Nakula Digal vs State Of Orissa
2023 Latest Caselaw 8048 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                             JCRLA No.16 of 2016
    From the judgment of conviction and order of sentence dated
    30.11.2015 passed by the learned Additional Sessions Judge, Phulbani,
    in Sessions Trial No.02 of 2015.
                                   ----

         Nakula Digal                           ....          Appellant

                                    -versus-

         State of Orissa                        ....          Respondent
               Appeared in this case by Hybrid Arrangement
                        (Virtual/Physical Mode):
                 For Appellant      -     Mr.A.S. Paul,
                                          Advocate

                 For Respondent     -     Mr. S.K. Nayak,
                                          Additional Government Advocate

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

    Date of Hearing : 03.07.2023        : Date of Judgment:24.07.2023

D.Dash,J. The Appellant, by filing this Appeal, from inside the jail, has called in question the judgment of conviction and order of sentence dated 30.11.2015 passed by the learned Additional Sessions Judge, Phulbani in Sessions Trial No.02 of 2015 arising out of G.R. Case No.199 of 2014 corresponding to Raikia P.S. No.42 of 2014 of the court of the learned Judicial Magistrate Fast Class (J.M.F.C.), G. Udayagiri.

The Appellant (accused) having been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (for short,

JCRLA No.16 of 2016 {{ 2 }}

'IPC'). Accordingly, he has been sentenced to undergo rigorous imprisonment for life and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for two months. He has also been convicted for the offence under section 25(1-B)(a) of the Arms Act and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.5,000/- in default rigorous imprisonment for one month. Being also convicted for the offence under section 27(1) of the Arms Act, he has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.10,000/- in default rigorous imprisonment for two months with the stipulation that the substantive sentences would run concurrently.

2. Prosecution case is that on 11.07.2014 around 5 p.m. one Safei Parichha was returning home from village Barepanga after attending a feast at the house of one Chanda Parichha. It is stated that at that time Safei had an altercation with the accused. So all of a sudden, the accused brought his country made gun and fired three rounds at Safei. Receiving the gunshot injuries, Safei fell down and his health condition became critical. So, he was immediately shifted to Community Health Centre, Raikia for treatment. One Manas Parichha (P.W.7) and Khilan Parichha were the persons, who had shifted Safei to the hospital where he was declared dead.

Lisura Parichha, the younger brother of Safei (deceased) lodged a written report with the Sub-Inspector (S.I.) of Police attached to Raikia Police Station, who in the absence of the Inspector-in-Charge (I.I.C.), treated the same as F.I.R., registered the case and took up investigation.

JCRLA No.16 of 2016 {{ 3 }}

The Investigating Officer (I.O.-P.W.14) in course of investigation examined the Informant (P.W.1) and other witnesses. He having proceeded to the spot held inquest over the dead body of the deceased and then prepared the spot map (Ext.8) and inquest report (Ext.2). He also seized the blood stained and sample earth and after search, getting the country made gun, the same was also seized under the seizure list (Ext.4). The accused being arrested was forwarded in custody to the court.

The dead body was then sent for post mortem examination. The incriminating articles were sent for chemical examination through court. Finally, on completion of investigation, the I.O. (P.W.14) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the I.P.C. and section 25(I-B)(a) and 27 (I) of the Arms Act.

3. Learned J.M.F.C., G.Udayagiri having taken cognizance of the offence and after observing all the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the offence under section 302 IPC section 25(I-B)(a) and 27 (I) of the Arms Act against the accused.

4. In the Trial, the prosecution in total has examined fourteen (14) witnesses. Out of them, P.W.2, P.W.3, P.W.4, P.W.6, P.W.7 and P.W.9 have been examined from the side of the prosecution as the eye- witnesses. The post occurrence witnesses have come to the witness box as P.W.5 and 8. The seizure witnesses are P.W.11 and P.W.12 whereas

JCRLA No.16 of 2016 {{ 4 }}

the Doctor, who had held the autopsy over the dead body of the deceased has been examined as P.W.13. The I.O. is P.W.14.

Besides leading evidence by examining the above witnesses, the prosecution has proved several documents, which have been marked Ext.1 to Ext. 12. Out of those the important are the F.I.R. (Ext.1), spot map (Ext.3), inquest report (Ext.2), seizure lists (Exts.4, 5 and 6), post mortem report (Ext.7) and Chemical Examiner's Report (Ext.12) as also the sanction order of the Competent Authority as required for prosecution under the Arms Act has been proved from the side of the prosecution and marked Ext.11.

5. The defence has taken the plea of denial and false implication. However, no evidence has been tendered by the accused in support of his defence.

6. The Trial Court upon examination of the evidence of the prosecution witnesses and their critical analysis has held the accused to be the perpetrator of the crime and to have shot at the deceased by that country made gun and caused his death. The accused thus having been held to have committed the offences under section 302 of the IPC and section 25(1-B)(a) and 27(I) of the Arms Act; has been visited with the sentence as aforestated.

7. Learned Counsel for the Appellant (accused) submitted that the evidence of all these eye-witnesses, i.e., P.Ws.2,3,4,6,7,9 and 10 are full of discrepancies on material aspect of the case and also as to the role played by the accused in causing the gunshot injuries upon the deceased.

JCRLA No.16 of 2016 {{ 5 }}

He, therefore, submitted that basing on the evidence on record, the Trial Court ought to have acquitted the accused of all those charges.

8. Learned counsel for the Respondent-State submitted all in favour of the finding of guilt against the accused as has been returned by the Trial Court. According to him, the account given by the witnesses, i.e., P.W.2 to P.W.4 and P.W.6 to P.W.9 coupled with the evidence of the Doctor (P.W.13) have rightly accepted by the Trial Court to hold that the prosecution has established the charge beyond reasonable doubt. He submitted that when all these witnesses have in very clear terms stated the accused to have fired at the deceased from his country made gun and thus caused gunshot injuries, which have resulted the death of the deceased, the finding of the Trial Court is not at all liable to be interfered with.

9. Keeping in view the submissions made, We have carefully read the impugned judgment passed by the Trial Court. We have also travelled through the depositions of the witnesses (P.W.1 to P.W.14) and have perused the documents such as Ext.1 to Ext.12.

10. It has been deposed by the Doctor who had conducted autopsy over the dead body of the deceased (P.W.13) that he had noticed three numbers of ante mortem gun injuries on the left thigh below the groin of the size ½" X 1" depth with severe bleeding and on dissection had noted hematoma over left thigh at the injury site. According to him, the death was on account of hemorrhagic shock due to excessive bleeding from the vessel on account of the gunshot injury site on the left thigh just below the groin. His evidence is that the injury was ante mortem in

JCRLA No.16 of 2016 {{ 6 }}

nature and death was homicidal. He has also stated to have recovered three small metals like substances from near the seat of the injury. The evidence of this P.W.13 has not at all been questioned. The defence has merely thrown the suggestion that the post mortem examination was not properly conducted which in the absence of any other evidence to support makes no sense.

11. The nature of death of the deceased thus being homicidal, now arises the point for determination as to who had caused such gunshot injuries upon the deceased.

P.W.2, P.W.3, P.W.4, P.W.6, P.W.7 P.W.9 and P.W.10 have stated that on the relevant day at about 4 P.M., they all were present in the house of one Chanda Parichha at village Barepanga and they had gone there to attend a feast which was being held for a marriage negotiation. They state that first of all there was an altercation between the deceased and accused and thereafter, the accused rushed to his house and after collecting a country made gun fired at the deceased and the deceased received the gunshot injuries at his abdomen, near thigh. They further state that the accused thereafter left the spot throwing the country made gun inside bush. Although P.W.2 has not stated in his previous statement that the deceased sustained three gunshot injuries, as also P.W.3 that the arrest of the accused was made along with gun, those in our view are not of that significance to entertain a doubt as to their positive version during Trial directly implicating the accused to have fired at the deceased for bringing the gun from his house.

JCRLA No.16 of 2016 {{ 7 }}

It is the evidence of P.W.7 that the deceased was then shifted to the hospital in a motor cycle where he succumbed to the gunshot injuries. It appears that P.W.2's evidence that the accused went and by bringing the country made gun fired at the deceased has not in any way being demolished nor any doubtful feature has been elicitated from him to raise a doubt or suspect for a moment that he was not present at the spot or being present in the house of Chanda had not seen the incident actual happenings in the incident. Similar is the state of affair in the evidence of P.W.3, P.W.4, P.W.5, P.W.7, P.W.9 and P.W.10. They all have voiced regarding the accused firing at the deceased from the country made gun. Nothing is shown that they had even any remote reason to falsely rope in the accused in such crime.

It is true that the motive has not been proved. But on the face of evidence of such number of eye-witnesses, which firmly hold on the ground as we find that their versions are credible, said absence of evidence to prove the motive is certainly inconsequential. All these witnesses have categorically stated to have seen the accused firing Safei from his country made gun. They too have noticed gunshot injuries on the abdomen near the thigh of Safei. The Doctor (P.W.13) had noted three gunshot injuries. Even though the prosecution has not examined Khilan Parichha and Rajmohan Digal, the scribe of the F.I.R. in view of the overwhelming evidence falling from the lips of the eye-witnesses as already stated, the ground of non-examination of the above two cannot be taken cognizance of in adversely viewing the version of number of witnesses. The opinion of the Ballistic Expert vide Ext.12 provides additional strength to the case of the prosecution when he has mentioned

JCRLA No.16 of 2016 {{ 8 }}

that chemical and instrumental analysis of the barrel wash shows the presence of firing discharge, residue of black powder. The gun has been seized in course of investigation.

With the evidence as discussed above and in the absence of any circumstances appearing in the evidence to raise any doubt in the version of those witnesses either as regards their presence at the place or the incident which say to have taken place in front of them and seen, we are of the considered view that the Trial Court has rightly held the accused guilty for committing the offence under section 302 of the IPC and section 25(I-B)(a) and 27 (I) of the Arms Act and the sentence imposed upon the accused on those counts are found to be proportionate and commensurate the crime.

12. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 30.11.2015 passed by the learned Additional Sessions Judge, Phulbani in Sessions Trial No.02 of 2015 are hereby confirmed.

(D. Dash) Judge.

               Dr. S.K. Panigrahi       I agree.




                                                               (Dr.S.K. Panigrahi)
                                                                      Judge.

Signature Not Verified
               Himansu
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 25-Jul-2023 17:34:05

               JCRLA No.16 of 2016