Dileswari Sahu; And vs State Of Odisha
2023 Latest Caselaw 15462 Ori

Orissa High Court

Dileswari Sahu; And vs State Of Odisha on 4 December, 2023

Bench: D.Dash, G.Satapathy

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                        CRLA No.301 of 2011
  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 15TH March, 2011 passed by the
  learned Additional Sessions Judge, Kuchinda in S.T. Case No.15
  of 2010.
                                ----

       Dileswari Sahu; and              ....        Appellants
       Saraswati Sahu

                               -versus-

      State of Odisha                     ....       Respondent

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

For Appellants - Mr.R.N.Mohanty-2 (Advocate)

For Respondent - Mrs.S. Patnaik Additional Government Advocate CORAM:

MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 17.11.2023 : Date of Judgment : 04.12.2023

D.Dash,J. The Appellants, by filing this Appeal, have called in

question the judgment of conviction and order of sentence dated

15TH March, 2011 passed by the learned Additional Sessions

Judge, Kuchinda in S.T. Case No.15 of 2010 arising out of G.R.

Case No.417 of 2009 corresponding to Mahulpali P.S. Case No.67

of 2009 in the Court of the learned Sub-Divisional Judicial

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

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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'). Accordingly, each

of them has been sentenced to undergo imprisonment for life for

commission of the said offence.

2. PROSECUTION CASE:-

On 21.12.2009 around 9.00 9.m., one Kanchan Sahu

(Informant-P.W.1) returned home along with her children. Having

arrived at the main gate of the house, she (P.W.1) saw the accused

persons assaulting Gopal Sahu. She then went near Gopal and

raised alarm. When she found the accused persons assaulting

Gopal, there was shouting as "MARIJA MARIJA". She noticed that

Gopal fell on the ground with bleeding injury on his head. The

Informant (Kanchan-P.W.3) then lodged a written report with the

Assistant Sub-Inspector in the Kusumi Police Out Post, who, after

making a entry in the Station Diary Book maintained at the Police

Out Post, sent the same to Mahulpali P.S. for registration of the

case. The Sub-Inspector (S.I.) of Police (P.W.10), in the absence of

Inspector-in-Charge (IIC) of said P.S., being in-charge of the P.S.

and discharging the duty as such, treated the same as FIR (Ext.1)

and upon registration of the case, took up the investigation.

3. The Investigating Officer (I.O.-P.W.10), in course of the

investigation, proceeded to the spot and examined the informant

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(P.W.1) and other witnesses. The I.O. (P.W.10), having visited the

spot, prepared the spot map (Ext.8). He (P.W.10) held inquest

over the dead body of the deceased in presence of the witnesses

and prepared the report (Ext.3). He sent the dead body of Gopal

for post mortem examination by issuing necessary requisition.

The I.O. (P.W.17) seized the weapon (Farsa) stained with blood

from the spot, one piece of wooden stick, two yellow colour

torches stained with blood, blood stained clay and sample earth

and seized the same under seizure list (Ext.9). The wearing

apparels of the decease and accused persons were seized under

seizure list (Ext.10 & 7). The seized incriminating articles were

sent for chemical examination through Court. On completion of

investigation, the I.O. (P.W.10) submitted the Final Form placing

this accused to face the Trial for commission of the offence under

section 302/34 of the IPC.

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

took cognizance of the said offence and after observing the

formalities committed the case to the Court of Sessions for Trial.

That is how the Trial commenced by framing the charge for the

aforesaid offence against these accused persons.

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

total ten (10) witnesses during Trial. Out of them, as already

stated P.W.1 is the informant whereas P.Ws.4 & 5 are the

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daughter and son of P.W.1. P.Ws.2, 3, 6 & 9 are the post

occurrence witnesses. P.W.3 is the son of the deceased. P.W.7 is

the Doctor, who had conducted the post mortem examination

over the dead body of the deceased. The I.O., at the end, has come

to the witness box as P.W.10.

6. 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 11.

Out of those, the important are, the FIR (Ext.1), the inquest report

(Ext.3), the post mortem report (Ext.5), and the spot map (Ext.8).

The chemical examination report had been admitted in evidence

and marked Ext.12.

7. The accused persons, having taken the plea of complete

denial and false implication, however, have not tendered any

evidence in support of the same.

8. Mr.R.N.Mohanty-2, learned counsel for the Appellants

(accused persons) submitted that there is absolutely no acceptable

evidence to connect the accused persons to have assaulted Gopal

to death, The Trial Court, picking up some stray statements from

the depositions of the prosecution witnesses has gone to hold that

the accused persons have committed the murder of Gopal.

According to him, even accepting the evidence of the prosecution

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witnesses as laid, it can never be said that the prosecution has

established the charges against the accused person beyond

reasonable doubt. He, therefore, submitted that the judgment of

conviction and order of sentence, impugned in this Appeal, are

liable to be set aside.

9. Mrs.S.Patnaik, leaned Additional Government Advocate for

the Respondent-State although without disputing that some

important prosecution witnesses having resiled from the parts of

their statement given before the I.O. (P.W.10) during

investigation, and for that, they having been cross-examined with

the permission of the court, even then the Trial court has rightly

accepted their version as regards the role of the accused persons

keeping in view the settled position of law that the evidence of

hostile witnesses are not liable to be rejected in entirety. She

further submitted that when there is no infirmity in the evidence

of P.Ws.1, 4 & 5 as regards the role played and the acts done by

these accused persons, the Trial Court has rightly convicted the

accused persons for the offences as aforestated.

10. 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 10) and have perused

the documents admitted in evidence marked as Exts.1 to 12.

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11. The finding of the Trial Court that the death of the deceased

was homicidal is not under challenge before us and that was also

not questioned before the Trial Court. Be that as it may, we find

that the evidence of the Doctor (P.W.7), who had conducted the

post mortem examination over the dead body of Gopal is to the

effect that the cause of death was due to the injury to the brain

causing damage to the vital centers. He has stated about the injury

on the scalp over the frontal area on the left side with depression

and being covered with dried blood. He has also stated that there

was laceration of scalp over lying the left side of frontal bone and

left parietal bone with irregular margins. As per his evidence, the

left side of facial bone, i.e., mandible and maxilla were depressed

and fractured and were divided into three pieces. The fracture of

frontal bone was divided into 3 to 4 pieces and was continuing

over left parietal bone to its posterior boarder at the middle. The

Doctor (P.W.7), on dissection, had also found the brain mater was

found underlined the frontal bone on left side and severely

injured. It has also been stated that the brain mater was lacerated

and were coming out of the skull. The death is stated to be on

account of the injury to the brain. He, having noted all these

findings in his report (Ext.5), that also find support from the

inquest report prepared by the I.O. (P.W.10), who had held inquest

over the dead body of Gopal and noted the seats of the injuries.

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That apart, we find the evidence of other witnesses, who have seen

the deceased with injuries on his body.

In the absence of any challenge to the evidence of the above

witnesses on that score, we find that Gopal met a homicidal death.

12. In order to address the rival submission with regard to the

finding of guilt against the accused persons, as has been returned

by the Trial Court, let us have a glance at the evidence of all the

prosecution witnesses.

Before that, it be stated that these two accused persons are

two sisters. P.W.1 is none other than the Informant. Her evidence

is that when she returned home with her children, she heard

accused Saraswati "MARIJA MAGHIA" and, therefore, she raised

hulla saying "KIA KIA" and then she states both the accused

person fled away from their courtyard and when she went near

the door of their house, she found a man lying dead. Her wife's

elder sister, who had gone for sleep was called and thereafter, they

all went to Kusumi Police Out Post. Her evidence is not on the

point to have seen these two accused persons assaulting the

deceased. It is also not stated by her that when the accused persons

left, they were carrying any weapon. These accused persons are

the sister-in-laws of P.W.1. The witness (P.W.1), having not further

stated anything about the complicity of these accused persons as

she had so stated during her examination by the I.O. (P.W.10) in

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course of investigation, the prosecution, having been permitted to

cross-examine the P.W.1, we find no such supporting materials as

to the complicity of these accused persons have come in.

The next important witness is P.W.4. She is the daughter of

P.W.1. The accused persons are her aunts (father's sisters). As per

her evidence, she found two girls quarreling with a man and when

her mother (P.W.1) wanted to enquire uttering "KIA KIA" those

girls ran away. The evidence P.Ws.1 & 4 are not at par; in as much

as when P.W.1 states to have heard accused Saraswati saying

"MARIJA MAGHIA", that is not stated by P.W.4 and rather it is

stated that P.W.1 started saying "KIA KIA". It is also not stated by

P.W.4 that she had seen the accused persons running away some

time after their arrival. The witness has been permitted to cross-

examine by the prosecution but then except drawing to her

attention to her previous statement in implicating the accused

persons, which she had denied to have so made, nothing has been

elicited. The statement of this witness as well as P.W.1 before the

I.O. (P.W.10), even though have been proved through the I.O.

(P.W.10), those cannot, however, be taken to the substantive

evidence.

The other witness (P.W.5), who is the daughter of P.W.1 and

sister of P.W.4, has again given a different picture that on that day,

she with her sister (P.W.4) and elder brother Kartika had gone for

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tution and returned along with her mother (P.W.1), they found one

person lying dead in front of their house. She states nothing about

the presence of these accused persons running away for their

arrival. In such state of affairs in the evidence of above witnesses,

we find the same to be deficient to be placed with implicit reliance.

With the evidence, as afore-discussed, we find that the

prosecution has utterly failed to prove the charge against the

accused persons beyond reasonable doubt by leading clear, cogent

and acceptable evidence and the Trial Court's finding as to the

guilt of the accused persons committing murder of Gopal is thus

vulnerable.

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

conviction and order of sentence dated 15TH March, 2011 passed

by the learned Additional Sessions Judge, Kuchinda in S.T. Case

No.15 of 2010 are hereby set aside.

Since both the Appellants (accused persons), namely, Dileswari Sahu & Saraswati Sahu are on bail, their bail bonds shall stand discharged.

(D. Dash), Judge.

G.Satapathy, J. I Agree.

(G.Satapathy), Judge

Designation: ASST. REGISTRAR-CUM-SR. SECRETARY

Location: HIGH COURT OF ORISSA : CUTTACK Date: 07-Dec-2023 12:31:12