Orissa High Court

Lapa Purty vs State Of Orissa on 8 January, 2024

Bench: D.Dash, G.Satapathy

Signature Not Verified
Digitally Signed              IN THE HIGH COURT OF ORISSA AT CUTTACK
Signed by: BASUDEV NAYAK
Designation: ASSISTANT REGISTRAR-CUM-SR.
SECRETARY                                 JCRLA Nos.46 & 47 of 2011
Reason: Authentication
Location: HIGH COURT OF ORISSA : CUTTACK
Date: 08-Jan-2024 17:55:33                           AND
                                              CRLA No.664 of 2011
                             In the matter of Appeals under section 383 & 374 (2) of the
                      Code of Criminal Procedure, 1973 and from the judgment of
                      conviction and the order of sentence dated 29th March, 2011
                      passed by the learned Additional Sessions Judge, Rairangpur in
                      S.T. Case No.48 of 2010 (G.R. Case No.34 of 2010).
                                                      ----

                           Lapa Purty                        ....          Appellants
                           (In JCRLA No.46/2011)

                              Lodu @ Subash Khuntia
                              (In JCRLA No.47/2011)

                              Smt. Jambi Purty
                              (In CRLA No.664/2011)

                                                            -versus-
                              State of Orissa
                              (In all the Appeals)                     ....       Respondent

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

For Appellants - Mr.B.K. Behera, Advocate (In all the Appeals)

For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel (In all the Appeals) CORAM:

MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 03.01.2024 : Date of Judgment : 08.01.2024

JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011

D.Dash,J. The Appellants, in the above noted three Appeals, have

Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authenticationfaced the trial in the Court of the learned Additional Sessions Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33

Judge, Rairanghpur in S.T. Case No.48 of 2010 (G.R. Case No.34

of 2010) arising out of G.R. Case No.34 of 2010, T.C. No.465 of

2010 corresponding to Jamda P.S. Case No.4 of 2010 on the file of

the learned Sub-Divisional Judicial Magistrate (S.D.J.M.),

Rairangpur standing charged for commission of the offence

under sections 341/342/302/201/34 of the Indian Penal Code, 1860

(for short, 'the IPC').

The Trial Court has convicted all the Appellants (accused

persons) for committing the offences under section 302/201/34 of

the IPC. Accordingly, each of them has been sentenced to

undergo imprisonment for life and pay fine of Rs.2,000/- (Rupees

Two Thousand) in default to undergo rigorous imprisonment for

two (2) years for commission of the offence under section 302/34

of the IPC; and undergo to rigorous imprisonment for five (5)

years and pay fine of Rs.1000/- (Rupees One Thousand) in default

to undergo rigorous imprisonment for one (1) year for

commission of the offence under section 201/34 of the IPC.

In view of the above, we heard all these Appeals together

for their disposal by this common judgment.

2. Prosecution Case:-

On 27.01.2010 around 4.00 p.m., one Sagar Bage (Informant-

P.W.), who is a contractor and usually resides in Tatanagar

JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011

Digitally Signed received an information over telephone from his sister-in-law,

Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authenticationnamely, Basi Bage (P.W.1) that on account of previous enmity, Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33

accused Makar Purti (since dead) assaulted his father, namely,

Kanhu Bage and by tying took him from Hatbadra market to

Village-Sunamara keeping him confined in a house there.

On receiving the said information over telephone, the

Informant (P.W.2) rushed to Village-Sunamara and made enquiry

regarding the whereabout of his father (Kanhu Bage) from

accused Makar and his mother, who replied that his father had

been kept confined in their house but thereafter had gone

somewhere-else in the morning. The Informant (P.W.2) went for

search of his father (Kanhu) but did not trace him out. So, on

31.01.2010, he (P.W.2) lodged a written report with the Officer-in-

Charge of Jamda Police Station.

The O.I.C. (P.W.7) received the written report of the

(Informant-P.W.2) and treated the said report as FIR (Ext.1) and

upon registration of the case, took up the investigation.

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

P.W.7) examined the Informant (P.W.2). He having visited the

spot, prepared the spot map (Ext.2). Thereafter, he (P.W.7)

apprehended the accused persons and forwarded them in

custody to Court. On completion of the investigation, the I.O.

(P.W.7) submitted the Final Form placing these accused persons

JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011

Digitally Signed to face the Trial for commission of the offense under section

Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication341/342/302/201/34 of the IPC. Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33

4. Learned S.D.J.M., Rairanghpur, on receipt of the Final

Form, took cognizance of said offences and after observing the

formalities, committed the case to the Court of Sessions. That is

how the Trial commenced by framing the charge for the aforesaid

offences against these accused persons.

5. The prosecution, in support of its case, has examined in

total seven (7) witnesses during Trial. As already stated, the

informant who happens to be the son of the deceased is P.W.2.

P.Ws.1, 3, 4, 5 & 6 are the co-villagers. The I.O. of the case, at the

end, has come to the witness box as P.W.7.

Besides leading the evidence by examining the above

witnesses, the prosecution has also proved two documents which

have been admitted in evidence and marked Exts.1 to 2. Out of

those; important are the FIR (Ext.1); and the spot map (Ext.2).

6. The accused persons, having taken the plea of complete

denial and false implication, have not tendered any evidence in

support of such plea.

7. Mr. B.K. Behera, learned counsel for the Appellants

(accused persons) submitted that in the absence of any direct

evidence on record, the Trial Court simply, relying on the

JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011

Digitally Signed evidence of P.Ws.3, 4 & 5 that they had last seen the deceased in

Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authenticationthe company of the accused persons, ought not to have based the Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33

conviction against these accused persons holding them to be the

authors of the crime. He further submitted that even accepting

the evidence of P.Ws.3, 4 & 5, there cannot be a finding that the

accused persons had assaulted the deceased to death when the

dead body of the deceased has not been discovered at all and the

accused persons explain that the deceased, while under

confinement, escaped and remained traced. He submitted that

even though it is so held that they were seen together, the

complicity of these accused persons with the available evidence,

cannot be so held. In view of all these above, the judgment of

conviction and order of sentence, which are impugned in this

Appeal, cannot be sustained.

8. Mr.P.K. Mohanty, learned Additional Standing Counsel for

the Respondent-State, while supporting the finding of guilt

against these accused persons, as has been returned by the Trial

Court, submitted that the evidence of P.Ws.3, 4 & 5, being very

clear that they had seen the accused persons taking the deceased

to Village-Sunamara in a tying condition and the dead body even

though has not been recovered, that circumstance itself in the

absence of any explanation coming from the side of the accused

JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011

Digitally Signed persons is itself enough to hold the accused persons guilty of

Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authenticationcommitting the murder of Kanhu Bage. Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33

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

read the impugned judgment of conviction. We have also

extensively travelled through the depositions of the witnesses

(P.W.1 to P.W.7) and have perused the documents admitted in

evidence and marked as Ext.1 to Ext.2.

10. P.W.1 has stated that these accused persons took Kanhu

(deceased) to the house of Makar to Village-Sunamara. He then

says that Kanhu was murdered on the next day and, therefore, he

intimated the matter to the Informant (P.W.2). During cross-

examination, it has been said by him that sometimes, Kanhu

(deceased) was going to the house of accused-Makar.

It is stated by the Informant (P.W.2) that he was told by

P.W.1 that these accused persons took his father in a tying

condition from Hatbadra area to Village-Sunamara. He further

states that when he went to that village of the accused persons,

they told him that they had taken has father but there he (P.W.2)

he did not find his father. It is not the evidence of P.W.1 as to

where at which place he saw these accused persons taking Kanhu

(deceased) to the house of Makar of Village-Sunamara. It is also

not stated by him as to whether accused Makar was then among

JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011

Digitally Signed the accused persons. It be stated here that accused Makar, in view

Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authenticationof his death, had not faced the trial. Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33

The statement of P.W.1 thus appears to be vague when it is

also not stated by him as to what he did after seeing the incident.

His conduct does not appear to be normal that having seen the

accused persons taking Kanhu (deceased), he as usual not won't

even not ask any of them about the reason for doing so or to have

rushed to the village in informing others to rescue Kanhu or trek

all of them. It is also not stated by P.W.1 that he had seen the

accused persons while taking away Kanhu (deceased) and they

were assaulting him. But P.W.3 states about such assault, being

made by the accused persons upon Kanhu, while being taken

away, which is not the evidence of P.W.1. He is also not stating as

to where actually he saw that the accused persons were taking

Kanhu (deceased) and his silence is a conduct, which is certainly

to be adversely viewed. He is also not stating to have informed

anywhere about this or to have followed them or even to have

asked anything to them.

The evidence of P.W.4 also run in the same vein. Thus, it

appears that the evidence of P.W.3 and P.W.4 are quite cryptic

without the required further details. The evidence of the above

witnesses, according to us to the effect that they had seen these

accused persons taking Kanhu (deceased) with them cannot be

accepted as trustworthy.

JCRLA Nos.46 & 47 of 2011; and CRLA No.664 of 2011

Digitally Signed On a conspectus of analysis of the evidence hereinabove,

Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authenticationwe find that the prosecution has not proved the charges against Location: HIGH COURT OF ORISSA : CUTTACK Date: 08-Jan-2024 17:55:33

these accused persons beyond reasonable doubt.

11. In the result, the Appeals are allowed. The judgment of

conviction and the order of sentence dated 29th March, 2011

passed by the learned Additional Sessions Judge, Rairangpur in

S.T. Case No.48 of 2010 (G.R. Case No.34 of 2010), are hereby set

aside.

Since all the Appellants, namely, Lapa Purty, Lodu @

Subash Khuntia and Smt. Jambi Purty are on bail, their bail bonds

shall stand discharged.

(D. Dash) Judge

G.Satapathy, J. I Agree.

(G.Satapathy) Judge