In The Matter Of An Appeal Under ... vs State Of Odisha
2023 Latest Caselaw 14410 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.284 of 2011

    In the matter of an Appeal under Section 374 (2) of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and order of sentence dated 4th May, 2011 passed by the learned
    Additional Sessions Judge, Sonepur, in Sessions Case No.39/29 of
    2004.
                                     ----

        Jagannath Kalta; and                   ....        Appellants
        Dhanu Kalta

                                 -versus-

        State of Odisha                        ....        Respondent

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

                For Appellants   -      Mr.Laxmi Narayan Patel
                                        (Advocate)

                For Respondent -        Mr.G.N.Rout,
                                        Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    MR. JUSTICE G.SATAPATHY
    Date of Hearing : 01.11.2023 :          Date of Judgment : 13.11.2023

D.Dash,J. The Appellants, by filing this Appeal, have called in

question the judgment of conviction and order of sentence dated

4th May, 2011 passed by the learned Additional Sessions Judge,

Sonepur, in Sessions Case No.39/29 of 2004 arising out of G.R.

Case No.38 of 2004 corresponding to Birmaharajpur P.S. Case

CRLA No.284 of 2011 {{ 2 }}

No.20 of 2004 in the Court of the learned Sub-Divisional Judicial

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

The Appellants (accused persons) thereunder have been

convicted for committing the offence under section 302/34 of the

Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, each

of them has been sentenced to undergo imprisonment for life and

pay fine of Rs.15,000/- (Rupees Fifteen Thousand) in default to

undergo rigorous imprisonment for three (3) years for

commission of the said offence.

2. PROSECUTION CASE:-

On 04.04.2004 around 3.30 p.m., one Madhusudan Kalta

(P.W.2) lodged a written with the Officer-in-Charge (OIC-P.W.10)

of Birmaharajpur Police Station (P.S.) stating therein that on that

day, around 7.00 a.m., his younger brother, namely, Jadumani

Kalta was ploughing the lands of the elder father, namely,

Chandra Kalta. When he (P.W.2) had been to that land taking

food for Jadumani, the accused persons arrived there and

challenged him and Jadumani as to why they were ploughing

those lands when Chandra Kalta had no share over the same. He

(P.W.2) then replied that Chandra had his share over those lands

and when Chandra had already adopted his son and had given

those lands to his son in writing, they were ploughing the lands

on that right. It was stated that being not satisfied with the

CRLA No.284 of 2011 {{ 3 }}

answer, the accused persons started quarrelling with them and

threatened to fight with them, if they would go on ploughing

those lands. Being so threatened, the informant (P.W.2) and his

younger brother Jadumani returned to their house when accused

persons also left the place and proceeded towards the village. The

informant, coming to his village, on the mid part of the village,

his wife meet him and informed that the accused persons were

assaulting Chandra Kalta under a banian tree at one end of the

village. Madhusudan (informant-P.W.2) then rushed to the spot

and saw the accused persons being armed with lathi were

assaulting Chandra Kalta, who was then lying on the ground and

shouting for help. At the sight of informant (P.W.2), the accused

persons fled away and Chandra being shifted to the District

Headquarters Hospital, Sonepur, succumbed to the injuries

received by him on account of the attack from the side of the

accused persons.

The written report, being received by the OIC (P.W.10), the

same was treated as FIR (Ext.2) and upon registration of the case,

the investigation was taken up.

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

investigation, examined the informant (P.W.2) and sent him for

medical examination. The I.O. (P.W.10), having visited the spot,

prepared the spot map (Ext.8). He (P.W.10) seized two Merhas

CRLA No.284 of 2011 {{ 4 }}

lying near the spot under seizure list (Ext.1). On the next day of

the occurrence, after getting information that Chadra is dead

while undergoing treatment at DHQ Hospital, Sonepur, the I.O.

(P.W.10) reached there and held inquest over the dead body in

presence of the witnesses and prepared the report (Ext.3). He sent

the dead body of Chandra for post mortem examination by

issuing necessary requisition. The seized incriminating articles

were sent for chemical examination through Court. On

completion of investigation, the I.O. (P.W.10) submitted the Final

Form placing these accused persons to face the Trial for

commission of the offence under section 302/34 of the IPC.

4. Learned S.D.J.M., Birmaharajpur, 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 these accused persons.

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

total ten (10) witnesses during Trial. Out of them, as already

stated P.W.2 is the informant whereas P.W.4 is his wife. P.W.1 is

the Grama Rakhi and a witness to the seizure of Merha whereas

P.W.3 is a witness to the seizure of wearing apparels of the

deceased. P.W.5 is the younger brother of P.W.2. The Doctor, who

had conducted the post mortem examination over the dead body

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of the deceased is P.W.8. The I.O., at the end, has come to the

witness box as P.W.10.

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 10.

Out of those, the important are, the FIR (Ext.2), the inquest report

(Ext.3), the post mortem report (Ext.7), and the spot map (Ext.8).

7. The accused persons, having taken the plea of complete

denial and false implication, have, however, not tendered any

evidence in support of the same.

8. Mr. L.N.Patel, learned counsel for the Appellants (accused

persons) submitted that prosecution, in order to bring home the

charge against the accused persons, heavily rely upon the

evidence of P.Ws.2, 4 & 5. He pointed out as to how their

evidence appear to be highly improbable and give rise to grave

suspicion in mind as to their presence at the spot at the time of

occurrence in seeing the accused persons assaulting Chandra

(deceased). In this connection,he has also taken us through the

evidence of the Doctor, who had conducted the autopsy over the

dead body of the deceased, i.e., P.W.8. He further submitted that

the Trial Court, without proper scrutiny of the evidence on

record, has accepted the version of those three witnesses in

CRLA No.284 of 2011 {{ 6 }}

fastening the guilt upon the accused persons as to be the author

of the injuries upon Chandra leading to his death. He, therefore,

urged that the judgment of conviction and order of sentence,

impugned in this Appeal, are vulnerable.

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

Respondent-State, submitted all in favour of the guilt against

these accused persons, as has been returned by the Trial Court.

He further submitted that the evidence of P.Ws.2, 4 & 5 are

wholly believable and the way they have narrated the incident, it

cannot be said that they are falsely implicating the accused

persons on account of their enmity with them. He further

submitted that the evidence of all these three witnesses are free

from any such infirmity so as to be eschewed from consideration.

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

gone through the impugned judgment of conviction. We have

also travelled through the depositions of the witnesses examined

from the side of the prosecution (P.Ws.1 to 10) and have perused

the documents admitted in evidence marked as Exts.1 to 10.

11. The death of Chandra (deceased), as per the evidence of the

Doctor (P.W.8), who had conducted the autopsy over the dead

body of the deceased, was on account of haemorrhage caused

between the back bone and peritoneum. It has been stated by him

CRLA No.284 of 2011 {{ 7 }}

that he had noticed anterior dislocation of the back bone at

Lumbar-1 and Thoracic-12. He has stated that the bleeding

appears to have extended to L-1 to L-3. The evidence of this

witness (P.W.8) is that he had noticed two external injuries; one

abrasion over right shoulder, and one contusion of the size of 2½"

X ¼" at the back mid line and the corresponding injuries were the

anterior dislocation of the back bone particularly Lumbar-1 and

Thoracic-12 and contusion of the spinal cord at the place of

dislocation of the back bone at the above two places. The

deceased, at the time of his death, was 79 years old. It is the

evidence of the Doctor that usually at that age, the bones of a

human being remain weak and the injuries he noticed were

possible in case of fall from a height of 6 feet on hard and blunt

surface on one's back. He has stated to have not marked any

marks of lathi blow on the dead body. The only vital injury found

by him was at the spinal cord. Thus, it being the unquestioned

testimony of the Doctor (P.W.8) that the death of the deceased

were on account of the injuries on the spinal cord and that the

injuries was ante mortem in nature, we are now called upon to

ascertain as to whether the prosecution evidence is clear, cogent

and acceptable to the extent that these accused persons are the

authors of such injuries caused upon the deceased.

CRLA No.284 of 2011 {{ 8 }}

12. Coming to the evidence of P.W.2, who is the nephew of

Chandra (deceased), the son of the younger brother of Chandra, it

is seen that after narrating the incident, which took place in the

morning hour in the paddy field, he states that when he was

returning home, his wife told him that the accused persons were

assaulting Chandra. He does not state exactly as to at which place

he was told about that by his wife. When he states that hearing

from his wife, he went to the spot, he does not state the exact

location. It is also not his evidence as to what was the distance

between the place where he was told by his wife and the so-called

spot.

P.W.2, having stated that his wife had informed him that

Chandra was being assaulted by the accused persons, he says that

thereafter, even when he went, he saw the accused persons

assaulting Chandra. The time spent by P.W.2 in reaching the so-

called spot is not stated but then after having heard from the

wife, P.W.2 when went and he says to have seen the assault being

made upon the deceased by the accused persons. Thus, it appears

from his evidence that as if the assault was continuing some time

before he heard till he arrived. This part of the evidence,

however, is belied by the medical evidence. The Doctor (P.W.8)

has stated to have noticed only two external injuries and he too

states that he had not marked any marks of lathi blow on the

deceased. Furthermore, during cross-examination, P.W.2 has

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stated to have seen the accused persons dealing three to four

merha blows and his wife, having stated earlier about the assault,

few blows must have proceeded thereto. But then as already

stated, the medical evidence is silent and do not provide any

support to the said evidence of P.W.2 on the aspect of repeated

Merha blows.

The wife of P.W.2 is P.W.4. She states that she had been to

the house of one Khirabadhi in search of her son Subrat and

while returning with her son, she saw the accused persons

repeatedly dealing lathi (merha) blows upon Chandra under a

banian tree standing near the bari (threshing floor) of one Pahala.

She has further stated that when she tried to interfere, the

accused persons threatened her to kill and out of fear, while

returning home, she saw Jadumani Kalta, the younger brother of

her husband and informed him that Chandra was being assaulted

by the accused persons. Her further evidence is that Jadumani,

hearing from her, went to the spot. It is further stated that

thereafter, she met her husband (P.W.2) near the house of

Gountia of their village and then she also informed him about the

act of the accused persons. She is, however, silent that as to if her

husband, hearing from her, rushed to the spot, Moreso, her

husband (P.W.2) does not state that she was told by his wife that

the accused persons were assaulting Chandra when she meet him

near the house of Gountia.

CRLA No.284 of 2011 {{ 10 }}

When such is the evidence of P.W.4, it is found from the

evidence of the I.O. (P.W.10) that she had not stated before him

during investigation in her statement recorded under section 161

Cr.P.C. that she had seen the accused persons dealing merha

blows upon the deceased and that they had threatened her to kill

if she would go near the spot and that she had informed

Jadumani about the accused persons dealing blows upon

Chandra and also to her husband thereafter. The attention of such

omissions, which certainly, in our considered view, are material

omissions, having been drawn to the witness (P.W.4) during her

examination in Court that has been proved through the I.O.

(P.W.10).

Jadumani (P.W.5) has stated that P.W.2 met him near their

threshing flour where a tubewell had been installed and it was

told by her that the accused persons were assaulting Chandra

under the banian tree standing near the threshing flour. But as

already stated P.W.2 had not stated so at the earliest opportunity

and she has improved that only during trial. P.W.5 has stated that

hearing from P.W.4, when he went to the place, he saw the

accused persons dealing merha blows upon Chandra. His further

evidence is that at his sight, the accused persons fled away when

Madhusudan (P.W.2) arrived, Chandra was shifted. He does not

state that Madhusudan (P.W.2) was present there when the

assault was going on when as per the evidence of P.Ws.2 & 4,

CRLA No.284 of 2011 {{ 11 }}

assault was quite for some time. But the Doctor's evidence does

not provide support to the same.

On the conspectus of the analysis of the evidence let in by

prosecution, we are thus of the view that the finding of the Trial

Court that the prosecution has established the charge against

accused persons 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 order of sentence dated 4th May, 2011 passed by

the learned Additional Sessions Judge, Sonepur, in Sessions Case

No.39/29 of 2004 are hereby set aside.

Since the accused persons, namely, Jagannath Kalta and

Dhanu Kalta are on bail, their bail bonds shall 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: 14-Nov-2023 14:12:35

CRLA No.284 of 2011