Research › Search › Judgment

Orissa High Court · body

2002 DIGILAW 213 (ORI)

BASANT NAYAK v. STATE OF ORISSA

2002-04-08

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - The order of conviction and sentence' passed against the Appellant u/s 302 of the Indian Penal Code by the learned Addl. Sessions Judge. Khurda in S.T. Case No. 18/37/446 of 1995/94 has been assailed in this appeal. 2. The brief history of the prosecution case is as follows: The informant Dutia Naik (P.W.1) found Ambi Dei, the wife of the deceased Ramesh Naik frantically searching for her husband at about 12.30 P.M. On 29.4.1994 P.W.1 lives near the house of the deceased. Therefore, in order to help Ambi Dei, P.W.1 along with his two sons Madhab and Kartik and Anr. co-villager Mohan Naik asked Ambi as to where Ramesh had gone. Ambi Dei stated to them that her husband had gone out for irrigating his land, but thereafter did not return P.W. 1 along with his sons and Mohan Nayak made a thorough search to trace out the deceased. In course of such search, they found a tin bucket, one 'Sodua' (small boat like material used for the purpose of irrigation), and the Lungi and Banian of the deceased near a ditch belonging to one Sudam Pradhan of Ostapur. The sons of P.W.1 dove into the ditch and brought out the deadbody of Ramesh with marks of violence on his left arm and skull. Thereafter, the deadbody was shifted to the School field of Kotapalia where, it was covered by his own Lungi. After the dead body was recovered from the ditch, many villagers including Ambi Dei, the widow of the deceased came to the spot. Ambi Dei disclosed to the villagers that she saw the Appellant going with Tangia at about mid-day wearing a blue coloured check lungi. On these allegations, P.W.1 lodged an oral report before the Inspector-in-charge of Khurda police station which was reduced to writing vide Ext. 9/1 and the Inspector-in-charge proceeded with investigation of the case. During investigation, it was however revealed that Ambi Dei, the wife of the deceased, had illicit relationship with the Appellant. In course of investigation, the Appellant surrendered at the Police Station and volunteered to the Police and disclosed where he had concealed the weapon of offence, the Tangia (M.O.III). It is said that the Appellant led the police and witnesses to the place of concealment of M.O.III and gave recovery of the same, which was seized in presence of witnesses. In course of investigation, the Appellant surrendered at the Police Station and volunteered to the Police and disclosed where he had concealed the weapon of offence, the Tangia (M.O.III). It is said that the Appellant led the police and witnesses to the place of concealment of M.O.III and gave recovery of the same, which was seized in presence of witnesses. Blood stained earth and sample earth were collected from near the place of occurrence. The police sent the sample earth, blood stained earth, and the wearing apparels of the deceased including the Lungi and banian to the State Forensic Science Laboratory. After conclusion of investigation charge-sheet was placed against the Appellant. 3. The plea of the Appellant was one denial of the occurrence and he claimed to have been falsely implicated in this case. 4. The case entirely depends upon circumstantial evidence, since no direct evidence is available to bring home the charge to the accused. 5. P.W.1 (Dutia Naik), the Grama Rakhi, had verbally explained the incident to the police. From his evidence it has transpired that he could come to know about the incident from Ambi Dei, the wife of the deceased. It worthwhile to note that although P.W.1 claimed to have been informed about the incident from Ambi Dei, she has not been examined nor has any reasons been ascribed for her non-examination in Court. 6. P.W.2 one of the co-villagers had not supported the prosecution case. According to the prosecution, P.W.3 was a witness to recovery of axe from the Appellant. But we found from his evidence that nothing has been 'proved regarding recovery of Tangia at the instance of the Appellant. Although he was declared hostile, out no incriminating material connecting the Appellant has been brought out from/him in cross-examination by prosecution. P.W.4 had deposed that the deceased, had once complained that his wife was having extra-martial relationship with the Appellant So, he advised the deceased to stay separately from his wife and. accordingly he stayed away from the house. But his evidence too does not help the prosecution/inasmuch as fie has not stated anything regarding the involvement of the Appellant in the commission of the crime P.W.S is the Investigating Officer of this case. P.W.7 is the Medical Officer who conduced post mortem examination over the deadbody of Ramesh. It is true that Ramesh met a homicidal death. But his evidence too does not help the prosecution/inasmuch as fie has not stated anything regarding the involvement of the Appellant in the commission of the crime P.W.S is the Investigating Officer of this case. P.W.7 is the Medical Officer who conduced post mortem examination over the deadbody of Ramesh. It is true that Ramesh met a homicidal death. But absolutely nothing incrimating has been brought out connecting the Appellant with the crime. Merely from the Serologist's report, when no incriminating material has been seized from the accused, it cannot be-inferred that the accused was the author of the crime. Accordingly we are not in a position to agree with the finding of the learned Addl. Sessions Judge that the Appellant is guilty of the offence. Although the case is based on circumstantial evidence, but none of the circumstances has been proved by the prosecution. Mere recovery of the axe from the possession of the Appellant also does not conclusively prove his involvement since it did not contain any incriminating material. 7. Taking into consideration the totality of the facts and circumstances of the case and on a careful study of the evidence on record, we are of the opinion that the prosecution has miserably failed to bring home the charge to the Appellant. We therefore allow this appeal set aside the judgment of conviction and sentence passed against the Appellant, and acquit him of the charge u/s 302 of the India Penal code. He be set at liberty forthwith. P.K. Mishra, J. 8. I agree. Final Result : Allowed