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2003 DIGILAW 697 (ORI)

TAMASIKAR MALLIK v. STATE OF ORISSA

2003-12-10

A.S.NAIDU, SUJIT BARMAN ROY

body2003
JUDGMENT : A.S. Naidu, J. - This appeal has been directed against the order dated 12.7.1990 passed by the Sessions Judge, Phulbani in Sessions Case No. 94 of 1989 convicting the Appellant u/s 302 of the Indian Penal Code and 25 of the Arms Act and sentencing him to imprisonment for life for the charge u/s 302 Indian Penal Code and rigorous imprisonment for one year for the charge u/s 25 of the Arms Act, the sentences being directed to run concurrently. 2. The criminal action was set in motion on the basis of the F.I.R., Ext. 9, lodged at Brahma Nigam Police Station on 7.9.1989 at 11 a.m. by one Khirasa Mallik alleging that on 6th September, 1989 at about 11 a.m. the Appellant having stated to have seen an animal (SAMBAR), requested deceased Dandia Mallik and some other co-villagers, namely, Lazara Mallik and Abilo Mallik, to accompany him to 'Dangasi' forest near their village for hunting that animal. The party consisting of the informant, the deceased, the Appellant and Ors. went to the forest, accused having carried his SBML gun with him. Arriving at the forest the Appellant took his position on a stone near a tree and directed the members of the party to go in different directions and divert that animal in his directions as to facilitate hunting. Accordingly, the other members of the party went indifferent directions, but then they could not locate the animal. While the matter stood thus, P.Ws. 3 and 4 heard the sound of a gun fire. They rushed to the spot where the Appellant was standing and found the deceased lying down on the ground struggling for life at a distance of twenty cubits from the stone where the Appellant was standing. When they went near the deceased, the latter told them that the Appellant had fired at him intentionally and requested them to look after his family members. The deceased had sustained pellet injuries on his right chest, right arm, and right eye. While they were carrying him to his house, the deceased succumbed to the injuries on the way. The Appellant had also accompanied them and was alleged to have told them that what ever had happened could not be undone and it was better to cremate the dead body somewhere in the jungle. But P.Ws. While they were carrying him to his house, the deceased succumbed to the injuries on the way. The Appellant had also accompanied them and was alleged to have told them that what ever had happened could not be undone and it was better to cremate the dead body somewhere in the jungle. But P.Ws. 3 and 4 did not agree to this and brought the dead body to the village. On the next day FIR was lodged. The Police investigated into the case, conducted inquest over the dead body and sent the dead body for post moterm. The autopsy report revealed that the deceased had died due to gun shot injuries and that one of the pellets was lodged in the lungs area of the deceased. The Appellant confessed his guilt before the investigating officer and other witnesses. On completion of investigation police submitted charge sheet. The Appellant faced trail before the Sessions Judge, Phulbani in Sessions Case No. 94 of 1989 for alleged commission of offences u/s 302 of the Indian Penal Code for committing the murder of Dandia Mallik by firing a gun at him and u/s 25 of the Arms Act for having possessed one SBML gun without the licence authorizing such possession. The Appellant took the plea of denial of the occurrence. 3. The substantiate its case prosecution examined five witnesses and exhibited thirteen documents. Neither any witness was examined nor was any document exhibited on behalf of defence. 4. On analysis of evidence the Trial Court arrived at the conclusion that the death of the deceased had occurred due to gun shot injuries. Relying upon the evidence of the doctor P.W.1, the Trial Court held that the death of the deceased was homicidal. After perusing the materials we find no reason to differ from the said conclusions and confirm the same. 5. Treating the statement of the deceased before P.Ws. 3 and 4 before his death that the Appellant had fired the gun at him intentionally as the dying declaration of the deceased and considering the evidence of P.Ws. 3 and 4 who were post-occurrence witnesses, the Trial Court found the Appellant guilty u/s 302 Indian Penal Code. The Appellant having failed to produce any licence for possessing the SBML gun, the Trial Court also convicted him of the charge u/s 25 of the Arms Act and sentenced him as stated above. 3 and 4 who were post-occurrence witnesses, the Trial Court found the Appellant guilty u/s 302 Indian Penal Code. The Appellant having failed to produce any licence for possessing the SBML gun, the Trial Court also convicted him of the charge u/s 25 of the Arms Act and sentenced him as stated above. The said judgment of conviction and sentence is impugned in the present Criminal Appeal. 6. Learned Counsel for the Appellant forcefully submitted that in absence of any eye-witness to the alleged occurrence, simply relying on oral statement said to have been made by the deceased before his death, a conviction u/s 302 Indian Penal Code. cannot be made. It was also submitted that prosecution has totally failed to establish that the Appellant had any intention to murder the deceased. Learned Sessions Judge has also not arrived at a finding that the Appellant had intentionally and wilfully caused the death of the deceased. In such circumstances the order of conviction of the Appellant u/s 302 I PC cannot be sustained. 7. Learned Counsel for the State at the other hand supported the conclusions arrived at and the sentence passed by the Court below contending that the Court below has properly analysed the evidence, both oral and documentary, and has arrived at the right conclusions. The statement of the deceased before his death was a very important piece of evidence which could not be ignored. The Appellant having virtually admitted the offence committed by him, and in view of the statements of P.Ws. 3 and 4, who, though had not seen the occurrence, were present near the spot, the Court parties, being the final Court of facts, we once again below has rightly convicted the Appellant and it is a fit case where the appeal should be dismissed. 8. After hearing the Learned Counsel for the scrutinized the evidence and other materials on record. Admittedly there was no eye-witness to the actual firing of the gun by the Appellant at the deceased. P.Ws. 3 and 4 were the persons who had gone to the forest along with the Appellant, the deceased and Ors. for haunting animals. These witnesses have stated that they found the deceased lying wounded on the ground by gunshot injuries and the deceased told them that the Appellant had intentionally fired at him. P.Ws. 3 and 4 were the persons who had gone to the forest along with the Appellant, the deceased and Ors. for haunting animals. These witnesses have stated that they found the deceased lying wounded on the ground by gunshot injuries and the deceased told them that the Appellant had intentionally fired at him. No doubt on the basis of a dying declaration by a conviction can be based. But then such dying declaration has to be cogent and reliable. P.W. 3 in his deposition has clearly stated that the Appellant, his co villager, had called him, the deceased, P.w. 4 and some other villagers to accompany him for haunting animals in the forest. Accordingly all of them accompanied the Appellant. The Appellant stood on a stone near a tree holding his gun and directed other villagers to divert animals in his direction for haunting. While P.Ws. 3 and 4, the deceased and other villagers were trying to locate animals, P.Ws. 3 and 4 heard the gun shot sound at a distance of twenty cubits. After' rushing to the place of the Appellant, they found the deceased lying down on the ground struggling for life. In his cross-examination P.w. 3 has admitted that Dangesi forest was a bushy jungle spread throughout. It was a dense forest having several big SAL trees. Six villagers had gone with the Appellant for haunting. P.w. 4, the other witness who had accompanied the Appellant also reiterated the same statement made by P.W. 3. He also stated that the forest was very dense and that five to six persons had accompanied the Appellant in the hunting party. P.W. 5 was the investigating officer. He stated in his cross-examination that he had not recorded the statements of witnesses verbatim. He also stated that he had seized the gun from the possession of the deceased. 9. Apart from the aforesaid witnesses, P.W. 2 was a witness to inquest and P.W. 1 was the doctor. Though it is stated that the death had occurred due to gun shot injuries, the pellets were not sent for chemical examination, nor was there any examination conducted by ballistic expert. 10. 9. Apart from the aforesaid witnesses, P.W. 2 was a witness to inquest and P.W. 1 was the doctor. Though it is stated that the death had occurred due to gun shot injuries, the pellets were not sent for chemical examination, nor was there any examination conducted by ballistic expert. 10. After going through the entire evidence on record, both oral and documentary, it becomes crystal clear that the Appellant and requested the deceased, P.W. 3, P.w. 4 and other villagers to accompany him for hunting the animal in the forest in a broad day light. Such action would clearly reveal that he had no intention to kill the deceased. The Appellant intending to kill the deceased definitely would not have called other five or six other villagers to accompany them to forest. This conduct itself throws a cloud of suspicion in our mind regarding the intention of the Appellant to kill the deceased. Mens rea is a prime requirement for convicting a person of the charge of murder. Prosecution has totally failed to lead any iota of evidence indicating that the Appellant had the mens rea to kill the deceased. It has also failed to prove the intention of the Appellant. In the absence of such basic ingredients it cannot be safely concluded that the Appellant had the intention to kill the deceased. The conduct of the Appellant after the occurrence would also reveal that he had no intention to kill the deceased. He not only accompanied the dead body, but also on being asked he produced the gun with which he had fired. The entire scenario as stated above would reveal that the Appellant being accompanied by other villagers had been to the forest which was very dense and bushy. He waited for the animal on a stone near a tree; while his companions went inside the jungle to divert the animal towards him. Admittedly at that juncture of time the Appellant had fired the gun and the shot hit the deceased. In view of these undisputed facts, it cannot be safely concluded that the Appellant had intentionally fired the gun at the deceased. Rather it appears that accidentally the Appellant had fired at the deceased thinking him to be the animal. This probability cannot be totally ruled out. In view of these undisputed facts, it cannot be safely concluded that the Appellant had intentionally fired the gun at the deceased. Rather it appears that accidentally the Appellant had fired at the deceased thinking him to be the animal. This probability cannot be totally ruled out. We are therefore not in a position to accept the findings of the Court below with regard to commission of the offence of murder by the Appellant. We are of the view that it is fit case where the benefit of doubt should be extended to the Appellant. Accordingly we hold that prosecution has failed to bring home the charge u/s 302 Indian Penal Code against the Appellant. 11. However the evidence clearly reveals that one SBML gun was possessed by the Appellant. The same seized from his custody as would be evidence from the evidence of the investigating officer, P.W. 5. The gun was produced in Court and marked M.O.I. The Appellant has failed to produce any licence authorizing him to possess the said gun. Thus the offence u/s 25 of the Arms Act is well established against him. We confirm the findings of the learned Sessions Judge and conviction and sentence with regard to the said offence. 12. In the result, we allow the Criminal Appeal in part. The conviction and sentence of the Appellant u/s 302 Indian Penal Code are set aside and he is acquitted of the said charge. The conviction and sentence of the Appellant u/s 25 of the Arms Act are confirmed. If the Appellant has not served the sentence of rigorous imprisonment of one year passed under the said Section, the Court below shall take steps for apprehension of the Appellant forthwith.