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2023 DIGILAW 206 (ORI)

Rajesh Dharua v. State of Orissa

2023-11-13

D.DASH, G.SATAPATHY

body2023
JUDGMENT D.Dash, J. - The Appellant, by filing this Appeal from inside the Jail, has challenged the judgment of conviction and order of sentence dated 13th April, 2018 passed by the learned Additional Sessions Judge, Bargarh in C.T Case No.67/17 of 2016, arising out of C.T Case No.1879 of 2015, corresponding to Attabira P.S. Case No.299 of 2015 of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Bargarh. The Appellant (accused) faced the Trial with another accused i.e. Rama Budek (non-Appellant) standing charged for commission of offence under section 302/201/120-B/34 of the Indian Penal Code, 1860 (for short 'the IPC'). The Appellant as well as accused Rama Budek (Non-Appellant) have been convicted for commission of offence under section 302/120-B/34 of IPC. Accordingly, they have been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for a period of one (01) year each for the offence under section 302/120-B/34 of the IPC. It is stated at the Bar and also reported by the Registry that the accused Rama Budek has not yet filed any appeal challenging his conviction and sentence. Prosecution case:- 2. On 26.11.2015 around 7 a.m., one Okil Badi (P.W.1), was the Gram Rakhi under Attabira Police Station presented a written report with the Inspector-in-Charge (IIC) of Attabira Police Station, stating therein that in the previous night around 10.30 p.m., when he was conducting night patrolling in the village Laderpali, he got the informant that one person was lying on NH-6 in a bleeding condition. So he proceeded to the spot which was in between the Panchayat Office and the Ghantasuni Temple and saw a man lying dead on the road with severe injuries on left side of his body and head. Okil (Informant-P.W.1) suspected that the deceased had received such injuries on account of vehicular accident. On the next morning, the dead body was identified to be that of Ratan Bhue of village- Laderpalli. The IIC, on receipt of the above written report, treated the same as FIR (Ext.1) and registering the case, directed the Sub Inspector (S.I) of Police (P.W.11) to take up investigation. 3. In course of investigation the Investigating Officer (I.O-P.W.11) examined the Informant (P.W.1), visited the spot and prepared the spot map (Ext.9). He held inquest over the dead body of the deceased and prepared the report (Ext.3). 3. In course of investigation the Investigating Officer (I.O-P.W.11) examined the Informant (P.W.1), visited the spot and prepared the spot map (Ext.9). He held inquest over the dead body of the deceased and prepared the report (Ext.3). He then examined the witnessed to the inquest. He also sent requisition to the A.D.M.O, Bargarh for post mortem examination of the deceased. He visited village Laderpali and examined Kumari Bhue, wife of the deceased and other witnesses. On 28.11.2015 at 4 p.m., he apprehended the accused Rajesh Dharua and examined him. The accused Rajesh Dharua while in the custody of the I.O (P.W.11) led him and the witnesses to Pathar Khodan, where accused Rama Budek was present. The I.O then arrested the other accused Rama Budek pursuant to the statement of the accused Rajesh Dharua recorded vide Ext.4 under Section 27 of the Evidence Act, he led the I.O (P.W.11) to the backside of Ghanteswari temple situated near village Laderpali. The accused Rajesh Dharua gave recovery of one axe lying in the cultivable land in the presence of the witnesses. The blood stained earth and sample earth were collected under seizure list (Ext.2). the I.O (P.W.11) sent the requisition to the M.O, CHC, Attabira for collection of biological samples of the accused persons. The I.O (P.W.11) then seized the collected sample hand wash, blood, nail clipping of both the accused persons on production of the same by the Police Constable who had taken the accused persons for said collection vide seizure list (Ext.6). The wearing apparels of the accused persons, namely, Rajesh Dharua & Rama Budek were seized by him (P.W.11) under seizure lists Ext.7 & Ext.8 respectively. He also collected the finger prints of both the accused persons. On 12.12.2015 being asked, the I.O (P.W.11) handed over the charge of the case to the IIC (P.W.14). On the same day, the second I.O (P.W.14) revisited the spot and examined the informant, Okil Badi, wife of the deceased and other witnesses. The seized articles were sent to R.F.S.L., Sambalpur for chemical examination through Court. 4. Finally on completion of investigation, the Final Form was submitted by the second I.O (P.W.14) placing this accused and Rama Budek (non-appellant), to face the Trial for commission of offence under section 302/201/120-B/34 of IPC. 5. The seized articles were sent to R.F.S.L., Sambalpur for chemical examination through Court. 4. Finally on completion of investigation, the Final Form was submitted by the second I.O (P.W.14) placing this accused and Rama Budek (non-appellant), to face the Trial for commission of offence under section 302/201/120-B/34 of IPC. 5. Learned SDJM, Bargarh, having received the Final Form as above, took cognizance of the above offences and after observing formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing the charges for the said offences against this accused and Rama Budek. 6. In the Trial, the prosecution in total examined fourteen (14) witnesses. As already stated P.W.1, is the Gram Rakhi of village Laderpali and P.W.2 is the wife of the deceased. P.W.4 & P.W.5 are the witnesses to the inquest. P.W.6 & P.W.4 7 are two sons of the deceased Ratan Bhue. The Doctor who had conducted the post mortem over the dead body of the deceased is P.W.13 and the Investigating Officers are P.W.11 and P.W.14. The prosecution besides leading the evidence by examining the above witnesses has proved several documents which have been admitted in evidence and marked Ext.1 to Ext.19/1. Out of those, the important are the FIR, Ext.1, Inquest Report, Ext.3, the disclosure statement of accused Rajesh Dharua, Ext.4; whereas the Post Mortem Report is Ext.13. Some of the incriminating articles having been produced during Trial, those have been marked as Material Objects (M.O.-I to M.O.-IX) and out of those, the important one is that Axe (M.O.I) which is said to be the weapon used in causing the fatal injury upon the deceased leading to his death. 7. The defence case is that of complete denial and false implication. However, no evidence either oral or documentary has been led from the side of the accused despite the opportunity. 8. Miss Gayatri Patra, learned counsel for the Appellant (accused, Rajesh Dharua) submitted that the prosecution case rests upon the circumstantial evidence. She further submitted that the circumstances are that the deceased was last seen with this accused (Appellant) as well as accused Rama Budek (non-Appellant) and that this accused had led the police personnel and others in giving recovery of a tangia from the cultivable land situated near the road. She further submitted that the circumstances are that the deceased was last seen with this accused (Appellant) as well as accused Rama Budek (non-Appellant) and that this accused had led the police personnel and others in giving recovery of a tangia from the cultivable land situated near the road. He submitted that for establishment of the last seen theory, the prosecution when relies upon the evidence of P.W.2 saying that it also receives corroboration from the evidence of P.W.6 and P.W.7; their evidence are wholly unbelievable and under the circumstance that they have stated the deceased to have been in the company of this accused is not at all acceptable. She further submitted that the evidence as to the fact that this accused led the police and others in giving recovery of the tangia is also not acceptable. Inviting our attention to the depositions of P.W.2 on the score of last seen theory and P.W.2, P.W.6 & P.W.7 on the score of last seen theory as also those of P.W.5 and P.W.8 as well as the I.O (P.W.11). She placed the infirmities surfacing therein in further submitting that these circumstances as stated by the witnesses are not at all incriminating and even if joined together do not make the chain of events so complete for drawal of an irresistible conclusion that it is the accused persons, who have done the deceased to death. 9. Mr. P. K. Mohanty, learned Additional Standing Counsel for the State-Respondent while supporting the finding of the guilt against the accused as has been returned by the Trial Court contended that the evidence as to the deceased and the accused persons going together in the night being established and the dead body having been recovered shortly thereafter when the accused persons are not coming forward with any explanation as to what it all happened to the deceased, the Trial Court has rightly held the accused persons to be the perpetrators of the crime. He further submitted that the evidence of recovery of the tangia at the instance of this accused while in police custody from the place known to him lends further assurance as to his complicity. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction passed by the Trial Court. He further submitted that the evidence of recovery of the tangia at the instance of this accused while in police custody from the place known to him lends further assurance as to his complicity. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction passed by the Trial Court. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.14 and have perused the documents admitted in evidence and marked Ext.1 to Ext.19/1. 11. P.W.1, the informant, having got the information about the dead body lying on the road at 10 p.m. on 25.11.2015 had been to the place and saw the deceased lying dead. He does not state as to from whom he got the information. He then states to have heard from the wife of he deceased examined as P.W.2 that her husband was murdered by some people. He, however, specific in saying that P.W.2 had not disclosed before him, the names of the culprits. P.W.2 has stated that around 9 p.m., two accused persons had been to their house and stayed for there one and two hours and thereafter, asked her husband to accompany them for consuming liquor and then they all went together. She has stated that as her husband did not return, she went in search of him but it was in vein and sometime thereafter, accused Rama came and he on being asked stated that they had left Ratan (deceased) at the Chaka. She has further deposed that thereafter accused Rama and she (P.W.2) went in search of her husband and on the way, they saw Upin and Sukru (both not examined) who stated to have seen the accused persons with her husband going to the house of Santosini of their village to consume liquor. This P.W.2 then surprisingly states that in the night, P.W.1 with other police personnel had gone to her house and asked about her husband and she had narrated the matter to them but interestingly enough that is not supported by P.W.1. Her further evidence is that the police personnel then stated before her that both the accused persons had assaulted and killed her husband. The above narration of P.W.2 raises suspicion as to the presence of accused Rama with P.W.2 during that period. Her further evidence is that the police personnel then stated before her that both the accused persons had assaulted and killed her husband. The above narration of P.W.2 raises suspicion as to the presence of accused Rama with P.W.2 during that period. The evidence of P.W.6 and P.W.7, who are the two sons of deceased Ratan are not direct on the point that they had seen their father going with the accused. In such state of affair in the evidence, we are not in a position to conclude that the prosecution has established the last seen theory in such a manner that the burden of proof of the fact as to what happened with the deceased thereafter would rest on the shoulders of the accused persons that non-explanation thereof by them would lead to a conclusion that it is they, who are responsible for the said happenings of the deceased as those facts were within their special knowledge. 12. Coming to the evidence as to the recovery of tangia, which is said to have been made at the instance of this accused, let us glance at the evidence of P.W.5. He has stated that three days after the incident, he had gone to the police station where both the accused persons were present and there both the accused persons described the entire crime scenario, which is per se not admissible in the eye of law. His further evidence is that he with both the accused persons and police then went to the spot in police jeep but which is the spot is not stated by this witness. He states that on being asked by police, this accused brought one tangia from the cultivable land situated by the side of the road. He does not state anything about the recording of the statements of the accused persons. The other witness P.W.8 has not supported the prosecution case as to the recovery of the weapon at the instance of this accused. The I.O (P.W.11) has stated that on 28.11.2015, accused Rajesh gave his statement and accordingly led him and the witnesses to a place where the other accused Rama was present and thereafter accused Rajesh led them to the backside of the Ghanteswari Temple and gave recovery of the axe from the cultivable land. The I.O (P.W.11) has stated that on 28.11.2015, accused Rajesh gave his statement and accordingly led him and the witnesses to a place where the other accused Rama was present and thereafter accused Rajesh led them to the backside of the Ghanteswari Temple and gave recovery of the axe from the cultivable land. His evidence and the evidence of P.W.5 are wholly inconsistent with one another almost on every aspect and those also in our considered view do not pass through the test as to the admissibility of the same under the provision of section 27 of the Evidence Act for whatever limited purpose it may be. 13. On a conspectus of the analysis of the evidence in our considered view, the finding of the Trial Court that prosecution has established the charges against this accused beyond reasonable doubt by leading clear, cogent and acceptable evidence is not sustainable and therefore, the judgment of conviction and order of sentence against the accused Rajesh Dharua impugned are liable to be set aside. 14. Having held as above, since this Appeal has been preferred by only one of the accused persons out of the two and that other convict, namely, Rama Budek, who was on Trial with the present accused, namely, Rajesh Dharua standing charged for the same offence, we have heard Mr. P.K. Mohanty, learned Additional Standing Counsel as to what would be the impact of our foregoing findings on the fate of the judgment of conviction and order of sentence insofar as the accused Rama, who has not appealed, is concerned. 15. In this context, it may be stated that while dealing with a Criminal Appeal filed by only one of the convicts if the Court finds that there is no evidence worth the same to sustain the conviction of not only the accused, who has filed the Appeal but also the other accused, who has not appealed, we find no reason or justification as to why the power of this Court in view of the provisions contained in sections 401 & 482 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') cannot be exercised in certain eventuality to set aside the conviction and sentence passed against the other accused, who has not appealed so as to see that manifest injustice may not be continued to be perpetrated for merely non filing of the Appeal by the co-convict. We are of the view that if in such eventuality, the Court would simply rule upon the judgment of conviction and order of sentence in so far as the convict, who has filed the Appeal is concerned, then such provisions as noted above in the Cr.P.C. would serve no purpose as having no life. 16. Upon discussion of evidence on record in great detail in the foregoing paragraphs, we have arrived at the conclusion that the prosecution has failed to establish its case, which is based on circumstantial evidence beyond reasonable doubt by leading clear, cogent and acceptable evidence in proving the circumstances in showing that all circumstance taken together complete the chain of events in every respect that all the hypothesis other than the guilt of the accused persons are ruled out. The findings rendered by us are inter-dependant and inextricably integrated in so far as this Appellant-Accused as well as the convict who has not filed the Appeal are concerned. In this context, we may refer to few authorative pronouncements which provide full supports to the view that we are going to take. 17. In case of Parbati Devi -V- The State; AIR 1952 Calcutta 835; two persons were convicted under section 120-B read with section 366 of the IPC. One of them appealed against the judgment of conviction and order of sentence. The Court came to the conclusion that there was absolutely no evidence to sustain the conviction of the Accused- Appellant as well as the other Accused-Non-Appellant. The question then arose for consideration was whether the conviction and sentence passed on that Accused-Non-Appellant be set aside even, though he had not appealed. While dealing with that question, it has been observed as under:- 'When we were considering the appeal by Parvati Devi we came to the definite conclusion that there was no evidence on the record which would justify a conviction for conspiracy as between Parvati Devi arid Shew Nath. It is not only in the exercise of the inherent power, but we consider it to be the duty of the Court to exercise jurisdiction in such a manner that manifest injustice may not be continued to be perpetrated. It does not matter that Shew Nath has not appealed. It is not only in the exercise of the inherent power, but we consider it to be the duty of the Court to exercise jurisdiction in such a manner that manifest injustice may not be continued to be perpetrated. It does not matter that Shew Nath has not appealed. This matter having come to the notice of the Court, we think that we have got sufficient jurisdiction under the inherent powers of the Court under Section 561- A, Criminal P. C., 1898 to pass appropriate orders in the case of Shew Nath also.' 18. In case of Hari Nath & Another -V- State of U.P.; AIR 1988 SC 345 , the Hon'ble Supreme Court, while setting aside the judgment of conviction and order of sentence passed against the Appealing Accused, who had been convicted under section 396 of the IPC and sentenced thereunder, also set aside the conviction and order of sentence passed against the Non-Appealing Accused holding that the same cannot sustain, consistent with the finding in and the result of the Appeal as the findings are inter-dependent and inextricably integrated. 19. In case of Nirmal Pasi & Another -V- State of Bihar; (2003) 24 OCR (SC) 431, the Hon'ble Apex Court, upon discussion of the evidence, came to conclude that the prosecution case, which relates to the arrest of the Accused-Appellants suffers from serious infirmities. The Trial was also held to be defective as most of the relevant incriminating evidence had not been put to the Accused-Appellants during their examination under section 313 Cr.P.C. in seeking explanation from them. So, the conviction of the Accused-Appellants and the order of sentence for the offence under section 396 of the IPC and the consequential order of sentence were set aside. So, the conviction of the Accused-Appellants and the order of sentence for the offence under section 396 of the IPC and the consequential order of sentence were set aside. Having said so, coming to deal with the case of the third Accused whose conviction, having been maintained by the High Court, he had not chosen to file an Appeal before the Apex Court, it has been held as follows:- ' However, in view of what has been stated hereinabove, we find the case of Accused Krishna Choudhary not distinguishable from the cases of Sona Pasi and Nirmal Baheliya, Accused-Appellants and his conviction and the sentence passed therein should also be set aside.' With the above, the Hon'ble Court, while directing that the Accused-Appellants, namely, Sona Pasi and Nirmal Baheliya to be set at liberty forthwith, if not wanted in any other case, has also set aside the conviction for commission of offence under section 396 of the IPC and the sentence passed thereon as against the third Accused, namely, Krishna Choudhary though he has not appealed and directed that he too be released forthwith if not wanted in any other case. 20. In view of our foregoing discussion and the position of law, as noted above, we, in the case at hand, conclude that the judgment of conviction and order of sentence passed by the Trial Court against Accused Rama Budek though he has not appealed cannot be sustained and as such are liable to be set aside. 21. Resultantly, the judgment of conviction and order of sentence dated 13th April, 2018 passed by the learned Additional Sessions Judge, Bargarh in C.T Case No.67/17 of 2016 in respect of both the Accused persons i.e. Rajesh Dharua, who is in Appeal before us and the other one, namely, Rama Budek who has not Appealed, are hereby set aside. Accordingly, it is directed that Rajesh Dharua, the Appealing Accused and Rama Budek, the non-Appealing Accused be set at liberty forthwith, if their detention is not wanted in connection with any other case.