(From The Judgment Of Conviction ... vs State Of Odisha
2023 Latest Caselaw 6279 Ori

                                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                JCRLA No.10 of 2012

                                (From the judgment of conviction and order of sentence dated
                                20.08.2005 passed by the learned Additional Sessions Judge,
                                Khurda, Circuit at Banpur in Sessions Trial Case No.1/1 of
                                2003)


                                Gouri @ Gouranga Pradhan                 ....         Appellant

                                                           -versus-

                                State of Odisha                          ....       Respondent


                                Advocates appeared in the case:
                                For Appellant             :     Mr. Amrut Baral, Amicus Curiae

                                                           -versus-



                                For Respondent             :          Ms. Samapika Mishra, ASC


                                           CORAM:
                                           MR. JUSTICE D. DASH
                                           DR. JUSTICE S.K. PANIGRAHI

                                             DATE OF HEARING:-29.11.2022
                                            DATE OF JUDGMENT:-17.05.2023

                                  Dr. S.K. Panigrahi, J.

1. In this JCRLA, the convict/ Appellant (Gouri @ Gouranga

Pradhan) challenges the judgment of conviction and order of

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 1 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 sentence dated 20.08.2005 passed by the learned Additional

Sessions Judge, Khurda, Circuit at Banpur in Sessions Trial

Case No.1/1 of 2003, whereby the Petitioner was convicted

and sentenced to undergo imprisonment for life for

commission of offence under Section 302 and 201 of the

Indian Penal Code, 1860 (hereinafter referred to as "the I.P.C."

for brevity).

I. CASE OF THE PROSECUTION:

2. The case of the prosecution is that on the intervening night of

16/17.06.2002, at about 4 am, the accused /appellant Gouri @

Gouranga Pradhan, due to previous animosity, committed

murder of deceased Naba Pradhan, by slitting his throat by

means of a knife on the eve of Ramalila opera exhibition

during Raja festival at Saliadam colony Domuni Thakurani.

3. On the basis of the aforesaid allegation, the brother of the

deceased Kabiraj Pradhan, (P.W.22) lodged a F.I.R, before the

Banpur Police station vide Banapur P.S Case No.113 dated

17.06.2002 and accordingly investigation was conducted

against the accused appellant and subsequently thereafter on

18.06.2002, the appellant was arrested.

4. After completion of investigation, the investigating officer

submitted charge sheet under Section 302 I.P.C and the

accused was committed to the Court of the learned Additional

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 2 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 Sessions Judge, Khurdha, Circuit at Banpur in S.T Case No.1/1

of 2003 to face the trial and finally convicted and sentenced to

undergo imprisonment for life for commission of offence

under Sections 302 and 201 of the I.P.C.

II. SUBMISSION OF THE APPELLANT:

5. Learned Counsel for the Appellant strenuously argued that

the appellant is innocent. The plea of the defence is one of

complete denial and false implication. The specific case/plea

of the defence as it borne out from the statement of the

accused under Section 313 of the Cr.PC. is that he (accused) is

in no way connected or concerned with the death of the

deceased. He had further deposed that he cannot say who has

killed the deceased, however, he was not involved in the

incident.

6. Learned Counsel for the Appellant has contended that, in the

persent case, the order of conviction has been awarded basing

on the sole testimony of the P.W.5. But close scrutiny of the

statement of the P.W.5 would show that he has actually not

witnessed the role played by the appellant by cutting the

throat of the deceased. P.W.5 has himself contradicted his

own statement by stating in Para.10 of his cross examination

that after the shout "SAPA" "SAPA", people shouted that the

throat of a person was cut and he then got up and saw that

Naba Pradhan was running towards the stage with profused Signature Not Verified pg. 3 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 bleeding from his neck and fell down. In addition, P.W.5 has

exaggerated the fact that the appellant followed deceased to

the place of jatra and was sitting behind him. After some time,

appellant asked for a BIDI to deceased and the latter complied

the request and there after appellant again asked for a

matchbox and when deceased was about to hand over a

match box, appellant caught hold of the head of deceased in

one hand and cut the throat of deceased by means of a knife.

The P.W.5 has admitted that he had made the aforesaid

exaggerated statement for the first time before the learned

trial Court without having stated the same before the

investigating officer at the time of recording of his statement

under section 161 of Code of Criminal Procedure. P.W.5 has

further deposed that Sukumari Dei (P.W.11), Subash Pradhan

(P.W.12) and Dinabandhu Pradhan (P.W.13) had seen this

incident. However, surprisingly, scrutiny of the evidence of

the aforesaid prosecution witnesses goes on to show that they

are post-occurrence witnesses and also they have not stated

that they witnessed that the appellant has committed murder

of the deceased by cutting his throat. So, the statement of

P.W.5 suffers from serious infirmity which raises a reasonable

doubt regarding complicity of the appellant in the

commission of the crime.

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 4 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33

7. Learned Counsel for the Appellant has contended that Section

145 of the Evidence Act prescribes that for the purpose of

contradicting the statement of a witness, his/her attention has

to be drawn to the contradictory part appearing in the

previous statement or statement recorded under Section 161

of Cr.P.C by giving him / her reasonable opportunity to

explain the same and subsequently thereafter the

contradiction part has to be proved through investigating

officer. If the attention of the witness to his previous

statement was drawn to which the witness denied but the

same was not proved through investigating officer, then the

contradiction available in the deposition of the witness

remained not proved. The law is well settled that the non-

examination of the investigating officer would not ipso facto

discredit the entire case of prosecution. However, it is

needless to point that the right of the accused to bring on

record, the contradictions in the statement of witnesses as

made before the investigating officer during investigation, is a

very valuable right. By way of questions put to the

investigating officer, the defence demonstrates that the

witness has deposed contradictory to his earlier statement

made before the investigating officer as such the defence is

able to satisfy the Court that the said witness is not reliable.

Signature Not Verified pg. 5 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33

8. Learned Counsel for the Appellant has contended that the

right of bringing contradictions in the statement of

prosecution witnesses made before the investigating officer is

a very valuable right of the accused. It is by showing that the

witness has made improvements or given evidence which

contradicts his earlier statement, the accused is able to satisfy

the court that the witness is not a reliable witness. The non-

examination of the investigating officer is a serious infirmity

in the prosecution case which results in serious prejudice to

the accused.

9. Learned Counsel for the Appellant has further contended

thatP.W.2 and P.W.4 has stated in their deposition that the

deceased uttered that the accused had cut his neck and died

but aforesaid statements of the P.W.2 and P.W.4 are neither

find place in the F.I.R vide Ext.1 nor was it corroborated by

the informant (P.W.22), (P.W.5) and other prosecution

witnesses who are allegedly to be very much present at the

spot of occurrence. So, on the aforesaid background of the

case, especially when the investigating officer is not examined

by the prosecution, the statement of P.W.2 and P.W.4 that the

deceased has made the dying declaration by allegedly

demonstrating the culpability of the appellant cannot be

relied upon.

III. SUBMISSIONS OF THE STATE/ RESPONDENT

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 6 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33

10. The prosecution has examined as many as 24 witnesses,

including the brother of the deceased as P.W.23. P.W.1

(Gantayat Pradhan), P.W.5 (BijayKumer Pradhan), P.W.6

(Bijay Kumar Pattnaik), P.W.12 (Subash Ch. Pattnaik), P.W.13

(Dinabandhu Pradhan), P.W.19 (Bipra Charan Pradhan)

&P.W.23 (Debaraj Pradhan) are all eye witnesses to the

occurrence and all of them were present when the alleged

incident took place.

11. Learned Counsel for the prosecution has submitted that from

the report of P.W.14, Dr. Basudev Mohapatra, it is found that

on 17.6.2002, while he was attached as Specialist, O& G,

Banpur C.H.C., on that day, at 4.30 pm, on police requisition,

he had conducted post- mortem examination over the dead

body of Naba Pradhan, and found one incised wound of size

2" x 4" x 3/4" bone deep, extending from 1" below the border

of left ear upto the centre of the neck, just below the thyroid

cartilage. The wound was boldly cut. Left carotid artery, left

jugular vein, left sterno mastoid muscle were cut and the

injuries were sufficient in the ordinary course of nature to

cause death. This shows that it is a homicidal case, involving

the death of the deceased, Naba Pradhan.

12. Learned Counsel for the prosecution has further provided

that P.W.5, Bijay Kumar Pradhan, is an eye witness to the

occurrence. He has stated in his deposition that the accused

Signature Not Verified pg. 7 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 came to Domuni Thakurani in the night when jatra for Raja

festival was going on. The accused followed the deceased to

the place of jatra and was sitting just behind him. After some

time, the accused asked for a 'BIDI' to the deceased and the

latter complied the request. The accused once again asked for

a match-box and when the deceased was about to hand over

the match-box, the accused caught hold of the head of the

deceased in one hand and cut the throat of the deceased by

means of a knife. This act could be facilitated simply since at

that point in time, the accused was sitting behind the

deceased. It is further found from the testimony of this P.W.5

that at that time the accused shouted, "SAPA", "SAPA" and

then as the people witnessing the opera got up and tried to set

dispersed, getting opportunity, the accused escaped to the

nearest jungle. This witness has seen that the deceased died at

that place due to profused bleeding. This witness has been

duly cross-examined; but, nothing has been elicited that this

witness was otherwise inimically inclined towards the

accused.

13. Learned Counsel for the prosecution has also contended that

such eye witness account of witnesses cannot be thrown out

and these witnesses are found wholly reliable. This Court

should not have any difficulty in coming to a conclusion that

the accused is guilty of the offence.

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 8 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 IV. COURT'S REASONING AND ANALYSIS:

14. The case of the prosecution rests upon the evidence of the

eye-witnesses P.W.5 and 23 and the medical evidence.

However, it is pertinent to mention here that the Trial Court

has not conducted a thorough analysis and scrutiny of the

depositions of the prosecution witnesses. The prosecution has

adduced P.W.1 (Gantayat Pradhan), P.W.5 (Bijay Kumar

Pradhan), P.W.6 (Bijay Kumar Pattnaik), P.W.12 (Subash Ch.

Pattnaik), P.W.13 (Dinabandhu Pradhan), P.W.19 (Bipra

Charan Pradhan) & P.W.23( Debaraj Pradhan) as eye

witnesses to the occurrence stating all of them were present

when the alleged incident took place. However, on perusal of

the depositions and cross-examinations, it is clear that only

P.W. 5 and P.W.23 are eyewitnesses whereas P.W.1, P.W.6,

P.W.12, P.W.13 and P.W.19 are all post occurrence witnesses

considering they never saw the accused slitting the throat of

the deceased.

15. Before moving on to the deposition of the prosecution

witnesses, it is pertinent to determine whether the death of

the deceased was homicidal in nature.P.W.14, Dr. Basudev

Mohapatra, while he was attached as a Specialist, O & G,

Banpur C.H.C., on the day of occurrence at 4.30 pm, on police

requisition, he conducted post- mortem examination over the

dead body of Naba Pradhan, and found one incised wound of

Signature Not Verified pg. 9 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 size 2" x 4" x 3/4" bone deep, extending from 1" below the

border of left ear up to the centre of the neck, just below the

thyroid cartilage. The wound was boldly cut. Left carotid

artery, left jugular vein, left sterno mastoid muscle were cut

and the injuries were sufficient in the ordinary course of

nature to cause death. This shows that it is a homicidal case,

involving the death of this deceased.

16. Now, coming to the important determination, whether the

accused has caused the death of the deceased intentionally.

P.W.5, Bijay Kumar Pradhan, is an eye witness to the

occurrence. He has stated in his deposition that the accused

came to Domuni Thakurani in the night when jatra for Raja

festival was going on. The accused followed the deceased to

the place of jatra and was sitting just behind him. After some

time, the accused asked for a 'BIDI' to the deceased and he

handed over the same. The accused again asked for a 'match-

box' and when the deceased was about to hand over the

match-box. The accused caught hold of the head of the

deceased in one hand and cut the throat of the deceased by

means of a knife. This act could be very easy because at that

point of time, the accused was sitting behind the deceased. It

is further found from the testimony of this P.W.5 that at that

time the accused shouted, "SAPA", "SAPA" to divert the

attention at the crowd. As the people witnessing the opera got

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 10 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 up and tried to disperse, getting a golden opportunity, the

accused escaped to the nearest jungle. This witness has seen

that the deceased died at the spot due to profuse bleeding.

17. However, there are several discrepancies in his statement

during cross-examination. The P.W.5 has admitted that he

had made the aforesaid exaggerated statement for the first

time before the trial Court without stating the same before the

investigating officer at the time of recording his statement

under Section 161 of Code of Criminal Procedure. P.W.5 has

further deposed that Sukumari Dei (P.W.11), Subash Pradhan

(P.W.12) and Dinabandhu Pradhan (P.W.13) had seen this

incident but surprisingly on the scrutiny of the evidence of

the aforesaid prosecution witnesses goes on to show that they

are post occurrence witnesses and also they have not stated

that they had witnessed that the appellant had committed

murder of the deceased by cutting his throat. So, the

statement of P.W.5 suffers from serious infirmity which raises

a reasonable doubt regarding complicity of the appellant in

the commission of the crime. Similarly, the discrepancies have

been brought out during the cross-examination testimony of

the P.W.23.

18. Additionally, non-examination of the investigating officer has

caused serious prejudice to the appellant as he was precluded

from bringing the material contradictions in the evidence of

Signature Not Verified pg. 11 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 the P.W.5 who is alleged to be the sole eyewitness to the

culpability of the appellant.

19. P.W.2 and P.W.4 have stated in their depositions that

deceased uttered that the accused had cut his neck and died.

The non-examination of the investigating officer has

precluded the appellant to bring on record the material

contradictions in the statements of P.W.2 and P.W.4 to the

alleged dying declaration of the deceased that has caused

serious prejudice to the appellant. Moreover, stating that the

deceased was able to speak when his throat had been severely

cut is quite unbelievable when we look at the injury.

20. Law is settled that the right of bringing contradictions in the

statement of prosecution witnesses made before the

investigating officer is a very valuable right of the accused. It

is by showing that the witness has made improvements or

given evidence which contradicts his earlier statement. The

accused is able to satisfy the court that the witness is not a

reliable witness. The non- examination of the investigating

officer is a serious infirmity in the prosecution case which

results in prejudice to the accused.

21. P.W.2 and P.W.4 have stated in their deposition that the

deceased uttered that the accused had cut his neck and died

but aforesaid statements of the P.W.2 and P.W.4 neither

mentioned/ indicated in the F.I.R. vide Ext.1 nor corroborated

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 12 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 by the informant (P.W.22) and (P.W.5) and other prosecution

witnesses who were allegedly very much present at the spot

of occurrence. On the aforesaid background of the case, when

the investigating officer has not been examined by the

prosecution, the statements of P.W.2 and P.W.4 that the

deceased has made dying declaration by allegedly

demonstrating the culpability of the appellant cannot be

relied upon. Further, when the neck was cut, it is almost

impossible to utter words to make statements.

22. The fact that the accused and the deceased used to quarrel is

hearsay evidence which is inadmissible. P.W.5 and 23 have

also not stated anything in detail by citing instances.

23. On a conspectus of the analysis of evidence made

hereinbefore, this Court thus find that the judgment of

conviction and order of sentence passed by the Trial Court in

convicting the accused for commission of offence under

section-302/201 of the IPC by holding the prosecution to have

proved the charges against the accused beyond reasonable

doubt are liable to be set aside.

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

conviction and order of sentence 20.08.2005 passed by the

learned Additional Sessions Judge, Khurda, Circuit at Banpur

in Sessions Trial Case No.1/1 of 2003 are hereby set aside.

Signature Not Verified pg. 13 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33

25. The Appellant (accused) be set at liberty forthwith in case his

detention is not so required in connection with any other case.

( Dr. S.K. Panigrahi ) Judge

D. Dash, J. I agree.

( D. Dash ) Judge

Orissa High Court, Cuttack, Dated the 17th May, 2023/B. Jhankar

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 14 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33