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2002 DIGILAW 730 (ORI)

Dubulu Raksa v. State of Orissa

2002-11-11

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT B. PANIGRAHI, J. — The order of conviction and sentence under Section 302, IPC passed against the appellant by the learned Sessions Judge, Sambalpur in S.T.No. 17 of 1990 directing him to undergo imprisonment for life has been assailed in this appeal. The prosecution case as narrated in the FIR is as follows : On 19.10.89 at about 5.00 P.M. Padmabati Oram (P.W.3), the daughter of the informant (P.W.1) came to the informant’s house and narrated that the appellant was assaulting the deceased Tuni Dharua by means of a crow-bar. P.W.1, his son and the brother of P.W.4 came to the house of Padmabati and saw that Tuni Dharua was lying dead in front of the house of Padmabati in a pool of blood. There were bleeding injuries on his fore-head and back side of his head. P.W.4 though gave some water to the deceased Tuni, but by that time he had succumbed to the injuries. P.W.3 further informed her father that Tuni Dharua and Dubulu Raksa had come and sat on her verandah. After some talk appellant Dubulu had gone towards the village and had once again come back to the house of P.W.3. After keeping his cycle by the side of the road, he had come near Tuni Dharua. There was altercation between the deceased and the appellant, in course of which Dubulu assaulted Tuni with a crow-bar as a result of which Tuni fell down on the ground. P.W.1 having learnt about the incident reported about the occurrence to Mangulu Naik and Mahadev Padhan who also arrived at the spot and found Tuni lying dead. P.W.1 along with other compan¬ions proceeded to Jharsuguda police station and lodged a report about the occurrence on 19.11.89. The police immediately thereaf¬ter took up investigation of the case, held inquest over the dead body of the deceased and prepared the inquest report vide Exhib¬it-2, seized the blood-stained earth and sample earth from the spot vide Exhibit-11, sent the dead body of the deceased for post mortem examination, and arrested appellant. While in police custody, the appellant gave information disclosing that he had thrown the crow-bar in the grassy field towards the east of house of Padmabati and so saying he led the police and witnesses to the spot and gave recovery of one blood-stained crow-bar. While in police custody, the appellant gave information disclosing that he had thrown the crow-bar in the grassy field towards the east of house of Padmabati and so saying he led the police and witnesses to the spot and gave recovery of one blood-stained crow-bar. The crow-bar which is said to have contained human blood was proved in the Trial Court as M.O.I, M.Os. II and III were the wearing apparels of the deceased. The doctor who conducted autopsy had opined that the injuries appearing on the deceased were ante mortem in nature and were sufficient in ordinary course of nature to cause death. The I.O. on completion of investigation placed the charge sheet against the appellant. The defence plea was a complete denial of the occurrence. However, the Trial Court on resume of the evidence on record held the appellant guilty of the charge of murder of Tuni. In the FIR though the prosecution has narrated that the appellant assaulted by means of a crow-bar on the head of the deceased, all the witnesses examined by the prosecution have been declared hostile as they have not supported the prosecution case. The only evidence surviving for consideration before the Trial Court was that of the Investigating Officer and the doctor. So far as the death of the deceased Tuni is concerned, there is no dispute that he met a homicidal death. Though the I.O. has stated that the appellant while in custody made a disclosure statement and led him to the seizure of the crow-bar, P.Ws.10 and 11 who have been cited as witnesses to such seizure have not supported the prosecution case. There has been no corroborative evidence regarding the recovery of the crow-bar besides the evidence of P.W.13. It is unsafe to convict the accused on the basis of the solitary evidence of the police officer. Even the maker of the FIR has turned hostile. The seizure witnesses have also not supported the facts of seizure. The so-called eye-witnesses such as P.Ws.1 and 3 have not supported the prosecution case. In such situation, it is not understood how the learned Sessions Judge was inclined to convict the appellant under Section 302, IPC. For the aforesaid reasons, this appeal is allowed and the order of conviction and sentence passed by the trial Court is set aside. The so-called eye-witnesses such as P.Ws.1 and 3 have not supported the prosecution case. In such situation, it is not understood how the learned Sessions Judge was inclined to convict the appellant under Section 302, IPC. For the aforesaid reasons, this appeal is allowed and the order of conviction and sentence passed by the trial Court is set aside. Since the appellant is on bail, the bail bond furnished by him stands discharged. CH. P. K. MISRA, J. I agree. Appeal allowed.