Orissa High Court
Narayan Sahu vs State Of Orissa on 28 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.538 of 2023
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 23.03.2023 passed by the learned 1ST Additional Sessions
Judge, Berhampur in S.T. Case No.170/2017.
----
Narayan Sahu .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mrs.B. Dash,
(Advocate)
For Respondent - Mr.P.K.Mohanty,
Addl. Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR.JUSTICE S.K. PANIGRAHI
Date of Hearing : 18.08.2023 : Date of Judgment:28.08.2023
D.Dash,J. The Appellant, by filing this Appeal, has impeached the
judgment of conviction and order of sentence dated 23.03.2023 passed
by the learned 1st Additional Sessions Judge, Berhampur in S.T. Case
No.170 of 2017, arising out of G.R. Case No.501 of 2017,
corresponding to B. Sadar P.S. Case No.85 of 2017 of the Court of the
learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Berhampur.
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The Appellant (accused) with another accused 'X' stood charged
for commission of offence under sections 302/201/34 of the Indian
Penal Code, 1860 (for short, 'the IPC'). They having been sentenced for
commission of said offences have been sentenced to undergo rigorous
imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten
Thousand), in default to undergo rigorous imprisonment for six months
for the offence under section 302/34 of the IPC. However, no separate
sentence has been imposed for the offence under section 201/34 of the
IPC.
02. Prosecution Case:-
On 04.05.2017, one Uttam Patra (Informant-P.W.10) lodged a
written report with the Inspector-in-Charge (IIC) of Sadar P.S,
Berhampur that his son namely Babu@Laxminarayan Patra had married
'X' (name not stated) in the year 2004 and they were blessed with a son,
then aged about two years. It is stated that this accused Narayan Sahoo
was having illicit relationship, with his daughter-in-law (accused-'X')
and therefore there was misunderstanding between them. It is further
stated that the matter however had been resolved with the intervention
of village gentries. But this accused Narayan had eloped with 'X'
(deceased) for which the husband of accused 'X' had lodged a written
report at Mohana Police Station. Thereafter, they were traced and his
son Laxminarayan, daughter-in-law, accused-'X' and grandson went to
village Paiguda. Two days thereafter, this accused Narayan went to see
Laxminarayan with a plea of taking him to Berhampur for treatment of
the injury on his leg and having biased his son (deceased) took him
with accused-'X' and did not return. Later, the Informant (P.W.10) on
enquiry came to know that his son was not found at village Paiguda.
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When his daughter-in-law, accused-'X' was asked, she did not disclose
the whereabouts of her husband (deceased). On 04.05.2017 when the
informant came to Mohana, his daughter-in-law, accused-'X' confessed
that she with this accused Narayan had been to Berhampur on
07.04.2017 night and they have murdered Babu@Laxminarayan in the
rented house at Ankushpur Mill Sahi and had returned to village
Paiguda. Thereafter, the informant (P.W.10) along with the relatives
went to that rented house at Ankushpur Mill Sahi being led by the
daughter-in-law, accused-'X' and found the room to have been locked.
They could get the foul smell emitting through the ventilator of the
room. The dead body of Babu@Laxminarayan was found inside the
house in a decomposed state.
03. The Inspector-in-Charge (IIC) receiving the above written report
treated the same as F.I.R. and registering the case took up investigation.
The Investigating Officer (I.O.-P.W.27) in course of investigation
examined the Informant (P.W.10) who happens to be the father of the
deceased. He then examined one Gauri Patra (P.W.5) who is the sister-
in-law of accused-'X' and daughter of the Informant (P.W.10). The I.O.
(P.W.27) then proceeded to the house in question. He found the house
owned by one Bhimsen Panda (P.W.4) to be under lock and key. He also
found bad smell coming out of the house. Therefore, he made a
requisition to the Sub-Divisional Magistrate (SDM), Berhampur to
depute an Executive Magistrate (EM) to remain present for holding
inquest. Then he interrogated the co-accused-'X', who did not disclose
anything regarding the whereabouts of her husband-
Babu@Laxminarayan and only stated that she with her husband and this
accused Narayan had stayed for some days in the rented house. On
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05.05.2017, the I.O (P.W.27) again went to the spot house and prepared
the spot map (Ext.14). It was around 10 a.m. the lock of the house being
opened, the I.O (P.W.27) found the dead body of Babu@Laxminarayan
lying inside. He held the inquest over the same in presence of the EM
and prepared the report to that effect (Ext.1). He examined other
witnesses and then sent the dead body for post mortem examination by
issuing necessary requisition. He also examined other witnesses and
further interrogated accused-'X'. She then stated about her innocence in
shifting the blame upon this accused Narayan for intentionally causing
the death of her husband. The dead body was in a highly decomposed
stage and the face was disfigured. On 06.05.2017 around 4 p.m. the I.O.
(P.W.27) arrested co-accused-'X' and forwarded her in custody to the
court and in the night around 9 p.m. this accused Narayan was also
arrested. The I.O. (P.W.27) also seized other incriminating articles in
course of investigation and sent those for chemical examination through
court. In course of investigation, the I.O. (P.W.27) verified the Missing
Register maintained at Mohana Police Station and found that this
Informant (P.W.10) had given an intimation to the IIC, Mohana Police
Station on 04.05.2017 about the missing of his son Laxminarayan
(deceased) which had been entered in the said register. After
examination of some other witnesses, on completion of investigation,
the I.O. (P.W.27) submitted the Final Form placing the accused to face
the trial for commission of offence under section 302/34 of the IPC.
4. Learned S.D.J.M., Berhampur, on receipt of the above report,
having taken the cognizance of the offences, after observing all the
formalities, committed the case to the Court of Sessions for trial. That is
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how the trial commenced against this accused and three others by
framing the charge for the above offences.
5. In the Trial, the prosecution has examined in total twenty-seven
(27) witnesses. Out of whom, as already stated, the father of the
deceased as the Informant had lodged the F.I.R. (Ext.2) is P.W.10. The
scribe of the said F.I.R. has come to the witness box as P.W.23. The
owner of the said house, which is said to have been taken on rent by the
deceased wherein he with his wife (accused-'X') and child were
residing, has been examined as P.W.4. P.W.5 is the sister of the
deceased whereas P.W.6 is the wife of P.W.4. P.W.1 and P.W.3 are the
adjoining neighbours of P.W.4 and P.W.2 is the wife of P.W.1. P.W.17,
P.W.18, P.W.19, P.W.21 and P.W.22 are the co-villagers of the
deceased. The Doctor who had conducted post mortem examination
over the dead body of the deceased is P.W.15 whereas the I.O. is
P.W.27.
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 Ext.21. Out of those, the
important are the FIR (Ext.2), inquest report (Ext.1), post mortem report
(Ext.9), spot map (Ext.14), and the Chemical Examiner's Reports is
Ext.19, Ext.20 and Ext.21.
The accused being called upon has not led any evidence.
6. The Trial Court upon examination of the evidence let in by the
prosecution has held this accused Narayan and co-accused 'X', guilty
for commission of offence under section 302/34 of the IPC. The present
Appeal, however, is at the instance of convict Narayan. As informed by
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the Registry, till today no Appeal has been filed by the accused-'X' in
assailing the judgment of conviction and order of sentence running
against her.
7. Learned counsel for the Appellant (accused) submitted that here
the prosecution case is based on circumstantial evidence. She then
placing the evidence of all the witnesses examined from the side of the
prosecution contended that the main circumstance projected against this
accused as well as co-accused 'X' is that for some time, the deceased
and accused 'X' were staying in the said house in question wherefrom
the dead body had been recovered in a highly decomposed stage for
some time and that this accused Narayan was visiting them. According
to her, other circumstances are that they had some dispute concerning
the objectionable relationship between this accused, narayan and the
deceased and the so called factum of recovery of the dead body of
Laxminarayan in a highly decomposed state from the house in question
which was under lock and key. She, therefore, submitted that such
circumstances along with the other that this accused Narayan and the
accused 'X' were engaged in extra marital relationship and, therefore,
they had the motive to eliminate the deceased, who was running after
them even though accepted, no irresistible conclusion upon joining of all
those can be arrived at that it is this accused Narayan and accused-'X'
had committed the offence of murder of the deceased in ruling out all
other hypothesis other than their guilt.
8. Learned counsel for the State submitted that the prosecution
having proved the motive of this accused Narayan and the accused 'X'
which they are having to eliminate the deceased when it has been proved
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that the deceased with accused 'X' were staying in the rented house
wherefrom the dead body of the deceased has been recovered and as
there comes no explanation from them as to what happened to the
deceased that he was murdered and his dead body was found lying in the
house; the conviction recorded by the Trial Court holding this accused
and accused-'X' for commission of offence under section 302/34 of the
IPC is to be held to be well in order.
09. Keeping in view the submissions made, we have carefully gone
through the impugned judgment passed by the trial Court. We have also
extensively travelled through the depositions of the witnesses (P.W.1 to
P.W.27) and have perused the documents such as Ext.1 to Ext.21.
10. The prosecution case is based on circumstantial evidence. The
accused 'X' is the wife of the deceased whereas this accused is said to
be having extra marital relationship with the accused 'X'.
Pausing for a moment, let us place the settled principles of law as
to recoding of the conviction basing upon the circumstantial evidence
are required to be taken note of need be penned down.
11. The term circumstantial evidence defined by Peter Murphyas
evidence from which the desired conclusion may be drawn which
requires the Tribunal of fact not only to accept the evidence presented
but then to draw an inference from it. The term circumstantial evidence
in India was used by Sri James Stephen for the first time stating that
these facts depend on other facts and exists if it is proved that the other
fact existed. This means that the inference is drawn according to the
reasonable prudent man based upon pre-exiting fact that has already
been proved. Thus the circumstantial evidence does not establish
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complete guilt until every evidence is negating the innocence of the
accused. The whole chain of fact and circumstance of the case should be
so complete that from the same the existence of principal fact can
legitimately be inferred or presumed and no suspicion or conjecture
comes in the minds of the Court regarding the guilt of the accused when
he can be convicted on the basis of circumstantial evidence.
The term 'circumstantial evidence' has not been sued directly in
the Evidence Act. However, in section-3 of the act, the definition of the
word 'proved' reads that if the existence of any fact is so probable
which a prudent man will believe is to the exist than that is considered to
be proved. This implies that the admissibility of circumstantial evidence
that is based on logical inferences that direct evidence and
circumstantial evidence are at par if the whole chain of events which
happened collectively point unerringly at the guilt of accused. But if
there is doubt that the accused is innocent and the chain of event is not
complete then the benefit of the doubt has to go in favour of he accused.
In case of Sudama Pandey V. State of Bihar; (2002) 1 SCC, the
following points have been stated to be kept in mind for holding the
matter to have been proved with the aid of circumstantial evidence.
(a) Circumstances from which the inference had been drawn
should be fully proved that they existed;
(b) All the facts that have been proved support the hypothesis
of the guilt of accused;
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(c) The chain of circumstances should be well connected and
thus be completed so that it is conclusive; and
(d) The circumstances should toss out every possibility of the
accused of being innocent.
Coming to the last seen in the theory doctrine, it be noted that this
theory is found upon the principle of probability, cause and connection
as no fact exists or takes place in isolation. Basically, it means that if an
event happens that other event also occurs which are the probable
consequences of the manor even or is related to it either retrospectively
or prospectively. These inference or presumption are drawn logically,
according to how a reasonably prudent man will connect the dots is the
prevailing scenario. It has its root with section -7 of the Indian Evidence
Act called the 'Doctrine of Inductive Logic:- That states that if any fact
related to the occasion cause or effect lead to the circumstances in which
that thing occurred or it proved an opportunity in the occurrence of that
thing then those facts will be relevant and in the last seen theory also a
person who was last present with the victim would have a reasonable
opportunity to commit the crime.
This presumption of fact taken under section 114 of the Evidence
Act under which the Court can presume that certain facts exist, if some
other facts are proved to be in cases of natural events, human conduct
and public and private business. As for example if a person was the last
person seen with another just before his murder, then it can be
presumed, that such a person murdered the other under this theory since
that person had adequate scope and opportunity to commit the crime, Be
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that as it may, the presumption is not considered as conclusive proof of
the guilt of the person and those are rebuttable. It only shifts the onus
upon the person to prove that he is innocent which is an exception in the
criminal law as the burden of the proving the guilt of the accused always
lies upon the prosecution. Though the last seen theory relieves the
prosecution of the onus of proving the guilt yet it is weak evidence and
it needs to be corroborated with other factors like if there is motive with
the person who was last seen with the deceased or he could have even
inflicted the kind of injury that caused the death.
In cases of Jaswant Gir V. State of Punjab; (2005) 12 SCC 438 it
has been held by the Apex Court that if other links are not present to
corroborates the theory, then it is not safe to solely base the finding on
this theory. The fact of last seen should also be supported by other facts
in such a way that the circumstances are unerringly determinative in
nature and conclusively prove the guilt of the person. The Court thus has
to be on guard when deciding these kind of matters as even minute
details can change the whole scenario of the case.
The settled law for a case to be held proven entirely based on
circumstantial evidence, as has been detailed out in catena of decision
are that:-
(a) every circumstances that leads to the guilt of the accused
should be proved beyond reasonable doubt by the
prosecution; and
(b) all the circumstances should cogently depict the guilt of the
accused leaving no incongruities, suspicions so as to lead to
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the establishment of the guilt beyond reasonable ground
and ot in a half-backed situation.
In case of Digambar Vaishnab V.State of Chharisgarh: (2019) 4
SCC, it has been held that there should be reasonable proximity between
the time of seeing the person and recovery of the body to point the
needle towards the person last seen with the deceased. However simply
that they were last seen together cannot be the sole criteria to convict the
accused. Last seen theory with other obtained circumstances negating
the innocence of the accused can lead to base the conviction banking
upon the doctrine of last seen, In some cases through there are huge time
gap between the occurrence of the event and the time when last seen
together still if the prosecution establishes the fact that no other person
could have interfered or intervened as there was exclusive possession of
the accused to the place where the incident occurred, then based on this,
also the last seen theory can be established and presumption can be
taken despite a huge time gap. (Ref:-Satpal Singh V. State of Haryan:
(2010) 8 SCC 714.
12. Bearing in mind, the above said legal position, in order to address
the rival submission so as to judge the sustainability of the finding of the
Trial Court holding this accused guilty of the charges, let us now have a
look at the evidence to see that the same if pass through the tests as
aforesaid.
This Court thus now is called upon to first of all examine the
evidence and call out the circumstances in saying as to how far those are
incriminating pointing the finger of guilt against this accused. The
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Informant (P.W.10) in his evidence has stated that his son when was
residing in the house of his father-in-law was taken by the deceased to
somewhere and later on, he came to know that his son was lying dead in
village Ankushpur and he next found the dead body of his son in the
house of a person who was the owner of a mill and lodged the F.I.R. He
is not stating anything as regards the illicit relationship of his daughter-
in-law (accused-'X') with this accused Narayan. He is also not stating
that during which period, the deceased was staying in the house of his
father-in-law and how he could know that this accused, Narayan had
taken him somewhere from that place. The witness with the permission
of the court has been cross-examined by the prosecution, but during
then, he has simply been confronted with his previous statement made
before the I.O. (P.W.27) in course of investigation as regards such illicit
relationship and other information received regarding the role of this
accused Narayan and his daughter-in-law (accused-'X') in committing
the murder. He is however straight in denying to have stated so. The
cross-examination appears to have not been further directed to elicit that
he in the trial with a purpose is suppressing the truth. We also find
nothing to have been brought out from him in aid of the case of the
prosecution in establishing any circumstance which can be said to be
incriminating. The F.I.R. version to a great extent has been given a go
bye and therefore, the narration in the F.I.R. cannot be taken to be the
substantive evidence and those are rendered valueless. The owner of the
house wherefrom the dead body had been recovered was examined as
P.W.4. She had stated that he had given the key of the house to one
Rama Krusna Bisoi who has been examined as P.W.11. He further states
that said Rama Krusna Bisoi (P.W.11) had brought the accused-'X' and
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kept her in the said house on 20.03.2017. His further evidence is that
after about four to five days, said accused 'X' who was staying in the
said house, left the rented house saying that she was proceeding to her
village and on 4th and 5th June, 2017, the said accused 'X' again came to
the house and on 6th June, 2017, she left. This being his version, we can
only say that accused-'X' had only come to the house in question and
stayed there for some time and she finally left on 6th June, 2017. He has
then stated that on 4th May, 2017, Police had come to the house and had
asked him as to who was staying in that house on rent. On the next day,
i.e, on 5th May, 2017, the dead body was recovered from the house
where that lady was staying on rent. Thus, if we say that the dead body
was recovered from the said house which was under lock and key on 5th
May, 2017 as per the version of this P.W.4 the accused 'X' had come to
the said house thereafter on 4th June, 2017 and left on 6th June, 2017 and
prior to that in the month of March, she had stayed there for four to five
days. This witness does not state that the accused 'X' came and stayed
there from 20.03.2017 onwards for four to five days or that any other
male person had stayed with her. He is also not stating that except
accused-'X'; any other male had gone there during the period of her stay
and it is his positive evidence that Rama Krusna Bisoi (P.W.11) had
brought accused-'X' and kept her in the said house for few days. Now
this Rama Krusna Bisoi (P.W.11) has not supported the prosecution
case. He also being cross-examined, we find that nothing substantial has
been elicited from him in order to provide support to the prosecution
case in showing any circumstance, whatsoever, much less to say
incriminating.
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Now comes the evidence of P.W.5 who is the sister of the
deceased. Although she has stated that there was some murmur and that
her deceased brother told her about the extra marital relationship of the
co-accused 'X' with someone, she does not state it was this accused
Narayan. Her evidence is that this accused Narayan had taken one
house on rent at Ankushpur and accused-'X' brought her deceased
brother and kept him there in the said rented house. She has further
stated that on 7th April, 2017, the accused-'X' had taken Laxminarayan
(deceased) to MKCG Medical College and Hospital for treatment as he
had sustained injuries over his leg. She has further stated that this
accused Narayan had taken a house at Ankushpur on rent and co-
accused 'X' brought Laxminarayan and kept him there in the said house.
She does not state anything more as regards their stay in the said house
thereafter and about their conduct. It is also not stated by this P.W.5
that she had gone to that house and seen that on the next date both the
accused person committed the murder of her brother and concealed the
dead body in the said house and left the house by locking the same. It is
not stated by her that she had seen both the accused persons leaving the
house by locking the same from outside. She does not state to have seen
the accused persons doing anything upon Laxminarayan. The wife of the
owner of the house in question examined as P.W.6 has stated nothing.
We find no other witness to have stated anything pointing any
circumstance so as to even infer remotely the involvement of the accuse
persons. The evidence of I.O (P.W.27) is that he had recovered the
highly decomposed dead body of the deceased from the house by
breaking open the lock on 05.05.2017 and nothing more. Thus the
evidence of the prosecution witnesses examined being carefully gone
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through, we find no such incriminating circumstances to be surfacing in
pointing the finger of guilt at the accused persons except raising some
suspicion, if the evidence of P.W.5, the sister of the deceased is accepted
for the moment, with regard to the illicit relationship between this
accused and accused 'X' providing a motive to them for elimination of
the deceased which too has not been solidly established by leading clear,
cogent and acceptable evidence and that version of P.W.5 is also not
getting corroboration from the evidence of P.W.10 who is none other
than the father of the deceased. Thus in our view, it would be unsafe to
so conclude simply accepting the prosecution evidence piloted through
P.W.15, the Doctor who had conducted the post mortem examination
that the death was on account of the injury noticed upon the dead body
and the complication arising therefrom, that the finding of guilt returned
by the Trial Court holding this accused guilty for commission of offence
under section 302 of the IPC in causing the murder of Laxminarayan is
in order.
13. Having held as above, since this Appeal has been preferred by
only one of the accused persons, namely, Narayan Sahu, out of the two
accused persons, who have been convicted by the Trial Court under
sections 302/201/34 of the IPC and that other convict 'X', who was on
trial with the present Accused-Appellant (Narayan Sahu) standing
charged for the same offence, we have heard Mr.P.K. Mohanty, learned
Additional Standing Counsel as to what would be the impact of our
foregoing finding upon the fate of the judgment of conviction and order
of sentence in so far as Accused-'X', who has not appealed, is
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concerned. He has ably and in a fair way, has assisted the Court in the
matter.
In this context, it may be stated that while dealing with a Criminal
Appeal filed by only one of the convicts if the Court finds that there is
no evidence worth the name to sustain the conviction of not only the
accused, who has filed the Appeal but also the other accused, who has
not appealed, we find no reason or justification as to why the power of
this Court in view of the provisions contained in sections 401 & 482 of
the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') cannot
be exercised in certain eventuality to aside the conviction and sentence
passed against the other accused, who has not appealed so as to see that
manifest injustice may not be continued to be perpetrated for merely non
filing of the Appeal by the co-convict. We are of the view that if in such
eventuality, the Court would simply rule upon the judgment of
conviction and order of sentence in so far as the convict, who has filed
the Appeal is concerned, then such provisions as noted above in the
Cr.P.C. would serve no purpose as having no life.
14. Upon discussion of evidence on record in great detail in the
foregoing paragraphs, we have arrived at the conclusion that the
prosecution has failed to establish its case, which is based on
circumstantial evidence beyond reasonable doubt by leading clear,
cogent and acceptable evidence in proving the circumstances in showing
that all circumstance taken together complete the chain of events in
every respect that all the hypothesis other than the guilt of the accused
persons are ruled out. The findings rendered by us are inter-dependant
and inextricably integrated in so far as this Appellant-Accused as well as
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the convict who has not filed the Appeal are concerned. In this context,
we may refer to few authorative pronouncements which provide full
supports to the view that we are going to take.
15. In case of Parbati Devi -V- The State; AIR 1952 Calcutta 835;
two persons were convicted under section 120-B read with section 366
of the IPC. One of them appealed against the judgment of conviction
and order of sentence. The Court came to the conclusion that there was
absolutely no evidence to sustain the conviction of the Accused-
Appellant as well as the other Accused-Non-Appellant. The question
then arose for consideration was whether the conviction and sentence
passed on that Accused-Non-Appellant be set aside even, though he had
not appealed. While dealing with that question, it has been observed as
under:-
"When we were considering the appeal by Parvati Devi we came to
the definite conclusion that there was no evidence on the record which
would justify a conviction for conspiracy as between Parvati Devi arid
Shew Nath. It is not only in the exercise of the inherent power, but we
consider it to be the duty of the Court to exercise jurisdiction in such a
manner that manifest injustice may not be continued to be perpetrated.
It does not matter that Shew Nath has not appealed. This matter
having come to the notice of the Court, we think that we have got
sufficient jurisdiction under the inherent powers of the Court
under Section 561-A, Criminal P. C., 1898 to pass appropriate orders
in the case of Shew Nath also."
16. In case of Hari Nath & Another -V- State of U.P.; AIR 1988 SC
345, the Hon'ble Supreme Court, while setting aside the judgment of
conviction and order of sentence passed against the Appealing Accused,
who had been convicted under section 396 of the IPC and sentenced
thereunder, also set aside the conviction and order of sentence passed
against the Non-Appealing Accused holding that the same cannot
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sustain, consistent with the finding in and the result of the Appeal as the
findings are inter-dependent and inextricably integrated.
17. In case of Nirmal Pasi & Another -V- State of Bihar; (2003) 24
OCR (SC) 431, the Hon'ble Apex Court, upon discussion of the
evidence, came to conclude that the prosecution case, which relates to
the arrest of the Accused-Appellants suffers from serious infirmities.
The Trial was also held to be defective as most of the relevant
incriminating evidence had not been put to the Accused-Appellants
during their examination under section 313 Cr.P.C. in seeking
explanation from them. So, the conviction of the Accused-Appellants
and the order of sentence for the offence under section 396 of the IPC
and the consequential order of sentence were set aside. Having said so,
coming to deal with the case of the third Accused whose conviction,
having been maintained by the High Court, he had not chosen to file an
Appeal before the Apex Court, it has been held as follows:-
" However, in view of what has been stated hereinabove, we find the
case of Accused Krishna Choudhary not distinguishable from the cases
of Sona Pasi and Nirmal Baheliya, Accused-Appellants and his
conviction and the sentence passed therein should also be set aside."
With the above, the Hon'ble Court, while directing that the
Accused-Appellants, namely, Sona Pasi and Nirmal Baheliya to be set at
liberty forthwith, if not wanted in any other case, has also set aside the
conviction for commission of offence under section 396 of the IPC and
the sentence passed thereon as against the third Accused, namely,
Krishna Choudhary though he has not appealed and directed that he too
be released forthwith if not wanted in any other case.
CRLA No.538 of 2023
{{ 19 }}
18. In view of our foregoing discussion and the position of law, as
noted above, we, in the case at hand, conclude that the judgment of
conviction and order of sentence passed by the Trial Court against
Accused 'X' though she has not appealed cannot be sustained and as
such are liable to be set aside.
19. Resultantly, the judgment of conviction and order of sentence
dated 23.03.2023 passed by the learned 1st Additional Sessions Judge,
Berhampur, in S.T. Case No.170 of 2017 arising out of G.R. Case
No.501 of 2017 in respect of the Accused persons i.e. Narayan Sahu,
who is in Appeal before us and also the other one, who has not
Appealed, are hereby set aside. Accordingly, it is directed that Narayan
Sahu, the Appealing Accused and the non-Appealing Accused-'X' be
set at liberty forthwith, if their detention is not wanted in connection
with any other case.
(D. Dash)
Judge.
Dr. S.K. Panigrahi,J I agree.
( Dr. S.K. Panigrahi)
Judge.
True copy
Sr. Stenographer
Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Himansu
Location: OHC
Date: 29-Aug-2023 17:58:07
CRLA No.538 of 2023
