The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.576 of 2020 : (A) AND CRLA No.562 of 2020 : (B) In the matter of Appeals under section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 18th September, 2020 passed by the learned Additional Sessions Judge, Kamakshyanagar in C.T. (Ss) No.127 of 2017. ---- …. Appellants Hari Patra; and Chhotua @ Raghu Lohar (In CRLA No.576/2020) Ananda Patra; and Sudarsan Lohar (In CRLA No.562/2020) -versus- State of Odisha (In both the Appeals) …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.P.K.Mishra (In both CRLAs) For Respondent - Mr.S.K. Nayak (AGA) (In both CRLAs) CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 13.11.2023 : Date of Judgment : 04.12.2023 CRLA Nos.576 & 562 of 2020 Page 1 of 18 - 2 - D.Dash,J. The Appellants, in the above noted two Appeals, have faced the trial in the Court of the learned Additional Sessions Judge, Kamakshyanagar in C.T. (Ss) No.127 of 2017 arising out of G.R. Case No.162 of 2017 corresponding to Kankadahad P.S. Case No.32 of 2017 on the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Kamakhyanagar standing charged for commission of the offence under sections 450/376(D)/302/120-B of the Indian Penal Code, 1860 (for short, ‘the IPC’). The Trial Court has finally convicted all the Appellants (accused persons) for committing the offences for which they stood charged. Accordingly, each of them has been sentenced:- (i) to undergo imprisonment for life and pay fine of Rs.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the offence under section 302 of the IPC; (ii) rigorous imprisonment for three (3) years and pay fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for one (1) month for commission of the offence under section 450 of the IPC; (iii) rigorous imprisonment for life, which shall mean imprisonment for the remainder of their natural life and pay fine of Rs.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the offence under section 376(D) of the IPC; and (iv) rigorous imprisonment for three (3) years and pay fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for two (2) months for CRLA Nos.576 & 562 of 2020 Page 2 of 18 - 3 - commission of the offence under section 120-B of the IPC with the stipulation that the substantive sentences would run concurrently. The Appellants, namely, Hari Patra and Chhotua @ Raghu Lohar have filed the Appeal as at (A) whereas the Appellants, namely, Ananda Patra and Sudarsan Lohar have filed the Appeal as at (B) in challenging the aforesaid judgment of conviction and the order of sentence. In view of the above, both the Appeals were heard together for their disposal by this common judgment. 2. Prosecution Case:- On 13.06.2017 around 1.00 p.m., one Jugal Patra (Informant- P.W.1) presented a written report to the Inspector-in-Charge (IIC- P.W.17) of Kankadahad Police Station (P.S.) at the spot stating therein that he was working as a mason in Cuttack and his mother (deceased-victim) and younger brother, namely, Bhimsen Patra (P.W.2) used to reside in their house at Village-Balikuma. It was stated therein that on 13.06.2017 around 8.00 a.m, he (P.W.1) received information that in the night someone has committed the murder of his mother in their house. Getting the information, he immediately rushed to his village and saw his mother lying dead in his house with one wooden handle of Tawa and iron rod inserted into her vagina. On his asking, his younger brother (P.W.2), who was then eight years old, disclosed that on the previous night, he (P.W.2) was sleeping in the roof top of his CRLA Nos.576 & 562 of 2020 Page 3 of 18 - 4 - house and it was around 1.00 a.m, he heard shout from the room where his mother (deceased) was sleeping. He, getting down from the floor, noticed that accused Hari and Raghu had entered into their house and after tussle, the inserted wooden handle of the Tawa and iron rod into vagina of his mother causing her death. He further stated that out of fear, he immediately rushed to the house of the in-law’s of Jugal (Informant-P.W.1) and informed them about the matter. They, however, could not gather courage to come to the spot with Bhimsen (P.W.2) during then. On the next morning, they came to the spot and saw the mother of the Informant (P.W.1) lying dead in that condition, as stated above. The I.I.C. (P.W.17), around 10.45 a.m., had already received a telephonic information about the death of one female in Village- Balikuma and, therefore, having entered the said fact in the Station Diary Book maintained at the P.S., he proceeded to said village with other police personnels attached to the P.S. They arrived in the house of the victim and ascertained that the information received was correct. During that period, the I.I.C. (P.W.17) received the written report of Jugal (Informant-P.W.1) as
Legal Reasoning
afore-described. The I.I.C. (P.W.17) treated the said report as FIR (Ext.1) and upon registration of the case, he took up the investigation. CRLA Nos.576 & 562 of 2020 Page 4 of 18 - 5 - 3. In course of investigation, the Investigating Officer (I.O.- P.W.17) examined the Informant (P.W.1) and other witnesses including P.W.2 and prepared the spot map (Ext.26). He then held inquest over the dead body of the deceased and prepared the report to that effect (Ext.2) in presence of the witnesses. The incriminating articles such as, one chapal, one chadar lying near the dead body suspected to be those of the culprits were seized under seizure list (Ext.22/1). The dead body of the victim- deceased was sent for post mortem examination by issuing necessary requisition. The sample earth, blood stained earth with one oil bottle were seized under seizure list (Ext.21). The Scientific Officer, whose services had been requisitioned for the purpose, was examined at the spot. On 14.06.2017, the I.O. (P.W.17) also seized one iron axle of 15 cm. having circumference of 11 cm at one end, 8 cm in the middle and 4 cm in the other end as also one iron Tawa of the circumference of 63 cm having wooden handle of the length of 14 cm and circumference 12 cm, one reddish brown colour saree stained with blood, one black colour mali of the deceased, 4 nos. of silver chudi, command certificate dated 13.06.2017, vaginal swab of the deceased in a sealed cover, nail clippings of the deceased and pubic heir of the deceased were seized on production by the police constable under seizure list (Ext.7). CRLA Nos.576 & 562 of 2020 Page 5 of 18 - 6 - On 14.06.2017, all the accused persons were apprehended and forwarded in custody to Court on the next date, i.e., 15.06.2017. During interrogation, accused Hari stated that he would give recovery of the mobile handset without the SIM from the place where he had kept the same if he would be taken to that place. The statement of accused Hari was recorded by the I.O. (P.W.17) vide Ext.6. Pursuant to the said statement (Ext.6) of the accused Hari, they all proceeded to the place, which is the residence of the deceased. Accused Hari then brought out the mobile handset underneath the paddy bag stock lying on the verandah. The said mobile handset was seized under seizure list (Ext.5). The wearing apparels of all the accused persons were seized under separate seizure lists (Exts.8, 9, 10 & 11). The seized wearing apparels were then sent for chemical examination. The accused persons, after being arrested and before being forwarded in custody to court had been medically examined. On 03.07.2017, the I.O. (P.W.17) examined other witnesses and on 23.07.2017, on his prayer, statement of Sanjay Tantri was recorded by the Judicial Magistrate under section 164 of the Cr.P.C. A prayer being made for Test Identification (T.I.) parade, that was allowed. The hand written receipt of purchase of the second hand mobile phone was seized on production by said witness Sanjay Tantri under seizure list (Ext.16). On 11.10.2017, on completion of the investigation, the I.O. (P.W.17) submitted the Final Form placing CRLA Nos.576 & 562 of 2020 Page 6 of 18 - 7 - these four accused persons to face the Trial for commission of the aforesaid offences. 4. Learned S.D.J.M., Kamakhyanagar, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against these accused persons. 5. The prosecution, in support of its case, has examined in total seventeen (17) witnesses during Trial. As already stated, the informant who happens to be the son of the deceased is P.W.1. P.W.2 & P.W.3 are the brother and sister of P.W.1. P.Ws.4 & 5 are the mother-in-law and father-in-law of the informant. The Doctors, who have conducted the post mortem examination over the dead body of the deceased, have been examined as P.Ws.6 & 16. P.Ws.7 & 12 are the witnesses to the disclosure statement of accused Hari. P.Ws.8 & 10 are the police constables and the witnesses to the seizures. P.W.11 is the Doctor, who medically examined the accused persons whereas P.W.13 is the Scientific Officer and P.W.14 is a co-villager of the deceased. The I.O. of the case, at the end, has come to the witness box as P.W.17. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 34. CRLA Nos.576 & 562 of 2020 Page 7 of 18 - 8 - Out of those; important are the FIR (Ext.1); inquest report (Ext.2); the post mortem report (Ext.4) and the spot map (Ext.26). The Chemical Examiner’s report has been admitted in evidence and marked Ext.25. Statement of accused Hari has been admitted in evidence as Ext.6. 6. The accused persons, having taken the plea of complete denial and false implication, have examined two witnesses in support of their defence as D.Ws.1 & 2.
Legal Reasoning
7. Mr. P.K.Mishra, learned counsel for the Appellants (accused persons) submitted that the entire prosecution case against these four accused persons is based upon the solitary testimony of P.W.2, who happens to be minor son of the deceased. He further submitted that the evidence of P.W.2, on being carefully scrutinized, cannot be held as acceptable and the witness, when is not reliable, the conviction of the accused persons for the above noted offences cannot be sustained. He further submitted that the evidence of P.W.2 would reveal that accused Ananda and Sudarsan were not close to the deceased and this P.W.2 although says that he saw them standing at a distant place when he also does not attribute any sort of overt act to them nor he says that they were holding any weapon or other incriminating articles. Inviting our attention to his deposition, he also stated that said part of the evidence of P.W.2 to have seen CRLA Nos.576 & 562 of 2020 Page 8 of 18 - 9 - accused Ananda and Sudarsan standing at a distant place when accused Hari and Raghu were committing the offence upon the deceased, was not in his earlier statement during investigation, which has been proved through the I.O. (P.W.17) after drawing the attention of P.W.2 about such omission as according to him, said omission amounts to material contradiction and, therefore, in so far as the complicity of accused Ananda and Sudarsan is concerned, the Trial Court committed grave error in holding them guilty of commission of all said offences. He next submitted that the evidence of P.W.2 when do not receive corroboration on material particulars and his evidence being read in entirety since gives rise to a feeling in the mind that there was all the possibilities of his being tutored, the Trial Court ought not to have placed implicit reliance upon the same. He also submitted that when P.w.2 has stated that accused persons, namely, Hari Raghu caused penetrative sexual assault upon the deceased in several ways, the medical evidence coming from the lips of P.Ws.6 & 16 rather belie such evidence of P.W.2. He also submitted that the evidence of P.W.2 is full of improbabilities which also do not receive corroboration from the evidence of his own elder brother (P.W.1) and other witnesses as to the most important part played by the accused persons, namely, Hari and Raghu. In view of all these above, the judgment of conviction and CRLA Nos.576 & 562 of 2020 Page 9 of 18 - 10 - order of sentence, which are impugned in this Appeal, cannot be sustained. 8. Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt against the accused persons, as has been returned by the Trial Court, submitted that the evidence of P.W.2, if read in entirety, clearly leads to show that he is wholly reliable witness and he being the minor son of the deceased, has stated in a very natural manner as to all such happenings when his conduct has also remained above board. He also submitted that the evidence of P.W.2 receive full corroboration not only from the medical evidence falling from the lips of P.Ws.6 & 16, but also from the evidence of other witnesses including P.W.1 before whom he had narrated the incident, which had lodged P.W.1 to lodge the FIR (Ext.1), which finds mention of all such material aspects. He submitted that simply because P.W.2 had not stated in his evidence during investigation as to have seen accused Ananda and Sudarsan at a distance from her mother, who was then being ravished and injured by Hari and Raghu, the evidence of P.W.2 on that count is not to be eschewed from consideration. According to him, under the circumstance, P.W.2, being the minor son of the deceased, has seen the incident to have been taken place before him and more particularly the manner in CRLA Nos.576 & 562 of 2020 Page 10 of 18 - 11 - which it has been done such omission on the part of a minor boy of eight years old is quite natural and for that reason, it could not be taken as a material contradiction so as to impeach the credibility of P.W.2 in so far as the complicity of accused Ananda and Sudarsan is concerned. He, therefore, submitted that the judgment of conviction and the order of sentence impugned in this Appeal should receive the seal of confirmation. 9. 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.W.1 to P.W.17) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.34. 10. The written report presented by the elder son of the deceased-victim, which has been admitted in evidence and marked Ext.1 finds mention of the fact that when he (P.W.1) arrived at home, his younger brother (P.W.2) aged about eight years narrated before him the incident, which had happened in the previous night that when he (P.W.2) was sleeping on the roof top of the house, it was around 1.00 a.m., he heard the shout of his mother (victim-deceased) in the house and when he came down, he saw accused Hari and Raghu had already made the entry to their house and giving fist and kicks to his mother and thereafter, they inserted the wooden handle of a Tawa and iron CRLA Nos.576 & 562 of 2020 Page 11 of 18 - 12 - rod into the vagina of his mother. He says that seeing that, he (P.W.2) out of fear ran to inform the father-in-law and mother-in- law of his brother, i.e., (Informant-P.W.1), which is quite natural a conduct shown. P.W.1 although is not an eye witnesses to the occurrence, is a witness to the occurrence, who has come to learn about the incident from P.W.2, who is his younger brother and the age group between the two, being looked into, P.W.1 can be well said to be the fatherly brother of P.W.2. The FIR (Ext.1) has been lodged immediately when the I.O. (P.W.17) receiving the telephonic information and making entry of the said fact into Station Diary book maintained at the P.S arrived at the spot. In the FIR (Ext.1), accused persons Hari and Raghu had been implicated in the commission of the crime but nothing was so mentioned about the other accused Ananda and Sudarsan nor they even been ascribed with any remote role or presence in the vicinity for whatever reason it might have been. P.W.1, however, during his evidence, has stated that P.W.2 had disclosed before him that accused Hari and Raghu were found to be committing rape on their mother and thereafter, both inserted the wooden handle of Tawa and iron rod in her private part. It is his evidence that the house of accused Sudarsan adjoins their house and he has clearly stated that in the FIR (Ext.1). He had, however, had not so mentioned about the accused Hari and Raghu committing rape on his mother but later, it had been CRLA Nos.576 & 562 of 2020 Page 12 of 18 - 13 - mentioned that they were pushing his mother with force as was stated by his younger brother (P.W.2). The evidence of P.W.1 further reveals that his father-in-law’s place is at a distant of 200 meter from their house. Therefore, the version of P.W.2 as told to P.W.1 that being frightened, he ran to the house of father-in-law of P.W.1 is wholly acceptable but, then as regards the role of accused Ananda and Sudarsan, in the entire crime episode when is not indicated in the FIR (Ext.1) although Sudarsan is the adjoining neighbour of P.Ws.1 & 2 creates doubt in mind when P.W.2 at a later stage during trial has come to implicate them. Furthermore, P.W.1, in his evidence, has not stated anything about any role of accused Ananda and Sundarsan in commission of said crime nor even has stated that P.W.2 had told him that they were present in the nearby place when accused Hari and Raghu had entered into the house and were engaged in committing the crime. This was also not the version of witness (P.W.1) before the I.O. (P.W.17) that P.W.2 had told before him about the presence of Ananda and Sudarsan, who were standing near the Mahula tree situated by the side of their house nor that is version during trial. Coming to the evidence of P.W.2., who is a child witness then aged about eight years and attained thirteen years when deposed in Court, it is seen that he has said that during the night, he was sleeping in roof of the house and his mother (deceased- Page 13 of 18 CRLA Nos.576 & 562 of 2020 - 14 - victim) was in the kitchen room, which was a thatched one. His further evidence is that hearing hullah of his mother, he came out and found accused Ananda and Sudarsan were standing near a Mahula tree by the side of the house. He further states to have then saw accused Hari and Raghu committing rape on his mother in the torch light of the mobile phone. He has further stated that they inserted the wooden handle of the Tawa and an iron rod into the private part of his mother (deceased-victim). His evidence is also to the effect that being afraid of them, he went to the house of mother-in-law of his brother (Informant-P.W.1) and disclosed about the incident to them, who did not allow him to leave their house in the night and on the following morning, all came and saw his mother lying dead. He also states to have disclosed about the incident what he saw to his brother (P.W.1), who lodged the report (Ext.1). This P.W.2, being cross-examined, although has asserted to have stated before the I.O. (P.W.17) that he had seen the accused Ananda and Sudarsan near the Mahula tree by the side of their house; it has, however, proved been proved through the I.O. (P.W.17) that such was not the version of P.W.2 before him and finds place in the statement recorded in course of investigation. P.W.2 although now states about the presence of accused Ananda and Sudarsan, it was not in his previous version before the I.O. (P.W.17) and that is also not stated in positive term by P.W.1, who, hearing from P.W.2, has lodged the FIR (Ext.1) CRLA Nos.576 & 562 of 2020 Page 14 of 18 - 15 - wherein the narration of the incident also is not pointing any of these two accused persons, namely, Ananda and Sudarsan. But the evidence of P.W.2 with regard to the role of accused Hari and Raghu has not at all been shaken in any manner and we find absolutely no such doubtful features to have emerged from the evidence of P.Ws.1 & 2 as regards the said role played by the accused persons in so far as inserting the wooden handle of Tawa and iron rod into the vagina of the deceased-victim. The FIR (Ext.1) version of P.W.1 also provide support to the evidence of P.W.2. Both P.Ws.1 & 2 have seen the deceased being inserted with the wooden handle of tawa and iron rod into her vagina. That is also the statement of P.W.3, who is the sister of P.W.1 that when she arrived she saw the deceased-victim in that condition and P.W.2 disclosed before her about the said incident, which he had stated to P.W.1. Although P.W.3 and P.W.4 have stated that P.W.2 had told them about the presence of accused Ananda and Sudarsan near the Mahula tree as already discussed, there arises doubt on that score when the evidence of P.W.2 is analyzed side by side keeping the evidence of P.W.1. P.Ws.4 & 5, who are the mother-in-law and father-in-law of the deceased of P.W.1 have fully supported the version of P.W.2 in so far as the roles of accused Hari and Raghu are concerned and they have also seen the deceased lying dead with wooden handle of Tawa and iron rod being inserted her vagina. In view of CRLA Nos.576 & 562 of 2020 Page 15 of 18 - 16 - the discussion of the above evidence on record, we again find the evidence of the Doctor (P.W.6), who has stated to have seen the following external injury:- “Right lateral vaginal wall lacerated extending upto ilise bone of size 8” long and 4” depth, margins ragged with blood clot and presence of tissue reaction, pelvic injury leading to rupture of major pelvic vessel perforating lateral and posterior fornix of vagina of size 3” X 4” and another broad ligament contused with presence of tissue reaction, presence of lacerated wound over both sides of labia majora of size 4” X 3” X 2” of each, perineal tear of size 3” X 2” involving posterior vaginal wall, analcanel and analspinter.” As per his evidence, the cause of death was on account of hemorrhage due to rupture of pelvic vessels by blunt trauma. The evidence of the Doctor (P.W.6) thus provide corroboration to the evidence of the sole eye witness (P.W.2) and also the immediate post occurrence witnesses (P.Ws.1, 3, 4 & 5). The other Doctor, who had also held the autopsy examination over the dead body of the deceased-victim along with P.W.6, has been examined as P.W.16. He has stated in the same vein in further stating that the injury found on the vagina is sufficient to cause death and that such injury was possible by inserting the wooden handle of tawa and iron rod and those seized iron rod and wooden handle of the Tawa, being examined by him, he has stated about their user in causing the injury on the vagina in the affirmative. The evidence of P.W.7 as regards the Page 16 of 18 CRLA Nos.576 & 562 of 2020 - 17 - recovery of mobile phone at the instance of accused Hari is also stated by the I.O. (P.W.17) and that finds mention in the contemporaneous document, i.e., the seized list prepared admitted in evidence and marked Ext.6. On a conspectus of analysis of the evidence hereinabove, we find that the prosecution has not proved the charges against accused persons, namely, Ananda Patra and Sudarsan Lohar, but has proved the same against accused persons, namely, Hari Patra & Chhotua @ Raghu Lohar for committing the rape and murder of Jayamani Patra beyond reasonable doubt. We thus hold that the prosecution has well established the charges against accused Hari Patra & Chhotua @ Raghu Lohar 450/376(D)/302 of the IPC and accordingly, their conviction for said offences being confirmed; the sentences as has been imposed by the Trial Court for those offences are maintained. Since we have held that the prosecution has not established the charges against accused Ananda Patra and Sudarsan Lohar, they are acquitted of the said charges. 11. In the result, the judgment of conviction and order of sentence dated 18th September, 2020 passed by the learned Additional Sessions Judge, Kamakshyanagar in C.T. (Ss) No.127 of 2017 to the above extent as against accused Hari Patra and CRLA Nos.576 & 562 of 2020 Page 17 of 18 - 18 - Chhotua @ Raghu Lohar being confirmed, the Appeal as at (A)
Decision
stands accordingly disposed of. The Appeal as at (B) filed by accused Ananda Patra and Sudarsan Lohar hereby stands allowed. Since the Appellants of the Appeal as at (B), namely, Ananda Patra and Sudarsan Lohar are in custody, they be set at liberty forthwith, if their detention is not wanted in connection with any other case. G.Satapathy, J. I Agree. (D. Dash) Judge (G.Satapathy) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 07-Dec-2023 12:31:12 CRLA Nos.576 & 562 of 2020 Page 18 of 18