Orissa High Court
Sadasiva Gouda vs State Of Orissa on 8 January, 2024
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.18 of 2013
In the matter of an Appeal under section 383 of the Code of
Criminal Procedure and from the judgment of conviction and order of
sentence dated 16.03.2013 passed by the learned Sessions Judge,
Nabarangpur in Criminal Trial No.93 of 2011.
Sadasiva Gouda .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- Mr.A. K. Sahoo
Advocate (Amicus Curiae)
For Respondent- Mr. S. K. Nayak
Additional Government Advocate
CORAM:
MR. JUSTICE D. DASH
MR. JUSTICE G. SATAPATHY
Date of Hearing :04.01.2024 :: Date of Judgment:08.01.2024
D.Dash, J. The Appellant, by filing this Appeal from inside the Jail,
has challenged the judgment of conviction and order of sentence dated
16.03.2013, passed by the learned Sessions Judge, Nabarangpur, in
Criminal Trial No.93 of 2011, arising out of G.R Case No.532 of 2011,
corresponding to Papadahandi P.S. Case No.122(7) of 2011 of the Court
of the learned Sub-Divisional Judicial Magistrate (SDJM), Nabarangpur.
{{ 2 }}
The Appellant (accused) thereunder has been convicted for
committing the offence under section 302 of Indian Penal Code, 1860
(in short, 'the IPC') and 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 two years for the offence under
section 302 of the IPC.
2. Prosecution Case:-
On 29.08.2011, around 6 am, one Daimati Gouda had been to
mango tope of their village Badakumuli for answering the call of nature.
It is stated that accused at that point of time inflicted successive knife
blows on her person causing bleeding injuries. The Deceased thereafter
fell down and lost her sense. The son of Daimati, namely, Tirtha Gouda
(Informant-P.W.5) got the information from one Sukru about the said
incident. He then rushed to the place with other villagers when Daimati
in that injured condition was being shifted to their house, he breathed
her last. Sukru (Informant-P.W.5) then lodged a written report with the
Inspector-in-charge (IIC) of Papadahandi Police Station (P.W.15). The
above report being received, the IIC (P.W.15) treated it as FIR and after
registration of the case, took up the investigation.
{{ 3 }}
3. In course of investigation, the I.O (P.W.15) examined the
informant, visited the spot and prepared the spot map (Ext.8). He
conducted inquest over the dead body of the deceased and prepared the
report to that effect (Ext.1). He examined the witnesses. He seized one
Rasadhala from the spot under seizure list vide Ext.2. He also seized the
sample earth and blood stained earth from the spot and prepared the
report under seizure list vide Ext.4/1. The dead body of the deceased
was sent to District Headquarter Hospital, Nabarangpur for post mortem
examination by issuing necessary requisition. He then seized the
wearing apparels of the deceased and one command certificate under
seizure list vide Ext.6. On 28.09.2011, the I.O arrested the accused and
it was ascertained from the accused that he had thrown the weapon of
offence in Chikili river. The I.O sent the accused for medical
examination and for collection of blood sample and nail clippings. The
accused was forwarded in custody to Court. He also seized the wearin
apparels of the accused. On 15.11.2011, the seized incriminating articles
were sent for chemical examination to RFSL, Berhampur through Court.
On completion of investigation, Final Form was submitted by
the I.O (P.W.15) placing the accused to face the Trial for commission of
offence under section 302 of the IPC.
{{ 4 }}
4. Learned SDJM, Nabarangpur, having received the Final Form as
above, took cognizance of the offence under section 302 of the IPC and
after observing the formalities, committed the case to the Court of
Sessions for trial. That is how the Trial commenced against the accused
framing the charge for the said offence.
5. In the Trial, prosecution in total has examined fifteen (15)
witnesses. Out of whom, the informant, who had lodged the written
report which was treated as FIR vide Ext.3 and is the son of the
deceased, has been examined as P.W.5. P.W.1, P.W.2, P.W.3 and P.W.7
are the post occurrence witnesses. P.W.8 to P.W.10 are the witnesses to
the inquest. P.W.6, P.W.11 and P.W.13 are the eye witnesses to the
occurrence. The Doctor, who had conducted the Post Mortem
Examination over the dead body of the deceased, has come to the
witness box as P.W.14 whereas the Investigating Officer (I.O) is
P.W.15.
6. Besides leading the evidence by examining the above witnesses,
the prosecution has also proved several documents which have been
admitted in evidence and marked Ext.1 to Ext.12. Out of those, the
important are the FIR, Ext.3, Inquest Report, Ext.1, Seizure List, Ext.2,
{{ 5 }}
Post Mortem Report, Ext.7, Spot Map is Ext.8 and the Chemical
Examination Report is Ext.12.
7. The plea of the accused is that of complete denial and false
implication. However, the accused has not tendered any evidence in
support of defence.
8. Learned counsel for the Appellant (accused) submitted that the
prosecution having placed four witnesses i.e. P.W.6, 11, 12 and 13 in the
Trial as the eye witnesses, the Trial Court having relied upon their
evidence has held the accused guilty of committing the murder of
Daimati Gouda. He submitted that a careful scrutiny of the evidence of
all the above witnesses would reveal that the incident having taken place
on 29.08.2011, long thereafter during Trial, all of them have improved
their version in placing themselves in the position of the eye witnesses.
Inviting our attention to the depositions of all these witnesses and
simultaneously, to the deposition of the Investigating Officer (I.O)
(P.W.15), he pointed out that none of them having ever stated to have
seen the incident, the role played and the act done by the accused, which
has the nexus in leading to the death of the Daimati, they for the first
time, have so deposed during Trial. He, therefore, submitted that the
evidence of all these witnesses cannot be said to be trustworthy when
{{ 6 }}
nothing is shown and also no such imputation is being made against the
Investigating agency. Placing the relevant paragraph-10 of the Judgment
of the Trial Court, he submitted that the reasons assigned by the Trial
Court in saying that the evidence of P.W.6, P.W.11, P.W.12 & P.W.13
are not at all trust worthy and not at all tenable.
9. Learned counsel for the Respondent-State submitted all in favour
of the finding of guilt against the accused as has been returned by the
Trial Court. According to him, merely because the witnesses had
omitted to state something relating to the occurrence during their
examination in course of investigation, the same is no ground to wholly
discard their version tendered in the Trial. He pointed out that P.W.6,
P.W.11, P.W.12 & P.W.13 what have stated during Trial, which they
had not so stated during investigation are not that material to be viewed
at this stage in saying that the same place those witnesses in the category
of unreliable witnesses.
10. Keeping in view the submissions made, we have carefully read
the impugned judgment passed by the Trial Court. We have also gone
through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.15
and have perused the documents admitted in evidence and marked Ext.1
to Ext.12.
{{ 7 }}
11. It appears from the evidence of the Doctor (P.W.14), who had
conducted autopsy over the dead body of the deceased that he had
noticed two punctured wounds over the back at the level of T-12 and L-
1 vertibra and upper border of scapula towards left to mid line as also
three other bruises. P.W.14 has also noted the internal injuries in his
report (Ext.7). As per his evidence, the death was on account of the
punctured wound of heart and spleen causing massive haemorrhage and
shock. It is also stated that said injuries were possible by knife. The
evidence as above has remained unchallenged. In addition to that, we
have the evidence of the I.O (P.W.15), who had held inquest over the
dead body of the deceased and noted all such injuries in his own
language in the inquest report (Ext.1). The other witnesses have also
seen such injuries on the deceased which they have stated. With all such
evidence on record, we are left with no option but to affirm the finding
of the Trial Court that Daimati met a homicidal death.
12. Now, coming to judge the sustainability of the finding of the Trial
Court on the complicity of the accused in committing the murder of
Daimati that P.W.6, who is a co-villager of the accused as well as the
deceased has stated that during the morning hour on the relevant day,
when Daimati (deceased) was going to attend the call of nature and
{{ 8 }}
crossing the mango tope holding a Rasa Dhala, he was also proceeding
in a direction to attend the call of nature. His evidence is that the
accused came from backside of Daimati and inflicted stab injuries by
means of knife on her back and right side chest causing bleeding injuries
which lead to her fall. He has further stated that accused then went away
on his bi-cycle towards Maltiguda. This is his evidence that he with
Radha (P.W.11) and Padma administered water to Daimati and shifted
Daimati in an injured condition to her house, where she died. During
cross-examination, the defence has drawn the attention of the witness to
his previous statement before the Investigating Officer to the effect that
he had not stated to have seen the accused dealing the knife blows on
Daimati causing bleeding injury and also to have stated before the I.O
during investigation that he was proceeding ahead of Daimati at that
time. This is found to have been proved through the I.O (P.W.15), who
has stated that P.W.6 had not stated before him to have seen the accused
inflicting knife blows upon Daimati. Thus, it appears that this P.W.6 has
improved her version during trial and the improvement to the extent as
indicated above is certainly on material aspect of the case. This P.W.6 is
also not providing any such explanation to fill in the gap. Therefore,
according to us, the evidence of P.W.6 on the above material feature of
{{ 9 }}
the case, particularly relating to the role of the accused and the act done,
do not pass through the test of reliability.
13. The next witness is P.W.11, who has stated that on the relevant
date and time, when he was returning from the Tota of the village after
attending the call of nature, Daimati was proceeding towards Tota and
he had seen accused assaulting by means of knife piercing on her chest
and back causing bleeding injuries leading to her fall. His evidence is
that except she and Padma (P.W.12), none else had seen the occurrence
which again tells upon the veracity of the evidence of P.W.6. More
particularly, this witness is also found to have not stated during
investigation that when Daimati was going towards Tota for attending
call of nature, accused assaulted her by means of knife on her chest and
back. It has been proved through P.W.15, which he in clear terms has
stated that P.W.11 had not stated before him to have seen accused
assaulting Daimati by means of knife on her chest and back. So again
this witness is found to have made the improvement more importantly
relating to the role played and act done by the accused in the said
incident which he having not stated earlier is for the first time stating
during Trial. Therefore, in our view, the evidence of this witness also
fails in the test of reliability. The evidence of other two witnesses i.e.
{{ 10 }}
P.W.12 and P.W.13 also run to the effect that they had seen accused
inflicting blows upon Daimati by Kati. P.W.13 has further stated that
Daimati, when was running away from the side, accused holding a knife,
chased her and gave the blows on her back. The manner of happenings
in the incident as stated by P.W.13 greatly differs in the evidence of
P.W.6, P.W.11 and P.W.12. That apart, these two witnesses have also
made the improvement during the trial as to the involvement of the
accused in the crime especially attributing him to be the author of the
injuries upon the deceased as would be evident when the evidence of the
I.O (P.W.15) is looked at, wherein he has stated that such was not the
statement of these two witnesses before him during their examination in
course of investigation. Thus we find the evidence of all these four
witnesses to be of the same category failing to pass through the test of
reliability and as such not acceptable to form the finding of guilt as
against the accused. The view taken by the Trial Court that merely a
portion of the testimony of these witnesses is not reliable, it would not
be proper to brush aside their entire testimony, according to us, in view
of the discussion made, cannot be sustained.
14. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 16.03.2013 passed by the learned
{{ 11 }}
Sessions Judge, Nabarangpur, in Criminal Trial No.93 of 2011 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.
G. Satapathy, J. I agree.
(G. Satapathy),
Judge.
Gitanjali
Designation: Junior Stenographer
