MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.799 of 2023 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 9th May, 2023 passed by the learned 1st Additional Sessions Judge, Baripada in S.T. Case No.107 of 2019. 1. Jagannath Naik ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Bijay Kumar Behera-1 (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 05.09.2024 : Date of Judgment : 09.10.2024 D. Dash, J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 9th May, 2023 passed by the learned 1st Additional Sessions Judge, Baripada in S.T. Case No.107 of 2019 arising CRLA No.799 of 2023 Page 1 of 16 out of G.R. Case No.19 of 2019 corresponding to Jharpokharia P.S. Case No.03 of 2019 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baripada. 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, the accused 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 offence under section 302 of the IPC. 2. PROSECUTION CASE:- On 14.01.2019 at about 8.30 a.m., one Basanti Singh, wife of late Pratap Singh of Village-Brundabanpur under the jurisdiction of Jharpokharia Police Station (P.S.) in the District of Mayurbhanj, Odisha, (Informant-P.W.1), who happens to be the mother of Sukadevi Naik (deceased) and mother-in-law of Kshetramohan Naik (P.W.15) lodged a report in writing before the Inspector-in-Charge (IIC) of Jharpokharia P.S. stating therein that her daughter Sukadevi had married Kshetramohan (P.W.15) of Village-Paktia under the jurisdiction of Jharpokharia P.S. in the year 2010. They, CRLA No.799 of 2023 Page 2 of 16 having grown paddy, when had kept the same, the younger brother of Kshetramohan (P.W.15), namely, Jagannath Naik (accused) had sold the same. Therefore, Sukadevi and Kshetramohan (P.W.15) were demanding money from Jagannath (accused). So, it is said that on 13.01.2019, which was a Sunday in between 8.00 p.m. to 9 p.m., the accused and his mother Raimani Naik killed Sukadevi by inflicting the injuries on her by means of axe. Receiving the said written report presented by Basanti (P.W.1), being scribed by one of her co-villagers, namely,
Legal Reasoning
Anadi Naik (P.W.16), the I.I.C. treated the same as FIR (Ext.10) and upon registration of the case, took up the investigation. 3. In course of investigation, the I.O. (P.W.18) examined the informant (P.W.1) and made a requisition to Superintendent of Police, Mayurbhanj to depute the scientific team and dog squad. He (P.W.18), having proceeded to the spot, prepared the spot map (Ext.11), held inquest over the dead body of Sukadevi and prepared the report to that effect (Ext.1/1). He (P.W.18) then sent the dead body of the deceased for post mortem examination by issuing necessary CRLA No.799 of 2023 Page 3 of 16 requisition. He (P.W.18) seized the blood sample and blood stained earth under seizure list (Ext.5). The I.O. (P.W.18) apprehended the accused and it is stated that he, while in police custody, stated to have kept concealed the axe in a pond and further told that if he would be taken to that place, he would give recovery of the same. Pursuant to the said statement, which was recorded vide Ext.2, the accused, having led the I.O. (P.W.18) and others to said place, he is said to have given the recovery of the axe, which was seized under seizure list (Ext.3). The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.18) submitted the Final Form placing this accused to face the Trial for commission of offence under section 302 of the IPC. 4. Learned S.D.J.M., Baripada, 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 offence 302 of the IPC against the accused. CRLA No.799 of 2023 Page 4 of 16 5. In the Trial, the prosecution, in support of its case, has examined in total eighteen (18) witnesses out of nineteen (19) witnesses cited in the Final Form. As already stated, P.W.1 is the informant, who happens to be the mother of the deceased and mother-in-law of P.W.15 and had lodged the FIR (Ext.10) being scribed by P.W.16 whereas P.Ws.5 & 9 are the younger sisters of the deceased and a witness to the inquest. P.W.15 is the husband of the deceased and P.W.17 is the husband of the younger sister of the deceased and a witness to the seizure of weapon. P.Ws.2, 3 and 4 are the co-villagers of the accused and the deceased. P.Ws.10, 11 & 12 are the official seizure witnesses. P.W.13 is the Assistant Scientific Officer and the Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.14. The I.O., at the end, has come to the witness box, as P.W.18. 6. The prosecution besides leading the evidence by examining the above witnesses has also proved several documents, which have been admitted in evidence and marked Exts.1 to 15. Out of those, the important are the FIR (Ext.10), inquest report (Ext.1/1), spot map (Ext.11) and the post mortem repot (Ext.8). The so-called disclosure statement CRLA No.799 of 2023 Page 5 of 16 of the accused had been admitted in evidence and marked as Ext.2 whereas the chemical examination report is Ext.14. 7. The accused has taken the plea of complete denial and false implication. However, he has not tendered any evidence in support of such plea nor has exhibited any document. 8.
Legal Reasoning
Learned counsel for the Appellant (accused) submitted that the finding of the Trial Court that it is this accused, who having inflicted injuries upon Sukadevi (deceased) by means of the axe, had caused her death is based on nil evidence. He submitted that basing upon wholly inadmissible evidence, the Trial Court, placing reliance upon the statement of Kshetramohan (P.W.15) recorded under section 161 of the Cr.P.C. by the I.O. (P.W.18) in course of investigation by taking the same as substantive evidence when he has stated nothing during trial and having not supported the prosecution version, was cross-examined by the prosecution with the permission of the Court, has fastened the guilt upon the accused. He next submitted that the evidence as to the recovery of the axe pursuant to the statement of the accused while in police custody being wholly unacceptable as filled CRLA No.799 of 2023 Page 6 of 16 with discrepancies varying from one witness to the other, the Trial Court has completely erred in taking that as an aid to the prosecution case. In support of the same, he took us through the evidence of P.Ws.1, 4, 5, 6, 7, 9 & 17, who have stated to have heard about the incident especially the role of this accused therein from P.W.15 and contended that their evidence as such is inadmissible as the same is hearsay evidence and when P.W.15 has not stated that the incident was witnessed by him as it had occurred in his presence and not to have stated before P.Ws.1, 4, 5, 6, 7, 9 & 17 about such happenings including the role of the accused, the Trial Court is at fault in holding that the charge against the accused has been established through such evidence. He, therefore, urged that the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot sustain. 9. 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, submitted that although P.W.15 has turned hostile, yet when it has been proved through the I.O. (P.W.18) that he had stated before him about the occurrence, which had taken before his eyes and also to have told the same to all other Page 7 of 16 CRLA No.799 of 2023 witnesses as those witnesses have stated to have been told Kshetramohan (P.W.15) implicating this accused in the said incident, the Trial Court, accepting the version of those witnesses coupled with the evidence of the I.O. (P.W.18) cannot be said to have fallen in error in recording the finding of guilt of the accused. He further submitted that the evidence of P.Ws.1, 4, 5, 6, 7, 9 & 17 coupled with the evidence as to the recovery of the axe at the instance of the accused pursuant to his statement while in police custody, which as such, is not doubtful, the judgment of conviction and order of sentence are well in order. 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.18 and have perused the documents admitted in evidence and marked as Exts.1 to Ext.15. 11. It being not under challenge that Sukadevi, wife of Kshetramohan Naik, who has been examined as P.W.15, met a homicidal death on account of the injuries received by her as indicated in the post mortem report (Ext.8) being prepared by the Doctor (P.W.14) after the post mortem examination CRLA No.799 of 2023 Page 8 of 16 deriving support from the evidence of the I.O. (P.W.18), who had noticed those injuries upon Sukadevi and noted in his report (Ext.1/1) and other witnesses, who had seen the deceased being sustained such injuries, in view of the rival submission, we are now called upon to undertake the exercise of scrutinizing the evidence on record to judge the sustainability of the ultimate conclusion arrived at by the Trial Court. 12. The Informant, who is the mother of the deceased and mother-in-law of P.W.15, who is the husband of the deceased although has lodged the FIR (Ext.10), she is not an eye witness to the occurrence and she has ultimately mentioned in the FIR to have been told about the incident by her son-in- law (P.W.15), first over telephone and thereafter when she arrived in their house and saw her daughter lying dead with injuries. She states to have been told by P.W.15 that the accused had assaulted Sukadevi and killed her. P.W.4, who is a co-villager of P.W.1, has stated to have heard about the incident of murder of Sukadevi from P.W.1. He states in this way that when he with P.W.1 went to the house of Kshetramohan (P.W.15), they were told by P.W.15 CRLA No.799 of 2023 Page 9 of 16 that his brother Jagannath (accused) killed the deceased by means of axe. P.W.2 although had stated before the I.O. (P.W.18) during investigation that when he had been to the house of Kshetramohan (P.W.15) and asked him, he came to know that the accused had assaulted Sukadevi by means of axe. P.W.3 has denied to have any knowledge about the occurrence. P.W.5 is the younger sister of Sukadevi. Her evidence is also on the score that Kshetramohan (P.W.15) had disclosed before her that his brother (Jagannath-accused) had killed Sukadevi. It has been stated by P.W.6 that Kshetramohan (P.W.15) had stated before him that it was the accused, who had killed his wife by means of the axe. That is also the version of P.W.7, who is another son-in-law of the informant (P.W.1). A co-villager of the accused (P.W.9) although has stated about the occurrence, he has deposed that on being called by Kshetramohan (P.W.15), he had been to his house and saw Sukadevi lying there in a bleeding condition and he intimated the members of the in-laws family of Kshetramohan (P.W.15) about the incident over phone and also to police. Clarifying everything during cross- CRLA No.799 of 2023 Page 10 of 16 examination, he has stated that as Keshtramohan (P.W.15) came and called him, he could know about the incident. Thus, he says to have derived the knowledge about the incident from Keshetramohan (P.W.15) and so also all other witnesses whose evidence we have discussed above. P.W.17 although has stated to have gone to the house of Kshetramohan (P.W.15) receiving his phone call about the death of Sukadevi, he has stated nothing more as to how it all happened on Sukadevi. Thus, the evidence of the above witnesses run on the score that they all were told by P.W.15 that it was the accused, who had assaulted Sukadevi to death. So, the evidence of above witnesses run as the evidence to corroborate the evidence of P.W.15, if said evidence of P.W.15 stand to legal scrutiny being not discarded as wholly unreliable. 13. Coming to the evidence of P.W.15, who has been projected as the star witness from the side of the prosecution from the very beginning, we find him to have stated that he, at the relevant time when returned from market where he had gone to fetch oil, he saw his wife (Sukadevi) lying dead. This witness, having thus not supported the prosecution version, as presented more particularly noted in his Page 11 of 16 CRLA No.799 of 2023 statement recorded under section 161 of the Cr.P.C., the prosecution has cross-examined him with the permission of the Court. During cross-examination, we find absolutely nothing to have been elicited in support of the fact that he disclosed about the incident implicating the accused to be the author of the injuries received by Sukadevi leading to her death, to those witnesses which include his mother-in-law (P.W.1). The prosecution simply has drawn the attention of P.W.15 to the previous statement about such disclosure being made by him before other witnesses and also to have stated that in the incident taking place before him where the accused had assaulted Sukadevi to death by means of axe, which he has denied to have so stated before P.W.18 during investigation. The prosecution has proved the same through the evidence of P.W.18 that P.W.15 had stated that the incident took place in his presence wherein the accused had assaulted the deceased to death and to have disclosed about the same to others. But then the statement of P.W.15 recorded under section 161 Cr.P.C. is not permissible in the eye of law to be taken as substantive evidence. The source of the narration to all other witnesses P.Ws.1, 4, 5, 6, 7, 9 & 17, being this P.W.15, when his evidence is not forthcoming to stand as CRLA No.799 of 2023 Page 12 of 16 a source of information to them and when P.W.15 is no way implicating the accused, those witnesses, having stated as regards the role of the accused in the said incident to have learnt from P.W.15 fall flat on the ground and is inadmissible in the eye of law to be taken note of to find out the complicity of this accused. 14. The prosecution next relies upon the recovery of the axe at the instance of the accused. As it appears from the judgment passed by the Trial Court that the Trial Court has taken the statement of the accused recorded by the I.O. (P.W.18) in course of investigation, which has been admitted in evidence and marked Ext.2 as the confessional statement of the accused and that he has referred to at several places and since the accused has not denied his signature on the said statement and has not given any explanation in that regard, the same has been taken as a circumstance against the accused, which to us, appear to be standing on a wholly erroneous view point of law and as such, is an error of law. Coming to examine the factum of recovery of that weapon, i.e., axe, first of all the evidence of the I.O. (P.W.18), being read, we find him to have stated that on interrogation, Page 13 of 16 CRLA No.799 of 2023 the accused confessed his guilt, which in fact the Trial Court ought not to have so recorded. The I.O. (P.W.18) then states to have recorded the confessional statement of the accused under section 27 of the Evidence Act, which again is erroneous. His evidence is that the accused led them to the spot, but which is that spot is not stated by him. Then, it is said that the spot is where he concealed the weapon of offence, i.e., Kuradhi (axe). It is his evidence that he seized the axe from the village pond in presence of the witnesses and prepared the seizure list vide Ext.3. This P.W.18 is not stating as to where he apprehended the accused and where interrogation was made and he gave the statement and thereafter wherefrom they started the journey. It is not stated that the accused told before him to have thrown the weapon to the village pond. This P.W.18 is also not stating that who were the witnesses present at the time when the accused gave his statement, he simply states that in presence of witnesses, which makes no sense being vague. 15. The witness (P.W.17) is stating that he with one Motilal (P.W.7), the accused and police had gone to a pond from the house of the accused and there police recovered the axe from the pond and showed the same to them. The evidence of Page 14 of 16 CRLA No.799 of 2023 P.W.17 is not at all on the score that it was the accused, who had given his statement and pursuant to the same, had led them to the village pond in giving recovery of the axe from that pond, which was seized thereafter. With the available evidence, we find the prosecution to have not been able to establish the fact that the accused, while in police custody, had disclosed to have kept the axe in a place known to him and so saying, he had led P.Ws.7, 17 & 18 near the pond and shown the area where he had thrown that axe whereafter, it was discovered and seized. The evidence on the above score fail to pass through the test of reliability. Therefore, the above evidence, as discussed, in no way come to the aid of the prosecution case. 16. For all the aforesaid, we find that the finding of guilt against the accused, as has been returned by the Trial Court, is liable to be set aside. Accordingly, it is held that the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained. 17. Accordingly, we allow this Appeal and set aside the judgment of conviction and order of sentence dated 9th May, CRLA No.799 of 2023 Page 15 of 16 2023 passed by the learned 1st Additional Sessions Judge, Baripada in S.T. Case No.107 of 2019. Since the Appellant, namely, Jagannath Naik is in custody, he be set at liberty forthwith, if his detention is not wanted in connection with any other case. (D. Dash) Judge I agree. (V. Narasingh) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 09-Oct-2024 14:05:09 CRLA No.799 of 2023 Page 16 of 16