MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.435 of 2020 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 5th August, 2019 passed by the learned Sessions Judge, Rayagada in C.T. No.60 of 2017. Siku Majhi ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.Prabir Ku. Ray, A.R. Sethy & S. Devi (Advocates) For Respondent - Mr.S.K. Nayak Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 22.04.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 5th August, 2019 passed by the learned Sessions Judge, Rayagada in C.T. No.60 of 2017 arising out of G.R. Case No.91 of 2017 corresponding to Tikiri P.S. Case No.31 of 2017 in the Court of the
Legal Reasoning
learned Judicial Magistrate First Class (J.M.F.C.), Kashipur. CRLA No.435 of 2020 Page 1 of 10 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 and pay fine of Rs.500/- (Rupees Five Hundred) in default to undergo rigorous imprisonment for ten (10) days for commission of the said offence. 2. PROSECUTION CASE:- The accused, namely, Siku Majhi was working as a labourer in Andhra Pradesh. He had come to his native village sometime in the month of January, 2017. The wife of the accused, elder son, daughter-in-law and another son of the accused were staying at their native village, namely, Leliput. A rumor had spread in the village that Basu Majhi (deceased) had developed illicit relationship with wife of the accused. It is alleged that on 25.03.2017, the accused came to the house of Basu (deceased) at Leliput and informed the barber of his village about the said rumor and requested him to call a village meeting for settlement of the matter. The accused went to the house of Basu (deceased), called him to the road and assaulted him by means of a wooden lathi on his head and face leading to his death. On the next date, i.e., on 28.03.2017, the elder brother of the Basu (deceased), who has been examined as P.W.1, arrived at the village and saw his younger brother (Basu) lying Page 2 of 10 CRLA No.435 of 2020 dead. Having heard about the incident from the co-villagers that it was the accused, who had done his younger brother (Basu) to death, around 9.30 a.m, he (P.W.1) lodged a written report with the Inspector-in-Charge (I.I.C.) of Tikiri Police Station (P.S.). On receipt of the above report, the I.I.C. (P.W.10) treated the same as FIR (Ext.4) and upon registration of the criminal case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.10), in course of the investigation, examined the informant (P.W.1) and other witnesses and recorded their statements under section 161 Cr.P.C. He (P.W.10), having visited spot, prepared the spot map (Ext.5) and sent the dead body of Basu for post mortem examination by issuing necessary requisition. The I.O. (P.W.10) seized the sample earth and blood stained earth from the spot under seizure list (Ext.3). He (P.W.10) arrested the accused at about 4.00 p.m. and it is said that this accused, while in police custody, gave his statement to have concealed the weapon and stated that if he would be taken to the place, he would give recovery of the same. Thereafter, he (accused) led the I.O. (P.W.10) and other witnesses to his hosue in giving recovery of wooden lathi. The said wooden lathi has been seized by the I.O. (P.W.10) under seizure list (Ext.2). The wearing apparels of the accused and deceased were also seized by the I.O. (P.W.10) under seizure lists, Exts.7 and 8 CRLA No.435 of 2020 Page 3 of 10 respectively. The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.10) submitted the Final Form placing this accused to face the Trial for commission of the offence under sections 302 of the IPC. 4. Learned J.M.F.C., Kashipur, 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. 5. The prosecution, in support of its case, has examined in total eleven (11) witnesses during Trial. Out of them, as already stated, the informant, who happens to be the elder brother Of Basu (deceased) is P.W.1 whereas P.Ws.2 & 3 are the son and daughter of P.W.1. P.W.4 is an eye witness to the assault on the deceased as projected by the prosecution. P.W.5 is a post occurrence witness. P.Ws.6, 7, 8 & 9 are the witnesses to the inquest. The Doctor, who conducted the autopsy over the dead body of Rajesh has been examined as P.W.11. The I.O. of the case has appeared in the witness box as P.W.10. 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. Page 4 of 10 CRLA No.435 of 2020 Out of those, the important are, the FIR (Ext.4), the spot map (Ext.5), inquest report (Ext.1); and the post mortem report (Ext.11). The chemical examiner’s report had been admitted in evidence and marked Ext.12. 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.Prabir Ku. Ray, learned counsel for the Appellant (accused) submitted that the prosecution, in order to bring home the charge against the accused, relies upon the evidence of P.Ws.3 & 4. Inviting our attention to the evidence of P.Ws.3 & 4, he submitted that their version as to have seen the accused assaulting the deceased is not at all acceptable and the same being tested with their conduct, they cannot be held to be reliable witnesses. He further submitted that although much is stated about the motive behind the crime, the brother of the deceased, who is none other than the informant, being examined as P.W.1, has clearly stated that the relationship between the accused and the deceased was cordial. He, therefore, submitted that basing upon the evidence of P.Ws.3 & 4 and in the absence of any other evidence to connect the accused with the authorship of the injuries upon the deceased, the Trial Court ought not to held that the prosecution has established the charge under section 302 of CRLA No.435 of 2020 Page 5 of 10 the IPC as against this accused beyond reasonable doubt. He, therefore, urged for acquittal of this accused by setting aside the judgment of conviction and order of sentence returned against him. 9. Mr.S.K. Nayak, learned Additional Government Advocate for the for the Respondent-State submitted all in favour of the finding of guilt as has been returned by the Trial court. Drawing our attention to the depositions of P.Ws.3 & 4, he submitted that they, having clearly stated the accused to have assaulted the deceased, the Trial Court did commit no mistake in accepting their version so as to fasten the guilt of the accused. 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.11) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.12. 11. The prosecution, through the Doctor (P.W.11), who had conducted the autopsy over the dead body of Basu, has proved that the deceased met a homicidal death. The Doctor (P.W.11), who had conducted the autopsy over the dead body of Basu, has clearly stated to have noticed three cut injuries; one on the left side of the eye, second below the eye and third above the right side of the head. He has also stated that the cause of death was Page 6 of 10 CRLA No.435 of 2020 due to intra cranial brain haemorrhage due to massive bleeding. All such findings, which the Doctor (P.W.11), has given opinion, has noted in his report (Ext.11). It is also his evidence that said injuries, which he noticed over the dead body of the deceased were possible by the wooden lathi and all those were ante mortem in nature. With the above evidence of the Doctor (P.W.11), we also find the evidence of the I.O. (P.W.10), who held inquest over the dead body of the deceased and noted all such injures in his report (Ext.1) and that also receives the support from the evidence of other witnesses including P.Ws.3 & 4, who had seen the deceased lying dead with injuries on his head. Thus, the prosecution, having established that the deceased met a homicidal death, the matter now stands for examination as to whether the accused is liable for the same. 12. To bring home the charge against the accused, the prosecution in total has examined eleven (11) witnesses. P.W.1 is none other than the informant and he happens to be the elder brother of the deceased. He was not present at the time of occurrence and having heard he lodged the FIR (Ext.4). He of course in the FIR (Ext.4) has named this Appellant (accused) to be the author of the injuries upon the deceased, which he had heard from the co-villagers. Although he has written in the FIR (Ext.4) that it was on account of prior enmity, CRLA No.435 of 2020 Page 7 of 10 during cross-examination, he (P.W.1) has stated that the accused was pulling on well with Basu (deceased) before the incident. He states that on his return to his village, his daughter told him about the incident and the role played by this accused. That daughter of P.W.1 has been examined as P.W.3. Her evidence is that her uncle (deceased) at the relevant time was taking food and at that time, the accused, with his wife, came to their house and they called Basu (deceased) and took him with them. She states to have followed them, but out of fear, restrained herself on the way. Her further evidence is that she saw the accused assaulting the deceased by means of thenga on his head. She does not, however, state to have told about the incident immediately thereafter to anybody in the village. Her evidence is to the effect that only on return of her father (P.W.1), she disclosed the matter before him. During cross-examination, she has again stated that after her uncle (deceased) left the house with the accused, she followed them and returned home from outside the verandah of their house. Having stated to have seen the accused assaulting during her examination in chief, she again states to have not seen the accused assaulting the deceased and then again goes to say to have seen the accused assaulting the deceased. In such state of affair in the evidence of P.W.3, we do not feel that it would be safe to rely upon her evidence to hold that it Page 8 of 10 CRLA No.435 of 2020 is the accused, who had assaulted Basu (deceased) by means of wooden lathi on his head and face. Next is the evidence of P.W.2, who has stated to have heard about the incident from P.W.3. 13. Coming to the evidence of P.W.4, we find her to have stated that at the relevant time, she was cooking in her house and hearing some hullah, she came out and saw the accused hitting the accused by means of a thenga. She states that the very next moment, she entered into her house and has not stated anything about that to anybody except going to state before the Judicial Magistrate during her examination under section 164 Cr.P.C. that also she states to have been taken by the police to the Magistrate and so stated before the Magistrate as per the version of the police. Her evidence is again on the score that the place of occurrence is intervened by some fences and some houses for which it was not clearly visible. She has also stated to have seen some passersbye on the road but none of them has come to be examined from the side of the prosecution nor there comes any explanation for their non-examination. This P.W.4 does not state anything about the presence of P.W.3 nor to have rushed to the house of P.W.3. CRLA No.435 of 2020 Page 9 of 10 The above, being the evidence of P.W.4, we do not find her evidence to be acceptable on the score as to attribution of the authorship of the injuries upon the deceased by the accused. With the above evidence on record, even if it is accepted for a moment that the accused had led the I.O. (P.W.10) to have given recovery of lathi from his house when that lathi has not further been connected with the commission of the crime; taking into account the fact and common experience as to availability of such type of wooden lathis in everybody’s house in the village, that cannot stand as the solitary circumstance so as to be sufficient to establish the complicity of the accused. 14. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 5th August, 2019 passed by the learned Sessions Judge, Rayagada in C.T. No.60 of 2017, are hereby set aside. Since the Appellant (accused), namely, Siku Majhi is on bail, his bail bonds shall stand discharged. V. Narasingh, J. I Agree. (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Basu Location: HIGH COURT OF ORISSA : CUTTACK Date: 04-Jul-2024 14:56:15 CRLA No.435 of 2020 (V. Narasingh), Judge. Page 10 of 10