In The Matter Of An Appeal Under ... vs State Of Orissa
2023 Latest Caselaw 12165 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.51 of 2012

          In the matter of an Appeal under Section 374 of the Code of
  Criminal Procedure, 1973 and from the judgment of conviction
  and the order of sentence dated 25th November, 2011 passed by
  the learned Sessions Judge, Bhadrak, in S.T. Case No.36/74 of
  1999.
                              ----

      Guli @ Sanjay Kumar Das @             ....        Appellant
      Mallik

                                 -versus-

      State of Orissa                       ....      Respondent

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

               For Appellant     -     Mr.Biswajit Nayak and
                                       Mr.B.R. Sahu
                                       (Advocates)

               For Respondent -        Mr.S.K. Nayak,
                                       Additional Government Advocate
  CORAM:
  MR. JUSTICE D.DASH
  MR. JUSTICE G. SATAPATHY

  Date of Hearing : 04.10.2023       : Date of Judgment:09.10.2023

D.Dash,J.      The Appellant, by filing this Appeal, has called in

question the judgment of conviction and the order of sentence

dated 25th November, 2011 passed by the learned Sessions Judge,

Bhadrak, in S.T. Case No.36/74 of 1999.arising out of G.R. Case

CRLA No.51 of 2012

No.515 of 1999 corresponding to Tihidi P.S. Case No.48 of 1999 of

the Court of the learned Sub-Divisional Judicial Magistrate

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

The Appellant (accused) thereunder has been convicted for

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

rigorous imprisonment for two (2) months for commission of the

said offence.

2. Prosecution Case:-

On 27.04.1999 night, Karunakar Roul, father of Markanda

Roul (informant-P.W.10) was sleeping in his cottage (pahi ghara)

situated at a little distance from his dwelling house. It was

around 4.00 a.m when the back door of the dwelling house was

knocked. Markanda Roul (informant-P.W.10) and his mother Tiki

Rout (P.W.12) opened the door. Then, they found Karunakar to

be in a severely injured condition; he had injuries on his abdomen

and the contents of the abdominal cavity to have been bulged out.

He had also sustained injuries on his right palm and head. Seeing

Karunakar in such a condition, when Markanda (informant-

P.W.10) and his mother asked as to how it so happened with him,

Karunakar disclosed that when he was sleeping in the outhouse,

CRLA No.51 of 2012

this accused inflicted blows on his abdomen and head and fled

away.

It was stated that on 27.04.1999 evening, the accused, in

view of their prior dispute over cutting of paddy, had threatened

Karunakar with dire consequence.

Karunakar, being found to be so severely injured, was taken

to Tihidi Hospital for treatment and threrfrom, he was shifted to

District Headquarters Hospital, Bhadrak where he finally

succumbed to those injuries.

Markanda (informant-P.W.10), the son of deceased

Karunakar (deceased) lodged a written report with the Officer-in-

Charge (OIC), Tihidi P.S. Receiving the said report, the O.I.C.

treated the same as the FIR (Ext.2) and upon registration of the

case, directed one Sub-Inspector (S.I.) of Police (P.W.11) to take

up investigation.

3. The Investigating Officer (I.O.-P.W.11) immediately

recorded the statement of the informant (P.W.10). The I.O.

(P.W.11) then having visited the spot. He seized one Bhujali

under Ext.7. The nail clippings of the accused were seized under

Ext.8 whereas the blood stained earth and sample earth were

seized under seizure list Ext.9. The I.O. (P.W.11) had held inquest

over the dead body of the deceased and prepared the report to

that effect (Ext.1). The dead body of the deceased was sent for

CRLA No.51 of 2012

postmortem examination by issuing necessary requisition. The

seized incriminating articles were sent for chemical examination

through Court. Thereafter, on completion of the investigation, the

I.O. (P.W.11) submitted the Final Form placing this accused to

face the Trial for commission of the offence under section 302 of

the IPC.

4. Learned S.D.J.M., Bhadrak, 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. In the Trial, the prosecution, in support of its case, has

examined in total sixteen (16) witnesses. As already stated, the

informant, who had lodged the FIR (Ext.2) is P.W.10. P.Ws.12 &

13 are the two wives of the deceased. P.Ws.1, 2, 3 & 5 are the

witnesses, who went to the house of the deceased and found him

in an injured condition. P.W.6 is the Doctor, who had medically

examined the deceased first and P.W.7 is the Doctor, who had

conducted the post mortem examination over the dead body of

the deceased. The Tahasildar, who had recorded the dying

declaration of the deceased has been examined as P.W.9. P.Ws.4

& 14 are the witnesses to the seizure. The I.O. has been examined

as P.W.11

CRLA No.51 of 2012

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.

Important of those, are the FIR (Ext.2); inquest report (Ext.1); the

post mortem report (Ext.15); and dying declaration of the

deceased (Ext.6). The report of the Chemical Examiner had been

admitted in evidence and marked Ext.14.

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

implication. However, he has examined one witness (D.W.1) in

support of such plea.

7. The Trial Court, having gone through the evidence and

upon their scrutiny, having found Karunakar to have met

homicidal death, has found this accused to be guilty for

commission of the offence under section 302 of the IPC in

intentionally causing the death of Karunakar. Accordingly, he has

been sentenced as afore-stated.

8. Mr. Biswajit Nayak, learned counsel for the Appellant

(accused) submitted that the prosecution case here is based on the

dying declarations; first set of declarations before the family

members of the deceased and others and the second one is the

recorded dying declaration (Ext.6). He further submitted that

when the injuries sustained by the deceased are given a look, the

CRLA No.51 of 2012

prosecution case that the deceased had spoken about the

complicity of the accused before anybody is highly doubtful. In

this connection, he has taken us through the evidence of the

Doctors (P.W.6), who had first examined the deceased and

admitted him and the Doctor (P.W.7), who had conducted the

post mortem examination over the dead body of the deceased. He

submitted that the evidence of the Tahasildar (P.W.9) and the

Doctor (P.W.7) in whose presence, P.W. is said to have recorded

the dying declaration (Ext.6) are not creditworthy. He, therefore,

submitted that the Trial Court ought not to have placed implicit

reliance upon the evidence in support of the dying declaration in

holding the accused to be the author of the injuries upon the

deceased leading to his death.

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

for the Respondent-State submitted that the evidence of P.Ws.1, 2,

5 & 10 as to the oral dying declaration are wholly reliable and

they all, having stated to have immediately rushed to the spot

and the deceased, being asked, had disclosed about it before

them; in the absence of any such doubtful features surfacing in

their evidence, the Trial Court is right in relying upon their

evidence. He further submitted that the evidence of the

Tahasildar (P.W.9), who had recorded the dying declaration of

the deceased in the Hospital on 29.04.1999 in between 11.45 a.m.

CRLA No.51 of 2012

to 12.35 p.m. in presence of P.W.7, who too has supported the

version of P.W.9, have been rightly accepted by the Trial Court.

10. In order to address the rival submission and accordingly,

judge the sustainability of the finding of guilt against the accused

as has been rendered by the Trial Court, we are called upon to

undertake the exercise of scrutinizing two sets of evidence, i.e.,

evidence in support of the oral dying declaration of Karunakar,

which has been reduced into writing and then the evidence of

P.W.9 and P.W.7 on the dying declaration reduced into writing

vide Ext.6.

The occurrence took place in the dead of night of 27.04.1999.

P.W.1 is a neighbour. He has stated that in the night around 3.00

a.m., when he was sleeping, he woke up by hearing the hullah

and when he came out of his house, co-villager Gobinda (P.W.2)

told him that somebody had assaulted Karunakar, who was lying

in an injured condition near the door of his house. P.W.1 states to

have immediately proceeded to the spot. It is his evidence that

finding Karunakar to be in an injured condition lying on the floor

when he asked him about the matter, he gave out that when he

was sleeping in his farm house, the accused suddenly attacked

him with bhujali and has caused such injuries on his belly. It is

also his evidence that Karunakar had told before him that the

accused had assaulted him on his head and right palm. The

CRLA No.51 of 2012

witness, being cross-examined, has very much asserted that at the

relevant time when he arrived at the spot, Krunakar (deceased)

was able to talk and he was also in a position to speak when he

was brought to District Headquarters Hospital, Bhadrak.

P.W.2 is another neighbour of the deceased, who has also

stated that when in the early morning, hearing the alarm of

deceased, no sooner did he get up from the sleep, he proceeded to

the place and saw the deceased lying in a pool of blood near the

back door of his house. It is also his evidence that he had seen the

intestine of Karunakar to have been bulged out on account of

injury received by him on his belly and he, having asked the

deceased about his said condition, the deceased replied that

accused was responsible for his such condition. Although it was

suggested to the witness that he had not stated so during his

examination in course of the investigation that the deceased had

told before him that the accused had inflicted the injuries on his

belly, that has not been proved through the I.O. (P.W.11).

Therefore, the said suggestion is not of any significance at all.

P.W.5 is another co-villager, who has stated almost in the

same line as what have been stated by P.Ws.1 & 2. That has also

been the evidence of P.W.10.

A careful reading being given to the depositions of all these

witnesses, we find no such material to have surfaced to doubt

their version that they had arrived near the deceased shortly after

CRLA No.51 of 2012

the deceased had received the injury on his belly and other

portions of his body. We also find all of them to have consistently

stated that the deceased had disclosed before them that the

accused was responsible for the injuries received by him and

there surfaces no such major discrepancies in their evidence.

Thus, we are left with no option but to place reliance upon said

dying declaration of Karunakar before the above noted witnesses.

11. Now, coming to the dying declaration recorded by the

Tahasildar (P.W.9), which has been admitted in evidence and

marked Ext.6, it is seen that before the recording of the dying

declaration on 29.04.1999, he (P.W.9) had made one attempt on

the previous day. But at that time as it was not so possible to get

the answer from the deceased, he (P.W.9) did not proceed and on

the next day, hearing found the condition of the deceased to be

alright to give answers, he so recorded. Dying declaration (Ext.6)

proved by P.W.9 reveals that the Doctor attached to the District

Headquarters Hospital, Bhadrak (P.W.7) was very much present

at the relevant time. It is his (P.W.7) evidence that P.W.9 recorded

the dying declaration in his presence. This P.W.7 has put his

signature on Ext.6. That Ext.6 reveals that the deceased, being

asked as to how he was injured, had replied that it was the

accused, who was responsible for the same. This Ext.6 is found to

CRLA No.51 of 2012

- 10 -

be containing the endorsement of P.W.9 that said writings were

read-over and explained to the marker, i.e., Karunakar.

P.Ws.7 & 9, being given the suggestion that said dying

declaration (Ext.6) was a fabricated document, have strongly

reacted by way of denial. P.W.7, being the Doctor, who was

treating the deceased and was one of the member of the team of

the Doctors, who had done the surgery, when has clearly stated

that the deceased disclosed before them about the complicity of

this accused in causing all those fatal injuries, we find absolutely

no reason to disbelieve the version of P.W.7, which run at par

with the evidence of the Tahasildar (P.W.9), who had recorded

the dying declaration, having no axe to grind against the accused.

We do not find any such infirmity in the evidence of P.Ws.7 & 9

in support of the dying declaration of the deceased reduced into

writing vide Ext.6 in question answer form. The evidence of the

prosecution witnesses, being meticulously gone through, no such

surrounding circumstances are found to have been emanating to

raise any doubt that Karunakar, from the very beginning, was not

in a condition to speak and that he too was not in a condition to

speak on 29.04.1999 during 11.45 p.m. to 12.35 p.m. on being

asked by P.W.9.

Therefore, in our considered view, the judgment of

conviction and order of sentence impugned in this Appeal, are

well in order and do not warrant interference.

CRLA No.51 of 2012

- 11 -

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

conviction and the order of sentence dated 25th November, 2011

passed by the learned Sessions Judge, Bhadrak, in S.T. Case

No.36/74 of 1999 are hereby confirmed.

(D. Dash), Judge.

                         G. Satapathy, J.    I Agree.


                                                             (G. Satapathy),
                                                                 Judge.




          Basu




Signature Not Verified
Digitally Signed
Signed by: BASUDEV NAYAK
Reason: Authentication
Location: ORISSA HIGH COURT

                 CRLA No.51 of 2012