Orissa High Court
State Of Orissa vs Thumpu @ Harikhena Hembram on 5 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No. 44 of 2003
State of Orissa ...... Appellant
Mr. S.S. Kanungo, AGA
-versus-
Thumpu @ Harikhena Hembram ...... Respondent
Ms. Dr. Sujata Dash, Advocate
CORAM:
JUSTICE S. TALAPATRA
JUSTICE B.P. ROUTRAY
ORDER
05.07.2022
Order No.
09. 1. This matter is taken up through hybrid mode.
2. Heard Mr. S.S. Kanungo, learned counsel appearing
for the State-Applicant as well as Ms. Dr. S. Das, learned
counsel appearing for the Respondent.
3. This an application under Section 378(1) and (3) of
the Cr.P.C. for granting leave to file an appeal against the
judgment of acquittal dated 20.12.2002 delivered in S.T.
No.20/196 of 2002-20021 by the Addl. District and Sessions
Judge (Fast Track Court), Baripada.
4. Mr. S.S. Kanungo, learned Additional Government
Advocate has submitted before us that the analogy for
discarding the evidence of P.W.5, in particular, who happens
to be the husband of the deceased is unsustainable in as much
as the insignificant incongruities, the eye witness account of
the occurrence can be brushed aside.
5. According to the Trial Judge, the testimony of P.W.5
turns unreliable. From verification it would appear that he had
gone to the house of the accused and asked for payment of
wages for that day. But the accused was non-responsive.
Thereafter, when he was talking to Laxman Hembram, brother
of the accused, all of a sudden, the accused assaulted his wife
on her head with a bamboo 'Kurunda'. He struck successively.
His wife fell down on the ground.
6. According to Mr. S.S. Kanungo, learned Additional
Government Advocate, the reasons as assigned by the Trial
Judge for discarding the said testimony cannot be accepted, as
P.W.5 has truthfully stated that, the accused dealt three blows
on his wife's head and as a result, she fell down on the
ground, loosing her sense and there was profuse bleeding.
While the injured was lying on the spot, he rushed to the
house of one Homeopathic doctor, who refused to come at
night. When he returned to his house, his wife had been
removed from the spot to his residence. In the morning he
again went to the house of the said Homeopathic doctor that
time he had agreed to come. The doctor examined the injured
and asked P.W.5 to take her to the hospital. Accordingly, the
injured was shifted to D.H.H., Baripada. After 6/7 days of the
occurrence, she succumbed to the injury. Mr. Kanungo,
learned Additional Government Advocate has strenuously
argued that, there is no earthly reason to disbelieve that
account, but that evidence has been most unceremoniously
discarded stating that there are serious inconsistency in the
statement, for which reliability of P.W.5 has been seriously
diminished.
7. Ms. Dr. S. Dash, learned counsel appearing for the
Respondent has submitted that the sufficient reasons have
been laid by the Trial Judge for not relying P.W.5. In
particular, she has referred to the cross-examination of P.W.5.
8. The relevant part from the cross examination, we
would like to reproduce for purpose of reference. P.W.5 has
stated in the cross-examination unambiguously that "when I
came to the house of the accused, I saw my wife lying on the
ground in injured condition. She was not in her sense, when I
came near her". In the face of the above statement, according
to Dr. Dash, learned counsel, the P.W.5 can be treated as the
eye-witness. At best, he can be deemed as a post-occurrence
witness. No wrong therefore has been committed by the Trial
Judge for disbelieving P.W.5.
9. No other eye witnesses, even, there is no
incriminating circumstantial evidence has been brought on
records by which the hypothesis of innocence of the accused
can be established.
10. We have gone through the records meticulously and
found sufficient force in the submission of Dr. Dash, learned
counsel appearing for the Respondent. It is our considered
view that, no leave should be granted to the State as they
prove that the appreciation, as challenged, is perverse. As
consequence, no appeal can be allowed to be filed against the
said judgment of acquittal.
(S. Talapatra)
Judge
(B.P. Routray)
Judge
Murmu
