The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.80 of 2016 AND JCRLA No.81 of 2016 In the matter of Appeals under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 12th August, 2016 passed by the learned 2nd Additional Sessions Judge, Baripada, Mayurbhanj in S.T. Case No.290 of 2015. ---- …. Appellants Budhuni Majhi (In JCRLA No.80/2016) Saunri Majhi (In JCRLA No.81/2016) State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.Pulakesh Mohanty (Advocate in both JCRLAs) For Respondent - Mr.Sonak Mishra, Additional Standing Counsel (In both the JCRLAs)
Legal Reasoning
CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 11.08.2023 : Date of Judgment:28.08.2023 D.Dash,J. Since in both the Appeals, the judgment of conviction and order of sentence dated 12th August, 2016 passed by the learned 2nd Additional Sessions Judge, Baripada, Mayurbhanj in S.T. Case JCRLA Nos.80 & 81 of 2016 Page 1 of 10 {{ 2 }} No.290 of 2015 corresponding to G.R. Case No.684 of 2015 on the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baripada, have been called in question, those were heard together
Decision
for being disposed of by this common judgment. The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, they have been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) each in default to undergo rigorous imprisonment for one (1) year for commission of the said offence. 2. Prosecution Case:- On 16.06.2015 around 7.30 p.m., one Saban Marandi (P.W.6) presented the written report with the Inspector-in-Charge (IIC) of Baripada Sadar Police Station stating therein that on the previous night, around 8.00 p.m., when he was proceeding to the house of Ramjeet Majhi (P.W.3), who is his brother-in-law at Village- Kendujhari from his own Village-Besharpani after witnessing their community dance, he saw accused persons assaulting his sister-in-law (Bhauja), namely, Mayan Majhi (deceased) on the village road by means of bamboo stick. He further stated that when he went near the spot and intervened, accused Budhuni gave him a blow by means of that bamboo stick which he was holding and thereafter he left the place out of fear. On the next JCRLA Nos.80 & 81 of 2016 Page 2 of 10 {{ 3 }} morning, the informant (P.W.6) found the Mayan Majhi (deceased) lying at the spot with bleeding injuries on her head and near the dead body of Mayan, the bamboo stick were lying. So, he called his brother-in-law (P.W.3) and shifted the deceased to the house where she died around 11.30 a.m. Receiving the above report, the IIC treated the same as FIR (Ext.1) and registering the case, took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.8) examined the Informant (P.W.6) and the person, who scribed the said FIR (Ext.1), i.e., P.W.1. He then proceeded to the village and held inquest over the dead body of the deceased. He prepared the report to that effect (Ext.9/1) and then sent the dead body for post mortem examination by issuing necessary requisition. He also seized incriminating articles under seizure lists. The accused persons were arrested and forwarded in custody to Court. The incriminating articles, seized in course of investigation, were sent for chemical examination through Court. The I.O. (P.W.8) He had also made a query to the Medical Officer, who had conducted the post mortem examination over the dead body of Mayan as regards the possibility of user of the wooden bamboo stick in causing the injuries. On completion of the investigation, the Final Form was submitted placing the accused persons to face the Trial for commission of the offence under section 302/34 of the IPC. JCRLA Nos.80 & 81 of 2016 Page 3 of 10 {{ 4 }} 4. Learned S.D.J.M., Baripada, on receipt of the Final Form, as above, took cognizance of the offence and after observing the formalities, committed the case to the Court of Sessions. That is how the trial commenced by framing the charge for the aforesaid offence against the accused. 5. The defence plea is that of complete denial and false implication. 6. The prosecution, for establishing the charge, has examined in total nine (9) witnesses during Trial. Out of those, as already stated, the informant, who had lodged the FIR (Ext.1) scribed by P.W.1 has been examined as P.W.6. P.W.9 has been examined as another eye witness to the occurrence. P.Ws.2 & 3 are the two post occurrence witnesses, who had shifted the deceased to her house on the next day of the occurrence. P.W.7 is a co-villager, is a witness to the inquest and the Doctor, who had conducted the post mortem examination has come to the witness box as P.W.4 whereas the I.O. is P.W.8. 7. 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 14. Out of those, important are the FIR (Ext.1), inquest report (Ext.9/1), post mortem (Ext.2) and spot map (Ext.10) JCRLA Nos.80 & 81 of 2016 Page 4 of 10 {{ 5 }} 8. The Trial Court, having examined the evidence of the Doctor (P.W.4), who held the autopsy over the dead body of Mayan (deceased) as also other evidence including that of the I.O. (P.W.8), who, had conducted the post mortem examiation over the dead body of the deceased and also the evidence of other witnesses, has arrived at a conclusion that Mayan met a homicidal death. In fact, this aspect of the case was not under challenge before the Trial Court and that is also the situation before us. It reveals from the evidence of the Doctor (P.W.4) that during post mortem examination that he had noticed several injuries on the dead body, which are bruise, lacerated wounds, fractures of three ribs of the left side chest and also laceration of spleen with hamopharitonum. As per his evidence, he had found sub-dural heamatoma over the right frontal parietal of the brain. It is his evidence that all such injuries are ante mortem in nature and the death was on account of haemorrhage and shock due to injury to the vital organ like brain. All these features, which he noticed during post mortem examination had been noted by him in his post mortem examination report (Ext.2). He had also deposed that he had examined the bamboo sticks being sent by I.O. (P.W.8) and opined that all such injuries are possible. The I.O. (P.W.8), during inquest, had also noticed all such injuries over the dead body of the deceased, which he has reflected in his own language in the inquest report (Ext.9/1). The other witnesses Page 5 of 10 JCRLA Nos.80 & 81 of 2016 {{ 6 }} including P.W.6, the so-called eye witness, has stated to have seen the deceased with such injuries on her person. All above said evidence, having gone unchallenged, we find all the reasons to concur with the finding of the Trial Court that Mayan met a homicidal death. 9. Mr.Pulakesh Mohanty, learned counsel for the Appellants (accused persons) submitted that the submitted that the entire case of the prosecution here is resting upon the solitary testimony of P.W.6 since P.W.9, the other projected eye witness, has not supported the prosecution version in providing further corroboration to the evidence of P.W.6. Placing the deposition of P.W.6, he submitted that although in the eye of law, there is no bar to base a conviction on the solitary testimony of a witness, yet as in the given case, the evidence of P.W.6 being not of that starling quality, the Trial Court committed grave error in placing implicit reliance upon his evidence to base the conviction. He also pointed out the infirmities in the evidence of P.W.6 and the contradictory statements finding place in the FIR (Ext.1). 10. Mr.Sonak Mishra, learned Additional Standing Counsel for the State-Respondent submitted all in favour of the finding of the Trial Court holding the accused persons guilty of committing the murder of Mayan (deceased). According to him, P.W.6, being a rustic Adibasi witness, his evidence should not be so meticulously examined. He submitted that the evidence of P.W.6 JCRLA Nos.80 & 81 of 2016 Page 6 of 10 {{ 7 }} being read in totality, it would be found to having the ring of truth and thus the Trial Court did commit no mistake in accepting his evidence to be above the board in recording a conviction of the accused persons for commission of the offence under section 302 of the IPC. 11. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also gone through the depositions of the witnesses (P.W1.1 to 9) and have perused the documents, which have been admitted in evidence and marked Exts.1 to 14. 12. True it is that the entire case of the prosecution here is based on the testimony of P.W.6, who is also the informant and had lodged the FIR (Ext.1) being scribed by P.W.1. The narrations in the FIR (Ext.1) reveal that when this P.W.6 was going to his brother-in-law9s house on the road after witnessing the community dance on the road, he saw the accused persons assaulting Mayan (deceased), who is his sister-in-law. It has also been stated that when he told them not to assault Mayan (deceased) and intervened to desist them from continuing in doing so, accused Budhuni assaulted him by force and so thereafter, he left the spot. It has further been indicated in Ext.1 that on the next morning, when he came, he saw Mayan lying on the road with bleeding injury on her head when also two bamboo sticks were also lying near her. He says that he called his brother- JCRLA Nos.80 & 81 of 2016 Page 7 of 10 {{ 8 }} in-law and bringing Mayan, made her sleep on a cot and it was around 11.30 am, Mayan died. This was the first version of P.W.6, which he himself has proved by saying that he had lodged that Ext.1. During trial, this witness, however, has stated that when he was returning, he saw both the accused persons standing near the deceased holding bamboo sticks in their hand and then the deceased was lying on the ground, having bleeding injuries on her person. Having said so, he has again modified his version in stating that he had seen the accused persons quarrelling and assaulting the deceased by means of that bamboo stick. It has also been stated by this witness that he himself was under intoxication at the relevant time and, therefore, he did not interfere. But his positive version in the FIR (Ext.1) was that he had interfered and accused Budhuni when assaulted him by force, he, out of fear, left the place. Again in the FIR (Ext.1), when it is stated that in the morning, having gone to the spot, he saw Mayan lying with injuries and then with the help of his brother-in-law, he shifted Mayan to the house, during trial, his version is that the villagers thereafter shifted the deceased to the house and the deceased succumbed to the injuries on the next morning. Thus, his evidence during trial is that the shifting had taken place in the night itself. During cross-examination, it has also been stated that the deceased had also taken liquor on the relevant date. Having stated that, he had seen the occurrence, he has also stated to have heard about the occurrence from others, which appears to be Page 8 of 10 JCRLA Nos.80 & 81 of 2016 {{ 9 }} quite irreconcilable. It has further been stated by P.W.6 that when the occurrence took place, he was at a distance of 40-50 meters from the exact spot and it was during rainy season and a dark night. He has further stated that he would see the things up to a distance of 30 feet. He too has not been able to say as to who assaulted whom. He has further stated that prior to the presentation of the FIR, the police had already arrived at the spot and held inquest when it had been stated by the I.O. (P.W.8) that P.W.6 has been examined at the P.S. where he had received the written report (Ext.1) from him. 13. Above being the state of affair in the evidence of P.W.6, it is seen that P.W.9., who is the other projected eye witness, has not supported the prosecution version and no such material has been elicited from him to provide aid to the version of P.W.6. For all these aforesaid, keeping in view the settled position of law that the testimony of solitary witness must be found to be wholly reliable being unblemished to base the conviction; we are not in a position to place the evidence of P.W.6 in that pedestal. In that view of the matter, we find that the Trial Court is not right in accepting the testimony of P.W.6 to hold that it is these accused persons, who had assaulted Mayan (deceased) to death. On the conspectus of the analysis of the evidence let in by prosecution, we are of the view that the finding of the Trial Court that the prosecution has established the charge against accused JCRLA Nos.80 & 81 of 2016 Page 9 of 10 {{ 10 }} persons beyond reasonable doubt by leading clear, cogent and acceptable evidence cannot be sustained. 14. In the result, the Appeals are allowed. The judgment of conviction and order of sentence dated 12th August, 2016 passed by the learned 2nd Additional Sessions Judge, Baripada, Mayurbhanj in S.T. Case No.290 of 2015 are hereby set aside. Since the Appellant No.1, namely, Saunri Majhi is on bail, her bail bonds stand discharged and accused Budhuni Majhi, being in custody, she be set at liberty forthwith, if her detention is not wanted in connection with any other case. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 29-Aug-2023 14:14:45 JCRLA Nos.80 & 81 of 2016 Page 10 of 10