Orissa High Court
Peon Senapati vs State Of Orissa on 24 September, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.81 of 2010
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 June, 2005 passed by the
learned Sessions Judge, Keonjhar in Sessions Trial Case No.22
of 2005.
----
Peon Senapati .... Appellant
-versus-
State of Orissa
.... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mrs.Sonita Biswal
(Advocate)
For Respondent - Mr.G.N. Rout,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing : 30.08.2024 : Date of Judgment : 24.09.2024 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 June, 2005 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.22 of 2005 arising out of G.R. Case No.762 of 2004 corresponding to Keonjhar Town Page 1 of 12 JCRLA No.81 of 2010 P.S. Case No.177 of 1994 in the Court of the learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Keonjhar.
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 02.09.2004, sometime past midnight, one Gobardhan Sirka, Grama Rakhi attached to Keonjhar Town Police Station (P.S.) came to the P.S. He reported that the accused, having suspected one Nanda Sanangi of their village to have been practicing witchcraft and causing definite harm upon his family members, 4 to 5 months ago, had called a meeting in the village. In that meeting, Nanda Sanangi, had assured that he would not cause any harm to the members of the family of the accused. Sometime thereafter, the daughter of the accused fell ill and died and thereafter the wife and other children of the accused also suffered and their sufferings were continuing. The accused on 02.09.2004 afternoon when was returning after selling timber in the Village-Ranki saw the accused to be also returning to the village holding a tangia. The accused thereafter, having met Nanda Sanangi, came for some distance and near the jungle area, gave blows on the neck of Nanda by Page 2 of 12 JCRLA No.81 of 2010 means of Budia (Tangia), which resulted the death of Nanda. The accused thereafter kept that Tangia concealed in the bush. The accused, having committed the crime when was coming to the P.S. to inform the police about the happenings, on the way, he met Gobardharn and told about the said incident.
Gobardhan (Informant-P.W.1) when orally reported the matter to the Inspector-in-Charge (IIC) of Keonjahr Town P.S., the same was reduced into writing and being treated as FIR (Ext.1) upon registration of the case, the investigation commenced.
3. In course of investigation, the Investigating Officer (I.O.- P.W.6) examined the Informant (P.W.1) and other witnesses. It is stated that the accused surrendered at the P.S. and disclosed that if he would be taken to the place as he would lead, he would show the dead body of Nanda and give recovery of the tangia. The statement of the accused, being recorded vide Ext.3, he then led the police and other witnesses to the place and showed the dead body and gave recovery of the tangia. The I.O. (P.W.6) then held in the inquest over the dead body of the deceased and prepared the report to that effect (Ext.5). After preparing the spot map, the I.O. (P.W.6) sent the dead body of the deceased for post mortem examination by issuing necessary Page 3 of 12 JCRLA No.81 of 2010 requisition. The incriminating articles were seized and sent for chemical examination through Court. On completion of the investigation, Final Form was submitted placing the accused to face the Trial for commission of the offence under section 302 of the IPC.
4. Learned S.D.J.M., Keonjhar, 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 the accused.
5. The prosecution, in order to establish he case, has examined in total six (6) witnesses during Trial. Out of whom, as already stated, the Grama Rakhi, who is the Informant in the case, has been examined as P.W.1. P.Ws.2 & 3 are the two witnesses to the recovery whereas P.W.5 is the witness to the seizure of incriminating articles and the Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.4. The I.O., at the end, has come to the witness box, 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 15. Page 4 of 12 JCRLA No.81 of 2010 Out of those; important are the FIR (Ext.1) whereas the inquest report is Ext.5. The post mortem examination report and the opinion of the Doctor have been admitted in evidence and marked as Exts.6 & 7 respectively. The spot map prepared by the I.O. (P.W.6) is Ext.9 whereas Exts.14 & 15 are the chemical examination report and serological report respectively.
6. The defence plea is that of complete denial. However, being called upon, no such evidence has been let in from the side of the defence.
7. Mrs. Sonita Biswal, learned counsel for the Appellant (accused) submitted that the case is based on the so called extra judicial confession of the accused before P.W.1, which has been retarded and the recovery of the dead body as well as the tangia, which are said to have been made pursuant to the statement of the given by the accused while in police custody in leading the police and other witnesses to the place. She submitted that the finding of the Trial Court that the prosecution has established that the accused, after having murdered Nanda, had confessed before P.W.1 to have committed the crime is untenable. Placing the depositions of the Informant (P.W.1) as also other witnesses, she submitted that their evidence, when read together, would not lead to Page 5 of 12 JCRLA No.81 of 2010 record a conclusive finding that the accused had confessed to have committed the murder of Nanda before P.W.1 and the evidence of P.W.1 do not at all inspire confidence. She also submitted that the evidence on record is highly unbelievable that the accused had gone to the police station and surrendered there. She next submitted that the evidence as to the recovery of the dead body is of no significance when it is there in the evidence that by the time the I.O (P.W.6) & others arrived, the villagers had already gathered near the dead body. She, further placing the spot map (Ext.9) and the evidence of P.Ws.2 & 3 as well as the I.O (P.W.6), contended that the same do not satisfy the tests as required in law so as to be held admissible under section 27 of the Evidence Act. She, therefore, submitted that the judgment of conviction and order of sentence, impugned in this Appeal, are liable to be set aside.
8. Mr. G. N. Rout, learned Additional Standing Counsel for the Respondent-State, submitted all in favour of the finding of guilt against the accused, as has been returned by the Trial Court. According to him, P.W.1 is a natural witness, having no axe to grind against the accused and he, having clearly stated that the accused had confessed before him to have committed the murder of Nanda, which has not been shaken and as that Page 6 of 12 JCRLA No.81 of 2010 also finds support from the evidence of the I.O (P.W.6), and other witnesses that the accused had gone to the P.S. on his own, the Trial Court did commit no mistake in placing reliance upon the extra judicial confession. He further submitted that in view of the evidence of P.Ws.2, 3 & 6 provide as to recovery of the weapon at the instance of the accused as also his leading the police and others to the place where the dead body was lying provide corroboration to the evidence of P.W.1.
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 (P.W.1 to P.W.6) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.15.
10. Admittedly, there is no eye witness to the occurrence. The Gram Rakhi of the locality (P.W.1) is the informant in the case, who had lodged the FIR (Ext.1). He has stated that when on that night, around 9 p.m, he was coming back from the P.S., after the duty hour, he saw the accused on the road and the accused told him to have committed a blunder. P.W.1 then states to have questioned him further; but what was the question is not stated. Then it is stated that the accused told P.W.1 to have killed Nanda. He further submitted that the Page 7 of 12 JCRLA No.81 of 2010 accused, being again questioned without stating as to what question was told that Nanda practiced witchcraft on his child in spite of his promise in a meeting not to do so and, therefore, he had murdered him at 4 p.m. near Pokara Pani Pahada by assaulting him by means of a tangia. P.W.1 does not state as to what is the distance between the P.S and the place where he seen the accused, while returning from the P.S. after his duty hour. When he states that he took the accused to the P.S. after he confessed to have committed the crime; interestingly, the I.O (P.W.6) does not state that P.W.1 appeared at the P.S. with the accused. The I.O (P.W.6) however has stated that, receiving the FIR (Ext.1) from P.W.1, he examined the Informant (P.W.1) and other witnesses. He thereafter goes to say that the accused surrendered at the P.S. He, however, then states to have arrested the accused on 03.09.2004 at 9 a.m. and then thereafter the spot at 10.30 a.m. In view of all the aforesaid, the evidence of P.W.1 that when he saw the accused on the road, the accused told him to have committed a blunder, does not inspire confidence in mind to be believed and relied upon. That apart, P.W.1 too does not state as to what the accused then was doing when he told him. He does not state as to whether the accused came near P.W.1 or he had asked the accused as to where he was going then. P.W.6 Page 8 of 12 JCRLA No.81 of 2010 states to have not ascertained as to what was the relation between the informant & accused. It is not stated by P.W.6 that at what time the accused surrendered at the P.S. He does not say that P.W.1 and the accused had together gone to the P.S. Although P.W.1 states to have taken the accused to the P.S, it does not find so mentioned in the FIR.
With such state of affair in the evidence and in the absence of further corroborative evidence; we are not in a position to place implicit reliance upon the evidence of P.W.1 that the accused had confessed before him to have killed Nanda.
11. Now, coming to the evidence as to the recovery of the dead body of the deceased and weapon at the instance of the accused, we too find the evidence to be not reliable. When P.W.1 states that while in police custody, the accused led the police and others to the hill and pointed the dead body, he does not state about the accused thereafter pointing or taking to the place where the tangia had been kept and also to have given recovery of the same. The evidence of P.W.1 is silent as to when they started from the police station with the accused. He is also not stating that prior to that, P.W.6 had recorded the statement of the accused, when P.W.2 states that about four months prior Page 9 of 12 JCRLA No.81 of 2010 to giving evidence, he had seen the accused at the Town P.S. He also states that being questioned by the police, the accused told that he killed a person and agreed to point out the dead body, which shows that the statement even if any was voluntary. The evidence of P.Ws.1 and 2 differs on material aspects and are not reconcilable.
P.W.2 has also expressed his inability to say as to when the accused was brought to the P.S. He then during cross- examination has stated that when the accused was being examined by the I.O. (P.W.6), he had gone there at about 9.30 a.m. and at 10.30 a.m., they left the place. This P.W.2 has stated that he had not told P.W.6 during investigation that the accused brought out the axe from the bush, which thus is seen to be an improvement. His evidence is silent to the exact approximate distance between the place where the dead body was lying and the place wherefrom the axe was recovered.
P.W.3, the other witness has stated that he had seen the accused at the P.S. and the accused led the police party near the hill and pointed out the dead body and he then led them to further distance and brought out a tangia. Having said so during cross-examination, he states that by the time, he arrived at the spot, some villagers were present there. Thus, it is clear Page 10 of 12 JCRLA No.81 of 2010 that the dead body had not been kept concealed and was lying in a place accessible to others.
The I.O. (P.W.6) does not state as to the time when they started from the police station. He states that the accused led him and others to the place where the dead body had been concealed, which is incorrect in view of the evidence already discussed. When he states that the accused brought out the tangia and it was seized, he is also silent as to wherefrom that tangia was brought out and what was the distance between the place where the dead body was lying and the place where the tangia was seized. The seizure list does not find mention that the accused brought out the tangia, which has been admitted by the I.O. (P.W.6) during cross-examination.
12. In view of the evidence, as discussed above, we are of the view that the prosecution has failed to prove that the accused, while in police custody, having given his statement as regards the place where the dead body was lying and the weapon was kept, had taken the police and other witnesses to those places in showing the dead body and giving recovery of the tangia beyond reasonable doubt.
13. On a careful conspectus of analysis of the evidence on record together with the discussions made hereinabove, we Page 11 of 12 JCRLA No.81 of 2010 thus find that the prosecution has not proved 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 June, 2005 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.22 of 2005, are hereby set aside.
Since the Appellant, namely, Peon Senapati, is on bail, the bail bonds executed by him, shall stand cancelled.
Sd/-
(D. Dash) Judge V. Narasingh, J. I Agree.
Sd/-
(V. Narasingh) Judge True Copy A.R.-Cum-Sr.Secy 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: 30-Sep-2024 16:39:33 Page 12 of 12 JCRLA No.81 of 2010