The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.670 of 2011 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 10.03.2011 passed by the learned Sessions Judge, Koraput, in Criminal Trial No. 138 of 2009. ---- Subash Sirika …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. B. S. Tripathy, Advocate For Respondent- Mr. S. K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing :08.01.2024 ::Date of Judgment:16.01.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and the order of sentence dated 10.03.2011 passed by the learned Sessions Judge, Koraput, in Criminal Trial No.138 of 2009, arising out of G.R. Case No.34 of 2009, corresponding to Narayanpatna P.S. Case No.21 of 2009 of the
Legal Reasoning
Court of learned Judicial Magistrate First Class (JMFC), Laxmipur. CRLA No.670 of 2011 Page 1 of 10 {{ 2 }} The Appellant (accused) has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life. 2. Prosecution Case:- On 14.02.2009 around 10 p.m., one Biridi Sirika returned to his house and told his son Deudu Sirika (Informant-P.W.2) that this accused Subash Sirika had murdered Miniaka Pusa by assaulting him mercilessly by means of a thenga, having dragged him to his house and thereafter, had thrown the dead body in his own house. Having got the information, Deudu Sirika (Informant-P.W.2) in the morning went to the house and found the dead body of Miniaka Pusa lying there. He then called the village Ward Member Habika Manu and some other villagers. It was learnt that Miniaka Pusa was supposed to work as a bonded labour under one Subash and after having taken a sum of Rs.1200/- from him working for some time, Miniaka Pusa did not work for rest of the seven months as promised. So, accused Subash assaulted him to death. A written report to the above effect being lodged by one Deudu (Informant-P.W.2) with the Inspector-In-Charge (I.I.C) of Narayanpatna Police Station. The same was treated as FIR and after registration of the case, the I.I.C. directed the Sub-Inspector (S.I) of Police (P.W.4) to take up the investigation. CRLA No.670 of 2011 Page 2 of 10 {{ 3 }} 3. In course of investigation, the I.O (P.W.4) examined the informant (P.W.2), visited the spot and prepared the report to that effect vide Ext.6. He then held inquest over the dead body of the deceased in presence of the witnesses and prepared the report to that effect vide Ext.1. The dead body was sent for post mortem examination by issuing necessary requisition. He examined other witnesses. He (P.W.4) arrested the accused from his house and it is said that while in custody, he stated in presence of the witnesses about the concealment of the lathi which the I.O recorded vide Ext.5 and the accused then led the I.O (P.W.4) and witnesses to his house and gave recovery of a lathi from a corner of his one-roomed hut which was seized at the place of recovery under seizure list Ext.3. He (P.W.4) also seized the wearing apparels of the accused such as Lungi, shirt and towel from the possession of the accused under seizure list Ext.2/1. The I.O seized the wearing apparels of the deceased vide Ext.8. The seized incriminating articles were sent for chemical examination to RFSL, Berhampur through Court. On completion of investigation, the I.O (P.W.4), submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned JMFC, Laxmipur, receiving 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 charge against the accused for the said offence. CRLA No.670 of 2011 Page 3 of 10 {{ 4 }} 5. In the Trial, the prosecution in order to bring home the charge against the accused has in total examined 6 (six) witnesses. P.W.2 is the informant, who had lodged the written report which was treated as FIR vide Ext.4. P.W.1 is the witnesses to the inquest. The Doctor, who had conducted post mortem examination over the dead body of deceased, has come to the witness box as P.W.5 and the Investigating Officer has been examined as P.W.4. P.W.6 has been cited as an eye witness. 6. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.12/1. Out of those, the important are the FIR, Ext.4, Inquest Report, Ext.1, Seizure list, Ext.2/1, Spot Map, Ext.6 and Post Mortem Report, Ext.12. 7. The plea of the accused persons is that of complete denial and false implication.
Legal Reasoning
8. Mr. Biren Sankar Tripathy, learned counsel for the Appellant (accused) instead of questioning the homicidal nature of the death of the Miniaka Pusa submitted that the prosecution case being based upon the solitary testimony of P.W.6, the Trial Court without proper examination and analysis of his evidence has unjustifiably placed him in the position of a reliable witness and thus having accepted his version has erred in holding that prosecution has proved its case against this accused beyond reasonable doubt. He submitted that the CRLA No.670 of 2011 Page 4 of 10 {{ 5 }} evidence of P.W.6 being taken with the surrounding circumstances as those emanate from the evidence tendered by the prosecution would make it clear that said evidence is not at all of sterling quality so as to form the sole basis of conviction. He, therefore, submitted that the impugned judgment of conviction and order of sentence are liable to be set aside. 9. Mr. S. K. Nayak, learned Counsel for the Respondent-State submitted all in favour of the finding of guilt against the accused as has been rendered by the Trial Court. According to him, the evidence of P.W.6 when is clear that he had seen the accused mercilessly assaulting the deceased and to have dragged the deceased towards his house, as that evidence of P.W.6 has remained unshaken, the Trial Court has rightly convicted the accused for commission of murder of Miniaka Pusa. 10. Keeping in view the submissions made, we have carefully read the judgment of conviction impugned in this Appeal. We have also gone through the depositions of all the witnesses P.W.1 to P.W.6. We have also perused the documents which have been admitted in evidence and marked Ext.1 to Ext.12/1. 11. Death of Miniaka Pusa as per the evidence of the Doctor (P.W.5), who had conducted post mortem examination over the dead body of the deceased and submitted his report Ext.4 was homicidal in nature. His evidence is that he had noticed one lacerated wound on the head and three other multiple injuries on the person of Miniaka CRLA No.670 of 2011 Page 5 of 10 {{ 6 }} Pusa, which were ante mortem in nature. His specific evidence is that the death was due to hypovolumic haemorrhage on account of rupture of the spleen ultimately leading to cardio respiratory arrest. Having examined the seized lathi (M.O-1) which as per the prosecution case had been used by the accused in causing the injuries upon the deceased, this P.W.5 has stated that such injuries were possible by user of the same. In addition to the above evidence, we find the evidence of the I.O (P.W.4), who had conducted inquest over the dead body of the deceased at the spot and prepared his report (Ext.1). He has noted all those injuries seen by him over the dead body in his report Ext.1. Furthermore, we find the evidence of other witnesses, who have seen the deceased in an injured condition, besides the evidence of P.W.6, who has been projected as an eye witness. Above overwhelming evidence on record, when have gone un-impeached, we are left with no option but to conclude that Miniaka Pusa met a homicidal death. 12. Let us next proceed to examine the sustainability of the finding of the Trial Court basing upon the evidence on record as to the complicity of the accused. In the present case, the prosecution has projected P.W.6 as the solitary eye witness and the Trial Court basing upon his evidence which has received the corroboration from the evidence of the Doctor (P.W.5) has held the accused to be guilty of commission of murder of Miniaka Pusa. 13. It is the settled position of law that there sands no bar to record a conviction against the accused basing upon the solitary CRLA No.670 of 2011 Page 6 of 10 {{ 7 }} testimony of a witness which is based on the principle that while considering a particular fact in issue as to the complicity of the accused if has been proved or not, the Court is concerned with the quality of the evidence but not the quantity. However, in doing so, the word of caution very much stands that before acceptance of the evidence of the solitary witness as the sole basis of the finding of conviction, the Court must be satisfied that said evidence is of sterling quality and the witness is a wholly reliable one so that without seeking any corroboration on the material aspects of the case, the Court can act upon the same. 14. In the backdrop of the aforesaid, when we proceed to test the evidence of P.W.6, we find him to have stated that around 10 p.m. in the night, when he had been to the house of Biridi Sirika where the deceased was present, the accused barged into the hut and dragged the deceased by putting a small towel in his neck towards the house of the accused and repeatedly, assaulted the deceased by means of a lathi in causing his death. So as per the above evidence, deceased and this P.W.6 were present in the house where the incident began when the accused barged into the place and did further acts. He has however, stated that at the time of occurrence, those 6 to 7 persons were present in the house. Although this P.W.6 does not say them to have not witnessed the occurrence, they have not been examined. This P.W.6 has not stated their names nor the prosecution has named any of them nor has examined anyone from out of them who too had seen the occurrence. The prosecution for that also has not provided CRLA No.670 of 2011 Page 7 of 10 {{ 8 }} any explanation. Therefore, when besides P.W.6, few others (6-7) had also seen the occurrence, the prosecution has not availed the opportunity to bring in their evidence to offer corroboration to the evidence of P.W.6. This P.W.6 having once stated about the presence of 6 to 7 persons in the house at the time of occurrence has again gone to say that it was only Biridi Sirika, who was present in the house where occurrence began and other inmates of the house were not present at the relevant time. That Biridi Sirika has been however, not been examined. As already stated this P.W.6 says that the accused barged into the hut and dragged the deceased. During cross-examination, his evidence is however, to the effect that at the time of his arrival, Miniaka Pusa (deceased) and Biridi Sirika who happens to be the maternal uncle of this P.W.6 were sitting near the fire in front of the house. He, however, does not state as to if, from there, they had gone inside the house or not and if so, after how much time. He again states that when the accused took the deceased by dragging, he came away from the spot out of fear. Then again it is his evidence that he protested for the act of the accused but the accused did not listen. About his presence near the occurrence, it is his further evidence that he and two others (we three people) were sitting around the fire in front of the house which is before the occurrence. Besides himself, he thereby means the accused and the deceased. So in that way this witness contradicts his first version that the accused barged into the house and dragged the deceased. With all these above, irreconcilable discrepancies and variance, we too cannot lose sight of the conduct of this P.W.6 which tells upon the CRLA No.670 of 2011 Page 8 of 10 {{ 9 }} trustworthiness of his evidence. Having seen the incident, he has not raised any shout which is ordinarily expected. He is silent as to what his uncle namely, Biridi Sirika did at that relevant time. When he stated about the dragging of the deceased by the accused by a small towel, no such injury mark is noticed by the Doctor (P.W.5). He is not stating about any resistance being made from the side of the deceased and about his coming to physical interfere, he is silent. It has also not been stated by P.W.6 that when the accused arrived, he was holding the lathi. His evidence is also not clear that the accused first having assaulted the deceased, dragged him or having dragged the deceased, assaulted him. He having said that the accused gave repeated blows, there was ample time for him to invite the attention of other close door neighbours by calling them. Furthermore, he (P.W.6) with his uncle being there, there appears no attempt from their side to over-power the accused, who is not stated to have given any threat to this P.W.6 or his uncle.
Decision
In view of the above discussion of the evidence of P.W.6, we are not in a position to hold that the same is of sterling quality so as to solely form the basis to record the finding that it is the accused, who had assaulted the deceased to death. 15. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 10.03.2011 passed by the learned Sessions Judge, Koraput, in Criminal Trial No.138 of 2009 are hereby set aside. CRLA No.670 of 2011 Page 9 of 10 {{ 10 }} The Appellant (accused) be set at liberty forthwith, if his detention is not warranted in connection with any other case. G. Satapathy, J. I Agree. (D. Dash), Judge. (G. Satapathy), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 17-Jan-2024 11:37:02 CRLA No.670 of 2011 Page 10 of 10