The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.318 of 2015 This is an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973, which has been preferred by the Appellant against the judgment of conviction and order of sentence passed on dated 29.05.2015 in S.T. Case No.44 of 19 of 2014 by the learned Additional Sessions Judge, Nayagarh. Hemanta Kumar Bhoi State of Odisha -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.R.N. Das Mohapatra, Advocate. For Respondent - Mr.S.K.Nayak, Additional Government Advocate. CORAM: MR. JUSTICE D.DASH MR. JUSTICE A.C.BEHERA Date of Hearing :26.09.2023 :: Date of Judgment : 19.10.2023 A.C. Behera, J. The Appellant, by preferring this Appeal has called in question to the judgment of conviction and order of sentence dated 29.05.2015 passed by the learned Additional Sessions Judge, Nayagarh in Sessions Trial Case No.44 of 19 of 2014 arising out of G.R. Case No.170 of 2013 corresponding to Khandapara P.S. Case No.91 of 2013 of the Court of learned Judicial Magistrate, Khandapara. CRLA No.318 of 2015 Page 1 of 11 {{ 2 }} The Appellant (accused) has been convicted for commission of offences U/s 302 and 201 of the Indian Penal Code, 1860 (for short, the IPC). For the above conviction, he has been sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/- (rupees fifty thousand) in default to undergo R.I. for one year for the offence U/s 302 of the IPC and to undergo R.I. for three years and to pay fine of Rs.5000/- in default to undergo R.I. for three months for the offence U/s 201 of the IPC with a direction for running of both the sentences concurrently. 2. Prosecution case:- In the year 2013, the deceased Bikash Kumar Kalasa was serving
Legal Reasoning
as a Fireman in Khandapara Fire Station. He (deceased) is the friend of the accused (Appellant). On 11.08.2013, at about 8:30 p.m., the accused called deceased from Khandapara Fire Station and he (accused) along with deceased went somewhere from Khandapara on the motorcycle of the accused. On next morning at about 8:00 am, another accused, namely, Rajib Samantaray informed the father of the deceased over phone that, yesterday night, the accused had taken the deceased with him in his motorcycle from Khandapara fire station, but the deceased has not returned to the fire station. After getting such information, the father of the deceased contacted the staffs of Khandapara fire station over phone and came to know that, sometime after the departure of the deceased with the accused in the night, his phone was switched off. So without getting any way, the father of the deceased along with his some CRLA No.318 of 2015 Page 2 of 11 {{ 3 }} villagers went to their nearest local police station at Jankia on 12.08.2023 in order to inform the matter, but came to know that, the accused (appellant) is in the said Jankia Police Station. Thereafter, police personnel of Jankia Police Station, suggested the father of the deceased to inform the matter at Khandapara Police Station. Then on that day i.e. on 12.08.2013 at 2:00 p.m., the father of the deceased lodged written F.I.R. (Ext.1) before the IIC of Khandapara Police Station.
Legal Reasoning
Basing upon such F.I.R (Ext.1), the in-charge IIC, Sri B.N. Dehury of Khandapara police station registered Khandapara P.S. Case No.363 of 2012 and he (B.N.Dehury) himself took up the investigation of the case. 3. During investigation, he (I.O.) found some blood patches at Sunamuhin project embankment and prepared the spot map (Ext.22). On that day at about 5:00 p.m. and sent ASI K. Swain of Khandapara P.S. to bring the accused from Jankia Police Station to Khandapara P.S. and accordingly, the accused was brought from Jankia P.S. to Khandapara P.S. He (I.O.) arrested the accused and seized one Hero Honda Motorcycle of the accused along with one green colour napkin stained with blood from the dickey of that motorcycle and one Micromax mobile phone from the accused through seizure list (Ext.10). He (I.O.) arrested another accused i.e. Rajib Samantray and seized one mobile phone through seizure list (Ext.5), seized one pair of chappal from a bush near the spot i.e. near Sunamuhin project embankment through seizure list (Ext.24). On 13.08.2013, on the basis of statement of CRLA No.318 of 2015 Page 3 of 11 {{ 4 }} accused, he (I.O.) came to know that, he had love affairs with a girl (name not indicated), but subsequent thereto the deceased also fell in love with the same girl, for which, out of anger, he (accused) has killed him (deceased). So, he (I.O.) arrested him (accused) and recorded his disclosure statements (Ext.14), and on the basis of such disclosure statements of the accused, he (I.O.) recovered the trunk (headless dead body) of the deceased from a paddy field of one Bharat Naik of village Barapali having small bushes thereon at the instance of the accused and also found the head of the deceased at the instance of the accused in an another place i.e. in a nearby area of a school, forwarded the above accused persons to the Court. He (I.O.) held inquest over the headless dead body and as well as head of the deceased and prepared separate inquest reports (Exts.11 &12). He (I.O.) sent the headless dead body and as well as head of the deceased through dead body challan (Ext.28) for postmortem examination and took step for the recovery of the weapon of offence i.e. Katuri and one mobile phone of the deceased, those were thrown by the accused into the water of Sunamuhin project by engaging Odraf team and recovered the weapon of offence i.e katuri and seized the same through seizure list (Ext.15), but mobile phone of the deceased could not be traced out from the water. Thereafter, he (I.O.) forwarded the accused along with his co-accused Raj Kumar Samantray to the Court. He (I.O.) seized the wearing apparels of the deceased through seizure list (Ext.8), seized some ashes along with some half burnt pieces of clothes from the back side of the house of the accused through seizure list (Ext.9), prepared the maps of the different spots (Exts.30, 31 & 32) from where, the headless body of the deceased, the head of the deceased were found, seized the Station Diary Entry No.113 dated 11.08.2013 of CRLA No.318 of 2015 Page 4 of 11 {{ 5 }} Khandapara fire station (Ext.2), released the same in the zima by executing zimanama (Ext.3), made a query from the doctor, (who had conducted autopsy over the dead body of the deceased) and obtained the query report (Ext.18) and also obtained the call detail reports of the mobile phones (Exts.41, 41, 41 & 44), seized the identity card of the deceased issued by Chief Fire Officer through seizure list (Ext.16), released the same in the zima of the father of the deceased (Ext.45). Then he (I.O.) as per the order of learned Judicial Magistrate of First Class, Khandapara dispatched the seized articles to S.F.S.L, Rasulgarh, Bhubaneswar for chemical examination and report and obtained the chemical examination report (Ext.47) and also obtained a report (Ext.49) from the Authority of the accused regarding his leave from the office on the date of the incident. On completion of investigation, the Final Form was submitted by the I.O. placing the accused (Appellant) along with his two co-accused persons i.e. Rajiv Kumar Samantray and S.K. Salim alias Babuni to face trial for commission of offences U/s 120B, 302, 201/34 of the IPC, 1860. 4. The learned Judicial Magistrate First Class, Khandapara having received the Final Form as above took cognizance of the aforesaid offences after observing formalities and committed the case to the Court of Sessions Judge, Nayagarh and after transfer of that case to the Court of learned Additional Sessions Judge, Nayagarh for trial, that is how the trial commenced framing the charges U/s 120B, 302, 201/34 of the IPC, 1860 against all three accused persons including the accused (Appellant). CRLA No.318 of 2015 Page 5 of 11 {{ 6 }} 5. The plea of the defence was one of the complete denial and false implication of the accused persons. 6. In order to substantiate the aforesaid charges under Sections 120- B, 302 and 201 of the IPC, 1860 against the accused (Appellant) along with his two co-accused persons, altogether eighteen (18) numbers of witnesses as P.Ws.1 to 18 were examined and documents vide Exts.1 to 50 including F.I.R., inquest report, postmortem report (Exts.1, 10, 12, 13 and 17) were marked on behalf of the prosecution. But, the defence examined none on its behalf. 7. Out of eighteen (18) witnesses of the prosecution, P.W.1 is the informant (who is father of the deceased), P.W.2 is the Station Officer of Khandapara Fire Station, P.W.3 is the fire man of the said Khandapara Fire Station, P.W.4 is a witness to the seizure of blood stained earth, P.Ws.5 & 7 are two grama rakhis, those are the witnesses to the seizures, P.W.6 is a home guard as well as a witness to the seizure, P.Ws.8, 9, 10, 11, 12, 13 & 16 are independent witnesses, P.W.14 is a OSSP Constable, P.W.15 is the girl with whom deceased had love affairs, P.W. 17 is the doctor, who had conducted autopsy over the headless dead body and head of the deceased and P.W. 18 is sole investigating officer of the case, who submitted Final Form after completion of the investigation. 8. On conclusion of hearing, the Trial Court found the accused guilty for the offences under Section 302, 201 read with 34 of the IPC and passed the order of sentence against him as aforesaid, but acquitted his two co-accused persons from all the charges/offences. CRLA No.318 of 2015 Page 6 of 11 {{ 7 }} 9. In assailing the impugned judgment of conviction and order of sentence passed against the accused (Appellant), learned counsel for the Appellant contended that, those are not sustainable both in fact and law. According to him, the case is based upon the circumstantial evidence and the circumstances so relied upon by the prosecution are not making a chain complete through legally admissible evidence to establish firmly that, no other else, but the accused (Appellant) had committed such offences. According to him, none of the alleged circumstances relied upon by the prosecution has been proved against the accused (Appellant) beyond reasonable doubt. 10. On the contrary, learned Additional Government Advocate argued in support of the impugned judgment of the Trial Court contending that, the circumstances relied upon by the prosecution, are making a complete chain to connect the accused with the injury and death of the deceased as well as causing disappearance of the evidence. So, according to him, the impugned judgment of conviction and order of sentence passed against the accused by the Trial Court not to be interfered. 11. It appears from the impugned judgment that, Trial Court has relied upon eight circumstances for holding the accused guilty and the said circumstances are (i) motive, (ii) conduct of the accused, (iii) departure of the deceased from his office i.e. Fire Station with the accused, (iv) washing of the motor cycle of the accused in the odd hour at night and burning the clothes, (v) presence of the deceased with the accused since 11.08.2013 from 9:00 pm to 10:00 pm, (vi) discovery of headless dead body of the deceased, (vii) discovery of head of the deceased and (viii) discovery of the weapon of the offence i.e. Katuri. CRLA No.318 of 2015 Page 7 of 11 {{ 8 }} 12. In respect of the first circumstance i.e. motive, the Trial Court has held that, the deceased had love affairs with that girl (P.W.15), to whom, the accused was interested to marry, for which in order to eliminate out the deceased, the accused had the motive to kill the deceased. But, the said finding of the Trial Court does not find support from the evidence of P.W.15. So, the first circumstance is not established. So far as, the second circumstance i.e. conduct of the accused is concerned, it has been observed by the Trial Court that, as in the night of the incident, there was a phone call from the deceased to the staffs of the Fire Office i.e. P.Ws. 3 & 9 that, he was with the accused, then it has been held that, the second circumstance i.e. conduct of the accused has been proved. But, no call detail report regarding conversation between P.Ws.3, 9 and the deceased has been proved. So, the second circumstance relied upon by the prosecution is not established. The third circumstance relied upon by the prosecution is that of the departure of the deceased with the accused on 11.08.2023 at about 6:30 p.m. from the Fire Office of Khandapara, the Trial Court has observed that, although no staff of the Fire Office of Khandapara had seen them leaving the place in the night of the incident, the said fact has been established, as the deceased had intimated P.W.2 over phone that, he was with the deceased. This appears to be not deriving support from proof of any call detail report about such conversation between the deceased and P.W.2. So, the above third circumstance relied upon by the prosecution has not been duly established. CRLA No.318 of 2015 Page 8 of 11 {{ 9 }} The fourth circumstance relied upon by the prosecution relates to the cleaning/washing the motor cycle of the accused and burning the clothes by the accused in the odd hour of the night. The Trial Court has held that, this circumstance has been proved through the evidence of P.W.8. But, P.W.8 is found to have deposed that, he heard from the villagers that on 11.08.2013, the accused has taken away Bikas from his service place i.e. the Khandapara Fire Station and thereafter on 14.08.2013, he heard from the villagers as well as came to know about the same from T.V. news, which is inadmissible being hearsay. So, it is held that, the above fourth circumstance relied upon by the prosecution has also not been duly proved. So far as the fifth circumstance i.e. presence of the deceased with the accused since 11.08.2013 from 9 pm to 10 pm is concerned, the Trial Court has held that, the above circumstance has been proved through the evidence of the P.W.15, because the deceased had informed P.W.15 over phone that, he was with the accused. But, that again in the absence of proof of call detail report about any information of the deceased to P.W.15 is not acceptable and for that said circumstance stands unestablished. The last three circumstances i.e. leading to discovery of headless body of the deceased, head of the deceased and the weapon now when seen, it is found that, as per the case of the prosecution that, the case was registered at Khandapara police station in the District of Nayagarh. But, the accused was brought to Khandapara Police Station from Jankia Police Station. Absolutely no document prepared at Jankia Police Station has been placed on the record on behalf of the prosecution CRLA No.318 of 2015 Page 9 of 11 {{ 10 }} during trial concerning the detention of the accused at Jankia Police Station and his forward from Jankia Police Station to Khandapara Police Station. No evidence has been adduced on behalf of the prosecution either oral or documentary about the cause and reason of detention of the accused at Jankia Police Station and manner of his production or appearance at Jankia Police Station. No police personnel of Jankia Police Station has been examined during trial. 13. The above conduct of the prosecution as to the suppression of the above material facts is going to create suspicion and doubt on the truthfulness of the prosecution case regarding the apprehension, arrest and so called confession of the accused as well as seizure of the articles including the headless dead body of the deceased, head of the deceased and the weapon. For the same, the above three circumstances are found to have not been proved beyond reasonable doubt. 14. On the conceptuous of analysis of the evidence hereinabove, we thus find that, prosecution has not proved its case against the accused (Appellant) beyond reasonable doubt for having committed the murder of Bikash and causing disappearance of evidence and as such the judgment of conviction and order of sentences passed by the Trial Court against the accused (Appellant) cannot sustain. 15.
Decision
In the result, the Appeal is allowed. The judgment and conviction and order of sentence dated 29.05.2015 passed by the learned Additional Sessions Judge, Nayagarh in S.T. Case No.44 of 19 of 2014 U/s 302 & 201 of the IPC, 1860 against the accused (Appellant) are hereby set CRLA No.318 of 2015 Page 10 of 11 {{ 11 }} aside. The accused (Appellant) is acquitted from the charges/offence U/s302 & 201 of the IPC, 1860 on the ground of benefit of doubt. The accused (Appellant), namely, Hemanta Kumar Bhoi, is directed to be set at liberty forthwith after being discharged from his bail bonds, if his detention is not warranted in connection with any other case. (A.C. Behera), Judge. (D. Dash), Judge. D. Dash, J. I Agree. Orissa High Court, Cuttack. 19th October, 2023//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-Oct-2023 17:25:00 CRLA No.318 of 2015 Page 11 of 11