Orissa High Court
Kabasi Padia vs State Of Odisha on 14 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.8 of 2007
Kabasi Padia ......... Appellant
Ms. Mandakini Panda, Advocate
-Versus-
State of Odisha .......... Respondent
Ms. Saswata Patnaik,
Addl. Government Advocate
CORAM:
JUSTICE S. TALAPATRA
JUSTICE SAVITRI RATHO
ORDER
14.12.2022
Order No.
07. 1. This matter is taken up through Hybrid Mode.
2. Heard Ms. Mandakini Panda, learned Legal Aid counsel
appearing for the appellant. We have also heard Ms. Saswata Patnaik,
learned Addl. Government Advocate for the State.
3. This is an appeal under Section-374(2) of the Cr.P.C. based
on a petition filed by the appellant from the jail.
4. By means of petition-appeal, the judgment and order of
conviction and sentence dated 04.01.2007, delivered in Criminal Trial
No.42 of 2003 by the Addl. Sessions Judge, Malkangiri, have been
challenged.
5. The appellant was charged under Section-302 of the IPC for
committing murder of his brother Kabasi Ganga on 26.06.2001. After
culmination of trial, the appellant has been convicted under Section-
302 of the IPC and sentenced to suffer Rigorous Imprisonment for life
with fine of Rs.1,000/- (Rupees one thousand) with default
imprisonment by the said judgment.
6. In brief, the prosecution case is that on 26.06.2001, the
appellant assaulted his brother with a wooden plank and his brother,
namely Kabasi Ganga died instantaneously at the spot succumbing to
the injuries.
7. On the basis of the complaint filed by the son of the deceased
namely Kabasi Muka (P.W.3), Malkangiri P.S. Case No.45 of 2009
was registered under Section-302 of the IPC and taken up for
investigation.
8. On completion of the investigation, the final Police report
charge-sheeting the appellant was filed under Section-302 of the IPC.
9. On taking cognizance of the said offence, the charge under
Section-302 of the IPC was framed against the appellant, to which the
appellant pleaded not guilty and claimed to be tried in accordance
with law.
10. In order to substantiate the charge as afore-noted, eight
witnesses were examined by the prosecution including Kabasi Muka
(P.W.3), who filed the complaint in Malkangiri Police Station.
11. Except the F.I.R., no document has been admitted on the
evidence by the prosecution. Even the defence did not adduce any
evidence.
12. After recording the prosecution evidence, the appellant's
statements during examination under Section-313(1)(b) of the Cr.P.C.
was recorded. The appellant denied all the incriminating materials as
surfaced in the evidence and reiterated his plea of innocence.
13. After purported appreciation of the evidence, as lead by the
prosecution, the trial judge has observed as follows:
"16. Coming to the facts of the present case, it is also
found there is extra judicial confession by this accused
in the village meeting as has been gathered from the
testimony of P.W.4-Madkami Irma and moreover, there
is eye witness account of said P.W.4-Madkami Irma and
P.W.3-Kabasi Muka and their testimony before the
Court is quite cogent, credible and trustworthy and not
to be discredited otherwise.
17. In such circumstances, it is safe to act upon the
testimony of P.Ws. 2, 3, 4 & 5 for securing a conviction
under Section-302 of the IPC as against this accused
and he is convicted accordingly for offence under
Section 302 of the IPC for committing murder of Kabasi
Ganga in village Udayagiri at about 8 p.m."
14. Ms. Panda, learned counsel appearing for the appellant has
quite succinctly submitted that these findings are grossly perverse, as
the court below did not collate the statements made in the cross-
examination to weigh their impact on the entire evidence. Moreover,
Ms. Panda, learned counsel has pointed out that P.W.4 has resiled
from his previous statement under Section-161 of the Cr.P.C. by
stating that in his presence, no extra judicial confession was made by
the appellant, admitting the commission of crime.
15. Ms. Saswata Patnaik, learned Addl. Government Advocate
has fairly admitted that the doctor, who carried out the post mortem
examination, has not been examined in the trial nor his report has
been admitted in the evidence.
16. That apart, the Investigating Officer, who conducted the
inquest over the dead body has not been examined in the trial. So the
mode and the process of collecting the evidence in support of the
prosecution case remained unattended in the trial. The trial was closed
without recording their evidence.
17. Ms. Patnaik, learned Addl. Government Advocate has
submitted that the semblance of truth emanates from the statements of
P.Ws. 2, 3, 4 & 5 and, therefore, inference as drawn by the trial court
may not be termed as perverse.
18. Having appreciated the evidence, we find that the contention
of Ms. Panda, learned counsel for the appellant is totally correct, in as
much as P.W.2 in the cross-examination has clearly stated that "at the
time of occurrence, I was in my field. I had not seen the occurrence
but heard it from the villagers." But his testimony has been relied on
as the eye-witness account. Even P.W.2 did not disclose from whom,
he heard of the said occurrence. As such, his is completely a hearsay
statement, hit by Section-60 of the Evidence Act.
19. So far as P.W.3 is concerned, he is the son of the deceased,
who filed the complaint.
20. In the examination-in-chief, he testified that hearing the shout
of the deceased, he came and saw the occurrence. At that time, two or
three persons were present at the spot. Those persons have been
identified by him as Padia, Irma and Gangi. In the examination-in-
chief, he has stated that "I have not seen the actual occurrence. I
went and saw the occurrence" But he denied to give into the
suggestion that the appellant had not assaulted the deceased. As he
himself has admitted that he has not seen the actual occurrence, any
reliance can hardly be placed on his testimony.
21. Again P.W.4-Madkami Irma, whom P.W.3 has stated to have
found in the place of occurrence, has stated in the examination-in-
chief that "I cannot say how he died and I cannot say when he
died". He has abruptly stated that the appellant assaulted the deceased
by means of a stick. He did not disclose the source of his knowledge
for making the aforesaid statement.
22. Most importantly, P.W.4 has stated that "there was a meeting
in the village and the accused has confessed his guilt in the village
meeting." But in the cross-examination, he made a complete turn
around by stating that "nobody has told me about the occurrence and
I saw the dead body after the death. I was not present at the time of
actual assault. I have not personally attended the village meeting."
23. However, he denied the suggestion, that was made to him to
the effect that the accused did not confess his guilt. On such
testimony, no reliance can be placed in as much as P.W.4 has testified
that neither was he present at the time of occurrence and as such, he
did not witness who assaulted the deceased nor was he present in the
meeting where the appellant has allegedly confessed his guilt of
committing the murder of the father of P.W.3. But the trial judge has
placed his reliance on those testimonies resulting in the interference
which has been challenged in this appeal.
24. It is well settled that both the examination-in-chief and the
cross-examination are to be read together and thereafter, the truth or
reliability has to be determined. On the basis of such truth, the
inference is to be drawn. The trial judge has been completely
oblivious of the statements made in the cross-examination. As such,
we are persuaded to interfere with the impugned judgment and order
of conviction and sentence.
25. Accordingly, those are set-aside.
26. As consequence, the appellant is entitled to be released
forthwith, if he is not wanted in any other case.
27. The appeal, therefore, stands allowed.
28. Send down the LCRs, if any, lying with the Registry
forthwith.
(S. Talapatra)
Judge
(Savitri Ratho)
Judge
Subhasis
