Orissa High Court
Ashok Kumar Behera & Another vs State Of Odisha on 4 December, 2023
Bench: D.Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.188 of 2012
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 25.01.2012 passed by the learned Additional
Sessions Judge, Malkangiri in Criminal Trial No.93 of 2011.
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Ashok Kumar Behera & Another .... Appellants
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants- Mr. Debasis Sarangi,
Advocate
For Respondent- Mrs. Saswata Pattanaik,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Hearing : 28.11.2023 :: Date of Judgment: 04.12.2023
D.Dash,J. The Appellants, by filing this Appeal, have assailed the judgment
of conviction and the order of sentence dated 25.01.2012, passed by the
learned Additional Sessions Judge, Malkangiri, in Criminal Trial No.93
of 2011, arising out of G.R. Case No.135 of 2011, corresponding to
Orkel P.S. Case No.22 of 2011 of the Court of learned Sub-Divisional
Judicial Magistrate (SDJM), Malkangiri.
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The Appellants (accused persons) have been convicted for
commission of offence under section 302/34 of the Indian Penal Code,
1860 (in short, 'the IPC'). Accordingly, they have been sentenced to
undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten
Thousand) in default to undergo R.I for one (01) year for the offence
under section 302/34 of the IPC.
2. Prosecution case:-
On 19.04.2011 around 6.30 p.m., one Kiran Khosla (Informant-
P.W.1) lodged a written report with the Sub-Inspector (S.I) of Orkel
Police Station, who in the absence of the Inspector-in-Charge (IIC) of
the P.S. was then discharging the duties as such. The said written report
was forwarded by the Forest Range Officer, Balimela Forest Range.
One Sisir Kumar Khosla, the father of the Informant (P.W.1)
working as Forest Guard at Parkanmala forest beat house from around
the year 2007. In the night, some unknown persons committed his
murder by causing cut injuries on his neck and had thrown his dead
body inside the jungle located near Gumma Ghati- Parkanmala. Kiran
Khosla (Informant-P.W.1) having received telephonic information on
that day around 5 p.m. had gone to the spot and found his father lying
dead with injuries on the right side neck and head. The above written
information being received, the same was treated as FIR (Ext.1), and
case being registered, investigation was taken up.
3. In course of investigation, the I.O (P.W.15) examined the
informant (P.W.1). He seized blood stained and sample earth and one
travel bag lying near the dead body in presence of the witnesses vide
Ext.14. He visited the spot and prepared the spot map (Ext.16). On
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20.04.2011, he conducted the inquest over the dead body of the
deceased in presence of the witnesses and prepared the report to that
effect vide Ext.2. He examined the witnesses to the Inquest that he held.
The dead body was sent for post mortem examination by issuing
necessary requisition. The wearing apparels of the deceased were seized
by the I.O. On 21.04.2011 he apprehended both the accused persons and
examined them in presence of the witnesses. On the same day, he
arrested both the accused persons. He recorded the statement of accused
Ashok Kumar Behera under section 27 of the Indian Evidence Act. The
accused persons led the I.O (P.W.15) to the place of concealment i.e.
near the house of accused Ashok Behera which was seized under the
seizure list Ext.3/2. On the same day, accused Mana Khara led the I.O
(P.W.15) to the spot near the house of the accused Ashok and gave
recovery of the axe which he had kept being covered by dry leaves. He
then seized the axe and prepared seizure list vide Ext.4/2. The I.O
(P.W.15) then seized the wearing apparels of the accused Ashok Kumar
Behera vide Ext.5/2. He also seized the wearing apparels of the accused
Mana Khara under seizure list Ext.6/2. He seized three wooden poles
from the courtyard of accused Ashok Kumar Behera. On 21.04.2011, he
visited the Courtyard of the house of accused Ashok Behera and
prepared spot map vide Ext.18. The accused persons were sent to
Balimela Hospital for collection of sample blood, nail clippings and
saliva. On the same day, he seized the blood samples, nail clippings and
saliva of the accused persons. The accused persons were then forwarded
in custody to Court. The seized incriminating articles were sent for
chemical examination to RFSL, Berhampur through Court. On
23.06.2011, he (P.W.15) handed over the charge of investigation of the
case to S.I Sibaram Pujari. On 23.06.2011 on completion of
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investigation, the second I.O (P.W.16), submitted the Final Form
placing the accused persons to face the Trial for committing the murder
of Sisir.
4. Learned SDJM, Malkangiri, receiving the Final Form as above,
took cognizance of the offence and after observing the formalities
committed the case to the Court of Sessions. That is how the Trial
commenced by framing charge against the accused persons for the said
offence.
5. In the Trial, the prosecution in order to bring home the charge
against the accused persons has in total examined 17 (seventeen)
witnesses. As already stated, the informant, who had lodged the written
report which was treated as FIR vide Ext.1 and is the son of the
deceased has been examined as P.W.1. P.W.2, P.W.3, P.W.4, P.W.5,
P.W.6, P.W.7 and P.W.8 are the post occurrence witnesses. P.W.12 and
P.W.13 are the witnesses to the seizures. The Doctor, who had
conducted post mortem over the dead body of deceased, has come to the
witness box as P.W.17 and the Investigating Officers has been examined
as P.W.15 and the P.W.16.
6. 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.19/3. Out of those, the
important are the FIR, Ext.1, Inquest Report, Ext.2, Spot Map, Ext.16,
second Spot Map, Ext.18, Post Mortem Report, Ext.23 and the Chemical
Examination Report is Ext.22.
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7. The plea of the accused persons is that of complete denial and
false implication. The accused persons, however, have not adduced any
evidence in support of the said plea.
8. Learned counsel for the Appellants (accused persons) submitted
that the prosecution case here is not based on direct evidence and in so
far as the circumstances are concerned, those as projected by
prosecution have not been proved by leading clear, cogent and
satisfactory evidence beyond reasonable doubt. He submitted that when
the prosecution has much relied upon the evidence of P.W.13, said
evidence being read in entirety and tested in the touch stone of the
circumstances which have emerged in the evidence falls far short of
acceptance. According to him, the prosecution has neither proved the
factum of recovery of the weapon at the instance of the accused persons
nor has proved the extra judicial confession said to have been made by
the accused persons. In view of all these, he submitted that the
impugned judgment of conviction and order of sentence cannot be
sustained.
9. Learned Counsel for the Respondent-State submitted all in favour
of the finding of guilt as against the accused persons as has been
returned by the Trial Court. According to her, there is absolutely no
reason to disbelieve the evidence of P.W.13, who is a public servant
who having no axe to grind against the accused has proved the recovery
of weapons i.e. parsuram tangia at the instance of the accused persons
when the motive has also been established through the evidence which
have not been shaken.
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10. Keeping in view the submissions made, we have carefully read
the judgment of conviction impugned in this Appeal. We have also gone
through the depositions of all the witnesses P.W.1 to P.W.17. We have
also perused the documents which have been admitted in evidence and
marked Ext.1 to Ext.19/3.
11. The death of Sisir Kumar Khosla has been found to be homicidal
in nature. We find the evidence of P.W.17, the Doctor, who had
conducted the post mortem examination over the dead body of the
deceased to the effect that he had noticed two lacerated injuries over the
right and left wrist, multiple abrasions over the dead body and most
importantly lacerated injury on the right neck extending to the right
angle of mouth with fracture of mandible, laceration of great vessels of
the neck and cutting of the muscles of the neck. He on dissection has
found the corresponding internal injuries. It is his evidence that all these
injuries were ante mortem in nature and the death was due to shock and
blood loss resulting from the injuries to the vessels of the neck. It is also
his evidence that the death was homicidal. To add to it, we also find the
evidence of P.W.1 (Informant) who had seen the injuries on the dead
body of his father and the evidence of the I.O (P.W.15), who had held
inquest over the dead body of the deceased and had noted all such
injuries in his report (Ext.2). When above said evidence have remained
unchallenged, we find ourselves wholly in agreement with the finding of
the Trial Court that death of Sisir was homicidal.
12. Next proceeding to address the rival submission and judge the
sustainability of the finding of guilt basing upon the evidence on record
as has been recorded by the Trial Court, we find that the prosecution
firstly relies upon the evidence as to the recovery of the weapons
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pursuant to the statements of the accused persons while in police
custody in leading police and other witnesses to the place which was
within their knowledge as stated. The evidence of the I.O (P.W.15) is to
the effect that on 21.4.2011 around 11.30 am he received information
from his source that the villagers have identified the culprits and those
culprits are the accused persons, who have disclosed before the villagers
that they had killed Sisir. It be stated that some of those villagers being
examined from the prosecution in the Trial have stated nothing in said
direction. P.W.15 has stated that thereafter, when he apprehended the
accused persons, they confessed their guilt in presence of the witnesses.
This part of the evidence of P.W.15 is inadmissible on the face of the
provision contained in Section 25 of the Evidence Act. It is further
stated that accused Ashok disclosed before him to have kept the weapon
concealed near a mango tree in front of the house and accused Mana
disclosed before him in that light. His evidence is that the accused
persons then led him and other witnesses to the place where parsuram
farsa (M.O-V) had been kept and they gave recovery of the same which
was seized. When P.W.15 has so stated about the disclosure statement
made by the accused persons and about giving the recovery of that
Parsuram farsa, the independent witnesses have not supported the said
version of P.W.15. P.W.15 has also stated that accused Ashok in similar
fashion and gave recovery of weapon axe from his house, which was
seized. The witness examined from the side of the prosecution i.e.
P.W.6, P.W.7, P.W.10 and P.W.11 have given complete go-bye. Thus
now stands only the evidence of P.W.13 in providing support to the
evidence of P.W.15. He has stated that on 21.04.2011 police came and
before him, the accused persons confessed to have killed the deceased
and then gave recovery of the weapon of offence such as parsuram farsa
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and tangia near the house of accused Ashok. First of all, the evidence of
P.W.13 is not matching with the evidence of P.W.15 with regard to the
recovery of those weapons. None has stated as to where the accused
persons disclosed first, where their statements were recorded and how
they gave recovery of those weapons. This P.W.13 states to have not
signed in the seizure list whereunder the weapons were seized. He has
also not stated as to what was the time when such recovery was made.
With such evidence on record, we are not in a position to accept that this
accused persons while in police custody having stated to have kept the
weapons in the place known to them had led P.W.15 and other witnesses
in giving recovery of the same leading to the seizure of the same.
The witnesses before whom, the accused persons, who are said to
have confessed the crime, have not so stated during the trial and the
prosecution having cross-examined those witnesses has simply remained
satisfied by drawing attention to their previous statement before the I.O
(P.W.15) and nothing more has been elicited from them in the direction
of establishment of said fact.
In such state of affair in evidence, the accused persons having not
offered any explanation as to the detection of the blood of human origin
from the courtyard in our view is of no significance.
In view of the evidence as above discussed, even if it is accepted
for a moment that the accused persons had the motive in committing the
crime that itself would not be enough to fasten the guilt upon these
accused persons as to have committed the murder of the deceased.
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13. On a conspectus of discussion of evidence as hereinabove, we are
of the view that the prosecution has failed to establish the charge against
the accused persons beyond reasonable doubt.
14. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 25.01.2012, passed by the
learned Additional Sessions Judge, Malkangiri, in Sessions Trial No.93
of 2011 are hereby set aside.
Since the Appellants namely, Ashok Kumar Behera and Mana
Khara are on bail, their bail bonds shall stand discharged.
(D. Dash),
Judge.
G. Satapathy, J. I Agree.
(G. Satapathy),
Judge.
Gitanjali
