Braja Kushore Sahoo vs State Of Odisha
2023 Latest Caselaw 5210 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                          CRLA NO.581 OF 2022

    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 01.06.2022 passed by the learned Sessions
    Judge, Nayagarh in S.T. Case No.26 of 2020 arising out of G.R. Case
    No.358 of 2019 corresponding to Nuagaon P.S. Case No.57 of 2019.
                                 ----

        Braja Kushore Sahoo                      ....        Appellant
                                   -versus-

        State of Odisha                          ....       Respondent

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

    ==================================================
             For Appellant     -     Mr. A. Tripathy, Advocate.

                For Respondent     -      Mr. S.K. Nayak,
                                          Additional Govt. Advocate.
          CORAM:
          MR. JUSTICE D.DASH
          DR. JUSTICE S.K. PANIGRAHI

DATE OF HEARING : 29.03.2023 : DATE OF JUDGMENT:05.05.2023

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

judgment of conviction and order of sentence dated 01.06.2022 passed

by the learned Sessions judge, Nayagarh in S.T. Case No.26 of 2020

arising out of G.R. Case No.358 of 2019 corresponding to Nuagaon

P.S. Case No.57 of 2019 of the Court of learned Sub-Divisional

Judicial Magistrate, (S.D.J.M.), Nayagarh.

CRLA NO.581 OF 2022 {{ 2 }}

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

commission of offence under section-302 of the Indian Penal Code (for

short called as 'the IPC') and accordingly, he has been sentenced to

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

default stipulation to undergo rigorous imprisonment for six months.

2. The prosecution case is that on 03.08.2019, which was a

Saturday, during noon hours, Jagannath Pradhan (deceased) after

closing the garage which was on the side of the National Highway

(N.H.) was proceeding on the N.H. to his house. He was going on foot.

At that point of time, the accused Braja Kishore came in one white

Bolero vehicle bearing Registration No.OR-02AR-4646 and dashed

the deceased from behind and sped away. Receiving violent dash,

Jagannath died instantaneously.

On that day, around 1.30 pm, Jyotirmayee Pradhan who happens

to be the wife of the Jagannath lodged a written report with the

Inspector-In-Charge (IIC), Nuagaon Police Station. Receiving said

report, the IIC treated is as F.I.R. (Ext.3) and immediately registered

the case and took up investigation.

3. In course of investigation, the Investigating Officer (I.O.-

P.W.12) examined the Informant (P.W.4). He then examined

Informant's mother-in-law (P.W.5). In order to hold the inquest over

CRLA NO. 581 OF 2022 {{ 3 }}

the dead body of the deceased, the I.O. requisitioned the service of

Executive Magistrate and then visited the spot and prepared the spot

map, Ext.8. The inquest was held in presence of the Executive

Magistrate and report to that affect, Ext.1 was prepared. The dead body

was then sent for postmortem examination by issuing necessary

requisition. The I.O. (P.W.12) examined few other witnesses and

recorded their statements under section-161 of the Cr.P.C. After the

postmortem examination, the wearing apparels of the deceased being

produced before the I.O. (P.W.12), those were seized under seizure

list, Ext.2. On 04.08.2019, accused being arrested was forwarded in

custody to the Court. The Bolero vehicle belonging to one Sushanta

Sahoo was seized under seizure list, Ext.5 and so also the driving

license of accused (Ext.10). The I.O. (P.W.12) then sent the

incriminating articles to the State Forensic Science Laboratory (SFSL),

Bhubaneswar for chemical examination through Court.

On completion of investigation, Final Form was submitted

placing the accused to face the Trial for commission of offence under

section-302 of the IPC.

4. Learned S.D.J.M., Nayagarh receiving Final Form, took

cognizance of the above offence 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 charge for the said offence against the

accused.

5. In the Trial, the prosecution in total has examined, 12 witnesses.

The witnesses i.e. P.Ws. 1, 2, 3, 4, 5, 6, 7 and 8 had been brought to

the witness box from the side of the prosecution projecting them as the

eye witnesses. Out of them, it be noted that P.W.4 is the Informant and

she happens to be the wife of the deceased whereas P.W.5 is the

mother of the deceased. The Doctor, who had conducted the autopsy

over the dead body is P.W.11 and the Investigation Officer has come

to the witness box at the end and examined as P.W.12.

The prosecution besides leading the evidence by examining the

above witnesses has proved several documents which have been

marked as Ext.P-1 to Ext.P-17. The details of the description of the

said documents find place in the list appended to the judgment of the

Trial Court and therefore to avoid repetation, those are not noted here

again and as and when it would be so required in course of discussion

to follow, those documents with reference to the markings would stand

to be referred to.

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

implication. In support of the such plea, the accused has examined one

CRLA NO. 581 OF 2022 {{ 5 }}

witness as D.W.1, when the accused himself with the permission of the

Court has deposed as D.W.2.

7. The Trial Court as seen on reading the judgment has straight

way proceeded to examine the ocular testimony of the witnesses, one

by one in finding the answer to the point for determination which has

been formulated and stated at paragraph-4 of the judgment. Deviating

from the normal course, here we find that the Trial Court has not first

taken up the matter for consideration as to how the death of Jagannath

had taken place which is the first and foremost question that is required

to be answered in a case where the accused faces the charge for

commission of offence under section-302 of the IPC. In fact after

addressing that, the Trial Court ought to have proceeded further to find

out the complicity of the accused/ culprit; which has not been done.

Thus, it is a case where the Trial Court is found to have committed the

irregularity on that score. Having said all these above, we however

refrain from making any further observation in this regard exercising

the judicial restraint.

It would not be out of place to mention here that at this stage,

that the Trial Court having found the accused guilty for commission of

offence under section-302 of the IPC has imposed the sentence of

rigorous imprisonment for life when the imprisonment for life has no

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fixed term so as to be prefixed with the description. Therefore, the

Trial Court while awarding the sentence of imprisonment for life ought

not to have prefixed the description as rigorous to avoid confusion in

the mind of the Authority and lest it be misconstrued by the executing

Authority as ordained under the law.

8. It is the evidence of the Doctor (P.W.11), who has held

postmortem examination over the dead body of Jagannath that he had

noticed several external injuries over the same. It is seen from his

deposition that three of those injuries are abrasions on right chest; back

and right knee. P.W.12 too has noticed swelling on left leg below the

knee. With all such injuries, the vital injuries have however been

detected on the occipital region of the size of 5!! X 1!! with bleeding.

This P.W.11 on the dissection has noticed the haemorrhage of

membrain and brain with flora intact being congested and fracture on

the occipital bone. His positive evidence on oath is that the death was

caused due to the brain haemorrhage. He has noted the time of death to

be within twenty four (24) hours of his examination. The report has

been proved as Ext.7, which finds mention of all these injuries with

their size and seats, which P.W.11 had noticed during postmortem

examination. As we find that the evidence of this witness has remained

unchallenged except throwing upon one hypothetical suggestion that

CRLA NO. 581 OF 2022 {{ 7 }}

such injuries are possible if a person falls from the top of a three

storied building to which the witness has answered in the affirmative,

no further question has been asked as to whether this P.W.11 had

before him any such material suggestive of such a fall being the reason

for the deceased to sustain the injuries as he noticed.

With the evidence of P.W.11 as above; P.W.12 who had held

inquest over the dead body of the deceased in presence of the

Executive Magistrate is found to have also noted most of such injuries.

He too has indicated all those in the inquest report, Ext.P-1 which he

has proved.

The other witnesses including the wife and mother of the

deceased, P.Ws.4 and 5 respectively have also stated to have seen the

deceased to have received all these injuries. In view of the evidence as

above discussed, we are of the view that it has been established that

Jagannath died on account of the antemortem injuries sustained by

him.

9. The Trial Court as it appears from its judgment having

undertaken the exercise of analysis of evidence at its level and their

evaluation has rendered the finding in holding the accused to the

author of crime; that he has intentionally caused the death of Jagannath

CRLA NO. 581 OF 2022 {{ 8 }}

by coming on a Bolero vehicle from behind and dashing the deceased

with an intention to cause his death.

10. Learned Counsel for the Appellant (accused) at the beginning

submitted that under no circumstance, the Trial Court could have

accepted the evidence of P.Ws. 1 to 8 in fastening the guilt upon the

accused. According to him, the evidence of all these witnesses, when

reveal that although they had been projected as eye witnesses, such

vital part is the improvement only during Trial and it was not so their

earlier stand during investigation. In support of the same, he has

invited our attention to the relevant paragraph of the deposition of all

these witnesses, P.Ws. 1 to 8 as well as the relevant paragraph-10 of

the deposition of I.O. (P.W.12) that all these witnesses having never

stated during investigation in their statements recorded under section-

161 of the Cr.P.C., have for the first time come with those

improvement on material particulars in their anxiety to see that the

accused is fastened with the guilt of committing the murder of

Jagannath. He submitted that as because the deceased and the accused

were running two garages and earning their livelihood, the case has

been foisted against this accused since he was having the professional

rivalry with the deceased and what now they state that the accused

coming in a Bolero vehicle knowingly dashed the deceased from

CRLA NO. 581 OF 2022 {{ 9 }}

behind in killing the deceased is a development by taking a cue from

the fact that the accused being the nearby garage owner had the clash

of interest. He submitted that to avoid the real part of the story, the

prosecution has suppressed the fact that after the incident, the Bolero

vehicle was lying in the campus of Itamani Police Station. He

submitted that for that reason, the prosecution has not examined the

Police Officer of Itamati P.S., when it has been stated by P.W.4 in

clear terms that being called to Itamati P.S., she had found the accused

to be present there with the vehicle and the vehicle as well as the

documents were seized by Police in her presence; whereas it is now

stated by the I.O. (P.W.12) that he arrested the accused and seized the

vehicle with its documents on 04.08.2019 when he does not give out

the time and the place where, he found the accused first as also the

vehicle. In view of all these above, he submitted that the judgment of

conviction and order of sentence impugned in this Appeal are wholly

indefensible and vulnerable.

11. Learned Counsel for the State in his efforts for sustaining the

judgment of conviction and order of sentence submitted that when all

these prosecution witnesses P.Ws. 1 to 8 had stated before the

Investigating Officer, P.W.12 during their examination and recording

of their statements under section-161 of the Cr.P.C. that the accused

CRLA NO. 581 OF 2022 {{ 10 }}

has committed murder of the deceased on the road by giving the dash

of the Bolero vehicle behind and later on during Trial, now as they

have described in detail, the same do not amount to major

contradiction as it cannot be said that non-stating of all those facts

which now they say about the incident as to what actually happened

would not amount to material omission so as to be viewed to discard

the the version of those witnesses by criticizing that they have

improved upon their version during Trial in their anxiety to see that the

Trial culminates successfully. He further submitted that even if it is

accepted for a moment that the accused had taken the vehicle to the

Itamati P.S., no action has been taken there and before that, the

investigation by P.W.12 since has commenced, the prosecution for not

examining any Police Officer from that Itamati P.S. cannot be blamed

for suppression and for that no adverse inference is permissible to be

drawn against the prosecution case. He, therefore, submitted that the

finding of guilt returned by the Trial Court is not liable to be interfered

with.

12. Responding to the last limb of submission of the learned

Counsel for the State, learned Counsel for the Appellant drew our

attention to the statement of the accused examined in the Trial as

D.W.2 that he has taken the specific stand that deceased died due to

CRLA NO. 581 OF 2022 {{ 11 }}

accident and that he is not the owner of the vehicle namely Susanta

Sahoo who is unknown to him. He further submitted that when as per

the evidence of P.w.4, the vehicle in question was there in the Itamati

P.S., the prosecution having not proved the fact as to how the vehicle

from the N.H. was taken to that P.S. and by whom it was done, the

possibility cannot be ruled out that the culprit having taken the vehicle

to the Police Station have somehow managed to escape therefrom on

his own or inconvenience of the Police Officer to avoid rigours of law

for having dashed the deceased. According to him, all these above

rather suggest that the real culprit has managed to escape from the spot

and then the vehicle had been taken by the Police Officer attached to

the Itamati P.S. to be kept in the campus of the P.S. so as to clear the

N.H. and avoid traffic congestion and keep the N.H. free. He submitted

that the prosecution under the circumstance had the definite obligation

to remove all such doubtful features and when all those facets from the

evidence, the conviction of the accused can never stand.

13. 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.12 and

have perused the documents which have been marked Exts. P/1 to

P/17.

CRLA NO. 581 OF 2022 {{ 12 }}

14. Being now called upon to rule on the complicity of this accused

by addressing the rival submission and thereby judge the sustainability

of the finding of guilt of the accused which has been rendered by the

Trial Court, some background facts to be kept in view while

appreciating the evidence of the witnesses. The accused and the

deceased were having two motor garages side by side on the side of

the N.H. P.W.1, P.W.2, P.W.3 and then P.W.4, who happens to be the

wife of the deceased as well as P.W.5, who is the mother of the

deceased have not stated that at any point of time prior to the incident,

the accused and the deceased were having professional rivalry, one

being the competitor of the other and the activity of one in the garage

was affecting the other one. Thus, it appears that the evidence on

record is wholly silent as regards the motive behind the crime which

prompted the accused to commit the crime. It is not stated by any of

the witnesses that they were not pulling on well and in enmical terms

for any reason whatsoever. The accused and the deceased hail from the

same village having difference of age of around 7 to 8 years.

15. The prosecution case as laid in the F.I.R., Ext.3 lodged by P.W.4

at Nuagaon P.S. at about 1.30 pm on the date of occurrence is that

when her husband was coming on the N.H. on foot after closing his

garage, then for the time being, the accused came in the white Bolero

CRLA NO. 581 OF 2022 {{ 13 }}

vehicle bearing Registration No.OR-02AR-4646 and knowingly

dashed her husband from behind, which led to his death. In that F.I.R.,

she (P.W.4) having narrated the incident as regards the involvement of

the accused in saying that he came from behind in the Bolero vehicle

and dashed the deceased and then sped away from the place, she has

however not stated to have seen the incident on her own eyes nor even

it is stated that at the relevant point of time where she was standing,

the incident which took place on the N.H. was within her visibility

range in view of such short distance. She in the Trial has gone to state

that when her husband was going to his house, accused Braja Kishore

came from Mahipur side in a white colour Bolero at a speed and

dashed her husband was thrown to a distance of 30 to 40 feet from the

place where the dash was given and thereafter the accused went away

in that Bolero vehicle with speed. She has stated that most of the

people were present near the spot. What she has further stated as has

been exactly recorded by the Trial Court runs as under:-

"most of the people were present near the spot at the time and also seen the occurrence".

She is not stating to have seen the occurrence herself. Her

evidence as reproduced above rather shows that the incident had been

seen by many persons. It is also not stated by her that being present at

CRLA NO. 581 OF 2022 {{ 14 }}

any particular place, she had seen the incident, taking place on the

N.H. It is also not her evidence as to whether then she was in the

garage or house or that the situation of their house or garage is such

that by standing near the house or garage, one could seen the

happenings on the N.H. which in the case has so enabled her. Nothing

has been stated about the distance of their house or garage from the

N.H. and the respective location of the house or garage as well as the

N.H. Most importantly, as to how this witness could seen the Bolero

vehicle coming on the N.H. being driven by the accused at a speed and

dashing her husband has not been said. Even accepting for a moment

that their house/ or garage is situated just by the side of the N.H., it is

not said as to whether it was on the right side or left side which has the

definite bearing, as from the other side to the seat of the driver even if

for a person standing by the side of the N.H. to identify the driver is

not possible. This witness is again not stating that the Bolero vehicle

after the incident whether went ahead or returned to the side from

which it was coming or reversed back. With such glaring infirmities

and inherent improbabilities, in the evidence of P.W.4, we too find that

the witness (P.W.4) has clearly stated that she was not accompanying

her husband when he was going to take his meal. In her statement

recorded under section-161 of the Cr.P.C. she had not stated that at the

CRLA NO. 581 OF 2022 {{ 15 }}

time of incident, the deceased was going to his house from garage, the

accused came in a white colour Bolero vehicle from behind and dashed

Jagannath and that after dashing Jagannath; he moved back and saw

Jagannath from the window of the vehicle before it sped away. The

attention of this witness has been drawn to her previous statement.

Said omission in her statement in course of investigation has been

proved through the I.O. (P.W.12), who had recorded the said

statement. He has stated that the witness (P.W.4) had only stated

before him that the accused has committed murder of the deceased by

dashing the Bolero vehicle from behind.

16. All the P.Ws. 1, 2, 3, 5, 6, 7 and 8 when have come forward to

state during Trial that they had seen the incident before their eyes; their

statements before the Police in course of investigation were not to that

effect that at the time of incident the deceased was going to his house

from the garage and the accused came with white Bolero vehicle from

the back side and dashed the deceased and after dashing the deceased,

the accused moved back and he again saw the deceased from the

vehicle window and thereafter fled from the spot driving the vehicle.

All have simply stated that accused had committed murder of the

deceased by dashing his Bolero from his backside on the road which is

too is certainly hazardous to accept in conclusively holding that they

CRLA NO. 581 OF 2022 {{ 16 }}

had seen accused coming in the Bolero vehicle in dashing the deceased

from behind. Like P.W.4, none of these witnesses are coming forward

to say during Trial that where they were present at that relevant point

of time and that too at what distance from the place where the incident

took place. They also do not state as to whether they were on the left

side of the incoming vehicle or on its right and as regards their

response after the incident they are totally silent. When they claim

themselves to be eye witnesses to the occurrence, merely stating the

happening of the occurrence without stating their positioning at the

relevant point of time being able to watch the occurrence, the evidence

of such witnesses do not pass through the test of the reliability and

trustworthiness and clearly fall far short of the standard.

17. The Trial Court has answered this point as under:-

"In this context on perusal of the evidence of the above said P.Ws. it is found that they all have stated about the occurrence before the police during recording of their statements U/s.161 of Cr.P.C. and also deposed the same fact before the Court specifically. The P.W.1 to P.W.8 all have deposed that they had seen the occurrence and they had not deposed that who were present at the spot at that time except him which is immaterial and there is no such material contradiction find out in their statements. As such, the submission of the learned counsel for the accused is not sustainable.

CRLA NO. 581 OF 2022 {{ 17 }}

As such this Court finds that the accused has the intention to cause death of the deceased as he has caused the death of the deceased by dashing him in the alleged Bolero vehicle willfully and he has knowledge that by the said accident, the death of the deceased can be caused in ordinary course of nature."

18. It is the settled position of law that while section-162 of the

Cr.P.C. enacts an absolute bar against the statement made before a

Police Officer being used for any purpose whatsoever, it enables the

accused to rely upon it for a limited purpose of contradicting a witness

in the manner as provided by section-145 of the Indian Evidence Act

by drawing his attention to that part of the statement intended for

contradictions. It cannot be used for corroboration of a prosecution or

defence witness or even a Court witness nor can be used for

contradicting a defence or a Court witness.

The explanation resolves the conflict of decisions and clarifies

that omission to state a fact or circumstance in the statement may

amount to contradiction if certain conditions as envisaged therein are

fulfilled.

Omissions which by necessary implications lead to conflicting

version between the statements made before the Police and the Court

would amount to contradiction. The crucial test is to see if the two

statements cannot stand together. It is also necessary to see whether the

CRLA NO. 581 OF 2022 {{ 18 }}

statement which the witness has made in the witness box should have

been made while reporting the matter after the incident. The test to

find out whether an omission is a contradiction or not is to see whether

one can point to any sentence or assertion which is irreconcilable with

the deposition in the Court.

19. It is well established principle of law that all omissions are not

contradictions. The statement under section-161 of the Cr.P.C. being

brief, failure to mention a particular fact due to not being asked about

it, is no contradiction. But if any statement which is so material and

vital in connection with the conviction of an accused is omitted or if

what is actually stated is irreconcilable with what is omitted, it

amounts to contradiction where the omissions are vital. Omissions on

vital point to be held as contradiction. In other words, it will appear

that omission normally cannot be used for contradiction unless there

can be doubt by necessary implication to be part of statement recorded.

20. In the given case, we find that the Trial Court being completely

oblivious of the above statutory provisions and the legal principles in

appreciating the evidence in a Criminal Trial has arrived at a

conclusion that through evidence of all these witnesses, which ought

not to have been relied upon as wholly untrustworthy, the prosecution

has established the charge that the accused has intentionally caused the

CRLA NO. 581 OF 2022 {{ 19 }}

death of the deceased. This finding is thus the outcome of erroneous

appreciation of evidence having been so made without being alive to

the statutory provision of law holding the field and the well settled

legal principles in that regard.

21. Arriving at above conclusion, the evidence of P.W.4 being read

with evidence of P.W.12, it is seen that the prosecution has not proved

as to how the vehicle in question was at the Itamati P.S. and how it

came to be seized by P.W.12 and at which place, which he has not

deposed in order to remove the doubt, and that it creates doubt in mind

in the line what have been submitted by the learned Counsel for the

Appellant. The prosecution too has not examined any Police Officer

then attached to Itamati P.S. in wiping out the doubts on that score.

When the evidence of such large number of witnesses who were

projected as the eye witnesses in implicating the accused fall far short

of acceptance, the same being taken with the above conduct of the

prosecution, the submission of the learned Counsel for the Appellant

that the implication of the accused in this case is the product of the

later thinking and due deliberation with the I.O. coming to their aid

cannot straight way be whittled down and that reinforces the doubt in

our mind as regards veracity of the prosecution case.

CRLA NO. 581 OF 2022 {{ 20 }}

We, therefore, unhesitatingly conclude that the judgment of

conviction and order of sentence impugned in this Appeal are liable to

be set at naught.

22. In the result, the Appeal stands allowed. The judgment of

conviction and order of sentence dated 01.06.2022 passed by the

learned Sessions judge, Nayagarh in S.T. Case No.26 of 2020 are

hereby set aside.

Since, accused- Braja Kishore Sahoo is in custody, he be set at

liberty forthwith, if his detention is not required in any other case.

(D. Dash), Judge.

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


NARAY Digitally signed
      by NARAYAN HO                                                (Dr.S.K. Panigrahi),

AN HO 17:12:32 +05'30'
      Date: 2023.05.05                                                   Judge.

        Narayan





                  CRLA NO. 581 OF 2022