Orissa High Court
Devananda Randhari & Manohar vs State Of Orissa on 19 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.R.A No.340 of 1990
This is an Appeal under Section 374(2) of the code of Cr.P.C.
Devananda Randhari & Manohar .... Appellants
Naik
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr. B.K. Mishra,
Advocate.
For Respondent - Mr. S. Pattanaik,
Addl. Government Advocate.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :29.09.2023 :: Date of Judgment :19.10.2023 (The judgment of this Appeal is only in respect of the Appeal preferred by two Appellants i.e. Devananda Randhari & Manohar Naik as the Appeal has already been abated in respect of rest other Appellants due to their deaths)
1. The appellants by preferring this appeal have called in question to the Judgment of conviction and order of sentence passed on dated 4th December, 1990 by the learned Addl. Sessions Judge, Jeypore in Sessions Case No.44 of 1990 arising out of I.C.C. No.14 of 87.
Page 1 of 9 C.R.A. No.340 of 1990{{ 2 }} For the above judgment of conviction passed on 4th December, 1990 in Sessions Case No.44 of 1990, they (Appellants) have been sentenced to undergo R.I. for five years each for commission offence U/s 304 II of the IPC, 1860.
2. Prosecution Case The deceased (Kamal Lochan Naik) was the mediator of the marriage of one Chanchala, the daughter of Mongara Bhotra of village Miriguda with one accused namely, Manohar Naik. The marriage of Chanchala with Manohar Naik was solemnized on 25.02.1987 night at Pujariguda in the house of Ninima Naikani under the jurisdiction of Nowrangpur P.S. The accused persons being the relatives of Ninima Naikani had attended that marriage. After the solemnization of marriage, while Kamal Lochan Naik (deceased) was sitting with, Neelakantha Pujari, Tankadhar and Lakhi Singh, near the house of Ninima Naikani, the accused persons (Appellants along with others) called the deceased (Kamal Lochan Naik) and when the deceased did not agree to go, then the accused persons dragged him (deceased) forcibly to the house of Ninima Naikani and demanded dowry of Rs.5,000/- as he (deceased) had negotiated the marriage between Chanchala and Manohar, to which, the deceased protested and did not agree for payment. So, all the accused persons (Appellants and their co-accused persons) caught hold the deceased and pressed his neck inside a room, in the house of Ninima Naikani after closing that room from inside and so also assaulted him (deceased). When the son of the deceased i.e. Lakshmidhar Naik along with others protested against the above illegal activities of the accused persons, then the accused persons drove them out from the spot. For which, Laxmidhar Naik came to his village and informed that matter to Rabisingh Naik, who is his maternal uncle. Thereafter, Rabi singh Nayak went to the house of Ninima Naikani and enquired about the deceased from Ninima Naikani, to which, she replied that, deceased had left her house immediately after marriage is over. So, the Rabi Singh Naik searched for the deceased here and there including asking about his whereabouts to the Page 2 of 9 C.R.A. No.340 of 1990 {{ 3 }} accused persons. Thereafter, he (Rabisingh Naik) found the dead body of the deceased inside a well near the house of Ninima Naikani. So, he (Rabising Naik) presented a report before the OIC, Nowrangpur Police Station about the same.
Basing upon such report, the OIC, Nowrangpur P.S. registered Nowrangpur P.S. U.D. Case No.2 of 87 and enquired into that U.D. case. On completion of the enquiry to that U.D. Case, he (O.I.C.) submitted a report stating that, the death of the deceased Kamala Lochan Naik was due to his accidental fall into the well from the height of 20 Ft.
3. On being dissatisfied with the above enquiry report of Nowrangpur P.S. U.D. Case No.2 of 87, the informer (Rabisingh Naik) filed a complaint petition vide 1.C.C. No.14 of 87 being the complainant against total 7 numbers of accused persons including the Appellants of this Appeal i.e. Devananda Randhari & Manohar Naik, alleging commission of murder of the deceased Kamal Lochan Naik by them all.
4. After completion of enquiry of the said I.C.C. Case No.14 of 87, the learned Sub-Divisional Judicial Magistrate, Nowrangpur took cognizance of the offences under Section 302 read with 149 of the IPC, 1860 against the 7 numbers of accused persons including Devananda Randhari & Manohar Naik and issued processes against them.
After appearance of all the seven accused persons, that case was committed to the court of sessions Judge, Jeypore at Koraput from the court of learned S.D.J.M., Nowrangpur and on transfer of that case to the court of learned Addl. Sessions Judge, Jeypore at Koraput, all the 7 accused persons of the case including accused Devananda Randhari and Manohar Naik (those are the appellants in this case) faced trial in that court having been charged under Section 302 read with 149 of the IPC, 1860.
Page 3 of 9 C.R.A. No.340 of 1990{{ 4 }}
5. The plea of the defence was one of complete denial to the above alleged allegations of the prosecution against the accused persons and their false implication into the case. The specific plea of the defence was that the death of the deceased was not a homicidal one, but the same was an accidental one due to the accidental fall of the deceased into the well.
In order to substantiate the aforesaid charges against the accused persons, altogether five numbers of witnesses including the informant Rabisingh Nayak (P.W.5) were examined on behalf of the prosecution.
Out of the 5 witnesses of the prosecution, P.W.5 was the informant, P.W.2 was the son of the deceased, P.Ws.1 and 3 were witnesses to the seizure and P.W.4 was the doctor, who had conducted autopsy over the dead body of the deceased and had prepared the P.M. report (Ext.1).
But, on the contrary, the defence had examined two witnesses on its behalf as D.W.1 and 2 and had proved several documents for its side starting from Ext.A to P.
6. After conclusion of hearing and on perusal of the materials and evidence available in the record, the trial court found all the seven accused persons including the appellants Devananda Randhari & Manohar Naik guilty under Section 304 Part-II of the IPC, 1860 and convicted them all thereunder by awarding sentences against them each as stated above vide Judgment dated 4th December, 1990 in Sessions Case No.44 of 90.
7. On being aggrieved with the Judgment of conviction and order of sentence passed on dated 4th December, 1990 by the trial court against all the 7 accused persons for the offence under Section 304 Part-II of the IPC, 1860, they (all the seven accused persons) had challenged the same by preferring this appeal being the appellants. But, during the pendency of this Appeal except the appellant No.4, namely, Devananda Randhari & appellant No.5, namely, Manohar Naik, rest 5 appellants namely, Arjuna Page 4 of 9 C.R.A. No.340 of 1990 {{ 5 }} Majhi, Mongora Bhotora, Somudu Bhotra, Ninima Naikani and Lachman Gauda expired, for which, the appeal against them has already been abated as per Section 394 of the Cr.P.C.
So, after abatement of the appeal against the above 5 appellants, the Judgment on this appeal is in respect of the appeal preferred by the two appellants i.e. Devananda Randhari & Manohar Naik.
8. I have already heard from the learned counsel for the appellants and the learned Standing Counsel for the State.
9. During the course of hearing of the appeal, the learned counsel for the appellants contended that, the impugned Judgment of conviction and order of sentence passed by the trial court under Section 304 Part-II of the IPC, 1860 against the accused persons cannot be sustainable under law, because, the findings and observations made by the trial court in the impugned Judgment are not concrete relating to the specific part played by each of accused persons in the alleged incident, but the findings are general and omnibus in nature. In addition to that, there is no material in the record on behalf of the prosecution to establish the homicidal nature of death of the deceased. Rather, the evidence of the witnesses of the prosecution is ultimately probabilising to the plea of the defence i.e. the death of the deceased was accidental in nature due to falling into the well accidentally.
10. On the contrary, the learned Standing Counsel for the State argued in support of the impugned Judgment of conviction and order of sentence passed by the learned trial court contending that, the findings and observations made by the learned trial court, holding the accused persons guilty under Section 304 Part-II of the IPC, 1860 cannot be unsustainable under law, because the participation and involvement of the accused persons in killing the deceased, finds supports from the well corroborated evidence of P.Ws.1,2 and 5.
Page 5 of 9 C.R.A. No.340 of 1990{{ 6 }}
11. The Doctor (P.W.4) has not stated anything in his evidence about any homicidal nature of death of the deceased.
12. D.W.1 who was working as a Social Education Organiser, in Nowrangapur Block (Panchayat Samiti) and was also in-charge of Personal Accident Insurance Social Security Scheme for poor families of Nowrangapur Block, has deposed in his deposition by stating that, "for the accidental death of the deceased (Kamal Lochan Naik), his wife Kamali Naik has received compensation from the Nowrangapur Block as awarded for the accidental death of her husband (deceased) as per the official records/ documents (Exts.A to G).
13. In paragraph No.12 of the judgment, it has been observed by the Trial Court that, among the accused persons, some caught hold the throat of the deceased, some caught hold the neck of the deceased and some assaulted him (deceased) and pushed him. For which, there was common intention to assault, but not to kill the deceased. When ultimately Kamala Lochan Naik (deceased) expired on being succumbed to the injuries, he was thrown into the well at some point of time. But, the last seen theory goes to show that, Kamala Lochan Naik (deceased) was seen with the accused persons in the house of accused, Ninima Naikani inside a room, wherein, he was assaulted.
14. On the basis of the aforesaid findings and observations, the Trial Court held the accused persons guilty for the offence under Section 304 Part-II of the IPC, 1860.
The aforesaid general and omnibus nature of observations of the Trial Court that, some of the accused persons had caught hold the throat of the deceased, some had caught his neck and some had assaulted and pushed him in absence of any concrete/definite finding, i.e. which specific part was played by which particular accused out of seven, the findings regarding the guilty of the accused persons on the basis of the Page 6 of 9 C.R.A. No.340 of 1990 {{ 7 }} aforesaid general and omnibus nature of observations by the trial court cannot be sustainable under law.
15. That apart, the medical evidence i.e. evidence of the doctor (P.W.4) coupled with the above un-assailed/unshaken testimonies of D.W.1 is not at all establishing any homicidal nature of death of the deceased. Because, on conjoint reading to their evidence, it appears that, the death of the deceased was due to his accidental fall into the well at night and for his such accidental death, his wife has received compensation from the block under Personal Accident Insurance Social Security Scheme.
16. The conclusions drawn above, disregarding the findings and observations made by the learned trial court on the factual aspects of this case, as per the discussions and observations made above finds support from the ratio of the following decisions:
(i) 2022 (3) Crimes 397 (SC) Chaitu Gowala & Anr. Vs. The State of Assam.
IPC, 1860- Section 302- "In absence of any concrete evidence, an accused cannot be convicted for offence of murder.
(ii) 2015 (1) Crimes 4 (SC) Selvaraj @ Chinnapaiyan Vs. State represented by Inspector of police.
IPC 1860- "When death of the deceased is not established to be homicidal and no evidence points to guilt of the accused, in that case the accused is entitled to the benefit of doubt.
(iii) 2021 (1) OLR- 466 Gadadhar Bhoi Vs. State of Odisha IPC 1860- Section 302- "When the nature of death of the deceased is not established as homicidal, the question of penalizing the accused under Section 302 or 304 Part-I or 304 Part-II of the IPC, 1860 does not arise.
Page 7 of 9 C.R.A. No.340 of 1990{{ 8 }}
(iv) 2017 (1) Crimes 735 (Jharkhand) Savitri Devi Vs. State of Jharkhand IPC 1860-Section 302 read with M.V. Act, 1988- Section 166-
"When in one hand appellant had claimed insurance money claiming death of her husband to be an accidental death but on the other hand she has filed appeal against the impugned Judgment of acquittal stating that the death of her husband was a culpable homicide amounting to murder caused by the O.Ps.. Though appellant is alleging, but she had neither filed any complaint petition nor she had examined herself in the court below as a witness, presumably because she had herself claimed the money of insurance stating that the death of her husband was due to accident. Hence, the court below rightly came to a conclusion that, the death of the deceased was accidental. So, no conviction can be passed for the offence under Section 302 or 304 Part-I or 304 Part-II of the IPC, 1860"
17. Here in this case at hand, as per the discussions and observations made above, when prosecution has not become able to establish firmly about the homicidal nature of death of the deceased and when the wife of the deceased has already received compensation from Nowrangpur Block under Personal Accident Insurance Social Security Scheme stating the death of her husband as an accidental death and when the wife of the deceased neither filed any F.I.R. nor complaint petition alleging the commission of murder of her husband by the accused persons and when the wife of the deceased has not offered herself to be examined as a witness during trial of the accused persons before the trial court, then, at this juncture, by applying the principles of law enunciated in the ratio of aforesaid decisions referred to supra, it is held that, prosecution has not become able to establish the offence under Section 304 Part-II of the IPC, 1860 against the accused persons beyond reasonable doubt. For which, there justification under law for making interference with the impugned Judgment of conviction and order of sentence passed by the learned trial court against the accused persons through this appeal filed by them. As Page 8 of 9 C.R.A. No.340 of 1990 {{ 9 }} such, there is merit in the appeal of the appellants. The same shall succeed.
18. In the result, the appeal filed by the appellants is allowed.
19. The impugned Judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge, Jeypore on dated 4th December, 1990 in Sessions Case No.44 of 90 under Section 304 Part-II read with Section 149 of the IPC,1860 against the accused persons (Appellants Devananda Randhari & Manohar Naik) is hereby set aside.
20. The appellants (Devananda Randhari & Manohar Naik) are acquitted from the offence under Section 304 Part-II of the IPC.
21. Therefore, the Appellants i.e. Devananda Randhari & Manohar Naik are directed to be set at liberty forthwith after being discharged from their respective bail bonds.
22. Accordingly, the appeal is disposed of finally.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
19th October, 2023//Rati Ranjan Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 19-Oct-2023 21:57:57 Page 9 of 9 C.R.A. No.340 of 1990