Santosh Kumar Sahu & Others vs State Of Orissa
2023 Latest Caselaw 12595 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                     C.R.A No.56 of 1993

      This is an Appeal under Section 374(2) of the code of Cr.P.C.


     Santosh Kumar Sahu & Others           ....          Appellant
                                -versus-
     State of Orissa                       ....          Respondent

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

             For Appellant      -     Mr. A.K. Roy.
                                      Advocate.

             For Respondent     -     Mr.T.K.Praharaj,
                                      Standing Counsel.
             CORAM:
             MR. JUSTICE A.C.BEHERA

Date of Hearing :18.09.2023 :: Date of Judgment : 13.10.2023

1. By preferring this Appeal, the Appellants have challenged the Judgment of conviction and order of sentences passed on dated 29.01.1993 by the learned 2nd Additional Sessions Judge, Behrampur in SC No.42 of 1992 arising out of G.R. Case No.265 of 1991 in connection with Bhanjanagar P.S. Case No.112 of 1991 in the file of learned S.D.J.M. Bhanjanagar.

2. All the Appellants were convicted under Section 304 Part-II and 34 of the IPC and in addition to that, the Appellant Nos.1 and 2 i.e. Santosh Kumar Sahu and Ashoka Kumar Sahu were convicted under Sections 324 and 326 read with Section 34 of the IPC, 1860.

For the aforesaid conviction, Appellants were sentenced to undergo R.I. for 6 years each for the offence under Section 304 Part-II/34 of the

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IPC, 1860. In addition to that, Appellant Nos.1 & 2 Santosh Kumar Sahu and Ashoka Kumar Sahu were sentenced to undergo R.I. for 1 year each for the offence under Section 324/34 of the IPC and R.I. for 3 years each for the offence under Section 326/34 of the IPC, 1860 with a direction for running of the sentences concurrently.

All the 3 Appellants were the accused persons in SC No.42 of 1992 before the learned Trial Court.

Prosecution Case

3. On 30.05.1991 at about 6 A.M., the accused persons were ploughing the cultivable land of their village known as Mahi Kiari, to which, their kin relative i.e. Baya Sahu protested, for which, the accused persons threatened him (Baya Sahu) to kill. So, he (Baya Sahu) returned back from the said land to his house and informed that matter to his elder brother Bhaskar Sahu (informant) along with his father Bhima Sahu and his other family members.

4. After hearing about the same, all the family members of Baya Sahu, including the informant started moving to the said cultivable land, to which the accused persons were ploughing, but on their way, near the house of one Kirtan Sahu, they found that, the accused persons are coming towards them holding weapons. When infront of the house of Kirtan Sahu, the informant along with his two brothers and father told the accused persons, why they were ploughing their land, then the accused persons assaulted them by Kati and Lathi and by the result of such assault, the informant and his two brothers i.e. Baya Sahu, Khadala Sahu and as well as their father Bhima Sahu sustained injuries on their respective persons and thereafter, one injured among them i.e. Bhaskar Sahu (who is the informant) lodged written F.I.R. vide Ext.1 before the I.I.C, Bhanjanagar Police Station alleging the aforesaid allegations against the accused persons.

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Basing upon such FIR (Ext.1), the I.I.C., Bhanjanagar police station Shri Sudarsan Jena registered Bhanjanagar P.S. Case No.112 of 1991 dated 30.05.1991 and he (I.I.C) himself took up the investigation of the case.

5. During investigation, he (I.O.) examined the informant Bhaskar Sahu, sent him to the hospital for his medical examination issuing requisition and seized his wearing apparels through seizure list (Ext.8). Then, he (I.O.) examined another injured Baya Sahu at the hospital and issued requisition for his injury report and seized his wearing apparels through seizure list (Ext.9). He (I.O.) also examined another injured i.e. Khadala Sahu in the hospital and issued requisition for his injury report and seized his wearing apparels through seizure list. Then, he (I.O.) visited the spot, examined another injured Bhima Sahu, issued requisition for his injury report. He (I.O.) examined other witnesses and received intimation about the death of Bhima Sahu at the hospital. Then, he (I.O.) held inquest report over the dead body of the deceased Bhima Sahu and prepared the inquest report (Ext.12), sent the dead body of the deceased Bhima Sahu through dead body challan for post mortem examination and accordingly, post mortem examination over the dead body of the deceased Bhima Sahu was conducted. He (I.O.) seized the bedhead ticket of the deceased through seizure list (Ext.14) and arrested the accused Raghunath Sahu first and forwarded him to the court. Thereafter, he (I.O) came to know about the voluntary surrender of accused Santosh Sahu before the court and made a prayer before the learned S.D.J.M., Bhanjanagar for remanding him to police custody for interrogation and accordingly, he (I.O.) brought the accused Santosh Sahu to his custody as per the order of the court for his interrogation. Then, he (I.O.) seized one weapon of offence i.e. Lathi through seizure list (Ext.15) and then

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arrested accused Ashoka Sahu and seized another weapon i.e. Kati on the basis of the disclosure statement of that accused through seizure list (Ext.16) and sent the accused Santosh Sahu and Ashoka Sahu to the court. After completion of the investigation, he (I.O.) submitted final form against all the accused persons placing them all to face trial under Sections 302,324,326 read with 34 of the IPC, 1860.

6. After commitment of the case from the court of learned S.D.J.M., Bhanjanagar to the court of learned Sessions Judge, Ganjam at Berhampur and on transfer of that case to the Court of learned 2nd Addl. Sessions Judge, Berhampur, all the accused persons being the members of one family faced trial in the said court in S.C No.42 of 1992 having been charged under Sections 302,324,326 read with 34 of the IPC.

7. The plea of the defence was one of complete denial to the above alleged allegations of the prosecution against them (accused persons) and false implication.

8. During trial, in order to establish the aforesaid charges against the accused persons, prosecution examined altogether 10 numbers of witnesses and so also marked several documents as exhibits (Exts.1 to

16), but, whereas the defence examined one witness as D.W.1.

9. After conclusion of hearing and on perusal of the materials and evidence available in the record, the learned Trial Court found the accused persons not guilty under Section 302/34 of the IPC, but found them (all the accused persons) guilty under Section 304 Part-II/34 of the IPC. In addition to that, found the accused Santosh Kumar Sahu and Ashoka Kumar Sahu guilty under Sections 324 and 326 read with 34 of the IPC, 1860 and passed order of sentences against them as stated above vide Judgment dated 29.01.1993 in S.C. Case No.42 of 1992.

10. On being aggrieved with the above Judgment of conviction and order of sentence passed against the accused persons on 29.01.1993 in

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S.C. No.42 of 1992 by the learned 2nd Addl. Sessions Judge, Behrampur, they (accused persons) challenged the same by preferring this Appeal being the Appellants after taking several grounds in their Appeal memo.

11. I have already heard from the learned counsel for the Appellants and the learned Standing Counsel for the State.

12. During the course of hearing of the Appeal, the learned counsel for the Appellants submitted that, the learned trial court has convicted and sentenced the Appellants basing upon the testimony of three interested witnesses that is P.Ws.1, 2 and 9 without independent corroboration. That apart, prosecution has not approached the court with clean hands, because the genesis of the incident has been suppressed by the prosecution. According to him, (learned counsel for the appellants), when the case of the prosecution is not supported by any non-partisan disinterested witnesses and when there is contradictions between the evidence of P.Ws.1, 2 and 9, then the case of the prosecution cannot be held free from doubt. For which, the Judgment of conviction and order of sentence passed against the accused persons cannot be sustainable under law.

13. On the contrary, the learned Standing Counsel for the State contended that, the impugned Judgment of conviction and order of sentence passed against the accused persons by the trial court cannot be unsustainable under law. Because three witnesses i.e. P.Ws.1, 2 and 9 (on whose evidence, the learned Trial Court has placed reliance), they are the injureds/victims during the incident, for which, the injuries on their respective persons guarantee their presence at the scene of incident. Therefore, the Judgment of conviction and order of sentence passed by the learned Trial Court on the basis of their evidence cannot be found to be faulted with.

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14. The three witnesses of the prosecution i.e. P.Ws.1, 2 & 9, on (whose evidence the Judgment of conviction has been based by the learned Trial Court), they (P.Ws.1, 2 and 9) are three brothers and out of them P.W.1 is the informant.

P.W.2 has deposed in his examination in chief by stating that, "on 30.05.1991, at about 6 A.M. he was going to plough his land which is known as "Mahi Kiari", but found that, accused Santosh, Ashoka and their father were ploughing his said land. Then, he (P.W.2) protested. So, they (accused persons) threatened him to kill. Then, he (P.W.2) came back to his house and informed the matter to his brother i.e. P.W.1. Then, he (P.W.2) himelf and P.W.1 were going towards that land to protest. But, at that time, the accused persons were coming from the side of their land and they met them in front of the house of Kirtan Sahu at the village danda where the incident took place."

15. The above evidence of P.W.2 is clearly going to show that, the accused persons had not assaulted P.W.2 near the cultivable land known as Mahi Kiari, but only the accused persons had threatened him (P.W.2) there.

16. The above evidence of P.W.2 has been contradicted by his elder brother i.e. P.W.1 (who is the informant). Because, P.W.1 has deposed in his examination in chief by stating that, "his father came to him and informed him that, his brother Baya Sahu (P.W.2) was assaulted by the accused persons at the land. Baya Sahu (P.W.2) also informed him (P.W.1) that, their land was ploughed by the accused persons and when he (P.W.2) protested, he was assaulted by the accused persons. Then, he (P.W.1) along with Baya Sahu (P.W.2) started going towards to their land through village Danda. At that time, the accused persons were returning from the land, wherein, the incident took place."

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17. When P.W.2 himself has deposed above that, he was not assaulted by the accused persons at Mahi Kiari, to which P.W.1 has contradicted and has deposed above that, he (P.W.2) was assaulted by the accused persons at Mahi Kiari (cultivable land).

18. P.W.1 has deposed in Para Nos.8, 9 and 10 of his deposition by stating that "Kirtan Sahu's house is 10 houses apart from their house. After Kirtan Sahu's house, there are two more houses in that row. He cannot say whether Kirtan Sahu was present or not at that time. He cannot say whether Kirtan Sahu is residing in that house or not or who else is residing in that house. Banamali Sahu and Bhaiga Sahu's houses are situated after the house of Kirtan Sahu. But he does not know that if Banamali and Bhaiga were present or not. He has not seen the neighbors of Kirtan Sahu. But Bhalu Swain, Bansi Swain, Dhruba Sahu and Kedar Pradhan and also Purna Chandra Bisoi were present at the spot", to which, P.W.2 has contradicted, because P.W.2 has deposed in his examination in chief by stating that, "at the time of occurrence, Kedar Pradhan, Purna Bisoi, Bansi Swain and the rest were children, were present. The occurrence was not over when the witnesses came."

19. The above evidence of P.Ws.1 and 2 is going to show that, Kedar Pradhan, Kirtan Sahu, Bulu Swain, Bansi Swain, Dhruba Sahu, Purna Bisoi are the direct eyewitness to the alleged incident and their houses are nearer the spot. Out of the aforesaid direct eye witnesses of the alleged incident, Kedar Pradhan, Purna Chandra Bisoi and Bansidhar Sahoo have been examined as P.Ws.3,4 and 5 respectively.

20. The so-called direct eyewitnesses of the alleged incident i.e. P.Ws.3, 4 and 5 have not at all supported the case of prosecution by turning hostile. Because, P.Ws.3, 4 and 5 have specifically deposed in their respective evidence that, "they do not know anything about the occurrence and they were not at all examined by the police." There is no

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explanation at all on behalf of the prosecution regarding the cause and reason of non-examination of the rest eyewitnesses other than P.Ws.3, 4 and 5. No spot map has been prepared by the I.O. indicating the spot of occurrence. The I.O. (P.W.10) has deposed in Para-10 in his deposition by answering to the questions of the the Trial Court that, "he cannot assign any reason as to why he did not prepare the spot map." The said (I.O) P.W.10 has also deposed in Para No.9 of his deposition by stating that, "P.S. Case No.111/1991 was registered on the report of the accused Santosh Kumar Sahu. That case was investigated by him, which was registered on the same day i.e. on 30.05.1991. Without referring to the case record, he cannot say, who were the accused persons in that case. Sibanath Gouda, Baya Swain, Dandasi Swain are the neighbourers of the Baya Sahu. He had examined Baya Swain, Banamali Sahu, Bhaiga Sahu, but they have not been cited as witnesses in the charge sheet."

P.W.9 has deposed in in his deposition by stating that, "there was litigation between Kandha Sahu and his father i.e. between the family of the accused persons and their family since last more than 20 years. It is a fact that, on the same date of occurrence, on the report of accused Santosh Kumar Sahu, a case was registered against him (P.W.9)."

It appears from the aforesaid evidence of P.Ws.1,2,9 and 10 that, there was a counter case relating to this case against P.Ws.1,2 and 9 on the F.I.R of the accused Santosh Kumar Sahu and the number of that counter case is Bhanjanagar P.S. Case No.111 of 1991, which was registered on the same date i.e. on 30.05.1991. Because, this case is the outcome of Bhanjanagar P.S. Case No.112 of 1991 dated 30.05.1991. The said counter case against P.Ws.1,2 and 9 vide Bhanjanagar P.S. Case No.111 of 1991 was registered on the FIR of the accused Santosh Kumar Sahu first and thereafter, the case against the accused persons vide Bhanjanagar P.S. Case No.112 of 1991 has been registered.

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The I.O. of above both the cases i.e. case and counter case is same and one i.e. P.W.10 himself, according to his own version. So, from the aforesaid evidence of P.W.1,2,9 and 10, it appears that, there was a counter case relating to this case vide Bhanjanagr, P.S. Case No.111 of 1991, but prosecution has not placed the records of the above counter case, initiated against P.Ws.1,2 and 9 during the trial before the learned trial court.

21. It is the settled propositions of law that, when there is a case and counter case like this matter at hand, those arises in course of same transaction, in that situation, it is the duty of the prosecution to place the records relating to both the cases before the trial court and also further duty is cast upon the prosecution to point out clearly the genesis of the occurrence and thereby enabling the trial court to find out the truth and to ascertain, who were the aggressors in the said case and the counter case.

Here in this case at hand, absolutely no material on behalf of the prosecution has been placed concerning the above counter case vide Bhanjanagr P.S. Case No.111 of 1991 (which was registered against the witnesses i.e. P.Ws.1, 2 and 9) on the F.I.R. of one accused of this case at hand.

When the I.O. of the case (P.W.10) is the I.O. of the counter case vide Bhanjanagar P.S. Case No.111 of 1991, then for non-placing of the records of the counter case on behalf of the prosecution during trial, without any plausible explanation is ultimately going to establish that, prosecution has suppressed the genesis and origin of the occurrence without presenting the true state of affairs to have a fair trial and to enable the court to find out the truth.

22. On analysis of the evidence of the aforesaid witnesses and materials available on record, when it is forthcoming that, there are discrepancies and contradictions between the evidence of P.Ws.1, 2 and 9

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and there is no corroboration to the evidence of P.Ws.1,2 & 9 by any non- partisan, disinterested admitted so-called direct eyewitnesses and when prosecution has suppressed the genesis and origin of the occurrence without presenting the true state of version and when there is case and counter case against both the parties, then, at this juncture, the case of the prosecution cannot be held to be free from doubt and suspicion. For which, in other words, it can be held that, prosecution has not approached the court with clean hands, rather prosecution is guilty for suppression of the material facts.

On this aspect, propositions of law has already been clarified in the ratio of the following decision:

(i) 2009 (3) Crimes 232 (Mad.) Sulian @ Chinnathambi & Another Vs. State of Tamil Nadu (Para-11).

IPC-1860-302 & 324- "When a case and counter case has arisen in course of same transaction, it is the duty of the prosecution to place the records relating to both the cases and further duty is cast upon the prosecution to find out clearly the genesis of the occurrence and thereby enabling the court to find out the truth and fix the aggressors. The non-placing of the records relating to the counter case by the prosecution shall make the case of the prosecution against the accused persons doubtful and suspicious.

(ii) 2007 (3) Crimes Madhya Pradesh-714 Udaisingh Vs. State of Madhya Pradesh.

Criminal Trial- "If prosecution has suppressed the genesis and origin of occurrence and has thus, not presented true version, then, in that case, the accused is entitled for acquittal."

23. As per the discussions and observations made above, when prosecution has not approached the court with clean hands by suppressing the genesis and origin of the occurrence withholding the records relating to the counter case and when the case of the prosecution is not free from doubt and suspicion, then at this juncture, the impugned Judgment of

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conviction and order of sentences passed against the accused persons (Appellants) by the trial court cannot be sustainable under law.

24. When the impugned judgment of conviction and order of sentences passed against the accused persons (Appellants) cannot be sustainable under law, for which there is justification under law for making interference with the same through this appeal filed by the Appellants. Therefore, the accused persons are entitled for the benefit of doubt.

25. In the result, the appeal filed by the Appellants is allowed.

26. The impugned Judgment of conviction and order of sentences passed on dated 29.01.1993 in S.C. Case No.42 of 1992 by the learned 2nd Additional Sessions Judge, Berhampur against the Appellants (accused persons) under Sections 304 Part-II, 326/34 and 324/34 are set aside.

27. They (accused persons) are acquitted from the offences under Section 304 Part-II, 326/34 and 324/34 on the ground of benefit of doubt. Therefore, the accused persons (Appellants) are directed to be set at liberty forthwith after being discharged from their respective bail bonds.

28. Accordingly, the appeal is disposed of finally.

(A.C. Behera), Judge.

Orissa High Court, Cuttack.

13th October, 2023//Rati Ranjan Nayak// Signature Not Verified Junior Stenographer Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 19-Oct-2023 21:57:57

C.R.A. No.56 of 1993