the accused has not led any evidence in support of his defence. 8. The Trial Court, on going through the evidence of the prosecution witnesses and scrutinizing the same at its level has held that the prosecution has established the charges against the accused beyond reasonable doubt. 9. Learned Counsel for the Appellant (accused), without disputing the nature of death of Narendra to be homicidal, submitted that the Trial Court ought not to have relied upon the version of P.W.1, P.W.2 and others who are highly interested witnesses in concluding that the charges against the accused has been established beyond reasonable doubt. He submitted that the evidence of P.Ws.1 and 2 has not been properly scrutinized and although there appears great variance in their evidence with regard to the happening of the incident, the Trial Court has ignored the same which ought not to have been. In view of all these above, he contended that the judgment of conviction and order of sentence running against the accused cannot be sustained. 10. Learned Counsel for the State-Respondent submitted that the evidence of P.Ws.1 and 2 receive full corroboration from the evidence including the evidence of the Doctor Page 6 of 10 CRLA NO. 669 OF 2012 {{ 7 }} (P.W.11) who had conducted postmortem examination over the dead body of the deceased. He further submitted that on detail scrutiny of the evidence of P.Ws. 1 and 2, no such infirmity having been noticed by the Trial Court, the accused has been rightly convicted. 11. Keeping in view the submissions made, we have carefully read the judgment of conviction passed by the Trial Court. We have also gone through the depositions of the witnesses, P.Ws. 1 to 14 examined from the side of the prosecution and have perused the documents admitted in evidence and marked Exts.1 to 17. 12. In order to address the rival submission and judge the sustainability of the finding of the Trial Court, we are called upon to scrutinize the evidence of P.W.2 first. As already stated, P.W.2 is the younger brother of the deceased and he is the Informant, had lodged the F.I.R. (Ext.2). He has stated that on 20.04.2010, he along with Brundabati (P.W.3), Rajendra, Nrupa and Rita had slept in the courtyard of Rajendra Majhi. In the night, they heard some unusual sound, “Ga-Ga” of Narendra. So, hearing his sound, they woke up and they found accused was assaulting Narendra by means of a tangia and seeing them getting up the accused and fled away leaving a pair of chappal. He has Page 7 of 10 CRLA NO. 669 OF 2012 {{ 8 }} further stated to have seen the accused by focusing the torch light and they noticed the cut injuries on the left side neck of Narendra. He has further stated that Narendra was immediately taken to the hospital for treatment and there he had disclosed before his parents that accused had assaulted him by tangia. The witness being cross-examined, we find no such material to have elicited to have raise any doubt in mind with regard to his presence at the spot. We too find that his evidence is matching with his version in the F.I.R. (Ext.2) as regards the happenings in the night which he had seen after having woke up from sleep. P.W.1 is the father of the deceased. He has stated that in the relevant night, he had slept with his wife and younger daughter in the courtyard, when his sons with the deceased and Prasanta (Informant-P.W.2) had slept in that courtyard of Rajendra Majhi. He has further stated that around 11 pm, when Narendra raised alarm, he woke up and found accused running away with an axe and then saw Narendra to have sustained injuries on his cheek and hands. This witness has stated that when Narendra was undergoing treatment, he having regained sense had stated that before him that he had been assaulted by accused in further disclosing that Narendra then had stated before him that after first tangia blow, when he woke up, he immediately raised his hands to save himself CRLA NO. 669 OF 2012 Page 8 of 10 {{ 9 }} and accused then gave another blow for which he sustained other injuries. It has been further stated by this witness that in the relevant night, Narendra was sleeping 20 to 25 feet from the place where he was sleeping. He has asserted during cross-examination to have seen the accused running away from the spot through the northern side gate. We find no such variance in the evidence of the P.Ws. 1 and 2 nor any such infirmity in their evidence to entertain suspicion that they having not seen the incident have attempted to implicate the accused. When the evidence of P.Ws.1 and 2 have remained unshaken and are consistent as to the role played and act committed by the accused in the relevant night in assaulting Narendra by means of an axe which receive corroboration from the evidence of the Doctor P.W.11 that the injuries noticed by him on the body of the deceased are possible by an axe; even without going to take any aid from the evidence let in by the prosecution as regards the recovery of the axe at the instance of the accused, the finding of the Trial Court holding the accused guilty of commission of offence under section-302 of the IPC and causing the murder of Narendra has to sustained. 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 for CRLA NO. 669 OF 2012 Page 9 of 10 {{ 10 }} commission of the offences under section-302/201/309 of IPC are well in order and the accused has rightly been convicted thereunder. 14. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 8th October, 2012 passed by the learned Additional Sessions Judge, Kuchinda in Sessions Trial Case No.27 of 2010 are hereby confirmed. Mr. A.C. Behera, J. I Agree. (D. Dash), Judge. (A.C. Behera), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 11-Oct-2023 15:03:37 CRLA NO. 669 OF 2012 Page 10 of 10