Ganesh Maharana @ Das vs State Of Odisha
2023 Latest Caselaw 8053 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                          CRLA NO.583 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 17.05.2019 passed by the learned Sessions
    Judge, Ganjam-Berhampur in Sessions Trial No.175 of 2014.
                                ----

        Ganesh Maharana @ Das                 ....            Appellant
                                   -versus-

        State of Odisha                       ....          Respondent

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

=============================================== For Appellant - Mr. S.P. Das, Advocate.

                 For Respondent   -     Mr. Sitikant Mishra,
                                        Addl. Standing Counsel.
          CORAM:
          MR. JUSTICE D.DASH
          DR. JUSTICE S.K. PANIGRAHI

DATE OF HEARING:07.07.2023 :DATE OF JUDGMENT: 24.07.2023

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

judgment of conviction and order of sentence dated 17.05.2019

passed by the learned Sessions judge, Ganjam-Berhampur in

Sessions Trial No.175 of 2014 corresponding to Golanthara P.S.

Case No.66 of 2014 arising out of G.R. Case No.637 of 2014 of the

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

Berhampur.

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By the same, the Appellant (accused) has been convicted for

commission of offence under section-458/302 of the Indian Penal

Code (for short called as 'the IPC') and has been sentenced to

undergo imprisonment for life and pay fine of Rs.10,000/- for the

offence under section-302 of the IPC with the default stipulation to

undergo rigorous imprisonment for one year. Further, he is

sentenced to undergo rigorous imprisonment for ten (10) years and

pay fine of Rs.5,000/- for the offence under section-458 of the IPC

with the default stipulation to undergo rigorous imprisonment for

six (6) months.

2. The accused and Bhagya (deceased) were the permanent

residents of village Haladipadar. On the intervening night of 14th

and 15th May, 2014, Bhagya and her younger sister Rashmi (P.W.1)

were sleeping in the house of their relatives Shanti (P.W.2) situated

near their house as their own house had been damaged. Shanti

(P.W.2) and Anusaya (P.W.4) were sleeping in the front verandah

near the door. During mid night, there was a mini storm followed

by rain fall. After sometime, P.W.2 and P.W.4, who were sleeping

in the verandah knocked the door of the room where Bhagya and

her sister Rashmi (P.W.1) were sleeping. But the door was found to

have been closed with latches from inside. When nobody opened

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the door, Anusaya and Shanti with difficulty having succeeded in

unlocking the door entered into the room. then they saw the back

door of the room open and Bhagya was not found in the said room.

It was only Rashmi, younger sister of Bhagya was then sleeping.

Both Shanti and Anusaya went for search of Bhagya, but did not

find her. Being asked, Rashmi (P.W.1) could say nothing about the

missing of Bhagya. During this time, the boys who had slept in the

roof top joined them. They informed the parents of deceased, who

were sleeping in their damaged house. So, all went in a mission to

trace out Bhagya; those boys that is the sons of Shanti (P.W.2),

Anusaya (P.W.4) and Mira. The mother of Bhagya together made

such searching operation. It is said that the accused at that time,

came carrying water bottle and asked them as to what happened

and he then advised the father of the deceased (P.W.5) to search

Bhagya by proceeding towards the Railway Station. The accused

also joined them in searching out. Later on having failed to trace

out that Bhagya, they came back.

On the next morning, the dead body of the Bhagya was

found lying on the backyard of the house of Dandapani Behera

(P.W.14). Wife of Dandapani namely, Sujata (P.W.15) first saw the

dead body lying on the backyard and where her sarees etc. were

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usually placed for drying. She had been noted the ligature mark

around the neck of Bhagya (deceased). The house of Dandapani

(P.W.14) which is 4 to 5 houses apart from the house of Shanti

(P.W.4), the dead body being noticed the said news of death of

Bhagya sprayed like wild fire and many villagers including this

accused arrived there. All except the accused were in favour of

calling the police, but the accused very much insisted upon that the

father of Bhagya (P.W.5) to cremate the dead boy without calling

police.

However, on 15.05.2014 around 7.45 pm, Nira Das, (P.W. 5)

lodged a written report with the Inspector-In-Charge (IIC),

Golanthora Police Station. The IIC having received the report

treated the same as F.I.R. and after registration of the case, directed

the Sub-Inspector (S.I.) of Police (I.O.-P.W-22) to investigate the

case.

The Investigating Officer (I.O.-P.W.22), then examined the

Informant (P.W.5) and then proceeding to the spot, held inquest

over the dead body in presence of the Executive Magistrate. The

dead body was then sent for postmortem examination by issuing

necessary requisition. The wearing apparels of the deceased were

seized and on production by the Police personnel who had carried

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the dead body for postmortem examination. The written report

being scribed by one Mithu Das, he too was examined. This

P.W.22 (first I.O.) then handed over the charge of investigation to

the IIC (P.W.38-second I.O.). He again examined the Informant

and other witnesses and thereafter handed over the charge of

investigation for the Sub-Divisional Police Officer (P.W.37-third

I.O.). Having taken over the charge of the case on 25.06.2024, he

arrested the accused on that day and forwarded him to custody to

Court. He also visited the place being led by the accused. He took

steps for medical examination of the accused and it is also stated

that the accused having led P.W. 38 and others to the place had

demonstrated everything as to how he committed murder of

Bhagya, which this third I.O. had video-graphed. He examined

some witnesses and obtained the caste certificate of the father of

the deceased i.e. P.W.5 from the Competent Authority. He also

obtained the opinion of the Professor, the Department of Forensic

Medicine and Toxicology (FMT), MKCG Medical College and

Hospital, Berhampur and on completion of investigation submitted

Final Form, placing the accused for trial for commission of offence

under section-458/302 of the IPC read with section-3(2)(v) of the

SC & ST (POA) Act.

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3. The learned SDJM, Berhampur having received, the Final

Form as above took cognizance of said offences 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 said offences against the accused.

4. In the Trial, the prosecution in total has examined thirty eight

(38) witnesses. Out of them, P.W.5 is the Informant, who happens

to be the father of the deceased and P.W.1 is the younger sister of

the deceased, who is the eye witness to the part of the occurrence as

she was sleeping with the deceased, P.W.2 and P.W.4 are the

relatives of the deceased and P.W.6 is the son of P.W.4. P.W.14

and P.W.15 are the neighbors on whose house backyard, the dead

body of the deceased was found. P.W.22, the first I.O., P.W.38-

second I.O. and P.W.37 is the Sub-Divisional Police Officer (the

third I.O.). The Asst. Professor who had conducted postmortem

examination over the dead body of the deceased has come to the

witness box as P.W.20.

The prosecution besides leading the evidence by examining

the above witnesses has also proved several documents which have

been admitted in evidence and marked Exts.1 to 19. The details of

the same being given at the foot of the judgment of the Trial Court,

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this judgment is not burdened by noting those again and those will

be referred to as per the number assigned by the Trial Court as and

when would be so required in course of our discussion to follow.

5. The defence plea is that of complete denial. The accused has

however not led any evidence despite being provided with the

opportunity.

6. The Trial Court upon examination of the evidence and their

evaluation at its level has held that the prosecution has been able to

establish the charge under section-458/302 of the IPC as against the

accused beyond reasonable doubt by leading clear, cogent and

acceptable evidence. Accordingly, the accused has been convicted

for the said offences and sentenced as aforestated.

7. Learned Counsel for the Appellant (accused) while not

disputing the finding of the Trial Court as to the nature of death of

Bhagya to be homicidal in stating that same has been rightly

rendered on the basis of the evidence on record, which were not

under challenge and is also now not impeached, submitted that the

Trial Court has gone wrong in accepting the version of P.W.1, the

child witness to be trustworthy. He submitted that the entire case of

the prosecution here is based on the testimony of P.W.1 and it is

said that he inferences from the conduct of the accused in telling

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the members of the family of the deceased and others that the child

be searched by proceeding towards Railway Station and joining

them in that search as also after recovery of the deceased, dead

body having insisted for cremation, ought not to have been taken

into account. He submitted that the evidence of P.W.1 is not

credible and do not inspire confidence in mind and not safe to be

relied upon to establish the conviction. He further contended that

the conduct of this accused as are stated are at all be adversely

viewed. He further submitted that when P.W.1 has not stated to

have seen the accused in that room where she with her sister

Bhagya were sleeping and taking Bhagya at the first instance

before other witnesses, her later version ought to have been held to

be the outcome of tutoring and thus unreliable.

8. Learned Counsel for the State-Respondent submitted all in

favour of the finding of the Trial Court in holding the accused to be

the author of the crime. According to him, the Trial Court having

made detail discussion of the evidence of P.W.1, who is the child

witness and upon critical examination from all possible angle,

when has found her evidence to be completely free from any such

infirmity, the conviction of the accused for commission of offence

under section-458/302 of the IPC must stand the legal scrutiny.

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9. The death of the deceased being said to be homicidal in

nature, the prosecution case rests upon evidence of P.W.1, who was

ten (10) years old on the date of her examination and around 9

years, when the incident took place. She is the sister of the

deceased. The Trial Court before recording her evidence has

conducted the tests to ascertain her competency of understanding

and properly deposing the fact. The question for the purpose put to

P.W.1 and the answers given have been noted in the deposition

itself. This P.W.1 then was reading in Class-V and she has signed

in Odia in the deposition.

10. Before going to express view on the reliability of the

evidence of P.W.1, it would be apposite to place the settled position

of law as has been enunciated by the Hon'ble Apex Court in

several cases from time to time.

It has been held in case of Panchhi Vrs. State of U.P.; (1998)

7 SCC 177, that while placing reliance upon a large number of its

earlier judgments observed that the testimony of a child witness

must find adequate corroboration before it is relied on. However, it

is more a rule of practical wisdom than of law. It cannot be held

that:

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"the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with the greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."

11. In case of Gagan Kanojia Vrs. State of Punjab; (2006) 13

SCC 516, it is said that the part of the statement of a child witness,

even if tutored, can be relied upon, if the tutored part can be

separated from untutored part, in case such remaining untutored

part inspires confidence. In such an eventuality, the untutored part

can be believed or at least taken into consideration for the purpose

of corroboration as in the case of a hostile witness.

12. In case of Nivrutti Pandurang Kokate Vrs. State of

Maharashtra; (2008) 12 SCC 565, dealing with the child witness it

has been observed as under:-

"10. '.......7. .... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge, who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his

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understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often life in a world of make believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

13. In case of State of U.P. Vrs. Krishna Master; AIR 2010 SC

3071, the Apex Court has held that there is no principle of law that

it is inconceivable that a child of tender age would not be able to

recapitulate the facts in his memory. A child is always receptive to

abnormal events which take place in his life and would never forget

those events for the rest of his life. The child may be able to

recapitulate carefully and exactly when asked about the same in the

future. In case the child explains the relevant events of the crime

without improvements or embellishments, and the same inspire

confidence of the Court, his deposition does not require any

corroboration whatsoever. The child at a tender age is incapable of

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having any malice or ill will against any person. Therefore, there

must be something on record to satisfy the Court that something

had gone wrong between the date of incident and recording

evidence of the child witness due to which the witness wanted to

implicate the accused falsely in a case of a serious nature.

14. 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.38 and have perused the documents which have been admitted

in evidence and marked as Exts.1 to 18.

15. Let's now advert to the evidence of P.W.1. The first round of

challenge to her evidence is that she has not stated such fact before

the P.W.2 and P.W.4, when she first saw them after they entered

into the room and also have not stated to her mother, who came

there soon after arrival of P.W. 2 and P.W.4. P.W.1 has stated to

have not told P.W.2, P.W.3 and P.W.4 that she had seen the

accused taking the deceased. The depositions of P.W.2, P.W.3 and

P.W.4 being carefully read, it is seen that they have consistently

stated that by the time they entered into the room, they found P.W.1

trembling in fear. The evidence of P.W.1 is also to the effect that

she was trembling when he saw P.W.2, P.W.3 and P.W.4. She

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appears to have not so stated about the accused taking her sister

(deceased) since her mind was not free from fear. This version of

P.W.1 appears to be quite natural. In the dead of night, she being a

girl child of the age of nine (9), when would see the culprit taking

away her sister in her presence as a helpless observer being not able

to take any step to prevent the situation or save her sister, it would

be just like watching a horror film, and therefore, non-disclosure of

the evidence implicating the accused immediately before the

P.W.2, P.W.3 and P.W.4 in our view is not to taken an unnatural

behavior for being adversely view her evidence.

P.W.1 in her evidence has stated that accused having opened

the door from inside, then closed the door by putting latches and

through the back door of the house was dragging away her sister by

closing her mouth. She states that when the legs of her sister, hit

her legs, she got up and then immediately accused pointed a knife

at her and threatened in saying that if she would told to anybody,

she would be killed. The witness has further stated to have seen the

accused taking away the sister through the back door. She has very

honestly stated that too P.W.2, P.W.3 and P.W.4 and when they

arrived there had not stated before them the involvement of the

accused. During cross-examination, she has stated to have

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discussed the matter with both her father and mother in the evening

and on being asked she had gone to police station and disclosed.

During cross-examination, she has further ascertained that the

accused lifted the deceased while she was asleep and dragged her.

Being asked, she has even stated as to what had been worn by the

deceased and the accused.

Now P.W.5 has stated that when he saw P.W.1, she was

trembling (tharuthila) and when it was asked as to why she had

trembling she did not tell anything. The father of P.W.1 also

appears to be honest to that extent. The evidence of P.W.4 that

when she woke up for urinating. She saw the accused was sitting in

a Jeep standing on the village road and using his mobile phone and

that part of the evidence has not been challenged. The evidence of

P.W.6 is that when he woke up, he did not find the accused to be on

his bed. This P.W.6 is the son of P.W.4, who was sleeping on the

roof top with other boys and came down because of the rain and

storm. The injuries noticed upon the accused too suggests to have

come into being due to tussle or struggle. The evidence as to the

absconding of the accused also stands.

16. On a conspectus of discussion of evidence as hereinabove,

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

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Court against the accused for commission of the offence under

section 458/302 of IPC is well in order and the accused has rightly

been convicted thereunder.

17. In the result, the Appeal stands dismissed and the judgment

of conviction and order of sentence dated 17.05.2019 passed by the

learned Sessions Judge, Ganjam in Sessions Trial No.175 of 2014

are hereby confirmed.

(D. Dash), Judge.

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



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




Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Designation: Peresonal Assistant
Reason: Authentication
Location: OHC
Date: 25-Jul-2023 11:14:44



                               CRLA NO. 583 OF 2019