Gajendra Kanjaka vs State Of Odisha
2023 Latest Caselaw 6550 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                             JCRLA No.61 of 2016
    From the judgment of conviction and order of sentence dated
    06.08.2016 passed by the learned Additional Sessions Judge, Gunupur
    in Criminal Trial No.31 of 2014.

                                     ----

         Gajendra Kanjaka                        ....          Appellant

                                     -versus-

         State of Odisha                         ....          Respondent
                Appeared in this case by Hybrid Arrangement
                         (Virtual/Physical Mode):
                 For Appellant       -      Mr.Biswajit Nayak
                                            (Advocate)

                 For Respondent      -      Mr.S.S. Mohapatra,
                                            Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K.PANIGRAHI
    Date of Hearing : 15.05.2023            : Date of Judgment:19.05.2023

D.Dash,J. The Appellant, by filing this Appeal, from inside the jail, has called in question the judgment of conviction and order of sentence dated 06.08.2016 passed by the learned Additional Sessions Judge, Gunupur in Criminal Trial No.31 of 2014 arising out of G.R. Case No.30 of 2013 corresponding to Bissamcuttack P.S. Case No.7 of 2013 on the file of the learned Judicial Magistrate First Class, Bissamcuttack.

The Appellant (accused) thereunder has been convicted for commission of offence under sections 376/302 of the Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly he has been sentenced to

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undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for two years for the offence under section 302, I.P.C. and rigorous imprisonment for 10 years with fine of Rs.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for one year for the offence under section 376, I.P.C. with the stipulation that the substantive sentences would run concurrently.

2. The prosecution case, in short, is that on 24.01.2013 the Informant (P.W.1) was keeping watch over the cows grazing near his field where he had grown cotton crop. His youngest daughter aged about 20 years was then plucking the cotton in the said field. It is stated that the accused came to the place and in view of the previous enmity started abusing the Informant (P.W.1). After that the Informant (P.W.1) left the place. Thereafter the accused picked up quarrel with his daughter. Out of feat, the Informant (P.W.1) having come to his house although waited there for some time, his daughter did not return. So, he sent his son (P.W.3) to search for his daughter. P.W.3 while proceeding to the field from a distance saw the accused leaving the place carrying an axe in his hand. He then searched for his sister in the said field. Near a 'Jhola', he saw the dead body of his sister. The matter being informed to P.W.1 and others; they went to the spot and found the daughter of P.W.1 to have been ravished and murdered. It is alleged that the accused has committed the said crime.

P.W.1 then having lodged a written report with the Inspector-in- Charge (I.I.C.) of Bissamcuttack Police Station, the same was treated as F.I.R. and case was immediately registered. The I.I.C. (P.W.16) took up the investigation. In course of investigation, he examined the Informant and other witnesses. He visited the spot and prepared spot map (Ext.6).

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He also conducted inquest over the dead body and prepared the report (Ext.2). The dead body was then sent for Post Mortem Examination by issuing necessary requisition. The Investigating Officer (P.W.16) then seized sample earth and blood stained earth and a pair of plastic chappal from the spot under seizure list (Ext.8). The accused was arrested and his wearing apparels were seized. The I.O. (P.W.16) on being transferred handed over the charge of investigation to one Sub-Inspector of Police (S.I.) of that Police Station (P.W.15) and he submitted the Final Form placing the accused to face the trial for commission of offence under sections 379/302, I.P.C.

3. Learned J.M.F.C., Bissamcuttack, having taken cognizance of the offence and after observing all the formalities, committed the case to the Court of Sessions. That is how the trial commenced by framing the charge for the said offence against the accused.

4. In the trial, the prosecution in total has examined sixteen (16) witnesses. As already stated the important are P.W.1 and 3, who happen to be the father of the deceased and Informant so also the brother of the deceased respectively. P.W.8 is a witness who also then collecting the cotton in the field. P.W.9 and P.W.10 are two co-villagers. P.W.13 and 14 are the two Doctors who had conducted the Post Mortem Examination over the dead body of the deceased. The I.O. who had conducted major part of the investigation has come to the witness box at the end as P.W.16.

Besides examining the above witnesses, the prosecution has proved several documents, which have been admitted in evidence and marked Exts.1 to 19. The written report of P.W.1 treated as F.I.R. has been proved by P.W. 1 and marked Ext.1, inquest report prepared by

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P.W.16 has been admitted in evidence and marked Ext.2, post mortem report is Ext.4 and the medical examination of the accused is Ext.16.

5. The plea of defence is that of complete denial and false implication. No evidence has also been let in from the side of defence.

6. The Trial Court, on going through the evidence of P.W.13 and 14, the two Doctors who had conducted the Post Mortem Examination over the dead body of the deceased and their report (Ext.4) as also the evidence of P.W.16-the I.O. and his inquest report (Ext.2) together with the evidence of other witnesses who had seen the deceased lying dead with injuries on her body has arrived at a conclusion that the death of the daughter of the Informant (P.W.1) was homicidal. In fact, this aspect of the case was not under challenge before the Trial Court and that has also been the situation before us.

The Doctors (P.W.13 and 14) during the Post Mortem Examination having noted the injuries over the dead body of the deceased, who was then aged about 18 years as per their assessment have deposed that the death was due to asphyxia , suffocation and throttling. They have also stated that the injuries noticed on the portion of the deceased were suggestive of an attempt of forcible sexual intercourse. All these have been also reflected in their report (Ext.4). It is their evidence that all such injuries are ante mortem in nature. On going through the evidence of P.W.13 and 14 as well as the evidence of P.W.16 and his report Ext.2, which have remained unassailed, we find no difficulty in concurring with the finding of the Trial Court that the daughter of the Informant (P.W.1) had met homicidal death.

7. Learned counsel for the Appellant inviting our attention to the depositions of P.W.1 and P.W.3 and then to the evidence of other

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witnesses submitted that the appreciation of the evidence of the above witnesses as has been done by the Trial Court is not at all just and proper. According to him when there is no direct evidence to connect the accused with the crime and the circumstances of clinching nature have not been proved from the side of the prosecution that all those being taken together complete chain of events excluding all the hypothesis other than the guilt of the accused, the conviction recorded cannot sustain. He also submitted that the evidence of P.W.1 and 3 are having the infirmities of such importance that their version cannot be believed to the extent that the accused was present even after P.W.1 left the place and the evidence of P.W.3 in particular is not acceptable that he had seen the accused leaving the field carrying an axe in his hand when he was proceeding to the field. He, therefore, submitted that the finding of guilt of the accused as has been rendered by the Trial Court cannot be sustained.

8. Learned counsel for the Respondent-State submitted all in favour of the finding returned by the Trial Court. According to him, when P.W.3 has stated that while he was going to the field, he saw the accused coming with an axe and thereafter found the dead body of his sister; the same is enough to hold the complicity of the accused as no such material has been elicited either form P.W.3 or from any other witnesses that anyone else was present in the vicinity so as to make a possible inference in that direction.

9. Keeping in view the submissions made, We have carefully read the judgment passed by the Trial Court. We have also perused the evidence of the prosecution witnesses, i.e., P.Ws.1 to 16 and have also travelled through the documents admitted in evidence and marked Exts.1 to 19.

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10. The death of the deceased having been found to be homicidal in nature, we find from the evidence of P.W.13 and 14, the two Doctors that injuries over the dead body were suggestive of the fact that there was attempt to commit rape upon the deceased. The question, therefore, now posed before us as to whether with the available evidence on record, the accused can be said to have intentionally caused the death of the deceased after making an attempt to commit the rape upon the deceased.

The Informant (P.W.1), who is the father of the deceased has stated that on that day he was watching the cows grazing in his field. When he saw the accused and two others were quarreling with each other, he intervened and persuaded them not to make noise. He states that then the accused attempted to assault him and therefore, he ran away and took his cows to a separate place. His further evidence that when the accused then came to him and picked up quarrel with him, he returned home. He is not stating that during the period, his daughter was either in the field or nearby. He has also not stated that after returning home as her daughter did not return, he had sent his son (P.W.3) to the field. It is his evidence that he having gone to the field saw his daughter lying on the ground and his son (P.W.3) has not seen the accused leaving the place with an axe. The F.I.R. story is, however, different.

Now P.W.3 the son of P.W.1 has stated that P.W.1 had told him to go to the cotton field to see his sister who had been there to collect the cotton flowers. He further states that when he reached the place, he saw the accused going away from the place with an axe and then he searched and saw the dead body. This P.W.1 had also not stated during investigation before the Police that his daughter was plucking cotton in the field when he was there in the field and left for home. P.W.3 had

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also not stated in his previous statement before police to have seen the accused going with an axe from the place where the dead body was lying. Thus, it appears that P.W.3's evidence during trial is an improvement and with such omission regarding very important factual aspect as to have been seen by him would certainly stand as a contradiction and thus as an impediment for acceptance of his evidence on that score. When it is stated by P.W.16 that he had ascertained during investigation that the deceased had gone to the cotton field with his mother in the morning, the prosecution has remained silent on that score. P.W.7 another co-villager when is stating to have seen the deceased collecting the cotton in the field on that day, he is, however, not stating as to what was the time then for which his seeing is not getting connected with the timing as to the incident. He states that he had seen the accused going towards the cotton field with an axe in his hand. As per the evidence of P.W.9, the dead body of the deceased was lying near a ditch when it was noticed by P.W.3 and the prosecution has led no evidence to show that what was the distance between the place where the dead body was lying or whether it was close to the paddy field when the I.O. (P.W.16) says to have visited the spot, he is not stating that where the spot was or which he means as spot and where actually he held the inquest over the dead body.

Even the enmity between the accused and the Informant (P.W.1) as is highlighted by the prosecution has not been proved by leading evidence citing any prior instances in stating the reason for the same.

The Trial Court when has given emphasis upon the motive for the accused, according to him, it was because of the quarrel that he had with the Informant. Even the Trial Court's view on that score is not

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conclusive when it has been noted that the motive behind the crime is somehow established in the case.

With the evidence as already discussed, we are at a loss to understand as to how the Trial Court has banked upon the last seen theory when the evidence of P.W.3 that he had seen the accused leaving the place is not believable and then when he is also not stating that in the nearby area nobody at that time was present.

Having said above, we find that the other evidence available on record are of no avail to the prosecution to establish the charge against the accused. Accordingly, We hold that the judgment of conviction and order of sentence passed by the Trial Court cannot be sustained and are liable to be set aside.

11. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 06.08.2016 passed by the learned Additional Sessions Judge, Gunupur in Criminal Trial No.31 of 2014 are hereby set aside.

Accused (Gajendra Kanjaka), who is stated to be in custody, 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.


Signature Not Verified                                          (Dr.S.K.Panigrahi),
Digitally Signed                                                     Judge.
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: ORISSA   HIGH COURT
              Himansu
Date: 19-May-2023 16:28:14

               JCRLA No.61 of 2016