Kartikeswar Jani vs State Of Orissa
2023 Latest Caselaw 12151 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           JCRLA No.94 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 order of sentence dated 27th July, 2011 passed by the learned
    Sessions Judge, Phulbani, in Sessions Trial No.94 of 2010.
                                      ----

         Kartikeswar Jani                    ....        Appellant


                                  -versus-

         State of Orissa                     ....        Respondent

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

                For Appellant     -      Mr.T.K.Sahoo (Advocate)

                For Respondent -         Mr.P.K.Mohanty,
                                         Additional Standing Counsel
   CORAM:
   MR. JUSTICE D.DASH
   MR. JUSTICE A.C.BEHERA
   Date of Hearing : 29.09.2023      : Date of Judgment:09.10.2023

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

called in question the judgment of conviction and order of

sentence dated 27th July, 2011 passed by the learned Sessions

Judge, Phulbani, in Sessions Trial No.94 of 2010 arising out of

G.R. Case No.24 of 2010 corresponding to Chakapad P.S. Case

No.4 of 2010 in the Court of the learned Judicial Magistrate First

Class (J.M.F.C.), G. Udayagiri.

JCRLA No.94 of 2012 {{ 2 }}

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302/34 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.10,000/- (Rupees Ten Thousand) in default to undergo

rigorous imprisonment for six (6) months.

2. PROSECUTION CASE:-

On 03.02.2010, Biranchi Mallik (deceased), who happens to

be the paternal uncle of Rabindra Mallik (informant-P.W.1) of

Village Gistikhol, having gone to hat (market), did not return till

the next morning. On 4.2.2010 around 11.00 a.m. when the

informant Rabindra (informant-P.W.1) when he was in his house,

Seema and Purna Chandra Mallik (P.W.14) came and informed

that some unknown persons, having assaulted the deceased by

sharp cutting weapon had murdered him and the dead body had

been thrown on the side of the road, which they had seen. The

informant (P.W.1) immediately rushed to the place where the

dead body was lying and few others then had also accompanied

the informant (P.W.1). A written report to the above effect being

lodged with the Assistant Sub-Inspector (A.S.I.) of Police attached

to Chakapada Police Station (P.S.), who, in the absence of the

Officer-in-Charge (O.I.C.) of police of that P.S., received the same

and after registering the case, took up the investigation.

JCRLA No.94 of 2012 {{ 3 }}

The Investigating Officer (I.O.-P.W.18), in course of the

investigation, examined the informant (P.W.1). The I.O. (P.W.18),

having visited the spot, prepared the spot map (Ext.13). He too

held inquest over the dead body in presence of the witness and

prepared the report (Ext.2). He sent the dead body of Biranchi for

post mortem examination by issuing necessary requisition. Few

more witnesses were examined and incriminating articles were

also seized. It was stated that the accused, while in police

custody, gave the statement to have concealed the weapon and

stated that if he would be led to the place, he would give recovery

of the same. Pursuant to the statement, accused Kartikeswar is

said to have led the police and other witnesses in giving recovery

of the weapon, which was seized with his wearing apparels

under seizure list (Ext.6). The seized incriminating articles were

sent for chemical examination through Court. On 27.02.2010, the

I.O. (P.W.18) handed over the charge to the IIC (P.W.19), who on

completion of investigation, submitted the Final Form placing

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

section 302/34 of the IPC.

3. Learned J.M.F.C., G. Udayagiri, 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.

JCRLA No.94 of 2012 {{ 4 }}

That is how the Trial commenced by framing the charge for the

aforesaid offences against the accused.

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

total twenty (20) witnesses during Trial. Out of them, P.W.1 is the

informant. P.W.5 is the wife of the deceased. P.W.2 is the

Sarpanch of Sahali Gram Panchayat and a co-villager of the

informant. P.W.3 is witness to the inquest. P.W.4 is a witness to

the seizure of weapon of offence. P.W.9 is cousin brother of the

accused and P.W.12 is the witness to leading to discovery.

P.Ws.14 & 20 are the co-villagers of the complainant. The Doctor,

who had conducted the post mortem examination over the dead

body of the deceased has been examined as P.W.16 and the first

I.O., who had conducted major part of investigation is P.W.18

whereas the I.O., who had submitted the Final Form is P.W.19.

5. 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 15.

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

(Ext.2), the post mortem report (Ext.8), spot map (Ext.13), the

statement of accused (Ext.7/2). The reports showing the result of

chemical examination has been admitted in evidence and marked

Ext.15.

JCRLA No.94 of 2012 {{ 5 }}

6. The accused has taken the plea of complete denial and false

implication. He, however, has not tendered any evidence in

support of his defence.

7. The Trial Court, upon examination of the evidence and

their scrutiny, having held the death of Biranchi to be homicidal,

has found the prosecution to have established the charge against

the accused as to have intentionally caused the death of Biranchi

beyond reasonable doubt. Accordingly, the accused has been

convicted for commission of offence under section 302 of the IPC

and sentenced as afore-stated.

8. Mr.T.K.Saho, learned counsel for the Appellant (accused),

in view of the evidence of the Doctor (P.W.16) and the evidence

of the I.O. (P.W.18) as well as other evidence, instead of

impeaching the finding of the Trial Court as to the nature of

death of Biranchi to be homicidal, submitted that evidence let in

by the prosecution are wholly insufficient to establish any such

clinching circumstances that all those, being joined together,

make the chain so complete in every respect by excluding all such

hypothesis other than the guilt of the accused. He submitted that

the prosecution here relies upon two circumstances such as the

deceased being last seen in the company of the accused and the

so-called extra judicial confession of the accused. He further

JCRLA No.94 of 2012 {{ 6 }}

submitted that the evidence of P.Ws.5 & 9, in support of the last

seen theory, ought not to have been accepted in coming to a

conclusion that thereby the burden of proof has shifted to the

shoulder of the accused to explain as to what happened with the

deceased thereafter in saying that all such facts were within the

special knowledge of the accused. He further submitted that the

evidence of the prosecution witnesses, i.e., P.Ws.6, 7, 8 9 & 13 are

not at all believable that the accused had ever confessed before

them to have committed the crime. He, therefore, submitted that

the judgment of conviction and order of sentence impugned in

this Appeal are liable to be set aside.

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

the Respondent-State, while supporting the finding against this

accused person, as has been returned by the Trial Court,

submitted that it, having been proved as through the evidence

P.Ws.5 & 9 that the accused and the deceased were last seen

together, when the accused has not provided any such

explanation, as to what happened with the deceased thereafter as

all facts were within the special knowledge, the burden of proof

shifting on him, thus having not been displaced, the conclusion of

the Trial Court that the prosecution has proved its case by leading

clear, cogent and acceptable evidence beyond reasonable doubt is

not liable to be tinkered especially when the same stand coupled

JCRLA No.94 of 2012 {{ 7 }}

with the evidence of prosecution witnesses as regards the extra

judicial confession.

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.20) and have perused the documents admitted in

evidence and marked as Ext.1 to Ext.15.

11. As per the prosecution case, the deceased had been to the

hat (market) at Chakapada on 03.02.2010. The dead body of the

deceased was found by the side of the road on the next morning.

P.W.1, who is the nephew of the deceased, has not stated as

to at what time on 13.02.2010, Biranchi left the house and gone to

the Hat (market).

P.W.5 is the wife of the deceased. She has stated that during

evening hours, the accused called her husband (deceased) and

took him to Village-Bandhakhaman. So, when P.W.1 has stated

the deceased had gone to Chajaoada Hat (market), P.W.5 is

stating that he, being called by the accused, they had gone to

Village-Bandhakhaman. P.W.5 has stated that her husband

(deceased) thereafter did not return and his dead body with

injuries was found at the spot. She is not stating as to when she

JCRLA No.94 of 2012 {{ 8 }}

saw the dead body and as to who informed her about such lying

of the dead body of her husband.

12. P.W.9 has been projected by the prosecution to be the other

witness in support of the last seen theory. He has stated that on

the relevant date, he had been to the Hat (market) and met

Biranchi and they together took lunch. He has further stated that

Biranchi brought some liquor and gave him to consume and

sometime thereafter, having taken little liquor, he (P.W.9) left the

place and came to the village as Biranchi and the accused told

him that they would come later. His evidence is silent as to how

the accused appeared there at the place when they were taking

the lunch when he does not state that the accused and the

deceased were together from the beginning. This P.W.9, having

resiled from his previous statement recorded by the I.O. (P.W.18),

during course of investigation, he has been cross-examined by the

prosecution with the permission of the Court. Although he has

admitted to have stated before the I.O. that he had met the

accused and the deceased at Ghatiguda and therefrom, he came

on his cycle, the same is of no use for the prosecution except to

say to the extent that this witness is not telling the truth. He has,

however, denied to have stated during investigation that the

accused being asked had told that the deceased remained at

JCRLA No.94 of 2012 {{ 9 }}

Ghatiguda being unable to proceed because of the intoxication,

which is most important part.

The statement of P.W.4 before the I.O. is that on 03.02.2010

that when he was sitting on his verandah, he had seen the

accused taking the deceased by giving him pushes from his

backside and they were proceeding towards Banjara Sahi and

then the deceased was in drunken state and was not able to walk

properly. This has been stated by P.W.4 during cross-examination

from the side of the prosecution. His evidence to the above effect

even if accepted as he is not stating the approximate time when

he saw the accused and the deceased together, the evidence of

P.Ws.4, 5 & 6 stand irreconcilable.

P.W.6 has stated to have seen the accused and the deceased

together in the Hat (market), but that being too vague, makes no

sense.

13. P.W.7 states to have seen the deceased holding a bicycle

and going on foot, which is also vague. P.W.8 has stated to have

seen the accused and the deceased going towards their village

from Chakapada, but he does state as to what was the time and

exactly at which place, he saw them and how they were

proceeding.

JCRLA No.94 of 2012 {{ 10 }}

14. 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,

Kartikeswar Jani beyond reasonable doubt by leading clear,

cogent and acceptable evidence cannot be sustained.

15. In the result, the Appeal is allowed. The judgment of

conviction and order of sentence dated 22nd February, 2017

passed by the learned Sessions Judge, Baleswar in S.T. No.210 of

2015 are hereby set aside.

Since the accused, namely, Kartikeswar Jani, is in custody,

he be set at liberty forthwith if his detention is not wanted in any

other case.

(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: ORISSA HIGH COURT Date: 13-Oct-2023 17:41:06

JCRLA No.94 of 2012