Dayanidhi Digal vs State Of Odisha
2023 Latest Caselaw 10153 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.248 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 1st March, 2017 passed by the learned
    Sessions Judge, Kandhamal, Camp at Baliguda, in Sessions Trial
    No.193 of 2011.
                                     ----

        Dayanidhi Digal                     ....         Appellant

                                 -versus-

        State of Odisha                     ....        Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                For Appellant    -      Mr. Debi Prasad Dhal,
                                        Senior Advocate
                                        Mr.K.Mohanty,
                                        Advocates

                For Respondent -        Mr.S.K. Nayak,
                                        Additional Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K. PANIGRAHI

   Date of Hearing : 24.08.2023      : Date of Judgment:28.08.2023

D.Dash,J. The Appellant, by filing this Appeal, has called in question

the judgment of conviction and order of sentence dated 1st March,

2017 passed by the learned Sessions Judge, Kandhamal, Camp at

Baliguda, in Sessions Trial No.193 of 2011 arising out of G.R. Case

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No.147 of 2011 corresponding to Balliguda P.S. Case No.50 of

2011 in the Court of the learned Sub-Divisional Judicial

Magistrate (S.D.J.M.), Balliguda.

The Appellant (accused) thereunder has been convicted for

committing the offences under section 302/323 of the Indian Penal

Code, 1860 (for short, 8the IPC9). Accordingly, he has been

sentenced to undergo imprisonment for life for the offence under

section 302 IPC; and rigorous imprisonment for rigorous

imprisonment for a period of six (6) months for commission of

the offence under section 323 of the IPC with a direction that the

substantive sentences would run concurrently.

2. PROSECUTION CASE:-

On 04.06.2011 around 11.00 a.m, Jagadeswar Pradhani had

been to the mango tope on the outskirts of their Village-

Mahasingi and without paying the price for the said consumed

liquor had consumed liquor worth of Rs.10/- from this accused,

namely, Dayanidhi and returned home. So, accused Dayanidhi

with others, namely, Kaina @ Jayadev Digal, Gopi @ Gopinath

Digal, Jamini @ Bhumita Digal, and Hana Digal followed him to

his house. The accused Dayanidhi questioned Jagadeswar as to

how he could leave the place without paying him the price for the

consumed liquor. It is stated that at the instance of those four

other persons (since acquitted), accused Dayanidhi then dealt a

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massive blow by means of a stout lathi on the head of

Jagadeswar. Receiving the blow, Jagadeswar fell down. At that

time, son of Jagadeswar, namely, Jaleswar Pradhani (P.W.1) weas

returning from a village hotel carrying some curry and when he

protested, it is stated that accused Dayanidhi also dealt a lathi

blow on his hand. Jagadeswar was then shifted to the Sub-

Divisional Hospital, Baliguda where he was declared dead.

In the afternoon, Jaleswar Pradhani (P.W.1), the son of

Jagadeswar (deceased) lodged a written report with the Sub-

Inspector of Police, who, in the absence of the Inspector-in-

Charge, was discharging the duty as such. The Sub-Inspector of

Police treated said written report as FIR (Ext.2), registered the

case and directed another Sub-Inspector of Police (S.I.-P.W.15) to

take up investigation.

3. In course of investigation, the Investigating Officer (I.O.-

P.W.15) examined the informant (P.W.1) and other witnesses. He

then issued requisition for medical examination of the informant

(P.W.1) and proceeded to the Sub-Divisional Hospital where the

dead body of Jagadeswar was lying. He (P.W.15) held inquest

over the dead body of the deceased and prepared the report

(Ext.1). The dead body of the deceased was sent for post mortem

examination by issuing necessary requisition. The I.O. (P.W.15)

thereafter visited the spot and prepared the spot map (Ext.17). He

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also seized the incriminating articles including one Salua lathi

(stout lathi) from the spot in presence of witnesses under the

seizure list, Ext.8/1. He further seized bloodstained earth and

sample earth under seizure list, Ext.7/1. The spade was seized

from the house of the informant (P.W.1) on 04.06.2011 under

seizure list Ext.9/1. The wearing apparels of the deceased were

seized being produced by the Police Havildar who had

accompanied the dead body for post mortem examination. The

seizure list prepared to that effect is Ext.10. Accused Dayanidhi

then was arrested and medically examined. His wearing apparels

were also seized. The seized incriminating articles were sent for

chemical examination through Court. On 23.06.2011, other four

persons were arrested. On completion of the investigation, the

Final Form was submitted placing the accused and four others to

face the Trial for commission of the offences under section

294/302/323/34 of the IPC.

4. Learned S.D.J.M., Balliguda, on receipt of the Final Form,

took cognizance of the said offences and after observing the

formalities, committed the case to the Court of Sessions. That is

how the Trial commenced by framing the charge for the aforesaid

offence against the accused and four others.

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5. The defence plea is that of complete denial and false

implication. The accused, however, has not tendered any

evidence.

6. The prosecution, in support of its case, has examined in

total sixteen (16) witnesses during Trial. As already stated, the

son of the deceased Jagadeswar, who had lodged the FIR (Ext.2)

being scribed by P.W.6 is P.W.1. The wife of P.W.1 has come to

the witness box as P.W.2 and P.W.3 has been examined as the co-

villager whereas the village tiffin shop owner has appeared as

P.W.7. The Doctor, who had conducted the the autopsy over the

dead body of the deceased has come to the witness box as P.W.15

whereas the Inspector-in-Charge of Balliguda P.S. who took

charge of the investigation from P.W.15 is P.W.16.

7. 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 20.

Out of those, the important are, the FIR (Ext.2), the inquest report

(Ext.1), the spot map (Ext.17); the post mortem report (Ext.15) and

the chemical examiner9s report (Ext.20).

8. The Trial Court, upon examination of the evidence of the

Doctor (P.W.14), who had conducted the autopsy over the dead

body of the deceased and his report (Ext.15), having held the

death of Jagadeswar to be homicidal, has found this accused to be

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the author of the injuries caused on the head of the deceased

leading to his death and also to have caused simple hurt to P.W.1.

Accordingly, the Trial Court has held him guilty of committing

the offence under section 302/323 of the IPC whereas the other

four accused persons, who had faced the trial, were acquitted.

This accused for his conviction, as above, has been sentenced as

afore-stated.

9. Mr.D.P.Dhal, learned Senior Counsel for the Appellant

(accused) submitted that here the prosecution case is based upon

the evidence of P.Ws.1 & 2 since P.W.3 has not supported the

prosecution version. Accordingly to him, the Trial Court has not

properly appreciated their evidence. He further submitted that

when basin upon the evidence of P.Ws.1 & 2, the Trial Court has

refused to hold four other accused persons facing the trial with

the present accused Dayanidhi to have committed any such

overt-act either or directly or in any other manner, the version of

those two witnesses, i.e., P.Ws.1 & 2 ought not to be held to be

safe to be relied upon in fastening the guilt upon the present

accused. He further submitted that the Trial Court has not

examined the evidence of P.Ws.1 & 2 in the backdrop of the

surrounding circumstances and further taking into account their

conduct, which appears to be improbable. According to him, the

evidence of P.Ws.1 & 2 being not free from suspicion; further

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keeping in view their keen interest in the success of the

prosecution, basing upon their version in particular, which are

not clear, cogent and acceptable, the finding of guilt of the

accused, as has been returned by the Trial Court, cannot be

sustained.

10. Mr.S.K.Nayak, learned Additional Government Advocate

for the Respondent-State submitted all in favour of the finding of

the Trial Court in holding the present accused liable for

committing the murder of Jagadeswar. He further submitted that

when P.W.1 and P.W.2 are two natural witnesses, there not

material having been elicited during cross-examination of those

witnesses, in pointing the doubt as to their presence at the time of

occurrence, the Trial Court has rightly accepted their version in

concluding that the prosecution has established the charges

against this accused beyond reasonable doubt.

11. 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 16) and have perused

the documents admitted in evidence marked as Exts.1 to 20.

12. The Doctor, who had conducted the post mortem

examination over the dead body of the deceased, is P.W.14. She

has deposed in clear terms that during post mortem examination,

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one laceration of the size of 7 X 1.5 X 1 c.m. over the inter partial

region of the scalp margins of which were irregular with

bleeding. As per her evidence, on dissection, one haematoma of

the size of 5 X 6 c.m. was present over the internal parital region

of the scalp; fracture of the skull present over mid point of the

sazittal suture of size 1 X 1 c.m. and one huge subdural

haematoma was found covering both the parital lobes extending

up to the occipital lobe of brain with the presence of liquid blood

of 200 ml presnt inside the cranial cavity. Her evidence is that all

such injures are ante mortem in nature and might have been

caused by hard, blunt and heavy weapon. She has stated the

reason of death to be profuse intra cerebral haemorhhage leading

to shock. We find that the evidence of the Doctor, which too finds

mention in her report (Ext.15) have not at all been challenged

during trial Above being the situation in the Trial Court, here also

nothing is argued to impeach the evidence of the Doctor (P.W.14).

In addition to the above, we find that the evidence of the I.O.

(P.W.15), who held the inquest over the dead body of the

deceased and prepared the report (Ext.1) wherein he has noted

the injuries, which he then had noticed. Keeping in view the

above unchallenged evidence, we have no other option but to

arrive at a conclusion that Jagadeswar met a homicidal death.

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13. Having said as above, now in order to judge the

sustainability of the finding of the Trial Court in holding the

accused to have caused the fatal injuries upon the deceased and

simple hurt to the informant (P.W.1), in addressing the rival

submission, it would be profitable to have a look at the evidence

of P.Ws.1 & 2.

P.W.1 is the son of the deceased. P.W.2 is the wife of P.W.1.

P.W.1 lodged the written report (Ext.1) being scribed by P.W.6. It

reveal from the FIR (Ext.2) that the incident took place some time

after 11.00 a.m on 4.6.2011. It has been mentioned in the FIR that

the deceased had been to take liquor and was coming to his house

and when he reached near the mango tree standing near his

house, the accused came holding a lathi and after asking

deceased as to why he came away without paying Rs.10/-

towards the price of consumed liquor and in further stating that

he would take away his life, gave a blow on his head, which

resulted the fall of the deceased on the ground. This P.W.1 has

stated in the FIR that at that time, he was coming from the village

carrying curry and during then to have seen the occurrence. He

has further stated in the FIR that when he with another villager

Sankar Pradhani (P.W.3) and his wife (P.W.2) were carrying the

deceased in a tempo, the accused assaulted him by that very lathi

on his left hand.

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Above being the FIR version, during Trial, he has stated

that on 04.06.2011 around 11.00 a.m.,, he had been to the village

junction to bring curry for his meal and on his way back home, he

asked this accused to give Rs.10/- towards the consumed liquor

and the accused quarreled with him. All these are narrations

appear to have been introduced for the first time in the trial. He

has further stated that after that quarrel, he left the place and

came to his house. It has been further stated that at that time, four

persons of Horizon streets chased him and he ran to his house

and went inside. His further evidence is that at that time, his

father (deceased) was inside the house and having seen the scene,

came out of the house and asked those four persons about the

reason of their chasing his son (P.W.1). It is further stated that a

quarrel ensued between his father Jagadeswar and those persons.

His further version is that during that time, being instigated by

those three persons, this accused Dayanidhi assaulted on the

head of his father by means of that lathi. He does not state that

Dayanidhi had also come with those persons nor he is stating as

to when Dayanidhi arrived there. The facts concerning the

incident as also the happening of the incident of assault on his

father as stated by him in the Trial appears to be wholly

irreconcilable with the narration in the FIR lodged by him

(P.W.1).

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Interestingly, when he says that accused Dayanidhi

assaulted him only when he intervened seeing the assault upon

his father by this accused Dayanidhi, the FIR version is to the

effect that when he was shifting his father Dayanidhi in a tempo

for treatment to the S.D. Hospital, he was assaulted by accused

Dayanidhi on his left hand. Moreover, the evidence of this

witness appear to us to be highly improbable that when he being

chased by those persons out of fear, had entered inside the house

and no sooner did he enter, his father came out of the house, he

then states to have boldly coming out gain and jumping to the

crime scenario, which is not ordinarily expected.

In addition to the above, in the FIR when he has not

breathed a word against anyone except this accused Dayanidhi,

in the Trial, he says the presence of others at the crime scenario

and those others to have also chased him uptil his house. His

further approach during Trial does not also appear to be honest

when he says that he knew all the accused persons except Hana

Digal by giving her name. When he names a person, it is

interesting to note that he goes to say that he did not know that

person. The tendency of this witness to rope in innocent person is

apparent for the first time for introducing those four persons

other than this accused for the first time in the Trial. During

cross-examination, this witness has also stated that he had lodged

the FIR (Ext.2) after police came to the house, which contradicts

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the version of the I.O. (P.W.15) that having received the FIR at the

P.S., he had come to the hospital.

Now, P.W.2, who is the wife of P.W.1 again naming one

Hana Digal, who was facing the Trial with the present accused

and others, says to have not known her when she is of the same

village, which tells upon her credibility. Her evidence is that the

accused persons (all the five including this accused Dayanidhi

excluding that Hana Digal) chased her husband till he entered

inside the house and when her father-in-law (deceased) came out

to know the reason, all those persons except that Hana Digal

assaulted and this accused Dayanidhi is said to have been

assaulted on his head by a lathi. She is thus giving a different

picture altogether as to how the incident began and how it ended

as has been given by P.W.1. She is silent where she was at the

relevant time when her husband was chased and wherefrom she

could see. The witness (P.W.3), who as per the FIR version, had

come shortly after the incident is totally silent and has not

supported the prosecution.

With the above state of affair in the evidence of P.W.1 and

P.W.2, we are of the view that it would not be safe to rely upon

the same in holding the role played and the act done by this

accused in the incident to have been established beyond

reasonable doubt. Accordingly, the Trial Court, with the same set

of evidence, while acquitting those four accused persons, who

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had faced the Trial with the present accused Dayanidhi, is not

right in holding that the prosecution has proved the charges

against this accused beyond reasonable doubt.

We are, therefore, of the view that the finding of the Trial

Court that the prosecution has established its case against

accused, Dayanidhi beyond reasonable doubt by leading clear,

cogent and acceptable evidence cannot be sustained. Accordingly,

we conclude that the judgment of conviction and order of

sentence impugned in this Appeal are liable to be set aside.

14. In the result, the Appeal is allowed. The judgment of

conviction and order of sentence dated 1st March, 2017 passed by

the learned Sessions Judge, Kandhamal, Camp at Baliguda, in

Sessions Trial No.193 of 2011 are hereby set aside.

Since the accused, namely, Dayanidhi Digal is on bail, his

bail bonds shall stand discharged.

(D. Dash), Judge.

Dr.S.K. Panigrahi, J. I Agree.

(Dr.S.K. Panigrahi), Judge.

Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 29-Aug-2023 14:14:45

CRLA No.248 of 2017