Orissa High Court

Narayan Dalai vs State Of Orissa on 1 July, 2024

Bench: D.Dash, V. Narasingh

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRA No.254 of 2001
          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 10th December, 2001 passed by the
    learned 1st Additional Sessions Judge, Cuttack in Sessions Trial
    No.152 of 1997.
                                   ----

        Narayan Dalai                      ....        Appellant
                                   -versus-

        State of Orissa                          ....       Respondent

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

                For Appellant      -         Ms. Bini Mishra
                                             (Advocate)

                For Respondent -       Mr.G. N. Rout
                                       Additional Standing Counsel
                                  CORAM:
                        MR. JUSTICE D.DASH
                   MR. JUSTICE V. NARASINGH
   Date of Hearing : 13.05.2024     : Date of Judgment : 01.07.2024

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

the judgment of conviction and order of sentenced dated 10th

December, 2001 passed by the learned 1st Additional Sessions

Judge, Cuttack in Sessions Trial No.152 of 1997 arising out of G.R.

Case No.923 of 1996 corresponding to Cuttack Sadar P.S. Case

No.195 of 1996 in the Court of the learned Judicial Magistrate

First Class, (R), (J.M.F.C.), Cuttack.

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 for commission of the

said offence.

2. PROSECUTION CASE:-

On 24.07.1996 around 9.00 p.m, the Informant (P.W.3),

being told by one Kalandi Behera, when went to the spot near a

tubewell, he found his brother Siba Naik lying in a serious

condition with bleeding injury on his neck, hands and other parts

of the body. Siba was then shifted to S.C.B. Medical College &

Hospital, Cuttack where he succumbed to those injuries on the

next day.

A report to the above effect being lodged on 24.07.1996 by

P.W.3 with the Officer-in-Charge (O.I.C.), Cuttack Sadar Police

Station at his camp at Telengapitha, the O.I.C. (P.W.11) send the

same to the P.S. for registration of the case. Accordingly, upon

registration of the case at the P.S., he (P.W.11) took up the

investigation.

3. The Investigating Officer (I.O.-P.W.11), in course of the

investigation, shifted the injured Siba to S.C.B. Medical College &

Hospital, Cuttack for treatment, visited the spot and deputed a

police constable to guard the spot. He (P.W.11) made a

requisition to the scientific team for collection of the clues. On

receipt of the information that Siba succumbed to the injuries

while undergoing treatment, he (P.W.11) proceeded to the

Hospital and held inquest over the dead body of Siba and

prepared the report to that effect (Ext.8). He (P.W.11) sent the

dead body of Siba for post mortem examination. He (P.W.11)

arrested this accused and one Bidyadhar Mohapatra on

03.08.1996 and sent them to Court in custody. Since he (P.W.11)

was under the order of transfer, the investigation of the case was

handed over to his successor (P.W.10).

The second I.O. (P.W.10), in course of his investigation,

examined some of the witnesses and submitted the Final Form

placing this accused along with four others to face the Trial for

commission of the offence under section 302/34 of the IPC.

4. Learned J.M.F.C. (R), Cuttack, on receipt of the Final Form,

took cognizance of the said offence and after observing the

formalities committed the case to the Court of Sessions for Trial.

That is how the Trial commenced by framing the charge for the

aforesaid offence against this accused and four others.

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

total eleven (11) witnesses during trial. Out of them, as already

stated, the informant, who is the brother of Siba (deceased) is

P.W.3. P.Ws.1 & 2 are the eye witnesses as projected by the

prosecution. The Doctor, who conducted the autopsy over the

dead body of Padmini has been examined as P.W.4. P.W.9 is the

Scientific Officer. P.Ws.5, 7 & 8 are the witnesses who have

turned hostile. The first I.O. of the case has been examined as

P.W.11 whereas the I.O., who submitted the Final Form is P.W.10.

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 Exts.1 to 8.

Out of those, the important are, the FIR (Ext.1), the spot visit

report (Ext.5), inquest report (Ext.8); the post mortem report

(Ext.2). The chemical examiner's report had been admitted in

evidence and marked Ext.7.

7. The accused has taken the plea of complete denial and false

implication. He, however, has not tendered any evidence in

support of said plea.

8. Ms.Bini Mishra, learned counsel for the Appellant (accused)

submitted that six persons, in total, having faced the trial, it is

only this accused, who has been convicted for the offence under

section 302 of the IPC and all those have been acquitted as the

Trial Court has found the evidence of the prosecution witnesses

to be highly deficient to fasten the guilt upon those five. She

further submitted that the conviction of this accused is based on

the evidence of P.Ws.1 and 2 and when disbelieving their version,

other accused persons have been acquitted; the ground taken by

the Trial Court to accept their evidence insofar as this accused is

concerned is that they have stated that this accused had dealt

Bhujali blows on the belly of Siba (deceased) whereas those two

witnesses, having also implicated one Chitua @ Chittaranjan

Pradhan, the Trial Court has acquitted said accused Chitua. She

thus submitted that when these two witnesses have stated about

the occurrence in one go, the Trial Court, having disbelieved

major part of their evidence and discarded the same to fasten the

guilt upon them; at least that Chitua, applying the same principle

of appreciation of evidence, this accused ought to have been

acquitted. She further submitted that the Trial Court has failed to

take note of the material contradictions in the evidence of P.W.1

particularly as regards the role of this accused, which he had not

stated before the I.O. (P.W.10), which has been proved during

trial. She, therefore, submitted that such improved version of

P.W.1 after a long lapse of time in implicating this accused

attributing him the particular role is wholly unsafe to be relied

upon. She further submitted that the evidence of P.Ws.2 & 3 do

not provide corroboration on material particulars to the evidence

of P.W.1. In view of all these above, she urged for acquittal of this

accused by setting aside the judgment of conviction and order of

sentence impugned herein.

9. Mr.G. N. Rout, learned Additional Standing Counsel for the

for the Respondent-State, submitted that the finding of guilt

against the accused, as has been returned by the Trial Court is

supported by very good reasons. He contended that the Trial

Court, having refused to rely upon the evidence of P.W.1 in

respect of other accused persons, has rightly relied upon the

evidence of P.W.1 only in respect of this accused. He further

submitted that P.W.1, having specifically stated this accused to be

the author of the injuries on the belly of Siba (accused), which is

fatal and has resulted his death, the Trial Court has rightly

convicted this accused. It was further submitted that although the

evidence of P.Ws.2 & 3 do not provide any specific corroboration

to the evidence of P.W.1 insofar as this accused is concerned, yet

those provide general corroboration and that coupled with the

evidence of the Doctor (P.W.4), who had conducted the autopsy

over the dead body of the deceased and had noted his finding in

the report (Ext.2), the conviction of this Appellant is well in order

and does not invite interference.

10. 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.Ws.1 to P.W.11) and have perused the documents admitted in

evidence and marked as Ext.1 to Ext.8.

11. The Doctor (P.W.4), who had conducted the autopsy over

the dead body of Siba, has noticed several cut wounds over the

body of Siba. He had also noticed penetrating wounds, stab

wounds and two abraded contusions and the corresponding

internal injuries. As per his evidence, all those injuries had been

caused by pointed and cutting weapons except those two

abraded contusions, which had been caused by blunt trauma. He

has deposed that the death was due to shock and haemorrhage

resulting from the multiple injuries. The evidence of the Doctor

(P.W.4) is very clear that the death was homicidal in nature and

on account of indiscriminate assault upon the deceased by

dangerous weapons like sword etc. The evidence of this witness

(P.W.4) receive full support from the evidence of P.W.11, who

had held inquest over the dead body of Siba and prepared the

report Ext.8. Besides the same, the evidence of P.Ws.1 to 3 also

run to support the fact that the deceased, had received those

injuries on his person. With all these evidence on record

remaining un-assailed, we find no difficulty in holding that Siba

met a homicidal death.

12. Admittedly, six persons including this accused were facing

the Trial standing charged for commission of the offence under

section 302/34 of the IPC. The Trial Court, upon examination of

the evidence and their scrutiny, has found the prosecution to

have only established the charge against this accused and not

against the others, who are Bidyadhar, Chitua, Kumara, Durga

and Laxmidhar.

Addressing the rival submission as regards the appreciation

of evidence by the Trial Court, when we turn our attention to the

evidence of P.W.1, who is a star witness for the prosecution and

none other than the elder brother of Siba (deceased), we find him

to have stated that one Dhadi Mohapatra (not on trial) coming

from backside, covered the face of Siba by means of a napkin

spreading over his face and thereafter one Balua Khuntia (not on

trial) caught-hold of the hands of Siba from his back. His specific

version is that the accused Chitua (since acquitted) then gave a

blow by means of a Bhujali on the neck of Siba from backside,

which part of the evidence has not been accepted by the Trial

Court in as much as, it has acquitted that Chitua. It is said by

P.W.1 that thereafter one Bisei Mulia (not on trial) also gave the

blow by Bhujali on the neck of the deceased; Satrughna (not on

trial) and this accused gave Bhujali blows on the belly of Siba. The

Trial Court has not relied upon the version of P.W.1 in so far as

accused Chitua (since acquitted) is concerned and he has been

acquitted. This P.W.1 has narrated the incident and the role of

this accused on Trial and other culprits in continuity to have been

played by them, one after the other. Therefore, if one part of his

evidence is not believable even though the principle falsus in uno

falsus in omnibus is not applicable, under the circumstance, it

being not possible to separate the grains from the chaff, the

evidence of P.W.1 as against this accused is also liable to be

rejected as unbelievable. Be as it may, we find P.W.1 to have not

stated the before the first I.O. (P.W.11) in course of investigation,

which was recorded under section 161 Cr.P.C as regards the

particular acts and deeds of this accused. Paragraph-12 of the

deposition of P.W.1, being relevant, is reproduced hereinbelow:-

"12. It is not a fact that I have not stated before the police that I saw the occurrence as an eye witness, while I was in the market at Telengapentha as the time of occurrence. It is not a fact that I have stated before the police that on the date of occurrence in between evening till 9 p.m. I was present in my house after finishing my work. It is not a fact that I have not stated before the police that at the time of occurrence accused Dhadi Mohapatra covered the face of Shiba by name of a napkin spreading over his face from his back side and that accused Chittaranjan Pradhan gave a blow on the neck of Shiba from his back side by means of a Bhujali; and that Bisei Mulia gave a bhujali blow on the neck of Shiba and that accused Satrughna Behera and Narayan Dalai also gave Bhujali blow on the belly of Shiba and that thereafter injured Siba fell down on the ground near the tube well adjacent to the spot; and that half hour before the occurrence, accused Balua Khuntia and Amiya Mohapatra had been to my house to search for Siba."

It has been proved through the I.O. (P.W.10), who had

recorded the statement of P.W.1, which reads as under:-

"7. ... P.W.1 did not say before me that during the occurrence, Dhadi Mohapatra covered the face of Siba with a napkin. So also he did not say before me that Balu Khuntai

and Amiya Mohapatra caught hold of both the hands of the deceased. P.W.1 named two persons having the name Chitua, while giving names of the assailants. Out of both the persons named Chitta by him, one was named as Chitta Pradhan and the other was named as Chitua Rout. He said before me specifically that Chitua Rout gave the Bhujali blow to the neck. (Chitta Rout being an absconder not yet facing trial). P.W.1 did not say before me that Chita Pradhan gave the blow to the neck, although he said that accused Chitta Pradhan and others gave blows to different parts of the body. Chitua Rout was named also as Chittaranjan. P.W.1 did not say before me that accused Bisoi Milia gave blows by Bhujali to the deceased or that such blow by Bhujali was given to the neck of the deceased. P.W.1 did not say before me that Bhujali was the weapon of accused Narayan. So also P.W.1 did not say although he said that Narayan gave blows to different parts of the body."

This P.W.1, who has been projected as an important eye

witness for the prosecution, has stated before the I.O. (P.W.11)

that he returned home in the evening after finishing his work and

that at 9.00 p.m., his mother (P.W.2) came running and told that

Siba was being killed in the market. However, it is now stated by

P.W.1 as if he had seen the incident in his own eyes, which in

view of the above, is hazardous to accept. The Trial Court, as it

appears, has lost sight of the above important aspects when it has

been said by the Trial Court that the evidence of P.Ws.1 & 2,

being read together, suspicion arises as regards the role of five

accused persons including and more importantly; Chitua, who

faced the Trial and have been acquitted, in again saying their