Orissa High Court
Criminal Procedure vs State Of Odisha on 15 April, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.510 of 2006
In the matter of an Appeal under section 383 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction
and the order of sentence dated 20th October, 2006 passed by the
learned Sessions Judge, Keonjhar in Sessions Trial Case No.44 of
2006.
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Biswanath Khatua .... Appellant
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr.S. K. Dash
(Advocate)
For Respondent - Mr.T. K. Praharaj,
Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing : 14.03.2024 : Date of Judgment : 15.04.2024
D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 20th October, 2006 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.44 of 2006 arising out of G.R. Case No.463 of 2005 corresponding to Soso P.S. Case Page 1 of 9 CRLA No.510 of 2006 No.61 of 2005 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Anandapur.
The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, he has been sentenced to undergo imprisonment for life.
2. Prosecution Case:-
On 03.10.2005, a football match was going on at Dhenka Chhak. Kani Tiria along with many others were witnessing that match. While Kani was returning, on the way, the accused promised to leave her at her house. Accordingly, she took her on his bicycle. But, thereafter Kani did not return. On the next day, the dead body of Kani was found floating in the dam. The incident, being brought to the notice of the Officer-in-Charge (O.I.C.) of Soso Police Station, an unnatural death (U.D.) case was registered. During enquiry of that U.D. case, it came to the light that this accused (Biswanath) and Kani (deceased) were seen in the dam site and that accused had pushed the deceased to the dam. That, being reported to the Officer-in-Charge (O.I.C), Soso Police Station by one Fakir Munda (P.W.3), the O.I.C. (P.W.6) treated the same as FIR (Ext.1) and upon registration of regular case, he took up the investigation.
Page 2 of 9 CRLA No.510 of 2006
3. In course of investigation, the Investigating Officer (I.O.- P.W.6) examined the Informant (P.W.3) and recorded his statement under section 161 of the Cr.P.C. The I.O. (P.W.13), having visited the spot, prepared the spot map (Ext.8) and held the inquest over the dead body of the deceased and prepared the report to that effect (Ext.2). The dead body was sent for post mortem examination by issuing necessary requisition. The wearing apparels of the deceased were seized by the I.O. (P.W.6). under seizure list (Ext.6/3). The I.O. (P.W.6) then sent the viscera for chemical examination. The C.I. of Police took charge of the investigation from P.W.5, who submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC.
4. Learned S.D.J.M., Anandapur, on receipt of the Final Form, took cognizance of said 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 this accused.
5. The prosecution, in support of its case, has examined in total six (6) witnesses during Trial. Out of whom, the informant is P.W.3. P.W.1 was coming with the deceased after witnessing the football match. P.W.2 is an eye witness as projected by the prosecution. The Doctor, who had conducted the autopsy over Page 3 of 9 CRLA No.510 of 2006 the dead body of the deceased, is P.W.5. The O.I.C. of Soso P.S. has been examined as P.W.6.
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 8. Out of those; important are the FIR (Ext.1); the spot map (Ext.8); the inquest report (Ext.2) and the post mortem examination report (Ext.3).
6. The accused, having taken the plea of complete denial and false implication, has, however, examined one witness as D.W.1 in support of such plea.
7. Mr. S.K. Dash, learned counsel for the Appellant (accused) submitted that the accused and the deceased when are stated to have been seen on 03.10.2005, the FIR (Ext.1), implicating the accused, has been lodged only on 07.10.2005 and there is absolutely no explanation as to why during all these period, nothing came to surface about the involvement of the accused, who then came to be arrested only on 09.10.2005. He further submitted that the evidence of P.W.1 that she had last seen the accused and the deceased is quite vague and uncertain and, therefore, not at all acceptable. He further submitted that when P.W.2, being projected the prosecution as an eye witness, during trial his evidence when properly scrutinized, do not stand the test Page 4 of 9 CRLA No.510 of 2006 of reliability and as such ex-facie not acceptable. He further submitted that the Trial Court, having not properly scrutinized the evidence of P.W.2, has committed grave error in placing reliance upon his evidence. With such evidence on record, the Doctor (P.W.5) conducting the post mortem examination over the dead body of the deceased, having deposed that the death was on account of drowning in a drunken state, on being accepted, cannot be taken as sufficient to hold that the prosecution has proved the charge against the accused beyond reasonable doubt. He, therefore, urged that the judgment of conviction and order of sentence, which are impugned in this Appaeal, cannot be sustained.
8. Mr.T.K. Praharaj, Learned Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused, as has been recorded by the Trial Court, submitted that the evidence of P.Ws.1 coupled with the evidence of P.W.3, when taken together with the evidence of the Doctor (P.W.5), who has stated about the cause of death, has been rightly held by the Trial Court that complicity of the accused has been established beyond reasonable doubt.
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 Page 5 of 9 CRLA No.510 of 2006 (P.W.1 to P.W.6) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.8.
10. Admittedly, the dead body of the deceased, having been recovered on 04.10.2005 when it was floating in the dam, the information implicating the present accused has been lodged on 07.10.2005. The information had been lodged by one Fakira Mund (P.W.3), who has stated to have heard that the accused had taken Kani on a bicycle towards the dam, which he states to have reported the police in the FIR (Ext.1) that he has lodged the same on 07.10.2005.
P.W.4 is the husband of the deceased. His evidence is to the effect that his wife (deceased) had been to the Dhenka Chhak to witness the football match. He states that the same was three days prior to the recovery of the dead body. His further evidence is that while searching for Kani, he came to know that the accused had taken her in a cycle, but he does not state as to wherefrom or from which source, he came to know about that fact. He next states that when he questioned the accused, he told him that he left Kani (deceased) at the Village Danda. He has, however, not stated that on which date or after how many days of missing of Kani (deceased), he had questioned the accused. He also does not state as to where he met the accused and got the said information from him. His further evidence is that even on 04.10.2005, he did Page 6 of 9 CRLA No.510 of 2006 not know about the death of his wife Kani. He again states that on 03.10.2005, he came to know that the accused had taken his wife on a cycle and it was from Menja Munda, who has been examined as P.W.1.
Said P.W.1, however, has not stated to have ever told this fact to P.W.4 that the accused had taken Kani on his cycle. P.W.1 although has stated that the accused took Kani on bicycle from near the playground assuring her to leave in her house, she during cross-examination, has stated to have not known when the accused took Kani (deceased). She states that a person of Bandhamatia told her about the death of Kani and that was eight days after, she had seen Kani with the accused. She admits to have not stated before the I.O. (P.W.6) that the accused had asked Kani to accompany him.
P.W.2 has been examined by the prosecution as an eye witness to the actual occurrence. He states to have seen Kani (deceased) on the ridge of the dam. He further states that the accused pulled Kani and she fell in the dam. It is his evidence that then he was tending the goats and out of fear, he went away. But then again he goes to say that the accused came to him and asked him not to disclose it by promising to give liquor worth Rs.200/-. Here he does not state as to where the accused met him and asked him not to disclose the incident by promising him to Page 7 of 9 CRLA No.510 of 2006 provide liquor worth Rs.200/-. He further states that he had seen the accused pushing the deceased to the water. His very next sentence is more interesting and impeaches his credibility when he says that he had not seen whether the deceased fell on the ground or in the water. Having said so, he says to have gone from the place out of fear. He, however, again goes to say that half an hour after the incident, the accused approached him on the way and he took him to the liquor shop and gave liquor. Then his evidence is that although he was examined by the police on the next day, he had not disclosed the fact to any other villager nor even to the family members of Kani (deceased).
The above, being the evidence of P.W.2, coupled with the conduct of this witness (P.W.2), we are not in a position to conclude that his evidence of sterling quality and rather doubtable so as to be relied upon.
13. On a careful conspectus of the evidence on record as per the discussions made hereinabove, this Court is unable to hold that the prosecution has proved the appellant beyond reasonable doubt. Therefore, with the available evidence, we are of the view that the prosecution has failed to establish the charge against the accused beyond reasonable doubt.
14. In the result, the Appeal is allowed. The judgment of conviction and the order of sentence dated 20th October, 2006 Page 8 of 9 CRLA No.510 of 2006 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.44 of 2006, are hereby set aside.
Since the Appellant, namely, Biswanath Khatua is on bail, his bail bonds shall stand discharged.
(D. Dash) Judge V. Narasingh, J. I Agree.
(V. Narasingh) 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: 16-Apr-2024 14:39:41 Page 9 of 9 CRLA No.510 of 2006