Sekhar Huika & Others vs State Of Odisha
2023 Latest Caselaw 8022 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLA No.669 of 2016
          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 4th February, 2013, passed by the
    learned Sessions Judge, Rayagada, in C.T. No.32 of 2011.
                                      ----

        Sekhar Huika & Others                  ....        Appellants

                                  -versus-

        State of Odisha                        ....       Respondent

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

                For Appellants    -        Mr.Biswajit Nayak
                                           (Advocate)

                For Respondent -           Mr.SK. Nayak,
                                           Additional Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K. PANIGRAHI

    Date of Hearing :30.06.2023        :     Date of Judgment:24.07.2023

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

question the judgment of conviction and order of sentence dated

4th February, 2013 passed by the learned Sessions Judge,

Rayagada, in C.T. No.32 of 2011 arising out of G.R. Case No.398

of 2010 corresponding to Seshkal P.S. Case No.16 of 2010 in the

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Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.),

Rayagada.

The Appellants (accused persons) thereunder have been

convicted for committing the offence under section 302/201/34 of

the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly,

each of them has been sentenced to undergo imprisonment for

life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default

to undergo rigorous imprisonment for two (2) years for the

offence under section 302 of the IPC; and undergo rigorous

imprisonment for two (2) years and pay fine of Rs.2000/- (Rupees

Two Thousand) in default to undergo rigorous imprisonment for

six (6) months for the offence under section 201 of the IPC.

2. Prosecution Case:-

On 08.11.2010, One Bairagi Urlaka, the uncle of the

informant (P.W.1), namely, Ramesh Urlaka had been to the

village Gurusubadi along with these accused persons, namely,

Sekhar Huika, Silli Huika and Gompa Huika and others to attend

one Deepawali feast, which was being hosted in the house of

Prahallad Bidika. While they were retuning, on the way, these

three accused persons went with that Bairagai Urlaka. It is stated

that then they started assaulted him when Kasana and Kartika

Mandangi (P.W.2) requested them to refrain them from doing so.

They were, however, threatened by the accused persons and

consequent upon the same, Kasana and Karitka ran away from

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that spot. It is next stated that Bairagi did not return to house.

Therefore, his nephew Ramesh (P.W.1) and other family members

went in search of Bairagi. But they could not trace him out. Later

on, getting the hint from some whispering of some villagers that

the accused persons killed Bariragi and had kept the dead body

concealed somewhere; Ramesh (P.W.1) lodged a written report

with the Inspector-In-Charge (I.I.C.) of Seshal Police Station (P.S).

The I.I.C., having received the written report from Ramesh,

treated the same as the FIR and registering the case, took up

investigation.

3. In course of investigation, the Investigating Officer (I.O.-

P.W.13) examined the Informant (P.W.1), recorded his statement

and also those of other witnesses under section 161 of the Code of

Criminal Procedure, 1973 (for short, the 8Code9).

He then arrested the accused Sekhar Huika on 13.11.2010 at

about 10.00 a.m. It is said that the accused Sekhar, while in police

custody, gave the statement to have concealed the dead body of

Bairagi (deceased) in the village pond and that he would show

the exact location. The statement of the accused was recorded by

the I.O. (P.W.12) and others he then led P.W.12 and others to

Jilani tank village-Kunjabali and gave recovery of the dead body

kept in a gunny bag. Upon recovery of the said dead body, the

I.O. (P.W.12), made requisition for securing the presence of

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Executive Magistrate at the time of holding the inquest. On

arrival of the Executive Magistrate (P.W.5), the inquest over the

dead body of the deceased was held and the I.O.(P.W.12),

prepared the inquest report (Ext.2). The dead body was then sent

for post mortem examination by issuing necessary requisition. It

is stated that on that day, around 3.30 p.m., accused Sekhar

produced a knife, which was under seizure list (Ext.1/1). Around

5.00 p.m., accused Silli Huika and Gumpha Huika were arrested.

The I.O. (P.W.12) also seized other incriminating materials in

course of investigation and sent those for chemical examination

through Court.

On completion of the investigation, the I.O.(P.W.12)

submitted Final Form placing the accused persons to face the

Trial for commission of the offence under section 30302/201/34 of

the IPC.

4. Learned S.D.J.M., Rayaga, 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. That is how the Trial

commenced by framing the charge for the aforesaid offences

against the accused.

5. The defence plea is that of complete denial and false

implication.

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

total thirteen (13) witnesses during Trial. As already stated, P.W.1

is the informant whereas P.W.2 is an eye witness to the

occurrence, who claims to have seen the assault made by the

accused persons upon the deceased Bairagi. P.W.3 is the wife of

the deceased whereas P.W.4 is the witness to the recovery of the

dead body of Bairagi tied with stone from the tank and also the

knife. The Executive Magistrate, in whose presence, inquest was

held, has come to the witness box as P.W.5 whereas P.W.6 is the

mother of the deceased and P.W.7 is a co-villager and a witness

before whom P.W.2 had disclosed about the initial part of the

incident. P.W.11 is a witness, who had seen dead body in the

village pond. The Doctor, who had conducted autopsy over the

dead body of the deceased has been examined as P.W.13 whereas

the I.O. has been examined as P.W.12.

7. 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 14.

Out of those, the important are, the FIR (Ext.5), the inquest report

(Ext.2), statement of the accused Sekhar (Ext.6), spot map (Ext.8)

and the post mortem report (Ext.14).

The defence has not examined any witness in support of the

plea of denial and false implication.

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8. The Trial Court, on going through the evidence of the

Doctor (P.W.13) and his report (Ext.14) as also the evidence of

other witnesses including the I.O. (P.W.12) and the inquest report

(Ext.2), has arrived at a conclusion that Bairagi9s death was

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

before the Trial court and that is also the situation before us.

It is the evidence of the Doctor (P.W.13) that he had noted

four external injuries over the dead body of Bairagi and on

dissection, he had noticed multiple fractures of temporal bone

involving injury to the canine teeth and incisor teeth, which too

had been loosened. During his examination, he had noticed

haemorragic decomposition of brain matters, which were palpic.

As per the evidence of the Doctor (P.W.13) and his report, the 6th,

7th, 8th and 9th ribs had been fractured and his scrotum as well as

penis were cut leaving the stumps. All these injuries are said to be

ante mortem in nature. This P.W.13 has indicated all those in

detail in his report (Ext.14). The I.O. (P.W.12), who held inquest

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

Magistrate (P.W.5) has noted all such external injuries in his

report (Ext.2), which has been prepared in the presence of P.W.5.

Other witnesses have also stated to have seen the dead body with

such injuries. In view of all these evidence remaining

unchallenged, we are wholly in agreement with the finding of the

Trial Court that Bairagi9s death was homicidal.

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9. Learned counsel for the Appellants submitted that there is

no direct evidence to connect these accused persons with the

murder of Bairagi. He further submitted that the evidence of

P.W.2 that he had seen the accused persons assaulting the

deceased and then being threatened by the accused persons, he

left the place whereafter Bairagi was not seen is not at all

acceptable. He submitted that when as per the prosecution case

and as has been stated by the informant (P.W.1) that Kartika and

Kasana told him about initial happenings in the incident that the

deceased was assaulted by the accused persons, it is only that

Kartika (P.W.2), who has been examined as P.W.2 and the other

one namely, Kasana, has been withheld. Inviting our attention to

the deposition of P.W.2, he pointed out the glaring discrepancies

and doubtful circumstances appearing therein for which

according to him, no reliance can be placed upon the evidence of

P.W.2. He further submitted that the evidence of P.W.3 with

regard to the recovery of the dead body, at the instance of the

accused and also that of P.W.4 when read with the evidence of

P.W.12, cannot be accepted as those differ in material aspects. He,

therefore, submitted that the Trial Court did commit the grave

error by holding the accused persons guilty of murder of Bairagi

as to have intentionally caused the death of killed that Bairagi.

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10. Learned Additional Government Advocate for the

Respondent-State, while supporting the finding of guilt, as has

been returned by the Trial Court, contended that the evidence of

P.W.2 is wholly believable and, therefore, the Trial Court,

viewing the evidence of P.W.2 with the evidence of P.Ws.1, 2, 3 &

6, has rightly convicted the accused persons having very rightly

accepting the prosecution evidence as to the recovery of the dead

body of Bairagi at the instance of the accused from that pond

pursuant to his statement, which he had given while in police

custody after his arrest.

11. 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 13) and have perused

the documents admitted in evidence marked as Exts.1 to 14.

12. The question posed before us essentially is as to how far the

prosecution has proved the charges against the accused persons

in establishing their complicity in intentionally causing the death

of Bariragi (deceased). Admittedly, no witness has been

examined to have seen the death of the deceased taking place and

some other subsequent happenings involving role of anybody

thereafter till recovery of the dead bdoy. The solitary witness for

the prosecution in pointing the finger of guilt at the accused is

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P.W.2. He states to have seen the accused persons holding the

deceased and hitting a stone on his head but he is silent as to

what happened in view of such assault upon the deceased. When

he claims that he was following the accused persons and the

deceased, it is not his evidence that as how so suddenly, the

accused persons started assaulting the deceased and what was

the reason behind. He is also not stating whether the stone, with

which the head of the deceased was hit, was collected from a

place itself or any of the accused persons was carrying the same.

His evidence again just being given a careful reading, it seems

something vague. When he says that the head of the deceases

was hit by a stone, he is not stating as to whether one of the

accused persons holding the stone hit on the head of the deceased

and if by one, who is that accused is not stated by this P.W.2.

Furthermore, such statement of P.W.2 appears to be highly

improbable that how three accused persons would hit the head of

the deceased by means of a stone when his evidence is not in the

line that the deceased, for some reason having fallen on the

ground, the accused persons carried the stone together thrashed

it on his head. He although has stated to have informed P.W.1

about the said happenings and it is also his evidence that one

Kasana was with him at the relevant time. The conduct of this

witness (P.W.2) is wholly against that of an ordinary human

being as it ought to have been in that situation. He thus is not

CRLA No.669 of 2016 {{ 10 }}

saying that he with that Kasana had any reaction in seeing the

same which they had expressed. It is as if this P.W.2 saw the

incident in his own eyes and silently returned and he is also not

saying to have received any threat from any of the accused

persons. Thus, we are not a position to rely the version of P.W.2

to conclude that the prosecution case has been established

thereby regarding the deceased being assaulted by those accused

persons.

13. Having said above, we are now led to examine the evidence

with regard to the recovery of the dead body of Bairagi

(deceased) from that pond at the instance of accused Sekhar. As

per the evidence of the I.O. (P.W.12), he arrested the accused on

13.11.2010 at 10.00 a.m. His evidence is that said accused Sekhar

confessed his guilt before him that he with accused Gumpha and

Silli had murdered Bairagi and to have kept the dead body

concealed in the village pond, which he would show. This P.W.12

does not state as to if when accused Sekhar made such statement,

any other witness was present nearby. First of all, the

confessional part is wholly inadmissible but then whether the

accused Sekhar had disclosed to have kept the dead body in the

village pond, there is no independent witness as per the evidence

of the I.O. (P.W.12). He has stated that when the accused Sekhar9s

statement was so recorded, which has been admitted in evidence

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and marked Ext.6 and thereafter accused Sekhar led him and the

witnesses to the village pond, but then who are those witness is

not in the evidence of P.W.12. P.W.1, who is the informant, does

not state to have seen the accused being arrested by P.W.12, but

he stands up to speak that the accused, while in police custody,

disclosed that he, with other two assaulted the deceased by

means of a stone hitting on his head and in anticipation of he

being alive, they brought the deceased to the nearby pond

whereafter accused Sekhar went to his house and brought a knife

and a gunny bag and by means of that knife, cut away the penis

and testicles of the deceased and the accused Silu, by means of

that knife, cut away the head of the deceased and thereafter, they

put the dead body in the gunny bag and threw in the village

pond. All these facts which are being stated by P.W.1 is not in the

evidence of the I.O. (P.W.12). This P.W.1 does not say that who is

that accused who then led the police and other and gave recovery

of that gunny bag from inside the pond. During cross-

examination, he has stated that four days after the death of the

deceased, police came to their village and at the time when the

accused gave his statement, so many persons were present. He

has also stated that the villagers were suspecting that deceased

Bairagi, by practicing whitch craft, was causing immense harm to

the villagers and five of the villagers had been the victims of such

act. So, from the evidence of P.W.1, it is evident that many

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persons other than the accused persons were standing as the

enemies of the deceased. At this juncture, the evidence of P.W.3,

who happens to the wife of Bairagi (deceased) bears great

significance. She has stated that first of all, police saw the dead

body of her husband in the pond and thereafter, he called the

accused persons, although she has stated during her examination

in chief that all the accused persons had led the police to the pond

and gave recovery of the dead body of her husband (Bairagi). Her

evidence, is completely in variance with the evidence of P.W.1

and P.W.12. We are, therefore, of the considered view that the

prosecution has not proved the factum of recovery of the dead

body being kept in a gunny bag from pond pursuant to the

disclosure statement made by any of the accused more

particularly accused Sekhar, who having led the police and other

witnesses to the place in giving recovery of the same.

With such evidence on record, we find that the Trial Court

has gone wrong in holding that the prosecution has established

the charges against the accused persons beyond reasonable

doubt.

14. On the conspectus of the analysis of the evidence let in by

prosecution, we are of the view that the finding of the Trial Court

that the prosecution has established the charge against accused

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persons beyond reasonable doubt by leading clear, cogent and

acceptable evidence cannot be sustained.

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

conviction and order of sentence dated 4th February, 2013, passed

by the learned Sessions Judge, Rayagada, in C.T. No.32 of 2011

are hereby set aside.

Since the accused persons, namely, Sekhar Huika, Gumpa

Huika and Silli Huika are on bail, their bail bonds stand

discharged.

(D. Dash), Judge.

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

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

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 24-Jul-2023 14:48:45

CRLA No.669 of 2016