In The Matter Of An Appeal Under ... vs State Of Odisha
2023 Latest Caselaw 8031 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.662 of 2019

            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 01.05.2019 passed by the learned
    Sessions Judge, Ganjam, Berhampur in Sessions Trial No.18 of
    2014.
                                   ----

        Tukuna Raut                           ....   Appellant

                                   -versus-

        State of Odisha
                                              ....   Respondent

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

                 For Appellan-     Mr.Soubhagya Kumar Dash,
                                   (Advocate)

               For Respondent- Mr.P.K.Mohanty,
                               Additional Standing Counsel
            CORAM:

            MR. JUSTICE D.DASH
            DR. JUSTICE S.K.PANIGRAHI

    Date of Hearing :05.07.2023      :    Date of Judgment:24.07.2023

D.Dash,J. The Appellant, by filing this Appeal, has assailed the

judgment of conviction and the order of sentence dated

01.05.2019 passed by the learned Sessions Judge, Ganjam,

Berhampur in Sessions Trial No.18 of 2014, arising out of G.R.

Case No.863 of 2011, corresponding to Bada Bazar P.S. Case

CRLA No. 662 of 2019 {{ 2 }}

No.93 of 2011 of the Court of learned Sub-Divisional Judicial

Magistrate (SDJM), Berhampur.

The Appellant (accused) has been convicted for commission

of offence under section 302 of the Indian Penal Code, 1860 (in

short, 'IPC') and Sections 25 (I-B)(a)/27(1) of the Arms Act.

Accordingly, he has been sentenced to undergo imprisonment for

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

default to suffer rigorous imprisonment for a further period of

one year for the offence under section 302 of the IPC; undergo

rigorous imprisonment for a period of 18 (eighteen) months and

to pay a fine of Rs.1000/- (Rupees One Thousand Only) in default

to undergo rigorous imprisonment for a further period of three

(3) months) for the offence under section 25 (I-B) of the Arms Act;

and to undergo rigorous imprisonment for a period of 60 (sixty)

months and pay a fine of Rs.2000/- (Rupees Two Thousand Only)

in default of fine to suffer rigorous imprisonment for a further

period of six (6) months for the offence under section 27 (1) of the

Arms Act with the direction that the substantive sentences shall

run concurrently.

2. Prosecution case is that on 01.08.2011 during noon hour

when Tarini Patra was present in his tea stall, situated at Dharma

Nagar under Bada Bazar Police Station and his mother

(Informant-P.W.2) and other friends were there, this accused

arrived in a motor cycle which was being driven by one Pinky

CRLA No. 662 of 2019 {{ 3 }}

Raut. It is stated that this accused Tukuna then came with Tarini

and demanded the gold chain which he had put on, to be given to

him. Tarini when refused, accused Tukuna fired at him from a

pistol and receiving the gun shot injuries, all present there except

the mother, who somehow managed to stay, ran away and the

deceased fell on the ground with bleeding injuries. He being

shifted to the hospital, died there.

Shortly thereafter, the Inspector-in-Charge (IIC) of Bada

Bazar Police Station received a telephonic message that the

accused had fired at Tarini who was then lying in a severely

injured condition, This fact having been entered in the Station

Diary Book maintained in the police station, police personnel

were deputed to the spot for verification of said facts. Half an

hour thereafter, Sukanti patra, the mother of Tarini lodged a

written report with the IIC. The report being received was treated

as FIR and registering the case, the IIC (P.W.18) took up

investigation.

The I.O (P.W.18) examined the informant and he then went

to the spot. He prepared the spot map (Ext.13) and then went to

the MKCG Medical College & Hospital, Berhampur. It was

around 2 p.m., information came that Tarini while undergoing

the treatment in the hospital, had died. One Sub-Inspector (SI) of

police (P.W.17) was deputed by the I.O (P.W.18) and he held the

inquest over the dead body and sent the dead body for post

CRLA No. 662 of 2019 {{ 4 }}

mortem examination. Inquest over the dead body was held by

P.W.17 in presence of witnesses and the report to that effect was

prepared. The dead body was also sent for post mortem

examination. The I.O (P.W.18) then seized the bed head ticket of

the deceased which had been maintained while he was under

treatment in the hospital. P.W.18 being transferred, he handed

over the charge of the investigation to his successor in the office

(P.W.19). On completion of investigation, Final Form was

submitted placing this accused and others namely Pilu @ Prakash

Nayak, Pinky Raut and Litu @ Ashis to face the trial.

3. Learned SDJM, Berhampur, 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 said

offences against the accused.

It be stated here that accused Pinky Raut and Litu @ Ashis

being not apprehended despite all steps taken, the case against

them was split up.

4. In the Trial, the prosecution in total has examined twenty

(20) witnesses. As already stated, the informant, who happens to

be the mother of the deceased is P.W.2 and she is the eye witness

to the occurrence. The other important witnesses are P.W.3 and

P.W.4 who too having been examined by the prosecution, have

CRLA No. 662 of 2019 {{ 5 }}

stated about the occurrence and the role of this accused. The

Doctor, who had conducted autopsy over the dead body of the

deceased, has been examined as P.W.11 and P.W.10 is the Doctor,

who had initially admitted the deceased. P.W.18 and P.W.19 are

the two I.Os and P.W.17 is another Police Officer, who had

immediately rushed to the hospital being asked by the 1st I.O

(P.W.18) and held inquest over the dead body of the deceased.

5. 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. Out of those, the important are the FIR, Ext.12, the bed-

head ticket, Ext.5, inquest report, Ext.11, Post Mortem Report,

Ext.8, spot map, Ext.13, chemical examination report, Ext.16 and

balastic expert's report, Ext.19.

6. The defence in support of the plea of denial and false

implication has not tendered any evidence.

7. The Trial Court having examined the evidence of the

Doctor (P.W.11), who had conducted post mortem over the dead

body of the deceased and his report (Ext.8) as well as the other

witnesses including the S.I of Police (P.W.17) has arrived at a

conclusion that Tarini met homicidal death. In fact this aspect of

the case was not under the challenge before the Trial Court and

that is also the situation before us.

CRLA No. 662 of 2019 {{ 6 }}

P.W.11, the Associate Professor in the Department of F.M.

& T., MKCG Medical College & Hospital, Berhampur during post

mortem examination over the dead body of Tarini has noticed a

punctured lacerated wound more or less circular of the diameter

0.75 cm with inverted margins and thin rim of abrasion collar

over the junction of lower chest with abdomen in the midline,

15.5 cm directly above the umbilicus. On dissection of the said

wound, he found that a straight tract was piercing the anterior

border of diaphragm, the anterior surface of the left lobe of lever,

the greater omentum up to the left paravertebral muscle

adjoining the T-5 vertebra muscle. The anterior venacava and the

descending part of aorta were also found punctured and clotted

blood amounting 500 grams with fluid blood about 2 liters was

found in the abdominal cavity. The bullet which was lodged in

para-vertebral muscle had been recovered and collected by

P.W.11. It is his evidence that all such injuries are ante mortem in

nature and the nature of death was homicidal. He has further

stated that the entry wound had been caused by striking of high

velocity metallic projectile i.e. the bullet fired from a handgun,

either pistol or revolver. The cause of death as per the evidence of

P.W.11 is on account of haemorrhage and shock resulting from

such gunshot injuries which had taken place within 3-6 hours

before his examination. All such features noted during post

mortem examination has been clearly mentioned in his report

CRLA No. 662 of 2019 {{ 7 }}

(Ext.8). The S.I. of police (P.W.17), who had held inquest over the

dead body of the deceased had seen the deceased with injuries

and that has also been stated by the mother and brother of the

deceased and another witness. Above said evidence having not

been questioned from the side of the defence, we find ourselves

wholly in agreement with the finding returned by the Trial Court

as to the homicidal nature of death of Tarini.

8. Learned counsel for the Appellant (accused) submitted that

the Trial Court ought not to have relied upon the evidence of

P.W.2, who is the mother of the deceased and highly interested

witness in fastening the guilt upon the accused when her

evidence is not being corroborated by P.W.3 and P.W.4 on

material particulars. He further submitted that the presence of

P.W.3 in the tea stall is highly doubtful when P.W.3 has not stated

about the presence of P.W.2 nor it has been so stated by P.W.4.

He further submitted that the prosecution ought to have been

blamed for selecting the witnesses to be examined in the Trial,

i.e., only those witnesses who are in inimical terms with the

accused have been examined whereas other independent

witnesses have been left out. He therefore submitted that for non-

examination of other independent witnesses, adverse inference

ought to be drawn to the prosecution case that had they been

examined, the benefit would have gone to the accused. In

summing up, he contended that taking a cumulative view over

CRLA No. 662 of 2019 {{ 8 }}

the evidence tendered by the prosecution, the finding of guilt

against this accused as has been returned by the Trial Court is

liable to be set aside.

9. Learned counsel for the State-Respondent while supporting

the finding of guilt against the accused as has been rendered by

the Trial Court contended that here the evidence of P.W.2, P.W.3

and P.W.4 are wholly acceptable and there is absolutely no

discrepancy nor their evidence vary with one another on material

particulars. It was submitted that the evidence of all these

witnesses further receive corroboration from the evidence of the

Doctor (P.W.11) whose positive evidence is that the deceased met

death on account of the gunshot injuries as well as the balastic

experts report (Ext.19), who has opined that the fired bullet

seized had been fired from the said pistol marked as Material

Object (M.O-1). He thus submitted that simply because some

other witnesses have not come, which is for the obvious reason

that the accused is a hardened criminal and having the

potentiality of cause definite harm, the evidence of P.W.2, P.W.3

and P.W.4 which are free from any sort of infirmity much less to

say inherent, cannot be thrown aside.

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

CRLA No. 662 of 2019 {{ 9 }}

to P.W.20 and one D.W.1. We have also perused the documents

which have been admitted in evidence and marked Ext.1 to

Ext.19.

11. The prosecution case is that P.W.2 and P.W.3 had seen the

incident. P.W.2 no doubt is the mother of the deceased. She has

stated as to how she was present at the relevant time in the tea

stall of her son (deceased). She has stated that at that time she

was standing with her son in the tea stall with another friend of

her son namely Hina Behera, who was sitting. In clear terms she

has stated that accused and another namely Pinky came in a bike.

She has also stated that accused was sitting as pillion rider

whereas Pinky was on the rider. As per her evidence accused

Tukuna came to her son and asked him to give the gold chain

which he was wearing and that demand was turned down by her

son Tarini. In clear terms then she states that after such refusal of

his son, accused Tukuna fired on his chest from pistol which led

to the fall of Tarini on the ground in a severely bleeding condition

when accused and that Pinky left the place by taking the gold

chain of her son. It is her evidence that Tarini then called his

brother Susanta and gave the mobile to her and when Susanta

came to the spot, he was informed by this P.W.2 and thereafter

deceased was shifted to the hospital. During cross-examination

she has further asserted her presence in the tea stall by seeing that

then she was sitting in the tea stall. This discrepancy that as to

CRLA No. 662 of 2019 {{ 10 }}

sitting and standing in our considered view is too minor to be

taken note of and it has very little to do with the evidence of

P.W.2 with regard to the happenings in front of her own eyes

when her son was fired as she has stated. She has stated that her

son Tarini in the hospital said the name of this accused to be

Tukuna to have fired at him. We find the evidence of P.W.2 to be

quite natural, consistent and free from any such major

discrepancy. Coming to the evidence of P.W.3, it is seen that this

P.W.3 had been named by P.W.2 to be present in the tea stall at

the relevant time being the friend of the deceased. He has

reiterated the version of P.W.2 that this accused Tukuna and

Pinky came in a bike and ultimately, Tukuna fired on the chest of

Tarini resulting his fall in bleeding condition. His evidence that

seeing the firing he fled away from the spot is quite natural when

we further take into account the evidence of P.W.18 as regards

the long list of criminal cases standing to the credit of the

accused. He has further stated to have disclosed before the police

who arrived at the spot, about the role played by this accused

with Pinky and the act done. Although he has not stated about

the presence of P.W.2 at the relevant time in the tea stall when he

was been asked about the presence of others. During cross-

examination and he having not named this P.W.2, who is the

mother of the accused is not to be viewed in the light that P.W.2

was then not present. A person when is asked as to the presence

CRLA No. 662 of 2019 {{ 11 }}

of others in a particular place is expected to reply naming those

like him and not the family members of the shop owner or tea

stall owner. In addition to the above, P.W.4 has further stated that

at the relevant time, he was sitting near a motor cycle mart shop

when the occurrence took place in the tea stall of Tarini. He has

further narrated that this accused and Pinky came in a bike, this

accused got down and went to Tarini, demanded the gold chain

from Tarini and when Tarini refused to part with the same,

accused Tukuna fired on his chest from a pistol resulting his fall

in bleeding condition. He further corroborates the evidence of

P.W.2 that accused Tukuna then left the place by snatching away

the gold chain from the neck of Tarini. He has also reiterated the

version of P.W.2, who happens to be his mother that Tarini

disclosed in clear terms in the hospital that accused Tukuna had

fired at him. On the face of the above, clear, cogent and

acceptable evidence of the evidence, the evidence of D.W.1 is

found to be completely false as he states that the deceased was

coming him with his scooter and when he complaint chest pain,

he was admitted in the hospital. This D.W.1 when has stated so,

the admitted case goes that the deceased was admitted in the

hospital for having received the gunshot injuries which is not at

all explained by this D.W.1. Furthermore, this D.W.1 is shown in

the bed-head ticket to have accompanied the deceased to the

hospital and he is a signatory of the said bed-head ticket (Ext.5),

CRLA No. 662 of 2019 {{ 12 }}

which finds mention of the gunshot injury received by the

deceased and the condition of the deceased at the time of

admission in the hospital. Then, this D.W.1 is not offering any

explanation for that. Therefore, his evidence is straightway to be

discarded.

On a conspectus of discussion of evidence as hereinabove,

we are thus of the view that the finding of guilt recorded by the

Trial Court against the accused for commission of the offence

under section 302 of the IPC and Sections 25 (I-B)(a)/27(1) of the

Arms Act is well in order and the accused has rightly been

convicted for the said offences and Sections 25 (I-B)(a)/27(1) of the

Arms Act and sentenced thereunder.

12. In the result, the Appeal stands dismissed. The judgment of

conviction and order of sentence dated 01.05.2019 passed by the

learned Sessions Judge, Ganjam, Berhampur in Sessions Trial

No.18 of 2014 are hereby confirmed.

(D. Dash), Judge.

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

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

         Gitanjali


Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 25-Jul-2023 17:11:14

                     CRLA No. 662 of 2019