Naresh @ Christian Jatri vs State Of Odisha
2023 Latest Caselaw 12601 Ori

                              IN THE HIGH COURT OF ORISSA AT CUTTACK

                                               C.R.A. No.380 of 1993
                        (In the matter of an application under Section 374 of the Criminal
                      Procedure Code.)

                      Naresh @ Christian Jatri                     ....             Appellant
                                                        -versus-
                      State of Odisha                              ....           Respondent

                     Appeared in this case:-
                             For Appellant          :       Mr. M. Mishra, U.C. Patra, P.K.
                                                              Das and B. Mishra, Advocate

                             For Respondent         :                     Mr. T.K. Praharaj,
                                                                   Learned Standing Counsel

                       Appeared in this case:-

                       CORAM:
                       JUSTICE A.C. BEHERA

                                              JUDGMENT

Date of hearing : 18.09.2023 / date of judgment :13.10.2023

A.C. Behera, J. The appellant, by preferring this appeal, has challenged the judgment of conviction and order of sentence dated 17.06.1993 passed by the learned Sessions Judge, Koraput at Jeypore in Sessions Case No.158 of 1992 arising out of G.R. Case No.178 of 1992 in connection with Kundra P.S. Case No.16(6) of 1992 of the court of learned S.D.J.M., Jeypore.

In that Sessions Case No.158 of 1992, the appellant was convicted under Section 304, Part-I of the Indian Penal Code (in short "the I.P.C.") // 2 //

and an order of sentence was passed against him for the offence under Section 304, Part-I of the I.P.C. to undergo R.I. for five years.

2. The appellant was the sole accused before the learned trial court, i.e., before the court of learned Sessions, Koraput at Jeypore in Sessions Case No.158 of 1992 arising out of G.R. Case No.178 of 1992 in Connection with Kundra P.S. Case No.16(6) of 1992.

3. The case of the prosecution against the accused before the trial court was that, on 20.03.1992 at about 2.00 P.M., the deceased Jagannath Chandal had moved to his village weekly market at Girliguda, the accused, (who is the co-villager of the deceased) had also moved to that weekly market. When the deceased was present in the weekly market, the accused demanded his dues from him (deceased) and when the deceased did not pay the same, then the accused assaulted the deceased through "Amari stick" (M.O.II). After return of the accused to his house from the weekly market, the deceased went to his house at about 5.00 P.M. and tried to catch the neck of the accused. For which, the accused gave a push blow to the deceased, by the result of which, he (deceased) fell down, then, the accused picked up a wooden lathi (M.O.I) from his bullock cart and dealt three successive blows by that lathi on the belly of the deceased. For which, he (deceased) returned back from the house of the accused, but subsequent, thereto, he (deceased) expired. Then the father of the deceased, i.e, Shukumana Chandal lodged a written F.I.R. vide Ext.3 before the OIC, Kundra Police Station at about 7.45 P.M. alleging the aforesaid allegations against the accused.

Basing upon such F.I.R. vide Ext.3, the OIC, Kundra Police Station, i.e., S. Narasingh Achary registered Kundra P.S. Case No.16 of // 3 //

1992 and he (OIC S. Narasingh Achary) himself took up the investigation of the case.

4. During investigation, he(I.O.) examined the informant, recorded his statements, visited the spot, held inquest over the dead body of the deceased, prepared the inquest report (Ext.8), seized "Amari stick" (M.O.-II) from the weekly market of village Giriliguda through seizure list (Ext.9), sent the dead body of the deceased through dead body challan (Ext.6) for Post-mortem examination and accordingly, Post- mortem examination over the dead body of the deceased was conducted by the Dr. Biswanath Barik and the Post-mortem report (Ext.1) was prepared. Then, he (I.O.) seized the wearing apparels of the deceased through seizure list (Ext.7) and received Post-mortem report (Ext.1) from the doctor and before completion of investigation, he(OIC) S. Narsingh Achary handed over the charge of investigation to C.I., Suresh Kumar Panda on dated 28.03.1992 and since then, he (I.O. Suresh Kumar Panda) proceeded with the rest part of the investigation. During investigation, he (I.O., Suresh Kumar Panda) visited the spot, examined other witnesses, arrested the accused, seized the weapon of offence vide (M.O.-I) through seizure list (Ext.4), forwarded the accused to the court, made a query from the doctor, received the query report (Ext.2/1) and prepared the spot map (Ext.11). After completion of the investigation, he (I.O.) submitted Final Form against the accused placing the accused to face the trial under Section 302 of the I.P.C.

Accordingly, after commitment of the case from the court of learned S.D.J.M., Jaypore to the court of learned Sessions Judge, Koraput at Jeypore, the accused faced trial in Sessions Case No.178 of 1992 // 4 //

having been charged under Section 302 of the I.P.C., 1860 for commission of murder of deceased Jagannath Chandal.

5. Plea of the defence was one of denial to the allegation of assault to the deceased by the accused through a wooden lathi.

In order to substantiate the aforesaid charge against the accused, altogether eight numbers of witnesses were examined on behalf of the prosecution, as P.Ws.1 to 8 and prosecution had relied upon several documents vide Exts.1 to 11 including the F.I.R., P.M. report and spot map vide Ext.3, 1 and 11, but, whereas defence examined one witness as D.W.1.

6. Out of the eight witnesses of the prosecution, P.W.3 is the informant, who is the father of the deceased. P.Ws.2 and 4 are the co- villagers of the accused and the deceased and out of them P.W.2 is the direct eye witness to the alleged incident. P.W.5 is a witness to the seizure. Rest four witnesses, i.e., P.Ws.1, 6, 7 and 8 are the official witnesses. Out of them, P.W.1 is the doctor, who had conducted autopsy over the dead body of the deceased. P.W.6 is the constable, who had escorted the dead body of the deceased for Post-mortem examination, P.W.7 is the 1st Investigating Officer and P.W.8 is the last Investigating Officer, who had submitted charge-sheet on completion of the investigation.

7. After conclusion of hearing and on perusal of the materials available in the record, the learned trial court found the accused guilty for the offence under Section 304, Part-I of the I.P.C., 1860 and convicted him thereunder by awarding the sentence against him as stated above // 5 //

vide judgment dated 17.06.1993 passed in Sessions Case No.158 of 1992 by relying upon the testimony of P.Ws.2 and 3.

On being dissatisfied with the above judgment of conviction and order of sentence passed against him (accused), he (accused) has challenged the same by preferring this appeal being the appellant after taking several grounds in this appeal memo.

I have already heard from the learned counsel for the appellant and the learned Standing Counsel for the State and so also have perused the materials and evidence available in the record.

8. During the course of hearing of the appeal, learned counsel for the appellant contended that, the impugned judgment of conviction and order of sentence passed by trial court against the accused basing upon the testimonies of P.Ws.2 and 3 cannot be sustainable under law, because their evidence are contrary to each other and full of discrepancies. The case of the prosecution is not free from doubt and suspicion.

On the contrary, learned Standing Counsel for the State argued in support of the impugned judgment of conviction and order of sentence passed by the learned trial court contending that, the well corroborated un-assailed testimonies of P.Ws.2 and 3 is justifying the impugned judgment of conviction and order of sentence passed against the accused by the learned trial court, which cannot be interfered.

9. The so-called solitary eye witness of the alleged incident, i.e., P.W.2 has deposed in his Examination-in-Chief by stating that, "the assault was made on the deceased by the accused in two different places, i.e., first at the weekly market at about 2.00 P.M. and thereafter, in the house of the accused at about 5.00 P.M.

// 6 //

10. In that regard, P.W.2 has deposed in his Examination-in-Chief by stating that "their village weekly market sits on each Friday. He had been to weekly market, which is one kilometer away from their village. In the weekly market, Jagannath (deceased) was sitting in front of a Betel Shop, the accused came there and asked money. Jagannath (deceased) told 'Ki Paisa Debi Re Magiyan', then, the accused picked up a Amari stick from the ground and dealt one blow with it on the back of Jagannath (deceased) and threw that stick near a mango tree and fled away into the market. Then, Jagannath (deceased) and he (P.W.2) came from there towards their village. On the way, Jagannath (deceased) took liquor in the house of Dambu Bissoi. Thereafter, Jagannath (deceased) went towards his house and he (P.W.2) also went to his house. At about half an hour after, Jagannath (deceased) came to his house and called him (P.W.2) to the house of the accused. He (P.W.2) accompanied him. The accused was found absent in his house. At that time, his mother was in the house. Jagannath (deceased) slept in the front Pinda of the house of the accused and his mother went to call the accused. When the accused came, Jagannath (deceased) told him (accused) that, he (accused) has assaulted him in the market, then let him take his life there and saying so, he (deceased) tried catch the neck of the accused. So, the accused pushed him(deceased) back. As a result of which, Jagannath (deceased) fell down. Then the accused got Jagannath(deceased) up and the accused brought out a stick from the bullock cart and dealt three blows by that stick (M.O.-I) on the belly of Jagannath(deceased). Thereafter, the accused fled away from the spot. Then, he(P.W.2) and Jagannath (deceased) came towards their house. On the way, Jagannath told that, he is feeling severe plain inside his belly, so he, (P.W.2) left the deceased in // 7 //

the shop of one Pati and again went to the weekly market. In the evening, he (P.W.2) learnt that, Jagannath succumbed to the injuries."

The above evidence of P.W.2 is clearly and unambiguously going to show that, the alleged incident regarding the alleged assault on the deceased (for which the deceased expired) was taken place in the house of the accused. Therefore, according to P.W.2, the spot of incident concerning the death of the deceased is at the house of the accused.

11. The above evidence of P.W.2 concerning to the spot of occurrence relating to the death of the deceased has been fully contradicted by the informant (P.W.3), who is the father of the deceased.

12. Because, he(P.W.3) has deposed in his Examination-in-Chief by stating that, "on that day, Jagannath(deceased) had been to the weekly market along with his another son, namely, Prafulla. Prafulla told him at about noon time that, the accused dealt a stick blow on Jagannath in the weekly market near a betel shop. After about one hour, while he (P.W.3) was going to the market to see his son Jagannath(deceased), on his way, he saw that, his son Jagannath is sitting near the shop of Pati Bhumia bending his face downwards, the village Post Master Udayanath Gantayat is sitting in that shop. He (P.W.3) asked him as to why Jagannath is sitting in such a condition. He (P.W.3) was informed that, the accused assaulted Jagannath. In the meantime, Jagannath fell down near his sitting place and he (P.W.3) tried to give him(deceased) water, but water did not enter inside his mouth and was found dead. From there, he (P.W.3) came to Kundra Police Station and orally reported, which was reduced into writing by the police. The contents were read over and explained to him. Admitting the same to be correct, he (P.W.3) signed in the F.I.R. vide Ext.3/1.

// 8 //

13. P.W.3 has written in the F.I.R. vide Ext.3 that, "at about 5.00 P.M. his one son Prafulla told him that, while his another son Jagannath(deceased) was sitting in the betel shop of Bhusanga Gouda, the accused assaulted him through a 'Amari stick' and then, went into weekly market. When the deceased Jagannath was returning to the house from the weekly market, on the way of his return, Raghu Chandal, Madhu Chandal, Krupa Chandal, Sada Chandal and Rupathar Chandal assaulted him (deceased) by giving kicks and fist blows, for which, the deceased fell down on the ground. The said incident was witnessed by Pati Damba of their village. For which, he (P.W.3) lodged the F.I.R. alleging that the accused Naresh along with Raghu Chandal, Madhu Chandal, Krupa Chandal, Sada Chandal and Rupathara Chandal have killed his son assaulting him in order to take revenge of their previous grudge on him due to their enmity since long relating to the case between them."

14. P.W.3 has deposed in para no.5 of his deposition by answering to the questions of the learned defence counsel that "he had lodged F.I.R. against six persons in the Police Station. He(P.W.3.), Raghu and others are in litigating terms since four to five years.

15. The above evidence of P.W.3 (Informant) is going to show that, the incident had occurred on the way of return of the deceased from the weekly market of their village, but, not in the house of the accused.

The above evidence of P.W.3 regarding non-happening of any incident in the house of the accused finds support from the contents of the F.I.R vide Ext.3. Because, the recitals of the F.I.R. vide Ext.3 are clearly and unambiguously going to show that, six persons had assaulted the deceased and the death of the deceased is the outcome of the assault // 9 //

of six persons, i.e., Raghu Chandal, Madhu Chandal, Krupa Chandal, Sada Chandal and Rupathara Chandala including the accused.

16. When P.W.2 has deposed above that, the alleged incident of assault, (for which, the deceased expired) had occurred in the house of the accused, to which, the informant (P.W.3) has contradicted by stating that the said incident had not occurred in the house of the accused, but, in an another place, i.e., on the way during the time of return of the deceased from the weekly market.

When P.W.2 has deposed that only the accused had assaulted the deceased, to which, P.W.3 has contradicted by stating that, the death of the deceased is the outcome of the assault of the six persons specifically named in the F.I.R.(Ext.3).

When P.W.2 has specifically deposed above that, he is the only eye witness to the alleged incident, to which P.W.3 has contradicted by stating that, the incident was witnessed by only Pati Damba of their village, but not by P.W.2. That Pati Damba has not been examined as a witness during trial on behalf of the prosecution.

As such, the spot of occurrence is differing by the aforesaid evidence of P.Ws.2 and 3, which is ultimately creating genuine doubt about the spot of occurrence due to the above veracity in the evidence of P.Ws.2 and 3.

17. P.W.3 (informant) has stated in the F.I.R. vide Ext.3 and so also has deposed in his evidence by stating that, six persons, i.e., other five along with the accused had participated in the alleged incident and the death of the deceased is the outcome of assault of the said six persons (according to the story of the prosecution), but, it is very curious enough // 10 //

that, the Investigating Officer has submitted charge-sheet against the sole accused leaving other five so-called involved persons (named in the F.I.R.). During trial also no step has been taken on behalf of the prosecution for addition of the said F.I.R. named five persons as accused persons even after the deposition of P.W.3 in the trial court. The above conduct of the prosecution regarding the adoption of pick and chose method for implication of the appellant as sole accused and non- implication of other so-called five F.I.R. named persons without any plausible explanation for their non-implication is ultimately making the case of the prosecution doubtful and suspicious. To which, in other words, it can be held that, prosecution has suppressed the genesis of the occurrence by not presenting the true versions. Therefore, prosecution cannot be made free from blame for the suppression of the material facts and true state of affairs. For which, it is held that, prosecution has not approached the court with clean hands for having a fair trial through a fair investigation.

18. On this aspect, when the spot of occurrence differs and when there is suppression of the genesis of the occurrence by the prosecution like this case at hand, the ratio of the following decisions can be referred to:-

(i) CLT(2007) Supp. Crl. -761--State of Orissa vrs. Sairam Samal and four others (para-8) I.P.C., 1860-- Sections-148 and 302/149-- "When genuine doubt arises about the spot of occurrence due to veracity of evidence between P.Ws.8 to 12, then the case of the prosecution cannot be held as free from doubt."

(ii) 2007(3) Crimes (M.P.)--714--Udai Singh vrs. Stae of Madhya Pradesh--CRL TRL--"If prosecution // 11 //

has suppressed the genesis and origin of the occurrence and thus not presented true version, then the accused is entitled for the benefit of doubt."

19. On analysis of the facts and circumstances of the case as per the discussions and observations made above, when there is genuine doubt about the spot of occurrence due to the veracity in the evidence of P.Ws.2 and 3 regarding the same and when prosecution has adopted a pick and chose method for implication of the sole accused leaving the other so- called five F.I.R. named involved persons and when the named eye witness of the F.I.R. has not been examined on behalf of the prosecution and when there is no explanation on behalf of the prosecution regarding the cause and reason of leaving up of the other F.I.R. named so-called involved persons from implication and when prosecution has suppressed the genesis of the occurrence by not presenting the true version and when some doubt has arisen on the fairness of the investigation and trial, then, at this juncture, the case of the prosecution cannot be held as free from doubt and suspicion.

It is the settled propositions of law that, no conviction in any criminal case can be based against any accused either on the doubtful story or on the doubtful evidence of the prosecution.

When as per the discussions and observations made above, this case at hand, is affected by the above both defects, i.e., neither the case of the prosecution is free from doubt nor the evidence of the witnesses is beyond suspicion, then, at this juncture the impugned judgment of conviction and order of sentence passed by the learned trial court against the accused cannot be sustainable under law. For which, there is justification under law for making interference with the same through // 12 //

this appeal filed by the appellant. Therefore, there is merit in the appeal of the appellant. The same must succeed.

20. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and order of sentence passed against the accused (appellant) in Sessions Case No.158 of 1992 by the learned Sessions Judge, Koraput at Jeypore under Section 304, Part-I of the I.P.C. is set aside. Accordingly, the accused(appellant) is acquitted from the offence under Section 304, Part-I of the I.P.C., 1860 on the ground of benefit of doubt. Therefore, he accused(appellant) is directed to be set at liberty forthwith after being discharged from his bail bonds. The appeal is disposed of finally.

( A.C. Behera ) Judge Orissa High Court, Cuttack The 13th of October, 2023/ Jagabandhu, P.A.

Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 13-Oct-2023 18:51:20