Mr. G.N. Rout, Addl. Standing Counsel. CORAM MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.164 of 2009 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 24th November 2004 passed by the learned 1st Adhoc Additional District & Sessions Judge, Sundargarh in S.T. Case No.119/49 of 2002. ---- Somanath Singh …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. Sanjeeb Udgata, Advocate. For Respondent
Legal Reasoning
- Mr. G.N. Rout, Addl. Standing Counsel. CORAM MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING :10.09.2024 : DATE OF JUDGMENT: 01.10.2024 The Appellant by filing this Appeal has challenged the judgment of conviction and order of sentence dated 24th November 2004 passed by the learned 1st Adhoc Additional District & Sessions Judge, Sundargarh in S.T. Case No.119/49 of 2002 arising out of Badgaon P.S. Case No.20 of 1987 giving CRLA No.164 of 2009 Page 1 of 10 rise to G.R. Case No.58 of 1987 of the file of learned Judicial Magistrate First Class (J.M.F.C.), Rajgangpur. 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) read with section-25 of the Arms Act, 1959. Accordingly, the Appellant (accused) has been sentenced to undergo imprisonment for life and pay fine of Rs.2000/- with the default stipulation to undergo rigorous imprisonment for a period of six months. 2. Prosecution Case: - On 08.03.1987 night, Sarpu Chhatria (Informant-P.W.1) with Jaykrushna Sa (P.W.9), Manbodha Pradhan, Arjun Singh, Tankadhar Nayak and 34 others were going in the Barat Party on the occasion of the marriage of the son of one Sudarsan Pradhan with the daughter of Nidhi Bhoi of their village. After the marriage, procession come to an end, Sarpu (Informant- P.W.1) with Jaykrushna (P.W.9) Tankadhar and Dasaratha went to a nearby shop to take betel. It is stated that all of a sudden on the on the way, they heard gunshot sound, and then Sarpu (Informant-P.W.1) could see this accused running away carrying a gun with him and Dasaratha lying dead with gunshot injury on his back with face downward, Dasaratha died at the spot. Accused being chased by Santosh Dhamel CRLA No.164 of 2009 Page 2 of 10 and others could not be apprehended and he managed to escape running towards jungle. During that time, at about 10.30 pm, Informant-P.W.1 orally reported the matter with the Officer-In-Charge (OIC), Badgaon Police Station. The same was reduced into writing and that being treated as F.I.R., Case was registered and then the investigation commenced. The I.O.(P.W.14), in course of investigation, examined the Informant (P.W.1) and other witnesses. He visited the spot, held inquest over the dead body of the deceased and prepared the report. He also seized the articles which according to him were incriminating. The SBBL gun with some cartridges were seized from the house of the accused under seizure list in presence of witnesses. The accused was arrested and forwarded in custody to the Court. Finally, sanction was also taken for the prosecution under section-25 of the Arms Act, investigation thus being completed; Final Form was submitted placing the accused person to face the trial for commission of offence under section-302 of the IPC read with section-25 of the Arms Act. 3. Learned J.M.F.C., Rajgangpur, having received the Final Form as above, took cognizance of the said offences and after observing formalities, committed the case to the Court of CRLA No.164 of 2009 Page 3 of 10 Sessions for Trial. That is how the Trial commenced by framing the charge for the said offences against the accused. 4. In the Trial, the prosecution has examined in total fourteen (14) witnesses. As already stated, P.W.1 is the Informant, who had orally reported the matter before the OIC (I.O.-P.W.14) which had been reduced into writing vide Ext.1; co-villager of the accused is P.W.2; aunt of the accused is P.W.3; and more importantly the person who had accompanied the Informant (P.W.1) and the deceased namely, Jaykrushna has been examined as P.W.9. The Doctor, who had conducted postmortem over the dead body of the deceased is P.W.8 and P.W.14 is the I.O. who had done major part of the investigation as also the next I.O. who submitted the Final Form has been examined as P.W.12. The Asst. Director, Ballistic SFSL has also been examined as P.W.13. The prosecution besides piloting the evidence by examining the above witnesses has proved several documents which have been marked as Exts.1 to 19. Out of those, important are the F.I.R. (Ext.1), inquest repot (Ext.3), postmortem report (Ext.6), sanction order (Ext.18) and the spot map has been marked as (Ext.12). The report of the Ballistic Expert is Ext.9. CRLA No.164 of 2009 Page 4 of 10 5. The accused having taken the plea of denial and false implication has, however, not led any evidence in support of the same. 6. The Trial Court having examined the evidence on record and upon their analysis has found the prosecution to have established the charges against the accused beyond reasonable doubt. 7. Learned Counsel for the accused submitted that the entire case of the prosecution is based upon the solitary testimony of P.W.1 and he contended the Trial Court has committed grave error in placing reliance upon the same in fastening the guilt of the accused finding the same to have received corroboration from the other sources. Inviting our attention to the deposition of P.W.1, he submitted that scrutinizing the evidence of P.W.1 from all possible angles, it would be clear that he had neither seen the accused shooting at the deceased nor the accused to have been running away carrying the gun, when he turned back hearing gunshot sound. He next submitted that the evidence of P.W.9, who as per the evidence of P.W.1 was accompanying them at the relevant time, when the incident took place; wherein Dasaratha was fired to death is not supporting the version of P.W.1 that they had seen the accused in the vicinity at that CRLA No.164 of 2009 Page 5 of 10 time. He thus contended as no other persons who were accompanying the deceased have been examined and those few examined have not supported the prosecution, it would be highly unsafe to rely upon the evidence of P.W.1 to render the finding that it was the accused who had fired at Dasaratha and that cannot be so said simply because the gun seized from the house of the accused in found to have been used in firing. In view of the above, he contended that it being said that Dasaratha met homicidal death on account of the gunshot injury, the prosecution cannot be said to have established through clear, cogent and acceptable evidence beyond reasonable doubt that it was this accused who was the author of the crime by shooting at Dasaratha from the gun which he was then holding. He, therefore, submitted that the judgment of conviction and order of sentence cannot be sustained. 8. 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 contended that the evidence of P.W.1 cannot be discarded simply for the reason that P.W.9 has not stated what P.W.1 has said as regards the role of the accused. He further submitted that non-examination of some other persons who according to the version of P.W.1 were accompanying them can have no CRLA No.164 of 2009 Page 6 of 10 fatal consequence since the evidence of P.W.1 stands rock solid. 9. 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 14. The documents admitted in evidence and marked Exts.1 to 19 from the side of the prosecution have been perused. 10. Death of Dasaratha as has been stated by P.W.8 who had conducted autopsy over the dead body as to have taken place on account of injury on the back caused by gunshot is not at all under challenge. The question before us is the complicity of this accused as the author of said gunshot injury received by Dasaratha leading to his death. The most important witness for the prosecution as we find is P.W.1. He has stated to have seen the accused firing from single barrel gun at Dasarath and the bullet hitting on Dasaratha‘s back, resulting in his fall. He has further stated that the accused after firing ran away towards the jungle. P.W.1 being cross-examined has stated that at the relevant time, they were near the betel shop taking betel and the incident took place on the road. When he and three others CRLA No.164 of 2009 Page 7 of 10 including Dasaratha were walking abreast. He has further stated that the gunshot sound invited his attention and then he was just by the side of Dasaratha. He also states that it had been fired by the assailant standing in the darkness. He has clearly stated that he had not seen the accused firing but had seen him running away from the spot after firing. He again states that seen to have seen the accused from back when he was running away. When it is stated that assailant fired standing in the darkness, it cannot be taken to be very close to the place where they were passing on foot. The bullet has hit on the back of Dasaratha, and it is said by P.W.1 that they were walking abreast. It is also the evidence of P.W.1 that when his attention was invited after the gunshot sound erupted, the question of identification of the person even if seen from back to be running away holding the gun is doubtful. P.W.2 has not supported the prosecution case and the evidence of P.W.3 who is the aunt of the accused is hear say as to have heard about the incident in the village. Evidence of P.Ws. 4, 5, 6 and 7 are of no significance in finding out the complicity of the accused. The next witness is P.W.9, who is named in the F.I.R. by P.W.1 to have accompanied them with Tankadhar, Rohit and CRLA No.164 of 2009 Page 8 of 10 Domer. It be stated that at this stage, that Tankadhar, Rohit and Domer have not been examined. P.W.9 states, that hearing sound from behind, they found Dasaratha falling flat on the ground with his face downward. His version is that Dasaratha was shot on his back. He states to have not seen as to who fired at the deceased. He has further stated that since the incident took place in the dark night, they could not see the assailant. His evidence is of significance since he states that they had not named any assailant in their report at the Police Station, which he thereby hints is the F.I.R. (Ext.1). In the Ext.1 lodged by P.W.1, he has clearly given the name of P.W.9 as to have accompanied and to be there when the deceased (Dasaratha) who was also going with them was shot dead. 11. Above being state of affairs in the evidence of P.Ws.1 and 9, containing the doubtful features as aforenoted, even though it is said that the gun seized in connection with the case had been used in the incident, it would be hazardous to record the finding that it is this accused who had shot at the deceased; and thereby intentionally caused his death. For the aforesaid discussion of evidence, we are thus led to hold that the Trial Court is not right in holding that the prosecution has established the charges against the accused beyond reasonable doubt. Therefore, according to us, the CRLA No.164 of 2009 Page 9 of 10 judgment of conviction and order of sentence impugned in this Appeal cannot be sustained and 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 24th November 2004 passed by the learned 1st Adhoc Additional District & Sessions Judge, Sundargarh in S.T. Case No.119/49 of 2002 are hereby set aside. Since the Appellant (accused) namely, Somanath Singh is on bail; his bail bonds shall stand discharged. (V. Narasingh), Judge. (D. Dash), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 09-Oct-2024 14:42:57 CRLA No.164 of 2009 Page 10 of 10