MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.234 OF 2001 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 6th October 2001 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.23 of 1997. ---- Banka @ Brundaban Naik (Dead), Prafulla Naik & Another ….. Appellants -versus- State of Orissa ….. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellants - Mr. A. Acharya, For Respondent - Mr. G.N. Rout, Advocate, Addl. Standing Counsel. CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING :29.04.2024:DATE OF JUDGMENT: 01.07.2024 D.Dash, J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 6th October 2001 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.23 of 1997 arising out of G.R. Case No.675 of 1996 corresponding to Telkoi P.S. Case No.55 of 1996 of CRA NO.234 OF 2001 Page 1 of 13 the Court of learned Sub-Divisional Judicial Magistrate, (S.D.J.M.) Keonjhar. The Appellants (accused persons) have been convicted for commission of offence under section 302/34 of the Indian Penal Code, 1860 (for short ‘the IPC’) and they have been sentenced to undergo imprisonment for life. 2. Prosecution case is that accused Banka @ Brundaban Naik (since dead) is the paternal uncle of Karunakar, who is the Informant of the present case and deceased-Jayakrushna is the brother of the Informant. Accused namely, Prafulla and Sanatan are the two sons of accused-Banka @ Brundaban. Said accused- Banka @ Brundaban having died during pendency of the Appeal, the Appeal as against him has been dismissed as to have abated. It is stated that they had some longstanding land dispute. On 15.09.1996, it was around 8.00 am, Informant-Karunakar saw all the three accused persons, father and two sons ploughing the disputed land. So, protest being made by the Karunakar (Informant), he was threatened and assaulted. However, the accused persons later on agreed for a decision in the matter at the intervention of the villagers. When the accused persons were returning to village, near the house of Jayakrushna, they were asked by Jayakrushna as to why they were ploughing the land. It is stated that hearing the same from Jayakrushna, the accused persons got terribly annoyed and immediately, accused-Sanatan CRA NO. 234 OF 2001 Page 2 of 13 indiscriminately assaulted Jayakrushna by a lathi, when accused- Banka @ Brundaban (since dead) assaulted by means of spade of his neck and root of the ear whereas the other accused Prafulla dealt kicks and fists at Jayakrushna. Wife of Jayakrushna namely,
Facts
Usha when rushed to the place to intervene, she was first cautioned by accuse Banka-Brundaban (since dead) and thereafter accused-Sanatan gave lathi blows upon her, for which she did not proceed further in the matter. Jayakrushna on account of said assault died at the spot. Brother of Jayakrushna namely, Karunakar (Informant) heard the incident from Usha, the wife of the deceased (P.W.5), and went to Telkoi Police Station, where he lodged a written report (Ext.7) stating the entire incident which had happened near the house of Jayakrushna. The IIC (P.W.10) receiving such written report (Ext.7), treated the same as F.I.R. (Ext.7) and took up investigation. 3. The I.O.(P.W.10) in course of investigation, examined the Informant and recorded his statement, visited the spot on the same day, prepared the spot map, Ext.9 and examined some other witnesses. He then held inquest over the dead body of the deceased-Jayakrushna and prepared the inquest report to that effect, Ext.4. He seized the blood-stained earth and sample earth from the spot in presence of witnesses under the seizure list, Ext.6. He also seized one saree of Usha Naik and prepared CRA NO. 234 OF 2001 Page 3 of 13 separate seizure list in presence of witnesses, Ext.10 and then issued injury requisition in favour of Usha Naik (Ext.11). He then sent the dead body of deceased-Jayakrushna through the Constable to Telkoi CHC for postmortem examination. He seized one spade from accused-Prafulla and Banka @ Brundaban and prepared seizure list. On 15.09.1996, the I.O. (P.W.10) arrested the accused Brundaban Naik (since dead) and Prafulla Naik, son of Brundaban Naik. The I.O. (P.W.10) then seized the wearing apparels of Prafulla Kumar Naik and Brundaban (since dead) and prepared two separate seizure lists. The I.O. (P.W.10) also further examined witnesses and recorded their statements. On 16.09.1996, the I.O. issued injury requisition in favour of accused Brundaban and Prafulla and forwarded them in custody to the Court of S.D.J.M., Keonjhar. On 17.09.1996, the I.O. (P.W.10) arrested accused-Sanatan Naik, son of Brundaban (since dead) and seized the wearing apparels of accused-Sanatan and prepared seizure list vide Ext.1. The I.O. then seized the thenga on production by accused-Sanatan by leading in giving recovery of Thenga. On 18.09.1996, the accused-Sanatan was forwarded in custody to the Court of S.D.J.M., Keonjhar. On transfer, the I.O. (P.W.10) handed over the charge of investigation to Circle Inspector, Sadar Police Station (P.W.14), who took charge of investigation of the case and reexamined few witnesses. After receiving the postmortem report and the opinion of M.O. on 20.09.1996, the I.O. (P.W.14) sent the exhibit items to SFSL, Rasulgarh through Court. On completion of Page 4 of 13 CRA NO. 234 OF 2001 investigation, the Final Form placing these accused persons, to face the trial for commission of offence under section-302/323/34 of the IPC was submitted. 4. Learned S.D.J.M., Keonjhar receiving Final Form, took cognizance of the above offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing charges for the said offences against the accused persons. 5. In the Trial, the prosecution in total has examined fifteen (15) witnesses, those are P.Ws.1 to 15. As already stated the Informant who had lodged the F.I.R. which has been admitted in evidence and marked Ext.7 and is the younger brother of deceased-Jayakrushna, being dead has not been examined. P.W.1 is the Gramarakhi and a witness to the seizure of the clothes by accused-Sanatan. P.W.2, P.W.3, and P.W.4 are the independent witnesses and they have not supported the case of the prosecution. P.W.5 is the eye witness to the occurrence and she is none other than the wife of the deceased, P.W.6 to 9 are the co-villagers of the deceased and accused persons. P.W.10 is the Investigating Officer, who first conducted investigation of the case, P.W.11 and P.W.12 are the two Police Constables attached to Telkoi P.S. as also the seizure witnesses. The Doctor, who conducted postmortem examination over the dead body of the deceased-Jayakrushna has been examined as P.W.13; CRA NO. 234 OF 2001 Page 5 of 13 whereas P.W.14 is the another I.O. (Circle Inspector, Sadar P.S.) who further investigated the case and submitted charge-sheet. P.W.15 is the OIC of Pallahada P.S. before whom, the accused- Santan had stated about his involvement. The prosecution besides leading the evidence by examining the above witnesses has proved several documents which have been marked as Ext.1 to Ext.24. Important of those; are the F.I.R. Ext. 7, inquest report, Ext.4, spot map, Ext.9, dead body challan, Ext.12, postmortem report, Ext.20 and chemical examination report Ext.24. 6. The plea of the defence is that of complete denial. However, no evidence has been tendered from the side of the accused during the trial in support of the defence. 7. The Trial Court upon analysis of evidence on record and placing reliance upon the evidence of the witnesses P.Ws.1 to 15 as also the medical evidence coming from the lips of P.W.13 as well as the I.O. (P.W.10) concluded that the charge against these accused persons for the offence under section-302/34 of the IPC has been established beyond reasonable doubt. Accordingly, these accused persons have been convicted for commission of offence under section-302/34 of the IPC and sentenced as aforestated.
Legal Reasoning
we are of the view that the prosecution has failed to establish the charge against the accused persons beyond reasonable doubt. 14.
Arguments
8. Mr. A.K. Acharya, learned Counsel for the Appellants (accused persons) submitted that here the entire case of the Page 6 of 13 CRA NO. 234 OF 2001 prosecution is based on the solitary testimony of P.W.5, who is none other than the wife of the deceased and her evidence receive the corroboration from the evidence of P.W.6, 7 and 8, the Trial Court has found the prosecution to have established the charge against the accused persons beyond reasonable doubt. He further submitted that when the evidence as to the extra judicial confession is also not believable and the evidence of P.W.5 on a plain reading shows many such suspicious circumstances so as to doubt her testimony, the Trial Court ought not to have held the accused persons guilty for commission of offence of murder of Jayakrushna. He submitted that the evidence of P.W.5 has not at all been appreciated by the Trial Court in its proper perspective. Inviting our attention to the deposition of P.W.5, he places as to how as per the circumstances and other factual settings narrated by P.W.5, when she could not have seen the incident and it was not possible on her part to also to see, the Trial Court has erred in accepting her version giving detail accounts of the incident. He submitted that when P.W.5 has categorically stated to have been injured, being assaulted by the accused persons, the prosecution has purposely not led any evidence to establish that she had sustained such injuries as she claimed which clearly casts doubt as regards the presence of this P.W.5 at the scene of the occurrence; when the fact remains that had that evidence being tendered and accepted, the suspicious feature shown in the Page 7 of 13 CRA NO. 234 OF 2001 evidence of P.W.5 would have been completely repelled which however has not been done in the present case and therefore, he submitted that the evidence of P.W.5 is liable to be rejected as unreliable and in that event as there is no other evidence on record to connect the accused persons with the crime, the Trial Court ought not to have been accused persons guilty of committing the offence under section-302 of the IPC. He, therefore, urged for acquittal of these Appellants. 9. Learned Counsel for the Respondent-State while supporting the finding of the guilt as against the accused persons as has been recorded by the Trial Court submitted that the evidence of P.W.5 is wholly reliable and she being a rustic lady hailing from rural background, when has stated all the details about the happenings in the incident especially all those about the role of each of the accused persons and as there surfaces nothing in her evidence to doubt that part of her evidence, the Trial Court has rightly held the prosecution to have established the case through her evidence which has received corroboration from other evidence including the medical evidence. 10. Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 CRA NO. 234 OF 2001 Page 8 of 13 to P.W.15 and have perused the documents which have been marked Exts.1 to 24. 11. Prosecution by examining the Doctor (P.W.13), who had conducted autopsy over the dead body of the deceased has proved postmortem report of the deceased. It is the evidence of P.W.13 that he had noticed two incised wounds above the right eyebrow and over occipital bone of the deceased and so also a bruise over the left neck below the angle of the mandible. His evidence is that on dissection, he had noted the torn spinal cord to have been detached from the skull and that is said to be the cause of the death which is the result of the injury to the larger vessels. Evidence of P.W.13 on the above score has remained unchallenged. In addition to the above, this P.W.13 has noted all such findings in his postmortem report, Ext.20 then again we find the evidence of P.W.10 who have held the inquest over the dead body of the deceased and has noted all such injuries in his own report, Ext.4. Over and above the same, other witnesses have also stated including P.W.5 have also stated about the injuries received by the deceased, which they had seen. With all these evidence going unchallenged we are wholly in agreement with the finding of the Trial Court that Jayakrushna met a homicidal death. 12. Coming now to the evidence as to the complicity of these accused persons in causing all such injuries leading to the death CRA NO. 234 OF 2001 Page 9 of 13 of the deceased, we find the prosecution to have much relied upon the evidence of P.W.5. This P.W.5 is none other than the wife of the deceased, but she can under the circumstance be said to be natural witness as the incident had taken place near their house. She has stated that on the day of occurrence, her husband Jayakrushna was in their house. The accused persons when were returning from the land by the side of their house, her husband Jayakrushna asked accused-Sana @ Sanatan to get the land demarcated by an Amin / Revenue Inspector and accordingly, go ahead with the cultivation. She has further stated that accused-Sanatan being enraged, he did not agree for and saying so, he indiscriminately assaulted her husband-Jayakrushna by means of lathi on his head, arm and back. She has further stated that accused-Banka @ Brundaban (since dead) assaulted Jayakrushna on his neck and at the root of the year by means of spade. When accused Prafulla gave fists and kicks. She has assertively stated to have rushed there to intervene and then accused-Banka @ Brundaban (since dead) having cautioned her not to intervene, accused-Sanatan dealt two lathi blows on her for which could not dare to intervene anymore and returned home out of fear. This P.W.5 being cross-examined has stated that where Jayakrushna was being assaulted under a jack fruit tree and it is to the front of the cattle shed of the accused persons. She has further stated that to the other side of the road in front of the accused persons there a rest shed house for the Page 10 of 13 CRA NO. 234 OF 2001 villagers and passersby and their house is at a distance of 15 to 20 cubits away on the one line with the rest shed. She states that a fence was there around their homestead and to some height it had been plastered and height of that fence was more than her own height. When the above is the evidence of P.W.5, that creates a doubt in mind as regards the claim of this witness to have seen the incident which had happened. The said doubt would have been clearly dispelled if the prosecution would have proved that as claimed by this witness-P.W.5 that she had been assaulted when she had intervened and had sustained injuries on her person, when it is the prosecution case that she was examined by the I.O.(P.W.10) and had sustained injuries. However, surprisingly although it is stated by the I.O. (P.W.10) that he had issued requisition for medical examination of P.W.5, the report to that effect has not been proved through Doctor who had examined P.W.5. In that view of the matter, mere evidence of that P.W.5, she had been treated for the injuries on police requisition cannot be accepted and that does not repel the doubt as above noted. P.W.6 although has stated about the occurrence and the role played by the accused persons in the incident, during cross- examination, his evidence has been completely demolished as he has stated to have never told about the occurrence to any one till he deposed in Court and has further stated to have been CRA NO. 234 OF 2001 Page 11 of 13 tutored by P.W.5 to come to depose that accused-Sanatan assaulted with lathi, Banka @ Brundaban assaulted with spade and Prafulla gave kick and fist blows. Later on the Trial Court having asked, his evidence is that she was told by P.W.5 only to depose by during the evidence which cannot stand to ratify, her previous version. However, her further evidence puts dent on the evidence of P.W.5 as he has stated that P.W.5 came, when Jayakrushna was lying on the ground. Thus, when the evidence of P.W.6 is no aid to the prosecution; it rather impacts upon the truthfulness of the evidence of P.W.5 to some extent. P.W.7 is a witness who states to have first of all heard about the evidence from P.W.6 and then from P.W.5 which of course is of no such importance with such state of affairs in the evidence, we find that the prosecution to have not been established the complicity of the accused persons beyond reasonable doubt. Now when we come to the evidence of extra judicial confession, we too find the evidence to be extremely hazardous to relied upon. P.W.8 is the witness to the said extra judicial confession. He has none other than the son of the deceased. His evidence is that being informed by P.W.6 about the incident and the role of the accused persons, when he met accused-Santatan, he told that he had murdered his father by assaulting by means of lathi and CRA NO. 234 OF 2001 Page 12 of 13 saying so he went away. This witness does not state as to where he met accused-Sanatan and he is also silent that accused- Sanatan had stated anything about the role of the other accused persons. Furthermore, it is extremely difficult to conceive for a moment that what was again the reason for the P.W.8 to show the accused-Sanatan when he had already been told about the entire incident by P.W.6. On a conspectus of discussion of evidence as hereinabove,
Decision
In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 6th October 2001 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.23 of 1997 are hereby set aside. Since, the accused persons namely, Prafulla Naik and Sanatan Naik are on bail, their bail bonds shall stand discharged. V. Narasingh, J. I Agree. Signature Not Verified Narayan Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 14-Aug-2024 16:57:26 (D. Dash), Judge. (V. Narasingh), Judge. CRA NO. 234 OF 2001 Page 13 of 13