The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.33 of 2016 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 29th March, 2016 passed by the learned Additional Sessions Judge, Bhubaneswar, in Crl. Tr. No.152 of 2012. Haria Dalei ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.S.S. Pattanaik (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 19.10.2023 : Date of Judgment : 01.11.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 29th March, 2016 passed by the learned Additional Sessions Judge, Bhubaneswar, in Crl. Tr. No.152 of 2012 arising out of G.R. Case No.2378 of 2012 corresponding to Air Field P.S. JCRLA No.33 of 2016 Page 1 of 12 - 2 - Case No.112 of 2012 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Bhubaneswar. The Appellant (accused) thereunder has been convicted for committing the offence under sections 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.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the said offence. 2. Prosecution Case:- On 11.07.2012 night around 9.30 p.m., Prafulla Nayak and Akash Kumar Nayak (P.W.2) were returning to their houses at Kargil Basti under the jurisdiction of Air Field Police Station (P.S.). On their way, one Bhagabat Nayak (P.W.7) of their Basti joined and they all when reached the house of the accused in that Kargil Basti, the accused told them as to why they were passing by the side of his house. Prafulla and Akash (P.W.2) and Bhagabat (P.W.7) expressed that henceforth they would not come on that way. It was said that the accused suddenly got annoyed and pushed Akash (P.W.2) which resulted his fall. The accused then went to his house brought a tangia (M.O.I) and dealt a blow on the head of Prafulla by means of that tangia. As a result of said blow given by the accused on the head of Prafulla, he sustained severe bleeding injuries on his head and became senseless. Akash JCRLA No.33 of 2016 Page 2 of 12 - 3 - (P.W.2) immediately raised shout seeking the help of friends to rescue Prafulla. Hearing the shout, Rina Nayak (P.W.3) and Nisamani Nayak (P.W.4), who are the wife and mother of Prafulla respectively, rushed to the spot. It was stated that when Prafulla was lying on the ground with bleeding injury in a senseless condition, the accused repeatedly dealt blows on his head by that very tangia (M.O.I) in presence of Akash (P.W.2), Bhagabat (P.W.7), Rina (P.W.3), Nisamani (P.W.4) and others of that Basti. The accused was then shouting loudly that:-“Maaghia Thibu Je Ethaku Asibu, Aji Tote Sesa Karidebi”. When Akash (P.W.2) and Bhagabat (P.W.7) tried to catch hold, the accused fled away the spot carrying that tangia (M.O.I). One Naba Kishore Pradhan (P.W.1), the inhabitant of that Basti, called for the PCR Van over telephone. The PCR Van arrived at the spot and the injured Prafulla was immediately shifted to Unit-VI Capital Hosptial, Bhubaneswar for treatment. Since the condition of Prafulla was serious, as advised by the Doctor, he shifted to S.C.B. Medical College & Hospital, Cuttack where in course of the treatment, Prafulla died. The wife of Prafulla, namely, Rina (P.W.3) lodged a written report being scribed by one Gajendra Das (P.W.9) with the Inspector-in-Charge (IIC) of Air Field P.S. The IIC treated the
Facts
same as FIR (Ext.6) and registering the case, directed Sub- Inspector (S.I.) of Police (P.W.10) to take up the investigation. JCRLA No.33 of 2016 Page 3 of 12 - 4 - 3. In course of investigation, the Investigating Officer (I.O.- P.W.10) examined the Informant (P.W.3) and recorded her statement under section 161 of Cr.P.C. Having visited the spot, the I.O. (P.W.10) prepared the spot map (Ext.9). The I.O. (P.W.10), having gone to Capital Hospital, Bhubaneswar, came to know that Prafulla has been referred to S.C.B. Medical College & Hospital, Cuttack. As in course of treatment, Prafulla died at S.C.B. Medical College & Hospital, Cuttack, an U.D. case has been registered at Mangalabag P.S. and one S.I. of that P.S. (P.W.11) held inquest over the dead body of the deceased and prepared the report (Ext.5) and sent the dead body for post mortem examination. P.W.11 collected the blood sample, nail clippings, scalp heir along with the blood stained wearing apparels of the deceased-Prafulla under seizure list (Ext.16). Thereafter, P.W.11 handed over all the case related papers to the I.O. of the case (P.W.10). The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, Final Form was submitted placing the accused to face the Trial for commission of the offence under section 294/506/302 of the IPC. 4. Learned S.D.J.M., Bhubaneswar, on receipt of the Final Form, took cognizance of said offences 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 offences against the accused. JCRLA No.33 of 2016 Page 4 of 12 - 5 - 5. The prosecution, in support of its case, has examined in total eleven (11) witnesses during Trial. As already stated, the informant, who happens to be the wife of the deceased, is P.W.3 whereas P.W.4 is the mother of the deceased. P.Ws.1, 2, 5, 6 & 7 are the inhabitants of the Kargil Basti where the houses of accused, deceased and those P.W.2 and P.W.7 situate. The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.8. The I.O., who had submitted the Final Form has been examined as P.W.10 and P.W.11 is the I.O. of Mangalabag P.S., who had enquired in connection with the U.D. Case. 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 18. Out of those; important are the FIR (Ext.6); inquest report (Ext.5); spot map (Ext.9); and the post mortem report (Ext.7). The Chemical Examiner’s report had been admitted in evidence and marked Ext.18. 6. The accused, having taken the plea of complete denial and false implication, has, however, not tendered any evidence in support of the same.
Legal Reasoning
accused. Thus, we find that the evidence of P.Ws.2 & 7 run at the par with one another in so far as the role of the accused in the said incident in causing injury on the head of the deceased by means of tangia is concerned. The evidence of P.W.1, who is the informant and wife of the deceased stand to corroborate the evidence of P.Ws.2 & 7 when she states that hearing hullah of P.W.2 she went to the spot and saw the deceased lying on the ground with bleeding injury and in her presence, the accused further assaulted on the head of the deceased by that tangia and thereafter, the accused fled away JCRLA No.33 of 2016 Page 10 of 12 - 11 - During cross-examination, we find the evidence of P.W.1 to have not been shaken nor any other circumstances have been elicited from her to entertain the belief in mind that she, having not reached the spot, is thus describing the incident in implicating the accused. She has stated in clear terms during cross-examination that when she arrived, she saw P.Ws.2 & 7 besides the deceased and the accused as also the mother of the deceased, who has been examined as P.W.4. Next it is the evidence of P.W.4 that hearing hullah, she had gone to the spot and so also P.W.1 and saw Prafulla lying on the ground with profuse bleeding. She has also stated what P.Ws.1, 2 & 7 have stated that the accused dealt subsequent blows on the head of the deceased by that tangia. It is her evidence that Prafulla (deceased) was then not in a condition to speak. The evidence of P.W.5 is also to the effect that having reached the spot, he saw the accused giving blows by means of tangia on the head of the deceased and then running away. During cross-examination, it has been brought out from his lips that on the main road, there was a light post and it was at a distance of 20 cubits form the house of the accused. When the evidence of all these above witnesses have remained unshaken on the material aspect of the case as to the accused dealing blows on the head of the deceased by means of tangia (M.O.I) and we find that the evidence of all these witnesses successfully pass through JCRLA No.33 of 2016 Page 11 of 12 - 12 - the test of reliability, which too find corroboration from medical evidence, we are the considered view that the finding of guilt against the accused, as has been returned by the Trial Court, is well in order. 12.
Arguments
7. Mr.S.S. Pattanaik, learned counsel for the Appellant (accused) submitted that although the prosecution has proved JCRLA No.33 of 2016 Page 5 of 12 - 6 - through the evidence that Prafulla met a homicidal death on account of the injuries on his head to have been caused by sharp cutting weapon with the evidence let in by the prosecution attributing the authorship of the injuries upon deceased (Prafulla) to the accused by examining P.Ws.1, 2, 3, 4, 5 & 7, it cannot be said that the prosecution has proved the fact that it is the accused, who had dealt blows on the head of the deceased causing his death beyond reasonable doubt. It was submitted that the evidence of all these witnesses are not only improbable but also in great variance from one another in so far as to the happenings of the incident are concerned as also the role said to have been played and the act done by this accused. In support of the same, he has invited our attention to the depositions of these above witnesses in contending that those are highly discrepant on material aspects of the case. He, therefore, submitted that the finding of guilt against the accused as has been returned by the Trial Court cannot be sustained. 8. Mr.P.K. Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of the Trial Court, submitted that the evidence on record establish the fact that it is the accused, who had intentionally caused the death of the deceased Prafulla by causing successive blows on his head by tangia beyond reasonable doubt. He further submitted that there is absolutely no material discrepancies in the evidence of all the JCRLA No.33 of 2016 Page 6 of 12 - 7 - above witnesses and all have specifically stated to have seen the accused dealing taniga blows on the head of the deceased when there is nothing on record to disbelieve their version either as to their presence or they too have witnessed the occurrence. In view of all these above, he submitted that the judgment of conviction and order of sentence are not at all amenable to interference in this Appeal. 9. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 11) and have perused the documents admitted in evidence marked as Exts.1 to 17. 10. Before going to address the rival submission, when we look at the evidence of the Doctor (P.W.8), who had conducted the post mortem examination over the dead body of the deceased, we find him to have stated that during post mortem examination, he had noticed eleven number of external injuries, most of them are on the head and nearabout region. As per his evidence, all such injuries were ante mortem in nature and most of them were caused by sharp cutting weapon. He has stated the death to be due to cranio cerebral injury resulting from impact with hard blunt and cutting object of weapon. Three numbers of the injuries on the head were said to have proved fatal. We find that the JCRLA No.33 of 2016 Page 7 of 12 - 8 - Doctor (P.W.8) has noted all such injuries in his report (Ext.7). Although searching cross-examination is found to have been made to this witness, we find nothing substantial to have been elicited to impeach his findings except pointing out some deficiencies in his report in not describing the seat of the injuries etc. Be that as it may, we find no such material to discard the evidence of P.W.8. The evidence of the Doctor (P.W.8) derives full support from the evidence of the witnesses (P.Ws.1, 2, 3, 4, 5 & 7), who have stated that the deceased had sustained those injuries on the head and other parts on his body. That is also the version of the S.I. of Police (P.W.11) of Mangalabag P.S., who held inquest over the dead body of the deceased and prepared his report (5). With such overwhelming evidence on record, we are left with no option but to concur with the finding that Prafulla met a homicidal death on account of the injuries on his head caused by sharp cutting weapon. 11. Having said as above, this Court, in order to address the rival submission, is called upon to scrutinize the evidence of P.Ws.1, 2, 3, 4, 5 & 7. As already stated, the first two important witnesses for the prosecution are P.Ws.2 & 7, who were coming with Prafulla (deceased) on the road and were with Prafulla near the house of the accused when the incident took place. JCRLA No.33 of 2016 Page 8 of 12 - 9 - It has been stated by P.W.2 that he, with Prafulla (deceased) were returning home when Bhagabat (P.W.7) joined them on the way. He has stated that when they arrived near the house of the accused, the accused questioned them as to why they were passing on that road lying in front of his house and then they told that they would never come thereafter. It is his evidence that the accused then gave him a push for which he fell down and when he stood up, the accused brought a tangia (M.O.I) and dealt a blow on the forehead of Prafulla resulting his fall on the ground. It is stated by him that when immediately he raised hullah, mother of Prafulla reached at the spot. He has further stated that thereafter the accused gave another tangia blow on the forehead of Prafulla (deceased). The witness, being cross-examined, has of course not been able to say as to who lifted Prafulla from the place of occurrence. But that in our view, in the given situation for the witness to remember is not unusual. He, having not been able to say as to who others were present at the spot cannot also be viewed to doubt his presence at the spot, when we find that his presence is receiving assurance from the evidence of P.Ws.1, 3, 4, 5 & 7. On a careful reading of the deposition of this P.W.2, we find no such material discrepancies to be surfacing. P.W.7 has also stated that on that day at the relevant time they were coming to their house and the accused near his house told them not to pass in that route and when they expressed that JCRLA No.33 of 2016 Page 9 of 12 - 10 - they would not repeat the same, the accused went to his house, brought a tangia and dealt a blow on the head of the deceased. This witness although appears to have not stated about the accused giving a push to Akash (P.W.2) and then going inside his house and bringing the tangia yet in so far as the accused coming out from the house with the tangia and giving blows on the head of the deceased is concerned, his evidence has remained consistent with the evidence of P.W.2. He has also stated that when P.W.2 raised hullah, the mother, wife and other neighbours of the deceased arrived at the spot and seeing them, the accused fled away. Despite scathing cross-examination, we find no such material to have been elicited to create doubt in our mind that he, having not seen the incident, has falsely so narrated. We also find this witness to have time and again reiterated the role of the
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 29th March, 2016 passed by the learned Additional Sessions Judge, Bhubaneswar, in Crl. Tr. No.152 of 2012 are hereby confirmed. G.Satapathy, J. I Agree. (D. Dash) Judge (G.Satapathy) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 02-Nov-2023 17:18:01 JCRLA No.33 of 2016 Page 12 of 12