Orissa High Court
Chittaranjan Sethi @ Kalia vs State Of Orissa on 3 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.82 of 2012
In the matter of an Appeal under section 383 of the Code of
Criminal Procedure and from the judgment of conviction and order of
sentence dated 13th July, 2012 passed by the learned Ad-hoc Additional
Sessions Judge, (FTC), Baripada in S.T. case No.24/181 of 2010-2009.
Chittaranjan Sethi @ Kalia .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- Mr. S. Sourav
Advocate (Amicus Curiae)
For Respondent- Mr. G. N. Rout,
Additional Standing Counsel
CORAM:
MR. JUSTICE D. DASH
MR. JUSTICE A.C. BEHERA
Date of Hearing :22.09.2023 :: Date of Judgment: 03.10.2023
D.Dash, J. The Appellant, by filing this Appeal from inside the Jail,
has challenged the judgment of conviction and order of sentence dated
13th July, 2012 passed by the learned Ad-hoc Additional Sessions
Judge, (FTC), Baripada in S.T. case No.24/181 of 2010-2009, arising
out of G.R Case No.100 of 2009, corresponding to Kaptipada P.S. Case
No.26 of 2009 of the Court of the learned Sub-Divisional Judicial
Magistrate (SDJM), Udala.
{{ 2 }}
The Appellant (accused) thereunder has been convicted for
committing the offence under section 302 of Indian Penal Code, 1860
(in short, 'the IPC') and he has been sentenced to undergo imprisonment
for life and pay fine of Rs.5000/- (Rupees Five Thousand), in default to
undergo Rigorous Imprisonment for 6 (six) months.
Prosecution case:-
2. On 21.04.2009, around 6 pm, Bhagaban Sethi (deceased) was
sitting on a charpoy in front of his house. The accused came there
carrying a kitchen knife (Paniki) and all of a sudden, gave cut blows on
his neck from the back and front. The son of Bhagaban namely Sarata
(Informant-P.W.1), the wife of the deceased namely, Kokilamani
(P.W.2) and the grandson (daughter's son) of the deceased (P.W.3)
having seen the incident, started shouting. On this, the accused ran away
throwing the knife at the spot. Seeing this, when the villagers rushed to
the spot, they found Bhagaban lying dead.
On that day, around 7 p.m., the son of the deceased namely Sarata
(Informant- P.W.1) lodged a written report (Ext.1) with the Officer-in-
Charge (OIC) of Kaptipada Police Station (P.W.9). The OIC (P.W.9),
having received the said written report (Ext.1), treated the same as FIR
and upon registration of the case, took up the investigation.
In course of investigation, the I.O (P.W.9) examined the
Informant (P.W.1) and other witnesses. He then visited the spot and
prepared the spot map (Ext.7). He also examined other witnesses at the
spot. The accused thereafter was arrested and his wearing apparels were
seized under seizure list (Ext.3/1). The I.O (P.W.9) then held inquest
over the dead body of the deceased and prepared the report (Ext.2) to
{{ 3 }}
that effect. He also seized some incriminating articles such as blood
stained earth and sample earth, a pair of chappal and a kitchen knife
lying there at the spot in presence of the witnesses under seizure list
(Ext.4). The dead body of the deceased was sent for post mortem
examination and the accused was forwarded in custody to the Court. The
seized incriminating articles were sent for chemical examination through
Court. On 04.07.2009, the I.O (P.W.9) being under the order of transfer
made over the charge of investigation to the Sub-Inspector (SI) of Police
namely A.C. Patra, who on completion of investigation, submitted the
Final Form, placing the accused to face the Trial for commission of
offence under section 302 of the IPC.
3. Learned SDJM, Udala, having received the Final Form as above,
took cognizance of the offence under section 302 of the IPC and after
observing the formalities, committed the case to the Court of Sessions
for trial. That is how the Trial commenced against the accused by
framing the charge for the said offence.
4. In the Trial, prosecution in total has examined nine (9) witnesses.
As already stated, P.W.1, who happens to be the son of the deceased is
the Informant and had lodged the FIR (Ext.1). The mother of P.W.1 and
who is the wife of the deceased has come to the witness box as P.W.2
and the daughter's son of the deceased has appeared as P.W.3. P.W.6
and P.W.7 the two post occurrence witnesses. The Doctor, who had held
post mortem examination over the dead body of the deceased, is P.W.8
and the Investigating Officer, who has conducted the major part of the
investigation, has come to the witness box as P.W.9.
5. Besides leading the evidence by examining the above witnesses,
the prosecution has also proved several documents which have been
{{ 4 }}
admitted in evidence and marked Ext.1 to Ext.12. Out of those, the
important are the FIR (Ext.1), Inquest Report (Ext.2), Post Mortem
Report (Ext.5), Spot Map (Ext.7) and the Chemical Examiner's Report
(Ext.12).
6. The plea of the accused is that of complete denial and false
implication. The accused, however, has not tendered any evidence in
support of his defence.
7. The Trial Court upon examination of the evidence of the
prosecution witnesses and their scrutiny has arrived at a conclusion that
this accused is responsible for the homicidal death of Bhagaban.
8. Learned counsel for the Appellant (accused) submitted that on
proper scrutiny of the evidence of P.W.1, P.W.2 and P.W.3 in the
backdrop of the narrations in the FIR (Ext.1), the Trial Court ought not
to have held that the prosecution has established the charge against the
accused beyond reasonable doubt. According to him, due scrutiny of the
evidence of P.W.1 to P.W.3, even by giving some relaxation, would
lead to a confusing state in mind as to how each of them could see the
incident by remaining present. In support of the same, he has invited our
attention to the depositions of P.W.1 to P.W.3 and also the FIR
narration. In order to further bolster his submission, he contended that
the discrepancy in the evidence of these three witnesses as to the seats of
the injuries, under the circumstance bear significance as those make the
presence of these witnesses at the spot quite doubtful. It was also
submitted that the evidence of P.W.3 being read, especially as to the role
and act played by the accused would appear to be improbable.
{{ 5 }}
9. Learned 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 contended that the discrepancies pointed out by the
learned counsel for the accused are too minor to be taken note of and
those do not shake the substratum of the prosecution case. He submitted
that all these three witnesses i.e. P.W. to P.W.3 are natural witnesses and
their presence at the spot at the relevant time cannot be doubted. He,
therefore, submitted that the Trial Court did commit no mistake in
relying upon the evidence of P.W.1 to P.W.3 in convicting the accused.
10. Keeping in view the submissions made, we have carefully read
the impugned judgment passed by the Trial Court. We have also gone
through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.9
and have perused the documents admitted in evidence and marked Ext.1
to Ext.12.
11. Insofar as the nature of death of Bhagaban is concerned, we find
that this aspect of the case was not under the challenge before the Trial
Court and that is also the situation before us.
The Doctor (P.W.8) has stated to have notice six incised wounds
over the dead body of Bhagaban which according to him were ante
mortem and the death was on account of the haemorrhage and shock
caused by the injuries. The witnesses P.W.1 to P.W.3 stated to have seen
the deceased lying dead with such injureis and that has also been the
evidence of the I.O (P.W.9) who had noted the injuries seen by him over
the dead body of Bhagaban in the inquest report (Ext.2) prepared by
him. Such evidence having remained unchallenged, we find no difficulty
in arriving at a conclusion that Bhagaban met a homicidal death.
{{ 6 }}
12. Proceeding to address the rival submission and thereby judge the
sustainability of the finding of guilt against the accused as has been
returned by the Trial Court to be the author of the injuries caused on the
deceased leading to his death, it would be apposite to first of all have a
glance over the narration in the FIR (Ext.1) lodged by P.W.1.
The FIR (Ext.1) has been lodged within an hour of the
occurrence. P.W.1 being the Informant is found to be a literate person
signing in Odia in FIR (Ext.1) and in English in the deposition given in
Court. He, himself has written the FIR. It has been stated therein that at
the relevant time, his father Bhagaban was sitting on a Charpoy in the
front Courtyard of the house wearing a lungi. It has further been stated
that at the relevant time, he, his mother (P.W.2) and nephew (sister's
son-P.W.3) were sitting near the door of the house and engaged in
discussion when the accused suddenly arrived there holding a Paniki
(kitchen knife) and assaulted Bhagaban from his back by giving three
blows and from the front by giving two to three blows. It has also been
mentioned that the parents and the elder brother of the accused were
seeing the incident by remaining on the backyard of the house. So as per
the FIR narration, P.W.1 to P.W.3 at the time of the assault upon the
deceased were sitting near the door of the house and talking with each
other when Bhagaban (deceased) was sitting on the Charpoy lying on
the front courtyard of the house. During Trial, this P.W.1 has stated that
his nephew (P.W.3) was on the veranda at the relevant time and was
engaged in preparing Chhatua and his mother (P.W.2) was changing her
saree in the house. This P.W.1 further states that at the relevant time, he
was reading inside the house. His further version is that the accused then
came and gave blows upon his father by means of kitchen knife. But as
per his version, he was then inside the house that too was reading. He
{{ 7 }}
has of course stated that hearing the shout of his nephew and mother i.e.
P.W.3 and P.W.2 respectively, he came out and saw his father lying
dead and the accused was seen by him to be running away. Thus when
the FIR version is to the effect that he at the relevant time was near the
door and gossiping with P.W.2 and P.W.3, during evidence the same has
been given a goodbye and it is said that he was inside the house. In the
FIR when stated that he was in a position to directly see the occurrence;
in the Trial, he himself says that hearing the shout of P.W.3, he came out
and saw the accused running away. Thus his evidence is not on the score
to have seen what the accused did upon his deceased father.
P.W.2 as per the evidence of P.W.1 was then also inside the house
changing her saree and that is also stated by P.W.2. But P.W.2 has stated
that when hearing the cry of P.W.3, she came out of the room, she saw
accused giving cut blows on the neck of her husband by a kitchen knife.
P.W.1 has of course stated that her mother was already there when he
came out of the house. Thus there appears to be great variance in the
version of P.W.1 when the narration in the FIR and also the evidence of
P.W.2 as to how they came out of the house are simultaneously viewed.
Furthermore, when P.W.2 has stated to have come out of the house
hearing the shout of P.W.3 while changing her saree inside the house
that was not her version during investigation, which has been proved
through P.W.9 by drawing the attention of the witness P.W.2 to such
omission which according to us under the circumstance bears some
importance and cannot be so lightly brushed aside. When both P.W.1
and P.W.2 have stated to have seen the accused to have running away
leaving the Paniki at the spot (kitchen knife), that is conspicuously
missing in the FIR (Ext.1). Even the FIR is silent that P.W.3 having
raised the cry after seeing the incident, P.W.1 and P.W.2 had come out
{{ 8 }}
of the house. In fact, as per the FIR narration, all the three were together
at one place, which is now stated differently by P.W.1 and P.W.2. The
evidence of P.W.1 and P.W.2 also reveal that inside the house they were
differently positioned, since they state that P.W.2 was then changing her
saree and P.W.1 was reading. In view of such state of affair in the
evidence of P.W.1 and P.W.2, doubt arises in mind as to their presume
and arrival at the spot.
The evidence of P.W.3 is to the effect that he was alone on the
veranda of the house and the deceased was then sitting in the charpoy
near the veranda. He does not state as to how the accused came there.
He simply states that the accused assaulted the deceased by means of
Paniki (Kitchen knife) and he then raised hullah whereafter P.W.2 came
out. He does not state that P.W.1 had ever come there. His further states
that the accused fled away throwing the Paniki (kitchen knife). During
cross-examination he again states that hearing his shout P.W.1 and
P.W.2 both came out when P.W.1 has stated to have came after P.W.2
came out as he has stated that hearing the shout of P.W.2 and P.W.3 he
came out of the house. It has also been proved by the defence that this
P.W.3 had not stated in his previous statement that on being asked by
the deceased, P.W.2 then had gone inside the house to bring water for
him which is not stated by P.W.2 and he has also admitted to have never
stated during investigation that P.W.2 was then changing saree inside
the house. Thus, we find major discrepancy in the evidence of P.W.1 to
P.W.3 as to how they came to the veranda of the house. Their evidence
do not appears to be consistent on this score when the FIR narration of
P.W.1 is run differently. With such state of affair in their evidence, we
too find that the ocular testimony of these witness as regards the seats of
injury do not tally with the evidence of the Doctor (P.W.8). When all
{{ 9 }}
these witnesses state that accused ran away leaving the Paniki (kitchen
knife), the I.O (P.W.9) is silent as to wherefrom he seized the said
Paniki. But in the spot map he has marked the place as 'K' where that
Paniki was lying when he visited the spot. That is also not stated by him
in clear terms. He simply states that he seized kitchen knife at the spot
which makes no meaning. The kitchen knife being sent for chemical
examination, there is also no opinion as to the blood group. Thus the
evidence is lacking on the score that it was found to have been stained
with the human blood, same as the group of that of the deceased. The
accused is the neighbour of the deceased. When we look at the FIR
narration that all the three witnesses P.W.1 to P.W.3 were on the
veranda and deceased was in the front courtyard of the veranda, that
somehow appears to be improbable and that the accused, would find that
as the opportune moment to cause those injuries upon the deceased so as
to do so in presence of the inmates of the house which somehow sounds
absurd. The prosecution here has not led any evidence as to what might
have been the motive on the part of the accused. At this juncture, even if
we accept for a moment that P.W.1 to P.W.3 had seen the assailant
running away leaving the Paniki (kitchen knife), in view of the narration
in the FIR that the area was engulfed with darkness, there being no
evidence that the veranda of the house and the place were charpoy of
placed were lighted, there arises doubt in mind with regards to the
identification of the culprit, who was seen by P.W.1 to P.W.3 to have
been running away.
13. On a conspectus of discussion of evidence as hereinabove, we are
of the view that the prosecution has failed to establish the charge against
the accused persons beyond reasonable doubt.
{{ 10 }}
14. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 13th July, 2012 passed by the
learned Ad-hoc Additional Sessions Judge, (FTC), Baripada in S.T. case
No.24/181 of 2010-2009 are hereby set aside.
The Appellant (accused) namely Chittaranjan Sethi @ Kalia be
set at liberty forthwith, if his detention is not required in any other case.
(D. Dash),
Judge.
A.C. Behera, J. I agree.
(A. C. Behera),
Judge.
Signature Not Verified
Gitanjali
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 06-Oct-2023 17:58:30
