The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.72 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 order of sentence dated 18.10.2016 passed by the Additional Sessions Judge, Sundargarh in Sessions Trial Case No. 58/28 of 2015. Surati Matri ---- -versus- ….. Appellant State of Odisha ….. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. Sahasransu Sourav, Advocate. For Respondent - Mr. S.S. Kanungo Additional Govt. Advocate. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING :30.06.2023 : DATE OF JUDGMENT:24.07.2023 D.Dash, J. The Appellant by filing this Appeal from inside the jail has
Facts
challenged the judgment of conviction and order of sentence dated 18.10.2016 passed by the learned Additional Sessions Judge, Sundargarh in Sessions Trial Case No. 58/28 of 2015 arising out of G.R. Case No.1202 of 2014 corresponding to Hemagir P.S. Case No.161 of JCRLA NO.72 OF 2016 Page 1 of 10 {{ 2 }} 2014 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundargarh. The Appellant (accused), thereunder has been convicted for committing offence under section-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.10,000/- in default to undergo rigorous imprisonment for one year. 2. The prosecution case is that around evening of 31.12.2014, the accused intentionally caused the death of Bachu Rout by giving blows by means of Gainti (heavy weapon made of iron having pointed ends). It is stated that accused dealt the blows by the Gainti on the chest of Bachu, when he was in the Guditikiri jungle. One Makhani Rout (P.W.9) when informed her brother Raju Rout (P.W.1) about the incident over telephone; Raju Rout (P.W.1) came and went to that jungle with others and there he found the dead body of Bachu Rout, the father of Raju Rout (P.W.1) with profuse bleeding from chest. It be stated here that, this Raju (P.W.1) and Makhani are brother and sister being the children of Bachu (deceased) Raju Rout (P.W.1) then lodged a written report before the Inspector-In-Charge (IIC), Hemgir Police Station. The IIC receiving the report, treated the same as F.I.R. and registering the case took up investigation. JCRLA NO. 72 OF 2016 Page 2 of 10 {{ 3 }} 3. In course of investigation, the Investigating Officer (I.O.- P.W.16) examined the Informant (P.W.1) and other witnesses, visited the spot, drew the spot map, Ext.13 and having held inquest over the dead body of the deceased, prepared the inquest report, Ext.1 in presence of the witnesses. He then sent the dead body for postmortem examination by issuing necessary requisition. The accused being apprehended at village: Ustali, he while in police custody stated to have given recovery of the Gainti which he had kept in his house. Therefore, his statement (Ext.3) was recorded by the I.O. (P.W.16) and he then led P.W.16 and others to his house. He gave recovery of the Gainti, which was seized under seizure list, Ext.4. The I.O. (P.W.16) seized other incriminating articles and sent those 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 commenced by framing charge for the said offence against the accused. JCRLA NO. 72 OF 2016 Page 3 of 10 {{ 4 }} 5. In the Trial, the prosecution in total has examined sixteen (16) witnesses. Out of whom as already stated, the son of the deceased is the Informant who had lodged, Ext.1 is P.W.1, P.W.3 and 4 are the post occurrence witnesses and P.W.9 is the sister-in-law of P.W.1. The witnesses to the seizure of said Gainti at the instance of the accused are P.W.2, P.W.6 and P.W.8 whereas P.W.5 is the witness who has said about the confession being made by the accused before him. P.W.14 has been examined to prove that the deceased prior to his death was last seen in the company of the accused. The Doctor, who had conducted autopsy over the dead body of the deceased is P.W.12; when the I.O. as P.W. 16 has come to the witness box at the end. The prosecution besides leading the evidence by examining the above witnesses has proved several documents which have been marked as Ext.1 to Ext.16. Out of those important are the F.I.R., Ext.1, inquest report, Ext.2, postmortem report, Ext.10, spot map, Ext.13, statement of the accused in leading P.W.16 and others in giving recovery of that Gainti has been admitted in evidence and marked as Ext.3. 6. The defence plea is that of complete denial and false implication. No evidence has however been tendered by the accused in defence. JCRLA NO. 72 OF 2016 Page 4 of 10 {{ 5 }} 7. The Trial Court on going through the evidence of the Doctor (P.W.12), who had held autopsy over the dead body of the deceased and also other witnesses including that of the I.O. (P.W.16) and the report of the Doctor, Ext.10 has held that the deceased met homicidal death. In fact this aspect was not challenged before the Trial Court as that is also the situation before us. 8. It is the evidence of the Doctor (P.W.12), who had conducted postmortem examination over the dead body of Bachu is that he had noticed four penetrating wounds on the chest and nearby region of the body of the deceased. According to him, all such injuries are antemortem in nature and the death was on account of excessive loss of blood oozing out of those four penetrating wounds being caused by pointed hard object. The I.O. (P.W.16) who had held inquest over the dead body of the deceased had also seen such injuries and noted those in his report, Ext.2; whereas that P.W.12 too has noted the injuries in the postmortem report, Ext.10. The other witnesses have also seen the deceased with such injuries on his chest and nearby region. All these evidence having not at all even attempted to be impeached, we find ourselves wholly in agreement with the finding of the Trial Court that Bachu met a homicidal death. JCRLA NO. 72 OF 2016 Page 5 of 10 {{ 6 }} 9.
Legal Reasoning
With such evidence of P.Ws.2 and 5, we find that the prosecution case as regards the confession to have been made by the accused after the incident has not at all been established. Therefore, the other circumstances projected through the evidence of P.W.14 now needs examination. 13. It is seen that P.W.14 has stated that on 31.12.2014 around 3 pm, he had seen accused and deceased coming from the side of village, Ustali towards Hemgir and then the accused was holding a Gainti. About the death, his evidence is that he came to know about the same JCRLA NO. 72 OF 2016 Page 8 of 10 {{ 9 }} in the evening. This witness is a temporary Security Guard in the Mahanadi Coal Field Company. He has stated that he has never been examined by the police in the case. His presence being challenged, no such document has been proved in support of his performance of duty at the relevant time at Hemgir Bye-pass Chhaka. His evidence as to have seen the deceased and accused together thus under the circumstance is hard to believe. For the above discussion, the evidence of P.W.14 do not inspire confidence and he cannot be taken to be a credible witness for another simple reason, that had he seen them together and in the evening, he knew about the death, he would have disclosed that then. Such conduct on his part is against that of a normal human being. In that situation, he being a Security Guard has not gone to any place to inform as to what he had seen; more importantly, that the accused was coming, holding a Gainti. Thus, when the evidence of P.W.5 which is not directed towards the so called confession of the accused and the evidence of P.W.14 is not acceptable in support of the theory of ‘last seen’; even if for a moment, it is accepted that the accused had given recovery of the Gainti pursuant to his statement since that Gainti is ordinarily available in the house of the village when no further evidence is there to connect that Gainti with the commission of crime except that by means of that JCRLA NO. 72 OF 2016 Page 9 of 10 {{ 10 }} Gainti, injuries seen on the deceased are possible; without least
Arguments
Learned Counsel for the Appellant (accused) submitted that the prosecution when examined P.W.5 in proving the extra judicial confession said to have been made before him, said P.W.5 has not deposed anything about said confession and his evidence in the Trial is completely otherwise for which the prosecution has cross-examined the witnesses with the permission of the Court, but there has been no improvement in the aid of the prosecution case. He further submitted that, when prosecution has tendered the evidence through P.W.14 in support of the theory of ‘last seen’, the evidence of that P.W.14 is clear that he had come to depose in Court for the first time and that was not stated by him before anybody on earlier occasions for which, according to him, that last seen theory falls flat being not established. With such state of affairs, in the evidence, he submitted that even if it is believed for a moment that the accused has given recovery of that Gainti while in police custody pursuant to his statement, that itself is that enough to hold him to be the author of the injuries on the deceased as to have been so inflicted upon the deceased by that seized Gainti. 10. Learned Counsel for the Respondent-State while supporting the finding of conviction as has been returned by the Trial Court submitted that simply because P.W.14 has made a stray statement during Trial that he for first time was stating so, on the face of the evidence of the JCRLA NO. 72 OF 2016 Page 6 of 10 {{ 7 }} I.O. (P.W.16), who has recorded the statement of P.W.14 in course of investigation, it would not be proper to discard the evidence of P.W.14. He further submitted that when P.W.5 having not stated anything about the extra judicial confession has stated that accused had told before him that there was a tussle between him and the deceased and with that when there comes no further explanation from the side of the accused as to how the deceased received the injuries on his person, the Trial Court’s finding that accused is the author of the injuries received by the Bachu (deceased) has to sustain. 11. 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.16 and have perused the documents which have been marked Exts.1 to 16. 12. P.W.1 is the Informant in the case, who is stated to have learnt from his elder sister (P.W.9) about the incident had hurried back home and then had lodged the F.I.R. (Ext.1). The F.I.R. reveals that he was told by the co-villagers namely, Bamber @ Sitaram that his father had been killed by the accused. That Bamber @ Sitaram has been examined as P.W.-5. So, let’s glance at the evidence of P.W.5. He has stated that on 31.12.2014 around 3 pm, when he was in his house, accused came and requested him to go with him to Guditikira and then JCRLA NO. 72 OF 2016 Page 7 of 10 {{ 8 }} when he asked as to the reason, the accused told that he had a tussle with the deceased there and his further evidence is that he then proceeded to the spot with Sricharan, Dharamu (P.W.2) and Santosh. He does not state anything more. Although he has been cross- examined by the prosecution with the permission of the Court, we find no material to have been elicited from him to come to the aid of the prosecution in any manner. This P.W.5 also does not state to have told anybody else about such disclosure about the accused regarding the tussle of the accused with the deceased so as to suspect the involvement of the accused. But then P.W.2 states that he came to know from P.W.5 that accused had confessed before him to have killed the deceased which cannot be believed when P.W.2 is silent on that.
Decision
hesitation we hold that the finding of guilt against the accused as has been returned by the Trial Court holding him guilty of the commission of offence under section-302 of the IPC in intentionally causing death of Bachu Rout is liable to be set aside. 14. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 18.10.2016 passed by the learned Additional Sessions Judge, Sundargarh in Sessions Trial Case No. 58/28 of 2015 are hereby set aside. Since, accused-Surati Matri being on bail, his bail bonds shall stand discharged. Dr. S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 24-Jul-2023 15:08:57 JCRLA NO. 72 OF 2016 Page 10 of 10