Orissa High Court
Padmalochan Mahakud @ Pukulu vs State Of Orissa on 20 August, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.1062 of 2023
In the matter of an Appeal under Section 374(2) of the Code of
Criminal Procedure and from the judgment of conviction and order
of sentence dated 4th July, 2022 passed by the learned Sessions
Judge, Keonjhar in S.T. No.30 of 2019.
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Padmalochan Mahakud @ Pukulu .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.Adhiraj Mohanty,
(Advocate)
For Respondent - Mr. P.K. Mohanty
Addl. Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. V. NARASINGH
Date of Hearing : 03.07.2024 :: Date of Judgment: 20.08.2024
D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 04.07.2022 passed by the learned Sessions Judge, Keonjhar in S.T. No.30 of 2019 arising out of G.R. Case No.1422 of 2018 corresponding to Ghatagaon P.S. Case No.159 of 2018 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.),Keonjahr.
Page 1 of 11 CRLA No.1062 of 2023The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (for short, 'the IPC') and accordingly he has been sentenced to undergo imprisonment for life and pay fine of Rs.50,000/- in default to undergo rigorous imprisonment for one year.
2. Prosecution case:-
On 05.10.2018 around 4 p.m. when the Informant (P.W.3) was sitting in the shop at Dhenkikote run by one Baru Mohanty, one of his co-villagers, namely, Sarat Rout showed him a photograph in his mobile phone set displaying the murder of the father of the Informant (P.W.3), namely, Bidyadhar Mahakud.
Bidyadhar (deceased) had gone to Keonjhar Court around 8 p.m. on that day. Informant-Srikanta (P.W.3) having got the news of murder of his father Bidyadhar, immediately proceeded to Bankapatuli and saw his father lying dead on the road with a knife being pierced on his right side ear with profuse bleeding. The Informant (P.W.3) then suspected the involvement of Rama Chandra Mahakud, Jogendra Mahakud and Duryuodhan Mahakud of village Dumuria for the reason that they were having the civil litigation with Bidyadhar.
An information in writing being lodged with the Police Officer in-charge of Dhenkikote Police Out-Post, the same was registered by the Inspector-in-Charge, Ghatgaon Police Station after treating the same as F.I.R. (Ext.1). The I.I.C. then directed one Sub- Inspector of Police (S.I.-P.W.14) to take up the investigation.Page 2 of 11 CRLA No.1062 of 2023
In course of investigation, the Investigation Officer (I.O.- P.W.14) examined the Informant (P.W.3) and other witnesses. He visited the spot and prepared the spot map (Ext.8). He then held inquest over the dead body of the deceased in presence of witnesses and prepared the report -Ext.2. The dead body was sent for Post Mortem Examination to the Community Health Center (CHC), Patna. The I.O. (P.W.14) seized the incriminating articles and prepared the seizure list. In course of investigation, this accused who happens to be the son of Duryodhan Mahakud, who in the F.I.R. was one of the suspects as named by the Informant (P.W.3) was arrested and forwarded in custody to Court. His wearing apparels and Motor Cycle were seized under seizure list. The I.O. (P.W.14) then sent the seized incriminating articles for Chemical Examination through Court. On completion of investigation, Final Form was submitted placing this accused to face the trial for commission of murder of Bidyadhar for having the criminal liability under section 302 of the IPC.
3. Learned S.D.J.M., Keonjhar having received the Final Form as above, 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 charges for the said offences against these accused persons and seven others.
4. In the trial, the prosecution has examined in total fourteen (14) witnesses, who are P.W.1 to P.W.14. As already stated P.W. 3 is the Informant, P.W.9 is the Doctor, P.W.11 is the Police Constable and witness to the seizure whereas P.W.14 is the Investigating Officer (I.O.) and the rest P.Ws. are the independent witnesses.
Page 3 of 11 CRLA No.1062 of 2023Besides leading the evidence by examining the above witnesses, the prosecution has proved several documents which have been admitted in evidence and marked Exts.1 to Ext.14. Out of those, the F.I.R. is Ext.1, Inquest Report is Ext.2, Post Mortem Examination Report, spot map and Chemical Examiner's Report are Ext.3, Ext.8 and Ext.14 respectively.
5. The defence case is that of complete denial and false implication.
6. The Trial Court upon examination of the evidence, both oral and documentary, on record and their analysis at its level has held the prosecution to have established the charge under section 302 of the IPC as against the accused for intentionally causing the death of Bidyadhar beyond reasonable doubt. Accordingly, the accused has been convicted and sentenced as afore-stated.
7. Learned counsel for the Appellant (accused) submitted that there is no direct evidence to connect this accused with the said homicidal death of deceased-Bidyadhar. He further submitted that the conviction of this accused has been made only on suspicion without any evidence of any clinching in nature to attribute the accused with the authorship of said injuries received by the deceased leading to his death. He further submitted that the prosecution having simply established through the medical and other evidence that Bidyadhar had made a homicidal death has failed to prove any such incriminating circumstances in making the chain of events complete in every respect overruling all the hypothesis other than the guilt of this accused. In support of his submission, he has invited our attention to the depositions of the witnesses one-by-one, who have Page 4 of 11 CRLA No.1062 of 2023 been examined from the side of the prosecution in placing that the prosecution has not proved any such incriminating circumstance as against this accused. According to him, the finding of guilt against this accused is based upon mere suspicion and as the father of this accused and others were having some civil litigations with the deceased such a suspicion being raised has been sought to be established in vain. He, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained.
8. Learned counsel for the State while supporting the finding of guilt against the accused as has been rendered by the Trial Court contended that it having been fully established that the deceased was last seen with the company of this accused when they together went in a Motor Cycle being driven by the present accused and the death having been reported shortly thereafter, in the absence of any such explanation as to what happened to the deceased and how he received such injuries which were within the special knowledge of this accused; the accused has been rightly held liable for having intentionally caused the death of the deceased.
9. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction passed by the Trial Court. We have also extensively travelled through the depositions of the witnesses (P.W.1 to 14) examined from the side of the prosecution and have perused the documents admitted in evidence and marked Ext.1 to Ext.14 from the side of the prosecution.
10. Admittedly the prosecution case is not based on direct evidence. The prosecution has successfully proved that Bidyadhar Page 5 of 11 CRLA No.1062 of 2023 make homicidal death through the evidence of the Doctor (P.W.9), who had conducted autopsy over the dead body of the deceased as also the I.O. (P.W.14) who had seen the deceased with all such injuries and noted those in the inquest report (Ext.2) as well as the evidence of other witnesses who had the occasion to see the deceased with all such injuries on his person which are not at all disputed by the defence.
In view of the above, now in order to address the rival submission and judge the sustainability of the finding of guilt of the accused as has been returned by the Trial Court, the evidence let in by the prosecution are required to be scrutinized.
P.W.1 who was then working as a helper in Bankaputili Anganwadi Centre where Himadri Munda was working as Anganwadi Worker has stated that on that very day when she was cleaning the pots in the village tube-well, one person came in a Motor Cycle and he washed his hands, legs and face in that very tube-well and went away. It is further stated by P.W.1 that when that person was cleaning, she (P.W.1) had asked him as to which village he belonged and the reply this P.W.1 could not recollect when she was examined in the trial. She (P.W.1) has next stated that she thereafter came to learn that the very person who had come to the tube- well for cleaning had been stabbed by some body and struggling for life at a distance. She (P.W.1) has further stated that coming to know about the same, when she proceeded to the spot she saw that person lying dead. This P.W.1 has resiled from her previous version before the I.O. (P.W.14) recorded in course of investigation to the extent that the person, who was came for washing in the tube-
Page 6 of 11 CRLA No.1062 of 2023well had disclosed the name of his village as Tandibeda and that while he was cleaning his hands, legs etc. a person who was driving the Motor Cycle asked him to come quickly and that person is the present accused of village Dimburia and that thereafter they went together in the Motor Cycle towards the Petrol Pump. The prosecution for the above having obtained the permission of the court to cross-examine the witness, has done so. But it is found that except drawing the attention of the witness to her previous statement which she had denied to have stated before the I.O. (P.W.14), nothing more has been elicited in the direction of pointing the finger of guilt at the accused. This witness has not even been asked to identify the accused then present in the dock as to whether he was the man who when the deceased was washing in the tube well had called him to come quickly and went with the deceased in the Motor Cycle being driven by him. This witness has not even asked nor told as to when she got the news that the man, who had gone to the tube-well for washing his hands etc. to have been stabbed. More so, she is silent as to the time gap between his departure from the tube-well area and the receipt of the news of his stabbing. This P.W.1 does not state to have disclosed about this fact to others who were already there at the spot where P.W.1 arrived.
Next comes to the evidence of P.W.2, the other Anganwadi Worker. His evidence is to the effect that it was on that day during noon hour, when P.W.1 was cleaning utensils in the tube-well of the village, an old man arrived, cleaned himself, took some water and then went away. He further states that when he was passing in front the Anganwadi Centre that man was passing in front of the Anganwadi Centre. He (P.W.2) asked him as to which village he Page 7 of 11 CRLA No.1062 of 2023 belonged to and he told the name of his village to be Tandibeda. P.W.2 then states that the old man thereafter went away in a bike which was waiting for him. But interestingly, he (P.W.2) does not go to say that the said person who was the rider of the bike was the person facing the trial as the accused by identifying him in court. He, however, states that one or two hour after they passed the news of the person being murdered was received and then he had gone to the place he had seeing that person lying dead. The evidence of this witness thus do not implicate this accused in any way with the occurrence. The prosecution has not taken the pain of directly asking this witness (P.W.2) in establishing the identity of that person, who was the driver of the bike as the accused getting the statement that they are the one and same person. Furthermore, this witness (P.W.2) had not even stated before the I.O. (P.W.14) that he had asked that man (deceased) as to which village he belonged to and then had received the reply which too has been proved through the I.O. (P.W.14). So, these two witnesses being projected as the witnesses to the last seen theory, we find that the prosecution through their evidence has not established that the deceased was at all with this accused on that day some time before the news of the death of the deceased spreaded. P.W.3 who is the Informant is the son of the deceased. He has simply stated about the land dispute between his father on one hand and father of the accused and their family members on the other. The other important witness (P.W.5) has turned hostile by not supporting the prosecution case and resiling from his previous statement that he had met the accused in the evening when the accused had confessed before him to have committed the murder of an old man. When in this way this P.W.5 Page 8 of 11 CRLA No.1062 of 2023 has reslied from his previous statement as to the confession being made by the accused before him, the prosecution although cross- examined this witness (P.W.5) has remained satisfied by simply drawing his attention to the previous statement about that confession of the accused before the I.O. which he has denied without further putting any question in the direction of eliciting some fact from him in support of such confession of the accused.
P.W.6 who, according to the prosecution, was one of the important witnesses has again resiled from his previous version that he had seen the accused and deceased together at Bankaputuli. The prosecution despite cross-examination of P.W.6 has not been able to bring out any such statement from him in the direction of implicating this accused. P.W.7 who is a witness who has simply raised his suspicion as regards the involvement of the villagers of Bankaputuli in this murder. He, however, has not gone to say any such dispute between this accused with the deceased or the father of this accused and others with the deceased, who happens to be his brother. P.W.8 has simply stated about the land dispute between the deceased and the family of the accused and nothing more and that too his knowledge as regards the dispute as stated was not direct but to have been so learnt hearing from his Uncle. These are all the evidences of the prosecution which have been led to establish the complicity of this accused. Thus we find that the evidence on record in support of the last seen theory do not at all establish that the deceased was last seen with the company of this accused. The prosecution, therefore, having not proved that, the burden of proof cannot be said to have shifted upon the shoulder of the accused in saying that the fact thereafter being within his special knowledge, he was burdened to Page 9 of 11 CRLA No.1062 of 2023 explain that what happened thereafter. The Trial Court in that regard has arrived at the following conclusion:-
"Thus, right from the existence of civil dispute between the family of the accused and the deceased, the fact of deceased last seen alive with the accused and the death of the deceased within a short gap of time and the fact of no explanation offered by the accused form a chain of circumstantial evidence, which has been established beyond reasonable doubt, thereby unerringly points to the guilt of the accused. The proved circumstantial evidences are so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. Those established circumstances show that in all human probability the act of the murder of the deceased Bidyadhar Mahakud must have been committed by the accused.
The evidence which he have discussed, in our considered view, do not stand to support the above conclusion of the Trial Court in any way. Therefore, we hold that the prosecution has failed to establish the charge that the accused had intentionally caused the death of Bidyadhar beyond reasonable doubt.
In that view of the matter, the judgment of conviction and order of sentence impugned in this Appeal are held liable to be set aside.
11. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 04.07.2022 passed by the Page 10 of 11 CRLA No.1062 of 2023 learned Sessions Judge, Keonjhar, in Sessions Trial No.30 of 2019 are hereby set aside.
The Appellant (accused), namely, Padmalochan Mahakud @ Pakulu be set at liberty forthwith, if their detention is not required in connection with any other case.
(D. Dash) Judge.
V. Narasingh I agree.
(V. Narasingh)
Judge.
Himansu
Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 22-Aug-2024 18:15:11
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CRLA No.1062 of 2023