Sahadev Majhi vs State Of Odisha
2023 Latest Caselaw 10875 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                    CRLA No.696 of 2021
      In the matter of an Appeal under section 374 (2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 31.01.2020 passed by the learned Additional
Sessions Judge-cum-Special Judge (Vigilance), Bhawanipatna in C.T.
Case No.58/02 of 2018 (Sessions).
                              ----

    Sahadev Majhi                           ....    Appellant


                               -versus-
    State of Odisha
                                            ....    Respondent
           Appeared in this case by Hybrid Arrangement
                       (Virtual/Physical Mode):

            For Appellant-    Mr. Prabhav Behera,
                              (Advocate)

         For Respondent- Mr. Sonak Mishra,
                         Additional Standing Counsel
      CORAM:
      MR. JUSTICE D.DASH
      DR. JUSTICE S.K.PANIGRAHI

Date of Hearing :25.08.2023       ::      Date of Judgment: 05.09.2023

D.Dash,J. The Appellant, by filing this Appeal, has assailed the

judgment of conviction and the order of sentence dated 31.01.2020

passed by the learned Additional Sessions Judge-cum-Special Judge

(Vigilance), Bhawanipatna, Kalahandi in C.T. Case No.58/02 of 2018

(Sessions), arising out of C.T Case No.376 of 2018, corresponding to

CRLA No. 696 of 2021 {{ 2 }}

Lanjigarh P.S. Case No.25 of 2018 of the Court of learned Sub

Divisional Judicial Magistrate (SDJM), Bhawanipatna.

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302 of Indian Penal Code, 1860

(in short, 'the IPC') and Section 27 of the Arms Act and he has been

sentenced to undergo imprisonment for life and pay fine of Rs.2000/-

(Rupees Two Thousand), in default to undergo Rigorous Imprisonment

for 6 (six) months for the offence under section 302 of the IPC and

Rigorous Imprisonment for three (03) years and fine of Rs.1000/-

(Rupees One Thousand) in default to undergo further Rigorous

Imprisonment for three (03) months for the offence under section 27 of

Arms Act.

Prosecution case:-

2. On 04.06.2018 one Arma Haldar, wife of late Mrunal Haldar of

village Basantpada lodged a written report (Ext.3) scribed by one

Bhusana Mali (P.W.8) as per her instruction with the Inspector-in-

Charge (IIC) of Lanjigarh Police Station. It was stated that on the

previous evening, around 7 p.m., when she with others were in the

house, they heard hullah near Dharani Shala (place of worship of the

village Deity) and therefore coming out of the house, they proceeded in

CRLA No. 696 of 2021 {{ 3 }}

that direction. It is stated that then she saw accused Sahadev to have

pierced a knife on the chest of her husband and when she shouted, the

accused took to his heels. Receiving the injury on the chest by means of

knife, Mrunal died at the spot. The IIC, having received the written

report as above (Ext.3), treated the same as FIR and upon registration of

the case, took up investigation.

The Investigating Officer (I.O-P.W.23) in course of investigation,

examined the Informant and other witnesses. He then proceeded to the

village and visited the spot. He also prepared a spot map (Ext.15) to that

effect. In the village, he examined other witnesses and with the help of

the members of the scientific team, incriminating articles being

collected, those were seized under seizure lists. The dead body was sent

for post mortem examination. The wearing apparels of the deceased

were seized. On 7.6.2018, the accused was arrested from his house and

on his production in presence of witnesses, his wearing apparels were

seized under seizure list (Ext.12). The accused was also sent for medical

examination. The incriminating articles were sent for chemical

examination through Court.

On completion of investigation, the Investigating Officer

(P.W.23) submitted the Final Form placing this accused to face the Trial

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for committing offence under section 302 of the IPC and Section 27 of

the Arms Act.

3. Learned SDJM, Bhawanipatna receiving the Final Form as above,

took cognizance of the offence and after observing the formalities

committed the case to the Court of Sessions. That is how the Trial

commenced by framing charge against the said offences against the

accused.

4. In the Trial, the prosecution in total has examined twenty three

(23) witnesses. Out of them, P.W.1 is the daughter of the deceased and

P.W.2 and P.W.21 are post occurrence witnesses whereas P.W.4 is the

son-in-law of the deceased and also a witness to the inquest with two

others P.W.7 and P.W.10. The Informant being dead, the FIR (Ext.3),

has been proved by the scribe by P.W.8 and the Doctor, who had

conducted post mortem over the dead body of the deceased has been

examined as P.W.11. P.W.12, P.W.14 and P.W.17 are the witnesses to

the seizure of wearing apparels and slippers of the deceased whereas

P.W.13 and P.W.14 are the two witnesses to the seizure of wearing

apparels of the deceased. One Member of scientific team has been

examined as P.W.18 and the Investigating Officer has come to the

witness box as P.W.23.

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5. The prosecution besides leading the evidence by examining above

the witnesses, has also proved several documents which have been

admitted in evidence and marked as Ext.1 to Ext.21. Out of those, the

important are; the FIR, Ext.3. Ext.1 is the inquest report whereas Ext.4

is the post mortem report and Ext.12 is the seizure list showing seizure

of the wearing apparels of the accused. The chemical examiner's report

and the report of the Scientific Officer have been admitted in evidence

and marked Ext.21 and Ext.20 respectively.

6. The accused despite opportunity has not tendered any evidence in

support of his plea of denial and false implication.

7. The Trial Court on going through the evidence of the Doctor

(P.W.11) and his report (Ext.4) as well as the evidence of the I.O

(P.W.23) and the inquest report (Ext.1) as also the other evidence on

record has come to the conclusion that Mrunal met a homicidal death. In

fact this aspect of the case was not under the challenge during the Trial

and that has also been the position before us.

8. The evidence of P.W.11, the Doctor, who had conducted autopsy

over the dead body of the deceased is that he had noticed a knife to have

gone deep into the chest of the deceased with part remaining outside.

According to his evidence, there was three stab wounds on the chest i.e.

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over the anterior surface of left side of chest, 2.5 c.m. below the left

nipple, on the anterior surface of the left side of the chest to the left

nipple and the last one on the left side of lateral surface of the chest in

the left anterior auxiliary line. On dissection, huge amount of clotted

blood more than about two liters were found to be there on the left

thoracic cavity when anterior surface of the right ventricle of heart was

found to have been punctured into its muscle wall. He had also noticed

one lacerated wound over the anterior surface of lower lobe of the left

lung and another lacerated wound over the lateral surface of the lower

lobe of the left lung. All these injuries according to him were ante

mortem in nature and the death was the result of chest injuries with the

corresponding internal injuries. With the above evidence, we too find

the evidence of the I.O (P.W.23), who had held inquest over the dead

body of the deceased who had noted the injuries in his own language in

the inquest report (Ext.1) prepared in presence of the witnesses who

have also seen such injuries on the person of the deceased besides other

witnesses. When we find that the above evidence on record have

remained unchallenged, we are left with no option but to concur with the

finding of the Trial Court that the death of Mrunal was homicidal in

nature.

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9. Mr. Prabhav Behera, learned counsel for the Appellant (accused)

submitted that in the present case, the informant, who is the wife of the

deceased being not examined as she by then was dead, the version in the

FIR cannot be taken as substantive evidence in so far as the complicity

of this accused is concerned. He, however, fairly submitted that even if

the FIR (Ext.3) is kept beyond the arena of consideration, the other

evidence on record would stand for examination to ascertain the

complicity of the accused without being thrown aside simply for non-

examination of the maker of the FIR (Ext.3). He, therefore, submitted

that the evidence of P.W.1 is first required to be examined. It was

submitted that P.W.1, the daughter of the deceased examined when

states to have seen the occurrence being there in the village with her

mother; P.W.4, the son-in-law of the deceased has stated that P.W.1 was

then in Thiruvali in the house of her Mausi which is at a distant place

and on the next day, she came to the village. He, therefore, submitted

that when the very presence of P.W.1 in the village is highly doubtful,

being stated differently by P.W.4, who is not a hostile witness and rather

a relation of the deceased; it would be highly unsafe to rely upon the

evidence of P.W.1 without strong corroboration. He, further submitted

that there is no other evidence to corroborate the evidence of P.W.1.

According to him, P.W.1's evidence when gets eschewed for

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consideration, the other evidence that the wearing apparels of the

accused stained with blood matching with the blood group of the

deceased cannot by itself form the foundation of a conviction. He also

submitted that the evidence as to said seizure from the custody of the

accused is not proved. He submitted that the evidence of the seizure of

the wearing apparels of the deceased and accused as said to be upon his

production is highly suspicion inasmuch as the evidence of independent

witnesses and also the I.O (P.W.23) would not satisfy the mind of the

Court that it was the accused, who had produced those wearing apparels

stained with blood and were then seized. He therefore submitted that the

judgment of conviction and order of sentence impugned in this Appeal

cannot be sustained.

10. Mr. Sonak Mishra, learned Additional Standing counsel submitted

that it would not permissible to disbelieve P.W.1, who happens to be the

daughter of the deceased and the informant who could not be examined

being dead by the time of Trial by simply relying on the stray statement

of P.W.4 as to her absence when no such material is surfacing in the

evidence of P.W.1 to disbelieve her version regarding her presence in

the village in seeing the incident with her mother in the relevant

evening. He further submitted that the evidence of P.W.1 receive

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corroboration from the evidence as to the seizure of wearing apparels of

the accused stained with human blood of the same group as that of the

deceased which is not being explained and with the same, according to

him, the finding of guilt against the accused as has been returned by the

Trial Court is not liable to be interfered with.

11. Keeping in view the submissions made, we have carefully read

the judgment of conviction impugned in this Appeal. We have also gone

through the depositions of all the witnesses P.W.1 to P.W.23 and have

perused the documents which have been admitted in evidence and

marked Ext.1 to Ext.21.

12. In the instant case, the prosecution heavily relies upon the

evidence of P.W.1 to bring home the charge of murder of Mrunal by the

present accused. This P.W.1 is the daughter of the deceased and the

Informant. The Informant being dead has not been examined when the

FIR lodged by her has been proved through the scribe (P.W.8) as Ext.3.

Thus in the case at hand, the prosecution has lost the opportunity of

obtaining the evidence of one eye witness. As per the settled position of

law, the version of the Informant in the FIR (Ext.3) cannot be treated as

the substantive evidence when its maker has not appeared in the witness

box and stated all in support of the same. The evidence of P.W.8, the

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scribe of the FIR (Ext.3) cannot be the substitute of the evidence of the

Informant. Therefore, in order to judge the sustainability of the finding

of the Trial Court as to the complicity of the accused, we are called upon

to turn our attention to the evidence of P.W.1. She has stated that on the

relevant evening, hearing hullah when she with her mother came of the

house, they saw accused inflicting knife blows on the left side chest of

her father and seeing them, the accused went away. She has further

stated that the knife used by the accused was intact in the chest of her

father and that knife was without any handle. She has identified the

knife in the Court which has been marked as one of the Material Objects

i.e M.O.-I. She however, in her evidence has stated that at the time of

the incident, ten to fifteen co-villagers were present at the spot. Having

stated so, she has not been able to name any of them as she states to

have not seen their face. When above is her evidence, we find from the

evidence of P.W.4, who is the son-in-law of the deceased and informant

to be of quite significant. He says to have gone to the village on the next

day after he came to know about the murder of his father-in-law.

Although he has stated that the villagers present at the spot, disclosed

that his father-in-law was murdered by accused Sahadev, he is silent as

to whether he had met P.W.1 and the informant (mother-in-law), who

had detailed the incident and attributed the authorship of the injuries

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upon his father-in-law to this accused. This witness is not a hostile

witness. He is a witness to the inquest and has proved the report

prepared by P.W.23 as also the seizure list relating to seizure of some

incriminating articles. This witness has assertively answered during

cross-examination that on the day of murder of his father-in-law, P.W.1

was in Theruvalli in the house of her Mausi. Having not stopped there,

there he has further gone to state that on the next day P.W.1 came to the

village of the deceased Basatapada. Thus the evidence of P.W.4 belies

the version of P.W.1 as regards her presence in the village in the

relevant evening. Furthermore, we find that in the very FIR (Ext.3),

nothing is indicated that P.W.1 had gone with her mother (Informant) to

the place of occurrence hearing the noise or even that she was there at

home in the relevant evening. So when the daughter of the deceased is

posing herself to be the eye witness to the occurrence, the evidence of

one son-in-law of the deceased creates grave suspicion in mind as to

presence of P.W.1 in the village when he being the son-in-law of the

deceased, his knowledge about the living of P.W.1 is all the more

expected. Therefore that evidence of P.W.4 cannot be ignored as a stray

statement, moreso when having stated her presence in another place, he

further stated about her (P.W.1) arrival on the day following. The

villagers such as P.W.5, P.W.6, P.W.7, P.W.8, P.W.9 and P.W.10 are

CRLA No. 696 of 2021 {{ 12 }}

not supporting the prosecution case by even saying that they had heard

about the complicity of this accused from the Informant (Arma Haldar)

or from P.W.1.

13. Having said so, when we proceed to examine the other important

evidence let in by the prosecution with regard to the seizure of the

wearing apparels of the accused stained with the human blood matching

with the blood group of the deceased, we find the evidence of P.W.23 on

this score to be most casual and unsatisfactory. After apprehending of

the accused in his house on 07.06.2018, the I.O (P.W.23) states to have

sent him for medical examination. The medical examination requisition

issued by P.W.23 is dated 07.06.2018 which has been admitted in

evidence and marked Ext.17. The time of issuance of such requisition

has not been noted nor it is being stated by P.W.23. The Doctor has

examined this accused at 11.15 am. As per the evidence of P.W.23 at

11.30 am, the wearing apparels of the accused was seized on his

production. That seizure list is Ext.12. The time of seizure indicated in

the seizure list clearly appears to the necked eye to have been

manipulated and noted as 11.50 am. The place of seizure of those

wearing apparels is noted to be at the P.S. So when the accused was sent

for medical examination he was not wearing those Jean full pant and

CRLA No. 696 of 2021 {{ 13 }}

yellow T-Shirt. Had it been so, the Doctor, who examined him

medically would have noted the same in his report (Ext.17). The I.O

(P.W.23) also does not state that when he apprehended the accused, he

was wearing those pant and T-Shirt. Thus the evidence of P.W.23 as

regards the seizure of the wearing apparels of the accused stained with

blood of human origin on his production has not been proved through

clear, cogent and acceptable eviedence. That apart, the two seizure

witnesses examined i.e. P.W.13 and P.W.14 have not stated as to where

the seizure was made and whether the accused was wearing those pant

and t-shirt prior to the seizure or not or had brought those with him or by

bringing from some place, produced for seizure.

Thus we find that the prosecution has failed to prove the factum

of seizure of wearing apparels of the accused stained with human blood

on his production after his apprehension beyond reasonable doubt.

14. On a conspectus of discussion of evidence as hereinabove, we are

of the view that the prosecution has failed to establish the charge against

the accused beyond reasonable doubt.

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

conviction and order of sentence dated 31.01.2020 passed by the learned

Additional Sessions Judge-cum-Special Judge (Vigilance),

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Bhawanipatna, Kalahandi in C.T. Case No.58/02 of 2018 (Sessions) are

hereby set aside.

The Appellant (accused) be set at liberty forthwith, if his

detention is not warranted in connection with any other case.

(D. Dash), Judge.

                     Dr.S.K. Panigrahi, J.    I Agree.


                                                                    (Dr.S.K.Panigrahi),
                                                                          Judge.




         Gitanjali




Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 05-Sep-2023 14:48:09

                     CRLA No. 696 of 2021