Krusika Harischandra vs State Of Odisha
2023 Latest Caselaw 397 Ori

        IN THE HIGH COURT OF ORISSA, CUTTACK

                      JCRLA No.121 Of 2018

From judgment and order dated 27.02.2017 passed by the
Additional Sessions Judge, Rayagada in C.T. Case No.41 of 2014.
                        ----------------------------

    Krusika Harischandra          .......                    Appellant


                                -Versus-


    State of Odisha               .......                    Respondent


        For Appellant:               -        Mr. Sabyasachi Mishra
                                              Advocate


        For Respondent:               -        Mr. Arupananda Das
                                               Addl. Govt. Advocate


                      JCRLA No.66 Of 2019

    Shyamdar Miniaka              .......                    Appellant


                                -Versus-


    State of Odisha               .......                    Respondent


        For Appellant:               -        Mr. Suryanarayan Mishra
                                              Advocate

        For Respondent:               -        Mr. Arupananda Das
                                               Addl. Govt. Advocate
                        ----------------------------
                                                      // 2 //




        P R E S E N T:

                         THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 11.01.2023

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S.K. SAHOO, J. The appellant Krusika Harischandra in JCRLA No.121

of 2018 and the appellant Shyamdar Miniaka in JCRLA No.66 of

2019 faced trial in the Court of learned Additional Sessions

Judge, Rayagada in C.T. Case No.41 of 2014 for commission of

offence punishable under section 302/34 of the Indian Penal

Code on the accusation that both of them in furtherance of their

common intention committed murder of Illiga Miniaka (hereafter

'the deceased'), the husband of the informant Laki Miniaka

(P.W.1) on 27.10.2013 at about 5.00 p.m. near Ghodanala near

village Burjuguda. They were further charged under section

201/34 of the Indian Penal Code on the accusation that knowing

the commission of the offence, they caused disappearance of

evidence by throwing the dead body of the deceased into

Ghodanala in order to screen themselves from legal punishment.

The learned trial Court vide impugned judgment and

order dated 27.02.2017 acquitted both the appellants of the

charged under section 201 of the Indian Penal Code and found

the appellants guilty under section 304(I)/34 of the Indian Penal

Code and sentenced each of them to undergo rigorous

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imprisonment for ten years and to pay a fine of Rs.10,000/-

(rupees ten thousand) each, in default, to undergo further

rigorous imprisonment for six months.

Since both the jail criminal appeals arise out of same

judgment, with the consent of learned counsel for the respective

parties, those were heard analogously and disposed of by this

common judgment.

2. The prosecution case, as per the first information

report (Ext.9) lodged by Laki Miniaka (P.W.1), in short, is that

the deceased had been to village Burujuguda on 27.10.2013 at

about 4.00 p.m. along with his co-villagers Sikunu Miniaka

(P.W.2) and Dambaru Miniaka (P.W.6) to sell paddy. After selling

paddy, while they were returning to the village in the evening

hours on that day, on the way, near Ghodanala, the appellants

suddenly came on their way and appellant Shyamdar Miniaka

gave push to the deceased and the appellant Krusika

Harischandra assaulted the deceased on his head with a thenga.

The assault was witnessed by P.W.2 and P.W.6 and both of them

fled away from the spot and the matter was reported to the wife

of the deceased i.e. P.W.1 on 28.10.2013 and hearing the same,

P.W.1 along with her co-villagers came to the spot where they

found the dead body of the deceased. P.W.1 taking the

// 4 //

assistance of one person scribed the F.I.R. and presented the

same before the Inspector in-charge of Kalyanasinghpur police

station on 29.10.2013 and accordingly, K. Singhpur P.S. Case

No.72 of 2013 was registered under section 302/34 of the Indian

Penal Code against both the appellants. The Inspector in-charge

of Kalyanasinghpur police station directed P.W.12 Suchandra

Mahalik, the S.I. of Police to take up investigation of the case.

During course of investigation, P.W.12 examined the

informant and other witnesses, visited the spot where the

deceased was found floating inside the Ghodanala and after the

dead body was identified to the Investigating Officer by P.W.2

Sikunu Miniaka, the dead body was brought out from the

Ghodanala with the help of other persons and inquest over the

dead body was conducted and the inquest report (Ext.3/1) was

prepared. The weapon of offence i.e. thenga which was lying at

the spot was seized as per the seizure list Ext.2/1. The dead

body was dispatched for post mortem examination to the Medical

Officer, C.H.C., Kalyansinghpur. The wearing apparels of the

deceased were seized when the same was produced by the

constable after the post mortem was conducted as per seizure

list (Ext.10). The scribe of the F.I.R. was examined. Both the

appellants were arrested on 30.10.2023 at Therubali railway

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station. Appellant Krushika Harischandra while in police custody

gave information about concealing of one stone near the bush at

the spot of occurrence and his statement was recorded under

section 27 of the Evidence Act in presence of the witnesses and

basing on such information, the appellant gave recovery of one

stone at Ghodanala leading the police party to the spot and

accordingly, the stone was seized under seizure list (Ext.8/2).

The Investigating Officer also seized the wearing apparels of the

appellants under seizure lists Ext.11 and Ext.12. The nail

clippings and blood samples of both the appellants were collected

and it was produced before the Investigating Officer by the

constable from C.H.C., K. Singhpur. On 31.10.2013, both the

appellants were forwarded to the Court and when a query was

made to the doctor, who conducted the post mortem

examination regarding possibility of the injury sustained by the

deceased by the seized thenga and the stone, the Medical Officer

gave his reply in affirmative. The blood samples, nail clippings

and wearing apparels of the deceased as well as the appellants

were sent for its chemical examination to R.F.S.L., Berhampur

through the Court of learned S.D.J.M., Rayagada and chemical

examination report vide Ext.13 was obtained. On completion of

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investigation, P.W.12 submitted charge sheet against the

appellants under sections 302/201/34 of the Indian Penal Code.

3. After submission of charge sheet, the case was

committed to the Court of Session for trial after observing due

committal procedure where the learned trial Court on

29.04.2016 framed charges against the appellants as already

stated and since the appellants refuted the charges, pleaded not

guilty and claimed to be tried, the sessions trial procedure was

resorted to prosecute them and establish their guilt.

4. The defence plea of the appellants was one of denial

and it was pleaded that the deceased was coming with P.W.2

and P.W.6 in a drunken state and the deceased fell down on the

ground and the road near the spot was full of stones for which

the deceased sustained injury.

5. During course of trial, in order to prove its case, the

prosecution has examined as many as twelve witnesses.

P.W.1 Laki Miniaka is the informant, who is the

widow of the deceased. She stated that on the previous day of

occurrence, her deceased husband along with co-villagers

Dambu (P.W.6) and Sikunu (P.W.2) had gone to sell their paddy

but her husband did not return back and on the next day

morning, when she searched her husband, the said co-villagers

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informed that the appellants killed her husband and she found

the dead body of her husband by the side of Ghodanala.

P.W.2 Miniaka Sikunu is the co-villager of the

deceased and also an eye witness. He stated that the deceased,

he himself and Dambaru (P.W.6) had gone to sell paddy. He

further stated that in Ghodanala near a banyan tree, appellant

Shyamdar pulled the deceased and appellant Harishchandra

assaulted him on his head and neck by means of a thenga (long

stick) and he and P.W.6 ran away towards the jungle and on the

next day morning, they revealed the incident before the

informant (P.W.1) and they saw the dead body of the deceased

near Ghodanala.

P.W.3 Manoj Kumar Pradhan was the constable

attached to K.Singhpur police station and he is a witness to the

seizure of two injection vials containing blood samples and two

packets containing nail clippings of the appellants as per seizure

list Ext.1/1.

P.W.4 Enti Rao Miniaka is a co-villager. He stated

that the deceased alongwith his co-villagers, namely, Sikunu

(P.W.2) and Dambaru (P.W.6) had been to village Burujuguda to

sell paddy and on the next day, the said co-villagers stated at

the village that the appellants committed murder of the deceased

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near the Ghodanala of village Burujuguda and hearing the same,

he and some villagers accompanied P.W.1 to the spot and

noticed the dead body of the deceased. He is also a witness to

the seizure of weapons of offence i.e. thenga vide Ext.2/1 near

the Ghodanala.

P.W.5 Nabin Miniaka is a co-villager and a witness to

the inquest (Ext.3/1) and he also stated in the manner like that

of P.W.4.

P.W.6 Dambaru Miniaka is a co-villager of the

deceased and an eye witness and he also stated in the manner

like that of P.W.2. He further stated that on the same day night,

they intimated regarding the incident to P.W.1.

P.W.7 Dr. Dhirendra Marandi, who was the Medicine

Specialist at V.S.S. Medical College, Burla conducted the post

mortem examination over the dead body of the deceased on

police requisition and proved the post mortem report vide Ext.4.

He also proved the requisition made by the I.O. vide Ext.5 so

also his query report vide Ext.6.

P.W.8 Rupa Maniaka, P.W.9 Nagesh Kulesika, P.W.10

Hari Miniaka and P.W.11 Appa Rao Miniaka are the co-villagers

and they did not support the prosecution case for which they

were declared hostile.

// 9 //

P.W.12 Suchandra Mahalik was the S.I. of Police of

Kalyansinghpur police station and he is the Investigating Officer

of the case.

The prosecution exhibited thirteen numbers of

documents. Ext.1/1 is the seizure list of two injection vials

containing blood samples and two packets containing nail

clippings of the appellants, Ext.2/1 is the seizure list of weapons

of offence i.e. thenga, Ext.3/1 is the inquest report, Ext.4 is the

post mortem examination report, Ext.5 is the requisition, Ext.6 is

the report of P.W.7, Ext.7/2 is the statement recorded under

section 27 of the Evidence Act, Ext.9 is the plain paper F.I.R.,

Ext.10 is the seizure list of the wearing apparels of the deceased,

Ext.11 is the seizure list of the wearing apparels of the appellant

Krusika Harischandra, Ext.12 is the seizure list of the wearing

apparels of the appellant Shyamdhar Miniaka and Ext.13 is the

C.E. Report.

The prosecution also proved two material objects.

M.O.I is the thenga and M.O.II is the stone.

No witness was examined on behalf of the defence.

6. The learned trial Court after analyzing the oral as

well as documentary evidence on record came to hold that the

evidence of the Medical Officer clearly rules out any possibility of

// 10 //

accidental or suicidal death and leaves no room for doubt to hold

that the death of the deceased was homicidal one. Learned trial

Court accepted the evidence of P.W.2 and P.W.6 and held that

their evidence is creditworthy and truthful and the defence has

miserably failed to dislodge their testimony. It was further held

that the discrepancies in the evidence of P.W.2 and P.W.6 are

normal and the same no way corrode the very basis of the

prosecution case. Learned trial Court also held that there is no

such delay in lodging the F.I.R. as the informant was a rustic

tribal lady and the explanation relating to the delay in lodging

the F.I.R. is found to be satisfactory. Learned trial Court further

held that even if the seizure witnesses P.W.8 and P.W.9 to the

seizure of stone on the basis of statement of appellant Krusika

Harischandra have not supported the prosecution case but they

have admitted to have put their signatures on the seizure list. It

was held that the oral evidence of P.W.2 and P.W.6 coupled with

the seizure of stone under section 27 of the Evidence Act

guaranteed complicity of the appellants in connection with the

case. The learned trial Court held that the prosecution has not

successfully established that the act of the appellants are falling

under any of the four clauses of section 300 of the Indian Penal

Code to hold them guilty under section 302 of the Indian Penal

// 11 //

Code, however, it falls within the clause "with the intention of

causing such bodily injury as is likely to cause death" of section

299 of the Indian Penal Code and accordingly, held the

appellants guilty under section 304(I)/34 of the Indian Penal

Code. The learned trial Court further held that the prosecution

has not adduced any cogent evidence to prove that the

appellants caused disappearance of the dead body of the

deceased to screen themselves from legal punishment and

accordingly, acquitted the appellants of the charge under section

201 of the Indian Penal Code.

7. Mr. Sabyasachi Mishra, learned counsel appearing for

the appellant Krusika Harischandra and Mr. Suryanarayan

Mishra, learned counsel appearing for the appellant Shyamdar

Miniaka challenging the impugned judgment contended that the

evidence of two eye witnesses are not believable and there has

been delayed disclosure of the occurrence before P.W.1, the

widow of the deceased and the doctor, who conducted post

mortem examination has clearly stated that the internal

condition was suggestive of a case of drowning and as such, it is

a fit case where benefit of doubt should be extended in favour of

the appellants. In the alternative, it is argued that since both the

appellants are in judicial custody since 31.10.2013 and they

// 12 //

were never released on bail either during trial or during

pendency of the appeal, as such, they have undergone

substantive sentence of more than nine years and two months

and therefore, the sentence may be reduced to the period

already undergone.

Mr. Arupananda Das, learned Additional Government

Advocate appearing for the State, on the other hand, supported

the impugned judgment and contended that the discrepancies,

which are appearing in the evidence of the two eye witnesses i.e.

P.W.2 and P.W.6 are minor in nature and they do not go to the

root of the case. Moreover, the statements of the eye witnesses

are corroborated by the medical evidence which has been

adduced by the doctor (P.W.7) who conducted post-mortem

examination and therefore, the appeals should be dismissed.

8. There is no dispute that the prosecution case mainly

hinges on the evidence of two eye witnesses i.e. P.W.2 and

P.W.6. Both of them stated to have accompanied the deceased

for selling the paddy and were returning back to their village

after selling the paddy when the occurrence in question took

place.

P.W.2 has stated that while they were returning to

the village in the evening hours at Ghodanala, near a banyan

// 13 //

tree, the appellant Shyamdar Miniaka pulled the deceased and

the appellant Krusika Harischandra assaulted him on his head

and neck by means of a thenga (long stick) for which they ran

away towards the jungle and on the next day morning, they

revealed the incident before the informant (P.W.1) and they saw

the dead body of the deceased near Ghodanala. In the cross-

examination, P.W.2 has stated that in the night, they did not

reveal the incident either to P.W.1, the widow of the deceased or

to any of the villagers and in the morning, he revealed the

incident to P.W.1. He further stated that the police came to the

spot with the informant and found the deceased was lying dead.

He further stated that the deceased was assaulted from his

backside and he did not try to intervene or pacify the matter and

seeing the assault, he ran away with fear and did not look back.

It has been confronted to P.W.2 and proved through the

Investigating Officer (P.W.12) that he has not stated that while

he and the deceased were returning after selling their paddy,

near Ghodanala, suddenly the appellants came on their way and

appellant Shyamdar Miniaka pulled the deceased and appellant

Krusika Harischandra assaulted him on his head and neck by

means of a thenga. In view of the material contradiction

appearing in the evidence of P.W.2, it is difficult to place reliance

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on this witness. Therefore, it cannot be believed that P.W.2 is an

eye witness to the occurrence.

So far as P.W.6 is concerned, he stated that he along

with P.W.2 and the deceased had been to village Burujuguda to

sell the paddy and while returning near Ghodanala, both the

appellants suddenly came on their way and appellant Shyamdar

Miniaka gave push to the deceased and the appellant Krusika

Harischandra assaulted the deceased by means of a thenga on

the head and they became frightened and ran away from the

spot and the matter was also intimated to the informant on the

same day night. Though a suggestion was given to P.W.6 that he

along with P.W.2 and the deceased had consumed liquor after

selling the paddy but he denied such suggestion. It has also

been brought in the cross-examination that the appellants

assaulted the deceased very nearer to them and Ghodanala was

at a distance of ten cubits from the place where assault was

made to the deceased. Nothing has been pointed out by the

learned counsel for the appellants from the cross-examination to

disbelieve the evidence of P.W.6. Therefore, the evidence of

P.W.6 has remained unshaken.

The doctor (P.W.7), who conducted the post mortem

examination over the dead body of the deceased on 29.10.2013

// 15 //

at K.Singhpur C.H.C., stated that on examination, he found the

deceased had sustained fracture on his right arm and peeling of

skin in lateral surface of right wrist and there was one lacerated

wound of size 6 x 5 x 0.5 cm. situated over anterior part of neck

and there was also a cut injury on the right side ear of the

deceased and swelling on the right side mouth and one incised

wound of size 2 x 2 x 0.5 cm. situated on the back of the head.

The doctor has further stated that the cause of death of the

deceased was on account of head injury and asphyxia and the

nature of death was homicidal and the time of death was within

twenty four to forty eight hours from conducting the post

mortem and post mortem examination report has been marked

as Ext.4. A query was made to the doctor by the Investigating

Officer as to whether the nature of the injury on the deceased

was ante mortem, whether the death of the deceased could be

instantaneous due to the injury caused to the deceased and

whether the injuries found on the deceased can be possible by

the seized weapons. The doctor has answered to all the queries

in the affirmative and his report has been marked as Ext.6.

Though in the cross-examination, the doctor has stated that the

internal condition suggested that it was a case of drowning, but

he has denied the suggestion given by the learned defence

// 16 //

counsel that the size of the spleen and lever of the deceased

suggested consumption of alcohol prior to the death. However,

the doctor has stated that the head injury might be possible on

fall on hard and rocky surface and he has denied the suggestion

of the learned defence counsel that the death of the deceased

was not homicidal. The evidence of the eye witness P.W.6

coupled with the evidence of the doctor (P.W.7) clearly indicates

that it was on account of assault by appellant Krusika

Harischandra by means of a lathi that the death has taken place.

The evidence of the eye witness P.W.6 is also corroborated by

the informant (P.W.1) before whom he disclosed about the

occurrence and specifically named the appellants.

However, coming to the role played by each of the

appellants, it appears that the only role that has been attributed

against the appellant Shyamdar Miniaka is that he gave a push

to the deceased. In view of the available material on record

against the appellant Shyamdar Miniaka, it is very difficult to

come to a finding that he shared common intention with the

appellant Krusika Harischandra and therefore, the conviction of

the appellant Shyamdar Miniaka under section 304(I)/34 of the

Indian Penal Code is not sustainable in the eye of law and hereby

set aside and he is acquitted of such charge. He shall be set at

// 17 //

liberty forthwith, if his detention is not otherwise required in any

other case.

The role attributed against the appellant Krusika

Harischandra is that he assaulted on the head of the deceased by

means of thenga and it is corroborated by the medical evidence,

which was adduced by P.W.7 and seized thenga was sent to

P.W.7, who on examination of the same opined that the injury

found on the deceased is possible by such weapon. P.W.6 stated

that he disclosed about the occurrence to the widow of the

deceased on the same day night and therefore, there is no

delayed disclosure of occurrence. I find no infirmity or illegality in

the findings of the learned trial Court in convicting him guilty

under section 304(I) of the Indian Penal Code.

It appears that the appellant Krusika Harischandra

was taken into judicial custody in connection with this case on

31.10.2013 and he was neither released on bail during course of

the trial nor during pendency of this appeal. Therefore, he has

already remained in judicial custody for more than nine years

and two months. In view of the passage of time, the sentence

imposed on the appellant Krusika Harischandra is reduced to

period already underdone and in view of the poor financial

condition of the appellant, the imposition of fine amount and the

// 18 //

default sentence for his conviction under section 304(I) of the

Indian Penal Code is hereby set aside. Therefore, the appellant

shall be released forthwith from custody, if his detention is not

otherwise required in any other case.

10. Accordingly, the JCRLA No.66 of 2019 is allowed.

Appellant Shyamdar Miniaka is acquitted of the charge under

section 304(I)/34 of the Indian Penal Code. The JCRLA No.121 of

2018 is dismissed subject to modification of sentence.

Trial Court records with a copy of this judgment be

communicated to the concerned Court forthwith for information

and necessary action.

.................................

S.K. Sahoo, J.

Orissa High Court, Cuttack The 11th January 2023/RKMishra