Orissa High Court
Rabindra Mohanty vs State Of Orissa on 6 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.106 of 2017
In the matter of an Appeal under section 383 of Code of Criminal
Procedure and from the judgment of conviction and order of sentence
dated 16th August, 2017 passed by the learned Additional Sessions
Judge, Balasore, in Sessions Trial No.21/232 of 2013.
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Rabindra Mohanty .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Sk. Zafarulla & Mr.J.Kamila
(Advocates)
For Respondent - Mr.J. Katikia
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 13.03.2023 : Date of Judgment: 06.04.2023
D.Dash,J. The Appellant, by filing this Appeal from inside the Jail, has
assailed the judgment of conviction and order of sentence dated 16th
August, 2017 passed by the learned Additional Sessions Judge, Balasore
in Sessions Trial No.21/232 of 2013 arising out of C.T. Case No.422 of
2013 corresponding to Remuna P.S. Case No.18 of 2013 of the Court of
the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baleswar.
The Appellant (accused) thereunder has been convicted for
committing the offence under section 302/307/201 of the Indian Penal
Code, 1860 (for short, 'the IPC') and accordingly, he has been sentenced
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to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees
Ten Thousand) in default to undergo rigorous imprisonment for two (2)
years for commission of the offence under section 302 IPC;
imprisonment for ten (10) years and fine of Rs.5,000/- (Rupees Five
Thousand) in default to undergo rigorous imprisonment for one (1) years
for the offence under section 307 IPC; and to undergo imprisonment for
three (3) years and fine of Rs.5,000/- (Rupees Five Thousand) in default
to undergo rigorous imprisonment for six (6) months for the offence
under section 201 IPC with the stipulation that the substantive sentences
would run concurrently.
2. Prosecution Case:-
In the night of 15.02.2013, Sebati Behera, the wife of Sadananda
Behera with her daughter had gone to her father's house leaving her
husband and another daughter, namely, Sarmila Behera in their house.
When Sadananda and his daughter in the night were going to sleep,
accused Rabindra called Sadananda (deceased). It was around 11.30
p.m. Accused called the deceased to come outside and accordingly, the
deceased, leaving Sarmila his daughter in the house. The deceased,
while leaving, told Sarmila that he would come after a short period.
When the deceased did not return home over a considerable period of
time since his leaving the place, Sarmila carrying a torch light came
outside. She then heard some sound near the house of accused Rabindra.
So, she went there and then saw accused Rabindra giving katari blows
on her father when Prahallad (since acquitted) was holding one hand of
her father with a knife on his other hand and two other persons, covering
their faces with black clothes, were standing nearby. Seeing this, when
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she cried, those two persons, who had covered their faces and were
standing near the place where deceased was being assaulted, rushed at
her and threatened Sarmila to take away her life if she would disclose
the fact to anybody. They then bolted the door from outside by putting
her inside the house. On the next morning, Ratnakar Nath (Informant)
came to their house and called his son-in-law Sadananda, as if inside the
house. Sarmila then started crying and opened the door of the house and
described the incident of the previous night before her maternal
grandfather (Informant). The wife of the deceased, namely, Sebati
Behera was informed. Thereafter, when they went to the riverbank, they
saw the dead body of Sadananda floating there. The father-in-law of the
deceased Ratnakar Nath then lodged a written report with the Inspector-
in-Charge (IIC) of Remuna Police Station, which being treated as FIR,
the investigation commenced.
3. In course of investigation, the Investigating Officer (I.O)
examined the Informant, who had lodged the FIR (Ext.1). He then
proceeded to the spot and requisitioned the service of the members of
the scientific team available in the headquarters. He prepared the spot
map and held inquest over the dead body of the deceased Sadananda.
The inquest report (Ext.4) was prepared. He also issued requisition for
post mortem examination of the dead body. He seized the blood stained
lungi and woolen chadar of the deceased under seizure list (Ext.6). The
house of the accused was inspected and from there, blood stained earth,
sample earth, small bamboo plank and one plastic mat were seized vide
the seizure list (Ext.7). He also issued requisition for medical
examination of Gouramani Mohanty, the wife of accused Rabindra. The
wearing apparels of the deceased were seized. The I.O. then examined
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other witnesses and on 22.02.2013, he apprehended the accused in
Rupsa area and arrested him. It is stated that the accused Rabindra,
having stated before the police to have kept the weapon in a particular
place, led the police and other witnesses to that place and gave recovery
of the weapon, i.e., Katari, which was seized under the seizure list
(Ext.5). The accused was thus forwarded in custody to the Court. In
view of the transfer of this I.O, the successor in office of IIC of the
Police Station took charge of the investigation and on completion of the
investigation, he submitted the final form placing this accused Rabindra
to face the trial for commission of offence under section 302/307/201/34
IPC.
4. Learned S.D.J.M., Baleswar, on receipt of the final form, as
above, having taken cognizance of the offences, after observing the
formalities, committed the case to the Court of Sessions. That is how the
trial commenced by framing the charge for the above offences against
this accused.
5. The plea of the defence is that of complete denial. No such
evidence has, however, been let in by the defence despite opportunity.
6. The prosecution, in course of trial, has examined in total twenty-
seven (27) witnesses. Out of them, the Doctor, who had conducted the
post mortem examination over the dead body of the deceased and had
also examined the injured witness, who is the wife of accused Rabindra
whereas P.W.16 is the Doctor, who had examined the accused. The wife
of the accused has been examined as P.W.8 and the son of the Accused
Rabindra is P.W.9. These two witnesses are said to be the eye witnesses.
P.Ws.10 & 11 are the witnesses to the seizure of Katari pursuant to the
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so-called statement of the accused in leading the police and these
witnesses to the place and giving recovery of that Katari. The wife and
daughter of the deceased has been examined as P.Ws.20 & 21
respectively. The I.Os are P.Ws.26 & 27.
The prosecution, besides leading the evidence through these
witnesses, has also proved several documents, which have been
admitted in evidence and marked Exts.1 to 15; of those important are the
FIR, post mortem report, inquest report and injury report etc. The
incriminating articles, having been produced in the trial, those have been
marked as material objects (M.O.I to M.O.XVII).
7. After the prosecution led evidence through examination of four
witnesses, another person, namely, Prahallad was arraigned as an
accused by pressing into service the provisions contained in section 319
of the Code of Criminal Procedure. It be stated here that the Trial Court
has ultimately acquitted that accused Prahallad finding the prosecution
evidence to be insufficient as against him to establish his guilt beyond
reasonable doubt. At this stage, it be mentioned that when by the order
passed by the Trial Court, accused Prahallad came to be arraigned as an
accused, the prosecution had examined three witnesses, who were
Sebati, the wife of the deceased, Sarmila, the daughter of the deceased
and Ratnakar Nath, the father-in-law of the deceased. Those three
witnesses had then been assigned as P.Ws.1 to 3 and that being given a
go-bye when the trial commenced again after accused Prahallad came to
face the trial, they have been examined afresh as P.Ws.20 & 22.
8. The Trial Court, on going through the evidence of the Doctor
(p.W.1), who had conducted the autopsy over the dead body of deceased
Sadananda as well as the evidence of the I.O. (P.W.26), who had held
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inquest over the dead body and prepared his report (Ext.4) as also the
evidence of other witnesses, has arrived at a conclusion that the
deceased Sadananda met a homicidal death. We find that this aspect was
not under challenge before the Trial Court, which is also the situation
before us.
The Doctor (P.W.1), who had conducted the post mortem
examination over the dead body of the deceased, has noticed a cut on the
throat of the deceased and other wounds etc. All those injuries, being
noted with their sizes and seats, are stated to be ante mortem in nature.
The I.O. (P.W.26), while holding the inquest, had also noticed such
injuries on the person of the deceased and that has also been stated by
other witnesses. With such evidence on record, we find ourselves wholly
in agreement with the finding of the Trial court that the deceased
Sadananda met a homicidal death.
9. Learned counsel for the Appellant submitted that the evidence of
those witnesses, who have been projected as the eye witnesses, is not
acceptable. According to him, the evidence of P.Ws.8 & 9, who are
stated to be the witnesses to the incident of infliction of injuries upon the
deceased by the accused, are not at all reliable and their evidence are
also in great variance with one another and when the evidence of these
witnesses are viewed with the evidence of the daughter of the deceased,
P.W.21, their evidence are reconcilable. He further submitted that the
wife of the accused (P.W.8), who has come forward to depose against
her husband to be the assailant of deceased Sadananda as well as to have
assaulted that P.W.8 on her protest is wholly doubtful when the
evidence of P.W.21, the daughter of the deceased glanced by its side.
He, therefore, submitted that when it is the evidence of the prosecution
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case that the accused had sustained injuries on his person, which has not
at all been explained either by P.W.8 or by any other witnesses
including P.W.9, who is the son of the accused, it is becoming clear that
the incident, as is said by P.Ws.8 & 9, to have taken place, is not true
and they are suppressing the truth as to how the incident began. He
submitted that although the injuries on the person of the accused have
been found to be simple, here it is not that the accused had sustained one
superficial injury, but had sustained lacerated wound on the left litter
finger over left proximal phalanx, one abrasion on middle and front part
of the left 4th finger over proximal phalanx, one lacerated would over
palm and base of the left 4th finger and one lacerated wound the palm
below the lacerated wound situated on the base left forth finger as well
as one abrasion on the middle and other part of the left forth finger and
the age of the such injuries as stated by the Doctor being 5 to 7 years old
by the time of his examination, that tallies with the date of the incident.
He thus submitted that for such non-explanation of the injuries on the
person of the accused, the prosecution case, as laid, is pushed into thick
cloud of doubt. He further submitted that when the evidence of P.Ws.8
& 9 is read with the evidence of P.W.20, the daughter of the deceased,
it is not ascertainable as to where actually the incident took place and
how that incident also took place and who were playing the role in
assaulting the deceased or inflicted the blows on the deceased. He,
therefore, submitted that appreciation of evidence of the prosecution, as
has been made by the Trial Court, thus being not just and proper, the
finding returned by the Trial Court that the prosecution has proved the
charges against the accused beyond reasonable doubt cannot be
sustained.
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10. Learned Additional Government Advocate for the State-
Respondent, refuting the above submission, contended all in favour of
the finding returned by the Trial Court holding the accused guilty for
commission of offence under section 302/307/34 IPC. According to
him, the evidence of P.Ws.8 & 9, being taken together, leaves no room
of doubt that it is the accused, who had inflicted the blows upon the
deceased by means of Katari, which has led to his death and injured
P.W.8 by means of that Katari when she protested. He further submitted
that when there is no material on record to disbelieve that P.Ws.8 & 9
and as the defence has even failed to show that his wife and son had any
reason to falsely implicate the accused so as to see that the prosecution
is successful; even without looking at the evidence of P.W.20, it has to
be held that accused had intentionally caused the death of Sadananda,
inflicted injuries upon P.W.8 attempting to murder her. He submitted
that when the evidence of P.Ws.8 & 9 are clear, cogent and acceptable,
finding out some variations in their evidence with the evidence of
P.W.20, the daughter of the deceased, it is not permissible to disbelieve
P.Ws.8 & 9 saying as witnesses especially when P.W.8 is an injured
witness and thus, is a victim to the crime and had no reason to speak
against her husband, the accused.
11. Keeping in view the submissions made, we have carefully read
the impugned judgment of conviction passed by the Trial Court. We
have also travelled through depositions of witnesses examined from the
side of the prosecution P.Ws.1 to 27 and have perused the documents
admitted in evidence and marked Exts.1 to 14.
12. In order to examine the sustainability of the finding of the Trial
Court as regards the complicity of the present accused by addressing the
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rival submission, first of all, this court is called upon to scrutinize the
evidence of P.Ws.8 & 9 and 21. It be stated at the risk of repetition that
all these witnesses have been projected by the prosecution to be the eye
witnesses. P.Ws.8 & 9 are the wife and son of the accused respectively
whereas P.W.20 is the daughter of the deceased.
P.W.21 has stated that when she with her father were there in the
house in the night, accused Rabindra came and called her father and
then her father left the house. She has further stated that as after lapse of
some time, her father did not return, she, out of anxiety, went out with a
torch light and proceeded on the road towards the house of Rabindra. It
is her evidence that from a place in between the said rasta (road) near
the house of accused Rabindra, she saw the accused Rabindra assaulting
her father by means of a Katari, accused Prahallad (since acquitted) was
holding one hand of her father and he too was holding a knife on his
other hand and two other persons covering their faces with black clothes
were standing nearby.
13. P.W.8, the wife of the accused is, however, stating that around
9.30 p.m. in the night, when she with her son (P.W.9) arrived in the
house, accused left the house and returned late night when she and her
son (P.W.9) had gone for sleep. She further states that at that time,
accused and the deceased came together and they sat by the side of her
bed. She is not stating that by that time, she had seen or marked that the
deceased was having any such injury on his person when it is also in her
evidence that Dibri (candle) was glowing in the house, which shows that
there was all the possibility to mark such important feature with the
deceased by that P.W.8. She then states that the deceased and her
husband (accused) took liquor and a quarrel ensued where both
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exchanged filthy languages. It is next stated that she left the spot and
went to sleep in the kitchen. She, however, is not stating that her son
was also taken by her to that kitchen to sleep by her side. So, when she
stated that she, with her son, were sleeping and she left to sleep in the
kitchen, as per her evidence, the son was very much in the room where
the accused and the deceased were quarreling with each other after
taking liquor and were exchanging filthy words.
14. P.W.9, however, states that he woke up after hearing the shout of
her mother and saw his father (accused) giving Katari blows to his
mother (P.W.8) and in spite of his request, his father (accused) did not
listen. He does not say to have gone to the kitchen and saw it. So, as per
his evidence, it is in the room where he was sleeping. This P.W.9 is not
at all stating about the presence of the deceased at any point of time in
that room nor is stating about any quarrel to have ensued between the
accused and the deceased with hot exchange of filthy words after taking
liquor. When it is the evidence of P.W.8 that both accused and deceased
came and sat by the side of her bed, took liquor and then quarreled, it is
quite unacceptable that P.W.9, who even though is a boy of ten years
old, by then would not even get disturbed and still continue with sound
sleep. Furthermore, when P.W.8 says that hearing shout when she
returned to the bedroom, she found the accused giving Katari blows to
the deceased and she then having raised shout for rescue, the accused
ran towards her and gave blows upon her by that Katari. This part is
wholly unacceptable that even in spite of all these happenings that
though deceased was being inflicted with fatal blows; P.W.9 would not
woke up. Interestingly, this P.W.9 is stating nothing about the deceased
either as to his presence or by then to be lying in that room with
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bleeding injuries. Thus, the evidence of P.W.8 that the deceased was
assaulted by the accused in that room, on the face of evidence of P.W.9
is not safe to be relied upon.
Now, adverting to the evidence of P.W.21, it is seen that as per
her evidence, the incident has not taken place in the house of Rabindra
and she says to have seen that accused Rabindra assaulting her father,
which she could see while on the road, which was running to the house
of accused and there the other accused Prahallad (since acquitted) and
two others were present. P.Ws.8 & 9 are not stating all these facts. It is
her evidence that she saw the accused Rabindra giving Katari blows on
her father when accused Prahallad was holding his hand and he too was
holding a knife. It is further seen that P.W.21, during her cross-
examination in the trial, at the first stage, has stated that when she went
near the house of the accused, she heard groaning of his father and by
focusing the torch light, she saw the accused Rabindra giving Katari
blows on her father. She had also not then stated that the incident was
happening inside the house of the accused Rabindra, which she could
see by standing near the house. Furthermore, as per the evidence of
P.W.8, the incident had taken place in the bedroom of the accused and it
is not stated by any of these witnesses or even through other witnesses,
it has not been brought on record that the situation of the bed room of
the house of the accused was such that it would be visible from outside.
Furthermore, this P.W.21, who had earlier been examined as P.W.2, is
stating with regard to the presence of two other accused persons
covering their faces by black clothes and also accused Prahallad to have
been facilitating the accused Rabindra in assaulting the deceased by
holding knife, which is not at all the evidence of P.Ws.8 & 9. Above
being the state of affairs in the evidence of P.Ws.8, 9 & 21, which are
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not only in great variance with one another on material aspects, such as
the happenings of the incident, the place of the incident, but also as
regards the manner of happenings of the incident, we are of the view
that the prosecution cannot be said to have established its case against
accused Rabindra in far as commission of offence under section 302 of
the IPC is concerned.
15. Coming to the charge under section 307 of the IPC, in attempting
the murder of P.W.8 is concerned, it be stated first that from the side of
the defence, when a suggestion has been given that the accused and his
family members were raising their voice for the extra marital
relationship of P.W.8 with the deceased, that although has been denied
by P.W.8, yet she has not stated as to what might be the reason for her
husband (accused) to be annoyed with or bear grudge against the
deceased. Be that as it may, we find that although the evidence of this
P.Ws.8 & 9 are not reliable in so far as the role of the accused in
assaulting the deceased Sadananda by Katari is concerned, yet their
evidence is quite consistent that accused Rabindra assaulted P.W.8 by
means of Katari that too in the bed room wherefrom blood stained earth
was seized. The injuries received by P.W.8 are seven in numbers and all
those injuries are incised wounds all over the body. That P.W.8 for such
injuries, was hospitalized and remained under treatment for twelve days
and in fact when she was shifted to the hospital, she was unconscious
and regained her sense in the hospital. Although, this injured (P.W.8) is
found to be not reliable so far as the assault upon the deceased by her
husband (accused) is concerned, that in our view would not be the
ground to disbelieve her evidence in respect of the role of the accused in
assaulting her, which has been clearly stated by P.W.9 and further
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receives corroboration from the evidence of P.W.16. Cumulatively
viewing the evidence of P.Ws.8 & 9, the Trial Court in our opinion is
right in holding the accused guilty for commission of offence under
section 307 of the IPC.
16. In view of all the aforesaid, we are of the considered view that the
finding of guilt returned by the Trial Court as against this accused in
respect of the offence under section 302/201 of the IPC is concerned, is
not sustainable and accordingly, the accused is not held guilty for the
said offences. However, we find no reason to tinker with the finding of
guilt recorded by the Trial Court as against this accused for commission
of offence under section 307 of the IPC as against his wife (P.W.8) is
concerned and accordingly, the sentence awarded by the Trial Court for
the said offence under section 307 of the IPC is found to be just and
proper.
17. In the result, the Appeal stands allowed in part. The conviction of
the accused for commission of the offence under section 302/201 of the
IPC being set aside, his conviction for commission of offence under
section 307 of the IPC and the order of sentence imposed by the Trial
Court on that count, are hereby confirmed.
(D. Dash)
Judge.
Dr. S.K. Panigrahi I agree.
(Dr. S.K. Panigrahi)
Judge.
Basu
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