Orissa High Court
Motu @ Hira Tanty vs State Of Odisha on 13 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.15 of 2023
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 23.09.2022 passed by the learned Additional
Sessions Judge, Sundargarh in Sessions Trial No.46/06 of 2017.
Motu @ Hira Tanty .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. Saroj Kumar Routray,
Advocate (Amicus Curiae)
For Respondent - Mr. S. K. Nayak,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Hearing : 06.11.2023 :: Date of Judgment: 13.11.2023
D.Dash, J. The Appellant, by filing this Appeal, from inside the jail,
has assailed the judgment of conviction and order of sentence dated
23.09.2022 passed by the learned Additional Sessions Judge,
Sundargarh in Sessions Trial No.46/06 of 2017, corresponding to
Rajgangpur P.S. Case No.78 of 2011 of of the Court of the learned
Judicial Magistrate First Class, Rajgangpur.
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The Appellant (accused) thereunder has been convicted for
commission of offence under section 302/34 of the Indian Penal Code,
1860 (in short, 'IPC') read with section 25(1-B)/27 of the Arms Act.
Accordingly, he has been sentenced to undergo imprisonment for life
and to pay a fine of Rs.10,000/- (Rupees Ten Thousand) in default to
undergo Rigorous Imprisonment for period of one (01) year for the
offence under section 302 of the IPC; to undergo rigorous imprisonment
for one (01) year and pay fine of Rs.5000/- (Rupees Five Thousand) in
default to undergo rigorous imprisonment for four months for
commission of offence under section 25(1-B) of Arms Act and undergo
rigorous imprisonment for three years and pay fine of Rs.10,000/-
(Rupees Ten Thousand) in default to undergo rigorous imprisonment for
six months for commission of offence under section 27 of the Arms Act
with the stipulation that all the sentences are to run concurrently.
Prosecution Case:-
2. During May, 2011, the construction of the road from Kundupada
to Buchukupada was going on. One Bikash Minz (P.W.4) had
undertaken to do the work as the chosen sub contractor by the principal
contractor. The construction work was being supervised by Madha
Minz, who was working as such under the contractor Bikash.
On 21.05.2011 around 8 am, when Madha was in the work site
and supervising the construction work of the road, which was also being
supervised by others and carried out by about 30 other persons engaged
for the purpose, accused Ashok came in a motor cycle from Barangkhol
forest area. He was sitting as the pillion rider in a motor cycle which
was being driven by this accused, namely, Motu @ Hira. It was exactly
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near the culvert on the road where construction work was going on,
accused Ashok got down from the motor cycle and caught hold of the
shirt color of the deceased. He then dragged him near the motor cycle.
This accused Motu @ Hira Tanty then brought out a country made pistol
from his pocket and fired at the chest of Madha Minz from a close
range. The bullet hit the chest of the Madha Minz and he instantly fell
on the ground. Accused Ashok was then stated to have brought a spade
(Gainiti) which was lying near the spot and dealt two to three blows on
the face of Madha Minz. After that this accused and said accused Ashok
left the place in the motor cycle riding which they had come there.
One Jena Kujur, who was also another supervisor engaged by the
contractor Bikash to supervise the construction of the said road lodged a
written report with the Additional Inspector-in-Charge (Addl.IIC) of
Rajgangpur Police Station on the same day around 9.30 a.m. The written
report being received by the Addl. I.I.C., he treated the same as FIR
(Ext.P-2) and registering the case, took up investigation.
3. In course of investigation, the I.O (P.W.8) examined the
informant (P.W.3). He visited the spot and prepared the spot map
(Ext.P-8). He seized sample earth, blood stained earth, 4 nos. of empty
cartridge, 3 nos. of fired bullets, one broken sun glass of the deceased, 4
nos. of hand written letters from the spot, one axe (Gainti) stained with
blood from the spot vide seizure list (Ext.P-3). He then conducted
inquest over the dead body of the deceased and prepared the report to
that effect vide Ext.P-1. He sent the dead body for post mortem
examination to Government Hospital, Rajgangpur by issuing necessary
requisition. The I.O (P.W.8) seized the wearing apparels of the
deceased, x-ray plate and fired bullet collected from the body of the
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deceased on production by the police constable, who had carried the
dead body to the morgue. On his transfer, he handed the charge of
investigation to the IIC on 12.08.2011. On 30.08.2011, the IIC,
Rajgangpur Police Station took charge of the investigation of the case
from the Addl. IIC, Somanath Jena. He (P.W.9) examined the
contractor Rabindra Singh Chawla, who had engaged Bikash Minz
(P.W.4) to carry out the work. The seized incriminating articles were
sent for chemical examination through Court.
4. Finally, on completion of investigation, the I.O (P.W.9) submitted
the Final Form placing the accused Ashok Majhi and Hira Tanty,
showing Hira Tanty as absconder to face the Trial for commission of
offence under section 302/34 of the IPC read with section 25/27 of the
Arms Act after obtaining sanction from the District Magistrate,
Sundargarh.
5. Learned JMFC, Rajgangpur on receipt of the Final Form, took
cognizance of the offence under section 302/34 of the IPC read with
section 25/27 of the Arms Act and after observing the formalities,
committed the case to the Court of Sessions as against this accused since
the other accused Ashok having remained as absconder and his presence
since could not be secured. That is how the Trial commenced by
framing the charge for the said offence against the accused persons.
6. In the Trial, the prosecution in total has examined nine (09)
witnesses. As already stated, P.W.3 is the informant, who had lodged the
FIR (Ext.2). P.W.1 was the labourer working under the contractor
Bikash Minz (P.W.4) whereas P.W.2 was the mixture machine operator
and P.W.3 was the other supervisor. The doctor who had conducted post
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mortem over the dead body of the deceased is P.W.6 whereas first
Investigating Officer is P.W.8 and the second I.O is P.W.9.
7. Besides leading the evidence by examining above the witnesses,
the prosecution has also proved several documents which have been
admitted in evidence and marked as Ext.P-1 to Ext.P-20. Out of those,
the important are the FIR, Ext.P-2, inquest report, Ext.P-1, seizure list,
Ext.P-3, Post Mortem Report, Ext.P-4 and the spot map, Ext.P-8.
8. The accused has tendered no evidence in support of his plea of
denial and false implication.
9. Learned Counsel for the Appellant (accused) submitted that
although the prosecution has proved the death of Madha Minz to have
taken place on account of gunshot injury accompanied by other external
injuries, the evidence as to the complicity of this accused in causing said
injury on his chest by means of pistol ought not to have been believed.
He submitted that the prosecution witnesses, who are highly interested,
as would appear from their deposition have made all the attempt to false
implicate this accused because of their previous grudge and enmity at
the direction of the contractor Bikash Minz (P.W.4), who was highly
aggrieved against this accused. In this connection, he has taken us
through the evidence of P.W.1, P.W.2 and P.W.3 and placed that those
are highly discrepant and greatly vary with one another insofar as the
happenings in the incident is concerned, more particularly, the role
played and the act done by this accused. He therefore submitted that the
judgment of conviction and order of sentence impugned in this Appeal
are vulnerable.
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10. Learned Counsel for the Respondent-State submitted all in favour
of the finding of guilt against the accused as has been rendered by the
Trial Court to be the author of the gun shot injury on the chest of the
deceased submitted that the evidence of those three witnesses such as
P.W.1, P.W.2 and P.W.3 is directly on the point that the accused had
fired at the chest of the deceased almost from a point black range
without any altercation or discussion. He submitted that the presence of
P.W.1 to P.W.3 under any circumstance cannot be disbelieved and the
eye witnesses account run at par with one another. According to him,
there was no such discrepancy which tell upon the credibility of the
version of any of these witnesses.
11. 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.9) and
have perused the documents admitted in evidence and marked as Ext.1
to Ext.20.
12. Before proceeding to address the rival submission, it would be
seen from the evidence of the Doctor (P.W.6), who had conducted post
mortem over the dead body of Madha Minz that he had seen an oval ring
shaped wound over the left side of the chest having ½ inch diameter
situated 2 and ½ below and slightly below the left nipple. Besides the
same, he had noticed six other external injuries on the face and other
parts of the body. Be that as it may, the cause of death according to him
was due to rupture of heart and lung's tissue on left side causing loss of
vital organ and profuse bleeding. The bullet had been recovered from
the body of the deceased. He had stated that the lacerated wound was on
the right lung of the backside and the bullet was located and found to
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have been embelled in the muscle around the spine and situated
obliquely upwards in between 4th and 5th ribs of left side when the
lacerated wound was on right kidney.
13. The prosecution case is that it is this accused, who had fired from
the pistol, bringing out from his pocket putting it on the chest of the
deceased. P.W.1 is the first eye witness to the occurrence. He has
justified his presence at the relevant time of the spot saying that he was
then working as a labourer in the construction work on the road in
question. He has stated that the deceased was helping him when he was
standing near the drum adjacent to the mixture machine used for the
purpose of mixing cement and metals etc. His evidence is that this
accused was driving the motor cycle and the other accused Ashok was
the pillion rider. As per his evidence, said accused Ashok having got
down from the motor cycle is said to have gone and caught hold of the
shirt color of the deceased. It is next stated by him that this accused
Motu thereafter got down from the motor cycle and bringing out a pistol
from his pocket started openly firing at the deceased hitting at his chest.
It is also his evidence that no sooner did this accused fire at the
deceased, the deceased shouted 'JENA MOTE ASHOK AND MOTU
MARUCHHAN, MOTE BANCHA". It has also been stated that
accused Ashok thereafter picking up a spade (Gainti) give blows on
different parts of the body of the deceased including on the face and
chest. During cross-examination, on being asked, the witnesses stated
that the pistol was a country made one and it was single round. This
witness having immediately not reacted in jumping to intervene has
given the justification that it was out of fear which we under the
circumstances are not in a position to disbelieve that when a person was
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standing with a pistol and attacking someone, it was not at all unlikely
that the onlooker at that time would never jump into the fray at the risk
of his life. The evidence of this witness finds full corroboration from the
evidence of the Doctor (P.W.6). The witness having not stated before
the police that exactly on the left side of the chest, the bullet had hit, that
in our view cannot be so viewed to discredit the testimony of the witness
as the material contradiction.
P.W.2 is the other witness. He has stated about his presence in the
work site where the incident took place being the mixture machine
operator. His evidence is that the deceased at that time P.W.1, being the
supervisor under the contractor was present. It is stated that accused
Ashok got down from the motor cycle and caught hold of the shirt color
of the deceased, when this accused Motu having got down from the
motor cycle, brought out a pistol from his pocket and fired at the
deceased from a close range for which the bullet hit on his left chest. He
states that Jena Kujur (P.W.3) being present was called out by the
deceased to come out to his rescue. It is also his evidence that accused
Ashok thereafter inflicted injuries on the deceased by means of spade
(Gainti). The witness appears to have honestly stated to have not known
the name of the accused. He states that the names were so disclosed by
P.W.3. Despite Cross-examination, we find no such material to have
been elicited to raise any doubt as to his presence at the spot. The
evidence of P.W.3 is also in the same vein. P.W.3 was another
supervisor under that contractor. He has stated that accused Ashok
having got down from the motor cycle caught hold of the shirt color of
the deceased and then this accused Motu got down and fired at the
deceased from a pistol by bringing the same from his pocket and
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therefore, the bullet hit the left side chest of the deceased whereafter
accused Ashok caused some injuries by means of spade (Gainti). The
witness being asked has stated to be having prior acquaintance with the
accused being the co-villager. He had denied the suggestion to have not
seen the incident. Evidence of all these above witnesses having
remained unshaken and found to be free from any such blemish, we are
of the considered view that the prosecution has established the charge
against the accused beyond reasonable doubt attributing him to be the
authorship of the gunshot injury on the chest of the deceased being
caused by the pistol.
14. In the result, the Appeal stands dismissed. The judgment of
conviction and order of sentence dated 23.09.2022 passed by the learned
Additional Sessions Judge, Sundargarh in Sessions Trial No.46/06 of
2017 are hereby confirmed.
(D. Dash),
Judge.
G. Satapathy, J. I Agree.
(G. Satapathy),
Judge.
Gitanjali
Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 14-Nov-2023 14:12:31
