The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.581 OF 2022 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 01.06.2022 passed by the learned Sessions Judge, Nayagarh in S.T. Case No.26 of 2020 arising out of G.R. Case No.358 of 2019 corresponding to Nuagaon P.S. Case No.57 of 2019. ---- Braja Kushore Sahoo …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. A. Tripathy, Advocate. For Respondent - Mr. S.K. Nayak, Additional Govt. Advocate. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING : 29.03.2023 : DATE OF JUDGMENT:05.05.2023 D.Dash,J. The Appellant, by filing this Appeal has challenged the judgment of conviction and order of sentence dated 01.06.2022 passed by the learned Sessions judge, Nayagarh in S.T. Case No.26 of 2020 arising out of G.R. Case No.358 of 2019 corresponding to Nuagaon P.S. Case No.57 of 2019 of the Court of learned Sub-Divisional Judicial Magistrate, (S.D.J.M.), Nayagarh. CRLA NO.581 OF 2022 Page 1 of 20 {{ 2 }} By the same, the Appellant (accused) has been convicted for commission of offence under section-302 of the Indian Penal Code (for short called as ‘the IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- with the default stipulation to undergo rigorous imprisonment for six months. 2. The prosecution case is that on 03.08.2019, which was a Saturday, during noon hours, Jagannath Pradhan (deceased) after closing the garage which was on the side of the National Highway (N.H.) was proceeding on the N.H. to his house. He was going on foot. At that point of time, the accused Braja Kishore came in one white Bolero vehicle bearing Registration No.OR-02AR-4646 and dashed the deceased from behind and sped away. Receiving violent dash, Jagannath died instantaneously. On that day, around 1.30 pm, Jyotirmayee Pradhan who happens to be the wife of the Jagannath lodged a written report with the Inspector-In-Charge (IIC), Nuagaon Police Station. Receiving said report, the IIC treated is as F.I.R. (Ext.3) and immediately registered the case and took up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.12) examined the Informant (P.W.4). He then examined Informant’s mother-in-law (P.W.5). In order to hold the inquest over CRLA NO. 581 OF 2022 Page 2 of 20 {{ 3 }} the dead body of the deceased, the I.O. requisitioned the service of Executive Magistrate and then visited the spot and prepared the spot map, Ext.8. The inquest was held in presence of the Executive Magistrate and report to that affect, Ext.1 was prepared. The dead body was then sent for postmortem examination by issuing necessary requisition. The I.O. (P.W.12) examined few other witnesses and recorded their statements under section-161 of the Cr.P.C. After the postmortem examination, the wearing apparels of the deceased being produced before the I.O. (P.W.12), those were seized under seizure list, Ext.2. On 04.08.2019, accused being arrested was forwarded in custody to the Court. The Bolero vehicle belonging to one Sushanta Sahoo was seized under seizure list, Ext.5 and so also the driving license of accused (Ext.10). The I.O. (P.W.12) then sent the incriminating articles to the State Forensic Science Laboratory (SFSL), Bhubaneswar for chemical examination through Court. On completion of investigation, Final Form was submitted placing the accused to face the Trial for commission of offence under section-302 of the IPC. 4. Learned S.D.J.M., Nayagarh receiving Final Form, took cognizance of the above offence and after observing the formalities committed the case to the Court of Sessions. That is how the Trial CRLA NO. 581 OF 2022 Page 3 of 20 {{ 4 }} commenced by framing charge for the said offence against the accused. 5. In the Trial, the prosecution in total has examined, 12 witnesses. The witnesses i.e. P.Ws. 1, 2, 3, 4, 5, 6, 7 and 8 had been brought to the witness box from the side of the prosecution projecting them as the eye witnesses. Out of them, it be noted that P.W.4 is the Informant and she happens to be the wife of the deceased whereas P.W.5 is the mother of the deceased. The Doctor, who had conducted the autopsy over the dead body is P.W.11 and the Investigation Officer has come to the witness box at the end and examined as P.W.12. The prosecution besides leading the evidence by examining the above witnesses has proved several documents which have been marked as Ext.P-1 to Ext.P-17. The details of the description of the said documents find place in the list appended to the judgment of the
Facts
Trial Court and therefore to avoid repetation, those are not noted here again and as and when it would be so required in course of discussion to follow, those documents with reference to the markings would stand to be referred to. 6. The defence plea is that of complete denial and false implication. In support of the such plea, the accused has examined one CRLA NO. 581 OF 2022 Page 4 of 20 {{ 5 }} witness as D.W.1, when the accused himself with the permission of the Court has deposed as D.W.2. 7. The Trial Court as seen on reading the judgment has straight way proceeded to examine the ocular testimony of the witnesses, one by one in finding the answer to the point for determination which has been formulated and stated at paragraph-4 of the judgment. Deviating from the normal course, here we find that the Trial Court has not first taken up the matter for consideration as to how the death of Jagannath had taken place which is the first and foremost question that is required to be answered in a case where the accused faces the charge for commission of offence under section-302 of the IPC. In fact after addressing that, the Trial Court ought to have proceeded further to find out the complicity of the accused/ culprit; which has not been done. Thus, it is a case where the Trial Court is found to have committed the irregularity on that score. Having said all these above, we however refrain from making any further observation in this regard exercising the judicial restraint. It would not be out of place to mention here that at this stage, that the Trial Court having found the accused guilty for commission of offence under section-302 of the IPC has imposed the sentence of rigorous imprisonment for life when the imprisonment for life has no CRLA NO. 581 OF 2022 Page 5 of 20 {{ 6 }} fixed term so as to be prefixed with the description. Therefore, the Trial Court while awarding the sentence of imprisonment for life ought not to have prefixed the description as rigorous to avoid confusion in the mind of the Authority and lest it be misconstrued by the executing Authority as ordained under the law. 8. It is the evidence of the Doctor (P.W.11), who has held postmortem examination over the dead body of Jagannath that he had noticed several external injuries over the same. It is seen from his deposition that three of those injuries are abrasions on right chest; back and right knee. P.W.12 too has noticed swelling on left leg below the knee. With all such injuries, the vital injuries have however been detected on the occipital region of the size of 5!! X 1!! with bleeding. This P.W.11 on the dissection has noticed the haemorrhage of membrain and brain with flora intact being congested and fracture on the occipital bone. His positive evidence on oath is that the death was caused due to the brain haemorrhage. He has noted the time of death to be within twenty four (24) hours of his examination. The report has been proved as Ext.7, which finds mention of all these injuries with their size and seats, which P.W.11 had noticed during postmortem
Legal Reasoning
examination. As we find that the evidence of this witness has remained unchallenged except throwing upon one hypothetical suggestion that CRLA NO. 581 OF 2022 Page 6 of 20 {{ 7 }} such injuries are possible if a person falls from the top of a three storied building to which the witness has answered in the affirmative, no further question has been asked as to whether this P.W.11 had before him any such material suggestive of such a fall being the reason for the deceased to sustain the injuries as he noticed. With the evidence of P.W.11 as above; P.W.12 who had held inquest over the dead body of the deceased in presence of the Executive Magistrate is found to have also noted most of such injuries. He too has indicated all those in the inquest report, Ext.P-1 which he has proved. The other witnesses including the wife and mother of the deceased, P.Ws.4 and 5 respectively have also stated to have seen the deceased to have received all these injuries. In view of the evidence as above discussed, we are of the view that it has been established that Jagannath died on account of the antemortem injuries sustained by him. 9. The Trial Court as it appears from its judgment having undertaken the exercise of analysis of evidence at its level and their evaluation has rendered the finding in holding the accused to the author of crime; that he has intentionally caused the death of Jagannath CRLA NO. 581 OF 2022 Page 7 of 20 {{ 8 }} by coming on a Bolero vehicle from behind and dashing the deceased with an intention to cause his death. 10. Learned Counsel for the Appellant (accused) at the beginning submitted that under no circumstance, the Trial Court could have accepted the evidence of P.Ws. 1 to 8 in fastening the guilt upon the accused. According to him, the evidence of all these witnesses, when reveal that although they had been projected as eye witnesses, such vital part is the improvement only during Trial and it was not so their earlier stand during investigation. In support of the same, he has invited our attention to the relevant paragraph of the deposition of all these witnesses, P.Ws. 1 to 8 as well as the relevant paragraph-10 of the deposition of I.O. (P.W.12) that all these witnesses having never stated during investigation in their statements recorded under section- 161 of the Cr.P.C., have for the first time come with those improvement on material particulars in their anxiety to see that the accused is fastened with the guilt of committing the murder of Jagannath. He submitted that as because the deceased and the accused were running two garages and earning their livelihood, the case has been foisted against this accused since he was having the professional rivalry with the deceased and what now they state that the accused coming in a Bolero vehicle knowingly dashed the deceased from CRLA NO. 581 OF 2022 Page 8 of 20 {{ 9 }} behind in killing the deceased is a development by taking a cue from the fact that the accused being the nearby garage owner had the clash of interest. He submitted that to avoid the real part of the story, the prosecution has suppressed the fact that after the incident, the Bolero vehicle was lying in the campus of Itamani Police Station. He submitted that for that reason, the prosecution has not examined the Police Officer of Itamati P.S., when it has been stated by P.W.4 in clear terms that being called to Itamati P.S., she had found the accused to be present there with the vehicle and the vehicle as well as the documents were seized by Police in her presence; whereas it is now stated by the I.O. (P.W.12) that he arrested the accused and seized the vehicle with its documents on 04.08.2019 when he does not give out the time and the place where, he found the accused first as also the vehicle. In view of all these above, he submitted that the judgment of conviction and order of sentence impugned in this Appeal are wholly indefensible and vulnerable. 11. Learned Counsel for the State in his efforts for sustaining the judgment of conviction and order of sentence submitted that when all these prosecution witnesses P.Ws. 1 to 8 had stated before the Investigating Officer, P.W.12 during their examination and recording of their statements under section-161 of the Cr.P.C. that the accused CRLA NO. 581 OF 2022 Page 9 of 20 {{ 10 }} has committed murder of the deceased on the road by giving the dash of the Bolero vehicle behind and later on during Trial, now as they have described in detail, the same do not amount to major contradiction as it cannot be said that non-stating of all those facts which now they say about the incident as to what actually happened would not amount to material omission so as to be viewed to discard the the version of those witnesses by criticizing that they have improved upon their version during Trial in their anxiety to see that the Trial culminates successfully. He further submitted that even if it is accepted for a moment that the accused had taken the vehicle to the Itamati P.S., no action has been taken there and before that, the investigation by P.W.12 since has commenced, the prosecution for not examining any Police Officer from that Itamati P.S. cannot be blamed for suppression and for that no adverse inference is permissible to be drawn against the prosecution case. He, therefore, submitted that the finding of guilt returned by the Trial Court is not liable to be interfered with. 12. Responding to the last limb of submission of the learned Counsel for the State, learned Counsel for the Appellant drew our attention to the statement of the accused examined in the Trial as D.W.2 that he has taken the specific stand that deceased died due to CRLA NO. 581 OF 2022 Page 10 of 20 {{ 11 }} accident and that he is not the owner of the vehicle namely Susanta Sahoo who is unknown to him. He further submitted that when as per the evidence of P.w.4, the vehicle in question was there in the Itamati P.S., the prosecution having not proved the fact as to how the vehicle from the N.H. was taken to that P.S. and by whom it was done, the possibility cannot be ruled out that the culprit having taken the vehicle to the Police Station have somehow managed to escape therefrom on his own or inconvenience of the Police Officer to avoid rigours of law for having dashed the deceased. According to him, all these above rather suggest that the real culprit has managed to escape from the spot and then the vehicle had been taken by the Police Officer attached to the Itamati P.S. to be kept in the campus of the P.S. so as to clear the N.H. and avoid traffic congestion and keep the N.H. free. He submitted that the prosecution under the circumstance had the definite obligation to remove all such doubtful features and when all those facets from the evidence, the conviction of the accused can never stand. 13. 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. P/1 to P/17. CRLA NO. 581 OF 2022 Page 11 of 20 {{ 12 }} 14. Being now called upon to rule on the complicity of this accused by addressing the rival submission and thereby judge the sustainability of the finding of guilt of the accused which has been rendered by the Trial Court, some background facts to be kept in view while appreciating the evidence of the witnesses. The accused and the deceased were having two motor garages side by side on the side of the N.H. P.W.1, P.W.2, P.W.3 and then P.W.4, who happens to be the wife of the deceased as well as P.W.5, who is the mother of the deceased have not stated that at any point of time prior to the incident, the accused and the deceased were having professional rivalry, one being the competitor of the other and the activity of one in the garage was affecting the other one. Thus, it appears that the evidence on record is wholly silent as regards the motive behind the crime which prompted the accused to commit the crime. It is not stated by any of the witnesses that they were not pulling on well and in enmical terms for any reason whatsoever. The accused and the deceased hail from the same village having difference of age of around 7 to 8 years. 15. The prosecution case as laid in the F.I.R., Ext.3 lodged by P.W.4 at Nuagaon P.S. at about 1.30 pm on the date of occurrence is that when her husband was coming on the N.H. on foot after closing his garage, then for the time being, the accused came in the white Bolero CRLA NO. 581 OF 2022 Page 12 of 20 {{ 13 }} vehicle bearing Registration No.OR-02AR-4646 and knowingly dashed her husband from behind, which led to his death. In that F.I.R., she (P.W.4) having narrated the incident as regards the involvement of the accused in saying that he came from behind in the Bolero vehicle and dashed the deceased and then sped away from the place, she has however not stated to have seen the incident on her own eyes nor even it is stated that at the relevant point of time where she was standing, the incident which took place on the N.H. was within her visibility range in view of such short distance. She in the Trial has gone to state that when her husband was going to his house, accused Braja Kishore came from Mahipur side in a white colour Bolero at a speed and dashed her husband was thrown to a distance of 30 to 40 feet from the place where the dash was given and thereafter the accused went away in that Bolero vehicle with speed. She has stated that most of the people were present near the spot. What she has further stated as has been exactly recorded by the Trial Court runs as under:- “most of the people were present near the spot at the time and also seen the occurrence”. She is not stating to have seen the occurrence herself. Her evidence as reproduced above rather shows that the incident had been seen by many persons. It is also not stated by her that being present at CRLA NO. 581 OF 2022 Page 13 of 20 {{ 14 }} any particular place, she had seen the incident, taking place on the N.H. It is also not her evidence as to whether then she was in the garage or house or that the situation of their house or garage is such that by standing near the house or garage, one could seen the happenings on the N.H. which in the case has so enabled her. Nothing has been stated about the distance of their house or garage from the N.H. and the respective location of the house or garage as well as the N.H. Most importantly, as to how this witness could seen the Bolero vehicle coming on the N.H. being driven by the accused at a speed and dashing her husband has not been said. Even accepting for a moment that their house/ or garage is situated just by the side of the N.H., it is not said as to whether it was on the right side or left side which has the definite bearing, as from the other side to the seat of the driver even if for a person standing by the side of the N.H. to identify the driver is not possible. This witness is again not stating that the Bolero vehicle after the incident whether went ahead or returned to the side from which it was coming or reversed back. With such glaring infirmities and inherent improbabilities, in the evidence of P.W.4, we too find that the witness (P.W.4) has clearly stated that she was not accompanying her husband when he was going to take his meal. In her statement recorded under section-161 of the Cr.P.C. she had not stated that at the CRLA NO. 581 OF 2022 Page 14 of 20 {{ 15 }} time of incident, the deceased was going to his house from garage, the accused came in a white colour Bolero vehicle from behind and dashed Jagannath and that after dashing Jagannath; he moved back and saw Jagannath from the window of the vehicle before it sped away. The attention of this witness has been drawn to her previous statement. Said omission in her statement in course of investigation has been proved through the I.O. (P.W.12), who had recorded the said statement. He has stated that the witness (P.W.4) had only stated before him that the accused has committed murder of the deceased by dashing the Bolero vehicle from behind. 16. All the P.Ws. 1, 2, 3, 5, 6, 7 and 8 when have come forward to state during Trial that they had seen the incident before their eyes; their statements before the Police in course of investigation were not to that effect that at the time of incident the deceased was going to his house from the garage and the accused came with white Bolero vehicle from the back side and dashed the deceased and after dashing the deceased, the accused moved back and he again saw the deceased from the vehicle window and thereafter fled from the spot driving the vehicle. All have simply stated that accused had committed murder of the deceased by dashing his Bolero from his backside on the road which is too is certainly hazardous to accept in conclusively holding that they CRLA NO. 581 OF 2022 Page 15 of 20 {{ 16 }} had seen accused coming in the Bolero vehicle in dashing the deceased from behind. Like P.W.4, none of these witnesses are coming forward to say during Trial that where they were present at that relevant point of time and that too at what distance from the place where the incident took place. They also do not state as to whether they were on the left side of the incoming vehicle or on its right and as regards their response after the incident they are totally silent. When they claim themselves to be eye witnesses to the occurrence, merely stating the happening of the occurrence without stating their positioning at the relevant point of time being able to watch the occurrence, the evidence of such witnesses do not pass through the test of the reliability and trustworthiness and clearly fall far short of the standard. 17. The Trial Court has answered this point as under:- “In this context on perusal of the evidence of the above said P.Ws. it is found that they all have stated about the occurrence before the police during recording of their statements U/s.161 of Cr.P.C. and also deposed the same fact before the Court specifically. The P.W.1 to P.W.8 all have deposed that they had seen the occurrence and they had not deposed that who were present at the spot at that time except him which is immaterial and there is no such material contradiction find out in their statements. As such, the submission of the learned counsel for the accused is not sustainable. CRLA NO. 581 OF 2022 Page 16 of 20 {{ 17 }} As such this Court finds that the accused has the intention to cause death of the deceased as he has caused the death of the deceased by dashing him in the alleged Bolero vehicle willfully and he has knowledge that by the said accident, the death of the deceased can be caused in ordinary course of nature.” 18. It is the settled position of law that while section-162 of the Cr.P.C. enacts an absolute bar against the statement made before a Police Officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner as provided by section-145 of the Indian Evidence Act by drawing his attention to that part of the statement intended for contradictions. It cannot be used for corroboration of a prosecution or defence witness or even a Court witness nor can be used for contradicting a defence or a Court witness. The explanation resolves the conflict of decisions and clarifies that omission to state a fact or circumstance in the statement may amount to contradiction if certain conditions as envisaged therein are fulfilled. Omissions which by necessary implications lead to conflicting version between the statements made before the Police and the Court would amount to contradiction. The crucial test is to see if the two statements cannot stand together. It is also necessary to see whether the CRLA NO. 581 OF 2022 Page 17 of 20 {{ 18 }} statement which the witness has made in the witness box should have been made while reporting the matter after the incident. The test to find out whether an omission is a contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in the Court. 19. It is well established principle of law that all omissions are not contradictions. The statement under section-161 of the Cr.P.C. being brief, failure to mention a particular fact due to not being asked about it, is no contradiction. But if any statement which is so material and vital in connection with the conviction of an accused is omitted or if what is actually stated is irreconcilable with what is omitted, it amounts to contradiction where the omissions are vital. Omissions on vital point to be held as contradiction. In other words, it will appear that omission normally cannot be used for contradiction unless there can be doubt by necessary implication to be part of statement recorded. 20. In the given case, we find that the Trial Court being completely oblivious of the above statutory provisions and the legal principles in appreciating the evidence in a Criminal Trial has arrived at a conclusion that through evidence of all these witnesses, which ought not to have been relied upon as wholly untrustworthy, the prosecution has established the charge that the accused has intentionally caused the CRLA NO. 581 OF 2022 Page 18 of 20 {{ 19 }} death of the deceased. This finding is thus the outcome of erroneous appreciation of evidence having been so made without being alive to the statutory provision of law holding the field and the well settled legal principles in that regard. 21. Arriving at above conclusion, the evidence of P.W.4 being read with evidence of P.W.12, it is seen that the prosecution has not proved as to how the vehicle in question was at the Itamati P.S. and how it came to be seized by P.W.12 and at which place, which he has not deposed in order to remove the doubt, and that it creates doubt in mind in the line what have been submitted by the learned Counsel for the Appellant. The prosecution too has not examined any Police Officer then attached to Itamati P.S. in wiping out the doubts on that score. When the evidence of such large number of witnesses who were projected as the eye witnesses in implicating the accused fall far short of acceptance, the same being taken with the above conduct of the prosecution, the submission of the learned Counsel for the Appellant that the implication of the accused in this case is the product of the later thinking and due deliberation with the I.O. coming to their aid cannot straight way be whittled down and that reinforces the doubt in our mind as regards veracity of the prosecution case. CRLA NO. 581 OF 2022 Page 19 of 20 {{ 20 }} We, therefore, unhesitatingly conclude that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set at naught. 22. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 01.06.2022 passed by the learned Sessions judge, Nayagarh in S.T. Case No.26 of 2020 are hereby set aside. Since, accused- Braja Kishore Sahoo is in custody, he be set at liberty forthwith, if his detention is not required in any other case. Dr. S.K. Panigrahi, J. I Agree. NARAY AN HO Digitally signed by NARAYAN HO Date: 2023.05.05 17:12:32 +05'30' Narayan (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. CRLA NO. 581 OF 2022 Page 20 of 20