MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.521 of 2023 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 24th April, 2023 passed by the learned 2nd Additional Sessions Judge, Rourkela in S.T. Case No.16 of 2016. Livans Lugun @ Charku …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.Biswajit Nayak, S.Samantray & A.K. Patrar (Advocates) For Respondent - Mr.G. N. Rout Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 10.04.2024 : Date of Judgment : 15.04.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 24th April, 2023 passed by the learned 2nd Additional Sessions Judge, Rourkela in S.T. Case No.16 of 2016 arising out of G.R. Case Page 1 of 11 CRLA No.521 of 2023 No.2058 of 2015 corresponding to Plantsite P.S. Case No.254 of 2015 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Panposh, Rourkela. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life commission of the offence under section 302 of the IPC and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for further period of six (6) months. 2. PROSECUTION CASE:- On 04.09.2015 around 8.30 p.m., the accused assaulted one Rajesh Roshan on his neck by means of an axe causing grievous bleeding injury. Said Rajesh Roshan immediately, being shifted to Ispat General Hospital, Rourkela, was declared dead. The younger sister of Rajesh Roshan (deceased), namely, Goreti Minz (Informant-P.W.1) lodged a written report to the above effect with the Inspector-in-Charge of Plantsite Police Station (P.S.). On receipt of the above report, the I.I.C.
Legal Reasoning
(P.W.13) treated the same as FIR (Ext.1) and upon registration of the criminal case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.13), in course of the investigation, examined the informant (P.W.1) and other CRLA No.521 of 2023 Page 2 of 11 witnesses and recorded their statements under section 161 Cr.P.C. He (P.W.13), having visited spot, prepared the spot map (Ext.7) and made a requisition to the Scientific Officer of District Forensic Science Laboratory, Rourkela to find out the clues. The I.O. (P.W.13) seized the blood stained concrete dust and the blood stained axe from the spot. He (P.W.13) having proceeded to I.G. Hospital, Rourkela, held inquest over the dead body of Rajesh and prepared the report to that effect (Ext.2) and then sent the dead body of Rajesh for post mortem examination by issuing necessary requisition. On the same day, the I.O. (P.W.13) arrested this accused and seized his wearing apparels under the seizure list (Ext.3) and also sent him (accused) for his medical examination. The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.13) submitted the Final Form placing this accused to face the Trial for commission of the offence under sections 302 of the IPC. 4. Learned S.D.J.M., Panposh, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. CRLA No.521 of 2023 Page 3 of 11 5. The prosecution, in support of its case, has examined in total fourteen (14) witnesses during Trial. Out of them, as already stated, the informant, who happens to be the sister of Rajesh (deceased) is P.W.1. P.W.2 is an occurrence witness. P.Ws.6, 9, 15 & 16 are the independent witnesses. P.Ws.7, 8, 11 & 12 are seizure witnesses. The Doctor, who conducted the autopsy over the dead body of Rajesh has been examined as P.W.10. The I.O. of the case has been examined as P.W.13 and the Scientific Officer is P.W.14. 6. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 12. Out of those, the important are, the FIR (Ext.1), the spot map (Ext.7), inquest report (Ext.2); and the post mortem report (Ext.5). The chemical examiner’s report had been admitted in evidence and marked Ext.11. 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of said plea.
Legal Reasoning
8. Mr.Biswajit Nayak, learned counsel for the Appellant (accused) submitted that the prosecution case is based on circumstantial evidence and no direct evidence has been tendered from the side of the prosecution in establishing the complicity of CRLA No.521 of 2023 Page 4 of 11 the accused. He submitted that the evidence against this accused is his so-called extra judicial confession before the P.W.2 and the evidence of P.W.2 on that score, which is not at all believable. He, inviting our attention to the deposition of P.W.2, pointed out as to how absurd is said evidence. He further submitted that even accepting the evidence that the accused had stated before P.W.2 and others as to have committed the crime, that cannot be at all said to be free and voluntary and normal inference stands in that circumstance that the accused had so stated in order to avoid that situation and save himself. He, therefore, urged for acquittal of this accused by setting aside the judgment of conviction and order of sentence returned against him. 9. Mr.G.N. Rout, learned Additional Standing Counsel for the for the Respondent-State submitted all in favour of the finding of guilt as has been returned by the Trial court. He further submitted that the extra judicial confession here, as stated by the witnesses are quite acceptable and these evidence on the score inspires full confidence. He submitted that when so many villagers, who have no reason to falsely implicate this accused, have come forward to state so and no such suspicious feature despite cross-examination, has surfaced, the Trial Court has rightly accepted the same in holding the prosecution to have established the charge beyond reasonable doubt. CRLA No.521 of 2023 Page 5 of 11 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.Ws.1 to P.W.14) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.12. 11. The prosecution, through the Doctor (P.W.10), who had conducted the autopsy over the dead body of Rajesh, has proved that the deceased had sustained several incised wounds on his head region and all those injuries, as per the evidence of the Doctor (P.W.10) are possible by a sharp-edged weapon. The cause of death, as has been stated by the Doctor (P.W.10), was due to shock and haemorrhage following ante mortem incised wound on right cervical blood vessels. The seized axe, being sent for his examination, he has opined that those incised wounds were possible by means of that axe. The above evidence of the Doctor (P.W.10) has remained unchallenged. In that view of the matter, the death of Rajesh is being held to be homicidal in nature. 12. Now, the question arises as to the culpability of the present accused in intentionally causing the death of Rajesh. In order to examine the sustainability of the finding of guilt of the accused, as has been returned by the Trial Court by addressing the rival CRLA No.521 of 2023 Page 6 of 11 submission, we are called upon to examine the evidence let in by the prosecution in support of the charge. 13. At the risk of repetition, it be stated that the prosecution, in the present case, has not led any direct evidence to connect the accused with the authorship of such incised injuries found on the head region of Rajesh (deceased) leading to his death. 14. P.W.1 is the informant and had lodged the FIR (Ext.1). The FIR (Ext.1) version is that P.W.1 was told by the wife of Bharat that the accused had inflicted blow by means of an axe on the neck of Rajesh (deceased), who happens to be the elder brother of P.W.1 and when she went there getting the information, she saw Rajesh lying with such injury on her neck and axe to be lying nearby. Then it is stated that when Rajesh was being taken to the I.G. Hospital, he died on the way and it was so declared by the Doctor on their arrival in the Hospital. Her version, during trial, is that it was around 8.30 p.m. when wife of Bharat came to her house and informed her about the incident wherein the accused had killed her brother by means of an axe. It is not stated by her that when she arrived at the spot, she saw the accused to be standing there or even present somewhere in the vicinity. Her evidence is that after having seen her brother lying unconscious in front of the house of Lal Kumar CRLA No.521 of 2023 Page 7 of 11 Sahu with bleeding injury on his neck and an axe lying there, she saw this accused Charku going towards his house from there. She does not state to have even seen the accused direct face to face and marked his facial or bodily expression at that time giving any indication as to have been found to be in the light to have just before committed the crime. When she states that with the help of other witnesses, her brother was shifted to the Hospital, she does not state that either she or any of the villagers then had called this accused. P.W.1 also does not state to have asked anything to the accused when he was going, which ought to have been the normal response in that situation nor he states that being apprehended of danger to her life, she did not call the accused or went to her. When the other witness arrived, this P.W.3 has also not stated to have seen the accused to have left the spot and thus, the news that she received before coming to the spot, stood confirmed. She simply states the accused to be going towards his house nor even that he was in a hurry and rushing down in any such pose and posture. Thus, from her evidence even if it is accepted that accused Charku was seen by her, on her arrival at the spot to be going towards his house from the spot, that would not be enough to say that the prosecution has discharged its initial burden of proof and thereby the same stood shifted upon CRLA No.521 of 2023 Page 8 of 11 the shoulder of the accused as to how all that happened to the deceased in providing the explanations. The wife of Bharat from whom P.W.1 heard about the incident has not been examined. P.W.1 states to have been told by the wife of Bharat that it was the accused, who had inflicted the blow by means of an axe on the neck of her brother. She does not proceed further in saying as to whether the wife of Bharat, having seen the incident in her own eyes, had so informed or she, having heard it from someone-else had so stated. In the situation, for non-examination of the wife of Bharat, the evidence of the sister of Rajesh (deceased), who has been examined as Informant (P.W.1) becomes suspicious in the sense that when she knew the accused to be the author of the crime, before coming to the spot, she having seen the accused, does not exhibit any such conduct at the spot attracting the attention of the residents of the nearby houses even that the owner of the house in whose front Rajesh was lying in an injured condition. P.W.2, who is a co-villager, has stated that hearing the hullah of the people of their basti that this accused had killed Logi by means of an axe, she immediately went to the spot and saw accused Charku proceeding towards the house of his brother at the basti after killing Logi. This part of the evidence of P.W.2 that after killing Logi, the accused was going away is not at all CRLA No.521 of 2023 Page 9 of 11 acceptable when he has not seen that role of the accused. His further evidence is that the people caught-hold, the accused, who told him to have killed Logi and asked him to see his body. If this was the situation at the spot, the silence of the Informant (P.W.1) as regards the people arriving and then catching-hold of the accused and this P.W.2 asking him anything about the incident for the reply runs against the acceptance of that evidence. More interestingly, this accused, being asked by P.W.2 is said to have told to have confessed the crime, was not the version of P.W.2 before the I.O. (P.W.13) during investigation. Attention of this witness, being drawn to the same, it has been proved through the I.O. (P.W.13). Without stating such an important immaterial connecting the accused with the crime on the first occasion, the later version of P.W.2, according to us, is an afterthought and development to implicate the accused. P.W.3 is the brother of the deceased and Informant (P.W.1) He is post occurrence witness coming to learn from P.W.1 that the accused had killed his brother Rajesh The evidence of P.W.4 belies the evidence of P.W.2 when he has stated to have gone to the spot hearing the hullah of the basti people that the accused had killed Logi. He does not state to have asked anyone present there as to how they could know the accused killing the deceased that they raised the shout. In our CRLA No.521 of 2023 Page 10 of 11 considered view, the evidence, as above discussed, are not sufficient to conclude that the prosecution has established the charge against the accused beyond reasonable doubt. We find no further evidence to be there on record in showing any such other circumstances pointing the figure of guilt at the accused. 15. In the result, the Appeal is allowed. The the judgment of conviction and order of sentence dated 24th April, 2023 passed by the learned 2nd Additional Sessions Judge, Rourkela in S.T. Case No.16 of 2016, are hereby set aside. Since the Appellant (accused), namely, Livans Lugun @ Charku is in custody, he be set at liberty forthwith, if his detention is not wanted in connection with any other case. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 16-Apr-2024 14:39:41 CRLA No.521 of 2023 Page 11 of 11