In The Matter Of An Appeal Under ... vs State Of Odisha
2023 Latest Caselaw 9068 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          JCRLA No.76 of 2017

          In the matter of an Appeal under section 383 of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and order of sentence dated 21.07.2017 passed by the learned
    Additional Sessions Judge, Balasore in Sessions Trial No.7/228 of
    2015.
                                           ....        Appellant
        Thuba Singh

                                  -versus-

        State of Odisha                      ....      Respondent

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

                For Appellant     -     Mr.S.K.Gupta,
                                        Advocate.
                For Respondent -        Mr.P.K.Mohanty,
                                        Additional Standing Counsel
    CORAM:

    MR. JUSTICE D.DASH
    DR. JUSTICE S.K.PANIGRAHI

Date of Hearing : 08.08.2023 :: Date of Judgment:11.08.2023

D.Dash, J. The Appellant, by filing this Appeal, from inside the jail,

has challenged the judgment of conviction and order of sentence

dated 21.07.2017 passed by the learned Additional Sessions

Judge, Balasore in Sessions Trial No.7/228 of 2015, arising out of

C.T Case No.81 of 2015, corresponding to Berhampur P.S. Case

No.13 of 2015 of the Court of the learned Sub Divisional Judicial

Magistrate (SDJM), Nilgiri.

JCRLA No.76 of 2017 {{ 2 }}

The Appellant (accused) thereunder has been convicted for

commission of offence under section 302 of the Indian Penal

Code, 1860 (in short, 'IPC') and accordingly, he has been

sentenced to undergo imprisonment for life and pay fine of

Rs.10,000/- in default to undergo further rigorous imprisonment

for a period of two (2) years.

2. Prosecution case is that on 28.02.2015 Surendra Singh

(informant-P.W.4) had gone to the house of his brother-in-law at

Ghuntibania. When the informant (P.W.4) was there in the house

of his brother-in-law, his younger brother, Maheswar Singh came

and called him. So after taking the meal in the house of his

brother-in-law, both Surendra (Informant-P.W.4) and Maheswar

(deceased) returned home. When they were coming, it was night.

They were ahead of one another and proceeding on foot holding

their bicycles. It is stated that while proceeding when Surendra

(Informant-P.W.4) suddenly looked back, he saw the accused and

Maheswar (deceased) engaged quarreling with each other. He

immediately went there and separated them and went back to his

sister's house. It is stated that after some time, he heard sound and

when he came out of the house, he saw the accused running away

from the spot holding an iron rod in his hand and then his brother

Maheswar was lying down with bleeding injury on his face and

head. He then called his brother-in-law (P.W.5) and took

Maheswar to Berhampur Hospital. Maheswar on the way to

JCRLA No.76 of 2017 {{ 3 }}

Berhampur Hospital succumbed to the injuries. On the next day,

Surendra (P.W.4) lodged a written report with the Inspector-in-

Charge (IIC), Berhampur Police Station. Receiving the written

report from the informant (P.W.4), the IIC (P.W.11) treated the

same as FIR and registering the case took up investigation.

In course of investigation, the I.O. (P.W.11) he examined the

informant (P.W.4) and other witnesses. Around 10 am, he held

inquest over the dead body of the deceased Dengu @ Maheswar

in presence of the witnesses and prepared the report (Ext.6/1). He

too sent the dead body for post mortem examination by issuing

necessary requisition. Proceeding to the spot, he visited the spot

and prepared the spot map (Ext.8). He also seized the blood

stained and sample earth from the spot under seizure list

(Ext.7/3). It was around 2 pm, he arrested the accused and

recorded his statement (Ext.9). It is stated that the accused while

in police custody gave recovery of the iron rod leading the police

and others. In course of further investigation, the I.O (P.W.11)

seized other incriminating materials and sent all those for

chemical examination through Court. Being transferred, Assistant

Sub Inspector of Police (ASI-P.W.12) took charge of investigation

and after examining the witnesses and receiving the medical

opinion, completing the investigation, submitted the Final Form

placing the accused to face the Trial for commission of offence

under section 302 of the IPC.

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3. Learned SDJM, Nilgiri on receipt of the Final Form, took

cognizance of the offence under section 302 of the IPC 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 said offence against the accused.

4. In the Trial, the prosecution in total has examined twelve

(12) witnesses. As already stated, the informant, who happens to

be the brother of the deceased, is P.W.4 and he had lodged the

FIR (Ext.4). The brother and sister of the Informant (P.W.4) are

P.W.3 and P.W.2 respectively whereas P.W.5 is the brother-in-law

of the informant (P.W.4). P.W.6, P.W.7, P.W.8, P.W.9 and P.W.10

are the independent witnesses and some of them are also

witnesses to the seizure of the incriminating articles. The Doctor,

who had conducted post mortem over the dead body of the

deceased has been examined as P.W.1 and P.W.11 and P.W.12 are

the two Investigating Officers.

5. Besides leading the evidence by examining above the

witnesses, the prosecution has also proved several documents

which have been admitted in evidence and marked as Ext.1 to

Ext.14. Out of those, the important are the FIR, Ext.4, Inquest

Report, Ext.6/1, Spot Map, Ext.8, Post Mortem Report, Ext.1. The

so called statement of the accused has been admitted in evidence

JCRLA No.76 of 2017 {{ 5 }}

and marked as Ext.9 and the reports of the Chemical Examiner

are Ext.13 and Ext.14 respectively.

6. The plea of the accused is that of complete denial and false

implication. However, being called upon, the accused has not

adduced any evidence either oral or documentary.

7. The Trial Court having gone through the evidence of the

Doctor (P.W.1) and the Post Mortem Report prepared by him

(Ext.1) has arrived at a conclusion that the death of Surendra was

homicidal. In fact this aspect of the case was not under the

challenge before the Trial Court and that is also the situation

before us.

We gather from the evidence of P.W.1 that he had noticed

four cut injuries over the dead body of the deceased when he

held the post mortem examination. The cut injuries are over the

right side face, right side forehead, and right side posterior to the

ear. He has stated that all these injuries are ante mortem in nature

and the cause of death was due to shock on account of bleeding

from the seats of those injuries. In addition to the above, we find

that the first I.O, who had held inquest over the dead body of the

deceased, has noted the injuries which he noticed upon the dead

body in his report (Ext.6/1). Other witnesses have also stated to

have seen the deceased lying with injuries. We, however, find

that no attempt has been made from the side of the defence to

JCRLA No.76 of 2017 {{ 6 }}

impeach the above evidence. Therefore, no fault is found with the

finding of the Trial Court that deceased met homicidal death.

8. Learned Counsel for the Appellant (accused) submitted that

the Trial Court having not properly appreciated the evidence of

P.W.2, P.W.4 & P.W.5 is not right in arriving at a conclusion that

the prosecution has established the charge against the accused

beyond reasonable doubt. He submitted that the evidence of

P.W.4 who has been projected as the eye witness as well as the

evidence of P.W.2 and P.W.5, upon which the prosecution places

much reliance are in complete mismatch with one another,

especially, as to the role played by the accused as to what they

have said to have seen is also not believable. He therefore

submitted that the finding of guilt against the accused as has been

returned by the Trial Court is not the outcome of just and proper

appreciation of evidence on record. According to him upon due

scrutiny of the evidence of P.W.2, P.W.4 and P.W.5, the finding of

guilt cannot be sustained.

9. Learned Counsel for the Respondent-State while

supporting the finding of the Trial Court in holding the accused

to have committed the murder of Dengu @ Maheswar submitted

that the evidence of P.W.2, P.W.4 and P.W.5 having been

thoroughly scanned by the Trial Court, the conclusion has been

arrived at that through their evidence, the prosecution has

JCRLA No.76 of 2017 {{ 7 }}

established its case against the accused as no such serious

infirmity in the evidence of P.W.2, P.W.4 and P.W.5 to disbelieve

their version has been noticed. He submitted that there being no

variance in the evidence of these three witnesses in respect of the

material aspects of the case, the trial Court is absolutely right in

convicting the accused.

10. Keeping in view the submissions made, we have carefully

read the impugned judgment of conviction. We have also

extensively travelled through the depositions of the witnesses

(P.W.1 to P.W.12) and have perused the documents admitted in

evidence and marked as Ext.1 to Ext.14.

11. The informant (P.W.4) is the brother of the deceased Dengu

@ Maheswar and he had lodged the FIR (Ext.4). It has been stated

in the FIR (Ext.4) that when he with his brother Maheswar were

returning home from the house of their sister (P.W.2) and had

crossed little distance, as Maheswar was coming behind, he

turned back and saw that the accused was quarreling with

Maheswar. It has been further stated that he then separated both

and sent them to their respective houses. He further narrates

therein that when he remained in the house of his brother-in-law

for sometime, the accused came with an iron rod and assaulted

Maheswar and hearing the shout when he reached near the spot,

accused ran away. The above being the FIR narration; in his

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evidence, P.W.4 states that they were coming on road on foot

holding their bicycle and he was little ahead of Maheswar.

According to his evidence, when suddenly he heard shout, he

turned back and found accused giving an axe blow on the

backside of the head of Maheswar. He states that the incident

took place near the house of his sister (P.W.2). He has given a go-

bye to the FIR narration as regards to the quarrel between the

accused and the deceased that he separated them and thereafter

the accused again came and assaulted the deceased. In fact in the

FIR, it is stated that after the blow fell upon his brother

Maheswar, having heard the shout, he rushed to the place and

saw the accused leaving the place holding that iron rod. Now it is

not stated that accused had given the blow by means of iron rod

but it is stated that it was an axe blow. Although he is stating that

the accused ran away from the spot, it is not said that then he was

holding any weapon. P.W.2, the sister of P.W.4 has states that the

incident took place near the tati door of their house and when she

with her husband (P.W.5) came out, the deceased was lying on

the ground which shows that she had not seen the accused

assaulting the deceased. But her statement is that accused was

then running away from the spot. She does not state that the

accused ran away holding any weapon. It is also not stated by her

that P.W.4 had come to the spot, which leads to doubt the

presence of P.W.4, who is stating that thereafter he called his

JCRLA No.76 of 2017 {{ 9 }}

sister (P.W.2) and brother-in-law (P.W.5). P.W.2 has further stated

that while they were holding Dengu@Maheswar, the accused

came at the spot, dealt blows on the head and neck by using iron

rod and then left the spot and went to his house, which is not the

evidence of P.W.4 and that appears to be a later exaggeration.

P.W.4 does not state that the assault took place near the tati door

of the house of P.W.2. He is also silent as regards the accused

coming and assaulting the deceased by means of iron rod for the

second time. P.W.4 when states during trial to have seen the axe

blow being given by the accused upon the deceased, it was not

her version before the I.O (P.W.11) which has been brought out

from P.W.11 during cross-examination. This witness having

stated that she had called his sister and brother-in-law to the spot

and they came to the spot with other villagers in the trial, the

same had not been stated in her earlier statement during

investigation, which has been proved from the side of the

defence. This material omission tells upon the veracity of the

evidence of both P.W.2 and P.W.4. In addition to all these, the

evidence of P.W.2 is running on the score that by the time she

heard the sound "MAALO MAALO" she was in deep sleep and

then none was found near Dengu@ Maheswar, who was lying on

the rod. This version of P.W.2 again belies the evidence of P.W.4

that he was very much present there and had seen the assault

upon his brother by this accused.

JCRLA No.76 of 2017 {{ 10 }}

P.W.5 has stated that he having woke up from the sleep,

came out and found Dengu @ Maheswar lying dead. He does not

state anything more nor he states to have been told about any

overt act of the accused by P.W.2 and P.W.4.

12. In the above state of affair in the evidence of the P.W.2,

P.W.4 and P.W.5, we are of the considered view that the finding

of the Trial Court that the prosecution has established the charge

against the accused beyond reasonable doubt, cannot be

sustained.

13. In the result, the Appeal stands allowed. The judgment of

conviction and order of sentence dated 21.07.2017 passed by the

learned Additional Sessions Judge, Balasore in Sessions Trial

No.7/228 of 2015 are hereby set aside.

The Appellant (accused) be set at liberty forthwith, if his detention is not warranted in connection with any other case.

(D. Dash), Judge.

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


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


Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 11-Aug-2023 16:00:02

                     JCRLA No.76 of 2017