Orissa High Court
Gagan Bihari Das And 2 Others vs State Of Odisha on 27 September, 2021
Bench: S.K. Mishra, Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.113 of 2002
From the judgment of conviction and sentence dated
21.11.2002 passed by the learned 2nd Additional Sessions
Judge, Puri in S.T. Case No.09/156 of 1999.
Gagan Bihari Das and 2 others .... Appellants
Mr. Satyabrata Panda, Advocate
-versus-
State of Odisha .... Respondent
Mr. Arupananda Das, AGA
CRLA No.117 of 2002
Dhada Patra and 2 others .... Appellants
Mr. Satyabrata Panda, Advocate
-versus-
State of Odisha .... Respondent
Mr. Arupananda Das, AGA
CRLA No.01 of 2003
Purna @ Purna Chandra Swain .... Appellant
Mr. Satyabrata Panda, Advocate
-versus-
State of Odisha .... Respondent
Mr. Arupananda Das, AGA
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
JUDGMENT
Date of Hearing : 09.03.2021 & Date of Judgment: 27.09.2021 S.K.Mishra, J. : In the aforesaid appeals, the appellants assail their conviction and sentence to undergo imprisonment for life under section 302/34 of the Indian Penal Code and R.I. for 10 years under CRLA No.113 of 2002 // 2 // section 364/34 of the Indian Penal Code recorded by the learned 2nd Additional Sessions Judge, Puri in S.T. Case No.09/156 of 1999, as per the judgment of conviction and order of sentence dated 21.11.2002.
02. Bereft of unnecessary details, the case of the prosecution is that on 11.04.1998 at about 4 P.M. the appellants took Babu Sahu, the brother of the informant from his house. As the brother of the informant, Babu did not return till late night, the informant and his family members searched for him during night, but could not trace him out. On the next morning at about 6 A.M., Babu Sahu was shifted by driver Babu Mallik in his mini truck bearing No.OR-02-C-648 in injured and unconscious condition. The victim, Babu Sahu had sustained multiple bleeding injuries. Thereafter, he was shifted to Charichhak Hospital wherefrom on being advised by the Medical Officer, Charichhak he was removed to SCB Medical College & Hospital, Cuttack. At that juncture the informant had lodged the F.I.R. at 11 A.M. on 12.04.1998 at Nayahat Out Post which was subsequently forwarded to Gop Police Station for registration of the case. Accordingly Gop P.S.Case No.43 of 1998 was CRLA No.113 of 2002 // 3 // registered under section 307/34 of the Indian Penal Code. It is also the case of the prosecution that in course of his shifting to SCB Medical College & Hospital, on query of his family members, the victim disclosed the names of the appellants and the manner of assault and the weapons used by the appellants. After few hours of admission of the victim in SCB Medical College & Hospital, he succumbed to the injuries. On receipt of a memo from the SCB Medical College & Hospital, Mangalabag P.S. Case No.264 of 1998 was registered and inquest over the dead body was conducted and thereafter post mortem examination was conducted over the dead body of the victim. After the death of the victim, the case was converted to a case under section 302 of the Indian Penal Code and U.D.Case record of Mangalabag P.S. was sent to Gop Police Station for further investigation.
In course of investigation, the Investigating Officer had seized the blood stained earth, grass and some sample earth and the Tractor and the Trekker in which the victim and the appellants travelled on the date of occurrence. The Investigating Officer had also seized the nail clippings, sample scalp hair, CRLA No.113 of 2002 // 4 // sample blood of the deceased and the blood stained full pant of the deceased and sent those materials to S.F.S.L., Rasulgarh for chemical examination. After completion of investigation charge sheet was submitted under the aforesaid sections against the appellants.
03. The appellants have denied their complicity in the alleged crime. They have also not adduced any defence evidence in support of their plea.
04. In order to prove its case, the prosecution has examined 15 witnesses, out of which P.W.1 is the informant. P.Ws.6, 12, 9, 10 are the brothers, mother and father of the deceased respectively. P.Ws.2 & 3 had seen the appellants taking the deceased towards village Jogeswarpur. P.W.4 is the helper of the Mini Truck in which the victim was shifted to his house. P.Ws.5 & 7 are the witnesses who had seen the appellants taking the deceased in a tractor towards his village Otara. P.W.8 is a witness who had seen the appellants and the deceased at Jogswarpur while they were in exchange of hot words in his hotel. P.W.11 had seen the deceased discussing with some persons at Otara Bazar. P.W.13 is the I.O. and P.W.14 is the CRLA No.113 of 2002 // 5 // A.S.I. of Police attached to Mangalabag Police station, who took up the investigation in Mangalabag P.S. Case No.264 of 1998. P.W.15 is the Doctor who conducted autopsy over the deceased.
05. That after completion of trial, the learned trial judge found the appellants guilty and sentenced them to undergo imprisonment for life under section 302/34 of the Indian Penal Code and R.I. for 10 (ten) years under section 364 of the Indian penal Code and directed the sentences to run concurrently.
06. The learned Trial Judge took into consideration the following points, while coming to a conclusion that the prosecution has proved its case beyond reasonable doubt:-
(i) that the doctor after conducting postmortem examination came to the conclusion that the death of the deceased was homicide in nature;
(ii) evidence of P.W.9, mother of the deceased stated to be duly corroborated by P.W.2 & P.W.3 led to the conclusion that the accused Murali, Purna Swain, Jata Das, Dhada Patra, Raju Barik, Babuli Dixit and Prasanna Khuntia called the CRLA No.113 of 2002 // 6 // deceased and he accompanied them and proceeded towards the market where from about 40 persons took the deceased towards Jogeswarpur;
(iii) this fact occurred at about 4.00 P.M. on 11.4.1998;
(iv) P.W.8 testified that on 11.4.1998 at 1.00 P.M. Babu Sahu took meal in his hotel and at that time, there was an altercation between Gagan Sahu and deceased Babu Sahu, and both of them ran away from the hotel;
(v) Subsequently, accused Gagan, Murali and some other persons went to his hotel and enquired regarding quarrel between accused Gagan and deceased Babu Sahu, and thereafter took Babu Sahu towards Jogeswarpur;
(vi) The following morning Babu Mallick lifted the deceased with multiple bleeding injuries in his Mini Truck and left in his house. They found deceased lying on the canal embankment with bleeding injuries. While the deceased was being shifted in an injured condition to S.C.B. Medical College and Hospital, Cuttack from Charichhak Hospital on their query, the deceased disclosed the names of Purna, Raju, Murali, CRLA No.113 of 2002 // 7 // Gagan, Jata and Dhada, Babuli (relying on the evidences of P.Ws.1, 6, 10 and 12 regarding this component of oral dying declaration).
Assailing the findings of guilt, the learned counsel for the appellant would not dispute the medical evidence pointing towards the homicidal nature of the death of the deceased. But, he argued that the prosecution has failed to prove all the incriminating circumstances forming an unbroken chain of events or circumstances, unerringly pointing towards the guilt of the accused persons. He argued that in this case, there is inconsistent evidence regarding the last seen theory. Therefore, it is argued that the appeals should be allowed and the conviction should be set aside. Mr. Arupananda Das, learned Additional Government Advocate, on the other hand, argued that in this case the chain of circumstances has been established, and therefore, the conviction should be maintained by the appellate court.
07. As there is no dispute regarding the homicidal in nature of death of the deceased, it is not expedient to discuss the evidence regarding the postmortem examination and opinion of CRLA No.113 of 2002 // 8 // the doctor. Therefore, we confine our analysis only to the circumstances nos.(ii) to (v). The learned Trial Judge relying upon the case of State of Odisha vs. Dayanidhi Bisoi, (2002) 23 OCR-564 held that the last seen theory is established in this case.
However, on examination of the material available on record reveals that P.W.9, mother of the deceased along with P.Ws.2 and 3 stated that they saw the deceased Babu Sahu going with the appellants and some 40 persons towards Jogeswarpur at 4.00 P.M. on 11.04.1998. The learned Trial Judge also took into consideration the evidence of P.W.8, who stated on 11.04.1998 at about 1.00 P.M. Babu took meal in his hotel which is situated in front of Apsara Cinema Hall at Jogeswarpur, and there was an altercation between the accused Gagan and deceased Babu Sahu. Thereafter, both of them ran away from the hotel. P.W.5, Govinda Sahu has also been relied upon, who has stated that he saw the deceased and the accused persons near the Apsara Cinema Hall. P.W.9 has stated that on that day they all went towards the market from where others joined and about 40 persons including the seven accused CRLA No.113 of 2002 // 9 // persons took Babu Sahu towards Jogeswarpur. If this statement is correct, then the prosecution should have explained how the P.W.8 could see the deceased in the company of accused Gagan and others going from his hotel towards Jogeswarpur at about 1.00 P.M. on 11.04.1998. Also there is no explanation as to how P.W.5 saw the accused in the company of the appellants and especially with Purna Swain holding his hand near Apsara Cinema Hall of Nayahat. Admittedly, in this case, no T.I, parade has been conducted but these witnesses have stated that they identified the accused persons in a T.I. parade which appears on the face of the record to be incorrect. Furthermore, P.W.8, Hrusikesh Pradhan has stated that the occurrence took place on 11.04.1998 at about 1.00 P.M. when Babu Sahu was taking meal in his hotel and there was some exchange of words between him and accused Gagan, and both of them ran away. He specifically stated in examination-in-chief that the deceased Babu Sahu was chasing the accused Gagan and that about 4.00 P.M. accused Gagan, Murali with three persons came to his hotel and enquired about the quarrel between the accused Gagan and the deceased, they proceeded towards Nayahat. So, CRLA No.113 of 2002 // 10 // after sometime they brought Babu and took him towards Jogeswarpur market.
08. Thus, an analysis of these materials leaves no doubt in the mind of the Court that there is no specific and cogent reliable evidence to come to a conclusion that at about 4.00 P.M. on 11th April, 1998, the appellants took the deceased with them along with 40 others from his house as stated to by P.W.2 and supported by two other witnesses. So, in our considered opinion, this component of evidence, i.e., last seen together of the appellants taking the deceased has not been conclusively established in this case.
09. Then, next important component of evidence alleged is the dying declaration made by the deceased to his relations at the time of being shifted from Charichhak to SCB, Medical College and Hospital, Cuttack. This aspect has been stated to by P.Ws.6, 10 and 12. P.W.6 has stated in the examination-in-chief that on the way to Cuttack his brother Babu Sahu on his query told that Purna, Murali, Gagan, Jata Dhada, Raju and Babuli assaulted him by means of crowbar and bhujali. He stated that when he reached Charichhak at 7.00 CRLA No.113 of 2002 // 11 // A.M. the doctor gave one injection and bandages the injuries of his mother and took the deceased to the SCB, Medical College and Hospital, Cuttack. P.W.10 has stated that while they were taking deceased Babu Sahu in a Mini Truck to Cuttack Hospital, on his query, the deceased replied that Murali, Raju, Purna, Jata and Gagan, Dhada and Babuli Dixit have inflicted the cut injuries on him by means of bhujali and crowbar. His condition was critical, when they reached Cuttack Medical. After some time, he died in Cuttack Medical. He has stated in his cross-examination that he did not narrate about detail before the Medical Officer, Cuttack. He further admitted that while being examined by the Mangalabag Police, he did not state that his son stated about the assault on him by the aforesaid accused persons. He further stated that while been taken into Cuttack Medical, he revealed the names of Prasanna Khuntia and Gunia Patra. P.W.12, another witness, namely, Prasanna Kumar Sahu, who happens to be the younger brother of the deceased, has also stated that while the deceased Babu was being shifted to Cuttack Medical, he implicated the aforesaid six appellants to have assaulted him by means of bhujali and crowbar at village CRLA No.113 of 2002 // 12 // Otara. In cross-examination at para 8, he has stated prior to his statement before the police, he has not stated to anybody about what he heard from the deceased while taking him to Cuttack Medical. He further states that when he was not able to talk properly, the Doctor at Charichhak Hospital did not ask anything from his deceased brother.
10. So, on analysis of the evidence regarding alleged dying declaration, it is found that the aforesaid dying declaration is an oral dying declaration and has been made to persons, who are the brother, father and the younger brother of the deceased. Though, there is some evidence that some other persons were also present, they have not been examined to prove this component of evidence regarding the declaration made by the deceased before his death. Oral dying declaration is relevant and admissible. However, to base a conviction on such oral dying declaration, the court must be satisfied about the truthfulness, voluntariness and reliability of it. It is also settled principle of law that an oral dying declaration made before the witness can be relied upon to convict a person and it is not always necessary that the oral dying declaration should be CRLA No.113 of 2002 // 13 // reproduced in verbatim. Even, if the substance of the dying declaration is reproduced before the Court, the Court may in his discretion accept the same. The ultimate analysis of appreciation of evidence depends on the robust, commonsense and trained intuition of the judge. Applying such commonsense and trained intuition, we are of the opinion that this piece of evidence is not trustworthy to come to a conclusion that the conviction recorded is correct, for the reason stated above. So, keeping in view the aforesaid principles, we are of the opinion that this is a case where the dying declaration cannot be relied upon wholly to come to a conclusion that the prosecution has proved its case beyond reasonable doubt.
11. Once, the circumstances of last seen together and the dying declaration are disbelieved, the entire prosecution case becomes suspect and there are two breaks in the chain of events and it cannot be held to be a complete chain unerringly pointing towards guilt of the appellants.
12. Since the case is based on circumstantial evidence, the production of the weapon of offence is also of vital importance. When other circumstances are weak, the prosecution must CRLA No.113 of 2002 // 14 // produce the weapon of offence. We must hasten to add that non-production of weapon of offence is not always vital to the prosecution, but in the given circumstances of this case, we are of the opinion that non-production of the weapon of offence is also a circumstance militating against the prosecution case.
13. It is also seen from the record that no spot map has been prepared by the Investigating Officer in this case. As the actual occurrence of assault on the deceased has not seen by anybody and the dead body was found on the embankment of the canal far away from his home or the hotel of P.W.8, it was necessary on the part of the Investigating Officer to prepare the spot map. In other words, there should be objective determination of the spot. In this case, the same has not been done in view of the fact that no spot map has been prepared by the Investigating Officer.
Together with the aforesaid circumstance militating against the prosecution, it is further seen that no chemical examination report has been taken into evidence in this case. It is borne out from the record that the Investigating Officer collected some sample earth blood stain from the spot and the CRLA No.113 of 2002 // 15 // same has been forwarded to the S.F.S.L., Rasulgarh, Bhubaneswar vide the forwarding report 17.7.1998, which has not been exhibited by the Investigating Officer, P.W.13.
14. The Investigating Officer has further revealed that the deceased was first assaulted being tied to an Electric Pole of Otara Bazar. But, he did not notice any marks of violence there and he did not find any incriminating article from the house of any of the accused persons. He could not also notice any incriminating substance on the seized Tractor and Trekker.
15. Thus, a cumulative effect of the aforesaid discussion, i.e. inconclusive evidence regarding last seen together, unreliable dying declaration, non-preparation of the spot map, non-proving the chemical examination report etc., leaves enough doubt in the mind of the Court. Hence, we are not inclined to hold that the prosecution has proved its case beyond all reasonable doubt, and therefore, the appellants are entitled to be acquitted of the offences.
16. Thus, on the ultimate analysis, all the three appeals are allowed. The conviction of the appellants for offences under Section 302/34 of the Penal Code by the learned 2nd Additional CRLA No.113 of 2002 // 16 // Sessions Judge, Puri in Sessions Trial No.9/156 of 1999 and sentences of imprisonment for life and imprisonment for ten years are hereby set aside. The appellants are acquitted of the offences. They are on bail. They be set at liberty forthwith, unless their detention is required in any other case. Their bail bonds be cancelled.
17. Accordingly, all the three CRLAs are disposed of.
18. The Trial Court Records (T.C.Rs) be returned back to the trial court forthwith along with copy of this judgment.
(S. K.Mishra) Judge S. Ratho, J. I agree (Savitri Ratho) Judge Orissa High Court, Cuttack The 27th September, 2021/TDTUDU CRLA No.113 of 2002