The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.108 OF 2018 : (A) AND CRLA NO.816 OF 2018 : (B) In the matter of Appeals under Section-373 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 12.07.2018 passed by the learned Additional Sessions Judge, Rairangpur in Sessions Trial No.30 of 2015 arising out of G.R. Case No.565 of 2014 (T.C. No.538 of 2014) corresponding to Bisoi P.S. Case No.106 of 2014 of the Court of learned S.D.J.M., Rairangpur. Turu @ Arjun Naik (In JCRLA No. 108 of 2018) & Sukura Naik (In CRLA No. 816 of 2018) -versus- State of Odisha (In JCRLA No.108 of 2018 & CRLA No. 816 of 2018 ) .… Appellant. …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical ================================================== For Appellants - Mr. S.K. Pal, Advocate, (In JCRLA No.108 of 2018) Sk. Zafarulla, Advocate, (In CRLA No. 816 of 2018). For Respondents - Mr. Sitikant Mishra, Addl. Standing Counsel, (In JCRLA No.108 of 2018 & CRLA No. 816 of 2018). CORAM: MR. JUSTICE D.DASH DR.JUSTICE S.K. PANIGRAHI DATE OF HEARING:10.05.2023:DATE OF JUDGMENT:19.05.2023 JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 1 of 13 {{ 2 }} D.Dash,J. Since both these Appeals [as at (A) and (B)] arise out of same judgment of conviction and order of sentence dated 12.07.2018 passed by the learned Additional Sessions Judge, Rairangpur in Sessions Trial
Legal Reasoning
No.30 of 2015 arising out of G.R. Case No.565 of 2014 (T.C. No.538 of 2014) corresponding to Bisoi P.S. Case No.106 of 2014 of the Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Rairangpur; those Appeals were heard together for their disposal by this common judgment. The Appellants (accused persons) of the Appeal as at (A) and (B) have been convicted for committing the offence under section- 302/201/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and accordingly they have been sentenced to imprisonment for life and fine of Rs.10,000/-, in default to undergo rigorous imprisonment for six months each for the offence under section-302 of the IPC and rigorous imprisonment for one year with payment of fine of Rs.10,000/-, in default to undergo rigorous imprisonment for three months each with the stipulation that the substantive sentences would run concurrently. The Appellants with five others have faced Trial standing charged for commission of offence under section-341/323/325/307/302/201/34 of the IPC. Except these two Appellant namely, Turu @ Arjun Naik and JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 2 of 13 {{ 3 }} Sukra Naik; other five who have faced the Trial have been acquitted of all the charges. 2. Prosecution case is that on 01.12.2014, Randai Naik (P.W.9) was in her house situated of village Banakati, her husband Dasmat (deceased) was also with her in the house. Dasmat uttered some pinching words in general aiming his neighours. Hearing the same, accused-Sukura went to the house of Dasmat and assaulted him. Other accused persons who have since been acquitted and the accused-Turu @ Arjun Naik being close neighbours arrived at the spot and assaulted Dasmat as well as his wife Randai (P.W.9). Due to such assault, Randai (P.W.9) sustained severe injuries and fell in her house in an injured condition; whereas Dasmat receiving injuries met his death. These accused persons with others since acquitted are stated to have then carried the dead body of Dasmat from his house and placed the same on National Highway No.49 near village Nuagaon by covering a distance of two (2) km. from the house of Dasmat in order to cause disappearance of evidence. 3. On 02.12.2014, one Priyanka Mohanta, daughter of Bhimsen Mohanta of village Nuagaon (P.W.4) came to the house of Randai (P.W.9) to inform about the fact that the dead body of Dasmat was lying on the National Highway. She (P.W. 4) however saw Randai (P.W.9) JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 3 of 13 {{ 4 }} lying with injuries in her house. Randai (P.W.9) was then shifted to Jashipur Hospital for treatment and being referred for better treatment was taken to Rairangpur Sub-Divisional Hospital and thereafter to District Headquarter Hospital, Baripada. On 02.12.2014 early morning, an accident had taken place on the National Highway at a close proximity to the place where the dead body of Dasmat was lying. The truck involved in the accident had capsized. The Driver and Helper of the said truck sustained injuries. The dead body of Dasmat was found lying on the road with injuries all over. On that day around 7 pm, Laxmidhar, the Informant (P.W.1) lodged a written report with the Inspector-In-Charge (IIC) of Bisoi Police Station. The IIC, receiving the said written report, treated it as F.I.R. (Ext.1) and registering the case, conducted investigation. In course of investigation, the Investigating officer (I.O.-P.W.20) examined the Informant (P.W.1) and witnesses. Having held the inquest over the dead body of Dasmat, report was prepared to that effect (Ext.3/1). He then sent the dead body for postmortem examination by issuing necessary requisitions. He also issued the injury requisition for obtaining the injury report of the injured Randai (P.W.9). It is stated that accused- Turu @ Arnjun Naik while in police custody led the I.O. (P.W.20) by giving his statement to a place near Domuhana Nala and gave recovery JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 4 of 13 {{ 5 }} of one Budia (Axe) by bringing from the sand heap near that Nala. He also gave recovery of his own wearing apparels stained with blood from near a bush situated near that Nala, which have been seized. On completion of investigation by filing the Final Form, these two accused persons with five others were placed for facing the Trial for commission of offence under section-341/323/325/307/ 302/201/34 of the IPC. 4. Learned J.M.F.C, Rairangpur having received the Final Form as above, took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced against these two accused persons as also five others.
Legal Reasoning
Those five have been acquitted in the Trial and it was submitted at the Bar that no Appeal challenging their acquittal has been filed. 5. In the Trial, the prosecution has in total examined twenty three (23) witnesses. Out of them, as already stated P.W.1 is the Informant, who is the brother of injured Randai (P.W.9) and brother-in-law of deceased-Dasmat. P.W.7 claims to be the eye witness to the incident wherein the accused persons are said to have assaulted the deceased and Randai (P.W.9). The other important witness for the prosecution is the injured-Randai, who is P.W.9. The witnesses to the seizure of the blood stained wearing apparels of the accused are P.Ws. 2 and 3. Whereas the other witnesses except one witness i.e. P.W.13 are witnesses to the JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 5 of 13 {{ 6 }} seizure of the incriminating articles at the instance of the accused-Turu @ Arjun Naik being examined as P.Ws.4, 5 and 6 have not supported the prosecution case. P.W.20 is the main I.O., who has conducted major part of the investigation. Coming to take charge of investigation from, the second I.O., who had taken the charge of investigation from the first Investigating Officer, P.W.20 is P.W.19. P.W.15 is the last Investigating officer, who had submitted the Final Form. The Doctor, who had examined the injured Randai (P.W.9) has come to the witness box as P.W.23; whereas P.W.21 is the Doctor who had conducted autopsy over the dead body of the deceased, Dasmat. The prosecution besides leading evidence by examining the above witnesses has proved several documents, which have been admitted in evidence and marked Ext.1 to 23. Of those, the important are F.I.R., Ext.1, spot maps, Exts.18 and 19, statement of accused-Turu @ Arjun Naik said to have been given while in police custody has been admitted in evidence and marked Ext.9/1. The postmortem examination report of deceased-Dasmat is Ext.21; whereas injury report of Randai (P.W.9) is Ext.23. The inquest report is Ext.3/1 where as the report of the Chemical Examiner is Ext.20. During the Trial that Budia (Axe) and wearing apparels of the accused Turam @ Arjun which were produced as Material Objects (M.O.-I to M.O.IV). JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 6 of 13 {{ 7 }} 6. The plea of defence is that of denial and false implication. However, the accused persons have led no evidence either oral or documentary in support of their plea. 7. The Trial Court having examined the evidence of P.W.21, the Doctor who had conducted postmortem examination over the dead body of the deceased-Dasmat and on going through his report, Ext.21 as also other evidence including that of the I.O. (P.W.20), who had held inquest over the dead body of Dasmat and submitted his report, Ext.3/1 has arrived at a conclusion that Dasmat met a homicidal death. In fact, this aspect of the case had not faced the challenge during Trial. This has also been the situation before us. As stated by the Doctor, P.W.21, she had noticed two lacerated injuries on the middle of the vertex (middle of the head) and over right parietal region. Fractures of right parietal bone, lower mandible with lacerated fracture of right maxillary bone (face) have also been noted. Budia (Axe) having been seized in course of investigation had been sent to P.W.21 seeking her opinion as to if with such Budia (Axe), the injuries noticed upon the dead body of Dasmat were possible. P.W.21’s opinion has been in the affirmative which she has deposed during trial. Her evidence is that all the injuries are antemortem in nature and the death was on account of haemorrhagic shock due to the injuries on the JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 7 of 13 {{ 8 }} vital organs as noted. All these have been meticulously noted in the postmortem examination report, Ext.21. Such evidence having not faced any challenge from the side of the defence we are wholly in agreement with the finding of the Trial Court that death of Dasmat was homicidal. 8. Learned Counsel for the Appellants submitted that Informant- P.W.1 is not an eye witness and his evidence is based on what he heard from his sister Randai (P.W.9) and thus according to him, the star witness for the prosecution is P.W.9. It was submitted that the Trial Court has not properly appreciated the evidence of P.W.9 by analyzing it from every angle and taking into account the surrounding circumstances, which have emanated from the totality of the evidence on record. Inviting our attention to the deposition of P.W.9, he submitted as to how the same greatly varies from that of the evidence of P.W.7on material aspects of the case especially as to the incident right from the beginning till end. He further submitted that when the Trial Court has disbelieved P.W.7 as her evidence was found to be brisling with contradictions, the evidence of P.W.9 even though she has stated to have received the injuries in the incident ought not to have been held to be reliable to base the conviction. She further submitted that when the prosecution case from the beginning is that all the accused persons assaulted the deceased, during Trial, P.W.9 having confined the number JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 8 of 13 {{ 9 }} of assailants only to these two accused persons that itself ought to have been taken to be the grave doubtful feature and therefore, the evidence of P.W.9 ought to have been held unsafe to be placed reliance with. 9. Learned Counsel for the State (Respondent) submitted all in favour of the finding of conviction returned by the Trial Court. According to him, even if, the evidence of P.W.7 is eschewed from consideration being not believable and acceptable, the solitary testimony of P.W.9 being reliable, finding of conviction of these two accused persons has to sustain. He submitted that P.W.9 being a rustic Adivasi lady, some relaxation in appreciating her evidence is bound to be given and appreciation of said evidence of P.W.9 ought not to be so meticulous and rigorous. He further submitted that some stray statements are not be given much of importance which the Trial Court has correctly ignored. 10. Keeping in view the submissions as above, we have carefully read the impugned judgments. We have also extensively travelled through the depositions of all the witnesses i.e. P.Ws.1 to 23. We have also perused the documents admitted in evidence and marked Exts.1 to 23. 11. The most important witness that the prosecution has examined is P.W.9. She is the wife of the deceased-Dasmat. She herself is said to have sustained injuries on her person in the said incident being inflicted JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 9 of 13 {{ 10 }} by these accused persons and others. Therefore, the evidence of P.W.9, matter much for the success of the prosecution. She has stated that on that day around 8 pm, when she was in her house, her husband was sitting outside. It is stated that persons (numbering seven; these two accused persons and five others, who have been acquitted) came and quarreled with her husband. She has stated that when she protested, this accused-Sukura, another Tipu (since acquitted) assaulted her by means of an Axe near her left ear chin and right elbow. She says to have lost her sense and was shifted to the hospital. She is totally silent as to what happened to her husband. In fact, this witness having resiled from her previous statement before the police in course of investigation, the prosecution having sought for permission to cross-examine her that was so granted. But what we find that except drawing the attention of the witness as to what she had stated before police which she of course has admitted, nothing more has been elicited from her. Even though the witness has admitted to have stated some facts before the police during investigation that would not thereby amount to evidence in the trial as her positive evidence, when the witness does not state so in affirmative. During cross-examination by the defence, this P.W. 9 has again stated that at the time when the occurrence took place, it was dark and therefore, it was not possible on her part to see any person properly. She JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 10 of 13 {{ 11 }} is further stating that due to darkness, she could not see the assailants properly. It is her evidence that only because the accused persons are in litigating terms with them, they were so suspected to be involved in the crime. She having stated that accused-Sukura and Tipu (since acquitted) had assaulted her in examination-in-chief, during cross-examination, she is stating that accused-Sukura and Dangi (since acquitted) had assaulted her. In such state of affairs in the evidence of P.W.9, we are unable to comprehend as to how the Trial Court has accepted the evidence of P.W.9 as reliable and that too in so far as the role of these accused persons in assaulting Dasmat (deceased) in causing fatal injuries on him when the role of other persons (acquitted) has not been accepted. P.W.7 is another witness, who has been examined from the side of the prosecution as to have seen the incident. She has stated as regards the beginning of the incident in a completely different way. Her evidence is that at the relevant time, Dasmat was raising hullah and hearing the same, the accused-Sukura came and an altercation ensued between them. She states that accused-Sukura went to his house, brought a lathi and called accused-Turu and thereafter accused Turu and Sukura assaulted Dasmat by lathi. Although it is her evidence that she was present in front of her house which is near the house of deceased- Dasmat, she has not stated regarding the happening of the incident in so JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 11 of 13 {{ 12 }} far as the assault upon the P.W.9 is concerned, which P.W.9 says to have happened first. The important part of her evidence as regards the role of accused Sukura and accused-Turu assaulting the deceased as to have seen by her was not in her statement before the police in course of investigation, the attention to such omission which in our view is material one having been drawn to this witness, that has been proved through the I.O. examined as P.W.20, who has stated as under:- “It is a fact that Basanti Hansdah (P.W.7) has not stated before me that accused Sukura brought out a lathi from his house and assaulted by it on Dasmat along with other accused Turu.” When such is the evidence of P.Ws.7 and 9, we also find the tendency of the prosecution in implicating other persons (who have been acquitted) in facing the trial. 12. For all the aforesaid discussion of evidence, we are of the view that the evidence of P.Ws. 9 and 7 are not safe to be relied upon in so far the complicity of these accused persons are concerned. 13. It be stated here that having gone through the evidence of P.Ws. 8, 13 and I.O., P.W.20, we too find that those do not successfully pass through the tests for the admissibility of that part of the statement of the accused Turu @ Arjun as to his disclosure regarding the place where he had kept that Budia (Axe) and his wearing apparels, which were JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018 Page 12 of 13 {{ 13 }} ultimately recovered. The view taken by the Trial Court in accepting such disclosure statement of accused Turu @ Arjun Naik is unsustainable in the eye of law. We also find that said evidence, even if accepted for a moment, do not come to the aid of the prosecution in establishing the charges against these accused persons when the evidence of P.Ws.9 and 7 have been held as unsafe to be relied upon. We are therefore, constrained to hold that the judgment of conviction and order of sentence impugned in this Appeal are unsustainable. 14.
Decision
In the result, the Appeals are allowed. The impugned judgment of conviction and order of sentence dated 12.07.2018 passed by the learned Additional Sessions Judge, Rairangpur in Sessions Trial No.30 of 2015 are hereby set aside. The two accused persons (Appellants) in JCRLA No.108 of 2018 and CRLA No.816 of 2018 be set at liberty forthwith, if their detention is not required in connection with any other case. Dr.S.K. Panigrahi,J. I agree. (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Narayan Designation: Personal Assistant Reason: Authentication Location: OHC Date: 19-May-2023 17:53:01 (Dr.S.K. Panigrahi), Judge. Page 13 of 13 JCRLA NO.108 of 2018 & CRLA NO.816 OF 2018