In The Matter Of An Appeal Under ... vs State Of Odisha
2023 Latest Caselaw 8063 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.182 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 20th March, 2019 passed by the
    learned Sessions Judge, Gajapati, Parlakhemundi, in S.T. No.90 of
    2015.
                               ----

        Gopabandhu Sabar @ Gopa               ....          Appellant

                                   -versus-

        State of Odisha                       ....       Respondent

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

                 For Appellant     -     Mrs.Shelly Das
                                         (Advocate)

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

                                         Mr.H.K.Dash
                                         Advocate for the Informant
    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. The Appellant, by filing this Appeal, has called in question

the judgment of conviction and order of sentence dated 20th

March, 2019 passed by the learned Sessions Judge, Gajapati,

Parlakhemundi, in S.T. No.90 of 2015 arising out of G.R. Case

CRLA No.182 of 2019 {{ 2 }}

No.59 of 2015 corresponding to R. Udayagiri P.S. Case No.33(6) of

2015 in the Court of the learned Judicial Magistrate First Class

(J.M.F.C.), R.Udayagiri.

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302 of the Indian Penal

Code, 1860 (for short, 8the IPC9). Accordingly, he 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 six (6) months for the offence under

section 302 IPC; and undergo rigorous imprisonment for five (5)

years for commission of the offence under section 201 of the IPC

with a direction that the substantive sentences would run

concurrently.

2. On 30.06.2015, one Priyadas Mali (P.W.2) presented a

written report (Ext.2) with the Inspector-in-Charge (I.I.C.) of

R.Udayagiri Police Station (P.S.) stating therein that on

21.06.2015, around 8.00 p.m., his younger brother, namely,

Prabhabchandra Mali @ Babudas; after having left the house on

receiving a phone call, had not returned. It was also stated therein

that despite search; as they could not trace him out, they had

lodged a missing report at Ramagiri Outpost of 24.05.2015. On

21.06.2015, an information was received from one Jitendra Missal

that accepting the request of Prabhabchandra Mali @ Babudas, he

CRLA No.182 of 2019 {{ 3 }}

had dropped him in the house of Subhrakeshi Sabar and then had

returned on the motorcycle of said Babudas. In course of time,

further information was received from the villagers that on

21.06.2015, this accused, namely, Gopabandhu Sabar@ Gopa, his

wife Subhrakeshi Sabar and one of his friends Krupana Raita

(who having faced the Trial, have been acquitted) killed

Prabhabchandra @ Babudash by calling him over phone and have

caused disappearance of evidence by concealing the dead body

somewhere.

On receipt of the above written report, the I.I.C. treated the

same as FIR and upon registration of the case, took up

investigation.

In course of investigation, the Investigating Officer

(P.W.W.8 at Balimi Police Station, the Officer-in-Charge (O.I.C) of

that P.S. registered the case and took up investigation.

3. In course of investigation, the I.I.C. (I.O.-P.W.17) examined

the Informant (P.W.2) and recorded his statement and also those

of other witnesses under section 161 of the Code of Criminal

Procedure, 1973 (for short, the 8Code9). He visited the spot and

prepared the spot map (Ext.14). He, having made inquest over

the dead body of the deceased, prepared the report to that effect

(Ext.1).

CRLA No.182 of 2019 {{ 4 }}

On 01.07.2015, he arrested this accused. It is stated that this

accused, while in police custody, stated to have kept the iron rod

in a particular place nearby the reiver near Village-Laxmipur.

Having stated that he would give recovery of said iron rod, it is

said that he led P.W.17 and others to that place and gave recovery

of the same, which were seized under seizure list (Ext.3/2). Other

incriminating articles such as motorcycle, mobile phone sets with

SIM card were seized by the I.O. (P.W.17). On 02.07.2015, other

accused person, who has been acquitted, i.e., Krupana Raita was

arrested and thereafter the 3rd accused, Subhrakesi was also

arrested from her house. The dead body of the deceased, having

been sent for post mortem examination, the report to that effect

was received. The incriminating articles were also sent for

chemical examination by the Court on the prayer of the I.O. Since

the I.O. (P.W.17) was under the order of transfer, the

investigation of the case was entrusted to another Sub-Inspector

(S.I.) of Police (P.W.20), who, on completion of the investigation,

submitted the Final Form placing the accused to face the Trial for

commission of the offences under section 302/201/34 of the IPC.

4. Learned J.M.F.C., R. Udayagiri, on receipt of the Final Form,

took cognizance of the said offences and after observing the

formalities, committed the case to the Court of Sessions. That is

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how the Trial commenced by framing the charge for the aforesaid

offence against the accused.

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

implication.

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

total twenty (20) witnesses during Trial. As already stated, P.W.2

is the elder brother of the deceased and he had lodged the FIR

(Ext.2). The parents of the deceased are P.Ws.5 & 6. The Doctor,

who had conducted the autopsy over the dead body of the

deceased has come to the witness box as P.W.14. P.Ws.1, 3, 4, 9,

10, 18 & 19 are the independent witnesses and the I.O., who

conducted major part of the investigation when has been

examined as P.W.17 when the next I.O. has come to the witness

box as P.W.20.

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 25.

Out of those, the important are, the FIR (Ext.2), the inquest report

(Ext.1), the spot map (Ext.16); the post mortem report (Ext.13) and

the statement of the accused while in police custody has been

admitted in evidence and marked Ext.17.

CRLA No.182 of 2019 {{ 6 }}

8. The Trial Court, upon examination of the evidence on

record and their appreciation at its level, has held that the

prosecution has been able to prove the charge against this

accused (Gopabandhu Sabar @ Gopa) beyond reasonable doubt

whereas two others have been acquitted of the charges.

Accordingly, the present accused has been convicted for

intentionally causing the death of Prabhab Chandra Mali @

Babudas and sentenced, as afore-stated.

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

the entire case of the prosecution is based on the circumstantial

evidence. According to her, the circumstances, which have been

projected by the prosecution are not at all incriminating and they

do not point of finger of complicity as against this accused. She

further submitted that those circumstances when are too weak,

the question of formation of complete ring with the help of other

circumstances being taken as links, does not arise in the present

case. She submitted that the Trial Court, without properly

examining the evidence of the witness as regards the

circumstances and without noting each of the circumstances and

stating as to how they stand against this accused, record the

conviction, which is liable to be set aside.

10. Learned Additional Standing Counsel for the Respondent-

State and the learned counsel for the informant, on the other

CRLA No.182 of 2019 {{ 7 }}

hand, submitted that the Trial Court9s finding that the accused is

guilty for commission of the offence under section 302/201 of the

IPC is well in order. According to them, the evidence of the

prosecution witnesses, being on the score that the deceased was

with the company of this accused and thereafter was not seen, as

the accused is not providing any explanation as to under what

circumstance, the death had taken place, he has been rightly

convicted.

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 20) and have perused

the documents admitted in evidence marked as Exts.1 to 25.

12. The Doctor, who had conducted the post mortem

examination over the dead body of the deceased, which was in

gross decomposed stage, is P.W.14. He has stated to have noticed

one fracture extending from bridge of nose, maxilla to fronto

temporal region (right side). His evidence is that the death was

due to damage to vital areas as a result of head injury. It is his

evidence that the death had taken place within 7 to 14 days of his

examination. He has also stated that such injuries on the head are

possible in case of fall from a good height. The above, being the

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medical evidence, now let us examine the evidence of other

witnesses.

P.W.2 is the informant, who happens to be the elder brother

of the deceased. He states to have received information from his

father (P.W.5) that his younger brother was missing. He further

states to have been informed by his father (P.W.5) that one

Jitendra Misal and Patita Lima had taken the deceased in a

motorcycle to Tikata Sahi of Village-Ranadiba to the house of this

accused. It is his evidence that he heard from P.W.6 that at

Village-Ranadiba, with the help of his wife Subhrakesi and

Krupana, who have been acquitted, this accused killed the

deceased. So, this P.W.2 is not a witness to any of the

circumstances as against this accused. His entire evidence is

based upon the information, which he received from P.W.5.

Now, coming to the evidence of P.W.5, we find that he has

stated that on 21.06.2015, Jitendra Missal and Patita Lima

(P.W.19) came to his house and called his son (deceased) to

accompany them to attend the phone call. Accordingly, Babudas

(deceased) went with them on his motorcycle and thereafter, he

did not return. It is further stated that Jitendra and Patita

(P.W.19), on being asked, informed that the deceased had gone

away from the village and he would return within 2 to 3 days.

When this P.W.5 says to have heard from Jitendra and Patita

(P.W.19) that this accused and two others had killed his son, the

CRLA No.182 of 2019 {{ 9 }}

report lodged by him is silent on that important score. That

Jitendra has not been examined and only that Patita has been

examined as P.W.19. But, then he has not supported the

prosecution case and despite cross-examination by the

prosecution, with the permission of the Court, we find that no

such material has been elicited from him so as to come to the aid

of case of the prosecution in any manner.

The, next witness is P.W.6, who is the mother of the

deceased. It is her evidence that the deceased went with Jitendra

and Patita (P.W.19) and thereafter, did not return. She has further

stated that when her deceased son did not return, P.W.5 lodged a

report with the Police at Ramagiri P.S. and seven days thereafter,

the Police Officer told P.W.5 that their son was murdered near

Village Randiba under the jurisdiction of R. Udayagiri Police

Station where he lodged the written report and this witness

(P.W.6) and her husband (P.W.5) had been to the place where the

dead body of their son was seen lying with injuries. So, both these

witnesses simply state to have seen the accused leaving the house

on the motorcycle with Jitendra and Patita (P.W.19) and that

P.W.19 is not stating anything in support of the prosecution case

as regards the deceased having gone to the house of this accused.

13. The evidence as to the recovery of the iron rod, in our

considered view, even if accepted to have been made at the

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instance of this accused, we find that the prosecution case is not

being improved. Even then the evidence of P.W.17 with regard to

the recovery of the iron rod at the instance of the accused while in

police custody do not satisfy the tests laid down for its admission

with the aid of section 27 of the Evidence Act. Thus, we find that

the prosecution has not been able to prove any such incriminating

circumstance by reliable and clinching evidence and, therefore,

the question of forming the chain of events for safe drawal of

irresistible conclusion of the guilt of the accused leaving no other

hypothesis other than his guilt does not arise.

For the discussion, as above, we find ourselves not in a

position to uphold the finding of the Trial Court that the accused

is guilty for commission of the offence punishable under section

302/201 of the IPC in intentionally causing the death of

Prabhaschandra Mali (Babudas).

We are, therefore, of the view that the finding of the Trial

Court that the prosecution has established the charge against

accused, Gopabandhu Sabar @ Gopa beyond reasonable doubt by

leading clear, cogent and acceptable evidence cannot be

sustained. Accordingly, we conclude that the judgment of

conviction and order of sentence impugned in this Appeal are

liable to be set aside.

CRLA No.182 of 2019 {{ 11 }}

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

conviction and order of sentence dated 20th March, 2019 passed

by the learned Sessions Judge, Gajapati, Parlakhemundi, in S.T.

No.90 of 2015 are hereby set aside.

The accused, namely, Gopabandhu Sabar @ Gopa, who is in

custody, be set at liberty forthwith, if his detention is not wanted

in connection with any other case.

(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 14:48:44

CRLA No.182 of 2019