Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 729 (ORI)

Gangaram Sahu v. State of Odisha

2018-08-13

K.R.MOHAPATRA, S.PANDA

body2018
JUDGMENT K.R. MOHAPATRA, J. - The judgment of conviction and sentence dated 09.06.1999 passed by learned Sessions Judge, Kalahandi- Nuapada at Bhawanipatna in Sessions Case No. 46 of 1998, convicting the appellant under Section 302 IPC and sentencing him to undergo imprisonment for life, is under challenge in this appeal. 2. The prosecution was launched on the basis of an First Information Report lodged by one Ganpat Majhi (P.W.1) stating, inter alia that on 28.02.1998, he had been to his in-laws’ house at Nandapur. On his return in the same evening, while he was taking food, inquired about his son, Naresh Kumar Majhi (the deceased) as he was absent at home at that time. Thereafter, he enquired about his son from the villagers and asked them for help to search for him. But they could not get any trace of him. Subsequently, he learnt from one Raju Rout (PW-6), a co-villager that he has seen Naresh with Gangaram Sahu and Dhanrajsingh Majhi of the village at about 7.00 P.M. in the evening. On the next morning, i.e., on 01.03.1998, the villagers found that Naresh (the deceased) was lying dead in the forest with stab injuries on his belly. Thereafter, the informant went to Nuapada Police Station and lodged the FIR (Ext. 1/3) at about 12.10 P.M. on 01.03.1998, which was registered as Nuapada PS Case No. 23 dated 01.03.1998 under Section 302 IPC. Since the FIR disclosed a cognizable offence, the OIC, Nuapda PS (PW-10) took up investigation immediately. 3. In course of investigation, the IO drew up a formal FIR (Ext. 1/3) and examined the informant in the police station itself. Thereafter, he issued command certificate to the Constable No. 225 to guard the dead body of the deceased. He visited the spot and made inquest over the dead body and prepared inquest report (Ext/ 6) and also issued dead body challan (Ext.7) and sent the dead body for postmortem examination; prepared the spot map (Ext. 8) and seized bloodstained earth from the spot vide seizure list (Ext.9). He also examined witnesses present there. On suspicion, he seized the pant and shirt of the appellant from his house and a Hero green colour cycle kept in front of the house of the appellant on production by him vide seizure list (Ext. 3). 8) and seized bloodstained earth from the spot vide seizure list (Ext.9). He also examined witnesses present there. On suspicion, he seized the pant and shirt of the appellant from his house and a Hero green colour cycle kept in front of the house of the appellant on production by him vide seizure list (Ext. 3). On the same day, at about 6.00 P.M., the IO seized the wearing apparels of the deceased on being produced by the Constable who accompanied the dead body to District Headquarters Hospital, Nuapada for postmortem vide seizure list (Ext.10). Thereafter, he sent information to DFSL, Bhawanipatna for sending sniffer dog and forensic team. On 02.03.1998 at about 3.00 P.M., the forensic team along with sniffer dog arrived at the spot. The sniffer dog led the investigating team to the house of the appellant and the deceased. The wearing apparels of the appellant were sent to DFSL, Bhawanipatna for examination vide forwarding report (Ext. 12). Ext. 13 is the report of the chemical examination of the wearing apparels of the appellant. The appellant was arrested on 04.03.1998. While in police custody, he narrated the entire incident to the IO in presence of witnesses, which was reduced to writing vide Ext. 1. Thereafter, the appellant led the team to a tank, where he alleged to have thrown the weapon of offence, a knife (MO-I). As such, the IO requested the villagers to assist him in searching of the knife (MO-I). After a thorough search, PW-8 finally brought out the knife from the pond and handed over the same to the IO, which was seized vide seizure list (Ext. 2). Thereafter, the appellant was sent to Government Hospital, Nuapada for collection of his nail clippings. On the same day, at about 5.00 P.M., the IO seized one camera on production by one Chintamani Majhi in connection with the case as on the occasion of Shivratri, the appellant had taken photographs of some local people and girls of the village with that camera. The informant had objected to the same as the appellant had taken photographs of some of the relatives of the deceased. The said camera was seized vide seizure list- Ext-17 and kept in zima of Goyalal Majhi under Zimanama (Ext-18), after taking out the roll. Subsequently, the said roll was developed; MO-II is the developed photographs and MO-II is the negative. The said camera was seized vide seizure list- Ext-17 and kept in zima of Goyalal Majhi under Zimanama (Ext-18), after taking out the roll. Subsequently, the said roll was developed; MO-II is the developed photographs and MO-II is the negative. The Police also sent MO-I to the Doctor (PW-4), who conducted the postmortem, for his opinion vide requisition-Ext-5. PW-4 gave his repot vide Ext-5/1. On receipt of the postmortem report (Ext-4) and other materials, charge-sheet under Section 302 IPC was submitted against the appellant and he faced trial. 4. In order to bring home the charge, the prosecution examined as many as 10 witnesses including PW-1, the informant, PWs-2, 6 and 7, who had last seen the deceased with the appellant. PW-3, a witness to the discovery of the MO-I, P.W.4, the Doctor who conducted the postmortem, PW-5, a witness to the inquest, PW-8 who searched out the knife from the Pandria Kata (the pond), PW-9, who scribed the FIR at the instruction of informant (PW-1) as well as PW-10, the IO and exhibited documents as well as MOs, as aforesaid. 5. The plea of defence was complete denial of his involvement in the crime and he pleaded his innocence. 6. Taking into consideration the materials available on record, learned trial Court convicted the appellant under Section 302 of IPC and sentenced him for life. 7. Mr. Dhal, learned counsel for the appellant assailed the impugned judgment contending that there is no eyewitness to the occurrence and the case is based on circumstantial evidence. Circumstances proved by the appellant do not complete the chain to suggest that the appellant alone is the perpetrator of the crime. He also contended that discovery and seizure of MO-I is doubtful. MO-I does not contain any bloodstain. The last seen theory basing upon which the appellant has been roped in if assumed to have been proved, cannot be the sole basis to convict the appellant for commission of capital offence. The Investigating Officer has not deposed regarding the statement made by the appellant before him, which led him(IO) to Pandria tank where from MO-I is alleged to have been recovered. When the case is based upon circumstantial evidence, motive plays a vital role to implicate the appellant in the crime. But the prosecution has miserably failed to prove that the appellant had any; motive to commit the offence. When the case is based upon circumstantial evidence, motive plays a vital role to implicate the appellant in the crime. But the prosecution has miserably failed to prove that the appellant had any; motive to commit the offence. There are material discrepancies in the evidence of the witnesses. Learned trial Court failed to appreciate the same and convicted the appellant, which is not sustainable in the eyes of law and the appellant is liable for an acquittal. Learned counsel for the appellant relied upon decisions in the case of Navaneethakrishanan Vs. State by Inspector of Police, reported in AIR 2018 SC 2027 ; Anjan Kumar Sarma and others Vs. State of Assam, reported in AIR 2017 SC 2617 ; Ganpat Singh Vs. State of Madhya Pradesh, reported in AIR 2017 SC 4839 ; Anter Singh v. State of Rajasthan, AIR 2004 SC 2865 ; and Mangala Oyale Vs. State of Odisha, reported in (2016)65 OCR 1097. 8. Mr. Mohapatra, learned Additional Standing Counsel, on the other hand, refuting submissions of Mr. Dhal, submitted the proximately prior to missing of Naresh (the deceased), he was seen in the company of appellant. PW-2, 6 and 7 have categorically and consistently deposed the same which remained uncontroverted. When the deceased prior to his death was last seen with the appellant the burden lies heavily on him (the appellant) to prove that the deceased had departed him before his death. The medical evidence and the opinion of PW-4, clearly suggest that the death was due to asphyxia and internal heamorrhage due to stab injury on the abdomen of the deceased. The prosecution has clearly proved the motive behind commission of the offence. Learned trial Court has vividly discussed the circumstances, which have been successfully proved by the prosecution. As such, the appeal merits no consideration and is liable to be dismissed. 9. Learned counsel for the appellant does not dispute the death of the deceased to be homicidal. PW-4, the doctor who conducted autopsy of the cadaver of the deceased, found the following symptoms and injuries:- “2. As such, the appeal merits no consideration and is liable to be dismissed. 9. Learned counsel for the appellant does not dispute the death of the deceased to be homicidal. PW-4, the doctor who conducted autopsy of the cadaver of the deceased, found the following symptoms and injuries:- “2. The dead body was of a male child with average body built, rigor mortis present on all the limbs and neck, postmortem staining (there was discolouration) of the skin over the part of buttock, right side, eyes were half closed, they were congested, Cornea was hedgy, white forth was coming out from both the nostrils, mouth closed, lips were swollen and there was bruise inside the lips. The tongue inside the mouth was swollen, there was clot of bold on the external portion of the ears, the shirt was unbitten, left side of the shirt was torn irregularly. There was stains of bold on lower part of the back part of the shirt in the belt of pant. Fical matters came out from the anus and was sticking to the buttock and back of the pant. 1. There was one curb like abrasion on upper lid of right eye just below the right eyebrow. 2. One irregular shape abrasion found half inch away temporal to right eye. Externally the whole abdominal wall was found stained with blood which is coming out from two separated pindile stab wound found on the mid-line of abdomen. Part of the intestine was exposed outside to one wound of the abdomen. Clotted blood and fluid were coming out on pressing to the abdomen. 1. Injury No. 1 one crisentic shape abrasion in upper lid of right eye measuring 1 cm x 1/4the cm in middle stain and clots of blood in the surface and edges of the wound. 2. Clotted blood and fluid were coming out on pressing to the abdomen. 1. Injury No. 1 one crisentic shape abrasion in upper lid of right eye measuring 1 cm x 1/4the cm in middle stain and clots of blood in the surface and edges of the wound. 2. One irregular shape abrasion on temporal to right eye blow 1 cm x ½ cm with blood stains and clotted blood in the surface found on disSection, possibly might have been caused by hard and blunt weapon.” Further, he also found one stab wound on the abdomen measuring 1.5" x 1" at middle x 1" margins are clean cut, spindle shape site of the injury at upper part of the abdomen 1 cm to lateral to midline, midline of body 2" above umbllecus, clotted blood and fluid are coming out of pressing, might have been caused by sharp cutting weapon. Further, on disSection of Injury No. 4, it was found that there was a penetrating wound partially on their right lob of liver cutting of large vessels. On disSection of injury No. 5, it was found that penetrating wound on zejumem (part of intestine) cutting the large vessels. On disSection of the chest, it was found that the chest was congested with heamorrhage on the surface. Heart was intact. The right side chamber was filled with dark blood and left side chamber was empty. Both the kidneys were intact and pale. The spleen and the liver are pale. Brain was congested. He found all the injuries to be ante-mortem in nature, time since death within 12 to 24 hours of examination at 3.00 PM on 01.03.1998. Cause of death was by asphyxia and internal heamorrhage simultaneously. The testimony of PW-4 as aforesaid clearly suggests that death of the deceased was homicidal. 10. PWs-2, 6 and 7 have categorically and consistently deposed that the deceased, in the evening of 28.02.1998, was last found with the appellant. PW-2 testified that in the month of Phalguna on a Saturday at 6 PM, while he ws returning in a bullock-cart from his paddy field with Ghatchan Sahu (PW-7) and Santaram Sahu, found the appellant carrying Naresh (the deceased) in his cycle towards Cherubahali road. In his cross-examination, he confirmed that when he saw the appellant along with the deceased, it was little dark and they were at a distance of 50-60 feet from him. In his cross-examination, he confirmed that when he saw the appellant along with the deceased, it was little dark and they were at a distance of 50-60 feet from him. He further clarified that the deceased was sitting on the carrier of the bicycle and he could see the appellant as well as the deceased from all sides. Mr. Dhal, learned counsel for the appellant submitted that his statement should not be relied upon because he had disclosed before the Police that he was returning from Cherubahali. However, on scrutiny of his evidence, it appears that he has in clear terms stated before the police as well as in Court that he had seen the deceased with the appellant in a cycle. Non-disclosure of the fact before the Police to the effect that PW-2 was returning from Cherubahali, does not in any manner effect the credibility of his testimony to the effect that he had seen the appellant and deceased together moving in appellant’s cycle. P.W. 6 in his evidence testified that in the month of Phalguna in the year 1998 on a Saturday in the evening hour, he was present in his cycle repairing shop situated by the side of the road of the village. At that time, he found the appellant carrying one Dhanaraj in his cycle and got him down at Anganbadi School and then he returned from that place towards the road side and took the deceased in his cycle and went on the road locally known as Matagudi road towards Gungulia and Cheribahali. Later, when he learnt that PW-1 was searching or his son, he (PW-6) informed him (PW.1) about the same. In his cross examination, he also confirmed that the deceased was sitting on carrier of the bicycle of the appellant and legs of the deceased were in one side of the carrier. Mr. Dhal, learned counsel for the appellant submitted that his statement is not believable as he has not stated before the Police that he had a cycle repairing shop by the side of the main road. PW-10 (the IO) in paragraph-6 of his cross-examination also deposed that PW-6 has cycle repairing shop does not make his statement un-reliable, as he has vividly described to have seen the deceased with the appellant and the position of sitting of the deceased on the bicycle of the appellant. PW-10 (the IO) in paragraph-6 of his cross-examination also deposed that PW-6 has cycle repairing shop does not make his statement un-reliable, as he has vividly described to have seen the deceased with the appellant and the position of sitting of the deceased on the bicycle of the appellant. PW-7, in his deposition, stated that on the date of occurrence, when the along with PW-2 and Santaram were returning to their village with firewood in their bullock-cart from Tengnahi forest, which is nearer to Duldulia, he found the appellant carrying the deceased in his cycle towards Cheribahali. When he learnt that the villagers were searching for Naresh (the deceased) in that night, he informed the said fact to the villagers. From the testimony of PWs2, 6 and 7, it is clearly established that in the evening of 28.02.1998 at about 6.00 PM, the appellant was found carrying the deceased on the carrier of his bicycle. 11. Mr. Dhal, relying upon the decision in the case of Navaneethakrishanan (supra) and Anjan Kumar Sarma (supra) submitted that an accused cannot be convicted solely on the basis of last seen theory with the deceased. In case of Navaneethakrishanan (supra), Hon’ble Supreme Court held as follows:- 18. …… Once the testimony of PW-11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely established and/or could point to the guilt of the accused with some certainty. However, this evidene alone can’t discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.” (emphasis supplied) Similarly, in Anjan Kumar (supra) while relying upon the ratio laid down in the case of State of Goa Vs. However, this evidene alone can’t discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.” (emphasis supplied) Similarly, in Anjan Kumar (supra) while relying upon the ratio laid down in the case of State of Goa Vs. Sanjay Thakran, reportd in (2007) 3 SCC 755 , Hon’ble Supreme Court proceeded to hold that the circumstances of last seen together would normally be taken into consideration for finding the accused guilty of offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. in the case of Ganpat Singh (supra) also, Hon’ble Supreme Court has reiterated the same ratio. 12. In the instant case, the deceased was found in the company of the appellant at about 6.00PM and at about 7.00 PM the deceased was found missing by his father (PW.1). On the next morning, he was found dead lying in the nearby jungle. Further, the postmortem report (Ext.4) suggests that probable time of death was approximately the time when the deceased was found missing. Thus, in the case at hand, the proximity of time the deceased was last seen with the appellant and his death was very small and minimal. The defence also does not explain and discharge the burden by establishing that the deceased had departed from the appellant prior to his death. In that view of the matter, the circumstances that the appellant last seen with the deceased assumes a great importance to bring home the charge under Section 302 IPC. However, in view of the case law laid down in the case of Naganeethakrishnan (supra), it has to be seen whether the aforesaid circumstance is substantiated by any other evidence to come to a conclusion that the appellant alone is the author of the crime. However, in view of the case law laid down in the case of Naganeethakrishnan (supra), it has to be seen whether the aforesaid circumstance is substantiated by any other evidence to come to a conclusion that the appellant alone is the author of the crime. PW-3 is a witness to the discovery of MO-I. PW-8 is the person who on the instruction of IO (PW-10) searched for the weapon of offence (MO-I) in the tank along with villagers and found out the same. Mr. Dhal, learned counsel for the appellant submitted that in order to make the recovery of MO-I admissible in evidence, the prosecution has to prove the circumstances as laid down by the Hon’ble Supreme Court in the case of Anter Singh (supra) and are set out below:- “16. xx xx xx (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connection it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused’s own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.” 13. In the instant case, Mr. Dhal argued with vehemence that No. (6) which is relevant for out consideration. The circumstances of discovery has to be deposed by the IO, but in the instant case, the IO has not deposed about the circumstances of discovery of MO-I. He merely stated that while in police custody, the appellant led him to the tank and on instruction of PW-10 (the IO), the villagers searched for the knife in the tank and PW-8 could find out the same. The said statement is not sufficient to make the fact of discovery of MO-I admissible in evidence. The said statement is not sufficient to make the fact of discovery of MO-I admissible in evidence. Further, relying upon Mangala Oyale (supra), Mr. Dhal submitted that relevancy of fact of discovery is only admissible in evidence and the rest part, i.e, linking the fact discovered with the offence is not admissible. He further submitted that MO-I was not stained with human blood. It was not sent in a sealed cover to PW-4 for his opinion. The doctor (PW-4) also returned the MO-I without sealing it. Thus, it is very unsafe to hold that MO-I is the weapon of offence. Mr. Mohapatra, on the other hand, submitted that the defence has not put any; question either to PW-4 or PW-10 confronting the aforesaid circumstances disputing the fact of discovery of MO-I. Thus, the ratio decided in the aforesaid case laws is not applicable to the case at hand. Further, all the circumstances as spelt out in the case of Anter Singh (supra), have been successfully established by the prosecution. 13. In order to test the veracity of all the rival contentions of learned counsel for the parties, we scrutinized the record carefully. On scrutiny of record, it is established that the IO has clearly deposed the circumstance under which MO-I was discovered. Further, the doctor, who identified MO-I in Court clearly opined in his report (Ext. 5/1) that the injury Nos. 4 and 5 are possible by MO-I. But, the defence has not raised any objection with regard to the identification of MO-I while cross-examining the witnesses of the prosecution. In that view of the matter, we are constrained to hold that the discovery of MO-I is relevant fact and is admissible in evidence and it has been clearly established by the prosecution that the injury Nos. 4 and 5 have been inflicted with MO-I. As discussed above, it has been well-established that the cause of death was due to asphyxia and internal injury, i.e., injury Nos.4 and 5. In that view of the matter, we have no other option than to believe that the appellant is the author of the crime. 15. In view of the discussions made above and on perusal of the impugned judgment, we find no infirmity with the same. Thus, while confirming the conviction and the sentence imposed upon the appellant, we dismiss the appeal being devoid of any merit. 15. In view of the discussions made above and on perusal of the impugned judgment, we find no infirmity with the same. Thus, while confirming the conviction and the sentence imposed upon the appellant, we dismiss the appeal being devoid of any merit. The appellant was released on bail by this Court vide order dated 10.03.2000 passed in Misc. Case No. 180 of 2000. Hence, the bail bond be cancelled and the appellant shall be taken to custody for undergoing rest part of the sentence. LCR be sent back forthwith. Appeal dismissed.