Rajendra Beheruk & Another vs State Of Orissa
2023 Latest Caselaw 2905 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.67 of 2019
        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 5th December, 2018 passed by the learned
  Additional Sessions Judge, Dharamgarh, in Criminal Trial No.27 of
  2014 (Sessions).

                             ----

      Rajendra Beheruk & Another             ....         Appellants

                                 -versus-

      State of Orissa                        ....         Respondent
              Appeared in this case by Hybrid Arrangement
                       (Virtual/Physical Mode):
               For Appellants    -       Mr.Ramakanta Das
                                         (Advocate)

               For Respondent    -       Mr.S.S.Kanungo,
                                         Additional Government Advocate
  CORAM:
  MR. JUSTICE D.DASH
  DR. JUSTICE S.K. PANIGRAHI
  Date of Hearing : 03.04.2023       :      Date of Judgment:06.04.2023
D.Dash,J.      The Appellants, by filing this Appeal, have called in

question the judgment of conviction and order of sentence dated 5th December, 2018 passed by the learned Additional Sessions Judge, Dharamgarh, in Criminal Trial No.27 of 2014 (Sessions) arising out of C.T. No.12 of 2014 corresponding to Junagarh P.S. Case No.06 of 2014

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in the Court of the learned Judicial Magistrate First Class (J.M.F.C.)- cum-Nyayadhikari, Gramya Nyayalaya, Junagarh.

The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, 'the IPC') and accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months for the offence under section 302 IPC.

2. Prosecution Case:-

On 10.01.2014 around mid night, Dharma Beheruk, the husband of Ratna Beheruk (Informant-P.W.10) scolded her and then tried to assault her. So, Ratna (Informant-P.W.10) went outside to conceal her presence so as to get rid of the assault from Dharma. However, Dharma chased her.

At that point of time, accused persons, i.e., Rajendra Beheruk, his wife Pushpa Beheruk and son Champak Beheruk came near their house and assaulted Dharma by axe, thenga and gagara etc. suspecting that Dharma was going to assault them. Receiving said blows from the accused persons, Dharma fell on the ground and died near the house of accused Rajendra. The Informant (P.W.10) and her brother Bhagya Beheruk (P.W.11) had seen the incident. The Informant (P.W.10) then told about the incident to the village Ward Member and finally lodged the report before the Inspector-in-Charge (I.I.C.) of Junagarh Police Station.

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Receiving the written report from the Informant (P.W.10), the I.I.C. (P.W.12) treated the same as F.I.R. (Ext.9) registered the case and took up the investigation.

3. In course of investigation, the Investigating Officer (I.O.-P.W.12) examined the Informant (P.W.10) and recorded his statement and those of other witnesses under section 161 of the Code of Criminal Procedure, 1973. He visited the spot and prepared the spot map (Ext.10), held inquest over the dead body of the deceased and prepared the inquest report (Ext.8/2). He also sent the dead body of the deceased for post mortem examination. The accused Rajendra, being arrested on 14.01.2014, while in police custody, is stated to have given the statement that he had kept those thenga and tangia concealed in his room and he volunteered to show the same to P.W.12 and other witnesses. The statement of the accused was recorded under Ext.2/1 and pursuant to the same, the accused Rajendra, led the police and witnesses went to his house and gave recovery of one tangia and thenga by bringing those form inside the house, which were seized under seizure list (Ext.3/2). The dead body of the deceased was sent for post mortem examination and the I.O. (P.W.12), having seized the incriminating articles, also sent those for chemical examination through Court.

4. On completion of the investigation, the I.O (P.W.12) submitted the Final Form placing the accused persons to face the Trial for commission of offence under section 302/34 IPC.

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5. Learned J.M.F.C.-cum-Nyayadhikari, Gramya Nyayalaya, Junagarh, on receipt of the Final Form, having taken cognizance of the offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial has commenced by framing the charge for the aforesaid offences against these accused persons.

6. The plea of the defence is that of complete denial and false implication. However, a specific plea was taken that the deceased dies being dashed against an electric pole and fall on the rough surface.

7. The prosecution, in support of its case, has examined in total twelve (12) witnesses. Out of whom, P.Ws.1 & 2 are the co-villagers, who heard the matter. P.W.3, is a witness to the inquest, the P.W.4 is the Gram Rakhi, who has not supported the prosecution case. P.Ws.5 & 9, being the witnesses to the disclosure statement said to have been given by the accused before P.W.12, have also not supported the prosecution case. The Doctor conducting the post mortem examination over the dead body of the deceased is P.W.6 whereas P.Ws.8 & 9 are the witnesses to the inquest. The minor daughter of the deceased and informant has been examined as P.W.11 and the Investigating Officer is P.W.12.

Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 12. Out of those, important are the FIR (Ext.9), the post mortem report (Ext.4), the statement of the accused while in police custody in leading the police and witnesses giving recovery of thenga and tangia has been admitted in evidence and marked Ext.2/1. The chemical examination report is Ext.12. The

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wearing apparels of the deceased, the tangia and thenga being produced before the Trial Court, those have been marked as material objects (M.O.I to VII).

8. The plea of the defence is that of complete denial and false implication. It has however, been specifically stated that on account of dash against an electric pole and thereafter fall on a rough surface, the deceased died. But then in support of the same, the defence has examined a co-villager as D.W.1.

9. The Trial Court, instead of first arriving at a conclusion that the death of the deceased was homicidal in nature to have been proved from the side of the prosecution by leading clear, cogent and acceptable evidence, has straightway jumped into the arena of appreciation of evidence to find out the complicity of the accused persons, as laid by the prosecution which is an irregularity that we have noticed in the judgment of the Trial Court.

10. It is the evidence of the Doctor (P.w.6), who had conducted the post mortem examination over the dead body of the deceased that he had noticed laceration of cerebrum in occipital area with bleeding with the other internal organs reveal sign of decomposition up to some extent. According to his evidence, the cause of death was due to nurogenic shock, which may be due to injury to vital organ, i.e., brain, and hemorrhagic shock due to injury and due to loss of blood from that side for the fracture of limbs. According to him, the death is homicidal in nature and it had occurred within 24 hours of his examination. The post

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mortem report has been proved as Ext.4, which finds mention of all these facts in detail. In course of investigation, a query being received from the I.O. as to if the injuries noticed by him on the dead body of the deceased are possible by bamboo lathi and axe, his answer is in the affirmative as has been reflected in his report Ext.5. In addition to that, we find the evidence of P.W.12, who is the I.O, who had held inquest over the dead body of the deceased and prepared Ext.8/2, which finds mention that the deceased had sustained injuries on his person. With such evidence on record, we are of the view that the deceased had met a homicidal death when we find that the defence story that the deceased had been dashed against one electric pole is not acceptable for the simple reason that this D.W.1 has maintained total silence after the incident till he came to depose and his such conduct itself creates grave doubt in mind and tells upon the veracity of his evidence.

11. Mr.R.K.Das, learned counsel for the Appellants submitted that the entire prosecution case is based upon the evidence of P.Ws.10 & 11 in pointing at the complicity of these accused persons as the authors of the injuries received by the deceased leading to his death. Inviting out attention to the evidence of P.Ws.10 & 11, he submitted that their evidence are not in consonance with one another and greatly varies on the material aspects of the case especially as to the role of the accused persons. He also invited our attention to the contents of the FIR, which has been admitted in evidence and marked Ext.9. He submitted that even on a plain reading of evidence of P.W.11, these accused persons cannot be held liable for assaulting the deceased in causing his death. It was

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also submitted that the evidence of P.W.11, who happens to be daughter of the deceased carries contradiction as regards the use of weapon in that assault upon her father, which has at all been stated by her mother examined as P.W.10 and she had not stated so before the I.O. (P.W.12). He also submitted that the evidence of P.W.10 is not at all acceptable to say that the prosecution through her has established the complicity of these accused persons as her evidence is omnibus and when P.W.10 and P.W.11 greatly differ as to the happening of the evidence as well as what these accused persons then did.

12. Mr.S.S. Kanungo, learned Additional Government Advocate submitted all in favour of the finding of guilt recorded by the Trial Court. According to him, the evidence of P.Ws.10 & 11, being read together, does not create any doubt that it is the accused persons, who had assaulted the deceased to death. With regard to the variation in the evidence of P.Ws.10 & 11, as pointed out by the learned counsel for the Appellants, he submitted that those are too minor to be taken note of in impeaching the veracity and trustworthiness of those witnesses when these two witnesses although are directly related to the deceased, had no prior enmity with the deceased for which it may be said for a moment that they in their anxiety for a successful end of the prosecution would falsely implicate these accused persons.

13. 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

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prosecution (P.Ws.1 to 12) and have perused the documents admitted in evidence marked as Exts.1 to 12.

14. P.W.10 is the informant and she happens to be the wife of the deceased. The FIR given by her has been admitted in evidence and marked Ext.9. It has been stated in the FIR that at the relevant time, she being engaged in some households work had not cooked food and, her husband Dharma (deceased) quarreled with her and attempted to assault her. Further, it has been stated that in order to save herself from the said assault, she went outside to hide her presence when her husband Dharma chased her towards the house of accused Rajendra. It is stated that accused Rajendra and Puspa, who is his wife, were with their son Champak and they thought that Dharma was going to assault them for which they assaulted Dharma by means of lathi, thenga and gagara causing injuries upon Dharma which led to his fall and ultimate death. This being the narration in the FIR, her evidence is only to the extent that during the relevant night, her husband scolded her and her paternal uncle. Having said so, she has stated as under:-

"One day these accused persons along with Chuti and Champak assaulted my husband"

Thus now she adds one more as the assailant who is not placed by P.W.12 for Trial and another who although is named by P.W.10 is not placed for trial. She then states that when she went to the spot, she found her husband lying on the ground with bleeding injuries. The happenings prior to the assault are not stated as have been narrated in Ext.9. She during trial has made a good bye to those. Her version that "One day they assaulted" cannot be stretched to say it was on that day when her

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husband was scolding her and her uncle. This witness is also not stating as to how the accused persons assaulted her husband and it is not stated by her that the accused persons then were holding any weapon and that by means of those weapons, assaulted her husband. Her evidence is wholly omnibus. In a sharp departure to what she has stated during her examination in chief, she during her cross-examination, has gone to say that on the date of occurrence, her husband had consumed liquor and after scolding her, he went outside the house when she remained inside the room. She next states that as she remained inside the room, she cannot say as to who-else were present at the spot. Thus, her claim as the eye witness to the incident wherein her husband was assaulted falls flat. Then she has also stated that her minor daughter (P.W.11), at the relevant time was inside the house. She is also giving out completely different pictures as to the happenings prior to the assault upon her husband as given in the FIR (Ext.9) and in her evidence during trial.

When we look at the evidence of P.W.11, the minor daughter of P.W.10, we again find her to have stated about the happenings of the incident as completely different that when her father was scolding her mother and uncle, the accused persons came and stated that her father had also assaulted them and so saying, they challenged him and assaulted him by means of tangia. First of all, in view of the evidence of P.W.10, who is the mother of P.W.11, the presence of this P.W.11 outside to have witnessed the occurrence especially her father being assaulted, becomes highly doubtful. But then this witness P.W.11 when states that she and her mother were in the house and standing near the door, the evidence of P.W.10 is not like that. There appears major

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contradictions in the evidence of this witness that when she states that her father was assaulted by tangia, this was not her statement before the police recorded in course of investigation under section 161 Cr.P.C. as would be evident from the evidence of I.O. (P.W.12) as at paragraph-9 of his deposition. Moreover, the inconsistency arises in the evidence of P.Ws.10 & 11 with regard to the user of weapon, i.e, tangia as stated by P.W.11, which has not been stated at all by P.W.10. On the face of the narration made in the FIR about the happenings before the deceased received the injuries, which are now not stated to by P.W.10 & 11 especially as to the role of the deceased in chasing P.W.10 and reaching near the house of accused Rajendra. They are found to be suppressing some material facts concerning the incident. When such is the evidence of the projected eye witnesses, i.e., P.Ws.10 & 11, the evidence of P.W.12 regarding the accused Rajendra leading him and other witnesses in giving recovery of thenga and tangia is hardly of any significance. Said thenga and tangia are commonly available in everyone's house in the village. When P.W.12 says that the accused gave recovery of those tangia and thenga from his room, he is silent that said tangia and thenga kept inside the room was then not visible to anyone so as to hold that the place of keeping of those tangia and thenga was only known to the accused and none-else. When we are not in a position to accept the prosecution case that the accused persons had assaulted the deceased by tangia and thenga, if the evidence of the prosecution is believed and accepted; then also it would simply lead us to say that the accused had handed over the tangia and thenga from his house to the I.O (P.W.12).

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15. 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 these accused persons (Rajendra Beheruk & Puspa Beheruk) 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.

16. In the result, the judgment of conviction and order of sentence dated 5th December, 2018 passed by the learned Additional Sessions Judge, Dharamgarh, in Criminal Trial No.27 of 2014 (Sessions) are hereby set aside.

Since both the accused persons, namely, Rajendra Beheruk & Puspa Beheruk are in custody, they be set at liberty forthwith, if their 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.67 of 2019