In The Matter Of An Appeal Under ... vs State Of Odisha
2023 Latest Caselaw 12159 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                               JCRLA NO.58 OF 2011

        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 20.05.2011 passed by the learned
        Additional Sessions Judge, (FTC), Jajpur in C.T. Case No.48 of
        2010.
                                 ----

Ladu Hembrum; and Tulasi ..... Appellants Hembrum

-versus-

State of Odisha ..... Respondent

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

====================================================== For Appellants - Mr. B.C. Parija, Advocate, For Respondent - Mr. G.N. Rout, Addl. Standing Counsel.

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 challenged the judgment of conviction and order of

sentence dated 20.05.2011 passed by the learned Adhoc

Additional Sessions Judge, (FTC), Jajpur in C.T. Case No.48 of

JCRLA NO.58 OF 2011 {{ 2 }}

2010 arising out of G.R. Case No.767 of 2008 corresponding to

Badachana P.S. Case No.22 of 2008 of the Court of the learned

Judicial Magistrate First Class (J.M.F.C), Chandikhole.

The Appellants (accused persons), thereunder have been

convicted for committing offence under section-302/201/34 of

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

accordingly, they have been sentenced to undergo

imprisonment for life and pay fine of Rs.1,000/- each in default

to undergo rigorous imprisonment for six months for

commission of offence under section-302/34 of the IPC and to

undergo rigorous imprisonment for five (5) years and to pay

fine of Rs.1,000/- in default to undergo further rigorous

imprisonment for six months for commission of offence under

section-201/34 of the IPC with the stipulation that the

substantive sentences shall run concurrently.

2. Prosecution Case:-

On 31.10.2008 around 5.30 pm, Sk. Ajij, a Police

Constable then attached to Bairee Police Outpost under

Badchana Police Station lodged a written report that

unidentified dead body with injuries on his person was found

lying near a stone quarry at Gaharjori near village Amiyajhari

and that was identified by the villagers of Badapokharia to be

of one Sahu Chatar. Basing on the said report, one U.D. Case

was registered and the Inspector-in-Charge (IIC) of Badchana

JCRLA NO. 58 OF 2011 {{ 3 }}

P.S. directed the Sub-Inspector (S.I.) of Police (P.W.13) to take

up inquiry. Said S.I. of Police (P.W.13). having caused the

enquiry, in turn lodged a written report that some unknown

culprits having committed the murder of Sahu Chatar had

concealed the dead body in the water body of Gaharjori stone

quarry pressing stone on it with a view to cause

disappearance of evidence. The IIC having received the

written report, treated the same as F.I.R. and registering the

case, took up investigation.

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

P.W.15) examined the Informant (S.I.-P.W.13) and other

witnesses. He prepared the spot map (Ext.15). On 05.11.2008,

the I.O. (P.W.15) proceeded to the village Gothatalia along with

the witnesses and apprehended the accused persons. The

accused persons, while in police custody gave recovery of

katari in presence of witnesses. Accused Tulasi is said to have

given recovery of the Katuri in presence of the witnesses

Ananda Bobanga (P.W.3) and Tepoy Chatar (P.W.8) which was

seized under the seizure list (Ext.8). The accused Kanhei gave

recovery of a napkin, which was seized under the seizure list,

proved as Ext.9. He seized a red colour saya and blouse. Those

were seized under seizure list admitted in evidence and marked

as Ext.17. The pant and shirt of accused Ladu were seized

under Ext.18. All the accused persons gave recovery of some

JCRLA NO. 58 OF 2011 {{ 4 }}

Almond yellow and blue colour sporting pant of the deceased

which were seized under seizure list Ext.10. The I.O. (P.W.15)

then also further sent the accused persons, namely, Tulasi and

Ladu to the medical for collection of their nail clippings, which

were seized by him under Ext.19. The Car used to bring the

deceased was also seized with its documents were seized. The

dead body had been sent for postmortem examination by

issuing necessary requisition under Ext.23. On transfer of the

I.O., he handed over the charge of investigation to his successor

in office, who, on completion of investigation, submitted the

Final Form placing the accused persons namely, Kanhei

Hembrum, Ladu Hembran and Tulasi Hembram, to face the

trial for commission of offence under section-302/201/34 of the

IPC.

4. Learned J.M.F.C., Chandikhole receiving Final Form,

took cognizance of the above offence and after observing the

formalities, committed the case to the Court of Sessions. That

is how the Trial commenced by framing charge for the said

offences against the accused persons.

5. In the Trial, the prosecution in total has examined fifteen

(15) witnesses. Out of them, P.W.1 & 2 are the witnesses to

inquest. P.W.2 is a witness to the seizure of blood stained and

sample earth. P.W.3, P.W.4, P.W.5, P.W.6 and P.W.7 are the

villagers of Badapokharia. P.W.9 is the uncle of the deceased.

JCRLA NO. 58 OF 2011 {{ 5 }}

The Doctor who had conducted autopsy over the dead body

of the deceased has been examined as P.W.14 and the I.Os.

have examined as P.W.13 and P.W.15.

The prosecution besides leading the evidence by

examining the above witnesses has proved several documents

which have been marked as Ext.1 to Ext.24. Out of those;

important are the F.I.R. (Ext.13), inquest report (Ext.1), spot

maps ( Ext.12 & Ext.15) and postmortem report (Ext.14). The

statements of the accused persons have been proved as Ext.5,

6 and 7. The Chemical Examiner's report has been admitted in

evidence and marked as Ext.24.

6. The accused has not led any evidence in support of his

plea of complete denial and false implication.

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

prosecution witnesses and on going through the documents

admitted in evidence, upon their analysis at its level has held

that the prosecution has proved the charges against the

accused persons beyond reasonable doubt. Accordingly, the

accused persons have been convicted for committing the

offences under section-302/201/34 of the IPC and sentenced as

aforestated. It be stated here that accused-Appellant No.1,

namely, Kanhei Hembrum having died in the meantime, as

none come to pursue the Appeal; the Appeal stood abated in

JCRLA NO. 58 OF 2011 {{ 6 }}

respect of him and, therefore, said Appeal now stands only at

the instance of Ladu Hembrum and Tulasi Hembrum.

8. Learned Counsel for the Appellants (accused persons)

submitted that the prosecution relies upon the last seen theory

and recovery of some incriminating articles including the

weapon and wearing apparels of the deceased in establishing

the guilt against the accused persons. According to him, the

evidence of P.Ws.3, 4, 5,6, 7 and 8 in support of the last seen

theory are of no value in pointing the finger of guilt against

the accused persons in any manner and what all of them

stated cannot be said to be in support of the last seen theory.

He also submitted that the evidence as to the recovery of

incriminating articles, at the instance of these accused persons

pursuant to their statement while in police custody do not

satisfy the legal test for being admissible to that extent under

section-27 of the Evidence Act. He, therefore, submitted that

the judgment of conviction and order of sentence are

vulnerable.

9. Learned Counsel for the Respondent-State submitted all

in favour of the finding of the Trial Court. According to him, it

being amply proved that the deceased was last seen with the

company of these accused persons and Kanhei (since dead)

and that coupled with the evidence as to the recovery of the

incriminating articles pursuant to the statement of the accused

JCRLA NO. 58 OF 2011 {{ 7 }}

persons while in police custody by leading the I.O. (P.W.15)

and two other witnesses to those places of keeping are enough

to upheld the conviction of the accused persons.

10. Keeping in view the submissions made; we have

carefully read the judgment of conviction. We have also

extensively travelled through the depositions of all the

witnesses i.e. P.W.1 to P.W.12 and have perused the

documents which have been marked Exts.1 to 24.

11. In order to address the rival submissions, let's examine

the evidence of the prosecution witnesses so as to call out the

proved circumstances pointing the finger of guilt at the

accused persons.

It is the evidence of P.W.3 that on the relevant date, the

accused persons alleged that deceased had stolen a sum of

Rs.7,000/- from their house which the deceased refused. The

accused persons took the deceased with them to extract the

stolen amount from him without listening to the protest of this

witness (P.W.3) and others. This witness is not stating as to

relevant time, when accused persons leveled allegation

against the deceased that he had stolen cash of Rs.7,000/- from

their house and where it was so told by the accused persons.

This P.W.3 has also not stated as to whether he was present,

and had heard the conversation between the accused persons

JCRLA NO. 58 OF 2011 {{ 8 }}

and the deceased was thereafter had protested, when the

deceased was taken by the accused persons.

The evidence of P.W.4 is also like that of P.W.3. He

asserts to have heard accused persons talking about the theft

of cash of Rs.7,000/- to the accused to which he replied in the

negative. He does not say as to whether the deceased was

asked and if so who asked the deceased about such theft being

made by him. It is his evidence that the accused persons had

alleged that the deceased had stolen their cash and then

caught hold of him and forcibly took to their village. This

P.W.4 does not say as to in which place/ location the accused

persons had so alleged and thereafter from which place/

location they having caught hold the accused had forcibly

taken him to their village.

P.W.5 is the aunt of the deceased. She says that accused

persons alleged that the deceased had committed theft of cash

and forcibly took with him. But then it is not her evidence that

where all these happened that the accused persons alleged

and from which place they forcibly took the deceased.

The evidence of P.W.6 is to the effect that he has seen

accused persons forcibly taking the deceased to them and at

which place he had seen the accused persons taking the

deceased is not stated. His further evidence is that on being

JCRLA NO. 58 OF 2011 {{ 9 }}

asked, the accused persons told that they were taking the

deceased to extract the stolen amount from him. The conduct

of this witness does not appear to be above board. He does not

state to have informed anybody after seeing accused persons

forcibly taking the deceased; more importantly to the family

members of the deceased. Thus, the natural response is

lacking in case of P.W.6.

Evidence of P.W.7 again appears to be vague, when he

states that the accused persons took deceased from his village

to their village. The evidence of P.W.8 is also in the same vein.

With such available evidence on record, we are not in a

position to say that the prosecution has established the last

seen theory beyond reasonable doubt so as to conclude that

the burden of proof of the fact as to what happened with the

deceased thereafter when he was last seen with the accused

persons, had shifted on the shoulders of the accused persons

as such facts being within their special knowledge.

Now coming to the evidence as to the recovery of the

incriminating articles, let's straightway approach the evidence

of the I.O. (P.W.15). It is stated by him that during noon hour

at village Gothatalia, he apprehended the accused persons

and arrested them. He then straight says that while in police

custody the accused persons led the police team and witnesses

JCRLA NO. 58 OF 2011 {{ 10 }}

and gave recovery of the Katari. It is not said that as to where

the accused persons gave their statement and where those

were recorded by him and who were the witnesses present

there and how those witnesses had come to that place. He

further states that at 2 pm on production of accused Kanhei,

he seized one old gray colour napkin and at 2.10 pm he seized

one red colour saya being stained with blood being produced

by accused Tulasi and one yellow colour blouse which was

torn was seized on production by accused Tulasi. He further

states to have seized on Barmuda half pant and one red shirt

of accused Ladu. About the credibility of the above evidence

of P.W.15, the less said the better. All such evidence are not

only vague but also without further details, which make those

unacceptable.

On a conspectus of discussion of evidence as

hereinabove, we are of the view that the prosecution has failed

to establish the charges against the accused beyond reasonable

doubt.

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

conviction and order of sentence dated 20.05.2011 passed by the

JCRLA NO. 58 OF 2011 {{ 11 }}

learned Additional Sessions Judge, (FTC), Jajpur in C.T. Case

No.48 of 2010 are hereby set aside.

Since, accused persons namely, Ladu Hembrum &

Tulasi Hembrum are in custody, they be set at liberty

forthwith, if their detention is not required in any other case.

(D. Dash), Judge.

                                   Mr. A.C. Behera, J.       I Agree.


                                                                             (A.C. Behera),
                                                                                  Judge.




             True Copy


                P.A.

             Narayan




Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Designation: Peresonal Assistant
Reason: Authentication
Location: OHC
Date: 11-Oct-2023 17:43:44


                               JCRLA NO. 58 OF 2011