Orissa High Court
Upendra Miniaka @ Upi & vs State Of Odisha on 4 December, 2023
Bench: D.Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.206 OF 2011
In the matter of an Appeal under section 374(2) of the Code of
Criminal Procedure and from the judgment of conviction and
order of sentence dated 28th February, 2011 passed by the
learned Sessions Judge, Koraput at Jeypore in Criminal Trial
No.49 of 2008.
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Upendra Miniaka @ Upi & ..... Appellants
Another
-versus-
State of Odisha ..... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
==================================================
For Appellants - Mr. B.S. Tripathy,
Advocate.
For Respondent - Mr. P.K. Mohanty,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
DATE OF HEARING :16.11.2023: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
28th February, 2011 passed by the learned Sessions Judge,
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Koraput at Jeypore in Criminal Trial No.49 of 2008 arising out of
G.R. Case No.152 of 2007 corresponding to Laxmipur P.S. Case
No.61 of 2007 of the Court of learned Judicial Magistrate First
Class (J.M.F.C.), Laxmipur.
The Appellants (accused persons) have been convicted for
commission of offence under section 302/394 of the Indian Penal
Code, 1860 (for short 'the IPC') and they have been sentenced to
undergo imprisonment for life for the offence under section-302 of the
IPC and further sentenced to undergo rigorous imprisonment for six (5)
years with payment of fine of Rs.5000/- in default to undergo rigorous
imprisonment for one year for the offence under section-394 of the IPC.
The stipulation has been that the imposed substantive sentences would
run concurrently.
2. Prosecution Case:-
The Assistant Sub-Inspector of Police (P.W.10) attached to
Laxmipur Police Station in the District of Koraput while
enquiring into the P.S. U.D. Case No.11 of 2007, registered on
the basis of an information given by one Dora Kulesika (P.W.1)
of village Nuapali as regards the unnatural death of his
daughter Luko Miniaka, whose dead body was recovered in a
highly decomposed state inside a bushy area locally known as
Rekbhota forest presented a written report with the Inspector-
In-Charge of Laxmipur P.S. as his enquiry revealed that Luko
Miniaka met homicidal death and he suspected the
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involvement of these two accused persons namely, Upendra
Miniaka @ Upi and Siba Mandinga of village Bada Mandhar
under the jurisdiction of Rayagada Police Station and
Bhitarguda under the jurisdiction of Laxmipur Police Station
respectively. The IIC (P.W.12) receiving such written report
(Ext.19) of the ASI (P.W.10), treated the same as F.I.R. (Ext.19/3)
and registering the regular case, took up investigation.
3. The I.O.(P.W.12) in course of investigation, examined the
Informant (P.W.1), visited the spot around 12.30 pm on that
day. He prepared the spot map, Ext.22 and examined some
other witnesses as also examined few more witnesses on the
next day. He then arrested these two accused persons from
Rupkona chhak. In course of investigation, it is said that
accused Upendra gave his statement to have sold the stolen
gold ornaments to two goldsmiths at Rayagada. It is also said
that accused Siba Mandinga giving his statement disclosed
about the concealment of stolen silver ornaments and one stone
and also disclosed about the sale of stolen gold ornaments to
two goldsmiths at Rayagada. Accused-Siba having given his
statement is said to have led P.W.12 and other witnesses near
the bush situated close to the spot where the dead body was
lying and gave recovery of the stone from side the bush. He
then also led them in giving recovery of the silver bangles
wrapped in a polythene sheet from inside the bush near the
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Tamarind tree at village Badamanadhar. The statement of the
accused persons were recorded by the I.O. (P.W.12) vide Exts.4
and 5 and seizures of the stone as well as the silver bangles
were made under seizure lists Exts.6 & 7. Accused Upendra
having led the I.O. (P.W.12) and other witnesses to the shop of
the other accused K. Amarnath (since acquitted) at Rayagada,
the gold earrings (Kana Fasia) were seized vide seizure list
from the said accused K. Amarnath (since acquitted) and then
two more gold nose rings (Jamini) and one gold nose ring
(Dondi) were seized more possession of accused-B.Ganesh
(since acquitted). On completion of investigation, Final Form
was submitted placing the accused persons to face the Trial for
commission of offence under section-394/302/201/34 of the IPC.
4. Learned J.M.F.C., Laxmipur receiving Final Form, took
cognizance of the above offence and after observing the
formalities, committed the case to the Court of Sessions. That is
how the Trial commenced by framing charges for the said
offences against the accused persons.
5. In the Trial, the prosecution in total has examined twelve
(12) witnesses, those are P.Ws.1 to 12. As already stated, the S.I.
of Police, who enquired the P.S. UD Case No.11 of 2007,
registered on the basis of the information of received from
P.W.1 is the Informant who had lodged the F.I.R. admitted
evidence and marked as Ext.19, P.Ws. 2 and 6 are the witnesses
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to have last seen the deceased with the accused persons at
Rupkona Chhak. P.W.5 is the husband of the deceased, P.W.4 is
the witness to the seizure of gold ornaments, The Doctors who
had conducted autopsy over the dead body of the deceased
have been examined as P.Ws.8 & 9. P.W.10 is the I.O., who had
held inquest over the dead body of the deceased and submitted
his report as Ext.20, P.W.11 is the Judicial Magistrate First
Class, Laxmipur who conducted T.I. Parade in respect of the
suspect gold articles. The I.O. has come to the witness box and
examined as P.W.12.
The prosecution besides leading the evidence by
examining the above witnesses has proved several documents
which have been marked as Ext.1 to Ext.23. Important of those;
are the inquest report Ext. 1, postmortem report, Ext.10, written
report, Ext.19, formal F.I.R., Ext.19/3, spot map, Ext.14 and
Chemical Examiner's report Ext.23.
6. The plea of the defence is that of complete denial.
However, no evidence has been tendered from the side of the
accused during the trial in support of the defence.
7. The Trial Court upon analysis of evidence on record and
placing reliance upon the evidence of the witnesses P.Ws.1 to 12
and the medical evidence coming from the lips of P.W.9 as well
as the I.O. (P.W.12) concluded that the charge against these
accused persons for the offence under section-302/394 of the IPC
CRLA NO. 206 OF 2011
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has been established beyond reasonable doubt. Accordingly,
these accused persons have been convicted for commission of
offence under section-302/394 of the IPC and sentenced as
aforestated.
It be stated here that the Trial Court having found the
prosecution to have failed to establish the charge as against the
accused persons namely, Kottakota Amarnath and Batala
Ganesh who are the goldsmiths have purchased the gold
ornaments from these two accused persons, have acquitted them
and it is stated at the Bar that said order of acquittal of the co-
accused persons have not been futher challenged.
8. Learned Counsel for the Appellants (accused persons)
submitted that there being no direct evidence to connect these
accused persons with the commission of the crime, the Trial
Court basing upon the evidence let in by the prosecution,
merely on some stay statements of the witnesses as to the
deceased being last seen in the company of these accused
persons and the recovery of the stone and other ornaments
which are said to be at the instance of these accused persons
which have also not been proved in accordance with law has
committed grave error in holding the accused persons guilty of
commission of offence under section 302/394 of the IPC. In
support of the same, he drawn our attention to the deposition
of the witnesses i.e. P.W.1 to 12 in submitting that those even if
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accepted on their face value cannot lead to a finding that the
prosecution has established the charges against the accused
persons beyond reasonable doubt.
9. Learned Counsel for the Respondent-State while
supporting the finding of the guilt against the accused persons
as has been returned by the Trial Court submitted that the
evidence on record being read in entirety and the totality of the
circumstances emanating from the evidence of the prosecution
witnesses being taken into account, the judgment of conviction
and order of sentence impugned in this Appeal are not
required to be interfered with.
10. Keeping in view the submissions made; we have carefully
read the judgment of conviction. We have also extensively
travelled through the depositions of all the witnesses i.e. P.W.1
to P.W.12 and have perused the documents which have been
marked Exts.1 to 27.
11. It be stated at first that the dead body of the deceased
namely, Luko Miniaka being sent for postmortem examination,
P.W.8 was the Doctor who had so conducted. His evidence is
that he had noticed the fractures of right maxillary bone and
occipital bone and on internal dissection, haemorrhage in the
brain with clotting of blood had been found out and so also
chest was found to have swollen with subcutaneous
haemorrhage all over the chest area. It has been stated by P.W.8
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that all these injuries were antemortem in nature and the death
was on account of haemorrhage of brain leading to cardio-
respiratory failure. It has also been his evidence that the
injuries were possible by means of hard and blunt object. The
seized stone having been examined by him, his opinion under
Ext.11 is that all these injuries over the dead body were possible
by the said stone M.O.-I. The findings have been noted in his
report, Ext.10.
The ASI of Police (P.W.10) having held inquest over the
dead body had too noted those external injuries in his report,
Ext.14, which has also been stated by other witnesses, who
were the witnesses to the inquest and had seen the dead body
of the deceased. When such evidence have remained un-
impeached, the nature of death of Luko Miniaka can be safely
said to be homicidal in nature.
12. The question thus comes as to how far the prosecution
has established the charges against the accused persons
through the evidence let in. For the purpose, we are called
upon to examine the evidence on record on that score in
addressing the rival submission.
13. P.W.1 is the father of the deceased. It is his evidence that
one Wednesday, his son-in-law(P.W.5), during the Dushera
month came to their house and wanted to see his wife and take
her back. When he was told by P.W.1 that deceased had not
CRLA NO. 206 OF 2011
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come to his house, he (P.W.1) and his son-in-law, Lunka
Miniaka (P.W.5) went in search of the deceased. On their way,
one Gopali Kulesika (P.W.2) told that on the previous Sunday
when he was in Munduliguda Chhak to see off his mother-in-
law, he has seen the deceased going with the accused persons
namely, Upendra Miniaka and Siba Mandinga. His evidence is
thus to the effect that during search made on Wednesday as per
P.W.1's statement, Gopali Kulesika told them to have been
accused persons and the deceased together on Sunday.
Thereafter the dead body was found by them i.e. P..W.1 and
P.W.5 in Rekbhota jungle. P.W.2, who is the person who had
told P.W.1 and P.W.5 having seen the deceased with the
accused persons on Sunday has stated that the accused persons
were found proceeding with the deceased towards the village
of P.W.2 and that was a Sunday. P.W.1 is the cousin brother of
P.W.2. He has stated that on being asked, deceased told him
that he was proceeding to village Piskadang to see her maternal
uncle, who was ill and she had also told that she would first
proceed to Muspali i.e. to her father's house, the house of P.W.1
and then was proceed to village Piscadang. This part is not
stated by P.W.1 to have been told by P.W.2 to them.
P.W.5 has stated that P.w.2 had told before them that on
Sunday, he had seen the deceased with the accused persons
and all were proceeding to village Muspalli. He further states
CRLA NO. 206 OF 2011
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that having heard from P.W.2, he with P.W.1 had been to the
house of accused Upendra, whereas P.W.1 has stated to have
gone to the house of father-in-law of Upendra. They say that
they did not find him there. P.W. 5 is silent as to the
conversation between P.W.2 and his wife (deceased) as told by
P.W.2. His evidence appears is wholly cryptic. We thus find the
prosecution evidence as to the last seen theory is highly
discrepant. The prosecution by leading the evidence through
P.Ws.1, 2 and 5 in our view cannot be said to have established
beyond reasonable doubt, that these two accused persons were
seen with the deceased on that Sunday. Besides the above,
there remains the gap of three days in between the accused
persons being last seen with the deceased and the recovery of
the dead body. No further evidence is forthcoming as regards
the movement of these accused persons during this gap period.
Coming to the recovery of the ornaments at the instance
of the accused persons, we find the evidence of the I.O.
(P.W.12) not only to be cryptic but also not satisfying the
requirements of section-27 of the Evidence Act for being
admissible to the extent as provided in law. The so called
purchasers of ornaments having been arraigned as accused
persons were not cited as witnesses and thus the prosecution
appears to have not reaped the benefit obtaining the evidence
from them that the accused persons had gone and sold those
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ornaments to them. Therefore, even if ornaments are shown to
be belonging to the deceased, the same is of no help to the
prosecution to be utilized against these accused persons in any
manner. The evidence of P.W.7 who is the witness to the
recovery being carefully read is also found to be not at par with
the evidence of the I.O. (P.W.12).
On a conspectus of discussion of evidence as hereinabove,
we are of the view that the prosecution has failed to establish the
charges against the accused persons beyond reasonable doubt.
14. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 28th February, 2011
passed by the learned Sessions Judge, Koraput at Jeypore in
Criminal Trial No. 49 of 2008 are hereby set aside.
Since, the accused persons namely, Upendra Miniaka @
Upi and Siba Mandinga are on bail, their bail bonds shall stand
discharged.
(D. Dash),
Judge.
G. Satapathy, J. I Agree.
(G. Satapathy),
Judge.
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: OHC
Date: 10-Dec-2023 16:49:02
Narayan
CRLA NO. 206 OF 2011
