Orissa High Court
Naik Majhi vs State Of Orissa on 6 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.834 of 2017
In the matter of an Appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 and from the judgment of conviction and order of
sentence dated 20th November, 2017 passed by the learned Additional
Sessions Judge, Rayagada, in C.T. No.112 of 2016.
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Naik Majhi .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Biswajit Nayak
(Advocate)
For Respondent - Mr.S.S.Mohapatra,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 31.03.2023 : Date of Judgment:06.04.2023
D.Dash,J. The Appellant, by filing this Appeal, has called in question
the judgment of conviction and order of sentence dated 20th November,
2017 passed by the learned Additional Sessions Judge, Rayagada, in
C.T. No.112 of 2016 arising out of G.R. Case No.86 of 2016
corresponding to Tikiri P.S. Case No.22 of 2016 in the Court of the
learned Judicial Magistrate First Class (J.M.F.C.), Kashipur.
The Appellant (accused) thereunder has been convicted for
committing the offence under section 302/201/506 of the Indian Penal
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Code, 1860 (for short, 'the IPC') and accordingly, he has been sentenced
to undergo imprisonment for life and pay fine of Rs.50,000/- (Rupees
Fifty Thousand) in default to undergo rigorous imprisonment for one (1)
year for the offence under section 302 IPC. He has also been sentenced
to undergo rigorous imprisonment for one (1) year each for the offence
under section 201 and 506 IPC with the stipulation that the sentences are
to run concurrently.
2. Prosecution Case:-
On 09.04.2016, when Prahallad Majhi, the husband of Salai Majhi
(Informant-P.W.5) was working on his cultivable land, accused Naik
Majhi and his brother Kartika Majhi (not facing the trial), forcibly
dragged him up to the village road. They then assaulted him by means of
lathis. Due to said assault by accused Naik Majhi and his brother
Kartika, Prahallad (deceased) sustained injury and succumbed to those
at the spot. The accused and his brother Kartika then gave threat to Salai
Majhi (Informant-P.W.5) with dire consequences, if she would disclose
said incident before anyone. So, out of fear, Salai (Informant-P.W.5)
went inside the house and remained there.
It is the further case of the prosecution that these two accused
persons took the body of Prahallad for cremation to the cremation
ground and burnt it there. Thereafter, they returned to the sahi and stated
Salai (Informant-P.W.5) that they have committed the murder of her
husband as he was practicing sorcery. At that time, they again extended
threat to her that if she would disclose the incident before anyone, her
house would be set to fire. The sons of the deceased were not in the
house at that time as they had gone for work and on their return, after
mustering courage, Salai (Informant-P.W.5) lodged the written report
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before the Inspector-in-Charge (IIC-P.W.13) of Tikiri Police Station,
who immediately registered the case and took up investigation.
3. In course of investigation, the Investigating Officer (I.O.-P.W.13)
examined the complainant (P.W.5) and recorded his statement and those
of other witnesses under section 161 of the Code of Criminal Procedure,
1973 (for short, 'the Cr.P.C.'). Pursuant to the statement of this accused
Naik Majhi while in police custody, the I.O. (P.W.13) and others were
led to the place where the dead body of the deceased had been burnt to
fire. The I.O. (P.W.13) then seized the half burnt cadaver of the
deceased and held inquest over the same and sent if for post mortem
examination. Thereafter, the other accused persons, namely, Nitya
Majhi, Linga Majhi, Hari Majhi, Madhab Majhi and Nilambar Majhi
were arrested and forwarded to the Court in custody. On account of
transfer of that I.O. (P.W.13), the charge of the investigation being
handed over to her successor in office, namely, Manoj Kumar Behera
(IIC-P.W.11), he carried out further investigation and on completion of
the same, submitted the Final Form placing the accused persons to face
the trial for commission of offence under section 302/201/506/34 IPC.
The accused Kartika Majhi, who is the brother of this accused Naik
Majhi, being not apprehended, he was shown as an absconder in the
Final Form and as such, he did not face the trial.
4. Learned J.M.F.C., Kashipur, on receipt of the Final Form, having
taken cognizance of the offences, observing the formalities, committed
the case to the Court of Sessions after splitting up the case as against the
absconded accused Kartika. That is how the has commenced by framing
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the charge for the aforesaid offences against this accused Naik Majhi
and others in causing the murder of the deceased.
5. The plea of the defence is that of complete denial and false
implication.
6. The prosecution, in support of its case, has examined in total
thirteen (13) witnesses. Out of whom, P.Ws.1, 2, 3 & 4 are the co-
villagers. The wife of the deceased, who is the Informant has been
examined as P.W.5. P.W.6 is the son of the deceased and the Informant.
The scribe of the FIR has been examined as P.W.7. The Doctor, who
had conducted the post mortem examination over the dead body of the
deceased is P.W.10 when P.W.13 is the first IO and the second I.O. has
been examined as P.W.11. The daughter-in-law of the deceased and the
informant has been examined as P.W.12.
Besides leading the evidence by examining the above witnesses,
the prosecution has also proved the documents admitted in evidence and
marked Exts.1 to 6. Out of those, importants are the FIR (Ext.4) and the
post mortem report (Ext.5). The seizure lists have been proved and
marked Ext.2/1 and Ext.3/2 The spot map prepared by P.W.13 has been
admitted in evidence and marked Ext.6.
7. The Trial Court, upon examination of evidence of Doctor
(P.W.10), who had conducted postmortem examination over the cadaver
of the deceased (Prahallad) and his report Ext.5 as well as the evidence
of P.Ws.5 and other witnesses, has arrived at a conclusion that the
prosecution has proved beyond reasonable doubt that the deceased met a
homicidal death. In fact, this aspect of case was not under challenge
before the Trial Court and that is also the situation before us. When we
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find the evidence of the Doctor (P.W.10), who had conducted the post
mortem examination over the cadaver to be very clear that the deceased
met his death on account of head injury, which he has noted in his report
(Ext.5) with more clarity and the evidence of P.W.5 as well as P.W.12
that the deceased Prahallad had received the injuries, we find absolutely
no difficulty in accepting the finding of the Trial Court on that score.
8. Mr.B.Nayak, learned counsel for the Appellant submitted that the
wife of the deceased (P.W.5), in the present case, being a vital witness
for the prosecution when has not implicated this accused to have played
any role in the incident and more particularly attributing him with the
authorship of the injuries on the person of her deceased husband
Prahallad, the Trial Court ought not to have passed the order of
conviction basing upon the evidence of P.W.12. He further submitted
that the Trial Court has committed the murder by not bestowing its
attention in judging the impact of the evidence of P.W.5, who happens
to be the widow of the deceased over the evidence of P.W.12, who is the
daughter-in-law of the deceased and informant. According to him, when
P.W.5 has not implicated the accused persons although she claims to be
an eye witness and states that the incident took place in front of her
house, the evidence of P.W.12 is rendered wholly unbelievable on that
score and she can never be said to be reliable witness for the conviction
to be based upon the same. He further submitted that in view of the
evidence of P.W.5, the evidence of P.W.12 is rendered suspect and,
therefore, the Trial Court ought not to have relied upon the solitary
testimony of P.W.12 without any corroboration. He further submitted
that the place where the dead body of the deceased had been burnt,
being open and the burial ground known to all, the evidence that the
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accused led the police and witnesses to that place does not come to the
aid of the prosecution in providing any corroboration to the evidence of
P.W.12.
9. Mr.S.S. Mohapatra, learned Additional Standing Counsel
submitted that even though P.W.5 has not supported the prosecution
case in implicating the accused and his brother Kartika as the authors of
the injuries on the person of the deceased Prahallad, that itself is not a
ground to disbelieve the evidence of P.W.12 and eschew it from
consideration when no such material surfaces to hold that P.W.12 is not
stating the truth and there also surfaces no reason as to why she would
falsely implicate this accused.
10. Keeping in view the submissions made, We have carefully gone
through the impugned judgment of conviction. We have also travelled
through the depositions of the witnesses examined from the side of the
prosecution (P.Ws.1 to 13) and have perused the documents admitted in
evidence marked as Exts.1 to 6.
11. P.Ws.1, 2, 3 & 4, being the co-villagers, have not supported the
case of the prosecution in any manner. They have straight way stated to
have no knowledge as to how Prahallad died.
P.W.12, in her evidence, has stated that around 4.00 p.m. the
incident took place in front of her house when this accused Naik Majhi
and his brother Kartika came and searched for the deceased Prahallad
and at that time, deceased Prahallad was in his agricultural land. She
further states that both of them went and brought him to the village road
and thereafter, they assaulted by means of thengas (lathis) causing his
death and took the dead body to the grave yard. This P.W.12 is the
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daughter-in-law of the deceased Prahallad. She has stated that she with
her husband and child were residing in a separate house situated by the
side of the house where the deceased and informant were staying. It is
her evidence that being in the house, she has seen the incident, which
took place on the village road running in front of her house and then her
husband was not present in the house as also her brother-in-law. She
does not state that P.W.5 then was not present in the house. Rather
having said that her husband and brother-in-law were not in the house;
she admits indirectly the presence of P.W.5 in the house.
12. At this juncture, when the evidence of P.W.5 is gone
through, it is seen that she came out of her house hearing a commotion
on the village road and noticed that some co-villagers were making
Gandagola with her husband Prahallad. This P.W.5 is not stating even
as to the presence of this accused in that gathering as one among those
villagers. She is also not stating to have not seen the happenings
thereafter and it is her specific evidence that out of fear, she did not
proceed to interfere. So, when P.W.5 is not implicating this accused
either to have been seen by her to be present in that gathering with other
co-villagers in taking part in that Gandagola; P.W.12 does not state
anything about that Gandagola. P.W.5 is also not stating that seeing the
Gandagola when she did not feel it proper to intervene by going nearby
entertaining the fear, she does not state that P.W.12 was then witnessing
that Gandagola. Thus, when the mother-in-law of P.W.12 has not
implicated this accused Naik in playing any role in the happenings on
the village road in front of their house by remaining present, the
daughter-in-law (P.W.12) is stating about the role of this accused.
P.W.12 is also not stating that when she saw the incident, P.W.5 was not
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in front of her house. Later conduct of P.W.12 also tells upon the
credibility of her evidence that when she states that her husband was not
present at the time of the incident and returned after eight hours, she is
not stating to have disclosed before her husband about the incident. The
husband of this P.W.12, having been examined as P.W.6, states to have
heard the incident from her mother (P.W.5) and most interestingly, the
evidence of P.W.6 is to the effect that her mother (P.W.5) told her that
some of the villagers have killed his father and he then found the half
burnt dead body of his father in the graveyard of the village. It is also
his evidence that the villagers were suspecting his father to have been
practicing sorcery and it is not said that this accused was taking the
leading role in any way.
Being conscious of the position that merely because one witness
does not support the case of the prosecution, the evidence of the other
witness is not liable to be discarded for that reason; upon analysis of the
evidence of P.Ws.5 & 12 with the other evidence available on record,
i.e., P.W.6, we are of the view that it would not be safe to rely on the
evidence of P.W.12 holding her a trustworthy witness to base a
conviction upon that.
13. On the conspectus of the analysis of the evidence let in by
prosecution, we are of the view that the finding of the Trial Court that
the prosecution has established the charges against this accused person
(Naik Majhi) beyond reasonable doubt by leading clear, cogent and
acceptable evidence is not sustainable and, therefore, the judgment of
conviction and order of sentence impugned in this Appeal are liable to
be set aside.
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14. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 20th November, 2017 passed by
the learned Additional Sessions Judge, Rayagada, in C.T. No.112 of
2016 are hereby set aside.
Since accused Naik Majhi is in custody, he be set at liberty
forthwith, if his detention is not required in any other case.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K. Panigrahi),
Judge.
Basu
CRLA No.834 of 2017
