Jasobanta Sahu vs The State Of Odisha

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.493 OF 2022

JASOBANTA SAHU ...APPELLANT (S)

VERSUS STATE OF ORISSA ...RESPONDENT (S)

JUDGMENT

B.R. GAVAI, J.

1. The present criminal appeal challenges the final

judgment and order dated 17 th July, 2014, passed by the

Orissa High Court, Cuttack (“High Court” for short), in Jail

Criminal Appeal No. 213 of 2000. Vide the impugned

judgment, the High Court affirmed the judgment dated 26 th

August, 2000, passed by the Sessions Judge, Dhenkanal

(“Trial Court” for short) in Sessions Trial No. 2-A of 1989,

whereby the appellant was convicted under Section 302 of

the Indian Penal Code, 1860 (“IPC” for short) and sentenced

Signature Not Verified to imprisonment for life.

Digitally signed by Narendra Prasad Date: 2024.05.01 11:18:14 IST Reason: 1

2. The facts, in brief, leading to the present appeal, are as

follows:

2.1 On 9th October, 1988, the Police Station Jarapada,

Angul, District Dhenkanal, received oral information at 3 PM

from Hemanta Kumar Sahu (PW-4) and Maheswar Pradhan,

to the effect that Laxminarayan Sahu has been murdered. On

the basis of the oral information, the Office In-Charge,

Jarapada Police Station (PW22) (“I.O.” for short), registered a

First Information Report (Exhibit-1) vide Crime No. 40(3) of

1988 for the offence punishable under Section 302 of the IPC.

On registration of the FIR, the I.O. visited the spot, held

inquest over the dead body of the deceased, examined the

witnesses, seized the wearing apparels of the appellant as

well as the deceased. The I.O. also arrested the appellant on

13th October, 1988, and thereafter, the appellant led to

discovery of weapon of offence, i.e., knife (M.O.1). He also

made a query to the doctor and sent the incriminating

articles for chemical examination.

2 2.2 The prosecution case in a nutshell is that the appellant

and deceased were having strained relationship on account of

property dispute. Laxminarayan Sahu (deceased), one

Brajabandhu Sahu and Bhagaban Sahu (PW-14) were

brothers. The appellant is the son of Brajabandhu Sahu.

There was a partition of family properties between the three

brothers and their mother, in which their mother was allotted

Ac.1.80 decimals of land for her maintenance. She was

staying most of the times either with PW14-Bhagaban Sahu

or with the deceased. After her death, about four years prior

to the date of occurrence, Brajabandhu Sahu wanted to

divide the landed property belonging to his mother, which

was objected to by the other brothers. Disputes thus arose

between Brajabandhu Sahu and the appellant on one side

and the other two brothers on the other side. This led to

litigations between the parties. On 9 th October, 1988,

Laxminarayan Sahu (deceased) went to his land to plough,

the appellant reached there at about 12:30 PM and stabbed

3 Laxminarayan Sahu repeatedly by using a knife, as a result

of which Laxminarayan Sahu died at the spot.

2.3 On completion of investigation, the I.O. submitted a

chargesheet against the appellant. Since the case was

exclusively triable by the Sessions Court, the same came to

be committed by the Sub-Divisional Judicial Magistrate,

Angul, District Angul in G.H. Case No. 509 of 1988 vide

Jarapada P.S. Case No. 40 dated 9th October, 1988, to the

Sessions Court.

2.4 Charge was framed against the appellant. The appellant

pleaded not guilty and claimed to be tried. The prosecution

examined twenty-two (22) witnesses to bring home the guilt

of the accused. The prosecution also exhibited twenty-one

(21) documents. It also proved seven (7) material objects

including the knife (M.O.1). The defence did not examine any

witness. Three (3) documents were admitted into evidence for

defence. The appellant completely denied the allegations. He

claimed that due to the land disputes, a case has been filed

to harass him and to grab his land. At the conclusion of the

4 trial, the Trial Court, vide judgment and order dated 24 th

August, 1991, held that it is not a case under Section 302

IPC, but a case under Section 304 Part-I of IPC. Since the

appellant was in custody for nearly three years at that time,

considering his young age and close relationship with the

deceased, the Trial Court held that a sentence of three years

will meet the ends of justice. Accordingly, the appellant was

sentenced to undergo R.I. for three years, with the period in

custody to be set off against the period of conviction.

2.5 Aggrieved by the judgment and order of the Trial Court,

the informant (PW4-Hemanta Kumar Sahu) filed a Criminal

Revision bearing No. 365 of 1991 under Section 401 of the

Code of Criminal Procedure, 1973, challenging the judgement

and order of the Trial Court acquitting the appellant of the

charge under Section 302 IPC. Vide judgment and order

dated 14th January, 2000, the learned Single Judge of the

High Court partly set aside the judgment of the Trial Court,

so far as it relates to the acquittal of the appellant of the

charge under Section 302 IPC. The matter was remitted back

5 to the Trial Court for consideration on the limited aspect as

to whether the offence committed comes within the purview

of Section 302 IPC and the Trial Court was directed to

dispose of the matter by the end of April, 2000.

2.6 On the matter being remitted back, the Trial Court vide

judgment and order dated 26th August 2000, came to the

conclusion that the appellant committed the murder of the

deceased. In result, the appellant was convicted under

Section 302 IPC and sentenced to undergo life imprisonment,

with the period undergone to be set off as per law.

2.7 Aggrieved by the judgment and order of the Trial Court

dated 26th August 2000, the appellant filed Jail Criminal

Appeal No. 213 of 2000 before the High Court. Vide the

impugned judgment, the High Court dismissed the appeal

and confirmed the conviction under Section 302 IPC and the

sentence of life imprisonment. Since the appellant was on

bail, the High Court while dismissing the appeal, directed the

appellant to surrender to undergo the remaining period of

sentence.

6 2.8 Being aggrieved thereby, the present appeal arises by

way of special leave. This Court vide order dated 25 th March

2022, granted leave.

3. We have heard Shri T.N. Tripathi, learned counsel for

the appellant and Shri Suvendu Suvasis Dash, learned

counsel for the respondent-State.

4. Shri T.N. Tripathi submits that the appellant has been

falsely implicated in the crime. He submits that the so-called

eyewitnesses i.e., PW1-Kirtan Sahu and PW2-Nagendra

Pradhan cannot be said to be the eyewitnesses. He further

submits that the so-called extra-judicial confession given by

the accused-appellant to PW6-Purna Chandra Pradhan

cannot be said to be voluntary, cogent and trustworthy so as

to base the conviction on the same. He therefore submits

that the appeal deserves to be allowed.

5. Mr. Suvendu Suvasis Dash, on the contrary, submits

that both the Trial Court and the High Court, on a correct

appreciation of evidence, have found that the prosecution has

7 proved the case beyond reasonable doubt and as such, no

interference is warranted in the concurrent findings.

6. Since it is not disputed that the death of the deceased is

a homicidal, it will not be necessary to refer to the medical

evidence.

7. From the perusal of the evidence on record, it would

reveal that the Trial Court and the High Court have basically

rested the conviction on the basis of the testimonies of PW1-

Kirtan Sahu, PW2-Nagendra Pradhan and PW3-Hrusikesh

Sahu. The High Court has also believed the extra-judicial

confession made by the accused-appellant to PW6-Purna

Chandra Pradhan, who is a co-villager.

8. Another incriminating circumstance that the Trial Court

and the High Court have found against the appellant is with

regard to the recovery of knife, as proved in the depositions of

PW5-Harihar Behera and PW20-Choudhury Sasmal.

9. PW1-Kirtan Sahu who is the co-villager, stated that on

the day of the incident, he had gone to Puranpani Jungle to

bring some fuel. When he was returning from the Jungle, he

8 heard the shouts of “Marigali, Marigali, Rakhyakara”. He

went near the place from where the shouts were coming. He

saw the accused-appellant assaulting the deceased with the

knife. He stated that the occurrence had taken place at a

distance of about 40-50 feet from that road. He then shouted.

When the accused-appellant looked at him, he ran away out

of fear. He stated that he narrated the said incident to some

of his co-villagers, who had already come to know about the

said incident.

10. In his cross-examination, he had admitted that after he

had heard the sound of “Marigali, Marigali’, he did not run to

the spot, but he walked over the distance as usual. He

further stated that when he came to the spot, his first vision

was on the accused and the deceased and at that time the

deceased was trying to get up and was falling again and

again. In his cross-examination, he had also admitted that

his statement was recorded by the I.O. after 4-5 days from

the date of the occurrence.

9

11. PW2-Nagendra Pradhan in his evidence also stated that,

on the date of the incident, he was coming from Dimirihuda

Taila. He heard the noise of “Marigali Marigali, Jasobanta

Mote Maripakauchhi Kia Keanth Achhe Mote Rakhyara”. He

found the deceased Laxminarayan was lying on the ground

and the accused-appellant was sitting on him and stabbing

him with a knife on his chest. He also saw that the hands of

the accused-appellant were stained with blood. Seeing this,

out of fear, he went away from the place and came to the

village. He also stated that when he reached the village, he

came to know that the villagers had already come to know

about the incident.

12. From the evidence of PW2, it would also reveal that,

after the incident, on the next morning, he went to his Taila

where there was a garden consisting of many fruit bearing

trees and vegetables. He returned to his village after 5 days.

He further stated that after he returned from his Taila to his

village, he voluntarily appeared before the I.O. and gave his

statement.

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13. He further admitted in his cross-examination that his

co-villagers knew that he was in his Taila for 5 days. The

village school where the I.O. was camping would be at a

distance of 500 yards from his house.

14. PW2 had admitted that his son was working as Havildar

in P.T.C. Angul. PW2 stated that though after seeing the

incident he had shouted, but none came to the spot. He

further stated that he was alone at the spot.

15. A serious doubt arises from the conduct of PW1 and

PW2 as to whether they were really the eyewitnesses to the

incident or not.

16. PW1 admitted that his statement was recorded 4-5 days

after the date of the incident.

17. The conduct of PW2 is more abnormal, particularly,

when his son himself is a Police Havildar. After seeing such a

gruesome incident, he chose to go to his Taila, which is about

2 miles away from the place of occurrence, and he returned

11 from his Taila after 5 days and voluntarily gave his statement

to the I.O. PW2 stated that the villagers were knowing that

he was in his Taila, which is 3 miles away from his village. If

that be so, then the I.O. should have visited his Taila when

the villagers were specifically knowing that that this witness

(PW2) is an eyewitness. The I.O.’s not going to his Taila to

record his statement casts a serious doubt on the question as

to whether this witness (PW2) was really an eyewitness or

not.

18. It is further to be noted that there are inconsistencies in

the evidence of PW1 and PW2. PW1 stated in his evidence

that when he saw the incident he was alone at the spot, away

from about 40-50 feet. He stated that he shouted, but when

the accused-Appellant looked at him, he ran away out of fear.

19. Similarly, PW2 also stated in his evidence that when the

incident happened, he was alone there. He stated that

although he raised hullah calling “Kis Kaunthi Achha

Rakhyakar”, but none came to the spot hearing his hullah.

12

20. In view of these inconsistencies, it is doubtful as to

whether both these witnesses have actually witnessed the

incident or not.

21. The I.O. in his evidence stated that all the 4

eyewitnesses had not come to him voluntarily to depose

regarding what they had seen about the occurrence. But he

called them and examined them in connection with the case.

Per Contra, both PW1 and PW2 stated in their evidence that

they were not called by the I.O. but they went voluntarily to

give their statement. The I.O. further admitted in his

evidence that both PW1 and PW2 were not available in the

village till 14th October 1988. The I.O. stated in his evidence

that between 9th and 14th October, 1988, none of the villagers

came forward and told him that they had seen the

occurrence. However, as stated herein above, PW1 and PW2,

both had deposed that on the same day, they had informed

the co-villagers about the incident, but they had been

informed that the co-villagers had already come to know

13 about the incident. This fortifies the suspicion regarding the

evidence of PW1 and PW2.

22. It is pertinent to note that PW15-Satyabadi Pradhan

and PW16-Santosh Pradhan, who were also the eyewitnesses

to the incident, had turned hostile and did not support the

prosecution’s case.

23. Insofar as PW3-Hrusikesh Sahu is concerned, he stated

in his evidence that when he was returning after cultivation,

he saw the accused-appellant coming and his hands were

stained with blood. He further stated that on being asked, the

accused-Appellant did not give any reply. In his examination-

in-chief, he stated that though he asked Chaitan Sahu as to

whether the deceased came to the village and also intimated

him as to how the hands of the accused-appellant were

stained with blood; he admitted in his cross-examination that

he did not intimate this fact to the family members of the

deceased.

24. Insofar as PW6-Purna Chandra Pradhan is concerned,

no doubt that he refers to the extra-judicial confession made

14 by the accused-appellant to him to the effect that “Sala Maa

Giha Laxmi Ki Maridei Palei Asiehhi”. However, on a perusal

of his evidence, it would reveal that his evidence is full of

improvements.

25. It will be relevant to refer to the following observations of

this Court in the case of Harbeer Singh vs. Sheeshpal and

others1:

“22. The High Court has further noted that there were chance witnesses whose statements should not have been relied upon. The learned counsel for the respondents has specifically submitted that PW 5 and PW 6 are chance witnesses whose presence at the place of occurrence was not natural.

23. The defining attributes of a “chance witness” were explained by Mahajan, J., in Puran v. State of Punjab [Puran v. State of Punjab, (1952) 2 SCC 454 : AIR 1953 SC 459 : 1953 Cri LJ 1925] . It was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about 1 (2016) 16 SCC 418

15 which they are called later on to give evidence.

24. In Mousam Singha Roy v. State of W.B. [Mousam Singha Roy v. State of W.B., (2003) 12 SCC 377 : 2004 SCC (Cri) Supp 429] , this Court discarded the evidence of chance witnesses while observing that certain glaring contradictions/omissions in the evidence of PW 2 and PW 3 and the absence of their names in the FIR has been very lightly discarded by the courts below.

Similarly, Shankarlal v. State of Rajasthan [Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 : 2005 SCC (Cri) 579] and Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] are authorities for the proposition that deposition of a chance witness, whose presence at the place of incident remains doubtful, ought to be discarded. Therefore, for the reasons recorded by the High Court we hold that PW 5 and PW 6 were chance witnesses and their statements have been rightly discarded.”

26. The next circumstance on which the Trial Court and the

High Court had placed reliance is with regard to the recovery

16 of the weapon used in the crime. The prosecution in this

respect relied on the evidence of the I.O. as well as the Panch

witnesses i.e. PW5 and PW20.

27. The evidence of the I.O. and the Panch witnesses i.e.,

PW5 and PW20, would reveal that the recovery of weapon was

made from an open place. The recovery is made from a

Bhalupadi Bush of Naga Sahu Mango Tope of Village Uggi.

As such, much reliance cannot be placed on such recovery.

In any case, the conviction, solely based on such recovery,

would not be tenable.

28. In the result, we find that the prosecution has failed to

prove the case beyond reasonable doubt. The judgment and

order of conviction and sentence as recorded by the Trial

Court and as affirmed by the High Court are not sustainable

in law.

29. Consequently, and in the light of above, the appeal is

allowed. The judgment and order passed by the Sessions

Judge, Dhenkanal dated 26th August 2000 in Sessions Trial

No.2-A of 1989 as well as the judgment and order dated 17 th

17 July 2014 passed by the Orissa High Court, Cuttack in Jail

Criminal Appeal No.213 of 2000 is quashed and set aside.

The appellant is acquitted of all the charges charged with. He

is directed to be set at liberty forthwith, if not required in any

other case.

…….........................J. [B.R. GAVAI]

…….........................J. [SANDEEP MEHTA] NEW DELHI;

APRIL 30, 2024

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