Orissa High Court
Dayanidhi Digal vs State Of Odisha on 28 August, 2023
Bench: D.Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.248 of 2017
In the matter of an Appeal under Section 374 (2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 1st March, 2017 passed by the learned
Sessions Judge, Kandhamal, Camp at Baliguda, in Sessions Trial
No.193 of 2011.
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Dayanidhi Digal .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr. Debi Prasad Dhal,
Senior Advocate
Mr.K.Mohanty,
Advocates
For Respondent - Mr.S.K. Nayak,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 24.08.2023 : Date of Judgment:28.08.2023
D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 1st March, 2017 passed by the learned Sessions Judge, Kandhamal, Camp at Baliguda, in Sessions Trial No.193 of 2011 arising out of G.R. Case Page 1 of 13 CRLA No.248 of 2017 {{ 2 }} No.147 of 2011 corresponding to Balliguda P.S. Case No.50 of 2011 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Balliguda.
The Appellant (accused) thereunder has been convicted for committing the offences under section 302/323 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, he has been sentenced to undergo imprisonment for life for the offence under section 302 IPC; and rigorous imprisonment for rigorous imprisonment for a period of six (6) months for commission of the offence under section 323 of the IPC with a direction that the substantive sentences would run concurrently.
2. PROSECUTION CASE:-
On 04.06.2011 around 11.00 a.m, Jagadeswar Pradhani had been to the mango tope on the outskirts of their Village- Mahasingi and without paying the price for the said consumed liquor had consumed liquor worth of Rs.10/- from this accused, namely, Dayanidhi and returned home. So, accused Dayanidhi with others, namely, Kaina @ Jayadev Digal, Gopi @ Gopinath Digal, Jamini @ Bhumita Digal, and Hana Digal followed him to his house. The accused Dayanidhi questioned Jagadeswar as to how he could leave the place without paying him the price for the consumed liquor. It is stated that at the instance of those four other persons (since acquitted), accused Dayanidhi then dealt a Page 2 of 13 CRLA No.248 of 2017 {{ 3 }} massive blow by means of a stout lathi on the head of Jagadeswar. Receiving the blow, Jagadeswar fell down. At that time, son of Jagadeswar, namely, Jaleswar Pradhani (P.W.1) weas returning from a village hotel carrying some curry and when he protested, it is stated that accused Dayanidhi also dealt a lathi blow on his hand. Jagadeswar was then shifted to the Sub- Divisional Hospital, Baliguda where he was declared dead.
In the afternoon, Jaleswar Pradhani (P.W.1), the son of Jagadeswar (deceased) lodged a written report with the Sub- Inspector of Police, who, in the absence of the Inspector-in- Charge, was discharging the duty as such. The Sub-Inspector of Police treated said written report as FIR (Ext.2), registered the case and directed another Sub-Inspector of Police (S.I.-P.W.15) to take up investigation.
3. In course of investigation, the Investigating Officer (I.O.- P.W.15) examined the informant (P.W.1) and other witnesses. He then issued requisition for medical examination of the informant (P.W.1) and proceeded to the Sub-Divisional Hospital where the dead body of Jagadeswar was lying. He (P.W.15) held inquest over the dead body of the deceased and prepared the report (Ext.1). The dead body of the deceased was sent for post mortem examination by issuing necessary requisition. The I.O. (P.W.15) thereafter visited the spot and prepared the spot map (Ext.17). He Page 3 of 13 CRLA No.248 of 2017 {{ 4 }} also seized the incriminating articles including one Salua lathi (stout lathi) from the spot in presence of witnesses under the seizure list, Ext.8/1. He further seized bloodstained earth and sample earth under seizure list, Ext.7/1. The spade was seized from the house of the informant (P.W.1) on 04.06.2011 under seizure list Ext.9/1. The wearing apparels of the deceased were seized being produced by the Police Havildar who had accompanied the dead body for post mortem examination. The seizure list prepared to that effect is Ext.10. Accused Dayanidhi then was arrested and medically examined. His wearing apparels were also seized. The seized incriminating articles were sent for chemical examination through Court. On 23.06.2011, other four persons were arrested. On completion of the investigation, the Final Form was submitted placing the accused and four others to face the Trial for commission of the offences under section 294/302/323/34 of the IPC.
4. Learned S.D.J.M., Balliguda, on receipt of the Final Form, took cognizance of the 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 the accused and four others. Page 4 of 13 CRLA No.248 of 2017
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5. The defence plea is that of complete denial and false implication. The accused, however, has not tendered any evidence.
6. The prosecution, in support of its case, has examined in total sixteen (16) witnesses during Trial. As already stated, the son of the deceased Jagadeswar, who had lodged the FIR (Ext.2) being scribed by P.W.6 is P.W.1. The wife of P.W.1 has come to the witness box as P.W.2 and P.W.3 has been examined as the co- villager whereas the village tiffin shop owner has appeared as P.W.7. The Doctor, who had conducted the the autopsy over the dead body of the deceased has come to the witness box as P.W.15 whereas the Inspector-in-Charge of Balliguda P.S. who took charge of the investigation from P.W.15 is P.W.16.
7. 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 20. Out of those, the important are, the FIR (Ext.2), the inquest report (Ext.1), the spot map (Ext.17); the post mortem report (Ext.15) and the chemical examiner9s report (Ext.20).
8. The Trial Court, upon examination of the evidence of the Doctor (P.W.14), who had conducted the autopsy over the dead body of the deceased and his report (Ext.15), having held the death of Jagadeswar to be homicidal, has found this accused to be Page 5 of 13 CRLA No.248 of 2017 {{ 6 }} the author of the injuries caused on the head of the deceased leading to his death and also to have caused simple hurt to P.W.1. Accordingly, the Trial Court has held him guilty of committing the offence under section 302/323 of the IPC whereas the other four accused persons, who had faced the trial, were acquitted. This accused for his conviction, as above, has been sentenced as afore-stated.
9. Mr.D.P.Dhal, learned Senior Counsel for the Appellant (accused) submitted that here the prosecution case is based upon the evidence of P.Ws.1 & 2 since P.W.3 has not supported the prosecution version. Accordingly to him, the Trial Court has not properly appreciated their evidence. He further submitted that when basin upon the evidence of P.Ws.1 & 2, the Trial Court has refused to hold four other accused persons facing the trial with the present accused Dayanidhi to have committed any such overt-act either or directly or in any other manner, the version of those two witnesses, i.e., P.Ws.1 & 2 ought not to be held to be safe to be relied upon in fastening the guilt upon the present accused. He further submitted that the Trial Court has not examined the evidence of P.Ws.1 & 2 in the backdrop of the surrounding circumstances and further taking into account their conduct, which appears to be improbable. According to him, the evidence of P.Ws.1 & 2 being not free from suspicion; further Page 6 of 13 CRLA No.248 of 2017 {{ 7 }} keeping in view their keen interest in the success of the prosecution, basing upon their version in particular, which are not clear, cogent and acceptable, the finding of guilt of the accused, as has been returned by the Trial Court, cannot be sustained.
10. Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State submitted all in favour of the finding of the Trial Court in holding the present accused liable for committing the murder of Jagadeswar. He further submitted that when P.W.1 and P.W.2 are two natural witnesses, there not material having been elicited during cross-examination of those witnesses, in pointing the doubt as to their presence at the time of occurrence, the Trial Court has rightly accepted their version in concluding that the prosecution has established the charges against this accused beyond reasonable doubt.
11. 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 16) and have perused the documents admitted in evidence marked as Exts.1 to 20.
12. The Doctor, who had conducted the post mortem examination over the dead body of the deceased, is P.W.14. She has deposed in clear terms that during post mortem examination, Page 7 of 13 CRLA No.248 of 2017 {{ 8 }} one laceration of the size of 7 X 1.5 X 1 c.m. over the inter partial region of the scalp margins of which were irregular with bleeding. As per her evidence, on dissection, one haematoma of the size of 5 X 6 c.m. was present over the internal parital region of the scalp; fracture of the skull present over mid point of the sazittal suture of size 1 X 1 c.m. and one huge subdural haematoma was found covering both the parital lobes extending up to the occipital lobe of brain with the presence of liquid blood of 200 ml presnt inside the cranial cavity. Her evidence is that all such injures are ante mortem in nature and might have been caused by hard, blunt and heavy weapon. She has stated the reason of death to be profuse intra cerebral haemorhhage leading to shock. We find that the evidence of the Doctor, which too finds mention in her report (Ext.15) have not at all been challenged during trial Above being the situation in the Trial Court, here also nothing is argued to impeach the evidence of the Doctor (P.W.14). In addition to the above, we find that the evidence of the I.O. (P.W.15), who held the inquest over the dead body of the deceased and prepared the report (Ext.1) wherein he has noted the injuries, which he then had noticed. Keeping in view the above unchallenged evidence, we have no other option but to arrive at a conclusion that Jagadeswar met a homicidal death. Page 8 of 13 CRLA No.248 of 2017
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13. Having said as above, now in order to judge the sustainability of the finding of the Trial Court in holding the accused to have caused the fatal injuries upon the deceased and simple hurt to the informant (P.W.1), in addressing the rival submission, it would be profitable to have a look at the evidence of P.Ws.1 & 2.
P.W.1 is the son of the deceased. P.W.2 is the wife of P.W.1. P.W.1 lodged the written report (Ext.1) being scribed by P.W.6. It reveal from the FIR (Ext.2) that the incident took place some time after 11.00 a.m on 4.6.2011. It has been mentioned in the FIR that the deceased had been to take liquor and was coming to his house and when he reached near the mango tree standing near his house, the accused came holding a lathi and after asking deceased as to why he came away without paying Rs.10/- towards the price of consumed liquor and in further stating that he would take away his life, gave a blow on his head, which resulted the fall of the deceased on the ground. This P.W.1 has stated in the FIR that at that time, he was coming from the village carrying curry and during then to have seen the occurrence. He has further stated in the FIR that when he with another villager Sankar Pradhani (P.W.3) and his wife (P.W.2) were carrying the deceased in a tempo, the accused assaulted him by that very lathi on his left hand.
Page 9 of 13 CRLA No.248 of 2017
{{ 10 }} Above being the FIR version, during Trial, he has stated that on 04.06.2011 around 11.00 a.m.,, he had been to the village junction to bring curry for his meal and on his way back home, he asked this accused to give Rs.10/- towards the consumed liquor and the accused quarreled with him. All these are narrations appear to have been introduced for the first time in the trial. He has further stated that after that quarrel, he left the place and came to his house. It has been further stated that at that time, four persons of Horizon streets chased him and he ran to his house and went inside. His further evidence is that at that time, his father (deceased) was inside the house and having seen the scene, came out of the house and asked those four persons about the reason of their chasing his son (P.W.1). It is further stated that a quarrel ensued between his father Jagadeswar and those persons. His further version is that during that time, being instigated by those three persons, this accused Dayanidhi assaulted on the head of his father by means of that lathi. He does not state that Dayanidhi had also come with those persons nor he is stating as to when Dayanidhi arrived there. The facts concerning the incident as also the happening of the incident of assault on his father as stated by him in the Trial appears to be wholly irreconcilable with the narration in the FIR lodged by him (P.W.1).
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{{ 11 }} Interestingly, when he says that accused Dayanidhi assaulted him only when he intervened seeing the assault upon his father by this accused Dayanidhi, the FIR version is to the effect that when he was shifting his father Dayanidhi in a tempo for treatment to the S.D. Hospital, he was assaulted by accused Dayanidhi on his left hand. Moreover, the evidence of this witness appear to us to be highly improbable that when he being chased by those persons out of fear, had entered inside the house and no sooner did he enter, his father came out of the house, he then states to have boldly coming out gain and jumping to the crime scenario, which is not ordinarily expected.
In addition to the above, in the FIR when he has not breathed a word against anyone except this accused Dayanidhi, in the Trial, he says the presence of others at the crime scenario and those others to have also chased him uptil his house. His further approach during Trial does not also appear to be honest when he says that he knew all the accused persons except Hana Digal by giving her name. When he names a person, it is interesting to note that he goes to say that he did not know that person. The tendency of this witness to rope in innocent person is apparent for the first time for introducing those four persons other than this accused for the first time in the Trial. During cross-examination, this witness has also stated that he had lodged the FIR (Ext.2) after police came to the house, which contradicts Page 11 of 13 CRLA No.248 of 2017 {{ 12 }} the version of the I.O. (P.W.15) that having received the FIR at the P.S., he had come to the hospital.
Now, P.W.2, who is the wife of P.W.1 again naming one Hana Digal, who was facing the Trial with the present accused and others, says to have not known her when she is of the same village, which tells upon her credibility. Her evidence is that the accused persons (all the five including this accused Dayanidhi excluding that Hana Digal) chased her husband till he entered inside the house and when her father-in-law (deceased) came out to know the reason, all those persons except that Hana Digal assaulted and this accused Dayanidhi is said to have been assaulted on his head by a lathi. She is thus giving a different picture altogether as to how the incident began and how it ended as has been given by P.W.1. She is silent where she was at the relevant time when her husband was chased and wherefrom she could see. The witness (P.W.3), who as per the FIR version, had come shortly after the incident is totally silent and has not supported the prosecution.
With the above state of affair in the evidence of P.W.1 and P.W.2, we are of the view that it would not be safe to rely upon the same in holding the role played and the act done by this accused in the incident to have been established beyond reasonable doubt. Accordingly, the Trial Court, with the same set of evidence, while acquitting those four accused persons, who Page 12 of 13 CRLA No.248 of 2017 {{ 13 }} had faced the Trial with the present accused Dayanidhi, is not right in holding that the prosecution has proved the charges against this accused beyond reasonable doubt.
We are, therefore, of the view that the finding of the Trial Court that the prosecution has established its case against accused, Dayanidhi beyond reasonable doubt by leading clear, cogent and acceptable evidence cannot be sustained. Accordingly, we conclude that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside.
14. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 1st March, 2017 passed by the learned Sessions Judge, Kandhamal, Camp at Baliguda, in Sessions Trial No.193 of 2011 are hereby set aside.
Since the accused, namely, Dayanidhi Digal is on bail, his bail bonds shall stand discharged.
(D. Dash), Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K. Panigrahi), Judge.
Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 29-Aug-2023 14:14:45 Page 13 of 13 CRLA No.248 of 2017