MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.644 of 2011 (A) AND CRLA No.582 of 2012 (B) 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 23.04.2011 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. No.64 of 2010. ---- Jogendra Soy (In CRLA No.644 Of 2011) Nanda Soy @ Nanda Kishore Soy (In CRLA No.582 Of 2012) -versus- …. Appellants State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants- Mr. L. Bhuyan, Advocate, (In both CRLA No.644 of 2011 & CRLA No.582 of 2012) For Respondent- Mr. P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing:26.02.2024 ::Date of Judgment: 12.03.2024 D.Dash,J. Since both these appeals as at (A) and (B) filed by the respective Appellant are directed against the judgment of CRLA Nos.644 of 2011& 582 of 2012 Page 1 of 9 {{ 2 }} conviction and order of sentence passed by the learned District Judge, Mayurbhanj, Baripada in S.T. Case No.64 of 2010 arising out of G.R. Case No.319 of 2009 corresponding to Mahuldiha P.S. Case No.30 of 2009 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Karanjia., those were heard together for disposal by this common judgment. The Appellants have been convicted for commission of the offence under sections 302/201/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and they have been sentenced to undergo imprisonment for life and pay fine of Rs.2,000/- each in default to undergo rigorous imprisonment for two months for the offence under section 302/34, I.P.C. 2.
Legal Reasoning
Prosecution case as it reveals from the First Information Report (F.I.R.-Ext.4) is that the deceased, who happens to be the sister of the Informant (P.W.7) having tried to establish her marital life had failed on three occasions. Sometime around the year 2006, the deceased was residing in the house of her relatives and earning her livelihood by working as a daily wager. The accused persons are the co-villagers of the Informant (P.W.7). They had some misunderstanding with the deceased with regard to repayment of the hand loan taken by them from the deceased. About 12/13 days prior to 05.11.2009, the deceased was residing in the house of her paternal uncle (P.W.2). On 03.11.2009 evening, CRLA Nos.644 of 2011& 582 of 2012 Page 2 of 9 {{ 3 }} she went to see the village festival at Mituani. However, she did not return therefrom. So, her brother (P.W.5) and other relatives went in search of her. On 05.11.2009, P.W.8, the cousin of P.W.5 disclosed that on 03.11.2009 the accused persons had committed the murder of the deceased and had thrown her dead body in the nearby forest. The Informant (P.W.5) and other villagers then went to the forest and detected the dead body of the deceased lying therein. The Informant (P.W.7) then have lodged a written report (Ext.4) with the Officer-In-Charge) (O.I.C.-P.W.9), Mahuldiha Police Station. 3. The OIC (P.W.9), receiving the written report from Informant (P.W.5), treated the same as FIR and registering the case, took up investigation. The Investigating Officer (I.O-P.W.9) examined the informant (P.W.7) and other witnesses. He also requisitioned the service of the members of the scientific team. He held inquest over the dead body in presence of witnesses and prepared the report (Ext.3). The dead body was sent for post mortem examination by issuance of necessary requisition. He also seized the yellow colour saree and one bamboo basket from the spot and prepared the seizure list (Ext.7). The scientific team collected the blood stained earth, sample earth, one pair of violet colour lady chapel, a handkerchief and one ear top from the spot. The I.O (P.W.9) in course of investigation having seized several CRLA Nos.644 of 2011& 582 of 2012 Page 3 of 9 {{ 4 }} incriminating articles under seizure lists had sent those for chemical examination through Court. On 07.11.2009, the accused persons were arrested by the I.O. Finally on completion of investigation, the Final Form was submitted placing this accused persons to face the Trial for commission of offence under sections 302/201/34 of the IPC. 4. Learned SDJM, Karanjia having received the Final Form as above, took cognizance of the above offences and after observing formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing the charges for the said offences against all the four accused. 5. The prosecution, in the trial, has examined in total nine (9) witnesses. Out of them, the brother of Dimba Hembram (deceased), who has lodged the F.I.R. (Ext.4) has been examined as P.W.7 and P.W.2, namely, Badbhaiga Hembram is the paternal uncle of the deceased-Dimba Hembram. P.W.3, P.W.5 and P.W.6 are the co-villagers of the Informant. P.W.8, is the cousin brother of the deceased and P.W.9 is an eye witness to the alleged occurrence. The Doctor who had conducted the post mortem examination over the dead body of the deceased has been examined as P.W.1 and the Investigating Officer (I.O.) is P.W.9. 6. Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which CRLA Nos.644 of 2011& 582 of 2012 Page 4 of 9 {{ 5 }} have been admitted in evidence and marked Ext.1 to Ext.15. Out of those, the important are the F.I.R. (Ext.4), inquest report (Ext.3), spot map (Ext.5) and Post Mortem Examination Report (Ext.1). The report of the Chemical Examiner is Ext.14 whereas the Serological examination report is Ext.15. Some of the incriminating articles having been produced during Trial; those have been marked as Material Objects (M.O.-I to M.O.-VII). 7. The defence case is that of complete denial and false implication. However, no evidence either oral or documentary has been led from the side of the accused despite the opportunity. 8. Learned counsel for the Appellants submitted that the entire case of the prosecution is based on the evidence of P.W.8, namely, Shideo Hembram who is the cousin of the Informant (P.W.7), the brother of the deceased. He further submitted that these accused persons are not the stranger to them but are the co- villagers. According to him, simply when the conduct of P.W.8 is trekked, his evidence cannot be turned as wholly reliable and trustworthy so as to form the basis of the conviction of these accused persons in committing the murder of the deceased. In this connection, he has invited our attention to the deposition of P.W.8 and simultaneously, the depositions of Informant (P.W.7) and others. It was submitted that P.W.8 is a distant relation of P.W.7 and so also the deceased. When in that situation, though he CRLA Nos.644 of 2011& 582 of 2012 Page 5 of 9 {{ 6 }} has come from the place of the incident yet, did not inform any of them about the same. His belated disclosure which too has remained totally unexplained and the Trial Court did commit grave error in finding out the explanation in the statement of this witness (P.W.8) recorded under section 161, Cr.P.C. as if that is the substantive evidence being proved through the I.O. (P.W.9). He, therefore, submitted that in the absence of any evidence to corroborate the evidence of P.W.8, the judgment of conviction of these accused persons is liable to be set aside. 9. Learned Additional Standing Counsel submitted all in favour of the finding of guilt against the accused as has been returned by the Trial Court. According to him, the evidence of P.W.8 being thoroughly scrutinized by the Trial Court, rightly the view has been taken that is wholly reliable and trustworthy. He submitted that the incident had taken place in the rural pocket of the scheduled district of the State and the parties hail from tribal community and, therefore, looking at their lifestyle and behaviour, this belated disclosure on the part of P.W.8 is not that important a circumstance to view his positive evidence with suspicion so as to discard the same as doubtful. He further submitted that when nothing has surfaced in the evidence of P.W.8 that he has any reason to falsely implicate these accused persons in the crime, the Trial Court did commit no mistake by CRLA Nos.644 of 2011& 582 of 2012 Page 6 of 9 {{ 7 }} accepting the evidence of P.W.8 and basing the conviction upon the same with the medical evidence of as also the evidence of P.W.5, the Informant standing to corroborate. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.9) examined from the side of the prosecution and have perused the documents admitted in evidence and marked Ext.1 to Ext.15 from the side of the prosecution. 11. The star witness that the prosecution has examined to establish the charge against the accused is P.W.8. He has been projected as an eye-witness to the occurrence. He is a relation of the accused persons as well as the Informant and the deceased. These accused persons are his brother-in-law whereas the deceased was the daughter of his elder father and in that way the Informant (P.W.7) is his brother. According to him, during evening hour on that day when the darkness had not set in, he was proceeding to the house of his father who was residing separately at a distance of half kilometer from his house. As per his evidence on the way near Kamardala forest, he saw the accused persons lifting the deceased and that he saw when he was at a distance of 100 ft. from them. It is also his evidence that he had seen a saree to have been tied around the neck of the CRLA Nos.644 of 2011& 582 of 2012 Page 7 of 9 {{ 8 }} deceased who was then groaning. He further states that having seen such incident, he came back to his house and disclosed about the occurrence to the members of his family. It is stated that the accused persons had not told anything to him at that time. It is also his evidence that on the following Thursday, he disclosed about the occurrence to P.W.7, the brother of the deceased. He further explains that as he apprehended danger, he has not earlier disclosed before him. The Informant (P.W.7) simply says that P.W.8 told to have seen the accused. When P.W.8 states that he disclosed about the occurrence immediately to his family members, no such family member of P.W.8 has been examined in support of said prior disclosure by P.W.8 before them. The Trial Court did commit the error of law by taking the statement of P.W.8 recorded under section 161 of the Cr.P.C. as the substantive evidence. In view of such conduct of this witness, P.W.8 as regards the belated disclosure about the incident before P.W.7 and since his explanation for the same is not also believable, we are not in a position to treat the evidence of P.W.8 as reliable and trustworthy and, therefore, in our considered view the conviction based upon the testimony of solitary witness P.W.8 cannot be sustained. 12.
Decision
In the result, both the Appeals stand allowed. The judgment of conviction and the order of sentence dated 23.04.2011 passed CRLA Nos.644 of 2011& 582 of 2012 Page 8 of 9 {{ 9 }} by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.64 of 2010 are hereby set aside. The Appellants (accused persons), namely, Jogendra Soy and Nanda Soy @ Nanda Kishore Soy, are on bail, their bail bonds shall stand discharged. (D. Dash), Judge. (V. Narasingh), Judge. V. Narasingh, J I agree. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 14-Mar-2024 16:41:29 CRLA Nos.644 of 2011& 582 of 2012 Page 9 of 9