Unknown vs State Of Orissa
2023 Latest Caselaw 5212 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLA No.658 of 2022 :           (A)
                                 AND
                      CRLA No.659 of 2022 :            (B)
    In the matter of Appeals under section 374(2) of the Code of Criminal
    Procedure and from the judgment of conviction and order of sentence
    dated 03.08.2022 passed by the learned Additional Sessions Judge-cum-
    Special Judge, Jeypore in C.T. Case No.13 of 2015.

                                   ----

Gobardhan Mathapadia (In CRLA No.658 of 2022) .... Appellants

Gangadhar Pangi & Others (In CRLA No.659 of 2022)

-versus-

        State of Orissa                         ....           Respondent
        (In CRLA Nos.658 & 659 of 2022)

               Appeared in this case by Hybrid Arrangement
                        (Virtual/Physical Mode):
                For Appellants     -        Mr.Arijit Mishra,
                                            (Advocate in both CRLAs)

                For Respondent     -        Mr.S.K. Nayak,
                                            Addl. Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    Dr.Justice S.K. Panigrahi

Date of Hearing : 13.04.2023 :: Date of Judgment: 05. 05.2023 D.Dash,J. Since in both these Appeals as at (A) & (B), the judgment of

conviction and order of sentence dated 3rd August, 2022 passed by the

CRLA Nos.658 & 659 of 2022 {{ 2 }}

learned Additional Sessions Judge-cum-Special Judge, Jeypore in

Criminal Trial No.13 of 2015 arising out of G.R. Case No.451 of 2014

corresponding to Boipariguda P.S. Case No.73 of 2014 of the court of

the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Jeypore are

under challenge; those had been heard together and are disposed of by

this common judgment.

The Appellants (accused persons) of both the Appeals as at (A) &

(B) have been convicted for commission of offences under sections

302/201/34 of the Indian Penal Code, 1860 (for short, 'the IPC') and

each of them has been sentenced to undergo imprisonment for life and

pay fine of Rs.50,000/- (Rupees fifty thousand) in default of fine to

suffer rigorous imprisonment for a period of two years for the offence

under section 302, I.P.C. They have also been sentenced to undergo

rigorous imprisonment for five years and fine of Rs.10,000/- in default

to undergo rigorous imprisonment for a period of four months for the

offence under section 201, I.P.C. with further stipulation that the

substantive sentences would run concurrently.

2. The prosecution case in short is that on 13.07.2014 there was a

quarrel between Nanda Hantal and Mana Singrabi(deceased) at

Bhaluguda Chhak and the ill-feeling between the two was there for quite

CRLA Nos.658 & 659 of 2022 {{ 3 }}

some time before. The wife of Nanda Hantal had threatened to kill Mana

Singrabi, the husband of Jamuna Singrabi (Informant-P.W.23). On

16.07.2014 around 2 p.m., Mana Singrabi after attending a feast at

village Kenduguda had gone to village Aduanguda for arranging some

labours. He reached Bhaluguda chhak around 6 p.m. Mana Singrabi

with his friends, namely, Somanath Kaudia (P.W.17) and Dama Pangi

took liquor near that Bhaluguda Chhak and there they met these accused

persons of their village. As Mana Singrabi did not return home in the

night, a report with regard to missing of his father was given by Samaru

Singrabi, the son of Mana Singrabi (P.W.13) at Boipariguda Police

Station on 20.07.2014. Then the wife of Mana Singrabi lodged a written

report with the Inspector-in-Charge (IIC) of Boipariguda Police Station

raising suspicion against Nanda Hantal, Damai Hantal, Damu Pangi of

village Badaguda and Somanath Kaudia of village Dhanapuraguda to be

involved in the killing of her husband and concealing his dead body

somewhere as they too threatened her and her son with dire consequence

like her husband if the matter would be reported at the Police Station.

The I.I.C. having received this report immediately registered a case and

took up investigation.

CRLA Nos.658 & 659 of 2022 {{ 4 }}

In course of investigation, the Investigating Officer (I.O.-P.W.24)

came to know that accused Gobardhan Mathapadia had illicit

relationship with the Informant (P.W.23) and on 16.07.2014 around 8.30

p.m. at Bamanaguda, these four accused persons had assaulted Mana

Singrabi (deceased) with liquor bottle, fist blows, kicks and to have

caused injuries by means of sharp edged weapon on his head leading to

his death and that they had somewhere thrown the dead body in the

dense forest inside Nala.

On completion of investigation, Final Form was submitted

placing the accused persons to face the trial for commission of offence

under section 302/201/34, I.P.C.

3. Receiving the final form, learned S.D.J.M., Jeypore took

cognizance of said offences and after observing the formalities,

committed the case to the Court of Sessions. That is how the trial

commenced against these accused persons by framing the charges for

the above mentioned offences.

The plea of the defence is that of complete denial and false

implication.

CRLA Nos.658 & 659 of 2022 {{ 5 }}

4. The prosecution, during Trial, in total has examined fourteen (24)

witnesses. Out of them, P.W.1 and 4 are the younger brothers of the

deceased whereas P.W.6 is the owner of the liquor shop at Bhaluguda

Chhak and P.W.7 is the Sarpanch of the village. The seizure witnesses

relating to the seizure of skeleton and other articles of the deceased are

P.W.2 and 3. P.W.5,8 and 9 are the co-villagers of the deceased. The

brother-in-laws of the deceased are P.W.10 and 11 whereas P.W.12 is

another relation of the deceased. The son of the deceased is P.W.13

whereas the wife of the deceased who is the Informant is P.W.23. The

person who had scribed the F.I.R. has come to the witness box as

P.W.15 and the friend of the deceased, namely, Somanath Kaudia, who

was initially suspected to be involved in committing the crime with

others has been examined as P.W.17. The Investigating Officer has

come to the witness box at the end as P.W.24.

Besides leading the evidence, by examining the above witnesses,

the prosecution has also proved several documents which have been

marked Ext.1 to Ext-P/9; important of those are the FIR (Ext.5), the

statement of the accused, namely, Gobardhan Mathapadia is Ext.P-3/2

and the spot map Ext.P-6.

From the side of the Defence, no evidence has been tendered.

CRLA Nos.658 & 659 of 2022 {{ 6 }}

5. The Trial Court on examination of evidence and their evaluation

has recorded the finding that the charges against the accused persons for

commission of offence under sections 302/201/34, I.P.C. have been

established beyond reasonable doubt. Accordingly, these accused

persons have been convicted for the offence under sections 302/201/34,

I.P.C. and sentenced as aforestated.

6. Learned counsels for the Appellants (accused persons) submitted

that the entire case of the prosecution is based upon the evidence of

P.W.17 and the Trial Court has placed implicit reliance upon his

evidence in fastening the guilt upon the accused persons. He submitted

that the Trial Court has not appreciated the evidence of P.W.17 in the

touchstone of the surrounding circumstances which have emanated from

evidence and are not at all in dispute. He submitted that the conduct of

P.W.17 has not at all been taken into account and the explanations

given by the Trial Court to ignore the inherent infirmities and

improbabilities are untenable on the face of the facts and circumstances.

He further submitted that the highly belated disclosure of the incident by

P.W.17 when the disclosure also vary beyond the point of conciliation

with the evidence of P.W.23, the evidence of P.W.17 ought to have been

held to be highly unsafe to be relied upon moreso when he was initially

CRLA Nos.658 & 659 of 2022 {{ 7 }}

suspected by P.W.23 to be one of the authors of the crime and his

conduct at later point of time also run in that direction. He further

submitted that the circumstances which are projected against the

accused persons in pointing the finger of guilt at these accused persons

are too fragile and those too have not been established through clear,

cogent and acceptable evidence. He thus submitted that the finding of

guilt returned by the Trial Court is vulnerable.

7. Learned counsel for the Respondent-State supporting the finding

of guilt returned by the Trial Court as against these accused persons

contended that the Trial Court did commit no mistake in relying upon

the evidence of P.W.17 who is the eye-witness since no such material is

surfacing in his evidence despite cross-examination so as to entertain

any doubt on his testimony either as to his presence at the relevant time

in seeing the incident especially as to the role of the accused persons as

against the deceased standing corroborated by his immediate disclosure

before the wife of the deceased, i.e., P.W.23. He further submitted that

evidence of P.W.17 having received corroboration from other quarters,

the Trial Court has rightly convicted the accused persons for

commission of offence of offence under section 302/201/34, I.P.C.

CRLA Nos.658 & 659 of 2022 {{ 8 }}

8. Keeping in view the submissions made, We have carefully read

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.24) and have perused the documents admitted

in evidence and marked exhibits Ext.1 to Ext-P/9 from the side of the

prosecution.

9. Before going to undertake the exercise of appreciation of

evidence in addressing the rival submission, it would be apposite to

place some facts which have emanated from the evidence of the

prosecution witnesses which are not under dispute.

The deceased left the house on 16.07.2014 around 2 p.m. and

thereafter, did not return. His skeleton has been recovered twenty days

thereafter from the jungle. The son of the deceased (P.W.13) on

16.07.2014 has given a report about the missing of his father (deceased).

It had been registered as M.M.R. Case No.11 of 2014. However, the

I.I.C. (P.W.24) pursuant to that report had caused an inquiry and then

visited the spot and finding that at some place the earth were stained

with blood, he had collected those blood stained and sample earth from

the spot and seized those along with one beer bottle, broken glass pieces

and four empty jari pouches. On 17.08.2014, P.W.13 intimated P.W.24

CRLA Nos.658 & 659 of 2022 {{ 9 }}

over telephone that some skeleton is found near a Nala of the village and

near the skeleton the wearing apparels of the deceased and his umbrella

were lying. So P.W.24 again visited the place and collected some

skeleton parts including skull of the deceased, one black colour T-Shirt,

one white check colour full shirt, cement colour full pant, brown colour

underwear, belt, one pair chappal, umbrella and two empty plastic

gunny bags which he seized. The wife of the deceased who happens to

be the mother of the P.W.13 and examined in the case as P.W.23, then

lodged a written report on 08.08.2014 before the I.I.C. (P.W.24) which

being treated as F.I.R., the missing report case was closed and

investigation commenced in the regular case. The F.I.R. admitted in

evidence and marked Ext.5 has been proved through P.W.23. It has been

written by P.W.15. In the F.I.R. lodged on 08.08.2014 as against the

missing of the deceased from 16.07.2014, persons, namely, Nanda

Hantal, Damai Hantal, Damu Pangi and Somanath Kaudia were

suspected to be the culprits. It be stated that this Somanath Kaudia who

was suspected to be one of the culprits having the involvement in

causing the murder of the deceased has come as the star witness for the

prosecution. He (P.W.17) deposes to have seen the incident in his eyes

being very much present at the place of incident. When the F.I.R. has

CRLA Nos.658 & 659 of 2022 {{ 10 }}

been lodged on 08.08.2014 raising suspicion as against this P.W.17 and

others, it is not the evidence of P.W.24 that thereafter he had made any

attempt to apprehend those persons and interrogate them when he is also

not stating that those persons named in the accused column of the F.I.R.

were not in the village and for that it was not possible to apprehend them

and interrogate. P.W.24 says that he examined P.W.17 on 12.09.2014

and then on that day, he conducted raid to apprehend these accused

persons but they were absent. So, the next day, he apprehended all those

four accused persons. P.W.17 says that the occurrence took place in the

weekly market at village Baliguda. He being a daily labourer was also

working under the deceased who was a mason. It is his evidence that

when they were in the village market, accused Damu Pangi joined them

and then all the three went to one Jai to take liquor. It was around 7

p.m., other accused persons, namely, Gobardhan,Ghana and Gangadhar

came to the shop and sometime thereafter accused Damodar also came.

He further states that suddenly accused persons dragged the deceased

and there was a push and pull when he as well as Damu interfered and

separated them and the accused persons left the spot. He further states

that he along with the deceased Damu came out of that shop and Damu

went to his village. It is his evidence that he along with the deceased

CRLA Nos.658 & 659 of 2022 {{ 11 }}

came to Bamanguda Chhak and accused persons came to that Chhak,

dragged the deceased and assaulted him. It is his specific evidence that

in the process of assault, accused Gobardhan assaulted the deceased by a

liquor bottle on his head and the deceased shouted out of pain by saying

'Marigali Marigali' where after since those accused persons threatened

this witness to take away his life, he out of fear left the spot. It is his

further evidence which is noteworthy is that on the next day, he went to

the house of the deceased and did not find him. If that is so, the witness

was sure on the next morning that something serious had happened to

the deceased and, therefore, he having told about the incident to the

family members of the deceased, left the place. But then his evidence

that out of fear of death, he with the family left the village and went to

the in-laws place, appears to be absolutely unacceptable as there was no

reason for the same. It is also interesting to note that this witness after

having stated about the incident to the family members of the deceased

has not told the same to anyone else and if on the next day, he had told

about the incident to the family members of the deceased; how could it

be that the son of the deceased (P.W.13) who lodged the missing report

at the Police Station on the next day and then again much later P.W.23

in her F.I.R. have raised suspicion about the involvement of this P.W.17

CRLA Nos.658 & 659 of 2022 {{ 12 }}

and three others but have not stated anything against these accused

persons.

P.W.13 says that on the next day, he, his mother, brother and

uncle searched for his father at different places and asked several people

and then again in the evening the search was made with the help of

Damu Pangi and Somanath Kaudia (P.W.17) and then he states to have

asked P.W.17 as well as Damu (not examined) when they had disclosed

before him as well as others that they along with his father purchased

liquor, consumed the same when these accused persons were also taking

liquor and at that time accused Ghana and Gobardhan were saying

'Magia Jeta Mada Peichu pi tote aji jibanare Maridebu' and, therefore,

there was altercation and the accused persons left the place whereas his

father and two others proceeded to Bodaguda Chowk. He is totally silent

about what PW.17 states to have told to the family of the deceased and

the place where it was stated also greatly varies. P.W.23, the wife of the

deceased says that during search, P.W.17 told her that on the same night,

he had seen the deceased in the company of accused Gobardhan, Ganga,

Damu and Ghana and they after consuming liquor were giving pushes to

the accused. This limited version of P.W.17 before him has been said by

P.W.23. On the other hand, P.W.17 says to have gone to the house of the

CRLA Nos.658 & 659 of 2022 {{ 13 }}

deceased in the morning and told the family members about the incident.

P.W.1, the younger brother of the deceased has said a completely

different story and nothing about the disclosure of P.W.17.

With all such highly suspicious features emerging in the evidence,

we are absolutely at a loss to understand as to how the Trial Court by

giving some reason with which we wholly disagree could accept the

version of P.W.17 as the gospel truth in concluding that these accused

persons are the authors of the crime and have intentionally caused the

death of Mana Singrabi (deceased). Having said above, when we go to

the evidence of I.O.(P.W.24), who has stated about the recovery of the

cycle of the deceased at the instance of the accused-Gobardhan pursuant

to his statement, we find that the independent witnesses P.W.9 and 10

have not supported the said fact and if their version is taken with the

version of P.W.24, the evidence are not found to be successfully passing

through the test of admissibility of that portion of statement of said

accused Gobardhan as to the fact discovered as required under section

27 of the Evidence Act. Thus we are of the view that the judgment of

conviction and the order of sentence passed by the Trial Court cannot be

sustained.

CRLA Nos.658 & 659 of 2022 {{ 14 }}

10. In the result the Appeals are allowed. The judgment of conviction

and order of sentence passed by the learned Additional Sessions Judge-

cum-Special Judge, Jeypore in C.T. Case No.13 of 2015 are hereby set

aside. The Appellants be set at liberty forthwith if their 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.




Himansu




                   Digitally signed by
HIMANSU            HIMANSU SEKHAR
                   DASH
SEKHAR DASH        Date: 2023.05.05
                   17:10:03 +05'30'




      CRLA Nos.658 & 659 of 2022