Sanjay Nath @ Goudhi; And vs State Of Orissa
2023 Latest Caselaw 12157 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          JCRLA No.58 of 2013

          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 20th August, 2013 passed by the
    learned Additional Sessions Judge, Jagatsinghpur, in C.T. No.30
    of 2012 (C.T. No.41/2013).
                                 ----

Sanjay Nath @ Goudhi; and .... Appellants Sabita Bhoi

-versus-

State of Orissa .... Respondent

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

                For Appellants   -     Mr.S.S. Choudhury
                                       (Advocate)

                For Respondent -       Mr.S.K. Nayak,
                                       Additional Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    MR. JUSTICE A.C.BEHERA

   Date of Hearing : 03.10.2023      : Date of Judgment:09.10.2023

D.Dash,J. The Appellants, by filing this Appeal from inside the Jail,

have called in question the judgment of conviction and order of

sentence dated 20th August, 2013 passed by the learned

Additional Sessions Judge, Jagatsinghpur, in C.T. No.30 of 2012

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(C.T. No.41/2013) arising out of G.R. Case No.70 of 2011

corresponding to Jagatsinghpur P.S. Case No.170(11) of 2011 in

the Court of the learned Sub-Divisional Judicial Magistrate

(S.D.J.M.), Jagatsinghpur.

The Appellant, namely, Sanjay Nath @ Godhi has been

convicted for committing the offence under section 302/120-B of

the Indian Penal Code, 1860 (for short, 'the IPC') and the other

Appellant, namely, Sabita Bhoi has been convicted for

committing the offence under section 120(B) read with Section

302 of the IPC. Accordingly, accused Sanjay has been sentenced

to undergo imprisonment for life and pay fine of Rs.5000/-

(Rupees Five Thousand) in default to undergo rigorous

imprisonment for three (3) years for the offence under section 302

of the IPC whereas accused Sabita has been sentenced to undergo

imprisonment for life and pay fine of Rs.5,000/- (Rupees Five

Thousand) in default to undergo rigorous imprisonment for three

(3) years for the offence 120(B) read with section 302 of the IPC

with the stipulation that the default sentence to run first and then

imprisonment life will start.

2. PROSECUTION CASE:-

One Baburam Bhoi and his wife Sabita Bhoi with their three

children were living in Himachal Pradesh as they are working in

a Company there. Accused Sanjay was also working in a

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Company in Himachal Pradesh. Accused Sanjay developed

intimacy with the family of Baburam and he frequently visited

his house. In view of that, there arose a dissention between

Baburam and his wife Sabita. Accused Sabita, with her three

children, came back to their native Village-Bajapur under the

jurisdiction of Jagatsinghpur Police Staiton (P.S.). They stayed in

the house of Baburam. Thereafter, accused Sanjay, having come

from Himachal Pradesh, frequently visited their house. So, the

brothers of Baburam objected to such frequent visit of accused

Sanjay and his staying for the night in the house. They called the

brothers of accused Sanjay to settle the matter. It was somehow

settled and Sanjay was asked to refrain from visiting the house of

Baburam.

It was around on 9/10.10.2011, Baburam, being called by his

wife Sabita, had come to Village-Bajapur. After his arrival, when

accused Sabita talked with accused Sanjay, one night, a quarrel

had ensued between Baburam and his wife Sabita. On the

following morning, Baburam proceeded towards Goundunipaida

Canal. He, having left the house around 6.00 a.m., half an hour

thereafter, the elder brother of Baburam, namely Dhaneswar Bhoi

(informant-P.W.6) and others got the news that someone had

killed Baburam. So, they, having gone to the spot, found

Baburam lying dead there.

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A written report to the above effect being lodged by

Dhaneswar Bhoi (P.W.6), brother of Baburam (deceased) with the

Inspector-in-Charge (IIC) of Jagatsinghpur P.S., he, treating the

same as FIR and registering the case, took up investigation.

The Investigating Officer (I.O.-P.W.15), in course of the

investigation, examined the informant (P.W.6). He, having visited

the spot, prepared the spot map (Ext.12) and held inquest over

the dead body of the deceased and prepared the report (Ext.1) in

presence of the witnesses. He also examined other witness as at

the spot and seized one mobile phone, a pair of chappal, one

cycle etc. under seizure list (Ext.2). He then seized blood stained

earth and sample earth under seizure list (Ext.2). The dead body

of Baburam was sent for post mortem examination by issuing

necessary requisition. The wearing apparels of the deceased were

seized under Ext.9 whereas the wearing apparels of the accused

Sanjay were seized under Ext6. The seized incriminating articles

were sent for chemical examination through Court. It was stated

that accused Sanjay, while in police custody, disclosed to have

concealed the tangia (axe) inside the canal. He further stated that

he would give recovery of the same if taken to that place. The

statement of accused Sanjay was recorded under Ext.6. It was

said that the accused, pursuant to that statement, led the I.O.

(P.W.15) and witnesses to the place of concealment and gave

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recovery of the tangia. On completion of investigation, the I.O.

(P.W.15) submitted the Final Form placing the accused persons to

face the Trial for commission of the offence under sections

302/120(B) of the IPC.

3. Learned S.D.J.M., Jagatsinghpur, on receipt of the Final

Form, took cognizance of the said offences and after observing

the formalities, committed the case to the Court of Sessions for

Trial. That is how the Trial commenced by framing the charges

for the aforesaid offence against the accused persons.

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

total fifteen (15) witnesses during Trial. As already stated, the

elder brother of the deceased is the informant (P.W.6). P.W.1 is a

witness to the inquest. P.Ws.2, 3 & 5 have not supported the

prosecution. P.W.5 is the Doctor, who had medically examined

accused Sanjay whereas P.W.7 is the Doctor who examined

accused Sabita. The Doctor, who had conducted the post mortem

examination over the dead body of the deceased is P.W.10. P.W.8

is a witness to the seizure of wearing apparels of the accused

Sanjay when P.W.12 is a witness to the seizure of wearing

apparels of the deceased. P.W.9 is another brother of deceased

Baburam. The I.O., at the end, has come to the witness box as

P.W.15.

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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 16.

Out of those, the important are, the FIR (Ext.4), the inquest report

(Ext.1), the post mortem report (Ext.7); the spot map (Ext.12), and

the statement of accused Sanjay recorded under section 27 of the

Evidence Act (Ext.10/1). The report of the Chemical Examiner had

been admitted into evidence and marked Ext.16.

6. The accused persons have taken the plea of complete denial

and false implication. They, however, have not tendered any

evidence in support of their defence.

7. The Trial Court, in view of the evidence of the Doctor

conducting the post mortem examination over the dead body of

Baburam and his report (Ext.7) and other evidence including that

of the I.O. (P.W.15), having held the death of Baburam to be

homicidal; on scrutiny of evidence at its level, has held the

prosecution to have established the charges against the accused

persons. Accordingly, the accused persons have been convicted

and sentenced as afore-stated.

8. Mr.S.S.Choudhury, learned counsel for the Appellants

(accused persons) submitted that there is no direct evidence to

connect these accused persons with the crime. According to him,

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the prosecution has also not proved any such incriminating

circumstances pointing the finger of guilt at the accused persons

that those being joined together, fully complete the chain of

events leading to an irresistible conclusion that it is the accused

persons, who have caused the death of Baburam (deceased)

leaving no hypothesis other than the guilt of the accused persons.

He submitted that the finding of guilt as against the accused

persons, as has been returned by the Trial court, is not based on

clear, cogent and acceptable evidence on record and according to

him, the conviction is merely based on suspicion, which too is not

well founded.

9. Mr.S.K.Nayak, learned Additional Government Advocate

for the Respondent-State submitted that the deceased, having left

the house, has met his death very shortly thereafter and in view

of the evidence on record that accused Sanjay and the wife of the

deceased (Sabita) since were having illicit relationship and they

were in a mood to eliminate Baburam (deceased), the evidence let

in by the prosecution that the weapon of offence was seized at the

instance of the accused persons, are enough to sustain the

conviction.

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

read the impugned judgment of conviction. We have also gone

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through the depositions of the witnesses (P.Ws1 to 15) and have

perused the documents, which have been admitted in evidence

and marked Exts.1 to 16.

11. As per the settled principles where the evidence is of a

circumstantial nature, the circumstances from which the

conclusion of guilt is to be drawn should be in the first instance

be fully established, and all the facts so established should be

consistent only with the hypothesis of the guilt of the accused.

12. In the backdrop of above, let us proceed to examine the

evidence on record and find out what are those circumstances,

which appear against the accused persons and are incriminating.

Coming to the evidence of P.W.6, we find that he is none

other than the elder brother of deceased Baburam. He has stated

that Baburam and accused Sanjay, while working in Himachal

Pradesh, were quarrelling as because accused Sanjay was visiting

their house and accused Sabita, without paying any heed to the

words of Baburam (deceased), had left Himachal Pradesh with

her children and accused Sanjay and they, having come to their

native village Bajapur, there also accused Sanjay continued to

visit their house and stay for the nights. It is further stated by him

that for such visit of accused Sanjay and his relationship with

accused Sabita, they had protested. He has stated that there was a

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settlement of the matter and when Baburam (deceased) arrived,

he had a discussion with accused Sanjay and thereafter, there was

a quarrel between Baburam (deceased) and his wife Sabita. His

further evidence is that in the relevant morning, Baburam

proceeded towards Goundunipadia Canal talking while over

telephone and half an hour thereafter, he came to know that a

dead body was lying in canal embankment and he, with his other

brothers, went to the spot and saw Baburam lying dead. This is

the evidence of P.W.6. He has nowhere stated about the presence

of accused Sanjay in the morning in the house of Baburam

(deceased) nor states to have seen accused Sabita in the vicinity

when Baburam left towards the canal embankment or that when

they later arrived at the spot, had seen accused Sanjay nearby. He

does not state that accused Sabita had followed Baburam when

he left the house or to have gone out to Baburam's leaving the

house.

Then, comes the evidence of P.W.9. He, having stated about

the prior dissention between Baburam and his wife Sabita

centering around the visit of accused Sanjay and he mixing with

accused Sabita; has simply stated to have arrived at the spot after

hearing that dead body of someone was lying there near the canal

embankment and seen Baburam to have been murdered. The

prosecution thus having proved that Baburam met a homicidal

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death by adducing the evidence of the Doctor (P.W.10), who had

conducted the autopsy over the dead body of the deceased,

which also find support from the other evidence of the witness,

who had seen Baburam lying in an injured condition, has not led

any further evidence as to the happenings in the morning in

presence of both these accused persons.

P.W.13 is the fourteen-year-old daughter of deceased and

accused Sabita. She is simply stating that after arrival of her

father (deceased), accused Sanjay had come to their house and

she had heard him saying that until and unless Baburam standing

as a thron to their relationship would be removed from their

path, it would not be possible for them to flee away. But, her

evidence is not at the point as to whom accused Sanjay was so

telling when she heard and when and at which place and more

importantly when accused Sanjay was so saying, who was the

listener to whom he was so addressing. The evidence of all these

witnesses when simply show that Baburam was not happy with

his wife Sabita for her relationship with accused Sanjay, no such

other clinching circumstance has been proved.

The prosecution when says that accused Sanjay, while in

police custody, had led the police and other witnesses to a place

near the canal in giving recovery of tangia (axe), after disclosing

before them that he had kept that tangia in a place known to him,

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the evidence of the I.O. (P.W.15) do not pass through the legal

tests for such evidence to the extent for being admissible under

section 27 of the Evidence Act.

The I.O. (P.W.15) has stated that accused Sanjay, while in

police custody, gave information to him regarding the

concealment of tangia inside the canal. P.W.15 also does not state

as to where he recorded the statement of the accused. In cross-

examination, this P.W.15 has stated that having arrested the

accused on 20.10.2021 at 5.30 p.m, his statement was recorded on

the next day morning around 8.00 a.m. But the evidence of this

I.O. (P.W.15) is that the witnesses to said statement were near the

spot, which falsifies his evidence that accused led him and

witnesses to the place wherefrom that tangia was recovered and

seized.

The above being the evidence of the I.O. (P.W.15), the

prosecution cannot be said to have proved the factum of recovery

that seized tangia (axe) at the instance of the accused Sanjay from

the place, which was known to him.

13. 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 charges against accused

persons, Sanjay Nath @ Godhi and Sabita Bhoi beyond reasonable

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doubt by leading clear, cogent and acceptable evidence cannot be

sustained.

14. In the result, the Appeals is allowed. The judgment of

conviction and order of sentence dated 20th August, 2013 passed

by the learned Additional Sessions Judge, Jagatsinghpur, in C.T.

No.30 of 2012 (C.T. No.41/2013) are hereby set aside.

Since the Appellants, namely, Sanjay Nath @ Godhi and

Sabita Bhoi are in custody, they be set at liberty forthwith, if their

detention is not wanted in connection with 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: 11-Oct-2023 17:19:09

JCRLA No.58 of 2013