Premananda Nag @ Harijan @ vs State Of Orissa
2023 Latest Caselaw 11846 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           JCRLA No.83 of 2012

          In the matter of an Appeal under Section 383 of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and the order of sentence dated 25th September, 2010 passed by
    the learned Additional Sessions Judge, Nabarangpur, in C.T.
    No.78 of 2008.
                                 ----

         Premananda Nag @ Harijan @          ....         Appellant
         Buchu Nag @ Harijan

                                  -versus-

         State of Orissa                     ....        Respondent

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

                For Appellant     -     Mrs.Prativa Mishra and
                                        Mr.Prasanta Ku. Mishra-I
                                        (Advocates)

                For Respondent -        Mr.P.K. Mohanty,
                                        Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    MR. JUSTICE A.C.BEHERA

   Date of Hearing : 21.09.2023       : Date of Judgment:03.10.2023

D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has

called in question the judgment of conviction and the order of

sentence dated 25th September, 2010 passed by the learned

Additional Sessions Judge, Nabarangpur, in C.T. No.78 of 2008

JCRLA No.83 of 2012

arising out of G.R. Case No.216 of 2008 corresponding to

Nabarangpur P.S. Case No.63 of 2008 of the Court of the learned

Sub-Divisional Judicial Magistrate (S.D.J.M.), Nabarangpur.

The Appellant (accused) thereunder has been convicted for

committing the offence under sections 302 of the Indian Penal

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

sentenced to undergo imprisonment for life and pay fine of

Rs.20,000/- (Rupees Twenty Thousand) in default to undergo

rigorous imprisonment for one (1) year for commission of the

offence under section 302 of the I.P.C.

2. Prosecution Case:-

On 14.04.2008 around 1.30 a.m., when Naresh Garada

(deceased) and his friend Sujit Kumar Harijan (P.W.2) were

witnessing, an opera show by standing in front of the bettel shop

of one Damu Soura (P.W.10), the accused all of a sudden, dealt a

blow by means of kati on the chest of Naresh resulting his fall

and leading to unconsciousness. Naresh, being taken by the

villagers to the Hospital, was declared dead. The matter

thereafter being reported in writing by one Karesh Garada

(P.W.1) during that night to the Assistant Sub-Inspector (ASI) of

Police of Dangarvega Police Outpost, the facts were entered in the

Station Diary Book maintained at the said Police Outpost. The

A.S.I. of Police then sent the same to Nabarangpur Police Station

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(P.S.) for registration of the case. The Sub-Inspector (S.I.) of Police

then in-charge of the said P.S., in the absence of the Inspector-in-

Charge, registered the case and took up investigation.

3. In course of investigation, the Investigating Officer (I.O.-

P.W.22) examined the Informant (P.W.1) and recorded his

statement under section 161 of Cr.P.C. He then visited the spot

and prepared the spot map (Ext.9). He also seized the blood

stained earth and sample earth from the spot in presence of

witnesses under seizure list (Ext.3). The iron kati, which was

stained with blood was seized from a drain running near the spot

under the seizure list (Ext.4). The I.O. (P.W.22) held inquest over

the dead body of the deceased in presence of the witnesses and

prepared the report (Ext.2) to that effect. He also sent the dead

body of the deceased for post mortem examination by issuing

necessary requisition. The accused was arrested and his wearing

apparels were seized under the seizure list (Ext.6). The I.O.

(P.W.22) also prayed before the learned S.D.J.M., Nabarangpur

for recording the statement of Sujit Kumar Harijan (P.W.2) under

section 164 of the Cr.P.C. and that was so recorded by the learned

J.M.F.C., Nabarangpur. The seized incriminating articles sere sent

for chemical examination through Court. The I.O. (P.W.22), on

completion of the investigation, submitted the Final Form placing

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the accused to face the Trial for commission of the offence under

section 302 of the IPC.

4. Learned S.D.J.M., Nabarangpur, 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.

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

total twenty-three (23) witnesses during Trial. As already stated,

P.W.1, is the Informant, who had lodged the FIR (Ext.1). P.Ws.2, 6

& 7 are the persons presented at the relevant time at the spot and

were witnessing the opera show. P.Ws.14, 16 & 21 are the eye

witnesses to the occurrence whereas P.Ws.4, 5, 8, 9, 12 & 13 are

the post occurrence witnesses. The Doctor, who had conducted

the autopsy over the dead body of the deceased is P.W.23 and the

I.O has been examined as P.W.22.

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 12.

Out of those; important are the FIR (Ext.1); inquest report (Ext.2);

post mortem report (Ext.7); and the spot map (Ext.9).

JCRLA No.83 of 2012

6. The accused, having taken the plea of complete denial and

false implication, has, however, not tendered any evidence in

support of the same.

7. The Trial Court, on going through the evidence let in by the

prosecution and upon their analysis, having held the nature of

death of Naresh to be homicidal, has held the prosecution to have

proved the charge against the accused beyond reasonable doubt.

Accordingly, the accused has been convicted for commission of

under section 302 of the IPC and has been sentenced as afore-

stated. In fact, there was no challenge from the side of defence as

to the nature of death of Naresh and that is also the position

before us.

8. Mrs.P.Mishra, learned counsel for the Appellant (accused)

submitted that the Trial Court, having not properly appreciated

the evidence of the prosecution witnesses, has erroneously held

the accused to have intentionally caused the death of the

deceased by giving a knife blow on his chest. She further

submitted that the evidence of the prosecution witnesses, if read

simultaneously, would reveal that some happenings prior to the

exact blow said to have been given by the accused upon the chest

of the deceased are being suppressed when it is also not stated as

to what was the motive for the accused in doing so. In view of all

JCRLA No.83 of 2012

these, she urged that the judgment of conviction and order of

sentence impugned in this Appeal cannot be sustained.

9. Mr.P.K. Mohanty, learned Additional Standing Counsel for

the Respondent-State, submitted all in favour of the finding of

guilt against the accused, as has been returned by the Trial Court.

He submitted that the evidence of the eye witnesses are very clear

on the point that the accused, all of a sudden, dealt a severe blow

by means of a knife, a sharp cutting weapon, on the chest of the

deceased and that has caused instantaneous death and as such

blow given by force has touched the left lung, as has been stated

by the Doctor (P.W.23) causing massive intra thoracic

haemorrhage and bleeding leading to shock and death, the

accused has been rightly held guilty of commission of the offence

under section 302 of the IPC.

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 23) and have perused

the documents admitted in evidence marked as Exts.1 to 12.

11. In order to address the rival submission and ascertain the

sustainability of the finding of conviction recorded against the

accused for committing the murder of Naresh, this Court is thus

called upon to scrutinize the evidence on record.

JCRLA No.83 of 2012

P.W.6 has stated that in that night, an opera show was

going in the village and he had been to see that show. He has

further stated by being called by Sujit (P.W.2) in stating that

accused has stabbed Naresh, he went there and saw Naresh lying

with such stab injuries. He has further stated that Naresh was

then shifted in a motorcycle to the Hospital.

P.W.2 has stated that he along with Naresh had been to

witness the opera show in that night and when they were

witnessing the opera by standing on the road side near the tea

stall, the accused suddenly came and dealt a blow by means of a

knife on the chest of Naresh and then taking away that knife, the

accused fled away from the spot. It has also been stated by him

that when he culled out, others came and then called others and

finally, Naresh, being shifted to the Hospital, was declared dead.

The witness, being cross-examined, we find nothing important

has been brought out to disbelieve his presence with the deceased

at the relevant time. The deceased, being there in the opera show,

is not only stated by P.W.2 but that also find corroboration from

the evidence of P.W.6. This P.W.2 is not stated to be in any way

inimically disposed of towards the accused.

P.W.14 is another witness, who states to have been selling

balloons in that are where opera show was going on. He further

states that having heard some hullah when he turned towards

that side wherefrom, he could see the accused holding a knife on

JCRLA No.83 of 2012

his hand and he himself having rushed to the exact place, was

told by P.W.2 that the accused had stabbed Naresh. This P.W.14

has also stated to have seen Naresh with such stab injury on his

chest when he has also stated that Naresh thereafter was shifted

to the Hospital.

P.W.16 is another witness, who has stated that when the

deceased was witnessing the opera show, the accused all of a

sudden came and dealt a knife blow on the chest of the deceased

and left the place. He has denied the suggestion to have not seen

the occurrence. We find nothing more to have been elicited from

this witness in raising any doubt in our mind as regards their

presence at the spot at the relevant time and seeing the incident.

This has also been the evidence of P.W.21. Even though it has

been brought out from P.W.21 that there was no street light but as

we find from the evidence that then the opera was so going on

and P.W.2 was standing close to the deceased when he was

stabbed by the accused. Furthermore, nothing has surfaced to

entertain any suspicion in mind that he, having not seen the

incident, is roping the accused. Therefore, we are of the

considered view that the Trial Court did commit no error in

concluding that the accused is the author of the injuries received

by Naresh when the ocular testimony of these witnesses find due

corroboration from the evidence of the Doctor (P.W.23).

JCRLA No.83 of 2012

On a conspectus of analysis of the evidence hereinabove,

this Court finds that the prosecution has proved the charge

against the accused that he has committed the murder of Naresh

beyond reasonable doubt.

12. In the result, the Appeal stands dismissed. The judgment of

conviction and the order of sentence dated 25th September, 2010

passed by the learned Additional Sessions Judge, Nabarangpur,

in C.T. No.78 of 2008 are hereby confirmed.

Since the Appellant (accused), namely, Premananda Nag @

Harijan @ Buchu Nag @ Harijan is on bail, he is directed to

surrender before the Trial Court forthwith to serve out the

sentence.

(D. Dash) Judge

A.C.Behera, J. I Agree.

(A.C.Behera) Judge

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 06-Oct-2023 10:34:26

JCRLA No.83 of 2012