Orissa High Court
Krushna Khara & Others vs State Of Orissa on 4 December, 2023
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.139 of 2012
(An appeal U/S. 374(2) of the Code of Criminal
Procedure,1973 against the judgment passed by Shri
Ajoy Kumar Mohanty, Addl. Sessions Judge, Malkangiri
in C.T. No.31 of 2011 corresponding to G.R. Case No.
224 of 2010, arising out of Orkel PS Case No. 53 of
2010 of the Court of SDJM, Malkangiri)
Krushna Khara & others ... Appellants
-versus-
State of Orissa ... Respondent
For Appellants : Mr.J.K.Panda, Advocate
For Respondent: Mr.G.N.Rout, ASC.
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :05.10.2023
DATE OF JUDGMENT:04.12.2023
G. Satapathy, J.
1. This appeal by the convicts impugns the judgment dated 21.01.2012 and sentence dated 24.01.2012 passed by learned Additional Sessions Judge, Malkangiri in C.T. No. 31 of 2011 convicting the five appellants for offence punishable U/Ss. 147/302/201/149 of the IPC and sentencing each of them to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in CRLA No.139 of 2012 Page 1 of 13 default whereof, to undergo rigorous imprisonment for a further one year for offence U/Ss. 302/149 of IPC, to undergo RI for one year for offence U/S. 147 of IPC and to undergo RI for three years with fine of Rs.5,000/- in default whereof, to undergo RI for further six months for offence U/Ss.201/149 of IPC with direction for running of substantive sentence concurrently and set off against the pre trial detention.
2. The prosecution case in brief is that on 17.09.2010 at about 8 PM, the convicts Krushna Khara, Lachhu Khilla, Aita Muduli, Rama Chandra Muduli, Dayanidhi Muduli and others by forming an unlawful assembly had been to the house of Jagabandhu Sisha (hereinafter referred to as the "deceased") and quarreled with the deceased suspecting him for practicing witchcraft and in course of altercation, the aforesaid convicts and others dragged the deceased towards his backyard of the house and beaten him to death by giving fist and kick blows in prosecution of their common object and left the dead body of the deceased there, but subsequently, on 19.09.2010 in the evening, they took the dead body from CRLA No.139 of 2012 Page 2 of 13 the spot and burnt it on the outskirt of their village to cause disappearance of the evidence.
3. On 20.09.2010 on receipt of information, the IIC, Orkel PS directed PW1-Pradeep Kumar Dharua, the SI of Police, to verify the truth of such information and accordingly, PW1 after making Station Diary Entry No.415 dated 20.09.2010 verified the information by way of an enquiry which revealed about the aforesaid incident. After such enquiry, PW1 drew plain paper FIR (Ext.1) at the spot on 20.09.2010 at 6.30 PM against the five convicts and others including Nanda Kuba and Tanka Khilla and sent the same to the IIC through Havildar by taking up preliminary investigation. In absence of IIC, the ASI of Police-PW10-Anirudha Routray, registered PS Case No.53 of 2010 for offence U/Ss.147/302/201/149 of IPC and took up the investigation of the case. In the course of investigation, PW10 accordingly examined the witnesses, arrested the convicts and on conclusion of investigation, he submitted charge-sheet against the convicts resulting in trial in the present case after denial of the convicts to CRLA No.139 of 2012 Page 3 of 13 the charge framed against them for offence U/Ss.147/302/ 201/149 of IPC.
4. In the trial, the prosecution examined altogether ten witnesses and relied upon documents under Exts.1 to 3 as against no evidence whatsoever by the defence. The plea of the convicts in the trial was of complete denial and false implication. Of the ten witnesses, PWs.2 and 4 were seizure witnesses, whereas PWs.3 and 5 to 8 were projected as eye witnesses to the occurrence, out of whom, PWs.7 and 8 are the daughters of the deceased, whereas PW9 is the daughter-in-law of the deceased and PW10 is the IO in this case.
5. After appreciating the evidence upon hearing the parties, the learned trial Court convicted and sentenced the convicts to the punishment indicated supra by the impugned judgment by mainly relying upon the evidence of P.W.8 as solitary eye witness to the occurrence since other eye witnesses turned hostile.
6. Assailing the impugned judgment of conviction and order of sentence, Mr.J.K.Panda, learned counsel for the appellants has submitted that there is absolutely no CRLA No.139 of 2012 Page 4 of 13 evidence against the appellants for commission of any offence, rather their implication in this case was on the basis of surmises and conjectures, but the learned trial Court without adverting to the evidence on record on proper prospective returned with a finding of guilt of the appellants for offence U/S. 302/149 of IPC which cannot sustain in the eye of law. It is, however, alternatively submitted that even if the evidence on record are taken into consideration, at best a offence U/S. 324/34 of IPC would be attracted against the convicts and thereby, the convicts having already undergone incarceration for a period of more than one year and nine months, the convicts be sentenced to the period already undergone.
7. On the other hand Mr.G.N.Rout, learned ASC, however, has refuted the submission advanced for the convicts by contending inter alia that the conviction of the appellants were secured by legally admissible evidence and the guilt of the convicts having established for committing murder of the deceased in prosecution of their common object and for rioting, the impugned CRLA No.139 of 2012 Page 5 of 13 judgment of conviction and sentence calls for no interference.
8. After having considered the rival submissions upon perusal of record, it is noticed that the learned trial Court has returned with the finding of the guilt of the appellants-convicts only on the evidence of solitary eye witness P.W.8 which is required to be scrutinized in proper prospective. P.W.8 in her evidence has stated that at about 8 PM in the evening on the relevant day, while her father was taking meal, the convicts dragged her father from their house and assaulted him by giving fist and lathi blows causing his death and she saw the convicts assaulting her father causing his death and the convicts threw her father in their backyard and the dead body of her father was lying on the field and they also cremated the dead body of her father. It is her further evidence that after the police came, she narrated about the incident.
9. At this juncture, the evidence of PW1, who being a police SI had come to the village first to verify the authenticity of the news of dead body of a person CRLA No.139 of 2012 Page 6 of 13 lying in the village, needs to be looked into. The testimony of PW1 transpires that on receipt of information of a dead body lying in village Kubaput, he being directed by the IIC had been to that village along with Havildar-Kartikeswar Khandai and the villagers told him that the dead body belonged to one Jagabandhu Sisha. It is his further evidence that PW7(daughter of the deceased) told him that the dead body was lying on the backside of their house near a Tamarind tree, but when PW1 did not find the dead body there, PW7 again told him that the dead body had already been cremated and PW1 accordingly went to the spot, where the dead body was cremated and found a heap of ash lying there at the spot. The testimony of PW1 further transpires that PW7 told him that the convicts and some others had come to their house on 17.09.2010 at about 8 PM and they charged the deceased for practicing witchcraft and there was altercation between her father and the convicts and she suspects that the convicts might have killed the deceased and they dragged her father to the backside of their house. PW1 had accordingly lodged the FIR (Ext.1) CRLA No.139 of 2012 Page 7 of 13 on 20.09.2010 and took up preliminary investigation during which he prepared spot map under Ext.3 and seized some ashes from the spot under Ext.2. The cross examination of PWs.1 and 8 yield no result except one significant contradiction elicited from the mouth of PW8 which was proved through the IO-PW10 "the appellants- convicts assaulted her father by means of lathi". The convicts assaulted the deceased by means of lathi was also conspicuously absent in the FIR and such fact is also a significant omission and thereby, it cannot be taken into consideration while appreciating the evidence.
10. On adverting to the evidence of other witnesses, PW7 being the other daughter of the deceased was found from her evidence not to be an eye witness to the occurrence. Similarly, PW9 being the daughter-in-law of the deceased did not support the prosecution case. Besides, PWs.2 and 4 did not support the seizure by stating in evidence that nothing was seized in their presence.PWs.3, 5 and 6 had resiled from their previous statement and do not support the prosecution case. CRLA No.139 of 2012 Page 8 of 13
11. From a careful and meticulous scrutiny of evidence placed on record, it appears that the fact proved against the convicts was their assault on the deceased, but neither there was any evidence to indicate the homicidal death of the deceased nor was it revealed from the evidence on record that the deceased died due to assault of the convicts. Additionally, it was elicited from the mouth of P.W.8 that liquor was provided to him (deceased) in their house along with the meal. Even otherwise, the solitary testimony of so called eye witness PW8, who out of the independent witnesses had only spoken about the occurrence, is believed, it would only establish that the convicts had taken away the deceased from her house and killed him by giving fist blows as well as cremated his dead body, which does not satisfy the ingredients of murder as defined in Sec. 300 of IPC, particularly when the homicidal death of the deceased was not established. Besides, the evidence of PW8 suffers from inconsistency with regard to presence of her elder sister PW7 as admitted by her in cross-examination when PW7 herself stated in her evidence that she was not CRLA No.139 of 2012 Page 9 of 13 present at the time of occurrence and later, she heard it from PW8. In the aforesaid circumstance and in absence of evidence of homicidal death of the deceased and keeping in view no evidence being tendered by the prosecution objectively to infer that the act by which death was caused to the deceased was done with intention to cause death or with intention to cause such bodily injury as the convicts knew it to be likely to cause death of the deceased and the act intended to be inflicted by the convict was sufficient to cause death of the deceased or such act of the convict was so imminently dangerous that it must in all probability cause death of the deceased or such bodily injury inflicted as was likely to cause death of the deceased, the charge U/S.302 of IPC is bound to fail, but the fact that is proved against the convicts clearly establishes beyond all reasonable doubt that they had assaulted the deceased by giving fist blows, which would squarely attract the offence U/S.324 of IPC against the convicts. There is also absolutely no evidence available on record to indicate the common object of the appellants-convicts and merely because CRLA No.139 of 2012 Page 10 of 13 there were five persons assaulting another by giving fist blows would not perse attract the liability U/S.141 of IPC and, thereby, the offence U/S.147 of IPC would obviously not made out against the appellants, but since it was established against all the convicts for assaulting the deceased, such act of assault of the convicts would made them liable with the aid of section 34 of IPC. Further, the evidence of PW8 with regard to cremation of dead body of the deceased by the convicts being omnibus in nature since she had not stated specifically as to who cremated the dead body and how and when it was cremated, it would be unsafe to convict the appellants for the offence U/S.201 of IPC.
12. On a conspectus of the evidence placed on record and the discussions made hereinabove, it appears to the Court that the prosecution has been successfully able to establish the guilt of the convicts only for offences U/Ss.324/34 of IPC, but since the convicts are found to have already undergone imprisonment for a period of near about one year and nine months during the trial and subsequent to the pronouncement of judgment pending CRLA No.139 of 2012 Page 11 of 13 this appeal as per the record, the sentence of rigorous imprisonment for the period already undergone by the convicts and to pay a fine of Rs.10,000/- in default whereof, to undergo RI for three months for U/Ss.324/34 of IPC would meet the ends of justice. Hence, each of the convicts is, accordingly, sentenced to undergo rigorous imprisonment for the period already undergone and to pay a fine of Rs.10,000/- in default to whereof, to undergo rigorous imprisonment for a further period of three months for offences U/Ss.324/34 of IPC.
13. In the result, the appeal by the convicts' stands allowed in part. The impugned judgment of conviction and order of sentence passed on 21.01.2012 and 24.01.2023 by learned Additional Sessions Judge, Malkangiri in C.T. No. 31 of 2011 are hereby set aside and the conviction of the appellants-convicts is accordingly modified to offences U/Ss.324/34 of IPC and they are sentenced to the punishment indicated in the preceding paragraph.
14. Be it noted, since the appellants are on bail, their bail bonds stand discharged subject to payment of CRLA No.139 of 2012 Page 12 of 13 fine as directed, in default whereof, the convicts have to undergo the default sentence, however, the concerned Court would take appropriate steps for realization of fine. In case of realization of whatever amount of fine, the same shall be paid to PWs.7 and 8 in equal ratio of 50:50.
(G. Satapathy) Judge I Agree (D.Dash) Judge Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2023 17:58:41 CRLA No.139 of 2012 Page 13 of 13