Orissa High Court
Banamali Sahu & Others vs State Of Odisha on 19 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.46 OF 2023
In the matter of an Appeal under section-374(2) of the Code of
Criminal Procedure, 1973 and from the judgment and order of
sentence dated 12th September, 2022 passed by the learned Additional
District & Sessions Judge, Boudh in Sessions Trial No.56 of 2016 (T).
----
....
Banamali Sahu & Others Appellants
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
=================================================
For Appellants - Mr. Jugal Kishore Panda,
Advocate,
For Respondent - Mr. Sonak Mishra,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
DATE OF JUDGMENT: 19.10.2023
D.Dash,J. The Appellants by filing this Appeal has assailed the judgment of
conviction and order of sentence dated 12th September, 2022 passed
by the learned Additional District & Sessions Judge, Boudh in
Sessions Trial No.56 of 2016 (T) arising out of C.T. Case No.536 of
2015 corresponding to Baunsuni P.S. Case No.99 of 2015 of the file
of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Boudh.
CRLA NO.46 OF 2023
{{ 2 }}
The Appellants (accused persons) thereunder have been
convicted for commission of offence under section-302/201/34 of the
Indian Penal Code, 1860 (for short called as the IPC). Accordingly,
the Appellants (accused persons) have been sentenced to undergo
imprisonment for life and pay fine of Rs.10,000/- each in default to
undergo rigorous imprisonment for one (1) year for the offence under
section-302 of the IPC. The Appellants (accused persons) have been
further sentenced to undergo rigorous imprisonment for two years and
pay fine of Rs.5,000/- each in default to undergo rigorous
imprisonment for three months for the offence under section-201 of
the IPC.
2. Prosecution Case:-
On 10.11.2015 one Sujit Kumar Sahu (Informant-P.W.22)
submitted a written report with the Inspector-In-Charge (IIC) of
Baunsuni Police Station stating therein that on that day around 4.40
am early in the morning, his brother Hemanta had been towards the
village pond on morning walk. It was stated that during then, some
unknown persons having attacked Hemanta by means of axe and
bhujali, inflicted bleeding injuries on his person. One Nrusingha Sahu
(P.W.3) having seen Hemanta lying on the ground with profuse
bleeding rushed home and informed Sujit (Informant-P.W.22) about
CRLA NO. 46 OF 2023
{{ 3 }}
the same. Thereafter, Sujit (Informant-P.W.22) rushed to the spot and
he with the villagers took Hemanta to their house, where he
succumbed to the injuries.
It was indicated in the written report (Ext.10) that these accused
persons had enmity with Hemanta (deceased) since the year 2004 and
he had lodged the F.I.R. against them on earlier occasion for
committing the murder of their uncle, Niranjan Sahu. In that case,
Hemanta (deceased) was the Informant and looking after the case, had
also deposed against the accused persons. So Sujit (Informant-
P.W.22) in that report (Ext.10) expressed strong suspicion that it was
the accused persons who had committed the crime in intentionally
causing the death of his brother Hemanta (deceased).
3. The IIC, Baunsuni Police Station having received such written
report from the Informant (P.W.22) treated the same as F.I.R. and
registering the case, took up investigation. The Investigating Officer
(I.O.-P.W.32) in course of investigation, examined the Informant
(P.W.22) and then visited the spot. There he seized the blood stained
and sample earth. She held inquest over the dead body of the deceased
in presence of witnesses and prepared report (Ext.9) to that effect. She
then issued the requisition for holding postmortem examination over
the dead body. She too seized the wearing apparels of the deceased
CRLA NO. 46 OF 2023
{{ 4 }}
under seizure list and then arrested accused persons. It is stated that
the accused persons while in custody stated to have kept the 'Katara'
in a place known to them and that if they would be taken, would give
recovery of the same. The statements of the accused persons being
recorded by the I.O. (P.W.32), the accused persons were said to have
led P.W.32 and others to the paddy field and gave recovery of the
'Katara' stained with blood which was seized by the I.O. (P.W.32).
The seized incriminating articles were sent for chemical examination
through Court. The I.O. (P.W.32) in view of receipt of order of
transfer handed over the Investigation of the case to her successor in
Office i.e. P.W.33, who on completion of investigation submitted the
Final Form placing all these accused persons to face trial for
commission of offence under section-302/201/120-B/109/34 of the
IPC.
4. Learned S.D.J.M., Boudh, having received the Final Form as
above, took cognizance of the said offences and after observing
formalities, committed the case to the Court of Sessions for Trial.
That is how the Trial commenced by framing the charge for the said
offences against the accused persons.
5. In the Trial, the prosecution in total examined thirty three (33)
witnesses. Out of them, the important are P.W.2 and P.W.18, who had
CRLA NO. 46 OF 2023
{{ 5 }}
first seen Hemanta (deceased) lying on the ground in pool of blood,
receiving multiple injuries on his person. The three brothers of the
deceased are P.W.21, P.W.22 and P.W. 31 and P.W.30 is the wife of
the deceased. The witness to the seizure of the weapon, 'Katara' said
to have been recovered and seized at the instance of the accused
persons is P.W.28. The Doctor, who had conducted postmortem
examination over the dead body of Hemanta has come to the witness
box as P.W.29; whereas two Investigating Officers (I.Os.) are P.Ws.
32 and 33.
6. The prosecution besides leading evidence by examining the
above witnesses has also proved several documents which have been
admitted in evidence and marked Exts.1 to 32 as stated in detail in the
list provided at the foot of the judgment of the Trial Court, which
would be referred to in course of discussion to follow as per the
numbers assigned to those by the Trial Court.
7. The accused persons despite the opportunity have however not
tendered any evidence in support of their plea of denial and false
implication.
8. The Trial Court in the absence of any eye witnesses to the
occurrence projected by the prosecution having found the death of
Hemanta to be homicidal in nature by relying upon the evidence of the
CRLA NO. 46 OF 2023
{{ 6 }}
Doctor (P.W.29) and the postmortem report admitted in evidence and
marked Ext.14 and culling out the circumstances emerging from the
evidence on record has said that those being cumulatively viewed
make the chain of events so complete that an irresistible conclusion
stands that it is these accused persons who are perpetrators of the
crime and none else. Accordingly, the accused persons have been
convicted for the above offences and sentenced as aforestated.
9. The death of Hemanta to be homicidal was not under challenge
before the Trial Court and that has also been the situation before us.
The Doctor (P.W.29), who had conducted autopsy over the
dead body of the deceased, has stated to have noticed thirteen (13)
nos. of chop and cut injuries of different dimensions all over the body
of Hemanta. As per his evidence, the injuries were ante mortem in
nature and might have been caused by heavy sharp cutting weapons.
He further stated that those injuries were fatal enough in ordinary
course of nature and sufficient to cause death. As per his evidence, the
death was on account of shock and haemorrhage on account of those
cut and chop injuries received by the deceased. All such findings as
deposed to by P.W.29 find mention in his report, Ext.14. Such
evidence of the Doctor P.W.29, is found to have not been challenged
by the defence by directing by cross-examining in that light. In
CRLA NO. 46 OF 2023
{{ 7 }}
addition to the above, we find that the other witnesses including the
brothers and wife of the deceased as stated to have seen the deceased
with all such injuries over his body and particularly, the informant
(P.W.22) had stated that having gone to the spot and found his
brother-Hemanta lying injured, he had brought him to the house
where he succumbed to be injuries. The two witnesses who had first
seen the deceased lying on the ground and had informed to the
Informant (P.W.22) have also stated about the injuries inflicted upon
the body of the deceased. In view of the above evidence on record, we
are left with no option but to concur with the finding of the Trial
Court that Hemanta's death was homicidal.
10. Mr. Jugal Kishore Panda, learned Counsel for the Appellants
(accused persons) submitted that none of the circumstance noted by
the Trial Court is implicating and points at the guilt of the accused
persons. He further submitted that those circumstances even if joined
do not at all complete the chain of events normally do not lead to draw
any inference as to the guilt of these accused persons, much less to say
that thereby all the hypothesis other than the guilt of the accused
persons are ruled out. In support of the same, having taken us through
the circumstances pointed by the Trial Court and referring to the
evidence in support of each such circumstance, he has finally
CRLA NO. 46 OF 2023
{{ 8 }}
contended that the judgment of conviction and order of sentence
passed by the Trial Court which are impugned in this Appeal are
wholly unsustainable.
11. Mr. Sonak Mishra, learned Additional Standing Counsel while
supporting the finding of the Trial Court as against the accused
persons holding that they have intentionally caused the death of
Hemanta submitted that the circumstances which emerge from the
evidence on record such as the homicidal death of Hemanta, prior
enmity of the accused persons with that Hemanta (deceased), accused
persons leading the I.O. (P.W.32) and others in giving recovery of
Katara, the medical evidence that the injuries noticed by the deceased
were possible by that Katara and the seizure of other incriminating
materials connecting the accused persons being cumulatively viewed
make the chain of events so complete that the irresistible conclusion
would stand that in all human probability, it is the accused persons
who are responsible for the injuries caused upon the deceased leading
to his death.
12. Keeping in view the submissions made; we have carefully read
the judgment passed by the Trial Court and have extensively travelled
through the evidence adduced by the prosecution witnesses i.e. P.Ws.
CRLA NO. 46 OF 2023
{{ 9 }}
1 to 33. The documents admitted in evidence and marked Exts.1 to 32
from the side of the prosecution have been perused.
13. Admittedly, the prosecution case is not resting upon direct
evidence and in order to establish the charges, the prosecution banks
upon the circumstantial evidence.
It is the settled position of law that where the case rests on
circumstantial evidence, the circumstances from which the conclusion
of the guilt is to be drawn should, in the first instance, be fully
established. Each fact sought to be relied upon, must be proved
individually. However, in applying this principle, a distinction must
be made between 'facts' called 'primary' or 'basic' on the one hand
and inference of facts to be drawn from them, on the other. In regard
to proof of primary facts, the court has to judge the evidence and
decide whether that evidence proves a particular fact and if that fact is
proved, the question whether that fact leads to an inference of guilt of
the accused should be considered. In dealing with this aspect of the
problem, the doctrine of benefit of doubt applies. Although there
should not be any missing links in the case, yet it is not essential that
each of the links must appear on the surface of the evidence adduced
and some of these links may have to be interred from the proved facts.
In drawing these inferences, the court must have regard to the
CRLA NO. 46 OF 2023
{{ 10 }}
common course of natural events and to human conduct and their
relations to the facts of the particular case. The court thereafter has to
consider the effect of proved facts.
14. In deciding the sufficiency of the circumstantial evidence for
the purpose of conviction, the court has to consider the total
cumulative effect of all the proved facts, each one of which reinforces
the conclusion of guilt and if the combined effect of all these facts
taken together is conclusive in establishing the guilt of the accused,
the conviction would be justified even though it may be that one or
more of these facts by itself or themselves is/ are not decisive. The
facts established should be consistent only with the hypothesis of the
guilt of the accused and should exclude every hypothesis except the
one sought to be proved. But this does not mean that before the
prosecution can succeed in a case resting upon circumstantial
evidence alone, it must exclude each and every hypothesis suggested
by the accused, howsoever, extravagant and fanciful it might be.
There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of
the accused and must show that in all human probability the act must
have been done by the accused, where various links in chain are in
CRLA NO. 46 OF 2023
{{ 11 }}
themselves complete, then the false plea or false defence may be
called into aid only to lend assurance to the Court.
Bearing the above principle of law in mind, we are now called
upon to address the rival submission in judging as to whether the
finding of guilt as against the accused persons as has been returned by
the Trial Court satisfy the tests laid down so as to hold the field.
15. As already found by us, the death of Hemanta was homicidal in
nature and it has been established to have occurred due to infliction of
several cut and chop injuries on his person by means of heavy sharp
cutting weapons and thus Hemanta had been done to death.
Now the question comes up as to who is/are the perpetrator (s)
of the said crime; in other words author(s) of such injuries leading to
the death of Hemanta. The Trial Court in para-10 of its judgment has
noted, the circumstances one by one.
The first circumstance is homicidal death of Hemanta on
10.11.2015 morning after having sustained multiple bleeding injuries
all over his body. The next circumstance is the seizure of motorcycle
whose registered owner is accused Khiranaba Sahu. The motorcycle
seized by the I.O. (P.W.32) has been proved through one Rajib
Bhokta (P.W.1), on whose evidence, the seizure list, Ext.6/2 has been
admitted in evidence and that is also stated by the I.O. (P.W.32). We
CRLA NO. 46 OF 2023
{{ 12 }}
find that P.W.1 during trial has given a good bye to his previous
version. Although the prosecution has cross-examined, this P.W.1
with the permission of the Court, what we find that except drawing
attention of this witness to his previous statement that on 10.11.2015
night around 3 am, he having gone to his field for watering with his
father had seen accused Banamali and his sons assaulting the deceased
by means of bhujali and then had seen the motorcycle to be there
which have been stoutly denied; nothing else has been elicited from
him in support of the prosecution case. Said P.W.1 in his previous
statement had directly implicated the accused persons and also stated
that seized motorcycle to be there when he saw the incident has been
proved through I.O. (P.W.32). But now when P.W.1 has not supported
the case of the prosecution in any manner, his statement before the
I.O. (P.W.32) recorded under section-161 of the Cr.P.C. cannot be
taken as the substantive evidence except being considered to say that
said P.W.1 is suppressing the truth; which does not help the
prosecution in the direction of establishment of the charge.
In that situation, merely because on that day of occurrence, the
motorcycle belonging to accused-Khiranaba Sahu has been seized that
too from the house of one Makhana Bhoi, the same does not stand as
an incriminating circumstance pointing at the guilt as accused persons
CRLA NO. 46 OF 2023
{{ 13 }}
by drawal of any such inference or even that of accused-Khiranaba
Sahu. The third circumstance is found to be having no separate
identify and our view on the second circumstance pointed out by the
Trial Court as above stated provides the same treatment to the third
circumstance.
16. The prosecution has then led evidence as to the recovery of
'Katara' (M.O.I) pursuant to the statement of the accused persons in
pressing the same into service within ambit of the provision of
section-27 of the Evidence Act. Let us now see how far those required
facts have been proved.
The I.O. (P.W.32) has deposed that on 14.11.2015, he arrested
all the accused persons. It is not stated by him as to whether he
arrested all the accused persons from one place or from different
places and if so, who from which place. What was the time when he
arrested them is not in his evidence. He is also silent as to where he
brought them after arrest. This P.W.32 states that after arrest the
accused persons, Khiranaba, Banamali and Duryodhan voluntarily
gave the statements before him and the witnesses. But then he does
not state that who were witnesses present there. He next states that
accused Duryodhan gave the statement to have concealed the weapon
of offence that is 'Katara' in a field near the spot of occurrence, and
CRLA NO. 46 OF 2023
{{ 14 }}
then he states that said accused Duryodhan told that if they (MEANS
ALL THE ACCUSED PERSONS) would be taken to the spot of
concealment, they would give recovery of the same. He further states
that other two accused persons also stated the same before him. Their
statements were recorded in one sheet which he has proved as
Ext.13/1. His further evidence is that the accused persons then having
led him and witnesses to the spot, accused Duryodhan showed the
spot of concealment and gave recovery of the 'Katara', which was
seized under the seizure list-Ext.12.
P.W.28, the other I.O., who states to have gone to Baunsuni
Police Station on 14.11.2015 being called by P.W.32 has stated that
the accused persons had disclosed that while absconding from the
spot, they had concealed the weapon of offence i.e. Katara in the
cultivable land of Himansu Bhagat situated near Bastanpur road. He
has further stated that accused Duryodhan told them that if he would
be taken to that paddy field/ cultivable land, he would give recovery
of the weapon of offence which he had concealed. His evidence is that
P.W.32 came to the field led by accused Duryodhan and he (P.W.28)
along with Laba Sethi had accompanied and accused Duryodhan went
to the paddy field and brought out the weapon of offence from that
paddy field. He does not even state as to what was the type of that
CRLA NO. 46 OF 2023
{{ 15 }}
weapon. The version has been that "weapon of offence", which is too
generic. No other independent has come forward to speak about these
facts. We therefore find that the evidence of P.W.28 and 32 are
wholly unsatisfactory to arrive at a conclusion that the accused
persons had stated before the I.O. (P.W.32) in presence of the
witnesses that they had kept the Katara, recovery of which they would
give if were taken to the place where they had kept the same and that
they or any of them had taken this I.O. (P.W.32) to the place and give
the recovery of 'Katara'.
17. The last circumstance is the detection of human blood of
Group-B on the wearing apparels of the decease, Katara and detection
of human blood on helmet, seized with the motorcycle. At the risk that
we may commit mistake, truly speaking, we are not in a position to
understand as to how this can stand as an incriminating circumstance
against these accused persons. Now when we accept that the accused
persons were bearing grudge against the deceased and thereby had the
motive, that itself would not be enough to conclude that in all human
probability, it is the accused persons who had committed the murder
of Hemanta and none else.
18. In that view of the matter, the finding of the Trial Court holding
the accused persons guilty for commission of the offence under
CRLA NO. 46 OF 2023
{{ 16 }}
section-302/201/34 of the IPC cannot be sustained. Therefore, we
hold that the judgment of conviction and the order of sentence
impugned in this Appeal are liable to be set aside.
19. In the wake of aforesaid, the Appeal stands allowed. The
judgment of conviction and order of sentence dated 12th September,
2022 passed by the learned Additional District & Sessions Judge,
Boudh in Sessions Trial No.56 of 2016 (T) are hereby set aside.
Since the Appellants (accused persons) namely, Banamali Sahu
Duryodhan Sahu and Khirannaba Sahu are in custody, they be set at
liberty forthwith, if their detention in custody are not so required in
connection with any other case.
(D. Dash),
Judge.
Dr.S.K.Panigrahi, J. I Agree.
(Dr. S.K. Panigrahi),
Judge.
Narayan
Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Designation: Peresonal Assistant
Reason: Authentication
Location: OHC
Date: 19-Oct-2023 18:06:17
CRLA NO. 46 OF 2023
