Orissa High Court
Unknown vs State Of Orissa on 15 April, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.442 of 2009
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 14th October, 2019 passed by the
learned Sessions Judge, Keonjhar in Sessions Trial Case No.49 of
2009.
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Bijay Kumar Nayak .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.B.S. Das
(Advocate)
For Respondent - Mr.S.K. Nayak
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing : 03.04.2024 : Date of Judgment : 15.04.2024
D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 14th October, 2019 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.49 of 2009 arising out of G.R. Case No.574 of 2009 corresponding to Anandapur P.S. Case No.119 of 2009 in Page 1 of 10 CRLA No.442 of 2009 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 sections 302/201 of the Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo further rigorous imprisonment for two (2) years for commission of the offence under section 302 of the IPC; and undergo rigorous imprisonment for two (2) years and pay fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo a further rigorous imprisonment for six (6) months for commission of the offence under section 201 of the IPC.
It is pertinent to mention here that along with this accused Bijay Kumar Nayak, three other accused persons, namely, Lahata @ Ainthu Munda, Prafulla Dehury and Mahendra Kumar Barik had faced the trial. But, the Trial Court, while acquitting those three of the charges under section 302/201 of the IPC, has convicted this accused (Bijay Kumar Nayak) for commission of the offence under section 302/201 of the IPC and sentenced as above.
2. PROSECUTION CASE:-
On 12.12.2008 around 6.00 a.m., one Brundaban Sahu, S/o- Satrughna Sahu (Informant-P.W.6) presented a written report Page 2 of 10 CRLA No.442 of 2009 with the Officer-In-Charge (O.I.C.), Anandapur to the effect that during the morning hours, the elder brother of his father, namely, Raghunath Sahu (P.W.9), S/o-Braundaban Sahu, informed that his father (Satrughna Sahu) was lying dead near the Karnamali bridge. Hearing about the said incident from him, the informant (P.W.6) went with his elder father (P.W.9) to that place and saw his father Satrughna lying dead with injuries.
3. The Investigating Officer (I.O.-P.W.17), in course of the investigation, examined the informant (P.W.6) and requested the Superintendent of Police to send the scientific team and dog squad to the spot. On the day of occurrence, the I.O. (P.W.17), having visited the spot, prepared the spot map (Ext.15) and held the inquest over the dead body of Satrughna and prepared the report to that effect (Ext.16). The I.O. (P.W.17) sent the dead body for post mortem examination by issuing necessary requisition. He (P.W.17) seized the wearing apparels of the deceased under seizure list (Ext.12) whereas the wearing apparels of the accused persons have been seized under Exts.8, 10, 11 & 13. The I.O. (P.W.17) sent the seized incriminating articles for chemical examination through Court and on completion of the investigation, submitted the Final Form placing this accused along with three other accused persons (since acquitted) to face Page 3 of 10 CRLA No.442 of 2009 the Trial for commission of the offence under sections 302/201/34 of the IPC.
4. Learned S.D.J.M., Anandapur, 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 for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused along with those three accused persons (since acquitted).
5. The prosecution, in support of its case, has examined in total seventeen (17) witnesses during Trial. Out of them, the informant, who happens to be son of the deceased, is P.W.6. P.Ws.1, 2, 3, 4, 5, 8 & 11 did not support the prosecution case. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.7. P.Ws.14, 15 & 16 are the police constables and seizure witnesses. P.W.13 is the Doctor, who had collected the blood samples of the accused persons. The I.O., at the end, has come to the witness box as P.W.17.
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 20. Out of those, the important are, the FIR (Ext.1), the spot map Page 4 of 10 CRLA No.442 of 2009 (Ext.15), inquest report (Ext.16; the post mortem report (Ext.2) and the chemical examination report (Ext.20).
7. The accused person has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea.
8. Mr.B.S. Das, learned counsel for the Appellant (accused) submitted that the case of the prosecution is based on circumstantial evidence; the first one being that there was dispute between this accused Bijay with Satrughna (deceased) on account of repayment of loan by this accused Bijay and the other one is that the deceased was last seen in the company of this accused. He submitted that both these circumstances, have not been established by the prosecution through clear, cogent and acceptable evidence. According to her, even if it is said that these two circumstances have been proved those when joined do not complete the chain in every respect ruling out all such hypothesis other than the guilt of this accused. Referring to the discussion of the evidence, as has been made by the Trial Court in its judgment at Paragraph-8, he submitted that the conclusion arrived at by the Trial Court is absolutely untenable, he, therefore, urged for setting aside the judgment of conviction and order of sentence, which are impugned in this Appeal.
Page 5 of 10 CRLA No.442 of 2009
9. Mr.S.K. Nayak, learned Additional Government Advocate for the for the Respondent-State, while supporting the finding of guilt against this accused, as has been returned by the Trial court, contended that there being the evidence that the deceased and the accused were having a dispute with regard to repayment of loan by the accused, which he had taken from the deceased and it, having been next proved that the accused, having called the deceased had taken him whereafter the deceased did not return and his dead body was found not after a long gap of time since there comes no explanation from the side of the accused, the Trial Court did commit no mistake in fastening the guilt upon this accused for committing the murder of Satrughna.
10. 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.Ws.1 to P.W.17) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.20.
11. The prosecution, by examining the Doctor (P.W.7), who had conducted the autopsy over the dead body of Satrughna (deceased), is found to have established that Satrughna met a homicidal death on account of the injuries noticed on his person. This P.W.7, on dissection, had found the membranes of the brain Page 6 of 10 CRLA No.442 of 2009 at the superior sagittal sulcus were blood tinged and there was a small hematoma of size 1.5 cm X 1 cm just beneath the membranes and the brain tissue. As per his evidence, the death was due to subdural hematoma due to heavy impact by any object.
There is no eye witness to the occurrence and the prosecution case is based on circumstantial evidence. It has been stated by P.W.10 that the deceased had taken a loan of Rs.20,000/- from State Bank of India, Anandapur and from out of the said loan amount disbursed in favour of the deceased, this accused had taken loan of Rs.5,000/- and that two to three months prior to the death of Satrughna (deceased), he was having frequent quarrel with accused Bijay and Satrughna (deceased) on account of such repayment of loan. P.W.10 is the elder brother of the deceased and was living the house where the accused was residing. His evidence is silent as to when the accused had taken the loan of Rs.5000/- from the deceased. Although he states that two to three months before the death of the deceased, there was quarrel between the deceased and the accused, his evidence is silent as to any particular date and place where he found the deceased and the accused quarrelling. Furthermore, the evidence of P.W.1 with regard to such advancement of loan by the deceased to the accused does not receive corroboration from the Page 7 of 10 CRLA No.442 of 2009 evidence of any other prosecution witnesses. Even P.W.6, who is the son of the deceased and informant is not stating anything about such loan, which he was supposed to know had it been the fact. This P.W.6 is also silent as regards any dispute/dissention between the accused and the deceased for any other reason. In such state of affair, the solitary testimony of P.W.10 as regards the dispute/dissention between the deceased and the accused and that they had been quarrelling with each other prior to the death of the deceased on account of repayment of the loan, in our considered view cannot be believed.
12. Next circumstances that the prosecution projects is the last seen theory. In support of such theory, we find that the prosecution banks upon the solitary testimony of P.W.10. At this stage, it be stated that when P.W.6, the son of the deceased has lodged the FIR, he did not know anything about the deceased, having gone with the accused prior to the detection of the dead body of the deceased nor he states that he was told by someone especially P.W.10, who is the elder brother of the deceased that the accused and the deceased had gone together prior to the detection of the dead body of the deceased near that bridge.
P.W.10 when states that on 11.12.2008, after the accused called Satrughna (deceased) and took him away, Satrughna (deceased) did not return, we find that said important fact had Page 8 of 10 CRLA No.442 of 2009 not been stated by this P.W.10 when he had been first examined by the I.O. (P.W.17) during investigation. This P.W.10 when has denied to have not stated so before the I.O. (P.W.17), the I.O. (P.W.17) has, however, stated in clear terms that P.W.10 (Laxman) had not stated before him that on 11.11.2008, accused Bijay called Satrughna (deceased) and took him from his house and thereafter Satrughna did not return. Such statement of P.W.10 in the trial thus appear to be a latter improvement from that of his statement before the I.O. (P.W.17) at the first instance wherein he had stated about the occurrence. This stands as a material contradiction. Therefore, in our view, it would not be safe to rely upon the evidence of P.W.10 that this accused had called the deceased on 11.12.2008 and they had gone together and thereafter, the deceased did not return. The Trial Court, as it appears, has lost sight of such material contradiction in taking a view that the evidence of P.W.10 is clear, cogent, convincing and acceptable. Thus, according to us, the evidence of the prosecution, being wholly deficient to establish the fact that the deceased was last seen with the company of the accused, there was no legal obligation upon the accused to offer any explanation at all as the prosecution in the circumstance cannot be said to have discharged the initial burden of proof.
Page 9 of 10 CRLA No.442 of 2009
In that view of the matter, when the above circumstances have not been established by the prosecution through clear, cogent and acceptable evidence beyond reasonable doubt, we conclude, without hesitation that the finding of the Trial Court holding the accused guilty for commission of the offence under section 302/201 of the IPC is vulnerable.
13. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 14th October, 2019 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.49 of 2009, are hereby set aside.
Since the Appellant (accused), namely, Bijay Kumar Nayak, 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 10 of 10 CRLA No.442 of 2009