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2016 Supreme(Ori) 11
IN THE HIGH COURT OF ORISSA, CUTTACK
VINOD PRASAD, S.K. SAHOO, JJ.
Panda @ Maheswar Sanangi - Appellant
Versus
State of Orissa - Respondent
JCRLA No. 92 of 2012
Decided On : 05-01-2016
For the Appellant : Mrs. Susamarani Sahoo
For the Respondent: Mr. Janmejaya Katikia
Headnote:1. PENAL CODE, 1860 - Secs. 302/34, 201/34 - Conviction under - Appeal - Appreciation of evidence - No direct evidence in the case and .the case is based on circumstantial evidence - Except some evidence relating to threatening by the accused persons to the diseased and quarrel between them on the date of occurrence, there are no other clinching materials against the accused persons - There is no acceptable evidence that the accused persons dragged the deceased from the Mandaghara of the village towards Kuakhia river - It cannot be said that last seen theory which was presented by the prosecution in the form of quarrel between the parties is so clinching that it proved the guilt of the appellant - Conviction of the Appellant is based on completely insufficient evidence and is wholly unsustainable.
2. INVESTIGATION - Investigating Officer plays a very pivotal role in the dispensation of criminal justice and error in the investigation may result in miscarriage of justice.
The police officers have been given great latitude under Code of Criminal Procedure to exercise their power to make a successful investigation. They have been given free liberty to collect necessary evidence in order to assist the Court to arrive at a just decision of the case. The duty of the investigating officer is to ascertain the correct set of facts and present truth before the Court of law. It is equally the responsibility of the investigating officer while deposing in Court, to the questions put by either the public prosecutor or the defence counsel or even by the Court, to make correct statement with reference to the case diary. A misleading statement or a false statement by the investigating officer just out of sheer over anxiety for the success of the prosecution is unwarranted and it is not only playing fraud on the temple of justice but would also be detrimental to the interest of justice.
3. CASE DIARY - There is no dearth of power on the part of a Criminal Court to call for and use the Case Diary in the aid of an enquiry or trial - Court can certainly peruse the case diary if any doubt creeps in regarding the sanctity of the investigation or bonafide conduct of investigating officer in investigating the case - It does not give unfettered power to place reliance on the case diary as a piece of evidence directly or indirectly.
JUDGMENT :
S.K. Sahoo, J.
The appellant Panda @ Maheswar Sanangi along with one Bisu Sanangi were charged under section 302/34 of Indian Penal Code by the learned Adhoc Addl. Sessions Judge, Fast Track Court, Keonjhar in S.T. Case No.32/43 of 2012 for committing murder of one Sukura Danayak (hereafter ‘the deceased’) on 14.08.2011 at about 6.00 p.m. in village Rangadihi in furtherance of their common intention. They were also charged under section 201/34 of Indian Penal Code for causing disappearance of certain evidences connected with the crime in furtherance of their common intention.
During course of trial, on enquiry, the co-accused Bisu Sanangi was found to be less than eighteen years as on the date of the occurrence i.e. on 14.08.2011 and accordingly he was held by the learned trial Court, vide order dated 31.07.2012, to be a juvenile in conflict with law and his case was sent to Juvenile Justice Board, Keonjhar. So far as the appellant is concerned, though inquiry was conducted but in terms of ossification test report, he was found not to be a juvenile in terms of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007.
The learned trial Court found the appellant guilty under sections 302/34 and 201/34 of Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for six months for the offence under section 302/34 IPC. The appellant was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for six months for offence punishable under section 201/34 of Indian Penal Code and both the substantive sentences were directed to run concurrently.
2. The prosecution case, as per the First information report (Ext.1) presented by Routa Sanangi (P.W.1) on 18.08.2011 before the Officer in-charge, Kanjipani Police Station, in the district of Keonjhar is that the deceased was his father-in-law and on 14.08.2011 at about 3.00 p.m. the deceased had a quarrel with the appellant and co-accused Bisu Sanangi as he was suspected to be practicing witchcraft and both the accused threatened the deceased with dire consequence. When the informant and some of the co-villagers prevented the accused persons, they left the spot but again during evening hours at about 6.00 p.m., there was quarrel between the parties and the deceased was dragged by the accused persons towards the river which was seen by others and since then the deceased was not traceable. In that connection, the informant presented a missing report on 16.08.2011 in Kanjipani Police Station and the deceased was also searched. On 17.08.2011 evening, the cadaver of the deceased was found lying inside river Kakharua. The informant and other villagers guarded the dead body throughout the night and the First Information Report was presented in the morning. The informant suspected that on 14.08.2011 during the evening hours, the accused persons after killing the deceased might have thrown the dead body in Kakharua river. The dhoti which was worn by the deceased was found lying on the river embankment.
On the basis of the First Information Report, Abhaya Prasad Kar (P.W.12), who was attached to Kanjipani Police Station as officer-in-charge registered Kanjipani P.S. Case No. 27 dated 18.08.2011 under sections 302/201/34 of Indian Penal Code against the appellant and Bisu Sanangi and himself took up investigation of the case.
3. During course of investigation, P.W.12 examined the informant, visited the spot and prepared spot map Ext.11. He seized dhoti of the deceased lying at the spot along with blood stained earth and sample earth and prepared seizure list Ext.7. He also conducted inquest over the dead body and prepared inquest report Ext.2. He sent the dead body to District Headquarters Hospital, Keonjhar for post-mortem examination.
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