Research › Search › Judgment

Orissa High Court · body

2000 DIGILAW 151 (ORI)

DAMBARU GOUDA v. STATE OF ORISSA

2000-03-16

B.N.AGRAWAL, R.K.PATRA

body2000
B. N. AGRAWAL, C. J. ( 1 ) THE sole appellant has been convicted by the trial Court under S. 3 (2) (iii) and (iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for life under S. 3 (2) (iv) of the Act and rigorous imprisonment for six months under S. 3 (2) (iii) of the Act. The sentences however have been ordered to run concurrently. ( 2 ) PROSECUTION case in short is that on 16-2-1992 at about 8 p. m. the appellant set the dwelling house of the informant Sadan Majhi (P. W. 1) and straw heap of his brother Deba Majhi (P. W. 2) on fire situate in village Batakari within the police station Papadahandi under the district of Nowrangpur, as a result of which the said house and straw heap were destroyed and the fact that the aforesaid two witnesses belong to Scheduled Tribes was known to the appellant. It has been further stated that on hulla being raised, witnesses arrived, the accused was apprehended and taken to the house of Ward Member before whom he made extra-judicial confession. On the aforesaid facts, first information report was lodged at the concerned police station. ( 3 ) POLICE after registering case took up investigation and on completion thereof, submitted charge sheet. Upon receipt of the charge-sheet, learned Magistrate took cognizance and committed the appellant to the Court of Sessions to face trial. ( 4 ) THE defence of appellant was that no occurrence at all had taken place much less in the manner alleged. According to him, he was innocent and was falsely implicated in the case in hand out of previous grudge and enmity. ( 5 ) DURING trial, prosecution examined seven witnesses in support of its case. P. W. 1, Sadan Majhi is nobody else than the informant himself, whose house was said to have been put on fire and claims to be an eye-witness. P. W. 2, Deba Majhi is the brother of P. W. 1 whose straw heap is said to have been put on fire. P. W. 3 claims to have arrived at the place of occurrence immediately upon hearing hulla being raised by P. W. 1 and found that the house was burnt. P. W. 2, Deba Majhi is the brother of P. W. 1 whose straw heap is said to have been put on fire. P. W. 3 claims to have arrived at the place of occurrence immediately upon hearing hulla being raised by P. W. 1 and found that the house was burnt. P. W. 4, Khagapati Gouda claims that upon hearing hulla, he arrived at the place of occurrence. P. W. 5 claims to be a seizure witness in whose presence half burnt bamboo pieces, wood and straw were seized by the Police, P. W. 6 is the Asst. Sub-Inspector of police before whom written report was presented by the informant for instituting a case, who sent the same to the Officer-in-charge of the police station for registering a case and partly investigated the case. P. W. 7 is the Investigating Officer, who took up further investigation and submitted the charge sheet. The trial Court upon conclusion of the trial, convicted and sentenced the appellant as stated above. Hence this appeal. ( 6 ) THE trial Court discarded the prosecution case that the accused was taken to the house of Ward Member and made extra-judicial confession and disbelieved the evidence of P. W. 3 who claims to be an eye-witness. Therefore, this Court is required to consider the evidence of P. Ws. 1, 2 and 4. Out of the aforesaid witnesses, P. W. 4 claims to have arrived at the alleged place of occurrence from his house on hearing hulla along with witnesses Narahari, Rama and Narasingha and found that the house and the straw heap were gutted with fire. This witness does not claim to be an eye witness. He further claims that P. Ws. 1 and 2 told him that the accused fled away after setting the house and straw heap on fire. This witness admitted during the course of cross-examination that his house is inside the village and houses of P. Ws. 1 and 2 were situated at some distance from the village basti. According to this witness, Narahari, Rama and Narasingha also came along with him and all of them could have been examined as independent witnesses in support of the prosecution case, but none of them has been examined in support of the prosecution case. 1 and 2 were situated at some distance from the village basti. According to this witness, Narahari, Rama and Narasingha also came along with him and all of them could have been examined as independent witnesses in support of the prosecution case, but none of them has been examined in support of the prosecution case. This witness further stated that other villagers came from the basti afterwards, but curiously enough none of them has been examined in support of the prosecution case. The evidence of this witness that he along with others took the accused to the house of Ward Member and the accused made an extra-judicial confession before him has been disbelieved by the trial Court. In view of these facts, the very presence of this witness at the place of occurrence immediately after hearing hulla becomes highly doubtful and accordingly, in our view, the trial Court was not justified in placing reliance upon his evidence. ( 7 ) UNDISPUTEDLY, P. Ws. 1 and 2 are nobody else than the full brothers, P. W. 1 has stated that he saw the accused setting fire to his house whereupon he raised alarm. He further stated that he found the accused setting the straw heap of his brother on fire. The witness has further stated that on his hulla, Deba Majhi, Jagabandhu Majhi, Khagapati Gouda and Narasingha arrived at the place of occurrence. Out of the aforesaid four witnesses, the evidence of P. W. 3 has already been disbelieved by the trial Court. So far as evidence of P. W. 4 is concerned, the same has not been found reliable by this Court as stated above and Narasingha has not been examined by the prosecution for the reasons best known to it. The witness has stated that it was a dark night and there was no electricity in the village from which it appears that identification of the accused by this witness was highly doubtful. Apart from that, evidence of this witness that accused was taken to the house of Ward Member and before him he confessed his guilt has been disbelieved by the trial Court. Apart from that, evidence of this witness that accused was taken to the house of Ward Member and before him he confessed his guilt has been disbelieved by the trial Court. Though a suggestion given to P. W. 4 that as wife of the accused left him, there was ill-feeling between the accused and P. W. 1 has been denied, but in view of the aforesaid facts, chances of the accused being implicated in the case on that count cannot be ruled out. In view of the aforesaid facts, in our view, it would not be safe to place reliance on the evidence of this witness. P. W. 2 as stated above, is full brother of the informant (P. W. 1 ). He does not claim to be an eye-witness and has stated to have arrived at the place of occurrence upon hearing hulla and learnt from P. W. 1 that accused has set fire to his house. From the evidence of this witness, it appears that P. Ws. 3, 4 and Damodar came to the place of occurrence upon hearing hulla. From the evidence of P. W. 1, it appears that witness Narasingha also came to the place of occurrence upon hearing hulla. Out of the aforesaid four witnesses, the evidence of P. Ws. 3 and 4 has not been found reliable either by this Court or by the trial Court and witnesses Narasingha and Damodar have not been examined. The evidence of this witness that P. W. 1 narrated the incident to him and stated that accused set fire to his house is not supported by any other witnesses. The evidence of this witness that he also took the accused to the house of the Ward Member and the accused made extra-judicial confession before him has been disblieved by the trial Court. In view of these facts, in my view, no reliance can be placed upon the evidence of this witness as well. In view of the foregoing discussions, I am of the view that the prosecution has failed to prove its case beyond reasonable doubts and the trial Court was not justified in convicting the appellant. ( 8 ) IN the result, the appeal is allowed, the order of conviction and sentence passed against the appellant by the trial Court is set aside and the appellant is acquitted of all the charges. ( 8 ) IN the result, the appeal is allowed, the order of conviction and sentence passed against the appellant by the trial Court is set aside and the appellant is acquitted of all the charges. The appellant, who is in custody is directed to be released forthwith, if not required in connection with any other case. ( 9 ) R. K. PATRA, J. :- I Agree. Appeal allowed.