Biju Kanhar vs State Of Orissa
2023 Latest Caselaw 8054 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                  CRLA No.1180 of 2022 :          (A)

                  CRLA No.1195 of 2022 :          (B)

                  CRLA No.1196 of 2022 :          (C)

                  CRLA No.1198 of 2022 :          (D)
                             AND
                  CRLA No.1199 of 2022 :          (E)
From the judgment of conviction and order of sentence dated 29th
November, 2022 passed by the learned Sessions Judge, Boudh in
Sessions Trial No.16/2018.

                               ----

    Biju Kanhar                               ...         Appellants
    (In CRLA No.1180 of 2022)

    Akrura Kanhar
    (In CRLA No.1195 of 2022)

    Bighneswar Kanhar
    (In CRLA No.1196 of 2022)

    Dasaratha Kanhar
    (In CRLA No.1198 of 2022)

    Libeswar Kanhar
    (In CRLA No.1199 of 2022)

                               -versus-
    State of Orissa                           ...         Respondent
    (In CRLANos.1180,1195,1196,1198
    & 1199 of 2022)

           Appeared in this case by Hybrid Arrangement
                     (Virtual/Physical Mode):
            For Appellants    -     Mr.Basudev Pujari &
                                    Mr. Sanjib Kumar Bhanjadeo,
                                    (Advocates in all the CRLAs)




CRLA Nos.1180,1195,1196,1198 & 1199 of 2022
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                For Respondent      -        Mr.S.K.Nayak,
                                             (Addl. Government Advocate in all
                                             the CRLAs)
    CORAM:
    MR. JUSTICE D.DASH
    DR JUSTICE S.K. PANIGRAHI

    Date of Hearing : 12.07.2023        :       Date of Judgment:24.07.2023

D.Dash,J. Since all these 5 (five) numbers of Appeals, arise out of the judgment of conviction and order of sentence dated 29.11.2022 passed by the learned Sessions Judge, Boudh in Sessions Trial No.16 of 2018 arising out of C.T. Case No.89-B/2015 corresponding to Manamunda P.S. Case No.61 of 2015 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Kantamal; those having been heard together, are being disposed of by this common judgment.

All these Appellants faced the Trial standing charged for commission of offence under sections 147/148/302/201/149 of the Indian Penal Code, 1860 (for short, 'the IPC') with another accused Saidri @ Udeswar Kanhar, who having died during Trial, the case has abated as against him.

These Appellants (accused persons) by the aforesaid judgment passed by the Trial Court have been convicted for commission of offence under sections 147/148/302/201/149 of the I.P.C. and accordingly each of them has been sentenced to undergo imprisonment for a period of three years for the offence under section 148 of the IPC; imprisonment for life and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for six months for the offence under sections 302/149 of the IPC; rigorous imprisonment for three years and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for three

CRLA Nos.1180,1195,1196,1198 & 1199 of 2022 {{ 3 }}

months for the offence under sections 201/149 of the IPC with the stipulation that the substantive sentences would run concurrently.

2. On 26.04.2014 Amir Karna, (P.W.1) lodged a written report with the Inspector-in-Charge (I.I.C.) of Manamunda Police Station stating therein that this brother Harit Karna had left home in the afternoon of 20.04.2015 on a Passion Plus Motorcycle and did not turn up till 22.04.2015. So, he had lodged a missing report at the Police Station. While going ahead in their mission of tracing Harit out; on 26.04.2015 came to know from Biswanath Palia (P.W.6), Jiten Hati (P.W.3), Sudam Hati (P.W.2) and Sesha Hati that they with his brother Harit Karna, Suratha Naik, Srikanta Behera @ Gelthu and Suman had gone to village Lahurpada on 20.04.2015 to purchase goats for the marriage feast of Jiten Hati (P.W.3), scheduled to be held on 30.04.2015. While returning near village Seskapadar nala, it was around 10 p.m. accused persons, namely, Akrura Kanhar, Dasaratha Kanhar, Bighneswar Kanhar and others including Chittaranjan Kanhar, Udhaba Kanhar and Ratnkar Kanhar detained them. They were then armed with Thenga and Badi. They called other persons of nearby villages, such as, Barakuktuli, Chancher, Adisingh and Dudsingh. Hearing their call, some persons arrived their holding Thenga and Badi. They then assaulted Harit Karna and Suratha Naik brutally on their heads and other parts of body leading to their death at the spot. It was also ascertained that others who had accompanied Harit (deceased) and Suratha (deceased) fled away from the spot apprehending danger to their life. P.W.1 also came to learn that accused persons after causing the death of Harit and Suratha had burnt their dead bodies in the nearby jungle of their village.

The I.I.C., Manamunda Police Station (P.W.16) having received the written report from Amir Karna (Informant-P.W.1) treated the same

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as F.I.R. and registering the case, took up investigation. The Investigating Officer (I.O.-P.W.16) then examined the Informant (P.W.1) and others, namely, Srikanta Behera@ Gelthu, Sudam Hati (P.W.2), Jiten Hati @ Jitendra (P.W.3) and proceeded to village Saskapadar at 3 a.m. night. There he took into his custody, the three other culprits who appeared to be Child-in-Conflict with law. On the next morning around 7 p.m., he visited the spot and prepared the spot map (Ext.11). He then arrested two accused persons, namely, Chittaranjan Kanhar and Akrura Kanhar finding them to be not of the age so as to be treated as Children-in-Conflict with law. While in police custody, it is stated that they confessed to have taken away the extorted Micromax Mobile Handset belonging to Harit Karna (deceased). They also stated that if they would be taken to the place near to the river, they would show the Motorcycles which they had thrown inside and they too would show the spot where the dead bodies were consigned to be flame. It is stated that pursuant to their statement they having led P.W.16 and others, to the place finally gave recovery of that Micromax Mobile Handset and showed the place of burial of the dead bodies and the place where motorcycle said to be thrown.

The I.O. (P.W.16) then collected the brunt bones for their examination. On 01.02.2016, this I.O. (P.W.16) handed over the charge of investigation to his successor of office since he received the order of transfer, who on completion of investigation submitted the Final Form placing these accused persons and others to face the Trial for commission of offence under sections 147/148/302/201/149 of the I.P.C.

3. Receiving the Final Form, learned J.M.F.C., Kantamal, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the trial

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commenced by framing the charge for the above mentioned offences against these accused persons.

4. In the Trial, the prosecution has examined in total 16 (sixteen) witnesses. As already stated, the Informant who is the brother of one of the deceased person, namely, Harit Karna has been examined as P.W.1. P.W.2 and P.W.3 are the persons who had accompanied the deceased on that day and had seen the incident. P.W.4 is a co-villager of P.W.2, who was there when accused Chittaranjan and two other CICLs had made their disclosure statement. The father of the deceased has come to the witness box as P.W.5 whereas P.W.6 is the person, who had accompanied the deceased persons but had left the place with another, namely, Suman by leaving the Motorcycles when the disturbance started. P.W.16 is the I.O., who had made the major part of the investigation.

Prosecution besides leading the evidence by examining the above witnesses has proved several documents, which have been marked Ext.1 to Ext.12. Important of those are the F.I.R.-Ext.1, spot map-Ext.8, disclosures statement of the accused persons (Ext.4/2), opinion of the Forensic Medicine and Toxicology Expert (Ext.10). The Chemical Examiner's Report has been marked as Ext.11.

5. The plea of the defence is that of complete denial and false implication. However, they have not tendered any evidence during Trial in support of their defence.

6. The Trial Court on examination of the evidence and their evaluation at its level has found these accused persons to be the members of the unlawful assembly and that they in prosecution of the

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common object of the said assembly had committed the murder of two persons, namely, Harit and Suratha and had assaulted others and thereafter proceeding to cause disappearance of the evidence against them. Accordingly, the accused persons being convicted thereunder; they have been sentenced as afore-stated.

7. Mr. B. Pujari, learned counsels for the Appellants (accused persons) submitted that the three important witnesses for the prosecution basing on whose evidence, the entire case of the prosecution stands are P.W.2, P.W.3 and P.W.6. Taking us through the depositions of these three witnesses, he pointed out as to how they are untrustworthy and their versions as presented are unreliable. He submitted that the Trial Court has committed grave error in holding that the prosecution has proved all the charges against these accused persons beyond reasonable doubt. According to him, when the evidence of these three witnesses are kept out of the zone of consideration, no other evidence either direct or circumstantial as to the complicity of these accused persons surface to fasten the guilt upon these accused persons.

8. Mr. S.K. Nayak, learned counsel for the State-Respondent submitted all in favour of the findings returned by the Trial Court holding these accused persons guilty of the offence under sections 147/148/302/201/149 of the I.P.C.

9. Keeping in view the submissions made, we have carefully gone through the impugned judgment passed by the Trial Court. We have also extensively travelled through the depositions of the prosecution witnesses (P.W.1 to P.W.16) and have perused the documents such as Ext.1 to Ext.12.

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10. At the risk of repetition, it be noted that the prosecution story is that six persons including the two whose death have taken place in the incident had gone in the Motorcycles to arrange the goats in nearby village-Lahurpada. While they were returning at the outskirt of village Seskapadar, it was around 10 p.m. in the night, the occurrence took place. Altogether eight persons had gone to village Lahurpada in four Motorcycles for arranging the goats for the feast to be held during the marriage of Jiten Hati (P.W.3). One out of those eight persons is P.W.2. This P.W.2 has stated that while they were returning from village Lahurpada on their way near village Seskapadar near a bridge, accused Akrura Kanhar, Bighneswar Kanhar, Uddhab Kanhar, Ratna Kanhar amd Chittaranjan Kanhar being armed with sticks shouted at them entertaining the belief that they were thieves. Therefore, altercation between these eight persons (members of prosecution party), on one side and those six persons, who intervened took place. He further states that during then some villagers of nearby villages also gathered. He does not say that those persons who had detained them raised shout and called others of their village or nearby villages to congregate at that place. His further evidence is that all those persons and the villagers who had subsequently arrived and assembled there at the spot started assaulting them. He is then stating that since Harit Karna and Suratha Naik were ahead of them, they fell down on the ground receiving the assault. At this, they fled away from the place to save their lives. This witness has been examined by the police only in the afternoon of 26.04.2015 at the Police Station when he had gone there being called by the brother of the deceased Harit (Informant-P.W.1). He states to have never gone to the house of Harit Karna and Suratha Naik (deceased persons) to even inform any of their family members including the Informant ( P.W.1)

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about the happenings in that night of 20.04.2015. This witness has not gone to the Police Station to inform about the incident on any day in between 21.04.2015 morning till 26.04.2015, forenoon. He says that he was roaming around in different villages and was not staying in his own village-Paikabahal and it was only on 26.04.2015, he came to his village. The evidence of this witness appears that it was as if to receive the Informant (P.W.1) at his house on 26.04.2015, he had returned to his village. When he does not say that there was any threat from any of the accused persons or others who had joined these accused persons to cause any harm to him is not saying as to how he could mastered the courage on 20.04.2015 to come to his village. During cross- examination, he has stated that altogether 30 to 40 persons had surrounded them and those persons included the villagers of village Adsingh, Dudsing, Chancher and Seskapadar. This witness in a generalized manner state that these accused persons were there in the gathering and he is not attributing any specific overacts to any of them. The conduct of this witness is totally against that of an ordinary human being. The deceased persons were his friends and the incident having taken place on 20.04.2015, still he is maintaining silence till 25.04.2015 and he is telling to the brother of one of the deceased persons only on 26.04.2015 that too when he came to his house. The evidence of this witness as projected against these accused persons in respect of the charges is thus in our view not at all clear, cogent and acceptable.

Next witness is P.W.3. He states that when they were returning to their village, on the way Chittaranjan Kanhar, Angur Kanhar, Dasaratha Kanhar, Ratnakar Kanhar, Bighneswar Kanhar, Jayanta Kanhar, Satrughna Kanhar, Gulthu Kanhar, Dibakar Kanhar, Sighrat Kanhar, Lalu Kanhar, Rindha Kanhar and Kalia Kanhar detained them and they

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alleged that this witness and his friends, who were together coming had gone to commit theft. He further states that those persons then called people of the nearby village to the spot and thereafter accused Akrura Kanhar and others, namely, Rindha Kanhar, Kalia Kanhar, Dibakar Kanhar and Sighra Kanhar of nearby village came and joined. His evidence is that there was altercation between the two groups and in course of that the accused persons assaulted them and as Harit Karan and Suratha Naik were is ahead of them, they were assaulted with sticks and then this P.W.3 and others fled away. All these comments made in respect of the evidence of P.W.2 stand as against this witness. He has been examining by police on 26.04.2015 when he surprisingly had made the first disclosure regarding the occurrence before P.W.2 shortly prior to his examination by police. He states that he had not disclosed about the occurrence to anyone. He too is not giving out any reason for the same. It is his evidence that in total around 30 to 40 people had obstructed them by gathering at the spot when the occurrence took place and the two of their companions, namely, Harit Karna and Suratha Naik when were going ahead of them at a distance of 20 to 25 cubits, those persons numbering about 40 to 50 assaulted them and then he (P.W.3) ran away. Above being the evidence of P.W.3, we find it extremely hazardous to accept it concerning the role played and act done by the accused.

Now comes the evidence of P.W.6. He has stated that when they were returning, some people attacked them whom he could not name and when disturbance started he with his friends left the place. He states to have never told anything about the occurrence to anybody for all these period up-till his examination by police. He also has not told the

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incident to P.W.2. The same comments as expressed against P.W.2 and P.W.3 stand against the evidence of this P.W.6.

Thus, we find that the evidence of all these three witnesses as not enough to conclude on the complicity of any of these accused persons in the said occurrence so as to be held liable for any of the offences for commission of which they have been convicted. When the evidence of these three important witnesses stand excluded from being taken into account for establishment of the charges and affirm the conviction as has been returned by the Trial Court, the other evidence with regard to the recovery of incriminating articles too are found to be wholly unreliable and the evidence on that score as have been let in by the prosecution do not successfully pass through the tests for being admissible under section 27 of the Evidence Act.

Having said above when we give a bare reading to the evidence of I.O. (P.W.16), we are not in a position to say that the prosecution has proved the fact that any of the accused persons while in police custody had given the statement as to the keeping of any incriminating articles and so saying they had expressed that they would give recovery of those articles and accordingly, they having led P.W.16 and others had given recovery of the same. Even though for a moment, the evidence as to the recovery of the articles are accepted but then also when the evidence of the eye-witnesses, i.e., P.W.2, P.W.3 and P.W.6 do not successfully pass through the tests of reliability and as such acceptability, the finding of the Trial Court holding these accused persons guilty for all the offences as indicated above thus cannot stand.

11. In the result the Appeals are allowed. The judgment of conviction and order of sentence dated 29th November, 2022 passed by the learned

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Sessions Judge, Boudh in Sessions Trial No.16 of 2018 are hereby set aside.

The Appellants (accused persons), namely, Biju Kanhar, Akrura Kanhar, Bighneswar Kanhar, Dasaratha Kanhar and Libeswar Kanhar), who are in jail custody be set at liberty forthwith, if their detention is not wanted in any other case.

(D. Dash) Judge.

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




                                                        (Dr. S.K. Panigrahi)
                                                              Judge.




H





    CRLA Nos.1180,1195,1196,1198 & 1199 of 2022