Gangadhar Pradhan vs State Of Odisha
2023 Latest Caselaw 10881 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No.435 of 2016

        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 30th June, 2016 passed by the
  learned Additional Sessions Judge, Athagarh in Sessions Trial
  No.62 of 2015.
                                     ----

      Gangadhar Pradhan                        ....        Appellant

                                 -versus-

      State of Odisha                          ....       Respondent

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

              For Appellant      -        Mr.A.R. Pratihari
                                          (Advocate)

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

  Date of Hearing : 17.08.2023        :     Date of Judgment: 05.09.2023

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

question the judgment of conviction and the order of sentence

dated 30th June, 2016 passed by the learned Additional Sessions

Judge, Athagarh in Sessions Trial No.62 of 2015 arising out of

C.T. No.61/14 corresponding to Narsinghpur P.S. Case No.45(4)

CRLA No.435 of 2016

of 2014 of the Court of the learned Judicial Magistrate First Class

(J.M.F.C.), Narsinghpur.

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302/34 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.5,000/- (Rupees Five Thousand) in default to undergo rigorous

imprisonment for six (6) months for commission of the said

offence.

2. Prosecution Case:-

On 04.03.2014 night, around 2.00 am when Kartika Pradhan

was sleeping in the house of Saroj Pradhan (P.W.1), this accused,

namely, Gangadhar Pradhan with his two other brothers, namely,

Gayadhar Pradhan and Daya Pradhan assaulted him on his head

and other parts of his body by means of tangia. Kartika Pradhan,

being shifted to Narsinghpur Hospital, when was being taken to

S.C.B. Medica College & Hospital, Cuttack for better treatment,

being so referred to, died on the way.

Dukhi Pradhan (P.W.2), the wife of the Kartika (deceased)

lodged a written report with the Inspector-in-Charge (I.I.C.),

Narsingpur Police Station on 04.03.2014 at about 11.30 a.m. The

I.I.C., having received the said written report from Dukhi

CRLA No.435 of 2016

(informant-P.W.2), treated the same as FIR (Ext.2) and registering

the case, took up investigation.

3. In course of investigation, the Investigating Officer (I.O.-

P.W.8) examined the Informant (P.W.2) and other witnesses.

Having gone to the spot, he prepared the spot map (Ext.12). He

held inquest over the dead body of the deceased in presence of

the witnesses and prepared the report to that effect (Ext.1). The

dead body of the deceased was the sent for postmortem

examination by issuing necessary requisition. He also seized the

blood stained and sample earth as well as the blood stained mat

from the spot under seizure list (Ext.3). He further seized one

blood stained lungi and axe stained with blood from the

possession of the present accused Gangadhar under seizure list

(Ext.6) and another blood stained pant from the possession of

accused Gayadhar under seizure list (Ext.7). This accused as well

as accused Gayadhar, being arrested, were forwarded in custody

to Court. The wearing apparels of the deceased were seized on

production by the police constable, who had been deputed to

carry the dead body for post mortem examination. The seized

incriminating articles were sent for chemical examination

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

I.O. (P.W.8) submitted the Final Form placing the accused to face

CRLA No.435 of 2016

the Trial for commission of the offence under section 302/34 of the

IPC showing the other accused Daya as absconder.

4. Learned J.M.F.C., Narsinghpur, on receipt of the Final

Form, took cognizance of said offences and after observing the

formalities, committed the case to the Court of Sessions after

splitting up the case in respect of accused Daya whose presence

could not be secured. That is how the Trial commenced by

framing the charge for the aforesaid offence against the accused

as accused Gayadhar.

5. In the Trial, the prosecution, in support of its case, has

examined in total eight (8) witnesses. As already stated, P.W.2 is

the informant, who had lodged the written report (Ext.8) and she

happens to be the wife of Kartika is the cousin of P.W.1. P.W.1 is

son of P.W.4 and Kartika (deceased). P.W.3 is the adjoining

neighbour of P.W.1 and P.W.5 is another sister of Kartika

(deceased). The Doctor, who had conducted the post mortem

examination over the dead body of the deceased is P.W.6. P.W.7

is a witness to the seizure of tangia and blood stained lungi,

which are said to have been made from the possession of this

accused. The I.O. (P.W.8), at the end, has come to the witness box

as P.W.8.

Besides leading the evidence by examining the above

witnesses, the prosecution has also proved several documents

CRLA No.435 of 2016

which have been admitted in evidence and marked Exts.1 to 17.

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

spot map (Ext.12) and the post mortem report (Ext.4).

6. The plea of the accused is that of complete denial and false

implication on account of previous land dispute. In support of

said plea, the defence has examined one witness as D.W.1, being

the employer of this accused Gangadhar Pradhan and then the

accused has also examined himself as D.W.2 with the permission

of the Court.

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

doctor (P.W.6), who had conducted the post mortem examination

over the dead body of Karitka and his report (Ext.4), has arrived

at a conclusion that the death of Kartika was homicidal in nature.

In fact this aspect of the case was not under challenge before the

Trial Court and that has also been the situation before us.

The Doctor (P.W.6), during post mortem examination, had

noticed four incised wounds on the proximal part of third

metacarsal of left palm; on right hand with fracture on wrist joint;

on postero part of sole; and on upper part of right thigh 1" below

buttock and a fracture of left radious alnas, 2" below elbow joint

with dislocation and haematoma. He had also noted colles

fracture on left wrist joint with haematoma; abrasion on postero

part of wrist joint on left side and another incised wound under

CRLA No.435 of 2016

right arm antero laterally. He too had noticed compound fracture

of right leg with skin perforation and three linear abrasions on

left arm, right knee and antero lateral part of thigh. He has

deposed that all such injuries are ante mortem in nature and three

incised injuries, fracture and liner abrasion of right knee to be

grievous in nature. All such injuries have been noted in his report

Ext.4. It is his evidence that the death was on account of profuse

bleeding from the injuries. We find that even no attempt has been

made to impeach the evidence of the doctor (P.W.6).

Besides the same, it the evidence of the I.O. (P.W.8) that he

had noticed several injuries on the body when he held inquest

over the same and that he has also so noted in his report (Ext.1).

Other witnesses have stated to have seen all those injuries on the

person of the deceased. With such overwhelming evidence on

record, which have gone unchallenged, we are of the view that

the Trial Court has rightly held that Karitika (deceased) met a

homicidal death.

8. Mr. A.R. Pratihari, learned counsel for the Appellant

(accused), inviting our attention to the deposition of the

prosecution witnesses, submitted that the Trial Court is not right

in accepting the evidence of Padma Pradhan (P.W.4) and that of

P.W.1. He further submitted that the evidence of P.W.4 & P.W.1

greatly differ on material aspects of the case as to the happening

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of the incident as also the role played by the accused persons and

the act so committed them. He, therefore, submitted that the

finding of guilt as against this accused, as has been returned by

the Trial Court, cannot be sustained.

9. Mr.Sonak Mishra, learned Additional Standing Counsel for

the Respondent-State, while supporting the finding of the Trial

Court, as has been returned by the Trial Court as against this

accused, contended that the discrepancies as pointed out to be

appearing in the evidence of P.Ws.1 & 4 are too minor and those

being viewed as such, the positive evidence of P.W.4, who is an

eye witness to the occurrence having no axe to grind against the

accused persons is not liable to be eschewed from consideration

as her presence in the room during that night has been

established beyond doubt.

10. Keeping in view the submissions made, we have carefully

gone through the impugned judgment of conviction. We have

also travelled through the depositions of the witnesses examined

from the side of the prosecution (P.Ws.1 to 18) and have perused

the documents admitted in evidence marked as Exts.1 to 17.

11. Admittedly, in the night of occurrence, the deceased was

sleeping in the house of Banamali Pradhan, the father of P.W.1

and husband of P.W.4. It has been stated by P.W.4 that when she

was sleeping on the cot and the deceased was sleeping on the

CRLA No.435 of 2016

ground on a cot, it was around 2.00 a.m., she heard the shout of

the deceased and having woke up, saw this accused and two

others assaulting Kartika (deceased) by bhujali, katari and tangia.

She has further stated that when she intervened, she received a

blow on her right leg. She has stated that when she raised hullah,

her son (P.W.1) and his wife came to the room and then accused

persons fled away. It has also been stated by P.W.4 that after the

assault, Kartika (deceased) told P.W.1 to call his wife (P.W.2) and

daughter. Therefore, P.W.1 went to the house of the deceased and

with him, the wife of the deceased (P.W.2) and daughter came

there. P.W.1 is further stating to have heard shout in the night

around 2.00 a.m. as he was sleeping near the kitchen of the house

in question. He then stated to have immediately rushed to P.W.4

and saw this accused running away holding tangia and so also

two others running away carrying bhujali. It is further stated by

P.W.1 that the deceased then told him that this accused and two

others, namely Gayadhar and Daya had hacked him. When P.W.1

says that on his arrival, he saw this accused and two others

running away holding weapons; that is also stated by P.W.4.

P.W.1 when states to have been told by the deceased to call his

wife (P.W.2) and his daughter; P.W.2 goes to say that being called

by P.W.1, she and her daughter went to the house of P.W.1.

CRLA No.435 of 2016

P.W.4, however, states that after she intervened and

received the injury, hearing her hullah, P.W.1 and his wife came

when accused persons fled away and the criticism comes that as

the prosecution has not proved that P.W.4 had sustained any

injury, the evidence of P.W.4 as to her presence in seeing the

incident is doubtful. Interestingly, although this witness (P.W.4)

says to have received one blow on her left leg, the defence has not

elicited anything to show that there was any visible injury on

account of that. It is also the evidence of the wife of the deceased

(P.W.2) that when she was sleeping in her house, P.W.1 came and

informed that this accused with two others had assaulted her

husband (Kartika) and he being directed, had gone to call her

and her children. All have unequivocally stated to have seen this

accused and two others running away from the spot holding

lethal weapons and that has not been shaken in any manner nor

any such material has surfaced to doubt the same. The evidence

of P.W.4 standing corroborated by the evidence of P.W.1 and

P.W.2 on all material aspects of the case and the discrepancies as

pointed out, in our view, are too minor to push their evidence

into thick cloud of doubt. Furthermore, the P.W.4 has specifically

stated that then this accused was holding taniga; accused Gaya,

one bhujali whereas accused Daya one Katari. Evidence of P.W.4

also find full corroboration from the evidence of the doctor

(P.W.6), who had conducted post mortem examination over the

CRLA No.435 of 2016

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dead body of the deceased. All these three witnesses are stated to

have seen this accused running away from the house in question

holding tangia. The FIR lodged by P.W.2 also reflects the same

facts. The doctor (P.W.6) has also deposed that the injuries which

he had seen over the dead body of the deceased were possible by

that tangia.

12. In view of the above clear, cogent and acceptable evidence

on record, as discussed, we are of the view that the Trial Court

has rightly convicted the accused by holding that the prosecution

has proved the charge against him beyond reasonable doubt.

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

conviction and the order of sentence dated 30th June, 2016 passed

by the learned Additional Sessions Judge, Athagarh in Sessions

Trial No.62 of 2015 are hereby confirmed.

(D. Dash), Judge.

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

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

Signature Not Basu Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 11-Sep-2023 17:41:01

CRLA No.435 of 2016