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2003 DIGILAW 102 (ORI)

Anirudha Takri v. State of Orissa

2003-02-03

B.K.NAYAK, PRADIP MOHANTY

body2003
JUDGMENT PRADIP MOHANTY, J. (1) THE appelant having been convicted under Sections 364/302, IPC and sentenced to undergo rigorous imprisonment for eight years for the offence under Section 364, IPC and imprisonment for life for the offence under Section 302, IPC by the learned Ad hoc Additional Sessions Judge, Gunupur in Criminal Trial No. 32 of 2002 has preferred this appeal from jail. (2) THE case of the prosecution is that on 5 19-3-1998, the informant (P.W.2), who is the elder brother of the deceased, reported orally in the Ambadola P. S. alleging that since 4 to 5 years there was enmity between the deceased and the appellant due to political rivalry and during the last selection of Secretary of Raghubari Panchayat, there was a difference of opinion between them. On 13- 3-1998, the appellant came to the house of the deceased and called him to go to Muniguda for receiving the amount towards the contract work from office of the B. D. O. THE deceased refused, but the appellant managed to take him. From that day, the deceased did not return home. On the date of reporting, at about 12 noon, one Ganjan Chhhati of village Dimiriguda came to the house of the informant and told him that the appellant has murdered the deceased on the Verandah of his house. THE informant along with other co-villagers went to the house of the appellant and found the deceased lying dead on a wooden cot on the verandah of the appellant. THEre were severe injuries on his face, head and other parts of the body and stains of blood were there on the verandah and wall. Seeing this, the informant enquired from P. W. 4, P. W. 5 and other villagers and learnt that the appellant assaulted the deceased with a tangia and committed his murder and fled away while he was sleeping on a cot lying on the verandah of the house of the appellant. P. W. 13 reduced the same to writing, registered the case and took up investigation. During investigation, the I. O. examined the witnesses, sent the dead body for post mortem, seized the weapon of offence and the wearing apparels of the deceased and arrested the appellant. While the appellant was in custody, his disclosure statement (Ext. 6) was recorded under Section 27 of the Evidence Act. During investigation, the I. O. examined the witnesses, sent the dead body for post mortem, seized the weapon of offence and the wearing apparels of the deceased and arrested the appellant. While the appellant was in custody, his disclosure statement (Ext. 6) was recorded under Section 27 of the Evidence Act. After completion of the investigation, P. W. 13 filed charge-sheet against the appellant under Sections 364/302 IPC. The plea of the appellant is one of complete denial and false implication. His specific plea is that a week prior to the alleged occurrence, he was absent from his house as he had been to Lanjigarh and that somebody else might have committed the murder of the deceased and kept the dead body on his verandah in order to save himself from the criminal liability. (3) IN order to prove its case, prosecution examined as many as 13 witnesses including the doctor and the I. O. and exhibited 13 documents. The defence examined none in support of its plea despite several opportunities. (4) LEARNED trial Judge, after conclusion of the trial, convicted the appellant under Section 364/302, IPC. For the conviction under Section 364, IPC, the learned trial Judge relied upon the evidence of P. W. 2 and the I. O., and for the conviction under Section 302, IPC reliance has been placed on the ocular testimony of P. Ws. 4 and 5, medical evidence and the disclosure statement of the appellant recorded under Section 27 of the Evidence Act and leading to discovery made by him. Mr. Mohanty, learned counsel for the appellant assails the impugned judgment and order of conviction on the following grounds : (i) The eye witness (P.Ws. 4 and 5) had not actually seen the occurrence and falsely implicated the appellant in the case; (ii) Leading to discovery and disclosure statement made under Section 27 of the Evidence Act has not been proved by the prosecution; and (iii) In the alternative, this case is coming under the purview of Section 304 II I. P. C. and not under Section 302 I. P. C. (5) MR. Nayak, learned Additional Government Advocate vehemently contended that the enmity between the appellant and the deceased has been proved by P.Ws.2 and 10. Nayak, learned Additional Government Advocate vehemently contended that the enmity between the appellant and the deceased has been proved by P.Ws.2 and 10. The evidence of P.Ws.4 and 5 is very clear and cogent that they had seen the appellant dealing axe blows to the deceased while he was lying on the cot. The Medical Officer found as many as nine incised external injuries on the body of the deceased and opined that the same can be caused by M. O. IV. Therefore, it is not a fit case to interfere with the impugned judgment and order of conviction. He also submits that this case is not coming under the purview of Section 304-11 IPC in view of the decision of the apex Court in Vijender Kumar v. State of Delhi, 2010 CriLJ 3851. (6) PERUSED the LCR. P. W. 1 is a co-villager of the deceased and a witness to the seizure of blood stained earth and inquest held over the dead body of the deceased. He proved the seizure list (Ext. 2) and the inquest report (Ext. 1). P. W. 2 is the informant and the brother of the deceased. He deposed that the deceased and the appellant were doing politics so also contract works. Four to five years prior to the death of the deceased, trouble between him and the appellant started, when both of them tried to select different candidates as the Secretary of the Panchayat. Finally, since the candidate to whom the deceased was supporting became the Secretary, the trouble continued between the appellant and the deceased. Four to five months prior to the death of the deceased, the appellant became friendly with the deceased and kept contact with him. He further deposed that six to seven days prior to the date of death of the deceased, the appellant came to their house and called the deceased to go with him to the Block Office to receive money towards the contract work. Six days after their departure, one Garjan Chhati came and told to the informant that the appellant has murdered his brother and his dead body was lying on the verandah of the appellant. Six days after their departure, one Garjan Chhati came and told to the informant that the appellant has murdered his brother and his dead body was lying on the verandah of the appellant. Getting this information, the informant along with other villagers went to the house of the appellant and found his brother lying dead on a cot on the verandah of the appellant with cut injury on his head, neck, chest and other parts of the body. He also noticed fresh blood on the verandah. After making inquiry from the villagers about the death of his brother, the informant lodged the report (Ext. 3) at the Police Station. Nothing has been elicited from him through cross-examination to demolish the evidence of this witness. P. W. 3 is the police constable, who was commanded by the I. O. to guard the dead body. He proved the command certificate (Ext. 4). He is also a witness to the seizure of wearing apparels of the deceased and proved the seizure list (Ext. 5). P. W. 4 is an eye witness to the occurrence and a co-villager of the appellant. He stated that the house of the appellant is situated in front of his house and the distance between the two houses is about 12 to 14 cubits. After return from his land work, when he was taking his food in his house, he heard sound from the front side of his house. He came out and found the appellant dealing axe blows to the head of the deceased, who was then lying on the cot placed on the Verandah of the house of the appellant. The appellant dealt two successive blows to the deceased. Seeing the assault, he was terribly frightened and ran away from the village. He returned to the village in the evening and found the deceased dead. Being asked, he told about the assault to the villagers. In cross examination, he admitted that his son had married to the daughter of the deceased. Nothing substantial has been elicited in cross-examination to demolish the evidence of this witness. P. W. 5 is another eye witness whose house is situated in front of the house of the appellant. After sun rise, he returned from labour work and went to NALA to take bath. On return from NALA, he heard 'DUL DUL' from the side of the house of the appellant. P. W. 5 is another eye witness whose house is situated in front of the house of the appellant. After sun rise, he returned from labour work and went to NALA to take bath. On return from NALA, he heard 'DUL DUL' from the side of the house of the appellant. Looking at the house of the appellant, he found the appellant dealing axe blows to the deceased who was lying on the cot on the verandah of the house of the appellant. He had seen the blow hitting the head of the deceased. Getting afraid, he rushed to his house and closed the door. When Bhudanga Suna along with 7-8 others of Village-Raghubari reached the house of the appellant, he came out of his house in the afternoon and to the query made by the villagers, he told to have seen infliction of the axe blow on the head of the deceased. In cross-examination, he had specifically stated that he was alone on the road when he heard the sound from the house of the appellant. P. W. 6 is a witness to leading to discovery and seizure of weapon of offence. He specifically stated that while the appellant was in custody, he made a disclosure statement (Ext. 6). All of them went near the spot where the axe was concealed. As per the direction of the OIC, they displaced the boulders and the appellant took away the blood stained axe. Nothing has been elicited from him in cross examination. P.W.7 is a witness who turned hostile. P. W. 8 is the doctor who conducted autopsy over the dead body of the deceased and found as many as nine incised injuries. On dissection, he further found eight injuries. He opined that the external and internal injuries were ante mortem in nature. The cause of death was due to haemorrhage and shock from the external and internal injuries. External injury Nos.1 to 7 were sufficient to cause death in ordinary course of nature. Pursuant to the query of the OIC, P. W. 8 opined that the injuries found on the dead body were possible by the axe (M. O. IV). The cause of death was due to haemorrhage and shock from the external and internal injuries. External injury Nos.1 to 7 were sufficient to cause death in ordinary course of nature. Pursuant to the query of the OIC, P. W. 8 opined that the injuries found on the dead body were possible by the axe (M. O. IV). P. W. 9, who is also a witness to the disclosure statement recorded under Section 27 of the Evidence Act and subsequent discovery of the weapon of offence, fully supported and corroborated the evidence of P. W. 6 in material particulars. P. W. 10 is the son of the deceased, who stated that on 19-3-1998, one Gajan Chhati reached his house and told that the appellant had murdered his father. He went to his elder father (P.W.2) and both of them along with others proceeded to the house of the appellant and found the deceased lying dead on a cot on the verandah of the house of the appellant. P.W.11, in his evidence, has stated that at the instance of the deceased, he made an application for his appointment as Secretary. The appellant did not support his candidature. He has admitted that after his appointment as Secretary of the G. P., the deceased and the appellant did not pull well. P.W.12 is the ASI of police in whose presence the I. O. seized wearing apparels of the deceased and the appellant under Exts. 5 and 10. He proved both the seizure lists (Exts. 5 and 10) and his signature thereon. P. W. 13 is the investigating officer, who registered the case, held inquest over the dead body, seized blood stained earth and sample earth under Ext. 2 and wearing apparels of the appellant under Ext. 10 and nail clippings of the appellant under Ext. 12 and after completion of the investigation, filed charge- sheet against the appellant. It is crystal clear from the evidence of P.W.2 that even though there was enmity between the appellant and the deceased four to five months prior to the death of the deceased, they became friendly. Six to seven days prior to the death of the deceased, the appellant came to their house and called the deceased to go with him to the Block Office to receive the money towards the contract. Six to seven days prior to the death of the deceased, the appellant came to their house and called the deceased to go with him to the Block Office to receive the money towards the contract. Thereafter, the dead body of the deceased was found on a cot on the verandah of the house of the appellant. P.W.10 is the son of the deceased, who has stated that prior to the death of his father, the deceased and the appellant were not pulling on well because of political and professional rivalry. On 13-9- 1998, the appellant came to their house and called the deceased. Initially, the deceased was reluctant to go with him but as the appellant insisted, he went with him. There is nothing on record to show that the appellant compelled or induced the deceased to go with him. Rather, as it appears, the deceased, who is an aged person, went with the appellant on his own volition. Therefore, the ingredients of Section 364 IPC having not been established by the prosecution, this Court sets aside the conviction of the appellant under Section 364 I. P. C. and acquits him of the said charge. (7) SO far as the conviction of the appellant under Section 302 I. P. C. is concerned, the evidence is very clear and cogent that the appellant came and called the deceased to go to the Block Office to receive the contract amount. Thereafter, the deceased did not return and after six days one Garjan Chhati informed P. W. 2 that his brother was lying dead on the cot on the verandah of the appellant. Said Garjan Chhati was not available to be examined at the time of trial, since he had expired. P. W. 2, the informant, has proved the enmity between the deceased and the appellant. P. W. 10, who is the son of the deceased, has corroborated the evidence of P. W. 2 and also proved the inimical relationship of the appellant with the deceased. P. W. 11 also stated about the enmity between of the appellant and the deceased. P. W. 4, who is a front door neighbour of the appellant, has stated that after sunset he returned to his house and was taking his food. P. W. 11 also stated about the enmity between of the appellant and the deceased. P. W. 4, who is a front door neighbour of the appellant, has stated that after sunset he returned to his house and was taking his food. At that time, he heard sound from the front side and came out of his house and saw the appellant dealing axe blows to the head of the deceased, who was then lying on the cot of the appellant on the verahdah of his house. He further stated that the appellant dealt two successive blows to the deceased. P. W. 5, who is a co- villager and front door neighbour of the appellant, has stated that when he returned from nala after taking his bath, he heard 'dul dul' from the side of the house of the appellant. Looking at the house of the appellant, he found the appellant dealing axe blows to the deceased, who was lying on the cot on the verandah of the house of the appellant. He had seen the blow hitting the head of the deceased. The oral evidence of P.Ws.4 and 5 get supported from the medical evidence of the doctor, who found nine incised injuries on the person of the deceased including head. The doctor opined that the injuries can be possible by M. O. IV seized by the police. P. W.6, in his evidence, has deposed that the appellant led him, P. W. 9 and the police to the place of concealment and gave recovery of the axe. P. W. 9 specifically stated that the appellant while in custody having confessed before P. W. 13 that he had concealed the weapon of offence inside Madibandah Nalla led the police to the place of concealment and gave discovery of the weapon of offence, i.e. axe. For all these reasons, this Court comes to the conclusion that it is the appellant who committed murder of the deceased by assaulting him by means of the axe. Since there is no material that out of sudden provocation the occurrence took place and it is clear from the evidence of P. Ws. 4 and 5 that the appellant gave successive blows to the deceased which gets support from the medical evidence that nine injuries were found on the person of the deceased, this case cannot come under the purview of Section 304-11, IPC. 4 and 5 that the appellant gave successive blows to the deceased which gets support from the medical evidence that nine injuries were found on the person of the deceased, this case cannot come under the purview of Section 304-11, IPC. Therefore, the conviction of the appellant under Section 302, IPC cannot be interfered with. (8) IN the result, the conviction and sentence of the appellant under Section 364, IPC is set aside and that of the appellant under Section 302, IPC is upheld. The JCRLA is accordingly allowed in part. B. K. NAYAK, J. :- 12.I agree. Order accordingly.