The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.379 of 2019 AND CRLA No.459 of 2019 In the matter of Appeals under section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 09.05.2019 passed by the learned Additional Sessions Judge, Karanjia in Sessions Trial Case No.94 of 2017. ---- Ganesh Bhengra and Another (In CRLA No.459 of 2019) …. Appellants Bablu @ Baglu Kalah & Another (In CRLA No.379 of 2019) -versus- State of Odisha (In both CRLAs) …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. Rohit Mohato (Advocate in CRLA No.379/2019) Sk. Zafarulla (Advocate in CRLA No.459/2019) For Respondent - Mr. S.S. Kanungo, Additional Govt. Advocate (In both CRLAs) CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K.PANIGRAHI Date of Hearing :27.01.2023 :: Date of Judgment:10.02.2023 D.Dash,J. Since in these two Appeals, the Appellants have assailed the judgment of conviction and order of sentence dated 09.05.2019 passed (CRLA Nos.379 & 459 of 2019) Page 1 of 11 {{ 2 }} by the learned Additional Sessions Judge, Karanjia in Sessions Trial Case No.94 of 2017 arising out of G.R Case No. 561 of 2016 corresponding to Raruan P.S Case No.78 of 2016 of the Court of the learned S.D.J.M., Karanjia, those had been heard together for their disposal by a common judgment. By the same, the appellants (accused persons) have been found guilty for commission of offence under section 302/324/34 of the Indian Penal Code (in short, ‘IPC’). Accordingly, each of them have been convicted to undergo imprisonment for life and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for further period of 1 (one) year for the offence under section 302/34 of IPC and rigorous imprisonment for 3 (three) years for the offence under section 324/34 of IPC with the stipulation that the substantive sentences would run concurrently. 2. The prosecution case is that on 12.12.2016, the informant (P.W.3) came to know that in the last night, someone had killed his elder brother Madhu Kalah and elder sister-in-law Sambari Kalah wife of Madhu Kalah and thrown their dead bodies at a distance of 200 meters from their house. Having received such information, the informant proceeded to the house of his elder brother and there, he could ascertain that in the last night, these two accused persons with other accused persons had been to the house of his elder brother and forcibly took him and his wife out of the house and they had killed them at ‘Palas Jungle’ situated near their house. He also learnt that both of them then were shouting to leave them “CHHADI DIA, CHHADI DIA”. The other members of the family told that during the time of assault, they had been to the spot with lantern and as there was also the moon light, they could CRLA Nos.379 & 459 of 2019 Page 2 of 11 {{ 3 }} see the accused persons assaulting those two. Receiving such information from the children of the house of his elder brother (male deceased), the informant proceeded to the ‘Palas Jungle’ and found both his elder brother and elder sister-in-law lying dead. He saw that they had been killed by means of billhooks or by stones. He then lodged the written report with the Inspector-in-Charge (IIC), Raruan police station who immediately registered Raruan P.S. Case No.78 of 2016 and took up investigation. 3. In course of investigation, he examined the informant under section 161 of the Code of Criminal Procedure (for short, the Cr.P.C) and the witnesses. Police constable was deputed to guard the dead bodies. He also sent requisition to the Sub Divisional Magistrate, Karanjia to depute an Executive Magistrate for holding inquest over the dead bodies. The scientific team was also requisitioned. The I.O. visited the spot on 12.12.2016 around 10.20 a.m. and prepared the spot map. The inquest over the dead bodies was held by this P.W.12 in presence of Executive Magistrate and witnesses and reports (Ext.2 and 3) were prepared. He also seized blood stained and sample earth from near the places and prepared seizure list. He then sent requisition for post mortem examination of the dead bodies. The wearing apparels of the deceased persons were also seized on production by the Constable who had been deputed to carry the dead bodies for post mortem examination and prepared seizure list. On 18.12.2016, he arrested one accused, namely, Lacky @ Rada Munda @ Kalha. He while in custody is said to have given a statement to have kept the weapon concealed in a place. His statement was accordingly recorded under section 27 of the Evidence Act (Ext.16) and he then led P.W.16 and other witnesses to the place of concealment i.e. a Page 3 of 11 CRLA Nos.379 & 459 of 2019 {{ 4 }} place filled with water on the south west corner of Nusuri village pond by the side of bank and brought out a Katuri. The same was seized in presence of witnesses and seizure list Ext.5/1 was prepared. On 18.12.2016 accused persons, namely, Bata @ Baikuntha Bhengra, Bablu @ Bagulu Munda @ Kalha and Ganesh Bhengra were arrested. On his requisition, their blood samples and nail clippings were collected and seized under seizure list (Ext.21). On that day, in the afternoon, the I.O seized red and black coloured blood stained full shirt and earth coloured blood stained track suit of accused Lacky Munda on his production and prepared seizure list (Ext.22). He also seized an indigo coloured blood stained jeans pant and a blue coloured blood stained full ganji of accused Baikuntha Bhengra on production vide seizure list Ext.23. The sky blue coloured blood stained track suit and a yellow coloured T.Shirt of accused Bagulu Kalah were seized on production vide seizure list Ext.24. The I.O (P.W.16) also seized a red coloured blood stained half ganji and an indigo coloured blood stained full jean pant of accused Ganesh Bhengra under seizure list Ext.25. The injured son of the deceased (P.W.4) was sent for medical examination by issuing requisition. The seized incriminating articles were also sent for chemical examination through Court to the RFSL, Balasore. On completion of investigation, the I.O (P.W.16) submitted Final Form placing the accused persons, namely, Lacky @ Rada Munda @ Kalha, Bata @ Baiukuntha Bhengra, Bablu @ Babalu Kalha and Ganesh Bhengra, to face the trial for commission of offence under section 302/307/34 of IPC. 4. On receipt of above, the learned S.D.J.M., Karanjia took cognizance of the said offences and committed the case to the Court of CRLA Nos.379 & 459 of 2019 Page 4 of 11 {{ 5 }} Sessions. That is how the trial commenced against these accused persons by framing of the charge for the said offences. In the trial, the present accused persons namely Ganesh Bhengra and Bata @ Baikuntha Bhengra, Bablu @ Bagulu Kalah and Lacky @ Rada Munda @ Kalah have been held guilty for commission of offence under section 302/324/34 of IPC and they have been sentenced as aforestated. 5. In the trial, the prosecution has examined in total twenty (20) witnesses. As already stated, P.W.3 is the informant and the scribe of the
Legal Reasoning
FIR (Ext.1) has been examined as P.W.2. P.W.4 is the son of the deceased persons and he has been examined as to have seen the occurrence, being the injured in the said incident. P.W.5 is the co-villager of the deceased persons and he has been examined to depose that P.W.4, the son of the deceased persons had come to him and other villagers and told that the accused persons assaulted him and his parents in the previous night for which his parents died. P.W.8 is the witness to the inquest. The police constable producing the wearing apparels of the deceased after post mortem examination for their seizure has come to the witness box as P.W.9. P.W.12 although has been projected as the eye witness to the incident, he has not supported the prosecution. Similar is the state of affair in respect of P.W.13 and P.W.14 who have denied to be having any knowledge with regard to the seizure of incriminating articles which as per the prosecution had been made in their presence. The Doctor conducting the post mortem examination over the dead body of deceased, Madhu Kalah is P.W.15 and has proved the post mortem report (Ext.6). P.W.16 is the Investigating Officer and the other Doctor who had conducted the post CRLA Nos.379 & 459 of 2019 Page 5 of 11 {{ 6 }} mortem examination over the dead body of the deceased, Sambari Kalah has come to the witness box as P.W.20. 6. Besides leading the evidence through examination of the above witnesses, the prosecution has also proved several documents such as the FIR (Ext.1), inquest reports (Ext.2 & 3), Post Mortem Reports (Ext.6 & 32), the seizure lists etc. 7. The defence having taken the plea of denial and false implication, they too have examined two witnesses in support of their plea. 8. The Trial Court upon examination of the evidence of two Doctors holding Post Mortem examination over the dead bodies of the deceased i.e. P.W.15 and P.W.20 and their reports Ext.6 and 32 as well as the evidence of other witnesses including P.W.16 who had held inquest over the dead bodies has held the death of Madhu and Sambari to be homicidal in nature. In fact, this aspect was not under challenge before the Trial Court and that is also the situation before us. 9. On going through the evidence of two Doctors (P.W.15 and 20) and other witnesses including P.W.16 (I.O) as also P.W.3 and P.W.4, We find absolutely no difficulty in affirming the finding of the said Trial Court that Madhu and Sambari met homicidal death. 10. Learned Counsels for the Appellants submitted that the entire prosecution case is dependent and solely based on evidence of P.W.4 who happens to be the son of the deceased and said to have been injured in the said incident by these accused persons. Inviting our attention to the deposition of P.W.4, he submitted that these accused persons when were very much present in the dock during the trial, being in custody at that time, have not been identified by P.W.4 to be the assailants or even Page 6 of 11 CRLA Nos.379 & 459 of 2019 {{ 7 }} that at the time they were present at the place of occurrence and he has also not been able to identify these accused persons to have assaulted him in the said incident. He, therefore, submitted that P.W.4 having simply stated that he knew these accused persons, during his examination-in-chief, won’t suffice the purpose of holding these accused persons guilty of the crime in establishing the role said to have been played by these accused persons in the incident as the assailants of the deceased persons as well as that of the P.W.4 beyond reasonable doubt. With said evidence of P.W.4, he having drawn the attention of this Court to the evidence of P.W.3 submitted that his evidence is also of no aid to the prosecution in establishing the guilt of these accused persons. In such state of affair in the evidence, let in by the prosecution, he has attacked the finding of conviction returned by the Trial Court holding these accused persons guilty for committing murder of Madhu and Sambari and causing injuries upon P.W.4, the son of Madhu and Sambari as vulnerable. 11. Learned Additional Standing Counsel did not dispute that the prosecution case is based on evidence of P.W.4 which had been relied upon by the Trial Court. He submitted that when he has stated during the trial to have known the accused persons and have named them; he having not specifically identified these accused persons correctly in their name would have no fatal consequence and therefore, the Trial Court cannot be said to have fallen in error in accepting the solitary version of P.W.4 who himself has been injured in the incident as has been proved, which too also receives corroboration from other evidence, in holding the charges against the accused persons to have been established beyond reasonable doubt when no explanation comes from these accused persons. CRLA Nos.379 & 459 of 2019 Page 7 of 11 {{ 8 }} 12. Keeping in view the submissions made, We have carefully read the impugned judgment of conviction. We have also gone through depositions of the witnesses (P.W.1 to 20) and perused the documents admitted in evidence and marked Exhibits (Ext.1 to 33). 13. We find here that the prosecution has examined P.W.4 as their star witness. Let us ,therefore, first have the survey over that evidence. At this place, it be noted that although it has been stated by this P.W.4 that in the night of occurrence, his elder sister Lembo and younger sister, Sombari were present in the house, none of them has, however, been examined from the side of prosecution. Thus the sole eye witness for the prosecution is this P.W.4 and the entire case rests upon the evidence of this witness which in fact has been accepted by the Trial Court. 14. During the trial, P.W.4 has stated to have known the accused persons who were then in the dock. In his examination-in-chief, he has deposed that the accused persons came to his house, assaulted his parents and they sustained bleeding injuries on their head, who died at the spot. It is also stated that he too was assaulted by accused persons by means of Kati and sustained bleeding injury on his head. However, during cross-examination this P.W.4 has stated that the occurrence took place outside the house which creates doubt as to the place where actually the main part of the incident as to assault took place. Having said so, he has again gone to say that he had never been examined by the police and had never seen any police officer in his village. So as per his evidence, he is for the first time stating about the incident attributing the accused persons to have assaulted his parents and himself during trial. On being asked to identify the accused persons in CRLA Nos.379 & 459 of 2019 Page 8 of 11 {{ 9 }} the dock, although he has named four (4), those names he has stated as:- Lacky, Kaira, Lacky and Babu. But then he has failed to identify them correctly with reference to their names. The Trial Court in the deposition has noted as under:- xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx The witness has not identified any of the accused persons correctly. He has identified accused Ganesh Bhengra as Lacky and Lacky @ Rada Munda as Kaira. The witness has identified accused-Bablu @ Bablu Kalaha as Lacky and accused-Bata @ Baikuntha Bhengra as Babulu”. With the above evidence of P.W.4, the evidence of P.W.3 being taken into consideration; it is seen that when he went to the house in morning when P.W.4 informed him that accused persons assaulted his parents and to have assaulted him. He has stated to have gone to the spot and saw the two i.e. his elder brother and elder sister-in-law lying dead with severe injuries being inflicted on their heads. But astonishingly this witness is not stating to have then seen P.W.4 to have received any injury on his person. In cross-examination, he has stated that dead body of the deceased persons were found lying in between the pond and village Chungusahi in the middle of the forest. P.W.4 is silent as to whether the accused persons had taken his parents to a place, away from home. He simply says that they died at the spot which again has not been clarified. When we see the FIR version, it is indicated therein that the accused persons forcibly took the deceased persons out of their house and thereafter, they killed them at ‘Palas Jungle’ near about their house. P.W.5 however has stated that P.W.4 had met him in the morning in an injured condition and informed that accused persons had assaulted Page 9 of 11 CRLA Nos.379 & 459 of 2019 {{ 10 }} him and his parents in the previous night as a result of which his parents died. He does not say that where they were assaulted was also been told by P.w.4. 15. It is true that these witnesses hail from rural area surrounded by forest and that P.W.4 has been examined through an interpreter. As we notice from the deposition of P.W.4 that interpreter has not been administered with oath nor it has been so indicated in the deposition by the Presiding Officer that the witness was examined with the help of interpreter. However, We gather it only from the endorsement given by the interpreter below the Left Thumb Impression (LTI) of P.W.4 in the deposition. The procedure followed by the Presiding Officer is no doubt faulty and the matter should have been dealt with more care and caution. Be that as it may; even giving some concession, looking at the power of understanding and by going to ignore minor discrepancies in appreciating the evidence of this P.W.4 keeping in view his background and other infirmities loaded on his shoulder; We are of the view that the solitary testimony of P.W.4, for the discussion already made cannot be relied upon to hold the involvement of these accused persons in the commission of the crime as to have been proved beyond reasonable doubt. That being so, the evidence of P.W.3 and 5 pale into insignificance. The Trial Court when has given emphasis upon the evidence of P.W.4 as to what he has stated in chief, has not turned its attention to the statement of P.W.4 which he has given during cross- examination which appears to be a serious error in appreciating the evidence as a whole as such a course adopted runs in opposition to the very objective behind the cross-examination of the witness by the defence so as to test the veracity of the evidence of the witness and his credibility. In such state of affair, in the oral evidence even accepting for Page 10 of 11 CRLA Nos.379 & 459 of 2019 {{ 11 }} a moment that these accused persons had given recovery of some weapons from the places by leading the police and witnesses which also is not supported by the witnesses examined by the prosecution except the police official and furthermore, when those weapons have not been independently connected with the commission of the offence, We are of the considered view that the finding of guilt returned by the Trial Court holding these accused persons guilty for commission of offences under section 302/324/34 of IPC cannot be sustained. Accordingly, it is held that the judgment of conviction and order of sentence running against these accused persons are liable to be set aside which we hereby do.
Decision
16. In the result, the Appeals stand allowed. The impugned judgment of conviction and order of sentence dated 09.05.2019 passed by the learned Additional Sessions Judge, Karanjia in Sessions Trial Case No.94 of 2017 running against them are set aside. The accused persons, namely, Ganesh Bhengra, Bata @ Baikuntha Bhengra, Bablu @ Baglu Kalah and Lacky @ Rada Munda @ Kalah be set at liberty forthwith if their detention is not required in connection with any other case. Dr.S.K.Panigrahi, J. I Agree. Gitanjali (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. CRLA Nos.379 & 459 of 2019 Page 11 of 11