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2002 DIGILAW 600 (ORI)

Gayadhar alias rekrushna Barik v. State of Orissa

2002-09-16

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT B. PANIGRAHI, J. — This appeal is directed against the order/judgment passed by the learned Additional Sessions Judge, Cuttack in Sessions Trial No. 133 of 1993 hereby the appellant has been convicted under Section 302, IPC for commission for the murder of one Ghanashyam Parida and sentenced to undergo impris¬onment for life. 2. The brief history of the prosecution case as unravelled in course of trial is as follows : On 15.11.1992 at about 8.30 A.M, the deceased Ghanashyam Parida, the paternal uncle of informant (P.W.8), had gone to look after his potato field situated in Jiginipur. At that time, the appellant was nourshing his cauliflower field. When the deceased Ghanashyam Parida reached near the land of one Dhanu Samal, which was lying adjacent to the appellant’s field, all on a sudden, the appellant dealt blows by means of a spade on the head of the deceased and thereafter ran away with the spade. The incident was witnessed by Sulochana Das (P.W.2), Suresh Kumar Mulia (P.W.3) and Ashok Kumar Swain of Mahespur, Kshetrabasi Baithal, Sanatan Mulia of Khalarda, Sura Bhoi of Purusottampur, Padan Pradhan of Mula Kodinda, After giving the murderous blow on Ghanashyam Parida, the appellant had proceeded towards the village Kusama through “Mulakodinda Gahira”. Ashok Kumar Swain (P.W.6) Suresh Kumar Mulia (P.W.3), Nakula Rout, Surendra Swain (P.W.5), Akhaya Kumar Patnaik (P.W.4) and others chased the appellant and caught hold of him near village Usuma. It is further stated that the appellant had allegedly confessed before them to have committed the crime. The appellant was thereafter brought to the Thakurghar of village Mahespur. In the meantime, P.W.1 could come to know about the incident, proceeded to the police station and lodged information which was treated as F.I.R. by the O.I.C. Sadar Police Station, who proceeded to village Mahespur, took charge of the accused, visited the spot and examined the witnesses. Ghanashyam Parida after receiving injuries was taken to Mahidharapara P.H.C. where he was declared dead. The I.O. had conducted inquest over the dead body at Mahidharapara P.H.C. and then sent it to the S.C.B. Medical College for post-mortem examination. While in custody, the appellant led the I.O. to the place of recovery of the spade and at his instance, it was seized under Section 27 of the Evidence Act. The blood stained earth, sample earth and clothes belonging to the deceased were sent for chemical examina¬tion. While in custody, the appellant led the I.O. to the place of recovery of the spade and at his instance, it was seized under Section 27 of the Evidence Act. The blood stained earth, sample earth and clothes belonging to the deceased were sent for chemical examina¬tion. After closure of investigation, chargesheet was placed against the appellant under Section 302, IPC. 4. The prosecution had examined 11 witnesses to bring home the charges to the appellant. P.Ws. 2,3,5 and 6 are said to be the eye-witnesses to the occurrence, whereas P.W.1 is a witness to the inquest, P.W.7 had claimed to be a witness to the seizure of the spade, P.W.9 was the Medical Officer, who had examined the appellant as he complained of injuries on his person and P.W.11 was the doctor, who conducted post mortem examination over the dead body of Ghanashyam Parida. The learned Additional Sessions Judge on evaluation of the evidence, however held the appellant guilty for committing the offence of murder of Ghanashyam Parida. 5. Mr. B. Panda, learned counsel appearing for the appel¬lant has strenuously contended that since ocular evidence is contradictory to the medical evidence, the case of the prosecu¬tion should be viewed with suspicion. He has brought to our notice that the evidence adduced by the prosecution is that the deceased had sustained six injuries, out of which injury No.1 was an incised wound situated on the right side fronto parietal region of scalp, 8 cm. above the right eye. Looking to the evi¬dence of P.W.2, it seems that the appellant had allegedly given blows from behind on the head of the deceased. The other blows had been given on different parts of the body. The other eye-witnesses have stated that two blows had been given on the de¬ceased. From the medical evidence, it appears that the deceased received injuries on the head. We are, therefore, not in a posi¬tion to agree with the contention of Mr. Panda that there was any contradiction between the ocular evidence and medical evidence with regard to the injuries. 6. The injuries were allegedly inflicted by a spade, which had been seized under Section 27 of the Evidence Act at the instance of the appellant. To this aspect, P.W.7 Sukanta Kumar Samal has claimed to be a witness. The spade was recovered from the nearby Kia bush in the locality of Mula Kodinda Gahir. 6. The injuries were allegedly inflicted by a spade, which had been seized under Section 27 of the Evidence Act at the instance of the appellant. To this aspect, P.W.7 Sukanta Kumar Samal has claimed to be a witness. The spade was recovered from the nearby Kia bush in the locality of Mula Kodinda Gahir. It was sent to the Serologist for opinion. But from the report of the Serologist nothing has come out that the said spade contained any incriminating material. Therefore, even if the spade was seized under Section 27 of the Evidence Act, it does not help the prose¬cution in any manner to bring home the charge to the appellant. It is strange to note that the spade which is said to have been seized at the instance of the appellant was not produced before the trial Court. The consistent evidence of the prosecution was that while the appellant was running away with the spade, he threw it on the way and proceeded towards village Usuma. It stands to no reason that if the witnesses had known that the appellant had thrown the spade on the way while running towards the village Usuma, then why did those witnesses who had seen it, not recover the spade and produce before the I.O. From the evi¬dence of the I.O., P.W.10, it has further transpired that he knew the place where the spade was allegedly hidden, so also the witnesses. In that view of the matter, the recovery of the spade from a Kia bush does not help the prosecution while deciding the culpability of the appellant. 7. From the I.O.’s evidence, it has appeared that Khetraba¬si Baithal, Sarat Mulia, Padan Pradhan and Sura Bhoi had claimed to be eye-witnesses to the occurrence and their statements were recorded under Section 161, Cr.P.C. But, for the reasons best known to the prosecution, they have not been examined. The house of Khetrabasi Baithal was very nearer to the spot. However, the same has not been shown in the spot map. Ext.5. 8. Turning to the evidence of P.W.2, it appears that she claimed to have gone for cutting crops and while she was near Jigini Gahir land, she had witnessed the occurrence. While appre¬ciating her evidence, first of all, it is to be scrutinised regarding the reliability of her testimony. Ext.5. 8. Turning to the evidence of P.W.2, it appears that she claimed to have gone for cutting crops and while she was near Jigini Gahir land, she had witnessed the occurrence. While appre¬ciating her evidence, first of all, it is to be scrutinised regarding the reliability of her testimony. She belongs to Mahes¬hpur village, which is also the village of the deceased. Jiginipur Gahir is about 2 miles away from her house. She also does not know all the persons who owned the land in the Jiginipur Gahir.By the time she went to the land for cutting the crop, Sarad type of paddy must not have been ripe. She had also not told about the incident in her village before arrival of the police. It is un¬likely for a person to observe silence even after she had wit¬nessed a ghastly crime like murder and waited for the arrival of the police. It is further noticed that she stated to have gone for harvesting crop to Jiginipur Gahir, but she was unable to speak the name of the owner of the land where she proceeded to cut the crop. From her evidence embodied in the record, it fur¬ther transpires that she was not able to speak the boundaries of the land where she had gone for harvesting. She was having vision problem due to her old age since 10 years preceding the occur¬rence. For the first time, she saw the deceased on the date of incident. She also did not know the name of the appellant nor did she describe his physical appearance. Admittedly there was no T.I. parade. She had the occasion to see the appellant only on the date of examination. In this background, it is difficult to place reliance on the testimony of P.W.2. 9. On going through the evidence of P.Ws. 3,4 and 5, it appears that they had gone to attend the call of nature and they had noticed the incident. P.Ws. 3,4 and 5 belong to village Khalarda. How all the witnesses went together for answering the call of nature at a time. From the evidence of P.W.3. it has appeared that he had gone to answer the call of nature to Didhua Canal. In cross-examination however, he has stated that for reaching Didhua Canal one has to cross Pratapnagari Canal, which is flowing on the west of his village and thereafter river Katho¬jori. From the evidence of P.W.3. it has appeared that he had gone to answer the call of nature to Didhua Canal. In cross-examination however, he has stated that for reaching Didhua Canal one has to cross Pratapnagari Canal, which is flowing on the west of his village and thereafter river Katho¬jori. After crossing kathojoi river and Pratapnagari Canal, Jiginipur Gahir comes on the way while reaching Didhua Canal. When a person goes to attend call of nature, it is reasonably expected to choose a nearer place than going to a far off place for that purpose. Pratapnagari Canal and Kathajori river are very close to his village. That is why it is not understood why P.W.3 leaving those places proceeded to Didhua Canal for the said pur¬pose and on his way saw the incident. It has been established from his evidence that the villagers usually go to Kathojori river and Pratapnagari Canal for answering the call of nature. The police came around 10. A.M. to 12.30 P.M. to Thakurghar. At 4.00 P.M. he was summoned by the police and then he narrated about the incident. It is not known as to why he failed to nar¬rate the incident when he first saw the police near the Thakurgh¬ar. He claimed to have witnessed the incident at a distance of 200 to 300 cubits from the place of occurrence. It is also doubt¬ful whether a person can witness the incident by remaining at such a distant place. P.W.4 Akhaya Kumar Patnaik has claimed to have gone to take bath in Pratapnagari Canal. At that time apart from P.Ws.4 and 5, Surendra Swain and Nakul Swain were also present. But they have not been examined in this case. Radhashyam Khuntia who had also allegedly chased the appellant was left out by the prosecution from being examined. From his evidence, it is seen that while the appellant was running towards village Usuma, on the way he threw the spade, but he did not make any attempt to take possession of the same. He had over-powered the appellant near village Usuma but none from the said village had been exam¬ined to support the version of P.W.4. P.W.5 in the same line claimed to have gone to Khalarda-Kurunti road to answer the call of nature. At that time he had seen the occurrence, at a distance of 200 metres from the place of incident. He had over-powered the appellant near village Usuma but none from the said village had been exam¬ined to support the version of P.W.4. P.W.5 in the same line claimed to have gone to Khalarda-Kurunti road to answer the call of nature. At that time he had seen the occurrence, at a distance of 200 metres from the place of incident. Therefore, it is shrouded with suspicion as to whether he could have seen the incident by standing at such a distance. P.W.6 had also gone to attend the call of nature to Didhua Canal. Since the evidence of P.W.3 has already been discussed and his statement has been disbelieved, we are therefore, not inclined to place any reliance on the statement of P.W.6, who deposed in same line P.W.8 was the Sarpanch of village Mahespur. Village Khalarda comes within the Panchayat of Mahespur. It is quite likely that the prosecution witnesses in order to oblige their Sarpanch had come and deposed in favour of the prosecution since the uncle of P.W.8 had been killed in the incident. 10. Although the prosecution had ascribed the motive to the appellant for commission of the crime, but it has not been proved by the prosecution. It is true that the prosecution is not obliged to prove motive in each and every case. But once such motive is attributed to the appellant, it is its duty to estab¬lish by clear, cogent and unimpeachable evidence of such motive for which the appellant had committed the offence. In the F.I.R. it is stated that one year before the incident, the appellant had some affair with the daughter of the deceased, but when the deceased protested against such unsavoury attitude of the appel¬lant, the latter bore grudge against him, as a reason whereof, he became the victim of murder. In this case apart from the F.I.R. no witness has corroborated such story and thus, the motive as alleged by the prosecution has not been proved. 11. There has been no rule of law that the testimony of a chance witness should be rejected on that ground alone. But in this case we found that although independent witnesses were available, they had been left out by the prosecution. Instead, only chance witnesses had been cited. The evidence of the chance witnesses was suspicious and their presence at the spot also appears to be doubtful. But in this case we found that although independent witnesses were available, they had been left out by the prosecution. Instead, only chance witnesses had been cited. The evidence of the chance witnesses was suspicious and their presence at the spot also appears to be doubtful. Since they are not natural witnesses and all the witnesses have claimed to have gone at one point of time to answer call of nature, their testimony appears to be incredi¬ble, unbelievable and untrustworthy. Of course, Ghanashyam Parida became a victim to the circumstances and had to sacrifice his life. But, since there has been no lawful evidence to connect the appellant with the crime, we, acquit the appellant of the charge under Section 302, IPC for committing the murder of Ghanashyam Parida. 12. Accordingly, the appeal is allowed and the order of conviction and sentence passed against the appellant is hereby set aside. He be set at liberty forthwith. CH. P. K. MISRA, J. I agree. Appeal allowed.