Orissa High Court
Gajendra Kalandi @ Gaja vs State Of Orissa on 22 January, 2024
Bench: D.Dash, G.Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.316 of 2012
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 27th February, 2012 passed by the
learned Sessions Judge, Keonjhar in Sessions Trial No.167 of 2010.
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Gajendra Kalandi @ Gaja .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Ms.Manasi Mohapatra
Advocate
For Respondent - Mr.P.K. Mohanty,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G.SATAPATHY
Date of Hearing : 17.01.2024 : Date of Judgment : 22.01.2024
D.Dash,J. The Appellant, by filing this Appeal, has called in
question the judgment of conviction and order of sentence dated 27th February, 2012 passed by the learned Sessions Judge, Keonjhar in Sessions Trial No.167 of 2010 arising out of G.R. Case No.1049 of 2008 corresponding to Nayakote P.S. Case No.47 of 2008 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Keonjhar.
Page 1 of 10 CRLA No.316 of 2012
{{ 2 }} The Appellant (accused) thereunder has been convicted for committing the offence under section 396/201 of the Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, he has been sentenced to undergo imprisonment for life for commission of the offence under section 396 of the IPC; undergo rigorous imprisonment seven (7) years for commission of the offence under section 201 of the IPC and pay fine of Rs.30,000/- (Thirty Thousand) in default to undergo rigorous imprisonment for two (2) years with the stipulation that both the substantive sentences would run concurrently.
2. PROSECUTION CASE:-
Durga Prasad Moharana was working a driver under one Raja Baridabarana Naik (P.W.1). Durga was driving one Sonalika Rhino Delux Wine Red colour vehicle bearing Registration No.OR-02-AU-2648 owned by Raja (P.W.1). On 19.11.2008 around 8.00 a.m., Durga had taken the vehicle for some repair work to a garage situated in the township of Keonjhar. On that day, around 5.00 p.m, Durga informed his master (Raja-P.W.1) over mobile phone that he would reach within an hour. Since Durga did not arrive as told after waiting for some time, Raja (P.W.1) telephoned him at around 11.00 p.m. He then found that a stranger replied through the said phone that the driver (Durga) and the vehicle would be reaching shortly. Raja (P.W.1) thereafter Page 2 of 10 CRLA No.316 of 2012 {{ 3 }} could not make any contact with the deceased till the next morning around 5.00 a.m. At about 5.00 a.m., when Raja (P.W.1) again called Durga, simply a 'Hello' came in reply and the phone-set was switched off. Raja (P.W.1) then went for search of the vehicle and the driver-Durga. Neither they could trace out Durga nor the vehicle.
So, a report was given at the Keonjhar Town P.S. One Krushna Prasad Moharana (P.W.7) towards the evening came to know that the dead body of a person was lying at Jambiriposi Nala. So, he (P.W.7), with his brother-in-law (Labani) went and identified the dead body to be that of Durga. The hands, mouth and legs of Durga was found to have been tied by muffler on face and nylon rope on hands and legs. Bleeding injury on the right side head of the Durga (deceased) was noticed. The matter was informed to Raja (P.W.1) and also to his father (Jagannath Moharana).
On the next day, Raja (P.W.1) lodged the written report with the Inspector-in-Charge of Nayakote P.S. The IIC, treating the same as F.I.R. (Ext.1), registered the case and took up the investigation.
3. The Investigating Officer (I.O.-P.W.9), in course of the investigation, examined the informant (P.W.1) and other witnesses and recorded their statements under section 161 Cr.P.C.. The I.O. (P.W.9), having gone to the spot, held the Page 3 of 10 CRLA No.316 of 2012 {{ 4 }} inquest over the dead body in presence of the witnesses and prepared the report (Ext.6). The sample earth, blood stained earth, shoe of right foot, pair of leather chappals and a green stripe towel were seized under seizure list (Ext.7). On 21.11.2008, the I.O. (P.W.9), having visited the spot, prepared the spot map (Ext.10). The stolen car and the mobile phone were seized under seizure lists, Ext.11 & Ext.3 respectively. On the prayer of the I.O (P.W.9) Test Identification Parade had been conducted inside the jail where the accused had been lodged. on completion of investigation, the Final Form was submitted placing this accused to face the Trial for commission of the offence under section 396/201 of the IPC.
4. Learned S.D.J.M., Keonjhar, on receipt of the Final Form, took cognizance of the said offence 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 the accused.
5. The prosecution, in support of its case, has examined in total nine (9) witnesses during Trial. Out of them, the informant, who happens to be the master of the deceased, is P.W.1. P.W.2 is the witnesses, who has identified the accused in the jail in the Test Identification Parade. P.W.3 is a witness, who has seen the dead body lying at Jambiri Nala. P.W.5 is the uncle of the Page 4 of 10 CRLA No.316 of 2012 {{ 5 }} Informant (P.W.1). P.W.6 is the father of the deceased whereas P.W.7 is his elder brother. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.8. The I.O. of the case, at the end, has come to the witness box as P.W.9.
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 17. Out of those, the important are, the FIR (Ext.1), the inquest report (Ext.6) and the post mortem report (Ext.8).
7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea.
8. Ms. Manasi Mohapatra, learned counsel for the Appellant (accused), without disputing the finding of the Trial Court as regards the nature of death of Durga to be homicidal in view of the evidence of the Doctor (P.W.8), who had conducted the autopsy over the dead body of the deceased and the I.O. (P.W.9), who held inquest over the dead body of the deceased and prepared the report (Ext.6) as also other witness, who had the occasion to see the dead body with injuries, submitted that the Trial court, in the absence of any witness to the occurrence and when the evidence on record do not project any such Page 5 of 10 CRLA No.316 of 2012 {{ 6 }} incriminating circumstances barring the one as to the deceased being once seen in the company of this accused, which too is also not acceptable, ought not to have held the accused guilty of commission of offence under section 396/201 of the IPC. She further submitted that the evidence as to the last seen theory coming from the lips of P.Ws.2, 3 & 4 is not at all believable and that according to her, even if accepted, would not lead to say that the burden of proof had shifted upon the accused to show as to what happened to the deceased thereafter. She, therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside.
9. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused as has been returned by the Trial court, submitted that when it has been proved through reliable evidence that the accused, deceased and others were together in the night and the dead body, having been recovered thereafter on the next day as no explanation is coming forward from the side of the accused as to when Durga (deceased) departed or what happened to Durga that he left and since it is not stated that he parted with the company of Durga, the Trial Court has rightly held the accused guilty of committing the offence under section 396/201 of the IPC.
Page 6 of 10 CRLA No.316 of 2012
{{ 7 }}
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.W.1 to P.W.9) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.17.
11. Admittedly, the case of the prosecution rests upon the circumstantial evidence as it is not said that anybody had seen the actual incident of assault upon the deceased. The master of Durga (deceased), being examined as P.W.1, has stated that he had gathered information that the deceased, being the driver, six to seven other persons had also gone in the car. But, as per his evidence Durga (deceased) had not informed the names of those persons. The accused is not known to P.W.1 and also P.W.2. P.W.2 has also stated that when he was sitting on the Verandah of a closed shop in Village-Kadakala, a red colour car being driven by Durga came wherein six others passengers were there and Durga stopped the car and asked the distance of Khandadhar from that place. It is further stated that when P.W.2 told the distance to be around 2 k.m, they meaning the accused and other occupants of the vehicle asked P.W.2 to accompany them to the place and show the way. He states that he accompanied them and they stopped near the hotel of Dillip and there the driver (Durga) gave him fresh meat for cooking and told that they would take it while returning from Khandadhar. This P.W.2 states to have Page 7 of 10 CRLA No.316 of 2012 {{ 8 }} guided them to Khandadhar in the car and returned back. It is stated that on the way, they (Durga and other occupants) brought the cooked meat and stopped near the Anganwadi Centre of village where they consumed liquor and took the meat. He further states that in that Anganwadi Centre, there was altercation with each other using obscene words in a high pitch. He states that when the villagers loudly protested, they left the village with the car. During Trial, this witness identified this accused to be one among them. This witness, having been taken to the T.I. Parade, had identified the accused in course of investigation, but interestingly his evidence is that prior to the said identification in the T.I. Parade; he had been taken by Nayakote Thanababu to Champua Jail and identified the accused there. His evidence even when we accept runs to the effect that he had seen the accused and the deceased with others consuming liquor and having an altercation leaving the place around 7.00 p.m. P.W.3 has stated that three days before his seeing the dead body, he had seen the accused with the driver (deceased) around 7.00 p.m. in his village. It is also stated that there were other five occupants in the said vehicle. His further evidence is that when he was coming towards the culvert and on the way near Anganwadi Centre, he had seen Kedar Thakur and Keshab Behera of their village along with the deceased and the present Page 8 of 10 CRLA No.316 of 2012 {{ 9 }} accused as well as five others consuming liquor and making ho hullah.
P.W.4 has stated that he had seen the accused and others, who were in the car and were sitting at Anganwadi Centre near the culvert, they were consuming liquor and taking meat. This witness also took liquor with them and shared the meat. He further states that some time thereafter, the accused and others left the place. The dead body of Durga has been recovered much later during the evening hour. The evidence as to the presence of this accused in that congregation has not been fully established since the same do not receive corroboration from the evidence of the witnesses, who had identified the accused during the T.I. Parade as by then police had already shown the accused which means the identification evidence highly doubtful and unreliable. No witness is saying that the accused was quarrelling with the deceased or that there was any tussle at that place. It is stated that after taking the liquor and meat, they all left the place.
Thus, on a conspectus of analysis of the evidence hereinabove, we find that the prosecution has not proved the charges against the accused beyond reasonable doubt.
12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 27th February, 2012 passed Page 9 of 10 CRLA No.316 of 2012 {{ 10 }} by the learned Sessions Judge, Keonjhar in Sessions Trial No.167 of 2010, are hereby set aside.
The Appellant, namely, Gajendra Kalandi @ Gaja, being on bail, his bail bonds shall stand discharged.
(D. Dash), Judge.
G.Satapathy, J. I Agree.
(G.Satapathy),
Judge.
Basu
Signature Not Verified
Digitally Signed
Signed by: BASUDEV NAYAK
Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 24-Jan-2024 11:33:38 Page 10 of 10 CRLA No.316 of 2012