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2004 DIGILAW 201 (ORI)

Rabindra Gochhayat v. State of Orissa

2004-04-19

L.MOHAPATRA

body2004
JUDGMENT SUJIT BARMAN ROY, C.J. — This appeal at the instance of the appellant Rabindra Gochhayat is directed against the judgment dated 31.1.1994 passed by the Sessions Judge, Puri in Session Trial Case No. 184 of 1993 convicting the appellant under Section 302 I.P.C. and sentencing him thereunder to suffer imprisonment for life. 2. Prosecution case, as it appears from the F.I.R. in brief is that on 23.3.1991 at about 2 P.M. Sri Ramanath Misra (P.W.7) being the officer-in-charge of Gop Police Station suo motu lodged an information that on 24.3.1991 one Sudam Gochhayat (P.W.2) submitted a written report that on 23.3.1991 at about 7 P.M. one Subash Gochhayat aged about 5 years was playing in the court-yard. At about 9. P.M. when the boy was searched for his meal, he was not traceable. On further search, Subash was found floating on the water of the pond situated near his house. When body of Subash was lifted from water, he was found dead. On the basis of his written report, U. D.Case No. 4 of 1991 was regis¬tered at the said police station and A.S.I., Padma Charan Mohanty was directed to take up the enquiry. Accordingly, the said Padma Charan Mohanty, A.S.I. held the inquest over the deadbody of Subash Gochhyat on 24.3.1991 at 10.35 A.M. As some foul play was suspected regarding the death of Subash, his deadbody was sent on the same day for post mortem examination. Thereafter, on 3.4.1991 at about 2 P.M. post mortem report of deceased Subash Gochhayat was received. Dr. Banamali Rath (P.W.1) conducted the post mortem examination over the deadbody of Subash on 24.3.1991 found one abrasion over the middle of the back. It was found to be ante mortem in nature. P.W.1 on conclusion of post mortem examination opined that cause of death was perhaps due to respiratory failure on account of pressure over the lung and shock etc. On perusal of the post mortem report, it appeared to P.W.7 Ramanath Misra that it was a case of murder. On the basis of said information lodged suo motu by P.W.7 Ramanath Misra, a case under Section 302 I.P.C. was registered at the said police station and accordingly investigation was taken up by him. 3. After usual investigation police submitted a charge sheet against the appellant under Section 302 I.P.C. In course of time, case was committed to the trial Court. 3. After usual investigation police submitted a charge sheet against the appellant under Section 302 I.P.C. In course of time, case was committed to the trial Court. Learned trial Court on perusal of the materials on record, framed a charge under Section 302 I.P.C. against the appellant to which he pleaded not guilty. In course of trial, prosecution examined in all seven P.Ws. None was examined on behalf of the defence. The defence of the appellant was that of simple denial of the prosecution case. On conclusion of the trial, the appellant was convicted and sen¬tenced as already stated. 4. P.W.1, Dr. Banamali Rath held post mortem examination over the deadbody of the deceased. The deadbody was received at the Puri District Hospital on 24.3.1991 at about 3 P.M. The dead¬body was of the deceased aged about 5 years. He conducted post mortem examination over the said deadbody at about 4 P.M. on 24.3.1991. During post mortem examination, he could detect an abrasion of the size 1" x 1/2" over the middle of the back. The injury was ante mortem in nature. Blood mixed saliva was seen in the mouth and nose. On dissection, P.W.7 could further detect that both lungs, larynx, trachea, livers, spleen and kidney etc. were all congested. The left chamber of the heart was found to be empty and the right chamber was full of blood. The stomach was containing half digested rice. On the aforesaid observation on the deadbody of the deceased, P.W.7 opined that death was due to respiratory failure which was caused by application of external force and therefore, he was of further view that the death was homicidal in nature. It was pointed out that the deceased died within about 24 hours before the time of post mortem examination. He also opined that the force was applied to block the respirato¬ry system and it was sufficient in the ordinary course of nature to cause death of the deceased. This is in brief the evidence given by P.W.1. We have examined the cross-examination part of this witness. We do not find anything to discard the testimony of this witness and therefore, for the sake of brevity,we are not referring to what this witness had stated during his cross-exami¬nation. 5. This is in brief the evidence given by P.W.1. We have examined the cross-examination part of this witness. We do not find anything to discard the testimony of this witness and therefore, for the sake of brevity,we are not referring to what this witness had stated during his cross-exami¬nation. 5. The evidence of P.W.2 Sri Sudam Gochhayat in brief is that he knew the appellant and the deceased was his son, P.W.5 Smt. Kanchana Gochhayat was the mother of the deceased and wife of the appellant. His further evidence is that on the date of occur¬rence,the deceased was missing from the house since about 7 P.M. Accordingly, this witness along with the appellant and other inmates of the house of the deceased searched for the deceased and ultimately, around 9 P.M. they could locate that the deadbody of the deceased was floating in a pond situated near the house. Immediately, the Gram Rakhi was informed. Police of the Gop Police Station was also informed. On the next day, in the morning, police came for investigation and on being enquired by the po¬lice, the appellant admitted that he had killed the deceased. Clearly this part of the evidence of P.W.2 amounts to complete acknowledgment of guilt and hence it amounts to confession of guilt made by the accused to a police officer and as such, this type of evidence is clearly in admissible. The trial Court should not have allowed such evidence to be admitted. However, at this stage, the witness was declared hostile by the prosecution and accordingly with the permission of the trial Court, this witness was cross-examined by the prosecution. During such cross-examina¬tion, he failed to remember if the appellant made any extra-judi¬cial confession before this witness and other villagers like Pramod Bhoi and Ram Chandra Parida etc. by stating that he put pressure on the back of the child at the pond and killed him and thereafter the deadbody of the deceased was thrown into the pond. However, during such cross-examination this witness admitted that the relation between the appellant and his wife was not cordial. However, it needs to be mentioned here that this witness is brother of the appellant. However, during such cross-examination this witness admitted that the relation between the appellant and his wife was not cordial. However, it needs to be mentioned here that this witness is brother of the appellant. It is further stated during cross-examination of this witness on behalf of the appellant that his wife gave birth to a second child who was then aged about 2 or 3 months on the date of occurrence. On the date of occurrence, the wife of the appellant was living in the house of her parents. The deceased was however, staying in the house of the appellant. He also stated that he lodged a written report at Gop Police Station after the deadbody of the deceased was recovered. It was also stated by him that in the appellant’s house, his parents were also living apart from this witness himself. This is in brief the evidence given by this witness. 6. P.W.3, Pramod Bhoi stated in his evidence that his house was situated at a distance of 200 feet from the house of the appellant. Near the house of appellant there was a pond. On the date of occurrence around 8 P.M. he heard cries from the house of the appellant. When he came there, he learnt that the deceased was missing. The appellant and his family members were searching for the deceased. During such search, some villagers also joined them. About half an hour thereafter the deadbody of the deceased was found floating in the pond. He was lifted from the pond and was found to be dead. The Gram Rakhi was informed and thereafter the matter was reported to the police also. On the following day, police came to enquire about the incident and saw the deadbody of the child and at that time, the appellant alleg¬edly made a statement to the police officer as to how he had killed the deceased. He did not make any such statement before the witness and others until arrival of the police there. After this statement was made, during examination-in-chief, prosecution obtained permission from the Court to cross-examine him and accordingly, he was cross-examined. During cross-examination by the prosecution, statement of this witness is exactly identical with the statement of P.W.2. Therefore, for the sake of brevity we are not repeating the same. 7. P.W.4 Budhanath Mallik stated in his evidence that the appellant was his co-villager. During cross-examination by the prosecution, statement of this witness is exactly identical with the statement of P.W.2. Therefore, for the sake of brevity we are not repeating the same. 7. P.W.4 Budhanath Mallik stated in his evidence that the appellant was his co-villager. He is a Gram Rakhi of the village. In the night of occurrence, he was informed regarding the death of the deceased. He came to the house of the appellant and guard¬ed the deadbody. On the following day, police came for investiga¬tion.Police held inquest over the deadbody and prepared a dead¬body challan and forward the deadbody to District Hospital, Puri for post mortem examination. He took the deadbody along with police constable to the hospital. This is in short the evidence given by his witness. 8. P.W.5, Smt.Kanchan Gochhayat is the wife of the appel¬lant. She is also the mother of the deceased. She has stated in her evidence that in the evening of the date of occurrence around 7 P.M. the deceased was with her in the kitchen while she was cooking the food. Since the deceased cried, the appellant came and took the deceased away with him. After cooking of food was over, the appellant returned, when she was serving food to the appellant, she enquired from him about the whereabout of the deceased. The appellant stated that the deceased was with the aunt (wife of the elder brother of his father). Then she sent one Mana to bring back the deceased and on return this wetness was reported that deceased was not with the aunt of the appel¬lant. At this, the appellant further told that deceased was in the house of Kalishi Budha. At this, this witness herself went to the house of Kalishi Budha, but there also deceased was not found. At this, she started crying and the co-villagers came there and searched out the deceased. However, the appellant did not go with them to search out the deceased and preferred to remain indoor. Around 9 P.M. that very night, the deadbody of the deceased was found floating in the pond. After recovery of the deadbody, the appellant stated that he suspected that the de¬ceased was an illegitimate child and he was not his own child and for this reason, he had killed the deceased and threw his dead¬body into the pond. Around 9 P.M. that very night, the deadbody of the deceased was found floating in the pond. After recovery of the deadbody, the appellant stated that he suspected that the de¬ceased was an illegitimate child and he was not his own child and for this reason, he had killed the deceased and threw his dead¬body into the pond. At that time, co-villagers like Pramod Bhoi (P.W.3) was there when the appellant made this confessional statement. Some other persons were also there. However, it needs to be mentioned here that P.W.3, Promod Bhoi did not support this part other prosecution story as stated by P.W.5. But it needs to be mentioned here that in her statement before the police, she did not divulge that the appellant took away the deceased from the kitchen or that when she served food to the appellant he made various statements about the deceased being in the house of his aunt or in the house of Kalishi Budha or that thereafter she sent for the child through her niece Mana and on search, the deceased was not found in either of the two houses. She also did not divulge before the police in her statement under Section 161 Cr.P.C. that the deceased made any extra judicial confession admitting that he himself had killed the deceased and threw his deadbody into the pond. She also did not state before the police that the appellant suspected the deceased to be the illegitimate child or that at that time, some of the villagers including P.W.3 Promod Bhoi were present when such confessional statement was made. She also admits during her cross-examination that she had no ill-feeling with the appellant. This is in brief the evidence given by this witness. Therefore, it would be evident from the cross-examination part of her evidence that she did not divulge any material whatsoever to the police when her statement was recorded by the Investigating Officer concerning the involvement of the appellant with the murder or that the appellant had con¬fessed the guilt or that the deceased was taken away from her by the appellant himself at any time in the night of occurrence. In the ultimate analysis her evidence also does not help the prosecution inasmuch as this material omission has affected the credibility of her evidence that she had stated during her exami¬nation in chief. 9. In the ultimate analysis her evidence also does not help the prosecution inasmuch as this material omission has affected the credibility of her evidence that she had stated during her exami¬nation in chief. 9. P.W.6 Sri Rama Chandra Parida stated that about a year ago, from the date on which his evidence was recorded, in the morning around 7 A.M. he had been to the village of the appellant for hiring some labourers. He found gathering of people and police in the village of the appellant. On being asked, he was told by some of the villagers that a child died due to drowning. He also stated that on being asked by the police officer, he signed some paper. At this stage, this witness was also declared hostile and with the permission of the Court, he was cross-exam¬ined by the prosecution. He denied to have stated to the police that on being asked by P.W.3, Pramod Bhoi, the appellant made any extra judicial confession that the appellant suspected the deceased to be an illegitimate child and therefore, he killed the deceased and threw his deadbody into the pond. 10. The last witness examined in this case for the prosecu¬tion is P.W.7, Sri Ramanath Misra. He is the Investigating Offi¬cer. He also lodged the F.I.R. It is redundant to analyse his evidence any more as because apart from the evidence of the wife of the appellant there is absolutely no material whatsoever to connect the appellant with the murder. Even the evidence of P.W.5 being the wife of the appellant is not at all trustworthy inas¬much as credibility of her evidence has been affected seriously due to important omission. None of the materials she disclosed during her examination in chief were stated by her before the I.O. during investigation. 11. In the circumstances,we are of the view that the prose¬cution has failed to prove the case against the appellant. In the aforesaid circumstances, we are left with no option but to allow this appeal and set aside the impugned judgment of conviction and sentence. We further direct that if the appellant is still in jail, he shall be set at liberty forthwith. L. MOHAPATRA, J. I agree. Appeal allowed.