The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.711 of 2016 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 8th December, 2016 passed by the learned Additional Sessions Judge, Malkangiri in C.T. No.04 of 2016. Guru Anchel ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.G.N. Mishra, S.C. Sahoo & A.K. Mishra (Advocates) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 24.01.2024 : Date of Judgment : 08.02.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated the judgment of conviction and order of sentence dated 8th December, 2016 passed by the learned Additional Sessions Judge,
Legal Reasoning
Malkangiri in C.T. No.04 of 2016 arising out of G.R. Case No.339 of 2015 corresponding to Chitrakonda P.S. Case No.70 of 2015 in CRLA No.711 of 2016 Page 1 of 10 {{ 2 }} the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Malkangiri. The Appellant (accused) thereunder has been convicted for committing the offence under section 302/506(ii) of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life for commission of the offence under section 302 of the IPC without any separate sentence for commission of the offence under section 506 (II) of the IPC. 2. PROSECUTION CASE:- On 28.10.2015 around 6.00 p.m, Jagabandhu, who had a quarrel with the accused, Guru had been to his paddy field. The accused assaulted Jagabandhu by means of Ghagada on his neck, forehead and chest. It is also stated that he forcibly assaulted by stone on his hydrocele and thereby intentionally caused his death. Son of Jagabandhu, namely, Laxman (P.W.4) had been to the paddy field in search of Jagabandhu and then the accused threw the dead body of Jagabandhu in front of him. Laxman (P.W.4) was also threatened by the accused to be killed by showing that Ghagada. Being afraid of the same, immediately the report was not lodged at the P.S. but subsequently, with the help of the villagers, the brother of Jagabandhu (deceased), namely, Kamalochan (Informant-P.W.1) lodged a written report with the Sub-Inspector (S.I.) of Police of Chitrakonda P.S. CRLA No.711 of 2016 Page 2 of 10 {{ 3 }} Receiving the said written report from the Informant (P.W.1), the S.I. of Police (P.W.20), in the absence of the Inspector- in-Charge of the P.S., treated the same as F.I.R. (Ext.1) and upon registration of the case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.20), in course of the investigation, examined the informant (P.W.1) and other witnesses and recorded their statements under section 161 Cr.P.C. The I.O. (P.W.20), having gone to the spot, prepared the spot map (Ext.13) so also held the inquest over the dead body in presence of the witnesses and prepared the report (Ext.2). The sample earth and blood stained earth were seized under seizure list (Ext.4). The I.O. (P.W.20) sent the dead body for post mortem examination by issuing necessary requisition. Thereafter, the I.O. (P.W.20) arrested the accused and it is stated that the accused, while in police custody, gave the statement to have concealed the weapon of offence and stated that if he would be taken to the place, he would give recovery of the same. Pursuant to the statement (Ext.3), the accused is said to have led the I.O. (P.W.20) and other witnesses in giving recovery of Ghagada, which was seized under seizure list (Ext.5). The wearing apparels of the deceased were seized under seizure list (Ext.7). The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the Final Form was submitted CRLA No.711 of 2016 Page 3 of 10 {{ 4 }} placing this accused to face the Trial for commission of the offence under section 302/506(ii) of the IPC. 4. Learned S.D.J.M., Malkangiri, on receipt of the Final Form, took cognizance of the said offences 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 the accused. 5. The prosecution, in support of its case, has examined in total twenty (20) witnesses during Trial. Out of them, the informant, who happens to be the brother of the deceased, is P.W.1 whereas P.W.4 is the son of the deceased. P.Ws.2 & 3 are the witnesses to the statement of the accused. P.Ws.5 & 8 are the witnesses to the inquest. P.W.9 is the wife of the accused. P.Ws.10 to 15 are the witnesses who heard about the incident from P.W.4. P.Ws.16 to 18 are the witnesses to the seizure of wearing apparels and nail clippings. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.19. The I.O. of the case, at the end, has come to the witness box as P.W.20. 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 13. Out of those, the important are, the FIR (Ext.1), the inquest report Page 4 of 10 CRLA No.711 of 2016 {{ 5 }} (Ext.2); the post mortem report (Ext.9); and the spot map (Ext.13). The report of the chemical examiner 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 such plea.
Legal Reasoning
8. Mr.G.N.Mishra, learned counsel for the Appellant (accused), without disputing the finding of the Trial Court as regards the nature of death of Jagabandhu to be homicidal in view of the evidence of the Doctor (P.W.19), who had conducted the autopsy over the dead body of the deceased and the I.O. (P.W.20), who held inquest over the dead body of the deceased and prepared the report (Ext.2) as also other witnesses, who had the occasion to see the dead body with injuries, submitted that the entire case of the prosecution is based on the evidence of the son of the deceased, namely, Laxman (P.W.4), who has been projected as an eye witness to the occurrence. He further submitted that the evidence of P.W.4, if read in entirety, would clearly lead to show that he actually having not seen the incident, has developed the same during Trial and it would be more evident if the conduct of P.W.4 after the incident is taken into account in its proper perspective. He further submitted that the evidence of P.W.4 under no circumstance can be said to be of CRLA No.711 of 2016 Page 5 of 10 {{ 6 }} sterling quality so as to be held as wholly reliable for basing the finding of guilt against the accused. He submitted that when the evidence of P.W.4 is unacceptable, the other evidence on record are in no way coming to the aid of the case of the prosecution to establish the charges against the accused. He, therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 9. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused as has been returned by the Trial court, contended that the evidence of P.W.4 is wholly reliable as he has no axe to grind against the accused. According to him, the evidence of P.W.4 is quite natural and his response being alive to the situation, the Trial Court did commit no mistake in accepting the said evidence to base the conviction. 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.W.1 to P.W.20) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.13. 11. P.W.1 is the witness, who is said to have heard from Laxman and then had gone with Laxman (P.W.4) to the paddy field. This witness when is stating that Laxman (P.W.4) disclosed Page 6 of 10 CRLA No.711 of 2016 {{ 7 }} that the accused had killed his father; as per the evidence of this witness, the deceased and the accused were having disputed in relation to the landed properties. This witness is the brother of the deceased. The evidence of P.Ws.2 & 3 are to the effect that the accused had confessed to have killed Jagabandhu before the police, who is inadmissible in evidence and, therefore, the evidence of P.Ws.2 & 3 are of no aid to the case of the prosecution and those to be kept beyond the realm of consideration. Now, comes to the evidence of P.W.4. He has stated that his father had been to the paddy field to work there. But he is not stating as to when his father (deceased) left the house. His further evidence is that as his father did not return, he went to the paddy field and saw the accused assaulting his father by Ghagada on his neck and head and then to have pressed his hydrocele by a big stone. He does not state as to what has the time gap between his father leaving the house and he going to search when father did not return. It is also his evidence that seeing him (P.W.4), the accused chased to assault him. So, he left the place being afraid. It is his evidence that he disclosed the incident to P.W.1, who later on lodged the FIR (Ext.1). He does not state as to when he informed the incident to P.W.1. It is also not stated by him that he disclosed about the incident to anyone-else other than P.W.1. The FIR (Ext.1) has been lodged two days after the occurrence, i.e., on CRLA No.711 of 2016 Page 7 of 10 {{ 8 }} 30.10.2015. The Informant gives the explanation that as they apprehended danger to their lives, there was delay in lodging the FIR (Ext.1). His version, being that the accused had absconded after the incident, his evidence as to the apprehension of danger to their lives standing as the reason for not lodging the FIR in time is not at all found to be well founded and gets pushed into thick cloud of doubt. That being the evidence of P.W.1, P.W.4 does not state about any delay in lodging the FIR (Ext.1). He is also not stating as to when he disclosed the incident to P.W.1 whether immediately after the occurrence when he returned home or later. When P.W.1 says that hearing from P.W.4, he and P.W.4 again went to the paddy field and saw the father of P.W.4 lying dead with injuries on his forehead and neck; P.W.4 is not stating so to have returned again to the paddy field with P.W.1. If at all they were apprehending danger to their lives, the very version of P.W.1 to have immediately rushed to the spot after hearing form P.W.4 also belies the said apprehension. When we read the evidence of P.W.4, we do not find any indication as to the timing of living of the deceased from the house and the timing of arrival of P.W.4 in the field. His evidence that when he arrived, the accused was found assaulting his father is highly unbelievable is as if the accused was waiting for arrival of this P.W.4 to start assaulting the deceased. When P.W.4 does not state to have disclosed about the incident to his mother (P.W.9), it is CRLA No.711 of 2016 Page 8 of 10 {{ 9 }} stated by P.W.9 that P.W.4 had come to her and disclosed that the accused killed her husband by means of Ghagada. All the witnesses have stated that the deceased and the accused were not pulling on well in view of the subsisting land dispute. When P.W.1 states that being afraid of being killed, they refrained from lodging the FIR (Ext.1), it is the evidence of P.W.12 that P.W.4 disclosed in the village that the accused had killed his father and then P.W.12 and other villagers went to the spot, but that is not stated by P.W.4. Rather, P.W.4 falsifies the evidence of P.W.1. In addition to all these above, the evidence of the I.O. (P.W.20) also makes the evidence of P.Ws.1 & 4 unacceptable that when he says that he had found the dead body of the deceased lying on public road; P.Ws.1 & 4 are not stating as to how it happened. The conduct of P.Ws.4 & 9, does not appear to be normal as having seen the dead body of the deceased lying in the paddy field, they do not state to have taken any step to bring the same to their house from that paddy field to have immediately informed police to take charge of the dead body. In view of all these above, we are unable to place reliance upon the evidence of P.W.4 as said evidence is not found to be of sterling quality. Therefore, although the prosecution is found to have established the fact that Jagabandhu met a homicidal death, the charge against the accused for commission of the offence under section 302 of the IPC in intentionally causing the death of CRLA No.711 of 2016 Page 9 of 10 {{ 10 }} Jagabandhu has not been established by the prosecution beyond reasonable doubt by leading clear, cogent and acceptable evidence. 12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 8th December, 2016 passed by the learned Additional Sessions Judge, Malkangiri in C.T. No.04 of 2016, are hereby set aside. The Appellant, namely, Guru Anchel, being in custody, he be set at liberty forthwith, if his detention is not wanted in any other case. G.Satapathy, J. I Agree. (D. Dash), Judge. (G.Satapathy), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Feb-2024 16:37:45 CRLA No.711 of 2016 Page 10 of 10