Orissa High Court
Pilku Pangi @ Piluku vs State Of Orissa (Home Department) on 21 April, 2022
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 642 of 2014
In the matter of application under Section 374 of the Code of Criminal
Procedure, 1973.
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Pilku Pangi @ Piluku,
S/o. Late Singaru Pangi,
resident of Village- Galigabdar,
P.S.- Pottangi, District- Koraput. ....... Appellant
-Versus-
State of Orissa (Home Department) ....... Respondent
For the Appellant : Mrs. Sonita Biswal,
Advocate
For the Respondent : Mrs. Saswata Pattnaik,
Addl. Government Advocate
CORAM:
HONOURABLE MR. JUSTICE C.R. DASH
HONOURABLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of Hearing: 25.03.2022 : Date of Judgment: 21.04.2022
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C.R. Dash, J. The sole convict is the appellant. He has been convicted for
the offence under Section 302 IPC and sentenced to suffer R.I. for life and to
pay a fine of Rs.10,000/- (Rupees ten thousand), in default to suffer R.I. for
further period of one year. The fine amount is directed to be paid to the
informant-Bute Khora-P.W.2, daughter of the deceased and Kesu Khora,
widow of the deceased as compensation under Section-357 of Cr. P.C.
2. The occurrence happened at about 9 P.M. in the night of
10.05.2013. Bute Khora (P.W.2) reported the matter in Pottangi Police Station
on 11.05.2013 at about 10 A.M.
3. The prosecution case as unfolded shows that, in the previous night
about 9 P.M., when the informant's father Sandara Pangi was sleeping on the
Varandah of his house, convict Pilku Pangi (present appellant) with his wife
Bunde Pangi (since acquitted), started assaulting him. Hearing the sound of
assault, she (informant) came out from the house and tried to free her father
from the clutches of Pilku Pangi (appellant) and his wife Bunde Pangi. The
informant was also assaulted by the culprits.
4. Regarding the manner of assault, it is alleged that, while Bunde
Pangi caught hold of both the hands of the deceased from his back, the convict
Pilku Pangi brought a Spade and dealt blows on the head and belly of the
deceased, as a result of which, the deceased died at the spot. It is further
revealed from the report that the occurrence had been witnessed by the
informant's neighbor Pui Pangi (P.W.4). Out of fear, other villagers did not
dare to come to the spot. Sometime thereafter, the informant went to call his
cousins to come over the spot.
5. On the basis of the F.I.R. lodged by P.W.2, the matter was
investigated into and both Pilku Pangi (appellant) and his wife (Bunde Pangi)
were incriminated in the offence alleged and Charge Sheet was submitted
against them for offence under Section 302/34 IPC.
6. The defence plea is one of complete denial and false implication.
7. The prosecution examined ten witnesses in order to bring to home
the charge framed against the accused persons. P.W.2 is the informant and eye
witness to the occurrence, P.Ws. 3, 4, 5 & 6 are alleged eye witnesses, P.Ws.1
& 5 are witnesses to seizure, P.Ws.6 & 7 are witnesses to inquest over the dead
body, P.W.9 is the Medical Officer, who conducted Autopsy over the dead
body, P.Ws.8 & 10 are the Investigating Officers.
8. Learned court below has rightly come to the finding that the death
of the deceased was homicidal in nature. So far as the eye witnesses are
concerned, it has been held in paragraph-8 of the impugned Judgment that,
P.Ws.2, 3, 5 & 6 have not seen the occurrence of assault. In reaching such
conclusion, learned trial Judge has cautiously and very fairly discussed the
entire evidence of the aforesaid witnesses on record. The only witness, on
which learned trial court has relied, is the evidence of Pui Pangi (P.W.4).
9. On discussion of the entire evidence on record, however, learned
trial court has held that, prosecution has not been able to prove that accused
Bunde Pangi (wife of the appellant) is involved in the alleged transaction and
consequently, learned trial court has acquitted her.
10. Admittedly, the night of occurrence was a dark night. According
to the spot map (Ext.7) and evidence of P.W.4, the distance between the spot,
i.e., front Verandah of the house of the deceased and front Varandah of his
(P.W.4)'s house is intervened by the village road of 15 ft. width. It is asserted
by P.W.4 that, sitting on his Varandah, he has seen the occurrence of assault by
the appellant.
According to P.W.2 (informant), who is none other than the
daughter of the deceased, her father was sleeping on the front Varandah of their
house.
11. Though, it is a dark night, learned court below has held thus:-
"Though the place is dark, but since both the accused and the
deceased are his neighbours it would not be difficult on his part to
see the incident and recognize them which occurred merely 15 fts.
from him. P.W.4's subsequent acts further fortified his reliability.
As per him, due to fear psychosis he did not go to the spot and
following day he went there. This is natural reaction event in
course of a transaction. Had he heard the incident from other
persons, he would have been looked into in suspicion, but when he
saw the incident and reacted having kept confining himself in his
house, soon after the incident, he cannot be disputed over such
conduct. It is natural on a human being to react on his own mind,
perception and sensitivity. So, in the light of the totality of the
evidence as given by P.W.4, I do not see to deny to go by him what
he has witnessed and reacted over the incident."
12. From the aforesaid narration, it is found that the learned trial court
has accepted the evidence of P.W.4 on two counts. Those are:-
(i) Since he is neighbourer of both the appellant and the
deceased, he could recognize the appellant even in darkness.
(ii) His reaction of confining himself to his house after the
occurrence.
13. Hon'ble the Supreme Court, in the case of State of Madhya
Pradesh v. Makhan, (2008) 10 SCC 615 (617) has held that, even in darkness
known persons can be identified from the manner of speech, style of walking
and several other peculiar features.
14. P.W.2 in his evidence has testified that the alleged incident took
place in the night; she was in the house after taking her dinner; at first both
accused were quarrelling with her father, but she had not come out from the
house taking the same as not serious. However, when she heard sound of
assault on the head of her father, she came out from the house and confronted
the accused persons as to why they assaulted her father. The accused persons
threatened to kill her, as a result of which, she went into her house out of fear.
But in the very next paragraph, P.W.2 has testified that, both the accused
persons came and assaulted her father without having gandagol with him.
In cross-examination paragraph-6, she has testified that, when she
came out from the house, the assault on her father had already been completed
and her father was lying senseless and nobody was there then. The factum of
quarrel preceding the assault gives a justification of identification by voice but
from the evidence of P.W.2, it is clear that, there was no such gandagol. P.W.4
is also silent about the factum of quarrel preceding the act of assault.
So far as picking of quarrel or threatening the accused by the
deceased just preceding the occurrence is concerned, P.W.4 has turned hostile
and he has been cross-examined under Section 154 of the Evidence Act. In
paragraph-7 of his cross-examination, P.W.4 has specifically testified that, he
has not heard any gandagol (quarrel) between the accused person and the
deceased at the time of occurrence. In paragraph-5 of his cross-examination, he
(P.W.4) has clearly testified that, there is no electricity in the village road and it
was not a moonlit night. In the said paragraph-5, he has further testified that,
nothing was visible about the happening on the road from the place, where he
was sitting. He has further testified that, he has not gone to the village road in
the occurrence night. P.W.4 has not testified about the peculiarity of the
accused persons by which he identified them. Identification by voice is
thoroughly ruled out in view of the evidence of P.Ws.2 & 4. P.W.4 ipse dixit
having testified that, from where he was sitting, nothing was visible about the
happening on the road and it was a dark night and there was no Moonlight and
he, having not testified about the identification of the witness, specifically from
their voice, gait and other peculiar features, it is difficult to rely on sole
testimony of P.W.4 so far as the assault on the deceased is concerned.
15. We are further constrained to stand by our aforesaid finding in
view of the narration made in Columns-7 & 9 of the inquest report (Ext.3). The
inquest report was prepared in between 2 P.M. to 2.30 P.M. on 11.05.2013.
P.W.4 has testified that, Police examined him at about 11 A.M. on 11.05.2013.
So, by the time of inquest report, the I.O. had ample knowledge about the
assailant. But in Columns- 7 or 9 of the inquest report, no name of assailant has
been mentioned. This aspect in the inquest report reinforces our view so far as
veracity of P.W.4 is concerned.
16. Accordingly, we are of the view that, it is not safe to base the
conviction of the appellant on the sole testimony of P.W.4 without any
corroboration in material particular.
17. Mrs. Saswata Pattnaik, learned Addl. Government Advocate relies
on the evidence of P.W.8, the I.O. in paragraph-3 of his examination-in-chief
wherein he has testified thus :-
".........On 17.05.2014 I apprehended the accused and
examined them. They admitted to have assaulted the deceased by a
spade, resulting his death at the spot. Accused Pilku stated to have
concealed the weapon of offence (spade) under his bed in presence
of the witnesses and accordingly I prepared his statement U/S. 27
of the Indian Evidence Act. Thereafter accused led me and the
witnesses to his house and brought out the alleged spade and
produced before me........"
18. There is, however, no independent witness to give credence to the
aforesaid assertion of the I.O. (P.W.8).
19. P.W.6 in paragraph-2 of his testimony has testified that, Police
seized the alleged spade in his presence from the possession of accused Pilku
and prepared seizure list vide Ext.4. He is totally silent about the statement of
the appellant, which assumes relevance under Section 27 of the Evidence Act.
This piece of evidence also does not inspire our confidence at all.
20. In the net result, the appeal is allowed. The conviction of the
appellant in Criminal Trial No.187 of 2013 and the sentence recorded therein
by the learned Additional Sessions Judge, Koraput are set-aside. The appellant
be released forthwith from the custody, if his detention is not required in any
other case.
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(C.R. Dash, J.)
M.S. Sahoo, J. I agree.
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(M.S. Sahoo, J.)
Orissa High Court, Cuttack.
The 21st April, 2022.
S. Mohanty, P.A.
