Orissa High Court
Ranjit Kumar vs State Of Orissa on 1 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.252 of 2011
In the matter of an Appeal under Section 374 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction
and the order of sentence dated 4th February, 2011 passed by the
learned Additional Sessions Judge, Rourkela in Sessions Trial
Case No.85 of 2010.
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Ranjit Kumar .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Ms. Sevati Soren
(Advocate)
For Respondent - Mr. G.N. Rout,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Hearing : 06.10.2023 : Date of Judgment : 01.11.2023
D.Dash,J. The Appellant, by filing this Appeal, has called in
question the judgment of conviction and the order of sentence
dated 4th February, 2011 passed by the learned Additional
Sessions Judge, Rourkela in Sessions Trial Case No.85 of 2010
arising out of G.R. Case No.390 of 2010 corresponding to
CRLA No.252 of 2011
Brahmani Tarang P.S. Case No.32 of 2010 of the Court of the
learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Panposh.
The Appellant (accused) thereunder has been convicted for
committing the offence under section 302 of the Indian Penal
Code, 1860 (for short, 'the IPC'). Accordingly, he has been
sentenced to undergo imprisonment for life for commission of the
said offence.
2. Prosecution Case:-
On 14th March, 2010 around 11.30 a.m., Durjan Kumbhar
(deceased) was dragged by accused Ranjit Kumar to his house so
as to be taught a lession. Thereafter, it is said that the accused
dealt blows on the back side neck of Durjan (deceased) by means
of Budia (axe), which resulted his fall. The villagers, having
gathered, the accused took to his heels by carrying that Budia
with him. Somehow when the villagers successfully foiled that
move, the accused entered into his house.
The matter was reported with the Sarpanch (P.W.1),
namely, Laxman Lakra. He reached the spot around 12.30 p.m.
and saw Durjan lying in front of the hosue of Nira Kamar.
Thereafter, Bilambar Singh (P.W.8) and Laxman (P.W.1) lodged a
written report with the Inspector-in-Charge (IIC) of Brahmani
Tarangi Police Station (P.S.). Receiving the said report, the IIC
CRLA No.252 of 2011
(P.W.17) treated the same as the FIR (Ext.1) and upon registration
of the case, took up the investigation.
3. The Investigating Officer (I.O.-P.W.17) commencing the
investigation recorded the statement of the informant (P.W.8) and
other witnesses. The I.O. (P.W.17) then having visited the spot,
has prepared the spot map (Ext.12). The I.O. (P.W.17) had held
inquest over the dead body of the deceased and prepared the
report to that effect (Ext.2). The blood stained earth and sample
earth were seized under seizure list (Ext.6). Then, the I.O.
(P.W.17), having arrested the accused from his house, seized the
blood stained weapon under seizure list (Ext.5). The dead body of
the deceased was sent for postmortem examination by issuing
necessary requisition. The wearing apparels of the deceased and
the accused were seized under Ext.3 and Ext.10 respectively. The
seized incriminating articles were sent for chemical examination
through Court. On completion of the investigation, the I.O.
(P.W.17) submitted the Final Form placing this accused to face the
Trial for commission of the offence under section 302 of the IPC.
4. Learned S.D.J.M., Panposh, on receipt of the Final Form,
took cognizance of said offence and after observing the
formalities, committed the case to the Court of Sessions. That is
how the Trial commenced by framing the charge for the aforesaid
offence against the accused.
CRLA No.252 of 2011
5. In the Trial, the prosecution, in support of its case, has
examined in total seventeen (17) witnesses. As already stated, the
informant, who had lodged the FIR (Ext.1) is P.W.8 and P.W.1 is
the Sarpanch, who accompanied the informant to the P.S. in
lodging the FIR. P.Ws.2 & 3 are two police personnels and the
witnesses to the seizure. P.W.4 is the nephew of the deceased
whereas P.W.6 is the brother-in-law of P.W.5 and also an eye
witness and P.W.12 is the younger brother of the deceased and
that P.W.5 is a co-villager and an eye witness to the occurrence.
P.W.7 is also a co-villager and P.Ws.9 and 10 are the father and
elder brother the deceased respectively. P.W.14 is the Scientific
Officer. The Doctor, who had conducted the the post mortem
examination over the dead body of the deceased, is P.W.16. The
I.O., at the end, has been examined as P.W.17.
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 16.
Important of those, are the FIR (Ext.1); inquest report (Ext.2); the
post mortem report (Ext.11); and the spot map (Ext.12). The
biological and serological examination report had been admitted
in evidence and marked Ext.14.
6. The accused has taken a plea of complete denial and false
implication. The accused, in his statement under section 313
CRLA No.252 of 2011
Cr.P.C. has taken a specific plea that a false case has been foisted
against him. He, however, has not tendered any evidence in
support of such plea.
7. The Trial Court, having gone through the evidence and
upon their scrutiny, while finding Durjan Kumbha to have met
homicidal death, has held this accused guilty for commission of
the offence under section 302 of the IPC in intentionally causing
the death of Durjan. Accordingly, he has been sentenced as afore-
stated.
8. Ms.Sevati Soren, learned counsel for the Appellant
(accused) submitted that the Trial Court, without proper scrutiny
of the evidence of P.Ws.5 & 6, which varies from one another on
material aspect and particulars of the case and as they present
completely different pictures of the occurrence especially as to the
role played by the accused and the act done, has committed the
error in relying upon their version in saying that the prosecution
has proved the charge against the accused beyond reasonable
doubt. In support of the same, he has taken us through the
depositions of P.Ws.5 & 6. In placing that, when both are said to
have been together at the relevant time, he dissected before us as
to how the version of P.W.5 as regards the incident of assault is in
variance with the version of P.W.6. According to him, the
evidence of P.Ws.5 & 6, being wholly irreconcilable, the Trial
CRLA No.252 of 2011
Court ought not to have relied upon the same to record the
finding of guilt as against the accused as to have assaulted the
deceased by means of a Budia in causing his death. He submitted
that upon simultaneous reading of the evidence of P.Ws.5 & 6,
genuine doubt would arise in mind as to their presence at the
relevant time and seeing the incident and what they have
asserted is not believable. Therefore, he urged that the impugned
judgment of conviction and order of sentence impugned in this
Appeal cannot be sustained.
9. Mr.G.N. Rout, learned Additional Government Advocate
for the Respondent-State submitted that the evidence of P.Ws.5 &
6 although are in variance on some phase of the incident, yet such
variance does not touch upon their credibility in so far as the role
played and the act done by the accused upon the deceased is
concerned, which they have echoed. According to him, when
both have stated to seen the accused assaulting the deceased by
means of Budia on the back side of his neck, which ultimately led
to his death and that receive corroboration from the evidence of
the Doctor (P.W.16), who had conducted the autopsy over the
dead body of the deceased that the injuries are possible by the
Budia, which he had the occasion to examine at the request of the
I.O. (P.w.17), the conviction of the accused for committing the
offence under section 302 of the IPC must sustain.
CRLA No.252 of 2011
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.17) and have perused the documents admitted in
evidence and marked as Ext.1 to Ext.16.
11. Before going to address the rival submission and find out
the sustainability of the finding of guilt against the accused, as
has been returned by the Trial Court in ascertaining as to how far
the prosecution has proved the charge against the accused, some
background facts emerging from the evidence are required to be
placed for proper appreciation.
P.W.1 is the Sarpanch, who was informed by the villagers
about the occurrence. He has stated that receiving the telephone
call from the villagers that the deceased had been murdered by
the accused, he went to the spot and saw the dead body of Durjan
lying in front of the house of his brother. This part is completely
hearsay. He has further stated that the accused, after the incident
was fleeing away from the village, but as the villagers did not
allow him to leave, he entered into his house. Having said so, he,
however, is not stating to have seen the accused in his house. It is
he (P.W.1), with the informant (P.W.8) had gone to the P.S. and
informed the matter in writing vide Ext.8. The informant (P.W.8)
has stated to have been told by the villagers that accused had
CRLA No.252 of 2011
murdered the deceased by Kuradhi (Budia-Axe). He, however,
does not state to have ever gone to the exact place where the dead
body of Durjan was lying even after hearing from the villagers,
but he states to have gone with Sarpanch (P.W.1) to the P.S. and
lodged the FIR (Ext.1). Be that as it may, both have not seen the
occurrence nor the villagers causing obstruction for the accused
from fleeing away.
From the side of the prosecution, the nephew of Durjan
(deceased) has been examined as P.W.4. He says that when he
reached the spot, he found the deceased lying on the ground with
cut injury on his neck. He has also stated to have found the
accused to be decamping being armed with Budia and he could
spot him as he threatened to kill and then went inside his house.
It is his further evidence that two persons, namely, Sukra and
Jayapal, whom he also terms to be the accused persons to be there
inside the house of the accused Ranjit. So, when P.W.4 says that
there was involvement of two others, namely Sukra and Jayapal
in the said incident with the present accused, the Sarpanch
(P.W.1) and the informant (P.W.8) do not at all state so. Now,
when we come to the evidence of P.W.5, we find him to have
stated that on that day around 11.30 a.m., he with P.W.6 were
talking bath near the well and they saw this accused dragging the
deceased from the road and taking him near his house.
CRLA No.252 of 2011
P.W.6 has stated that when he with his brother-in-law
(P.W.5) were near the well, they saw the present accused taking
the deceased near his house by dragging. So, we get the evidence
of both these witnesses that they had seen the accused dragging
the deceased towards his house. The situation being unusual,
they do not say to have either asked anyone of them the reason
for the same, nor as the co-villagers did make any attempt to free
the deceased the clutch of the accused. Such conduct of P.Ws.5 &
6 to continue with bathing despite seeing a known man being
dragged by another known person and even not raising any
shout/cry drawing attention of others in saving the situation, tell
much upon the credibility of the witnesses especially, as they hail
from rural background where such reaction takes place
spontaneously. The conduct of these two witnesses in seeing such
incident of dragging the deceased by the accused remained
wholly non-responsive. The natural human instinct is wanting
when they do not say to have either protested to it or asked the
accused about the reason of doing so. Be that as it may more
particularly is that P.W.5 when states that Sukra Mahali and
Jayapal were in the house of accused Ranjit, it was that Sukra,
who told accused Ranjit to teach a lession to the deceased and
thereafter accused Ranjit said to have brought out a Budia from
his house and dealt two blows on the backside neck of the
deceased. P.W.5 does not state that Sukra and Jayapal had ever
CRLA No.252 of 2011
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come out of the house of the accused and so stated at any given
point of time.
P.W.6 has, however, given a different picture when he was
stated that Sukra and Jayapal, who are inside the house of
accused Ranjit, came and caught hold the hands of the deceased
and then Sukra told the accused to finish him whereafter accused
Ranjit dealt blows by Budia on the backside of the neck of the
deceased. When P.W.5 states that accused Ranjit went inside the
house and brought out a Budia and thereafter dealt the blows,
P.W.6 does not state so. P.W.6 gives a different picture of the
incident that Sukra and Jayapal caught hold of the deceased and
thereafter accused Ranjit, being asked, gave the Budia blows on
the backside neck of the deceased by bringing it from his house.
Fact remains that Sukra and Jayapl have not been arraigned as
accused persons and it is not explained on the face of evidence of
P.W.6, which shows the tendency of the prosecution in making
the endeavour to save those two from the arena. When P.Ws.1 &
8 told that the accused was inside the house and so also Sukra
and Jayapal, the I.O. (P.W.17) does not state to have found all the
three in the house. He has also not stated to have arrested the
accused from his house. P.W.5 has further stated that when the
local police arrived, this accused Ranjit, his wife and Sukra as
well as Jayapal were inside the house and police took them. P.W.6
when has stated about the role of Sukra and Jayapal, that is
CRLA No.252 of 2011
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conspicuously missing in the evidence of P.W.5. Thus, we find
the evidence of P.Ws.5 & 6 to be in such variance as regards the
exact happenings in the incident, which according to us, even
being viewed with other evidence is not reconcilable When P.W.5
has suppressed the role of Sukra and Jayapal, P.W.6 has come out
to say about that. Furthermore, doubt arises when the I.O.
(P.W.17) does not state to have seen this accused Ranjit in his
house and so also P.Ws.1 & 8 do not say so and the I.O. (P.W.17)
is also not stating to have arrested this accused from his house.
Said discrepancies in the evidence of P.Ws.5 & 6 as to the
happenings of the incident and more particularly, the role of two
others, namely, Sukra and Jayapal is being suppressed by P.W.5
and the investigation in that direction is also silent, we are of the
considered view that it would be safe to rely upon the evidence of
P.Ws.5 & 6 as to the role played and the act done by the accused.
12. On the conspectus of the analysis of the evidence let in by
prosecution, we are of the view that the finding of the Trial Court
that the prosecution has established the charge against accused
Ranjit Kumar beyond reasonable doubt by leading clear, cogent
and acceptable evidence cannot be sustained.
13. In the result, the Appeal is allowed. The judgment of
conviction and the order of sentence dated 4th February, 2011
CRLA No.252 of 2011
- 12 -
passed by the learned Additional Sessions Judge, Rourkela in
Sessions Trial Case No.85 of 2010 are hereby set aside.
Since the accused (Ranjit Kumar) is on bail, his bail bonds
stand discharged.
(D. Dash),
Judge.
G. Satapathy, J. I Agree.
(G. Satapathy),
Judge.
Basu
Signature Not Verified
Digitally Signed
Signed by: BASUDEV NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Nov-2023 17:18:01
CRLA No.252 of 2011
