Babu @ Ajit Kumar Biswal vs State Of Orissa
2023 Latest Caselaw 13490 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           JCRLA No.69 of 2011

          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 28th January, 2005 and 29th January,
    2005 respectively passed by the learned Adhoc Additional
    Sessions Judge (FT), Keonjhar in S.T. Case No.145/13 of 2003/04.
                                      ----

         Babu @ Ajit Kumar Biswal            ....        Appellant

                                  -versus-

         State of Orissa                     ....        Respondent

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

                For Appellant     -      Mr.R.N. Nayak (Advocate)

                For Respondent -         Mr.G.N. Rout,
                                         Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    MR. JUSTICE G.SATAPATHY

   Date of Hearing : 10.10.2023      : Date of Judgment : 01.11.2023

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 28th July, 2005 and 29th July, 2005 respectively

passed by the learned Adhoc Additional Sessions Judge (FT),

Keonjhar in S.T. Case No.145/13 of 2003/04 arising out of G.R.

Case No.203 of 2003 corresponding to Keonjhar Town P.S. Case

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No.49 of 2003 in the Court of the learned Sub-Divisional Judicial

Magistrate (S.D.J.M.), Keonjhar.

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302/201 of the Indian Penal

Code, 1860 (for short, 'the IPC'). Accordingly, he has been

sentenced to undergo imprisonment for life for commission of the

offence under section 302 of the IPC and undergo rigorous

imprisonment for three (3) years and pay fine of Rs.3,000/-

(Rupees Three Thousand) in default to undergo rigorous

imprisonment for six (6) months for commission of the offence

under section 201 of the IPC, with the stipulation that the

substantive sentences would run concurrently.

2. PROSECUTION CASE:-

On 19.03.2003 around 9.00 a.m., one Pyare Moharana

(P.W.7), son of Kanda Maharana orally reported before the

Inspector-in-Charge (IIC-P.W.11) of Keonjhar Town Police Station

(P.S.) that he had married Bandita Maharana sometime in the

year 2002. On 16.03.2003 around 5.00 p.m., he saw his wife

moving with the accused and, therefore, he had a quarrel with his

wife. After that, his wife again left the house and went to the

accused. Kanda Maharana, the father of Pyare (P.W.7) then went

in search of the wife of Pyare (P.W.7) in that night and he did not

return home. As father Kanda did not return home, the informant

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(P.W.7), his mother and cousin brothers together went in search

of the wife of Pyare and Kanda. However, they did not get any

clue. On 19.03.2003, around 7.00 am, Pyare (P.W.7) was informed

by one Bhimasen Naik (P.W.3), who was staying near the pond in

the vicinity of the Collectorate compound that Kanda had been

killed by someone and his dead body had been thrown in the

septic tank in the premises of District Collectorate, Keonjhar.

Getting the said information, Pyare (P.W.7) and his brother went

to the spot and saw that Kanda lying dead with injuries on his

head other places. Pyare (P.W.7) stated therein that the accused

had then absconded and he alleged that the accused killed his

father Kanda (deceased).

Said report being reduced into writing by the IIC (P.W.11),

he treated the same as FIR (Ext.17), registered the case and

directed Sub-Inspector (S.I.) of Police (P.W.10) to take up the

investigation.

3. The Investigating Officer (I.O.-P.W.10), in course of the

investigation, examined the informant (P.W.7). The I.O. (P.W.10),

having visited the spot, prepared the spot map (Ext.5). He too

held inquest over the dead body in presence of the witness and

prepared the report (Ext.6). The blood stained earth, sample earth

and two blood stained bricks were seizure by the I.O. (P.W.10)

under seizure list (Ext.7). He sent the dead body of Kanda for

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post mortem examination by issuing necessary requisition. He

(P.W.10) then seized the wearing apparels of the deceased and

accused under seizure lists; Ext.10 & 11 respectively. It was stated

that the accused, while in police custody, gave the statement to

have concealed the weapon and stated that if he would be taken

to the place, he would give recovery of the same. Pursuant to the

statement, the accused is said to have led the police and other

witnesses in giving recovery of the weapon, which was seized

under seizure list (Ext.4). The seized incriminating articles were

sent for chemical examination through Court. On completion of

investigation, submitted the Final Form placing this accused to

face the Trial for commission of the offence under section 302/201

of the IPC.

4. Learned S.D.J.M., Keonjhar, on receipt of the Final Form,

took cognizance of the said offence and after observing the

formalities committed the case to the Court of Sessions for Trial.

That is how the Trial commenced by framing the charge for the

aforesaid offences against the accused.

5. The prosecution, in support of its case, has examined in

total eleven (11) witnesses during Trial. Out of them, P.W.7 is the

informant. P.W.2 is the person, who on getting information from

one Hari went to see the dead body of the deceased. P.W.3 is the

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person, who saw the dead body of the deceased and went to the

house of the deceased to give information. P.W.4 is the wife of the

informant and daughter-in-law of the deceased. P.W.5 is the

Doctor, who had medically examined the accused whereas P.W.6

is the Doctor, who had conducted the post mortem examination

over the dead body of the deceased. P.W.9 is the younger brother

of the accused. P.W.10 is the I.O., who had submitted the Final

Form and P.W.11 is the IIC, who initially received written report

and registered the case.

6. 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 20.

Out of those, the important are, the FIR (Ext.17), the inquest

report (Ext.6), the post mortem report (Ext.2), spot map (Ext.5)

and the statement of accused (Ext.16).

7. The accused has taken the plea of complete denial and false

implication. He, however, has not tendered any evidence in

support of his defence.

8. Mr.R.N.Nayak, learned counsel for the Appellant (accused)

submitted that the prosecution case is based on circumstantial

evidence. He submitted that except the circumstance that Kanda

(deceased) met a homicidal death on account of injury received

JCRLA No.69 of 2011 {{ 6 }}

by him and some of them have stated about the relationship

between the accused and the wife of Pyare (P.W.7), there was

some dispute and ill-feeling between the accused and the wife of

of Pyare (P.W.7) on one hand and the members of the family of

Pyare including Pyare on the other, no such other circumstance

has been proved to say that by those, the finger of guilt against

the accused gets pointed. He submitted that when the

prosecution has sought to prove the recovery of the weapon at

the instance of the accused pursuant to his statement before the

police while in custody in connection with the case, the said

evidence is absolutely unbelievable. According to him, the

evidence as to the recovery of weapon of offence at the instance

of the accused have been later on manipulated. He submitted that

the circumstances, which appear in the evidence of the

prosecution witnesses, are neither incriminating nor those as

appear being joined together, complete the chain of events in

every respect that all such hypothesis other than the guilt of the

accused gets ruled out. He, therefore, submitted that the

judgment of conviction and order of sentence impugned in this

Appeal are liable to be set aside.

9. Mr.G.N.Rout, learned Additional Standing Counsel for the

Respondent-State although does not dispute the position that the

prosecution relies upon the circumstances proved through the

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evidence coming fromt eh lips of the witnesses examined on its

behalf, contended that those circumstances are directly pointing

the finger of guilt at the accused and when cumulatively viewed,

the irresistible conclusion would stand that it was the accused,

who was the perpetrator of the crime being the author of the

injuries received by Kanda (deceased), which have led to his

death.

10. Keeping in view the submissions made, we have carefully

read the impugned judgment of conviction. We have also

extensively travelled through the depositions of the witnesses

(P.W.1 to P.W.11) and have perused the documents admitted in

evidence and marked as Ext.1 to Ext.20.

11. Prosecution evidence as regards the nature of death of

Kanda to be homicidal was not under challenge during the Trial

nor it is so before us. The Doctor (P.W.6) has narrated in detail as

to have seen around nine such external injuries on different parts

of the body of Kanda. His positive evidence is that all such

injuries were ante mortem in nature and those had appeared

within seventy-two hours from the time of his examination.

Stating the chopped wound of size 10 cm X 2.5 cm X 5 c.m. over

left side on lateral aspect 3 cm below the left ear on

submandibular area and the chopped wound over the head on

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left side on lateral aspect of parietal and occipital region to be

grievous and fatal, he has gone to state that those injuries were

possible by sharp cutting heavy weapon. It is his evidence that

the death was due to external haemorrhage as well as brain injury

and the haemorrhage was due to cutting of the jugular vein and

external carotid artery. He had the occasion to examine the

chopper (M.O.I) and two bricks (M.O.II & III) being sent by the

I.O. (P.W.10). it has been stated and reported under Ext.3 that the

chopped wound over the left side of the neck of lateral aspect was

possible by that chopper and the lacerated wound over the head

on right side occipital regional, which he had noticed during post

mortem examination was possible by the seized two bricks.

With the above overwhelming evidence on record, we find

no difficulty to say that Kanda met a homicidal death.

12. Now comes the question as to the proof of other

incriminating circumstances as against this accused. In order to

ascertain those, we propose to look at the evidence of the

prosecution witnesses one by one.

P.W.3 is the witness, who supplies drinking water to

different hotels situated near the Collectorate compound. He has

stated that when on that day, while going to attend the call of

nature within the premises of Collectorate and was sitting to ease,

he found large number of flies coming out of the septic tank and

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out of curiosity, he went there and detected the dead body of

Kanda inside that tank. Thus, said evidence of P.W.3 being not

challenged, the same coupled with other evidence including that

of the I.O. (P.W.10) and other witnesses to the recovery of the

dead body, the recovery of the dead body from inside the septic

tank situated in the Collectorate compound, stands proved.

P.W.4 has stated that on the day of occurrence, when he

was returning from her work place, accused stopped her and

attempted to abduct her. At that time, her husband arrived and

saved her and then she, with her husband to their house. She has

stated that on that day, around 9.00 p.m., one Hari Biswal

informed her that accused and the deceased-Kanda were

quarrelling. That Hari Biswal has been examined as P.W.9. He

has not supported the prosecution and he, being cross-examined

from the side of the prosecution with the permission of the Court,

except throwing the suggestion to him that he had stated before

the I.O. (P.W.10) in course of investigation to have seen the

accused and the deceased quarrelling etc. which he has denied,

nothing has been elicited.

The I.O.(P.W.10), having stated that Hari (P.W.9) had told

before him to have seen the accused and the deceased

quarrelling, that cannot be taken as a circumstance incriminating

as against the accused.

JCRLA No.69 of 2011 {{ 10 }}

P.W.7, who is the son of the deceased when has stated to

have informed by Bhimsen Naik (P.W.3) that accused had killed

his father and concealed him in a septic tank in the Collectorate

premises, we have already discussed the evidence of P.W.3.

13. From the evidence of P.W.7, we find no other circumstance

to have emerged. Next comes the evidence of P.W.8 through

whom the prosecution has sought to prove the confession of the

accused that he had intentionally caused the death of Kanda and

to have concealed the dead body of Kanda as well as the weapon

in a particular place.

P.W.8 has stated that on 16.03.2003 around 8.00 a.m., when

he was passing through the road near the Collectorate

compound, he noticed the presence of police and others. So, he

went there and saw the police interrogating the accused about the

murder. He states that in course of that, the accused disclosed

that he had killed Kanda by means of an instrument and also

stated to have kept the dead body in a well and disclosed that he

had kept the weapon on the window slab of the DRCS Office. The

evidence of P.W.8 as to the confession is not admissible in the eye

of law in view of the bar contained in Section 25 of the Evidence

Act.

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14. Furthermore, we find that when the dead body having been

found out from inside the tank, the matter had been reported to

the police and this witness when reached near the police, the

dead body had already been discovered much prior to that. But,

then the evidence of P.W.8 is that the accused told to have kept

the dead body in a well, which is factually found to be incorrect.

He further states that the accused then led them to the place of

concealment of the weapon and showed the exact place of

concealment. When he states no, he does not state as to

concealment of what. It makes no sense and means nothing. It is

his evidence that the weapon of offence was not visible to the

ground but then what kind of weapon it was is not stated by

P.W.8. He has further stated that the accused when climbed up to

the window slab and brought out the window, he again does not

state as to what kind of weapon that the accused brought out and

gave to the police, which was seized. This, having been stated to

have taken place on 16.03.2003, the I.O. (P.W.10) says to have

arrested the accused on 20.03.2003 in specifically stating that on

20.03.2003 having searched, he arrested the accused from nearby

Sisupal jungle at about 8.00 a.m. The evidence of P.W.10 is

completely belies the version of P.W.8. Thus, without any further

analysis, we are not in a position to accept the evidence of the

prosecution that the accused had led the police and others to give

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recovery of any weapon when it has been stated by the I.O.

(P.W.10) that after the arrest of the accused, he confessed to have

killed Kanda (deceased) by a chopper and then disclosed to have

concealed that chopper on the window slab of the DRCS Office

and accordingly, led the I.O. (P.W.10) and others to the place in

giving recovery of the same, which is not the evidence of P.W.8.

All these being the evidence on record, we find the

prosecution to have not at all established the charges against the

accused beyond reasonable doubt through clear, cogent and

acceptable evidence.

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

conviction and order of sentence dated 28th January, 2005 and 29th

January, 2005 respectively passed by the learned Adhoc

Additional Sessions Judge (FT), Keonjhar in S.T. Case No.145/13

of 2003/04 are hereby set aside.

Since the accused, namely, Babu @ Ajit Kumar Biswal, is on

bail, his bail bonds shall stand discharged.

(D. Dash), Judge.

                             G.Satapathy, J.    I Agree.

                                                                 (G.Satapathy),
Signature Not Verified                                             Judge.
Digitally Signed
Signed by: BASUDEV NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
           Basu
Date: 02-Nov-2023 17:18:01

                  JCRLA No.69 of 2011