MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.117 of 2022 In the matter of an Appeal under section 383 of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 12.10.2022 passed by the learned Sessions Judge, Nuapada in S. T Case No.31 of 2021. Baibasuta Kharsel; …. Appellants Arakhita Kharsel -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. Sapan Kumar Pal Advocate (Amicus Curiae) For Respondent- Mr. S. K. Nayak Additional Government Advocate CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of Hearing: 07.05.2024 :: Date of Judgment: 01.07.2024 D.Dash, J. The Appellants, by filing this Appeal from inside the Jail, have challenged the judgment of conviction and order of sentence dated 12.10.2022, passed by the learned Sessions Judge, JCRLA No.117 of 2022 Page 1 of 19 Nuapada in S. T Case No.31 of 2021, arising out of C.T Case No.31 of 2021, corresponding to Sinapali P.S. Case No.31 of 2021 of the Court of the learned Judicial Magistrate First Class (JMFC), Sinapali. The Appellants (accused persons) thereunder has been convicted for committing the offence under section 302/341/323/34 of the Indian Penal Code, 1860 (in short, ‘the IPC’) and they have been sentenced to undergo imprisonment for life and fine of Rs.10,000/- each in default to undergo rigorous imprisonment for six months each for the offence under section 302 of the IPC; simple imprisonment for one month and fine of Rs.500/- each in default to undergo simple imprisonment for five days each for the offence under section 341 of the IPC and undergo rigorous imprisonment for one year and fine of Rs.1000/- each, in default to undergo rigorous imprisonment for one month each for the offence under section 323 of the IPC with the stipulation that the substantive sentences would run concurrently. 2. Prosecution Case:- On 16.01.2021, around 10 am, Nanda Kharsel, the husband of the Informant (P.W.1) had gone to the house of Basu Hans (P.W.14) situated at village Kirkita. After having stayed there for JCRLA No.117 of 2022 Page 2 of 19 few hours, Nanda had returned to his village Gambhariguda and having parked his vehicle had been to the village pond to take bath. It is stated that when after taking bath, he returned to his house, these accused persons with four others coming from behind jointly attacked him and they assaulted him on his head by means of sharp edged wooden thenga. The informant (P.W.1) when intervened to save her husband (deceased), these accused persons and also four others assaulted and chased her. The Informant (P.W.1) in order to save herself budged to a place and witnessed the incident helplessly. These accused persons were seen to have assaulted Nanda by means of thenga on his head which ultimately led to his death. The wife of the deceased Nanda (Informant- P.W.1) having lodged a written report with
Legal Reasoning
the IIC, Sinapali Police Station, the same was treated as FIR (Ext.1) and case being registered, investigation was taken up. 3. In course of investigation, the I.O (P.W.17) examined the Informant (P.W.1) and other witnesses and recorded their statements under section 161 of the Cr.P.C. He also visited the spot and prepared the spot map (Ext.11). He (P.W.17) requisitioned the service of the members of the scientific team DFSL, who had collected biological exhibits from the spot. The I.O (P.W.17) then held inquest over the dead body of the JCRLA No.117 of 2022 Page 3 of 19 deceased and prepared report (Ext.3). The dead body was sent for post mortem examination by issuing requisition. After the post mortem examination on production by the police constable, who had carried the dead body to the morgue, the wearing apparels of the deceased were seized under seizure list. On 17.01.2021 these accused persons were arrested. It is stated that pursuant to the statements of these accused persons, while in police custody they had led P.W.17 and other witnesses in giving recovery of the weapon (thenga). The seized incriminating articles were sent for chemical and serological examination through Court. The I.O (P.W.17) having received the orders of transfer handed over the charge of investigation to P.W.19, (I.O-P.W.17) who on completion of investigation submitted the Final Form placing these accused persons to face the trial for commission of the offence under section 341/323/302/34 of the IPC. 4. Learned JMFC, Sinapali, having received the Final Form as above, took cognizance of the offence under section 341/323/302/34 of the IPC and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against these accused persons framing the charge for the said offences. JCRLA No.117 of 2022 Page 4 of 19 5. In the Trial, prosecution in total has examined nineteen (19) witnesses when the defence has also examined three witnesses, who are D.W.1 to D.W.3. From the side of the prosecution several documents have been admitted in evidence and marked Ext.1 to Ext.21. Out of those, the important are the FIR, Ext.1, Inquest Report, Ext.3, statements of the accused persons, Ext.5 and 6 and Post Mortem Report, Ext.7 and the Chemical Examination Report is Ext.21. As already stated, P.W.1 is the informant, who happens to be the wife of the deceased and had lodged the FIR, Ext.1 and she is the injured eye witness. P.W.2, P.W.3, P.W.4, P.W.7 and P.W.16 have been examined as the eye witnesses. P.W.5 is an after occurrence witness and he is the father of the deceased and father-in-law of the Informant-P.W.1. P.W.8 and P.W.14 are the witnesses to the recovery of thenga and Kathaphalia whereas P.W.9 is the Doctor, who had conducted post mortem over the dead body of the deceased and as already stated P.W.17 and P.W.19 are the two I.Os. 6. The plea of the accused persons are that of complete denial and false implication. 7. Learned counsel for the Appellants (accused persons) submitted that the evidence adduced by the prosecution in JCRLA No.117 of 2022 Page 5 of 19 directly implicating these accused persons to be the author of the injuries sustained by the deceased including the injury, which has been proved to be fatal is not believable as said evidence come from highly interested witnesses, who had the axe to grind against these accused persons because of their rivalry. He further submitted that the FIR story when narrates the role of these two accused persons as also four others and that too having jointly attacked the deceased, during trial, P.W.1 has given a complete go-bye to the same and that also had been found by the I.O (P.W.17) and P.W.19) as they have not submitted the Final Form placing those four persons, who as per the FIR were the companions of these accused persons and had assaulted deceased and along with these accused persons had assaulted P.W.1 holding those weapons. He further submitted that the evidence of other so called eye witnesses are cryptic and since they have not stated as to how they could witness the incident, their evidence ought to have been held to be highly unreliable. He also submitted that these eye witnesses for the first time have introduced themselves as the eye witnesses as when they had not stated about the role of these accused persons during investigation, they have so developed in the trial. He further submitted that the narration of the incident and the role played by these accused persons therein as given by P.W.1 in her FIR has JCRLA No.117 of 2022 Page 6 of 19 been differently stated during trial which creates grave doubt in mind as regards the presence of P.W.1 in the place where the occurrence took place and merely because she had sustained some injuries that in view of the divergence in her statement as aforestated is liable to be rejected. He further submitted that the evidence as to recovery of the weapon etc. at the instance of the accused are unsafe to be relied upon and those also do not pass through the test under section 27 of the Evidence Act so as to be admissible. 8. Learned counsel for the Respondent-State submitted all in favour of the finding against the accused persons as has been returned by the Trial Court. According to him, the evidence of all the eye witnesses and most importantly, P.W.1 run at par with one another and there surfaces no such material discrepancies therein so as to doubt their version as regards these accused persons assaulting the deceased and P.W.1 by means of thenga. He submitted that merely because FIR narrates the role of four others with the role of these accused persons and as now P.W.1 has now not stated about anything against those four, the same is of no fatal consequence to discard the positive evidence of P.W.1 in toto; when there is no major discrepancy in her evidence as regards the overtact committed by these accused persons. He JCRLA No.117 of 2022 Page 7 of 19 submitted that the evidence of eye witnesses coupled with the evidence of recovery of weapon have been rightly taken by the Trial Court to be sufficient to base the conviction. 9. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.19 and have perused the documents admitted in evidence and marked Ext.1 to Ext.20/2. 10. The prosecution in order to bring home the charge against the accused has first of all proved the death of the deceased to be homicidal in nature which aspect was not under challenge before the Trial Court nor it has been so questioned before us in this Appeal. Be that as it may, we find the evidence of P.W.9, the Doctor, who had conducted Post Mortem Examination over the dead body that she had noticed one small wound of the size of 0.5 x 0.25 x 0.25 c.m on the right with nasal bleeding and heavy bleeding in the posterior side of the head. She has stated these injuries to be possible on account of heavy blows by weapons such as thenga which she had examined. According to her, the death was on account of intra cranial haemorrhage and its complications. The defence has not challenged said part of the JCRLA No.117 of 2022 Page 8 of 19 evidence of P.W.9. With the above evidence on record, when the evidence of the I.O (P.W.17) and other witnesses, who had seen the deceased with such injuries are taken together, we find no difficulty in recording the finding that Nanda Kharsel met a homicidal death. 11. Now coming to address the rival submission as regards the complicity of these accused persons in ascertaining the sustainability of finding of guilt of these accused persons as has been returned by the Trial Court, let us first have a look at the evidence of P.W.1. She has stated that on that relevant date and time, her husband after taking bath returned on his motorcycle and having kept the same on the way, came to the house on foot. She states that at the relevant time, she was going to fetch water from the tube well situated on the way to the pond and the accused Arakhita then assaulted her husband by means of a ‘Wooden Plank’ on the backside of her head resulting his fall and the other accused Baibasuta assaulted her husband repeatedly on different parts of his body by means of ‘Geda’ and at that time, when she intervened she was assaulted by accused Arakhita by the wooden plank on her back. So her evidence is that when she was going out of the house to fetch water, her husband was coming on foot after parking the motorcycle and there he was JCRLA No.117 of 2022 Page 9 of 19 assaulted by these two accused persons. Having implicated these accused persons as aforesaid, she admits to have implicated in total six (6) persons including these accused persons in the FIR as the assailants of her husband by means of wooden thenga, while further stating that the FIR was scribed under her instruction and she had given her nod to all those narrations in the FIR after being read over and explained. This P.W.1 admits to have stated before the I.O that all the six accused persons including these two accused persons had assaulted her husband by means of Kathaphalia. The I.O (P.W.17) has also stated to have recorded the version of P.W.1 and says that she had fully corroborated the FIR story. This P.W.1 does not state about any prior enmity of the accused persons on one hand and the deceased on the other. Her FIR version is very assertive as regards the assault upon her husband by these two accused persons as also four others. She has also stated in the FIR that when she wanted to intervene, she was assaulted and chased by all these persons numbering six (6). She had not stated before the I.O that her husband after taking bath returned on his motor cycle and kept the same on the way and came to their house by walk and by that time she was going to fetch water from the tube well on the way to the pond. The I.O (P.W.17) states as under:- JCRLA No.117 of 2022 Page 10 of 19 “it is a fact that P.W.1 has not stated before me that after taking his bath returned on his motor-cycle and kept the same on the way and came to our house by walk and that by that time he was going to fetch the water from the tube-well on the way to pond and that accused Arakhita assaulted her husband by means of one wooden plank (Katha Phalia) on the backside of his head and that as a result of such assault her husband immediately fell down on the ground and that accused Baibasuta Kharsel who was present there assaulted her husband repeatedly on the different parts of his body by means of ‘Geda’ and that when she intervened into the matter the accused Arakhita assaulted her by means of wooden plank on her back and sustained three swelling injury and that the accused persons were left the spot after killing her husband.” “it is a fact that P.W.1 has not stated before me that the accused Baibasuta Kharsel was protesting the supply of water through the ‘Gali Rasta’ in front of their house to which her husband told him saying “eta ta ama dadi purusa jaga pani jiba pain tu kahinki mana karuchu.” Thus, we find first the definite tendency with this P.W.1 in implicating innocent persons in a crime of murder and her evidence to be also bristling with contradictions. When she has implicated six (6) persons including these accused persons in indiscriminately assaulting her husband, the medical evidence falling from lips of the Doctor (P.W.9) belies her version in the FIR and that also to some extent belies her version in Court when P.W.9 states to have noticed only one injury. It is true that as against her version that she was assaulted and had sustained swellings, the Doctor (P.W.9) had seen her with those swellings JCRLA No.117 of 2022 Page 11 of 19 but she having sustained those injuries in the said incident stands doubtful if her versions in the FIR and during trial are placed side by side. All these being cumulatively viewed, makes the presence of P.W.1 at the relevant time doubtful. 12. P.W.2 when has stated that hearing hullah, he came out of the house, he saw Nanda lying on the ground and these accused persons were assaulting him for which Nanda sustained bleeding injuries, it is again found that he had not stated the same during his examination in course of investigation. The attention of this witness to the same being drawn although he has denied yet it has been proved through the I.O which reads as under:- “it is a fact that P.W.3 has not stated before me that on the alleged date and relevant time she was in her house and that hearing hulla she came outside from her house immediately and that she saw that Nanda Kharsel was lying on the ground and the accused Baibasuta Kharsel holding one ‘thenga’ and accused Arakhita Kharsel holding one wooden plank (katha phalia) were assaulting Nanda Kharsel and that as a result of such assault Nanda Kharsel was sustaining severe bleeding injury and that the dispute between accused and Nanda Kharsel was for supply of water.” The same state of affair we notice in the evidence of P.W.3, P.W.4, P.W.7 and P.W.16. It would be suffice to place the JCRLA No.117 of 2022 Page 12 of 19 evidence of the I.O (P.W.17) and the evidence of those witnesses side by side for proper appreciation. Prosecuti on Witness P.W.3 Prosecution Witness Statement I.O (P.W.17) Statement It is not a fact that I have not stated before police that on the alleged date and relevant time I was in my house and that hearing hulla I came from my house outside immediately and that I saw that Nanda Kharsel was lying on the ground and the accused Baibasuta Kharsel was lying on the ground and the accused Baibasuta Kharsel holding one ‘thenga’ Arakhita and Kharsel holding one wooden plank (katha phalia) were assaulting Nanda Kharsel and that as a result of such assault Nanda Kharsel was sustaining severe bleeding injury and that the dispute between accused and Nanda Kharsel was for supply of water. accused the It is a fact that P.W.3 has not stated before me that on the alleged date and relevant time she was in her house and that hearing hulla she came outside from her house immediately and that she saw that Nanda Kharsel was lying on the ground accused and Kharsel Baibasuta ‘thenga’ holding one and accused Arakhita Kharsel holding one wooden plank (katha were phalia) assaulting Nanda Kharsel and that as a result of such assault Nanda Kharsel was severe sustaining injury and bleeding that dispute between accused and Nanda Kharsel was for the JCRLA No.117 of 2022 Page 13 of 19 supply of water.” P.W.4 It is not a fact that I have not stated before police that on the alleged date and relevant time I was in front of my house and that at that time Nanda Kharsel was coming towards his house after taking bath and that I saw accused Arakhita Kharsel assaulted Nanda Kharsel by It is a fact that P.W.4 has not stated before me that on the alleged date and relevant time he was in his house hearing and came hullah he from outside his immediately house and that he saw that that JCRLA No.117 of 2022 Page 14 of 19 means of wooden plank (katha phalia) on back side of his head as a result he fell down on the ground and sustained severe bleeding injury from his head and that at that time accused Baibasuta Kharsel assaulted Nanda Kharsel by means of ‘thenga’ and that as a result the brain materials come out from the brain along with severe bleeding injury and that took the occurrence place due to throwing of dirty water. on phalia) It is not a fact that I have not that stated before police accused Arakhita Kharsel assaulted Nanda Kharsel by means of wooden plank (katha the backside of his head as a result Nanda fell down on the ground and that accused and Baibasuta assaulted Nanda by means of a ‘thenga’ on his head bleeding severe causing injury. came P.W.7 the Nanda Kharsel was lying on the ground accused and Baibasuta Kharsel holding one ‘thenga’ and accused Arakhita Kharsel holding one wooden plank (katha were phalia) Nanda assaulting Kharsel and that as a result of such assault Nanda Kharsel was sustaining severe injury and bleeding dispute that between accused and Nanda Kharsel was for supply of water. the that It is a fact that P.W.7 has not stated before accused me Arakhita Kharsel Nanda assaulted Kharsel by means of wooden plank (katha the phalia) backside of his head as a result Nanda fell down on the ground and accused Baibasuta came and assaulted Nanda by that on JCRLA No.117 of 2022 Page 15 of 19 P.W.16 It is not a fact I have not stated before police that accused Baibasuta Kharsel was holding a thenga and accused Arkhita Kharsel was holding a wooden plank and both assaulted repeatedly to the deceased Nanda Kharsel and as a result of such assault Nanda Kharsel was injury on his sustained backside of his head and back and when Hamanti the wife of the deceased came to rescue her to the husband accused the persons assaulted her and Hemanti fell down on the ground. spot head means of a ‘thenga’ on causing his severe bleeding injury. It is a fact P.W.16 has not stated before me theaccused that Baibasuta Kharsel was holding a thenga and Arkhita accused Kharsel was holding a wooden plank and assaulted both the repeatedly to Nanda deceased Kharsel and as a result of such assault Nanda Kharsel was sustained injury on his backside of his head and back and when Hamanti the wife the deceased came to the to rescue her spot husband the accused persons assaulted her fell and Hemanti down on the ground. of 13. On the above analysis of the evidence of all these witnesses who have been projected by the prosecution as the eye witness, grave doubt in mind arises for their introduction made JCRLA No.117 of 2022 Page 16 of 19 in the trial which also makes their presence at the place during the time highly doubtful. Therefore, we are not in a position to conclude that the evidence of all these witnesses are safe to be relied upon in ruling in favour of the complicity of these accused persons. Furthermore, when P.W.1 from the beginning had implicated six (6) persons including these two accused persons and has asserted during the trial to have so stated before the scribe of the FIR and that it had been rightly so mentioned in the FIR, there comes no explanation from the side of P.W.1 as to why she is now silent about the other four. So her tendency in another way can said to be to save some other offenders which makes her entire evidence as suspect and that apart other eye witnesses when are implicating these two accused persons, their version during investigation and trial stand as contradictory. The prosecution in the case has relied upon the evidence as to the recovery of the weapons at the instance of these accused persons. In fact when evidence of all the witnesses, who had been projected as the eye witnesses are found to be unreliable even if for a moment it is believed that these accused persons had given recovery of the weapons that itself would not independently be enough to fasten guilt upon them as the authors of the fatal injury JCRLA No.117 of 2022 Page 17 of 19 upon the deceased. Be that as it may coming to the witness (P.W.14) to the said recovery, we find his evidence to be not on the score that wherefrom these accused persons gave recovery of those bamboo lathi, wooden plank and yellow colour napkin. When he states that they all had been to the house of the accused, he does not state that wherefrom these accused persons produced those or which place they had indicated to be the place where those weapons and napkin had been kept. That apart, during cross-examination he has stated to have not even seen the accused persons being examined and he also states that the accused persons being not asked anything by the I.O (P.W.17), their statements had been recorded. That being the evidence of P.W.14, evidence of the I.O (P.W.17) on that score appears to be wholly unsatisfactory. He states to have seized the weapon of offence as per section 27 of the Evidence Act which makes no sense. He then straightway proves the confessional statements of the accused persons as Ext.5 and 6 already marked. He does not state a word as to where such statements had been recorded, in whose presence the statements were recorded and after recording such statements what happened and wherefrom those weapons were seized and how the recovery was made and as if these accused persons at all were associated in the process. JCRLA No.117 of 2022 Page 18 of 19 14. On a conspectus of discussion of evidence as hereinabove, we are thus of the view that the prosecution has failed to establish the charge against the accused persons beyond reasonable doubt. 15. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 12.10.2022 passed by the learned Sessions Judge, Nuapada in S. T Case No.31 of 2021 are hereby set aside. The Appellants (accused persons) being in custody, they be set at liberty forthwith, if their detention is not warranted in connection with any other case. V. Narasingh, J. I agree. Gitanjali (D. Dash), Judge (V. Narasingh), Judge Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 03-Jul-2024 16:36:28 JCRLA No.117 of 2022 Page 19 of 19