The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.614 of 2021 In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 23rd March, 2021 passed by the learned Additional Sessions Judge, Rairangpur, in S.T. No.15 of 2018. ---- Arjun @ Anda Majhi @ Marndi …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Santanu Kumar Sarangi (Senior Advocate) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 09.05.2023 : Date of Judgment:19.05.2023 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and the order of sentence 23rd March, 2021 passed by the learned Additional Sessions Judge, Rairangpur, in S.T. No.15 of 2018 arising out of G.R. Case No.464 of 2017 (T.C. No.109(A)/2018) corresponding to Rairangpur Rural P.S. Case No.69 of 2017 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Rairangpur. CRLA No.614 of 2021 Page 1 of 11 {{ 2 }} The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for six (6) months for the offence under section 302 IPC. 2. Prosecution Case:- On 03.12.2017 around 9.00 a.m., Masang Majhi, son of Pirthi Majhi went to his place of service at Rairangpur. The mother of Masang, namely, Dhanka Majhi (P.W.9) and the wife of Msasang, namely, Dukhini Majhi (P.W.16) then went to their paddy field. At that time, Pirthi Majhi (deceased) was in the house. Around 5.15 p.m. on that day, Dukhini (P.W.16) informed Masang (P.W.13) over telephone that her father-in-law Pirthi (deceased) was lying in the cultivable land of one Bahadur Majhi with bleeding injury on his head and ear. Dukhini (P.W.16) then called the villagers, namely, Ranjan Majhi, Kasinath Mahali, who carried her father-in-law (deceased) to their house from that paddy field. Masang son of Pirthi (P.W.13) then arrived there and he, with the help of others, took the deceased to Rairangpur Hospital. Condition of Pirthi being serious and he was not able to talk. Masang (P.W.13) having asked Pirthi (deceased) as to who assaulted him, he could not speak anything. On 14.12.2017 around 1.30 a.m. in the night, Pirthi died in the Hospital. Masang (P.W.13), the son of Pirthi (deceased), then having suspected the accused to have intentionally caused the death of his father (Pirthi) as he was having prior enmity, lodged a written report with the Officer-in-Charge (O.I.C) of the Rairangpur Rural Police CRLA No.614 of 2021 Page 2 of 11 {{ 3 }} Station. The O.I.C, then treated the same as F.I.R. (Extg.6), registered the case and took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.) examined Masang, (Informant-P.W.13) and recorded his statement and those of other witnesses under section 161 of the Code of Criminal Procedure, 1973. He visited the spot and prepared the spot map (Ext.11) and held inquest over the dead body of the deceased and prepared the report (Ext.3). He seized the blood stained earth and sample earth from the spot and sent the dead body of the deceased by issuing requisition for post mortem examination. The accused, being arrested, said to have confessed his guilt while in police custody. It is further stated that the accused, pursuant to his statement while in police custody, led the police and others to the place where he had kept the stone and gave recovery of the same, which was seized by the I.O. (P.W.19) in presence of the witnesses under seizure list (Ext.8). The incriminating articles seized in course of investigation were sent for chemical examination. Receiving the order of transfer, the I.O. (P.W.19) handed over the charge of the investigation to his successor-in-office i.e., P.W.18, who, on completion of the investigation, submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Rairangpur, on receipt of the Final Form, took cognizance of the offence 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 the accused. 5. The prosecution, in support of its case, has examined in total nineteen (19) witnesses during trial. Out of the above, the son of the Page 3 of 11 CRLA No.614 of 2021 {{ 4 }}
Facts
deceased, who happens to be the informant and had lodged the FIR (Ext.6) is P.W.13. The daughter-in-law of the deceased, who is the wife of the informant (P.W.13) when has been examined as P.W.16, the mother of the informant, who happens to the wife of the deceased is P.W.9. The sister and brother-in-law of P.W.13 have come to the witness box as P.Ws.16 & 11 respectively. P.W.17 has been examined in support of the recovery of the stone, which is said to have been made pursuant to the statement of the accused. The Doctor, who had conducted the autopsy over the dead body of the deceased has been examined as P.W.12 when P.W.19 is the I.O., who had conducted major part of the Investigaiton and P.W.18 is the subsequent I.O., who took the charge of the investigation from P.W.19 at the fag end and submitted the Final Form. 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 12. Out of those, important are the FIR (Ext.6) and the inquest report (Ext.3). The post mortem report has been proved by the Doctor as Ext.4. The statement of the accused, which is said to have been made before the police while leading the police and others to the place of keeping of that stone in finally giving recovery of the same has been admitted in evidence and marked Ext.10. The spot map prepared by the I.O. (P.W.19) has been admitted in evidence as Ext.11. The report of the Chemical Examiner given after examination of the incriminating articles sent to him through Court, has come into evidence as Ext.12. 6. The plea of the accused is that of complete denial. In support of the same, he examined two witnesses as D.Ws.1 and 2. CRLA No.614 of 2021 Page 4 of 11 {{ 5 }} 7. The Trial Court, upon examination of the evidence of the Doctor (P.W.12) and his report (Ext.4) as well as the specific opinion given by him vide Ext.4 and the evidence of other witness including P.W.19. who had held inquest over the dead body of the deceased and noticed injuries on his person, which have been so noted by the Doctor (P.W.12) in his report (Ext.4) and who has further described those during his evidence; has come to the conclusion that Pirthi (deceased) met a homicidal death. In fact, this aspect of the case was not under challenge before the Trial court and that is also the situation before us. The Doctor (P.W.12), conducting the post mortem examination over the dead body of the deceased, has found three lacerated injuries near the canthus of the left eye, left cheek and near the tragus of the left ear. He too had noted that the left side of the face of the deceased had been swollen and blackened. On dissection, he found linear fracture of left side of the frontal bone of size of 2” length and beneath the frontal bone, there was contusion of frontal lobe of left side cerebral hemisphere of size 1” X 1”. As per his evidence, the death was on account of such injuries on head and the time since the death was 12-24 hours of his examination. In the report, all such details have been reflected by P.W.12. The injuries, as per his evidence, are ante mortem in nature and his conclusive opinion is that the death was homicidal. With such overwhelming evidence on record as to the nature of death of the deceased and in absence of any challenge to the same when also no evidence to counter has been led from the side of the defence, we are of the firm view that the death of the deceased was homicidal. 8.
Legal Reasoning
Thus, with such evidence on record, we find that the prosecution has failed to prove the fact that the deceased and the accused were in enimical terms for quite a long length of time prior to the death of the deceased, which got aggravated in course of time so as to provide the motive behind the crime. 14. The other important circumstance placed by the prosecution is that the accused, being arrested, while in police custody, had confessed to have committed the crime. The statement of the accused, having been recorded by P.W.19, it has been admitted in evidence and marked Ext.10/1. The statement of the accused recorded therein with regard to his complicity in causing the death of the deceased is wholly inadmissible in view of the provisions contained in section 25 of the Evidence Act. Next coming to the recovery of the stone, which is said to have been made at the instance of the accused by taking the police and others to the place where he had kept, we even find the evidence of the I.O (P.W.19) to be wholly insufficient to satisfy the tests laid down under section 27 of the Evidence Act for the admissibility of that part of disclosure and recovery. He has simply stated that the accused led the police for recovery of the stone in presence of the witnesses. It is not his evidence as to where the accused gave the statement, whether it was recorded instantly and wherefrom the journey started and to which place, i.e., where the journey ended being the destination, the place of the recovery of the stone. He is not stating even as to who were present with him at the relevant time. The stone (M.O.I) is commonly available and there is no further evidence to independently connect with the incident so as to infer its user. Thus, we find that the prosecution has also not been able to prove the fact that the accused, while in police Page 10 of 11 CRLA No.614 of 2021 {{ 11 }} station, having disclosed to have kept the stone in a place known to him, had led P.W.19 and other witnesses to that place, which was not accessible to others and was within his special knowledge and that having been recovered, was seized. Also there appears no evidence except that statement of the accused, which is inadmissible evidence to connect the stone in any way with the commission of the crime. With all these evidence, as above discussed, we are of the view that the prosecution has failed to establish the complicity of the accused through circumstantial evidence. The Trial Court, in our view, has fallen in grave error in holding the accused guilty of murder of the deceased. Therefore, the judgment of conviction and the order of sentence are liable to be set aside. 15.
Arguments
Learned Senior Counsel for the Appellant submitted that here the prosecution has tendered no direct evidence in establishing the complicity of the accused as the author of such injuries found on the Page 5 of 11 CRLA No.614 of 2021 {{ 6 }} body of the deceased, which have led to his death. He further submitted that the prosecution, when relies upon the circumstantial evidence to establish the guilt of this accused, the circumstances are motive and recovery of a piece of stone said to have been made at the instance of the accused, which according to him, are too fragile and those also in view of the evidence on record, do not unerringly point the guilt of the accused. He also submitted that even if for a moment, it is accepted that the circumstances such as motive and the factum of recovery of the stone, which is said to have been used for causing the injuries upon the deceased have been proved, yet those taken together, do not complete the chain of events in ruling out all the hypothesis other than the guilt of the accused. He, therefore, submitted that the Trial court has gone wrong in convicting the accused for having committed the murder of Pirthi (deceased). 9. Learned Additional Government Advocate submitted all in favour of the finding returned by the Trial court. While admitting the position that no direct evidence has been let in during Trial in order to establish the complicity of the accused, he, however, submitted that the circumstances such as motive, recovery of the stone at the instance of the accused and the medical evidence that the fatal injury can be caused by that stone complete the chain of events by ruling out all the hypothesis except that of the guilt of the accused. 10. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 19) and have perused the documents admitted in evidence and marked as Exts.1 to 12. CRLA No.614 of 2021 Page 6 of 11 {{ 7 }} 11. Before proceeding further to examine the evidence on record and have our say over the sustainability of the finding of guilt, as has been fixed upon the accused, by the Trial Court, it would be proper to take note of the settled principles of law governing the field in appreciation of circumstantial evidence. In case of Sharad Birdhichand Sarda -V- State of Maharashtra; (1984) 4 SCC 116, the five principles, which constitute the Panchsheel of a proof of a case based on circumstantial evidence have been summarized. It has been said at Paragrapha-153 of said judgment:- “1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Another -V- State of Maharashtra where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. 2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty. 3) The circumstances should be of a conclusive nature and tendency.; 4) They should exclude every possible hypothesis except the one to be proved; and 5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion CRLA No.614 of 2021 Page 7 of 11 {{ 8 }} consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” Thus, in view of the above, the Court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. 12. Having held the death of the deceased to be homicidal in nature, the next circumstance projected by the prosecution here is the motive. P.W.13 is the informant, who happens to be the son of the deceased. The son of the deceased, in his F.I.R. (Ext.6), has raised the suspicion that in view of the previous enmity between his father (deceased) and the accused, the role of the accused in the death of his father is suspected. However, in the FIR, no such details with regard to the reasons for the enmity have been indicated nor any prior instance/s has/have been cited. P.W.3, is a co-villager who has simply stated that some days prior to the death of the deceased, he had disclosed before him that he had a dispute with the accused. He too is, however, silent as to what for the dispute had arisen and whether the dispute was still continuing with the accused remaining in a mood to take revenge upon the deceased, which he had marked from some of his conduct before the incident or even that the CRLA No.614 of 2021 Page 8 of 11 {{ 9 }} deceased was so apprehending and expressed before this P.W.3 at any point of time prior to his death. P.W.16, the elder brother of informant (P.W.13) has simply stated that three years prior to the death of his father, he had a dispute with the accused but it was not relating to any landed properties. He, being the son of the deceased is not stating that what was actually the subject matter of that dispute, which had arisen three years before the death. The distance of time then is also quite significant and as no such untoward incident is said to have happened since then, it cannot be inferred that the ill-feeling for that was actually continuing and degree of the animosity was quite high. He does not whisper a word that the relationship between the accused and the deceased was enmical and that the accused was bearing grudge all along since then. 13. P.W.11, who is the daughter-in-law of the deceased is silent on that score. The informant (P.W.13), who is the son of the deceased, although had raised his suspicion with regard to the involvement of the accused in causing the death of the deceased father, during his evidence, has not stated anything even about that. He rather during examination has stated to have no remembrance in which year the dispute had arisen and there was the quarrel between his father although he states that it was during one Kali Puja. His simple version is that his father was not in talking terms with the accused, which itself is not enough to infer the motive. His evidence then is very affirmative that they had never quarreled with each other. The co-villagers (P.Ws.14 & 15) have also not stated anything and that has also been the evidence of P.W.16, who is the wife of P.W.13 and daughter-in-law of Pirthi (deceased). P.W.17 is stating nothing about the same. CRLA No.614 of 2021 Page 9 of 11 {{ 10 }}
Decision
In the result, the Appeal is allowed. The judgment of conviction and the order of sentence dated 23rd March, 2021 passed by the learned Additional Sessions Judge, Rairangpur, in S.T. No.15 of 2018 are hereby set aside. The accused, namely, Arjun @ Anda Majhi @ Marndi be set at liberty forthwith, if his detention is not wanted in any other case. Dr.S.K. Panigrahi, J. I Agree. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 19-May-2023 15:35:33 CRLA No.614 of 2021 (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Page 11 of 11