Orissa High Court
Criminal Procedure vs State Of Odisha on 13 November, 2023
Bench: D.Dash, G.Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.284 of 2011
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 4th May, 2011 passed by the learned
Additional Sessions Judge, Sonepur, in Sessions Case No.39/29 of
2004.
----
Jagannath Kalta; and .... Appellants
Dhanu Kalta
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr.Laxmi Narayan Patel
(Advocate)
For Respondent - Mr.G.N.Rout,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G.SATAPATHY
Date of Hearing : 01.11.2023 : Date of Judgment : 13.11.2023
D.Dash,J. The Appellants, by filing this Appeal, have called in question the judgment of conviction and order of sentence dated 4th May, 2011 passed by the learned Additional Sessions Judge, Sonepur, in Sessions Case No.39/29 of 2004 arising out of G.R. Case No.38 of 2004 corresponding to Birmaharajpur P.S. Case Page 1 of 11 CRLA No.284 of 2011 {{ 2 }} No.20 of 2004 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Biramaharajpur.
The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.15,000/- (Rupees Fifteen Thousand) in default to undergo rigorous imprisonment for three (3) years for commission of the said offence.
2. PROSECUTION CASE:-
On 04.04.2004 around 3.30 p.m., one Madhusudan Kalta (P.W.2) lodged a written with the Officer-in-Charge (OIC-P.W.10) of Birmaharajpur Police Station (P.S.) stating therein that on that day, around 7.00 a.m., his younger brother, namely, Jadumani Kalta was ploughing the lands of the elder father, namely, Chandra Kalta. When he (P.W.2) had been to that land taking food for Jadumani, the accused persons arrived there and challenged him and Jadumani as to why they were ploughing those lands when Chandra Kalta had no share over the same. He (P.W.2) then replied that Chandra had his share over those lands and when Chandra had already adopted his son and had given those lands to his son in writing, they were ploughing the lands on that right. It was stated that being not satisfied with the Page 2 of 11 CRLA No.284 of 2011 {{ 3 }} answer, the accused persons started quarrelling with them and threatened to fight with them, if they would go on ploughing those lands. Being so threatened, the informant (P.W.2) and his younger brother Jadumani returned to their house when accused persons also left the place and proceeded towards the village. The informant, coming to his village, on the mid part of the village, his wife meet him and informed that the accused persons were assaulting Chandra Kalta under a banian tree at one end of the village. Madhusudan (informant-P.W.2) then rushed to the spot and saw the accused persons being armed with lathi were assaulting Chandra Kalta, who was then lying on the ground and shouting for help. At the sight of informant (P.W.2), the accused persons fled away and Chandra being shifted to the District Headquarters Hospital, Sonepur, succumbed to the injuries received by him on account of the attack from the side of the accused persons.
The written report, being received by the OIC (P.W.10), the same was treated as FIR (Ext.2) and upon registration of the case, the investigation was taken up.
3. The Investigating Officer (I.O.-P.W.10), in course of the investigation, examined the informant (P.W.2) and sent him for medical examination. The I.O. (P.W.10), having visited the spot, prepared the spot map (Ext.8). He (P.W.10) seized two Merhas Page 3 of 11 CRLA No.284 of 2011 {{ 4 }} lying near the spot under seizure list (Ext.1). On the next day of the occurrence, after getting information that Chadra is dead while undergoing treatment at DHQ Hospital, Sonepur, the I.O. (P.W.10) reached there and held inquest over the dead body in presence of the witnesses and prepared the report (Ext.3). He sent the dead body of Chandra for post mortem examination by issuing necessary requisition. The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the I.O. (P.W.10) submitted the Final Form placing these accused persons to face the Trial for commission of the offence under section 302/34 of the IPC.
4. Learned S.D.J.M., Birmaharajpur, 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 offences against these accused persons.
5. The prosecution, in support of its case, has examined in total ten (10) witnesses during Trial. Out of them, as already stated P.W.2 is the informant whereas P.W.4 is his wife. P.W.1 is the Grama Rakhi and a witness to the seizure of Merha whereas P.W.3 is a witness to the seizure of wearing apparels of the deceased. P.W.5 is the younger brother of P.W.2. The Doctor, who had conducted the post mortem examination over the dead body Page 4 of 11 CRLA No.284 of 2011 {{ 5 }} of the deceased is P.W.8. The I.O., at the end, has come to the witness box as P.W.10.
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 10. Out of those, the important are, the FIR (Ext.2), the inquest report (Ext.3), the post mortem report (Ext.7), and the spot map (Ext.8).
7. The accused persons, having taken the plea of complete denial and false implication, have, however, not tendered any evidence in support of the same.
8. Mr. L.N.Patel, learned counsel for the Appellants (accused persons) submitted that prosecution, in order to bring home the charge against the accused persons, heavily rely upon the evidence of P.Ws.2, 4 & 5. He pointed out as to how their evidence appear to be highly improbable and give rise to grave suspicion in mind as to their presence at the spot at the time of occurrence in seeing the accused persons assaulting Chandra (deceased). In this connection,he has also taken us through the evidence of the Doctor, who had conducted the autopsy over the dead body of the deceased, i.e., P.W.8. He further submitted that the Trial Court, without proper scrutiny of the evidence on record, has accepted the version of those three witnesses in Page 5 of 11 CRLA No.284 of 2011 {{ 6 }} fastening the guilt upon the accused persons as to be the author of the injuries upon Chandra leading to his death. He, therefore, urged that the judgment of conviction and order of sentence, impugned in this Appeal, are vulnerable.
9. Mr.G.N.Rout, learned Additional Standing Counsel for the Respondent-State, submitted all in favour of the guilt against these accused persons, as has been returned by the Trial Court. He further submitted that the evidence of P.Ws.2, 4 & 5 are wholly believable and the way they have narrated the incident, it cannot be said that they are falsely implicating the accused persons on account of their enmity with them. He further submitted that the evidence of all these three witnesses are free from any such infirmity so as to be eschewed from consideration.
10. 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 10) and have perused the documents admitted in evidence marked as Exts.1 to 10.
11. The death of Chandra (deceased), as per the evidence of the Doctor (P.W.8), who had conducted the autopsy over the dead body of the deceased, was on account of haemorrhage caused between the back bone and peritoneum. It has been stated by him Page 6 of 11 CRLA No.284 of 2011 {{ 7 }} that he had noticed anterior dislocation of the back bone at Lumbar-1 and Thoracic-12. He has stated that the bleeding appears to have extended to L-1 to L-3. The evidence of this witness (P.W.8) is that he had noticed two external injuries; one abrasion over right shoulder, and one contusion of the size of 2½"
X ¼" at the back mid line and the corresponding injuries were the anterior dislocation of the back bone particularly Lumbar-1 and Thoracic-12 and contusion of the spinal cord at the place of dislocation of the back bone at the above two places. The deceased, at the time of his death, was 79 years old. It is the evidence of the Doctor that usually at that age, the bones of a human being remain weak and the injuries he noticed were possible in case of fall from a height of 6 feet on hard and blunt surface on one's back. He has stated to have not marked any marks of lathi blow on the dead body. The only vital injury found by him was at the spinal cord. Thus, it being the unquestioned testimony of the Doctor (P.W.8) that the death of the deceased were on account of the injuries on the spinal cord and that the injuries was ante mortem in nature, we are now called upon to ascertain as to whether the prosecution evidence is clear, cogent and acceptable to the extent that these accused persons are the authors of such injuries caused upon the deceased. Page 7 of 11 CRLA No.284 of 2011
{{ 8 }}
12. Coming to the evidence of P.W.2, who is the nephew of Chandra (deceased), the son of the younger brother of Chandra, it is seen that after narrating the incident, which took place in the morning hour in the paddy field, he states that when he was returning home, his wife told him that the accused persons were assaulting Chandra. He does not state exactly as to at which place he was told about that by his wife. When he states that hearing from his wife, he went to the spot, he does not state the exact location. It is also not his evidence as to what was the distance between the place where he was told by his wife and the so-called spot.
P.W.2, having stated that his wife had informed him that Chandra was being assaulted by the accused persons, he says that thereafter, even when he went, he saw the accused persons assaulting Chandra. The time spent by P.W.2 in reaching the so- called spot is not stated but then after having heard from the wife, P.W.2 when went and he says to have seen the assault being made upon the deceased by the accused persons. Thus, it appears from his evidence that as if the assault was continuing some time before he heard till he arrived. This part of the evidence, however, is belied by the medical evidence. The Doctor (P.W.8) has stated to have noticed only two external injuries and he too states that he had not marked any marks of lathi blow on the deceased. Furthermore, during cross-examination, P.W.2 has Page 8 of 11 CRLA No.284 of 2011 {{ 9 }} stated to have seen the accused persons dealing three to four merha blows and his wife, having stated earlier about the assault, few blows must have proceeded thereto. But then as already stated, the medical evidence is silent and do not provide any support to the said evidence of P.W.2 on the aspect of repeated Merha blows.
The wife of P.W.2 is P.W.4. She states that she had been to the house of one Khirabadhi in search of her son Subrat and while returning with her son, she saw the accused persons repeatedly dealing lathi (merha) blows upon Chandra under a banian tree standing near the bari (threshing floor) of one Pahala. She has further stated that when she tried to interfere, the accused persons threatened her to kill and out of fear, while returning home, she saw Jadumani Kalta, the younger brother of her husband and informed him that Chandra was being assaulted by the accused persons. Her further evidence is that Jadumani, hearing from her, went to the spot. It is further stated that thereafter, she met her husband (P.W.2) near the house of Gountia of their village and then she also informed him about the act of the accused persons. She is, however, silent that as to if her husband, hearing from her, rushed to the spot, Moreso, her husband (P.W.2) does not state that she was told by his wife that the accused persons were assaulting Chandra when she meet him near the house of Gountia.
Page 9 of 11CRLA No.284 of 2011
{{ 10 }} When such is the evidence of P.W.4, it is found from the evidence of the I.O. (P.W.10) that she had not stated before him during investigation in her statement recorded under section 161 Cr.P.C. that she had seen the accused persons dealing merha blows upon the deceased and that they had threatened her to kill if she would go near the spot and that she had informed Jadumani about the accused persons dealing blows upon Chandra and also to her husband thereafter. The attention of such omissions, which certainly, in our considered view, are material omissions, having been drawn to the witness (P.W.4) during her examination in Court that has been proved through the I.O. (P.W.10).
Jadumani (P.W.5) has stated that P.W.2 met him near their threshing flour where a tubewell had been installed and it was told by her that the accused persons were assaulting Chandra under the banian tree standing near the threshing flour. But as already stated P.W.2 had not stated so at the earliest opportunity and she has improved that only during trial. P.W.5 has stated that hearing from P.W.4, when he went to the place, he saw the accused persons dealing merha blows upon Chandra. His further evidence is that at his sight, the accused persons fled away when Madhusudan (P.W.2) arrived, Chandra was shifted. He does not state that Madhusudan (P.W.2) was present there when the assault was going on when as per the evidence of P.Ws.2 & 4, Page 10 of 11 CRLA No.284 of 2011 {{ 11 }} assault was quite for some time. But the Doctor's evidence does not provide support to the same.
On the conspectus of the analysis of the evidence let in by prosecution, we are thus of the view that the finding of the Trial Court that the prosecution has established the charge against accused persons beyond reasonable doubt by leading clear, cogent and acceptable evidence cannot be sustained.
13. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 4th May, 2011 passed by the learned Additional Sessions Judge, Sonepur, in Sessions Case No.39/29 of 2004 are hereby set aside.
Since the accused persons, namely, Jagannath Kalta and Dhanu Kalta are on bail, their 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 Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 14-Nov-2023 14:12:35 Page 11 of 11 CRLA No.284 of 2011