MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.70 OF 2023 In the matter of an Appeal under section-383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 13th April 2023 passed by the Additional Sessions Judge, Anandapur in Sessions Trial Case No.24 of 2020. ---- Surendra Purty; & Jiban Purty ….. Appellants -versus- State of Odisha ….. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ======================================================== For Appellant - Ms. Bini Mishra, Advocate. For Respondent - Mr. S.K. Nayak, Additional Govt. Advocate. CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH DATE OF HEARING :05.08.2024: DATE OF JUDGMENT: 20.08.2024 D.Dash, J. The Appellants, by filing this Appeal from inside the jail,
Legal Reasoning
have challenged the judgment of conviction and order of sentence dated 13th April 2023 passed by the Additional Sessions Judge, Anandapur in Sessions Trial Case No.24 of 2020 arising out of G.R. Case No.116 of 2020 corresponding to Anandapur P.S. JCRLA N.70 of 2023 Page 1 of 11 Case No.60 of 2020 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Anandapur. The Appellants (accused persons) thereunder have been convicted for commission of offence under section-302/34 of the Indian Penal Code, 1860 (for short ‘the IPC’). Accordingly, they have been sentenced to undergo imprisonment for life and pay fine of Rs.25,000/- in default to undergo rigorous imprisonment for two (2) years. 2. Prosecution Case: - Prosecution case as narrated in the F.I.R. (Ext.7) lodged with the Inspector-In-Charge (IIC), Anandapur Police Station is that on 10th April 2020, it was around 9 pm to 9.30 pm, the Informant, Narasingh Purty (P.W.7) was resting in his house. While thus resting, he heard noise from outside. So, he came out and saw accused persons namely, Surendra Purty and Jiban Purty were fighting with Dibar Purty (deceased). It is stated that in the said tussle, the accused persons assaulted Dibar on his head by means of bamboo stick leading to his fall on the ground. Seeing this, P.W.7 (Informant), immediately proceeded to the spot and saw Dibar lying dead on account of said assault by the accused persons. The I.I.C. of Anandapur P.S., receiving the above report, treated the same as FIR (Ext.7) and upon registration of the criminal case, took up the investigation. Page 2 of 11 JCRLA No.70 of 2023 3. The Investigating Officer (I.O.-P.W.12), in course of the investigation, examined the informant (P.W.7) and other witnesses. The I.O. (P.W.12), having visited the spot along with Scientific Team, DFSL, Keonjhar, prepared the spot map (Ext.10), seized blood-stained bamboo lathi and also collected the sample earth in one envelope and blood-stained earth in another envelope from the spot and prepared seizure list. The I.O. (P.W.12) held the inquest over the dead body of the deceased, prepared the report to that effect (Ext.8) and sent the dead body of the deceased for postmortem examination. He (P.W.12) seized the wearing apparels of the accused under seizure list (Ext.1). The I.O. (P.W.12) also seized the wearing apparels of the accused- Jiban Purty and Surendra Purty and prepared the seizure list separately marked as Ext.2/1 and 2/2 respectively. The I.O. (P.W.12) has also prepared seizure list with regards to the biological samples of the accused persons under Ext.12. He (P.W.12) sent the seized exhibits to SFSL, Rasulgarh, Bhubaneswar for chemical examination through Court. On completion of the investigation, submitted the Final Form placing these accused persons to face the Trial for commission of the offence under section-302/34 of the IPC. 4. Learned S.D.J.M., Anandapur receiving Final Form, took cognizance of the above offence and after observing the JCRLA No.70 of 2023 Page 3 of 11 formalities, committed the case to the Court of Sessions. That is how, the Trial commenced by framing charge for the said offences against the accused persons. 5. In the Trial, the prosecution in total has examined twelve (12) witnesses. Out of whom as already stated P.W.7 is the Informant, who had reported the matter at the Police Station, P.Ws.1 and 2 are the two seizure witnesses, P.W.3 is the Scientific Officer, P.W.4 is the Medical Officer, who conducted postmortem examination over the dead body of the deceased, P.W.6 is the wife of the Informant, P.W.8 is the wife of the deceased, P.W.9 is the scribe of the F.I.R., P.W.10 and 11 are the inquest witnesses-cum-brother-in-law of the Informant. At the end, the I.O. has come to the witness box and examined as P.W.12. The prosecution besides leading the evidence through the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 19. Important of those are the F.I.R., Ext.7, whereas Ext.5 is the postmortem report. The inquest report is Ext.8 and Ext.10, spot map and Ext.18 is the Chemical Examination report of SFSL, Bhubaneswar. JCRLA No.70 of 2023 Page 4 of 11 6. The plea of defence is that of complete denial. The defence has however not adduced any evidence in support of the plea so taken. 7. The Trial Court upon examination of evidence of prosecution witnesses, more particularly P.Ws.6 and 7 and 8 side by side, the evidence of other prosecution witnesses has arrived at a conclusion, that the charge against the accused persons under section-302/34 of the IPC in intentionally causing the death of Dibar Purty has been established beyond reasonable doubt. Accordingly, the accused persons have been sentenced as aforestated. 8.
Legal Reasoning
Learned Counsel for the Appellants (accused persons) first of all inviting our attention to the narrations of the incident made in the F.I.R., Ext.7 has placed the evidence of P.Ws.6, 7 and 8 who are the most important witnesses for the prosecution which have been relied upon by the Trial Court in holding the accused persons to have committed the offence in intentionally causing the death of Dibar by assaulting him by means of bamboo stick on his head. She submitted that all the three witnesses who posed themselves to be the eyewitnesses have stated differently as regards the happenings in the incident. It was also submitted that the Informant-P.W.7 has tried to develop the case during evidence by making the sharp departure from the narrations of JCRLA No.70 of 2023 Page 5 of 11 the F.I.R. and in suppression of same events. She also submitted that when another person namely Ramesh has been directly implicated to have played definite role in the said incident; he since has not been charge-sheeted to face the Trial, that tells upon the veracity of the prosecution case. Placing the F.I.R. narrations as also the evidence of the above witnesses, she pointed out the tendency of these witnesses in suppressing the some happenings touching the origin of the incident. She lastly submitted that the evidence of P.Ws. 6, 7 and 8 being wholly discrepant, the Trial Court ought not to have been relied upon the same in finding the accused persons as guilty. According to her, the evidence of P.Ws.6, 7 and 8, the prosecution case ought to have been doubted and these accused persons ought not to have been convicted based on the same. 9. Learned Counsel for the Respondent-State countering the above, contended all in favour of the finding returned by the Trial Court in fastening the guilt upon the accused persons. According to him, the Trial Court has taken note all those discrepancies appearing in the evidence of P.Ws.6, 7 and 8 and by providing plausible explanation has ignored the same to be taken note of and in saying so has rightly placed the reliance upon the said evidence. It was submitted that all the above witnesses have stated everything in a natural manner and when JCRLA No.70 of 2023 Page 6 of 11 their presence at the scene of occurrence cannot in any way be said to be doubtful, the Trial Court did commit no error in accepting their versions in holding that the prosecution has been above to establish the charge against the accused persons beyond reasonable doubt. 10. Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.12 and have perused the documents which have been marked Exts.1 to 19. 11. In order to address the rival submission in judging the sustainability of the finding of guilt of the accused persons as has been recorded by the Trial Court, we are called upon to undertake the exercise of examination of the evidence let in by the prosecution. It be stated here that the death of Dibar Purty when has been proved by the prosecution through the evidence of P.W.4, the Doctor, who had conducted autopsy over the dead body of the deceased and the evidence of other witnesses including that of the Investigating Officer, who had hold inquest and other witnesses, P.Ws. 6, 7 and 8 who had seen the deceased lying dead with the said injuries to be homicidal in nature. That aspect is not being questioned before us in this Appeal and that JCRLA No.70 of 2023 Page 7 of 11 was also the position before the Trial Court. Thus, Dibar Purty having met homicidal death, the examination of evidence now stand for scrutiny as regards the complicity of these accused persons in causing such death. P.W.7 is the Informant and P.W.6 is the wife of the Informant. The F.I.R. lodged by P.W.7 had been admitted in evidence and marked Ext.7. Accused-Surendera and Jiban are the two sons of the elder brother of P.W.7; where as deceased- Dibar is the brother of P.W.7. The F.I.R. lodged by P.W.7, which has been admitted in evidence and marked Ext.7, narrates that when P.W.7 came out of his house hearing the hullah, he saw that quarrel was going on between the above two accused persons on one hand and Dibar on the other. It is also stated therein that there was push and pull between them and in course of the same, the blow fell on the head of Dibar, who fell on the ground. In that F.I.R., P.W.7 does not mention as to who had given that blow on the head of Dibar by means of bamboo lathi. It is also not even indicated therein as to who was holding that bamboo lathi; whether it was any of these accused persons or the deceased. This F.I.R. was lodged on 11.04.2020 as against the incident which had taken place on 10.04.2020 around 9 pm. So, there being sufficient time passing in between such omissions cannot be totally ignored or side tracked. P.W.7 in his evidence during trial has stated that when he came out of his JCRLA No.70 of 2023 Page 8 of 11 house, he saw accused Jiban and Ramesh (not charge-sheeted nor faced the trial) assaulted Dibar by bamboo badi, causing bleeding injury on his head, resulting his fall. When he states during Trial that accused-Jiban had assaulted the deceased with another namely, Ramesh. He does not implicate the accused- Surendra to have in any way played any role therein. This P.W.7 however during cross-examination has stated that at the relevant time, he having taken liquor was sleeping inside the house and his wife called him and told about the death of Dibar. This belies his evidence in-chief as to have seen the incident happening before him as to how Dibar was assaulted. When this is a version of P.W.7, his wife P.W.6 says that she with her husband, P.W.7 at the relevant time were sitting in the house after taking dinner. She says to have seen accused-Jiban and Surendra dealing blow on the head of the deceased by means of bamboo badi, causing bleeding injury. Both these P.Ws.6 and 7 are silent about the quarrel to have been going on between them and that in course of that blow fell upon the deceased which has been specifically stated in the F.I.R. lodged by P.W.7. P.W.6 says that when she went to the spot, she saw accused-Jiban and Surendra fleeing away from the spot that is not stated by P.W.7. At the risk of repeatation, it be stated that P.W.6 has not implicated that Ramesh in the entire incident. These version of P.Ws.6 and 7 thus greatly differ with one another which gives JCRLA No.70 of 2023 Page 9 of 11 rise to a doubt arises in the mind that they had seen the actual incident of assault upon the deceased. Evidence of P.W.8 who is the wife of the deceased and has been projected as another eyewitness is running in a different way. She says that when her husband went to the house of accused-Surender to purchase Dal on credit, Surendra refused to provide him with Dal on credit. She next stated that at that time, accused-Jiban caught Dibar and accused Surendra bringing a bamboo lathi, dealt blows on his head, resulting his fall and consequential death. She has admitted to have not stated before the Police during investigation that Dibar had gone to the house of Surendra to purchase Dal on credit and that Surendra refused to provide the same. It is also her evidence that hearing hullah, P.Ws.6 and 7 arrived there when accused persons went away from the spot on his arrival. This P.W.8 is silent with regard to the quarrel having taken place between the deceased and the accused persons as has been stated by P.W.7 in the F.I.R. (Ext.7) which as per the evidence of P.W.8 has been lodged after a village meeting was held for the purpose and pursuant to the decision taken thereon. Furthermore, the evidence of P.W.8 is very specific that when she stated during investigation in her own language, the same was being translated by P.W.7 which being taken as such, the discrepancies appearing in their evidence as above stated are of JCRLA No.70 of 2023 Page 10 of 11 great significance in seriously touching upon their credibility. With the above evidence of P.Ws.6, 7 and 8, we too find the tendency of these witnesses in suppressing some facts as to the origin of the occurrence. 12. In view of the discussion of the evidence of the above witnesses, we are not in a position to hold the same to be sufficient to conclude that the prosecution has established the charge against the Appellants, beyond reasonable doubt. 13. In that view of the matter, the Appeal stands allowed. The judgment of conviction and order of sentence dated 13th April 2023 passed by the Additional Sessions Judge, Anandapur in Sessions Trial Case No.24 of 2020, are hereby set aside. Since the Appellants, namely, Surendra Purty and Jiban Purty are in custody, they be set at liberty forthwith, if their detention is not wanted in connection with any other case. V. Narasingh, J. I Agree. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 22-Aug-2024 18:46:43 JCRLA No.70 of 2023 (D. Dash), Judge. (V. Narasingh), Judge. Page 11 of 11