Orissa High Court
Sudam Dash & Another vs State Of Orissa on 26 August, 2019
Equivalent citations: AIRONLINE 2019 ORI 146, (2019) 203 ALLINDCAS 622
Author: A.K.Mishra
Bench: S.K.Mishra, A.K.Mishra
ORISSA HIGH COURT: CUTTACK
CRA NO. 168 OF 1999
(From the judgment and order dated 28.05.2005 passed by
Sri C.R. Kanungo, Additional Sessions Judge, Bhadrak in S.T. Case No.
54/122 of 1998)
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Sudam Dash & another. ......... Appellants
-Vs-
State of Orissa ......... Respondent
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For Appellants : M/s.D.P.Dhal, A.K.Acharya, D.K.Das,
D.K.Pattnaik and S.K.Tripathy.
Mr. Saroj Kumar Das
For Respondent : Mr.J.Katikia, Addl. Govt. Advocate.
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K.MISHRA
AND
THE HONOURABLE DR. JUSTICE A.K.MISHRA
Date of Hearing : 24.07.2019 : Date of Judgment: 26.08.2019
Dr. A.K.Mishra, J. In this appeal the appellants have challenged their
conviction under section 302 read with Section 34 of the Indian Penal Code
(hereinafter referred to as I.P.C. in brevity) and sentence to undergo
imprisonment for life in the judgment dated 28.05.1999 passed by learned
Additional Sessions Judge, Bhadrak in Sessions Trial No. 54/122 of 1998.
2. Prosecution case, in short, is that on 06.01.1997 at 6.00
P.M. at Chandabali Bazar, the informant was present in-front of a tea-cum-
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sweet stall with Hemanta Swain (P.W.6) and Balaram Das (P.W.7).
Informant‟s cousin brother Prafulla Nayak (deceased) was also present at a
distance. Present two appellants along with two others being armed with
swords and revolver, suddenly attacked the deceased taking advantage of
failure of electricity. Both the appellants dealt blows by means of sword. The
deceased ran and entered inside a shoe stall. The informant when tried to
intervene, he was threatened at the point of revolver. The public and shop-
keepers panicked and fled away out of fear. Police on being informed rushed
to the spot and in a vehicle shifted the injured- Prafull Nayak to Chandabali
hospital, where he was declared dead by doctor (P.W.8).
2.1 P.W.4-Saroj Kumar Mallick reported the matter orally before the
O.I.C. (P.W.11) and the same was reduced in to writing. The O.I.C. on return
to Police Station at 7.30 P.M. registered the F.I.R. vide Chandabali P.S. Case
No. 1, dated 06.01.1997. The investigation ensued. In course of
investigation the Investigating Officer (in short „I.O.‟) examined the
witnesses, conducted inquest and sent the dead body of the deceased to
Bhadrak District Headquarter Hospital. Dr. Prafulla Kumar Panda (P.W.9)
conducted autopsy vide Exhibit-4 on 07.01. 1997. The I.O. seized blood
stained articles and shoes from the spot which were sent to chemical
examination. Accused Sudam Das was arrested on 06.03.1997. On the
prayer of the I.O., the J.M.F.C., Bhadrak conducted T.I. Parade on
09.04.1997. Accused Laxman alias Dushasan Naik-appellant no.2 was
arrested on 23.11.1997, other two accused persons absconded. After
completion of investigation charge sheet was submitted and learned
S.D.J.M., Bhadrak took cognizance on 04.06.1997 of the offence under
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Section 302 read with 34 of the I.P.C. and found sufficient ground to
proceed against four accused persons including two absconders.
3. The case was committed to the Court of Session keeping split
up file against two absconders. The present two appellants faced trial for
offence under section 302 read with 34 of the I.P.C.
4. The plea of accused persons was denial simpliciter.
5. In course of trial, eleven witnesses were examined on behalf of
the prosecution whereas defence examined none. P.W.4 is the informant
and P.Ws. 6 and 7 are the occurrence witnesses. P.W.4 has neither named
the accused persons in the F.I.R. nor identified appellant Sudam Das in the
T.I. Parade or in the court.
5.1 P.W.9 is the doctor who conducted postmortem examination
vide Exhibit-4. He was not cross-examined. His evidence proves the
homicidal nature of death of the deceased. The uncle and brother of the
deceased are P.Ws. 1 and 2 respectively. They also proved inquest. P.Ws. 3
and 5 are the worker and owner of the sweet stall and shoes centre
respectively at the spot, but both of them stated to have not seen the actual
assault, as out of fear they fled away from the spot. The subsequent seizure
from the spot was proved by P.W.5. P.W.10 is the constable, who was the
custodian of the dead body at the hospital. P.W.8 is the doctor of
Chandabali CHC, who initially examined the injured and found him dead.
He was declared hostile. The defence proved certified copy of the order
sheets in G.R. Case No. 619 of 1992 of the court of learned S.D.J.M.,
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Bhadrak and photo copy of charge sheet in Chandabali P.S. Case No.31 of
1992 to show enmity of witnesses P.Ws. 6 and 7 with the accused persons.
6. Learned Additional Sessions Judge, Bhadrak, believed P.Ws. 6
and 7 eye-witnesses as credible and reliable. Basing upon the evidence of
the doctor P.W.9, he found that the death of deceased was homicidal in
nature inflicted by sharp cutting weapon like sword. The lacuna in the
investigation for not recovering the weapon of offence and for non-
examination of other witnesses was found inconsequential by the learned
Addl. Sessions Judge. Minor discrepancies were discarded. The accused
persons were found guilty and sentenced as stated above.
7. Learned counsel for the appellants would make the following
submissions.
(i) Eye witnesses P.Ws. 6 and7 being inimical with accused
persons, their testimonies should have been disbelieved.
(ii) The prosecution story is totally mysterious because the source
of light to identify the culprits is not established to connect the
appellants with murder.
(iii) The weapon of offence is not seized. The I.O. P.W.11 has not
personally recorded the statements of witnesses like P.Ws.6 and 7
under Section 161 of the Cr.P.C., which he had admitted to have done
through another.
(iv) The motive is not proved.
8. Learned Addl. Government Advocate Mr. J.Katikia supported
the conviction and sentence and contended that learned Addl. Sessions
Judge, Bhadrak has taken into consideration of all the aspects to accept the
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evidence of eye-witnesses P.Ws. 6 and 7. When the murder is committed in
a market area creating panic amongst the public including the shopkeepers,
the role played by the accused persons in specific cannot be expected to be
told particularly when doctor P.W.9 is not cross examined for the best
reason known to the defence. When the accused persons remained
absconded and only two of them were apprehended much after the
occurrence, the non-recovery of weapon of offence cannot be a ground to
discard the otherwise proved prosecution case. The informant P.W.4 in the
backdrop of inimical relationship and panic situation cannot be said to have
suppressed the truth by not disclosing the name of the accused persons in
the F.I.R., rather it shows that the F.I.R. was not the outcome of
consultation or fabrication. On last lema, the learned Addl. Government
Advocate submitted that two accused persons remained absconders for
which trial was split up and present appellant-Sudam Das also misused the
interim bail granted by this Court for which on coercive measure his
presence was procured. Such absconding conduct is proof of their guilty
mind.
9. There is no dispute that the deceased Prafulla Kumar Nayak
met homicidal death on 06.01.1997 at 6.00 P.M. after receiving multiple
incised wounds. Doctor (P.W.9), who conducted postmortem and is not
cross examined proves the same. Dr. Santosh Kumar Jena (P.W.8) of
Chandabali CHC, which is nearer to the spot, stated to have examined the
injured deceased soon after incident and found him dead. The spot was in
the market area. Admittedly, there was failure of electricity. P.Ws. 4 and 5
stated about the light of Dibir (lamp). P.W.7 eyewitness stated that
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generator light was available. P.Ws.6 and 7 have categorically stated that
prior to incident they had seen the accused persons with arms standing
near the deceased. In this context the evidence of P.Ws. 6 and 7 are
material. P.W.6 stated that he saw absconder accused Bain Rout going
towards the gate of the veterinary hospital holding a sword and turned
towards the shop of one Bhikari Sahu and Sudam by holding a sword was
standing on the back of Prafulla Nayak (deceased), while accused persons
Dhusa and Dasia were standing in front of Prafulla Nayak. P.W.7 also stated
in that way. The accused persons were known to the eyewitnesses. Prior to
the incident the witnesses saw the accused persons holding the weapons.
Both of them also saw Sudam and Dushasan, the present two appellants
giving sword blows repeatedly to the deceased, who rushed towards a shoe
stall situated at the opposite side of the road belonging to P.W.5. The
screaming sound of the deceased was also heard by the witnesses and
public and the public dispersed out of fear.
9.1 A person can identify the person with whom he had prior
acquaintance in the evening, when he was not panic stricken. This is
ordinary human ability of a normal person. So the identification of the
culprits by P.Ws.6 and 7 is not doubtful, so also their presence, because as
per the I.O. P.W.6 was examined on that night. The name of P.W.6 is also
found in the F.I.R. lodged by P.W.4. The accused persons belong to a
different village than informant. It is understood that P.W.4 being a relation
was panic stricken when he was threatened at the point revolver. P.Ws 6
and 7 were not only known to the deceased but also known to the accused
persons.
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10. The reaction of P.W.4 (informant), who happens to be the cousin
brother of the deceased was natural. He gets corroboration from the I.O.
P.W.11 and doctor P.W.8 that injured Prafulla Nayak was immediately taken
to Chanabali hospital in a jeep. The I.O. has stated to have come to the spot
immediately on getting telephone. We verified the case diary to ascertain
such fact. The F.I.R. was also received on the next day in the court as per
the endorsement of the learned S.D.J.M., Bhadrak. The omission of naming
the culprits to whom the informant had not identified during occurrence
cannot be considered as a suppression of facts. On that account P.Ws.6 and
7 are not to be branded as procured witnesses.
10.1 In the decision reported in (2019) 6 SCC 501, Shio Shankar
Dubey and Others Vrs. State of Bihar, their Lordships have also found
that mere fact that one witness had not seen accused fleeing away is not
conclusive nor on that basis any inference can be drawn that omitted
accused was not involved in the occurrence. Their Lordships have also
referred the principle regarding witnesses tainted with the enmity in para-
10(16), which is quoted below:-
"16. In Dalip Singh v. State of Punjab it has been
laid down as under: (AIR p.366, para 26)
"26. A witness is normally to be considered
independent unless he or she springs from sources which are
likely to be tainted and that usually means unless the witness
has cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily a close relative would be the
last to screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is personal
cause for enmity, that there is a tendency to drag in an
innocent person against whom a witness has a grudge along
with the guilty, but foundation must be laid for such a criticism
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and the mere fact of relationship far from being a foundation is
often a sure guarantee of truth. However, we are not attempting
any sweeping generalization. Each case must be judged on its
own facts. Our observations are only made to combat what is so
often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts."
10.2 In the case at hand, only because P.W.4 had omitted to name
the culprits and P.Ws 6 and 7 have close relationship with the deceased, it
cannot be said that P.Ws. 6 and 7 are unreliable witnesses. Their presence
is proved. Their versions are truthful and both of them are wholly reliable
witnesses.
11. P.W.7 has categorically admitted in the cross examination in
para-3 that he had prior acquaintance with the four accused persons. He
has also stated that accused persons were suspecting that P.W.6 and
deceased Prafulla Nayak got hands in the assault of Bhasia Mohanty and
prior to this incident Bhasia Mohanty was assaulted. P.W.3 has also stated
that he along with the deceased was involved in G.R. Case No. 619 of 1992
for assault, theft and kidnapping from the house of Nilima and Nilima
Mohanty was the brother‟s wife of Bhasia Mohanty. From the above
evidence it is clear that accused persons had inimical relationship to take
revenge against the deceased Prafulla Nayak. Learned trial court had
overlooked this aspect of evidence. In our considered opinion prosecution
has proved the above motive successfully.
12. It is fact that accused Sudam was arrested after two months of
the incident while accused Dusasan was arrested after ten months.
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Other two accused persons had also absconded. Much emphasis is laid by
learned Addl. Government Advocate on the absconding conduct of the
accused persons as proof of guilty. Citation of law in this regard may be
seen. In the decision of Sri Sujit Biswas Vrs. State of Assam, reported in
(2013) 12 SCC 406, the Hon‟ble Apex Court considered the same in the
following words:-
"19. The appellant‟s conduct in absconding was
also relied upon. Now, mere absconding by itself does not
necessarily lead to a firm conclusion of guilty mind. Even an
innocent man may feel panicky and try to evade arrest when
wrongly suspected of a grave crime such is the instinct of self-
preservation. The act of absconding is no doubt relevant piece of
evidence to be considered along with other evidence but its
value would always depend on the circumstances of each case.
Normally the courts are disinclined to attach much importance
to the act of absconding, treating it as a very small item in the
evidence for sustaining conviction. It can scarcely be held as a
determining link in completing the chain of circumstantial
evidence which must admit of no other reasonable hypothesis
than that of the guilt of the accused."
13. Learned counsel for appellants submitted that due to defective
investigation the appellants were prejudiced. On this score, it is stated that
the weapon of offence is not recovered and the statement of eyewitnesses
P.Ws 6 and 7, as admitted by I.O., has been recorded by a Constable
contrary to Section 161(3) Cr.P.C.
13.1 On first point, it may be seen that the accused persons had
absconded for more than three months. The recovery of the weapons could
not be given effect. The I.O. immediately approached the spot, shifted the
injured to the nearby hospital and registered the F.I.R. within one hour by
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reducing oral version of P.W.4. He has admitted in the cross examination
that he was hurry and it was continued, when a murder is committed in a
bazar at evening hour and the public got panicked, ignorable lapses by the
police officer are expected. When the eye-witnesses and doctor prove the
nature of injuries and culpability of accused persons, the non-recovery of
weapon cannot be a deciding factor to disbelieve the substratum of
prosecution case.
13.2 The defective investigation is always not fatal and would not
lead to total rejection of the prosecution case. In the decision reported in
(2006) 12 SCC 64, Rotash Vrs. State of Rajsthan, the Hon‟le Supreme
Court have observed as follows:-
"31. The investigation was not foolproof but then
defective investigation would not be lead to total rejection of the
prosecution case.
32. In Visveswaran v. State this Court held:
SCC pp. 78-79, para-12
"12. Before we notice the circumstances
proving the case against the appellant and establishing his
identity beyond reasonable doubt, it has to be borne in mind
that the approach required to be adopted by courts in such
cases has to be different. The case are required to be dealt with
utmost sensitivity, courts have to show greater responsibility
when trying an accused on charge of rape. In such cases, the
broader probabilities are required to be examined and the
courts are not to get swayed by minor contradictions or
insignificant discrepancies which are not of substantial
character. The evidence is required to be appreciated having
regard to the back ground of the entire case and not in
isolation. The ground realities are to be kept in view. It is also
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required to be kept in view that every defective investigation
need not necessarily result in the acquittal. In defective
investigation, the only requirement is of extra caution by courts
while evaluating evidence. It would not be just to acquit the
accused solely as a result of defective investigation. Any
deficiency or irregularity in investigation need not necessarily
lead to rejection of the case of prosecution when it is otherwise
proved."
13.3 On the second point concerning contravention of Sec. 161(3)
Cr.P.C., it is true that I.O. has admitted that he got the statement of P.Ws. 6
and 7 recorded under Section161 of the Cr.P.C. by one B.N. Mohanty,
literate constable of Chandabali P.S. But at the same breath he has stated
that said constable has only assisted him. There is no evidence that the
constable has recorded the statement of the witnesses independently
without the knowledge or in absence of I.O.
13.4 Though on the provisions of law then available, the Hon‟ble
Supreme Court on a different context akin to the contention raised observed
in a decision reported in AIR 1957 SC 623, Gurbachan Singh Vrs. State of
Punjab, that:
"xx xx xx. There is no special rule or direction
provided in the Code of Criminal Procedure affording guidance
for police officers in recording statements of witnesses and
usually what is done is that when a succeeding witness gives
practically an identical story as to what a previous witness has
stated, it is a matter of common knowledge that the words used
by the police officer would be similar or identical."
13.5 In view of the changed law presently governing field, the impact
of non-recording of statement personally by I.O., is required to be analyzed.
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After amendment Act 5 of 2009 and Act 13 of 2013, Section 161 Cr.P.C.
reads as follows:-
"161. Examination of witnesses by police-(1) Any
police officer making an investigation under this Chapter, or
any police officer not below such rank as the State Government
may, by general or special order, prescribe in this behalf, acting
on the requisition of such officer, may examine orally any
person supposed to be acquainted with the facts and
circumstances of the case.
(2) Such person shall be bound to answer truly all
questions relating to such case put to him by such officer, othr
than questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any
statement made to him in the course of an examination under
this section; and if he does so, he shall make a separate and
true record of the statement of each such person whose
statement he records:
(Provided that statement made under this sub-
section may also be recorded by audio-video electronic means)
(Provided further that the statement of a woman
against whom an offence under section 354, section 354-A,
section 354-B, section 354-C, section 354-D, section376,
section 376-A, section 376-B, section 376-C, section 376-D,
section 376-E or section 509 of the Indian Penal Code (45 of
1860)is alleged to have been committed or attempted shall be
recorded by a woman police officer or any woman officer)."
13.6 It is profitable to refer the relevant provisions under Sec. 172(1)
of the Cr.P.C. It reads:-
"Sec.172. Diary of proceedings in investigation-
(1) Every police officer making an investigation under this
Chapter shall day by day enter his proceedings in the
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investigation in a diary, setting forth the time at which the
information reached him, the time at which he began and
closed his investigation, the place or places visited by him, and
a statement of the circumstances ascertained through his
investigation.
((1-A) The statements of witnesses recorded during
the course of investigation under section 161 shall be inserted
in the case diary.
(1-B) The diary referred to in sub-section (1) shall
be a volume and duly paginated.)"
13.7 The above provisions under Sections 161 and 172 Cr.P.C.
clearly postulate that the recording of separate and true record of the
statement of each such witness can be done by the assistance of others but
the same must confirm the requirement of Section 172(1-A) and (1-B) of the
Cr.P.C. If that is so, the accused must show prejudice affecting his right to
fair trial when Investigating Officer is found to have taken assistance of
another to get the statement recorded under section 161(3) of the Cr.P.C. In
our considered view, when the Investigating Officer got the statement of a
person recorded under section 161(3) of the Cr.P.C. through assistance of
another, it is an irregularity and does not affect either the credibility of the
witness or right to fair trial of the accused. Failure to comply with Section
161(3) of the Cr.P.C. is an irregularity. And unless there is a prejudice
shown, the infringement does not vitiate trial.
14. In the wake of above analysis, the points urged on behalf of the
appellants are found no merit. On independent analysis, of the evidence on
record, it is found that prosecution has proved motive. Appreciation of the
evidence by the learned trial court is in the right perspective Learned
Additional Sessions Judge has not committed any error in recording
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conviction and sentence. We find no reason to interfere therein in the
impugned judgment.
15. Appeal stands dismissed.
16. Return the L.C.R. immediately to the lower court.
...........................
Dr. A.K.Mishra, J.
S.K.Mishra, J. I agree.
........................... S.K.Mishra, J.
Orissa High Court, Cuttack Dated the, 26th August,2019/Dhal.