The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.206 OF 2011 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 28th February, 2011 passed by the learned Sessions Judge, Koraput at Jeypore in Criminal Trial No.49 of 2008. ---- Upendra Miniaka @ Upi & Another -versus- ….. Appellants State of Odisha ….. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellants - Mr. B.S. Tripathy, Advocate. For Respondent - Mr. P.K. Mohanty, Additional Standing Counsel. CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY DATE OF HEARING :16.11.2023:DATE OF JUDGMENT:04.12.2023 D.Dash, J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 28th February, 2011 passed by the learned Sessions Judge, CRLA NO.206 OF 2011 Page 1 of 11 {{ 2 }}
Facts
Koraput at Jeypore in Criminal Trial No.49 of 2008 arising out of G.R. Case No.152 of 2007 corresponding to Laxmipur P.S. Case No.61 of 2007 of the Court of learned Judicial Magistrate First Class (J.M.F.C.), Laxmipur. The Appellants (accused persons) have been convicted for commission of offence under section 302/394 of the Indian Penal Code, 1860 (for short ‘the IPC’) and they have been sentenced to undergo imprisonment for life for the offence under section-302 of the IPC and further sentenced to undergo rigorous imprisonment for six (5) years with payment of fine of Rs.5000/- in default to undergo rigorous imprisonment for one year for the offence under section-394 of the IPC. The stipulation has been that the imposed substantive sentences would run concurrently. 2. Prosecution Case:- The Assistant Sub-Inspector of Police (P.W.10) attached to Laxmipur Police Station in the District of Koraput while enquiring into the P.S. U.D. Case No.11 of 2007, registered on the basis of an information given by one Dora Kulesika (P.W.1) of village Nuapali as regards the unnatural death of his daughter Luko Miniaka, whose dead body was recovered in a highly decomposed state inside a bushy area locally known as Rekbhota forest presented a written report with the Inspector- In-Charge of Laxmipur P.S. as his enquiry revealed that Luko Miniaka met homicidal death and he suspected the CRLA NO. 206 OF 2011 Page 2 of 11 {{ 3 }} involvement of these two accused persons namely, Upendra Miniaka @ Upi and Siba Mandinga of village Bada Mandhar under the jurisdiction of Rayagada Police Station and Bhitarguda under the jurisdiction of Laxmipur Police Station respectively. The IIC (P.W.12) receiving such written report (Ext.19) of the ASI (P.W.10), treated the same as F.I.R. (Ext.19/3) and registering the regular case, took up investigation. 3. The I.O.(P.W.12) in course of investigation, examined the Informant (P.W.1), visited the spot around 12.30 pm on that day. He prepared the spot map, Ext.22 and examined some other witnesses as also examined few more witnesses on the next day. He then arrested these two accused persons from Rupkona chhak. In course of investigation, it is said that accused Upendra gave his statement to have sold the stolen gold ornaments to two goldsmiths at Rayagada. It is also said that accused Siba Mandinga giving his statement disclosed about the concealment of stolen silver ornaments and one stone and also disclosed about the sale of stolen gold ornaments to two goldsmiths at Rayagada. Accused-Siba having given his statement is said to have led P.W.12 and other witnesses near the bush situated close to the spot where the dead body was lying and gave recovery of the stone from side the bush. He then also led them in giving recovery of the silver bangles wrapped in a polythene sheet from inside the bush near the CRLA NO. 206 OF 2011 Page 3 of 11 {{ 4 }} Tamarind tree at village Badamanadhar. The statement of the accused persons were recorded by the I.O. (P.W.12) vide Exts.4 and 5 and seizures of the stone as well as the silver bangles were made under seizure lists Exts.6 & 7. Accused Upendra having led the I.O. (P.W.12) and other witnesses to the shop of the other accused K. Amarnath (since acquitted) at Rayagada, the gold earrings (Kana Fasia) were seized vide seizure list from the said accused K. Amarnath (since acquitted) and then two more gold nose rings (Jamini) and one gold nose ring (Dondi) were seized more possession of accused-B.Ganesh (since acquitted). On completion of investigation, Final Form was submitted placing the accused persons to face the Trial for commission of offence under section-394/302/201/34 of the IPC. 4. Learned J.M.F.C., Laxmipur 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 twelve (12) witnesses, those are P.Ws.1 to 12. As already stated, the S.I. of Police, who enquired the P.S. UD Case No.11 of 2007, registered on the basis of the information of received from P.W.1 is the Informant who had lodged the F.I.R. admitted evidence and marked as Ext.19, P.Ws. 2 and 6 are the witnesses CRLA NO. 206 OF 2011 Page 4 of 11 {{ 5 }} to have last seen the deceased with the accused persons at Rupkona Chhak. P.W.5 is the husband of the deceased, P.W.4 is the witness to the seizure of gold ornaments, The Doctors who had conducted autopsy over the dead body of the deceased have been examined as P.Ws.8 & 9. P.W.10 is the I.O., who had held inquest over the dead body of the deceased and submitted his report as Ext.20, P.W.11 is the Judicial Magistrate First Class, Laxmipur who conducted T.I. Parade in respect of the suspect gold articles. The I.O. has come to the witness box and examined as P.W.12. The prosecution besides leading the evidence by examining the above witnesses has proved several documents which have been marked as Ext.1 to Ext.23. Important of those; are the inquest report Ext. 1, postmortem report, Ext.10, written report, Ext.19, formal F.I.R., Ext.19/3, spot map, Ext.14 and Chemical Examiner’s report Ext.23. 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 12 and the medical evidence coming from the lips of P.W.9 as well as the I.O. (P.W.12) concluded that the charge against these accused persons for the offence under section-302/394 of the IPC CRLA NO. 206 OF 2011 Page 5 of 11 {{ 6 }} has been established beyond reasonable doubt. Accordingly, these accused persons have been convicted for commission of offence under section-302/394 of the IPC and sentenced as aforestated. It be stated here that the Trial Court having found the prosecution to have failed to establish the charge as against the accused persons namely, Kottakota Amarnath and Batala Ganesh who are the goldsmiths have purchased the gold ornaments from these two accused persons, have acquitted them and it is stated at the Bar that said order of acquittal of the co- accused persons have not been futher challenged. 8. Learned Counsel for the Appellants (accused persons) submitted that there being no direct evidence to connect these accused persons with the commission of the crime, the Trial Court basing upon the evidence let in by the prosecution, merely on some stay statements of the witnesses as to the deceased being last seen in the company of these accused persons and the recovery of the stone and other ornaments which are said to be at the instance of these accused persons which have also not been proved in accordance with law has committed grave error in holding the accused persons guilty of commission of offence under section 302/394 of the IPC. In support of the same, he drawn our attention to the deposition of the witnesses i.e. P.W.1 to 12 in submitting that those even if CRLA NO. 206 OF 2011 Page 6 of 11 {{ 7 }} accepted on their face value cannot lead to a finding that the prosecution has established the charges against the accused persons beyond reasonable doubt. 9. Learned Counsel for the Respondent-State while supporting the finding of the guilt against the accused persons as has been returned by the Trial Court submitted that the evidence on record being read in entirety and the totality of the circumstances emanating from the evidence of the prosecution witnesses being taken into account, the judgment of conviction and order of sentence impugned in this Appeal are not required to be interfered with. 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 to P.W.12 and have perused the documents which have been marked Exts.1 to 27. 11. It be stated at first that the dead body of the deceased namely, Luko Miniaka being sent for postmortem examination, P.W.8 was the Doctor who had so conducted. His evidence is that he had noticed the fractures of right maxillary bone and occipital bone and on internal dissection, haemorrhage in the brain with clotting of blood had been found out and so also chest was found to have swollen with subcutaneous haemorrhage all over the chest area. It has been stated by P.W.8 CRLA NO. 206 OF 2011 Page 7 of 11 {{ 8 }} that all these injuries were antemortem in nature and the death was on account of haemorrhage of brain leading to cardio- respiratory failure. It has also been his evidence that the injuries were possible by means of hard and blunt object. The seized stone having been examined by him, his opinion under Ext.11 is that all these injuries over the dead body were possible by the said stone M.O.-I. The findings have been noted in his report, Ext.10. The ASI of Police (P.W.10) having held inquest over the dead body had too noted those external injuries in his report, Ext.14, which has also been stated by other witnesses, who were the witnesses to the inquest and had seen the dead body of the deceased. When such evidence have remained un- impeached, the nature of death of Luko Miniaka can be safely said to be homicidal in nature. 12. The question thus comes as to how far the prosecution has established the charges against the accused persons through the evidence let in. For the purpose, we are called upon to examine the evidence on record on that score in addressing the rival submission. 13. P.W.1 is the father of the deceased. It is his evidence that one Wednesday, his son-in-law(P.W.5), during the Dushera month came to their house and wanted to see his wife and take her back. When he was told by P.W.1 that deceased had not CRLA NO. 206 OF 2011 Page 8 of 11 {{ 9 }} come to his house, he (P.W.1) and his son-in-law, Lunka Miniaka (P.W.5) went in search of the deceased. On their way, one Gopali Kulesika (P.W.2) told that on the previous Sunday when he was in Munduliguda Chhak to see off his mother-in- law, he has seen the deceased going with the accused persons namely, Upendra Miniaka and Siba Mandinga. His evidence is thus to the effect that during search made on Wednesday as per P.W.1’s statement, Gopali Kulesika told them to have been accused persons and the deceased together on Sunday. Thereafter the dead body was found by them i.e. P..W.1 and P.W.5 in Rekbhota jungle. P.W.2, who is the person who had told P.W.1 and P.W.5 having seen the deceased with the accused persons on Sunday has stated that the accused persons were found proceeding with the deceased towards the village of P.W.2 and that was a Sunday. P.W.1 is the cousin brother of P.W.2. He has stated that on being asked, deceased told him that he was proceeding to village Piskadang to see her maternal uncle, who was ill and she had also told that she would first proceed to Muspali i.e. to her father’s house, the house of P.W.1 and then was proceed to village Piscadang. This part is not stated by P.W.1 to have been told by P.W.2 to them. P.W.5 has stated that P.w.2 had told before them that on Sunday, he had seen the deceased with the accused persons and all were proceeding to village Muspalli. He further states CRLA NO. 206 OF 2011 Page 9 of 11 {{ 10 }} that having heard from P.W.2, he with P.W.1 had been to the house of accused Upendra, whereas P.W.1 has stated to have gone to the house of father-in-law of Upendra. They say that they did not find him there. P.W. 5 is silent as to the conversation between P.W.2 and his wife (deceased) as told by P.W.2. His evidence appears is wholly cryptic. We thus find the prosecution evidence as to the last seen theory is highly discrepant. The prosecution by leading the evidence through
Legal Reasoning
P.Ws.1, 2 and 5 in our view cannot be said to have established beyond reasonable doubt, that these two accused persons were seen with the deceased on that Sunday. Besides the above, there remains the gap of three days in between the accused persons being last seen with the deceased and the recovery of the dead body. No further evidence is forthcoming as regards the movement of these accused persons during this gap period. Coming to the recovery of the ornaments at the instance of the accused persons, we find the evidence of the I.O. (P.W.12) not only to be cryptic but also not satisfying the requirements of section-27 of the Evidence Act for being admissible to the extent as provided in law. The so called purchasers of ornaments having been arraigned as accused persons were not cited as witnesses and thus the prosecution appears to have not reaped the benefit obtaining the evidence from them that the accused persons had gone and sold those CRLA NO. 206 OF 2011 Page 10 of 11 {{ 11 }} ornaments to them. Therefore, even if ornaments are shown to be belonging to the deceased, the same is of no help to the prosecution to be utilized against these accused persons in any manner. The evidence of P.W.7 who is the witness to the recovery being carefully read is also found to be not at par with the evidence of the I.O. (P.W.12). On a conspectus of discussion of evidence as hereinabove, we are of the view that the prosecution has failed to establish the charges against the accused persons beyond reasonable doubt. 14.
Decision
In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 28th February, 2011 passed by the learned Sessions Judge, Koraput at Jeypore in Criminal Trial No. 49 of 2008 are hereby set aside. Since, the accused persons namely, Upendra Miniaka @ Upi and Siba Mandinga are on bail, their bail bonds shall stand discharged. G. Satapathy, J. I Agree. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: PERSONAL ASSISTANT Reason: Authentication Location: OHC Date: 10-Dec-2023 16:49:02 Narayan (D. Dash), Judge. (G. Satapathy), Judge. CRLA NO. 206 OF 2011 Page 11 of 11