Orissa High Court
Nila @ Nilamani Majhi vs State Of Orissa on 5 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.31 of 2019
In the matter of an Appeal under Section 383 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 23.07.2018 and 26.02.2019 respectively passed
by the learned Sessions Judge, Nuapada, in C.T. Case No.82 of 2013.
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Nila @ Nilamani Majhi .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. Manoj Kumar Panda
(Advocate)
For Respondent - Mr.S.K. Nayak,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 26.04.2023 : Date of Judgment:05.05.2023
D.Dash,J. The Appellant, by filing this Appeal from inside the Jail, has
called in question the judgment of conviction and the order of sentence
dated 23.07.2018 and 26.02.2019 respectively passed by the learned
Sessions Judge, Nuapada, in C.T. Case No.82 of 2013 arising out of
C.T. Case No.266 of 2013 corresponding to Komna P.S. Case No.92(7)
of 2013 in the Court of the learned Sub-Divisional Judicial Magistrate
(S.D.J.M.), Nuapada.
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The Appellant (accused) thereunder has been convicted for
committing the offence under section 302 of the Indian Penal Code,
1860 (for short, 'the IPC') and accordingly, he has been sentenced to
undergo imprisonment for life and pay fine of Rs.20,000/- (Rupees
Twenty Thousand) in default to undergo rigorous imprisonment for one
(1) year for the offence under section 302 IPC with the stipulation that
out of the realized fine amount, a sum of Rs.10,000/- (Rupees Ten
Thousand) would be paid to the family members of Dama @ Bahabal
Majhi (deceased) towards compensation.
2. Prosecution Case:-
On 13.06.2013 around 9.00 p.m., the accused assaulted Bahabal
(deceased) by means of an iron rod on his head in front of his house and
receiving the blow, the deceased fell down. The Bharat Majhi
(Informant-P.W.1) when at that time was near the shop run by one
Bablu, was told about this incident by his elder father, namely, Madhav
Majhi. So, the informant (P.W.1) rushed to the spot and found Bahabal
(deceased), who happens to be his elder brother, lying dead with
bleeding injury on his head. It was then heavily raining. So, on the next
day morning around 6.30 a.m., Bharat (Informant-P.W.1) informed the
matter in writing to the Inspector-in-Charge (I.I.C.), Komna Police
Station. The I.I.C, receiving the said written report from the informant
(P.W.1), immediately registered the case and directed one Sub-Inspector
of Police (S.I), namely, Dillip Kumar Sahu to take up the investigation.
3. In course of investigation, the Investigating Officer (I.O.)
examined the Informant (P.W.1) and recorded his statement and those of
other witnesses under section 161 of the Code of Criminal Procedure,
1973. He visited the spot and prepared the spot map (Ext.12) and held
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inquest over the dead body of the deceased and prepared the report
(Ext.2). He also seized the incriminating articles and sent the dead body
of the deceased by issuing requisition for post mortem examination. It is
said that in course of investigation, the accused, being arrested, gave his
statement and led the Investigating Officer (I.O.) to the place where he
had thrown the iron rod. Accordingly that being recovered pursuant to
his statement (Ext.5) was seized under the seizure list (Ext.6). The
incriminating articles were sent for chemical examination and the report
(Ext.18) to that effect was received. On completion of the investigation,
the Final Form was submitted placing the accused to face the Trial for
commission of the offence under section 302 of the IPC.
4. Learned S.D.J.M., Nuapada, on receipt of the Final Form, 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 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
fourteen (14) witnesses during trial. As already stated, P.W.1 is the
informant, who rushed to the spot after hearing the incident from his
elder brother Madhav that his elder brother Bahabal had been assaulted
by accused on his head by means of an iron rod. He is also a witness to
the inquest and is a signatory to the inquest report (Ext.2). P.W.2 is the
wife of the deceased, who having received the information about the
incident, had rushed to the spot and saw her husband lying dead with
bleeding injury on his head. P.W.3 is the father of the deceased, who too
having got the information about the death of his son Bahabal, had gone
to the spot and saw Bahabal him lying on the ground with bleeding
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injuries on his head, P.Ws.4, 5, 6, 9 & 13 are the witnesses to the
seizure. P.W.7 is another post occurrence witness as also a witness to
the seizure and inquest. P.Ws.8 & 10, who had been projected as the eye
witnesses for the prosecution, have not supported the prosecution
version. The scribe of the written report, which has been treated as FIR,
being lodged by P.W.1, the informant has been examined as P.W.11.
The Doctor, who had conducted the autopsy over the dead body of the
deceased has come to the witness box as P.W.12 whereas the I.I.C., who
had registered the case on receipt of Ext.1 has come to the witness boxes
as P.W.14. The I.O., having expired has not been examined in the Trial
and all such documents prepared by him in course of investigation, have
been proved by P.W.12, the then I.I.C., who having registered the case,
had asked the S.I. of Police to investigate.
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 21. Out of those, important
are the FIR (Ext.1) and the inquest report (Ext.2). The post mortem
report has been proved by the Doctor as Ext.7 and Ext.8 is his opinion,
which had been sought for by P.W.14 as to whether the iron rod seized
in course of investigation, the injuries noted by him on the head of the
deceased were possible. The Chemical Examination report has been
proved as Ext.18.
The accused has, however, not adduced any evidence being
provided with the opportunity to do so.
7. The Trial Court, upon examination of the evidence on record, has
recorded the finding that the prosecution has established the charge
against the accused as the author of the injuries sustained by the
deceased on his head resulting his death. Thus, having held that the
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accused has intentionally caused the death of the deceased by assaulting
on his head by means of iron rod, the accused has been held guilty for
commission of the offence under section 302 of the IPC and
accordingly, he has been sentenced as afore-stated.
8. Mr.Manoj Kumar Panda, learned counsel for the Appellant
submitted that none of the witnesses examined in the Trial have stated to
have seen the occurrence and the eye witness, who is stated to have
informed brother of the deceased, who is the Informant (P.W.1), has not
been examined as he was dead. He thus submitted that the prosecution
has also led no such circumstantial evidence so as to establish the
complicity of the accused as the author of the injuries sustained by the
deceased on his head resulting his death. It was submitted that the view
taken by the Trial Court that the evidence of P.W.1 even without the
examination of the witness Madhav, who is his elder father and who had
informed him about the incident to him is admissible under section 6 of
the Evidence Act is unsustainable. He further submitted that the
evidence let in by the prosecution in support of the recovery of the iron
rod pursuant to the statement of the accused is not at all believable. He
further submitted that the Trial Court, on proper appreciation of the
evidence on record, ought to have drawn adverse inference on the
prosecution revision of the case as examination of P.W.14, the I.I.C. and
his evidence in proving the role played by the I.O. ought not to have
been held as the substitute. He also contended that in the facts and
circumstances as have emerged from the evidence of the prosecution
witnesses, it ought to be held that for the non-examination of the I.O, the
prejudice caused to the accused is writ large. In view of all these above,
he contended that the Trial Court committed grave error both on fact and
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law in convicting the accused for committing the offence under section
302 of the IPC.
9. Mr.S.K. Nayak, learned Additional Government Advocate
submitted that it is not a case where the prosecution has withheld that
Madhav from the witness box from being examined during the Trial but
it is because of the fact that he was dead by that time. He, therefore,
submitted that under the circumstance, the evidence of P.W.1 that
Madhav had told him regarding the incident attributing the authorship of
the head injuries received by the deceased to the accused has rightly
been held by the Trial Court as admissible and this P.W.1, having been
found to be a trustworthy witness, rightly his evidence has been found to
be reliable to fasten the guilt upon the accused. He submitted that the
spontaneous reaction of this P.W.1 on the information getting that he as
well as other witnesses have rushed to the spot within a short span of
time and saw the deceased lying dead with bleeding injuries on his head.
He further submitted that the evidence let in by the prosecution that the
accused, while in police custody, led the police and other witnesses to
that place where he had thrown the iron rod, which was recovered and
seized provide further support to the evidence of P.W.1 when the
medical evidence provide the corroboration that the fatal injuries are
possible by that iron rod. He submitted that the evidence of P.W.1 when
receives corroboration from the evidence that there was the recovery of
that iron rod at the instance of the accused from the place, which was
known to him, the Trial Court did commit no mistake in convicting the
accused for committing the offence punishable under section 302 of the
IPC.
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10. 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 14) and have perused the documents admitted in
evidence marked as Exts.1 to 21.
11. The prosecution has examined the Doctor, who had conducted the
post mortem examination over the dead body of the deceased as P.W.12.
His evidence is to the effect that he had noticed six external injuries and
on dissection, had found compound fractures of the occipital bone of the
skull, which was corresponding to the mentioned externally found
avulsions located on the occipital region 3 inch medial to both left and
right ear and located on the line joining the upper most point of both the
ears. His evidence is that memberance were torn and there was
underlying intracerebral haemorrhage and haematomas over occipital
region of the brain of the deceased. As per his report, the death of the
deceased is homicidal in nature and has been on account of the
complications arising from the aforesaid injuries. The other witnesses
including P.W.1 have deposed to have seen such injuries on the head of
the deceased. There was no such challenge to such evidence from the
side of defence before the Trial Court and that is also the situation
before us. Thus, with such overwhelming evidence, we find no difficulty
in concluding that the death of the deceased was homicidal in nature.
12. Admittedly, we find that the prosecution has not led any direct
evidence to establish the authorship of the injuries of the deceased in
implicating this accused. It is the evidence of P.W.1, who is the younger
brother of the deceased that at the relevant time, when he was in the
shop of one Bablu, his elder father Madhav informed that his elder
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brother having been assaulted by the accused on his head by means of
an iron rod was lying on the ground. His further evidence is that hearing
this, when he went to the spot, he saw his elder brother lying dead in a
pool of blood. The wife of the deceased has also stated in the same vein
that having received the information from P.W.1, she had gone to the
spot and saw her husband lying dead with bleeding injuries on his head.
P.W.3 is another witness, who is the father of the deceased. He
too has stated that having heard about the incident from P.W.1, when he
had been to the spot, he found his other son lying dead. The witness
(P.W.7) has deposed that when in the night, he was sleeping in his
house, P.W.1 came and told that the accused had killed his brother and
having heard that, he had been to the spot and seen the deceased lying
dead. He has further stated to have accompanied P.W.1 to the P.S. in
lodging the written report (Ext.1). So, here the question arises as to
whether the evidence of P.W.1 that he was told by his elder father
Madhav that his elder brother had been assaulted by the accused would
be admissible in evidence and if he is taken to be a trustworthy witness
whether that would be enough to show the complicity of the accused.
In the present case, the FIR (Ext.1) lodged by P.W.1 reads that he
was told by his elder father Madhav that his elder brother (deceased)
assaulted by the deceased. It has not been so stated in the FIR that said
Madhav had seen the incident in his own eyes and had the occasion to
witness the role of the accused in the said incident in assaulting the
deceased on his head by means of iron rod which he then told to P.W.1.
It has been noted in the FIR that Madhav came and informed that
accused having been assaulted the deceased, was lying on the ground.
P.W.1, in his evidence, has stated that he was informed by Madhav that
his elder brother was assaulted by the accused by means of iron rod and
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having sustained bleeding injury was lying and thereafter, he having
gone to the spot saw his elder brother lying dead with injuries. It has,
however, not been deposed by P.W.1 that Madhav had told him that he
was present near the place and had seen the occurrence taking place. So,
when it is not established Madhav was an eye witness to the occurrence,
we are of the view that even if we accept the evidence of P.W.1 in
entirety, that would be of no help to the case of the prosecution in
attributing the authorship of the injuries received by the deceased. Under
the circumstance, the contention of the learned counsel for the State as
to the admissibility of the evidence of P.W.1 with the aid of section 6 of
the Evidence Act is not necessary to be addressed as the basic structure
to proceed to consider the same has not been put up.
13. Now, coming to the evidence as to the recovery of iron rod
(M.O.I), let us first of all approach the evidence of the I.I.C. (P.W.14).
The S.I. of Police, who took up the investigation of the case first, had
arrested the accused and recorded his statement, has not examined in the
Trial as by then he was dead. The documents prepared by him have been
proved through the I.I.C. (P.W.14), who had initially registered the case
and directed that S.I. of Police to take up the investigation. No other
independent witnesses not supported the prosecution version as regards
the recovery of the weapon at the instance of the accused. Moreover, the
evidence of P.W.14 cannot be taken as the substitute of the evidence of
that I.O as to proof of all the essential facts so as to stand for being
passed through the tests for admissibility of such fact discovered within
the scope of section 27 of the Evidence Act.
For all the discussion of evidence on record, we find it extremely
difficult to uphold the finding of the Trial Court holding the accused
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guilty for commission of the offence punishable under section 302 of the
IPC in intentionally causing the death of the deceased.
14. On the conspectus of the analysis of the evidence let in by
prosecution, we are of the view that the finding of the Trial Court that
the prosecution has established the charges against accused, Nila @
Nilamani beyond reasonable doubt by leading clear, cogent and
acceptable evidence cannot be sustained and, therefore, the judgment of
conviction and order of sentence impugned in this Appeal are liable to
be set aside.
15. In the result, the Appeal is allowed. The judgment of conviction
and order of sentence dated 23.07.2018 and 26.02.2019 respectively
passed by the learned Sessions Judge, Nuapada, in C.T. Case No.82 of
2013 are hereby set aside.
The accused, namely, Nila @ Nilamani Majhi be set at liberty
forthwith, if his detention is not required in connection with any other
case.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K. Panigrahi),
Judge.
Digitally
Basu
BASUD signed by
BASUDEV
EV NAYAK
Date:
NAYAK
2023.05.05
17:17:08
JCRLA No.31 of 2019
