S.D.J.M. vs State Of Orissa
2021 Latest Caselaw 6324 Ori

                          HIGH COURT OF ORISSA: CUTTACK.
                                    CRLA No.114 of 2020
        From the judgment of conviction and order of sentence dated 31.01.2020
        passed by Sri A.K. Das, learned Sessions Judge, Angul in C.T.(s) No.141 of
        2015 (arising out of G.R. Case No.683 of 2015 of the file of the learned
        S.D.J.M., Angul corresponding to Angul P.S. Case No.260 dated
        19.05.2015).
                                               ---------

        Jitu Parida                                           ......            Appellant.

                                      - Versus-
        State of Orissa                                         ......       Respondent.


                      For Appellant       :          Mr. A.K. Nath & S.K. Rout,

                      For Respondent      :        Mr. G.N. Rout,
                                                   Additional Standing Counsel.

                                              ---------
                      CORAM:

                          SHRI JUSTICE S. K. MISHRA
                                       AND
                      SHRI JUSTICE PRAMATH PATNAIK

_____________________________________________________________ Date of Hearing- 11.11.2020 & 11.06.2021 and Date of Judgment- 11.06.2021

S. K. MISHRA, J. In this appeal, the sole appellant-Jitu Parida assails his

conviction, under Section 302 of the Indian Penal Code, 1860 (hereinafter

referred to as "the Penal Code" for brevity), and sentence to undergo

imprisonment for life as well as to pay fine to the tune of Rs.1,00,000/-, in

default of payment of fine to undergo R.I. for two years recorded by the

learned Sessions Judge, Angul in C.T.(s) No.141 of 2015.

02. The prosecution case in brief is that both the Appellant-Jitu

Parida and the deceased Mamuli Barik belonged to village Kangula and

there was previous enmity between them. The Appellant-Jitu Parida was

once arrested by the Police, on the complaint of the deceased Mamuli Barik,

and was subsequently released on bail. On 19.05.2015 at about 2.00 P.M.

Jitu Parida on getting information that Mamuli had been to Angul Town and

would return home, waited in the Tiffin shop of Sanjaya Parida located at

Bihari Chhak, Kangula. At about 2.30 P.M. when Mamuli Barik reached the

spot, the accused called the deceased to the Tiffin shop of Sanjaya Parida

and there was altercation between them relating to previous dispute. Sanjaya

Parida also reached the Tiffin shop and saw the fighting between them.

During such quarrel, the accused picked up a Paniki (Kitchen Knife) and cut

the neck of the deceased Mamuli Barik, as a result of which, the deceased

died at the spot. Jitu Parida after committing murder of the deceased, threw

the weapon of offence i.e. Paniki there at the spot and ran away towards

Angul. Sanjaya Parida, the owner of the Tiffin shop went to the informant

and informed about the murder of Mamuli Barik by the accused. Getting

such information, the informant who is the brother of the deceased, rushed to

the spot and saw the dead body of the deceased inside the Tiffin shop of

Sanjaya Parida and a blood stained Paniki lying there. Thereafter, he went

to the Police Station and lodged the written report vide Ext.3, on the

basis of which, Angul Police Station Case No.260 of 2015 was

registered under Sections 302/ 114/ 34 of the Penal Code against Jitu Parida

and one Rohita Parida, who alleged to have instigated the accused Jitu

Parida to commit murder of the deceased. The Inspector-In-Charge, Angul

Police Station, Angul took up the investigation of the case.

During course of the investigation, P.W.18 (Samir Kumar

Panda), the Inspector-In-Charge of Angul Police Station, Angul examined

the complainant and other witnesses, visited the spot, prepared the spot map

vide Ext.10, seized the weapon of offence, i.e, the blood stained sharp

cutting weapon (Paniki) vide seizure list Ext.4, at about 5.10 P.M., held

inquest over the dead body of the deceased vide inquest report Ext.2,

dispatched the dead body of the deceased Mamuli Barik for post mortem

examination vide dead body challan Ext.11. At about 7.50 P.M., the

Investigating Officer apprehended the accused, interrogated and arrested him

at about 8.15 P.M., on 20.05.2015 forwarded the accused to court after his

medical examination, seized one blood stained banian, one multi colour

napkin, blood sample, nail clippings of the deceased vide Ext.1, seized the

wearing apparels, biological sample of the deceased vide Ext.6. On

01.07.2015, he received the post-mortem report of the deceased, sent a

query on the weapon of offence to the Medical Officer, District

Headquarters Hospital, Angul for examination and opinion as

to whether the injuries found on the deceased are possible by the seized

weapon. On 09.08.2015, he handed over the charge of the investigation to

P.W.17 (Subash Chandra Sahu), the Inspector-In-Charge of Angul Police

Station, Angul. P.W.17, during course of investigation, re-examined the

complainant and other witnesses, sent the exhibits to S.F.S.L, Rasulgarh,

Bhubaneswar for chemical analysis and on completion of investigation,

submitted charge-sheet.

03. The defence plea is one of complete denial and false

implication.

04. The prosecution in order to establish its case examined 18

witnesses of whom P.W.5 (Padi @ Pradeep Barik) is the informant, P.W.9

(Akrura Dash) is the owner of the cycle shop, who allegedly witnessed the

occurrence but did not support the prosecution, P.W.1 (Chandramani Patra)

is the Constable and is a witness to seizure vide Ext.1, P.W.2 (Pramod

Kumar Barik) is the cousin brother of the deceased in whose presence the

inquest was held vide Ext.2, P.W.3 (Draupadi Barik) is the wife of the

deceased, P.W.4 (Sudhakar Behera) is an independent witness to the

occurrence, P.W.6 (Rakesh Nanda) is a witness to seizure vide Ext.4, P.W.7

(Sanjay Parida) is the owner of the Tiffin shop, where the occurrence took

place, P.W.8 (Prakash Barik) is also a witness to inquest vide Ext.2, P.W.10

(Ajit Kumar Naik) is the Constable, who carried the dead body of the

deceased for post mortem examination, P.W.11 (Gumani Sahu) is a

witness to seizure vide Ext.1, P.W.12 (Sanjay Barik) is a witness to inquest

vide Ext.2 and is also a post occurrence witness, P.W.13 (Gurubaria

Pradhan) is the Havildar and is a witness to seizure vide Ext.6, P.W.14

(Srikanta Barik) and P.W.15 (Bidyadhar Barik) are the witnesses to seizure

vide Ext.6, P.W.16 (Dr. Santilata Das) is the doctor, who conducted post-

mortem over the dead body of the deceased, P.W.17 (Subash Chandra Sahu)

is the Investigating Officer, who submitted charge-sheet after completion of

investigation and P.W.18 (Samir Kumar Panda) is the Investigating Officer,

who conducted most part of the investigation. Apart from the oral evidence

of P.Ws.1 to 18, the prosecution also relied upon the documentary evidence

marked as Exts.1 to 14 as well as the material objects marked as M.Os.I to

XI to substantiate the charge against the accused.

05. No evidence was adduced on behalf of the defence.

06. Considering the evidence adduced by P.Ws.3, 5 and 12, learned

Sessions Judge, Angul came to the conclusion that the prosecution has

proved its case beyond all reasonable doubt and convicted the Appellant as

stated supra.

07. In assailing the impugned judgment it was strenuously

contended by the learned counsel for the Appellant that in view of the

settled position of law the hearsay evidence of a witness is not admissible

in the eye of law, the learned Sessions Judge, Angul accepting the evidences

of P.Ws.3, 5 and 12 under Section 6 of the Indian Evidence Act, 1872 (res

gestae), which they have heard from P.W.7, eye-witness, who has not

supported the prosecution, has come to an erroneous conclusion and passed

the judgment of conviction and order of sentence.

08. In reply, learned Additional Standing Counsel for the State

contended that the learned trial court, considering all the materials on

records, cogently concluded that the appellant committed murder of the

deceased. He would further submit that there is no scope to find fault with

the findings and conclusion of the learned trial court, especially when

though P.Ws.3, 5 and 12 are not eye-witnesses to the occurrence, their

evidence is admissible under Section 6 of the Indian Evidence Act 1872 as

res gestae.

09. It is not disputed that death of the deceased was homicidal in nature. In course of post mortem examination over the dead body of the deceased by P.W. 16, the deceased was found to have sustained following injuries:

"External injury:-

I. Rigor mortis present both upper and lower limps.

II One incised wound across the neck over anterior aspect extending from below the left ear up to right side of neck (below the right ear). Cutting the skin, underline structures of neck, bisecting the trachea and oesophagus completely cutting the vessels of neck (jugular vein, carotid artery) on both sides.

Xx xx xx xx xx Internal injury:-

All the internal organs were found to be congested. Both the chambers of the heart are found empty, stomach contain about 100 ml. of digestive food materials."

P.W.16 opined that the above mentioned injuries were ante mortem in nature

and might have been caused by sharp cutting weapon. Cause of death is due

to hemorrhage and shock and completely bi- section of trachea. The injuries

noticed on the body are sufficient in ordinary course of nature to cause

death. In his examination in chief he stated that on 01.07.2015, he received a

requisition from police with the weapons of offence, i.e. Kitchen knife

(Paniki) regarding the possibility of the injuries noticed on the body by that

weapon and after examination of the said weapon, he opined that the injuries

mention in the post mortem examination report of the deceased, are possible

by that kitchen knife.

10. In order to congregate the contentions raised by the learned

counsel for both the parties, we have to discuss the doctrine of res gestae

and Section 6 of the Indian Evidence Act, 1872. Usually evidence is brought

under res gestae when it cannot be brought under any section of the Indian

Evidence Act. The intention of the law makers was to avoid injustice, where

cases are dismissed due to lack of evidence. Courts have always been

conscious that this doctrine should never be expanded to an unlimited

extent. Each case in criminal law should be judged according to its own

merit. When it is proved that the evidence forms part of the same transaction

it is admissible under Section 6 of the Indian Evidence Act, 1872 but

whether it is reliable or not depends on the discretion of the Judge. This

doctrine is more complex and vague. Moreover, it is well settled principle of

law that hearsay evidence is not admissible in the eye of law.

11. In this case, P.W.3, the wife of the deceased, has stated on oath

that at the alleged time Sanjay Parida (P.W.7) of her village informed her

that accused Jitu Parida hacked her husband with a kitchen knife at Bihari

Chhak in his hotel. P.W.5, the elder brother of the deceased, has stated in his

evidence that while he was taking rest after the lunch, Sanjay Parida (P.W.7)

arrived in their house and told him that accused Jitu Parida had killed his

brother Mamuli by means of a kitchen knife (Paniki) by causing cut injury

on his throat. So, immediately he rushed to the spot and noticed the dead

body of his younger brother Mamuli lying in a pool of blood inside the

restaurant of Sanjay Parida. P.W.12 in his examination-in-chief stated that

the incident took place on 19.05.2015 at about 3.00 P.M. in the restaurant of

one Sanjay at Bihari Chhak of village Kagula. At the relevant time, he was

in their village. Hearing about the murder of Mamuli by the accused Jitu

Parida from one Padi Barik over telephone, he immediately rushed to the

spot and noticed the dead body of Mamuli lying in that restaurant in a

pool of blood. There was cut wound on his neck and kichen knife (paniki)

stained with blood was also lying near the dead body. At the relevant time,

there was a gathering near the dead body and on his asking the restaurant

owner Sanjay told him that there was quarrel between the accused Jitu and

deceased Mamuli in his restaurant and during that period accused Jitu dealt

blows on the neck of deceased Mamuli by means of a kitchen knife resulting

his death and just after it, Jitu ran away towards Angul town.

12. In order to properly appreciate the factual aspect of the case in

the light of the principle of law governing the doctrine of res gestae, the

exact words appearing in Section 6 of the Indian Evidence Act, 1872 have to

be examined, which read as follows:

"Relevancy of facts forming part of same transaction.- Facts, which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

There are four illustrations. In this particular case, the relevant

illustration is "Illustration (a)" which reads as follows:

"A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating , or so shortly before or after it as to form part of the transaction is a relevant fact."

P.W.3 (Draupadi Barik), P.W.5 (Padi @ Pradeep Barik) and

P.W.12 (Sanjay Barik) stated that P.W.7 (Sanjay Parida) revealed before

them separately and independently and stated that the Appellant-Jitu Parida

committed murder of the deceased Mamuli by cutting his throat by means of

a Paniki (kitchen knife). The spot of occurrence defined by P.W.7 (Sanjay

Parida) located at Bihari Chhak of Kangula. Whereas this witness P.W.7

(Sanjay Parida) has revealed this fact to P.W.3 (Draupadi Barik) in house of

the P.W.3 and the deceased. So, it cannot be said that the description made

by P.W.7 before P.W.3 was spontaneous forming part of the same

transaction. P.W.5 (Padi @ Pradeep Barik) has stated that he was going to

their house from his saloon, on the way, near Bihari Chhak, he noticed his

younger brother Mamuli sitting in a restaurant own by P.W.7 (Sanjay

Parida). He asked the deceased to accompany him, but the deceased stated

that he would come later on. Hence, this witness left for his house 10 to 15

minutes thereafter. While he was taking rest after the lunch, P.W.7 (Sanjay

Parida) arrived in their house and told him that accused Jitu Parida has killed

his brother Mamuli by means of a kitchen knife.

13. The Hon'ble Supreme Court in the case of Javed Alam -vrs.-

State of Chhattisgarh, reported in (2009) 6 SCC 450 has observed that "the

test of applying the rule of res gestae is that the statement should be

spontaneous and should form part of the same transaction ruling out

any possibility of concoction".

In the case of Gentela Vijayavardhan Rao and Another -

vrs.- State of A.P., reported in (1996) 6 SCC 241, the Hon'ble Supreme

Court has further held that "the principle or law embodied in Section 6 of the

Evidence Act is usually known as the rule of res gestae recognised in

English Law. The essence of the doctrine is that fact which, though not in

issue, is so connected with the fact in issue "as to form part of the same

transaction" becomes relevant by itself. This rule is, roughly speaking, an

exception to the general rule that hearsay evidence is not admissible. The

rationale in making certain statement or fact admissible under Section 6 of

the Evidence Act is on account of the spontaneity and immediacy of such

statement or fact in relation to the fact in issue. But it is necessary that such

fact or statement must be part of the same transaction. In other words, such

statement must have been made contemporaneous with the acts which

constitute the offence or at least immediately thereafter. But if there was an

interval, however slight it may be, which was sufficient enough for

fabrication then the statement is not part of res gestae".

Xx xx xx x xx"

The aforesaid two judgments have been taken into

consideration by the learned trial judge in coming to the conclusion

that the principle of res gestae is applicable to the present case.

In the case of Dhal Singh Dewangan -vrs.- State of

Chhattisgarh: reported in AIR 2016 SC 4745, the Hon'ble Supreme Court

had the occasion to examine the case in which the trial judge has convicted

the Appellant resorting to the principle of res gestae as enshrined under

Section 6 of the Indian Evidence Act, 1872 and he was sentenced to death.

In the said reported case, the accused allegedly killed his wife and five

daughters. P.W.1 stated that 'S' came to his house and told him that the

appellant had killed his wife and daughters. P.W.2 stated that "J" neighbor

of appellant-accused came to his house and told him that the appellant had

murdered his wife and daughters with an iron knife. P.W.3 stated that "G"

and "C" came to his house and informed him that the appellant had killed his

wife and five daughters when all the prosecution witnesses reached chowk

and found that mother of accused crying loudly that the appellant had killed

his wife and five children. In dealing with this aspect, the Hon'ble Supreme

Court in a majority view rendered by Hon'ble Justice Uday Umesh Lalit

dissented by Justice Hon'ble Prafulla C. Pant held as follows:

"22. Considered in the aforesaid perspective, we do not find the statements attributed to PW-6 Kejabai by PWs 3 and 5 to be satisfying the essential requirements. The house

of the appellant, according to the record, was at a distance of 100 yards from Gandhi Chowk, where these witnesses are stated to have found PW-6 Kejabai crying aloud. Both in terms of distance and time, the elements of spontaneity and continuity were lost. PW-6 Kejabai has disowned and denied having made such disclosure. But even assuming that she did make such disclosure, the spontaneity and continuity was lost and the statements cannot be said to have been made so shortly after the incident as to form part of the transaction. In the circumstances, we reject the evidence sought to be placed in that behalf through PWs 3 and 5. Even if we were to accept the version of PWs 1 and 2, the same would also suffer on this count and will have to be rejected."

14. The present case is squarely covered by the reported judgment

passed in the case of Dhal Singh Dewangan (supra). Hence, we are of the

opinion that there is no justification in relying upon the evidence of P.Ws.3,

5 and 12 by applying the principle of res gestae, when two eye witnesses

P.Ws.7 and 9 have not supported the case of the prosecution to come to the

conclusion that prosecution has proved its case beyond all reasonable doubt.

15. From the testimony of the aforesaid three witnesses i.e. P.Ws.3,

5 and 12 it is crystal clear that they were told by someone about the

occurrence. Therefore, we are of the opinion that the evidence of aforesaid

three witnesses are inadmissible being hearsay.

16. So, by applying the principle of res gestae which is an

exception to the rule of hearsay, the learned Sessions Judge, Angul has

committed error in appreciation of the evidence and, therefore, there being

no direct evidence against the Appellant, he is entitled to an order of

acquittal.

17. Hence, the appeal is allowed. The conviction and sentence to

undergo imprisonment for life as well as to pay fine to the tune of

Rs.1,00,000/-, in default of payment of fine, to undergo R.I. for two years

under Section 302 of the Penal Code recorded by the learned Sessions Judge,

Angul in the aforesaid case are hereby set aside. The appellant stands

acquitted of the charge under Section 302 of the Penal Code.

18. The appellant- Jitu Parida is on bail. He be set at liberty

forthwith by cancelling the bail bond executed by him.

The T.C.R. be returned back forthwith.

As the restrictions due to resurgence of Covid-19 are

continuing, learned counsel for the parties may utilize a printout of the order

available in the High Court's website, at par with certified copy, subject to

attestation by the concerned Advocate, in the manner prescribed vide

Court's Notice No.4587 dated 25th March, 2020 as modified by Court's

Notice No.4798 dated 15th April, 2021.

........................

                                                   (S. K. Mishra)
                                                       Judge
Pramath Patnaik, J.      I agree.
                                                .............................
                                                  (Pramath Patnaik)
                                                        Judge

Orissa High Court, Cuttack,
Dated the 11th June, 2021/B. Jhankar