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2005 DIGILAW 208 (ORI)

Baidyanath Naik v. State of Orissa

2005-03-28

P.K.TRIPATHY, PRADIP MOHANTY

body2005
JUDGMENT Appellant was convinced by learned Sessions Judge, Mayurb¬hanj, Baripada in S.T. Case No.112 of 1994 and sentenced to under- go imprisonment for life for the offence under Section 302, I.P.C. Appellant has challenged that order of conviction from the jail and that is how the appeal has been registered as a Jail Criminal Appeal. 2. Samal Naik (hereinafter referred to as ‘the deceased’) suffered a homicidal death because of some ante mortem injuries which he sustained at about 7 p.m. on 03.12.1993.Hari Nayak (P.W.5) is the father of the said deceased. He was the informant in the case. According to the case of the prosecution, the de¬ceased, a bachelor, was living separately from his father and three brothers, but taking his food in the joint family. He was having some relationship with Sabita Naik @ Jhari (P.W.2). The said P.W.2 is the daughter of the accused. The proposal for marriage of the deceased with P.W.2 given by P.W.5 was turned down by the accused. It is alleged that on the date of occurrence at about 7 p.m., the deceased proceeded towards the house of the accused to make contact with P.W.2 and there he was attacked and assaulted by the accused. On being so assaulted, he shouted stat¬ing “MAI GO MAI GO MARI GALI, BAIDA MATE HANI PAKAILA”. Soon thereafter P.W.5 as well as his sons and the people in the neigh¬bourhood gathered at the spot where the deceased was lying. Ac¬cused was not found present in his house. Wife of the accused (P.W.1) and daughter of the accused (P.W.2) also stated that accused killed the deceased. The matter was reported in the police station and law was set into motion. After a routine investigation, charge sheet was submitted. The list of witnesses included eye-witnesses to the occurrence (P.Ws.1 and 2). Circum¬stances against the accused are his leading to discovery of the weapon of offence, i.e., axe (M.O.I.),presence of human blood of the same group as of the deceased on M.O.I. as well as the wear¬ing apparels of the deceased (Lungi M.O.II.), the motive of the accused to commit the crime and the spot being in front of the house of the accused. 3. Prosecution examined Dr. A. Padhi (P.W.4) to prove the post mortem report, Ext.2. 3. Prosecution examined Dr. A. Padhi (P.W.4) to prove the post mortem report, Ext.2. In the trial Court so also in this Court, there is no dispute to the finding recorded by the said doctor that deceased had sustained one incised wound of the size 5 cm x 3 cm x 3.5 cm on the sternum below the manubrium sterni extending towards left side with regular margins and that there were corresponding internal injuries with fracture of manibrium sterni and left sterno costal joint. Left lung was found lacerat¬ed with blood clots and there was presence of 300 ml of clotted blood in the chest cavity. P.W.4 also examined M.O. I and opined that the aforesaid external alongwith the internal injuries was possible by that weapon.He opined that the said injuries were ante mortem in nature and sufficient in ordinary course of nature to cause death of the deceased, because of the shock and haemor¬rhage produced from injury to the vital organ like left lung. As noted above, the aforesaid evidence of P.W.4 is not challenged nor disputed and that sufficiently proves that deceased suffered a homicidal death. 4. Trial Court recorded the finding that though the eye-witnesses to the occurrence (P.Ws.1 and 2) did not support the prosecution, but the circumstantial evidence, such as, recovery of the weapon of offence and statement of P.Ws.1 and 2 that the deceased had gone to their house and then accused was present are sufficient to complete the chain of circumstances to warrant a conviction. 5. Learned counsel for the appellant argues that except the evidence under Section 27 of the Evidence Act, which is shaky and not credible, there is absolutely no other evidence on record to point an accusing finger at the appellant relating to the al¬leged crime. Accordingly, he argues to grant the benefit of doubt to the appellant. 6. Learned Standing Counsel, on the other hand, supports the impugned order of conviction on the ground that evidence of P.Ws.3, 5 and 6 has remained unchallenged relating to recovery of axe at the instance of the appellant and that P.Ws.5 and 6 had heard the deceased shouting that he was being killed by the ac¬cused. Since that part of the prosecution case has not been dis¬lodged by the accused, therefore, the order of conviction need not be disturbed. 7. Since that part of the prosecution case has not been dis¬lodged by the accused, therefore, the order of conviction need not be disturbed. 7. On careful scrutiny of the evidence on record with due assistance from the counsel, we find that the reasons assigned by the trial Court relating to the absence of blood stained earth at the alleged spot of occurrence goes a long way to create doubt on the credibility of the prosecution evidence relating to the manner in which the crime was allegedly committed. The spot map (Ext.9), which has admittedly not been prepared to scale, goes to indicate that the spot of occurrence is about 22 yards away from the house of the appellant. According to P.Ws. 5 and 6, the dead body was found there when they arrived at the spot. That dead body was removed to a distance of 75' to the spot marked ‘G’. There is no evidence worth the name on record as to who shifted that dead body and why. Surprisingly enough, the investi¬gating officer did not notice blood soaked earth either at the first spot or at the spot ‘G’. Learned Sessions Judge on the basis of supposition has recorded the conclusion that the blood from the wound would not have fallen down and might have clotted on the body and therefore that excluded the possibility of presence of blood stained earth. Learned Sessions Judge while making such an inference ignored to consider Ext.6, a seizure list, which indicates that blood stained wearing apparel, i.e, Lungi of the deceased was seized. If the bleeding from the wound at chest would go down to the waist and below that to create blood stains on the wearing apparel, the possibility is more that blood from the injury would have stained the earth at the spot. Be that as it may,trial Court could have ascertained that part at the time of examination of P.W.4 or the investigating officer. Without doing that, the Court on the basis of supposition cannot infer a circumstance against the accused for completing the chain of circumstances. As noted above, in this case, the supposition of learned Sessions Judge is contrary to prove the circumstance from Ext.6. Without doing that, the Court on the basis of supposition cannot infer a circumstance against the accused for completing the chain of circumstances. As noted above, in this case, the supposition of learned Sessions Judge is contrary to prove the circumstance from Ext.6. Therefore, we find that prosecution has not emerged with clear, consistent and cogent evidence as to why the dead body was shifted from the spot ‘F’ to ‘G’ and why there was absence of blood stained earth at both the spots. 8. Learned Sessions Judge has recorded that the evidence of P.Ws. 1 and 2 indicates that appellant was the author of the crime. Learned Sessions Judge has recorded, “the witness has answered to the question of the Court implicating her husband to be the killer. The wife and the daughter of the accused have been examined as P.Ws. 1 and 2 respectively. It is settled law that the evidence of a hostile witness can be taken into account if he has not been thoroughly discredited.” On a reference to the depo¬sitions of P.Ws.1 and 2, we find that after they refused to sup¬port the prosecution, previous statements were confronted and there was some cross-examination by the accused to P.W.1 and no cross-examination to P.W.2. We do not find anything in the body of the deposition to indicate that the trial Court put any ques¬tion to these witnesses and the answers were recorded. Under such circumstance, we find that the above quoted portion of the trial Court judgment is based on non-existing evidence. In other words, there is nothing in the evidence of P.Ws.1 and 2 which can give indication to the fact that they admitted that the appellant is the author of the crime. A statement confronted to each of such witnesses for the purpose of contradiction cannot be read as substantive evidence and more so when the witnesses have denied to the suggestion that they made such statement before the inves¬tigating officer. 9. Barring that evidence, the only evidence which is available to the prosecution is under Section 27 of the Evidence Act. A statement confronted to each of such witnesses for the purpose of contradiction cannot be read as substantive evidence and more so when the witnesses have denied to the suggestion that they made such statement before the inves¬tigating officer. 9. Barring that evidence, the only evidence which is available to the prosecution is under Section 27 of the Evidence Act. The position of law is so settled that it needs no authority to be quoted that a confessional statement before a police offi¬cer is hit by Section 25 of the Evidence Act and so far as Sec¬tion 27 is concerned, only the portion which relates to discovery of the incriminating material is relevant. In that respect, any confession made has to be excluded from the zone of considera¬tion. Therefore, if we accept the seizure list (Ext.1) to the effect that M.O.I. was seized on the pointing of the accused to a bush inside the jungle under the guard and protection of P.W.3, that by itself does not prove clinchingly that accused is the author of the crime. In a preceding paragraph we have already discussed that evidence of P.Ws. 5 and 6 is not free from doubt inasmuch as the fact of shifting of the dead body has remained unexplained. In addition to that, it emerges from the spot map (Ext. 9), so also it has been stated by P.W.5 that hearing the shout of the deceased many people gathered at the spot. According to P.W.5 when he and his remaining three sons together arrived at the spot by then around 20 other villagers had already gathered at the spot. According to P.W.6 he was the first to arrive at the spot before arrival of P.W.5 and the other sons of P.W.5 so also the other villagers. We ignore this contradiction being a minor one. But the fact remains that nobody has seen the accused com¬mitting the crime save and except P.Ws.1 and 2. Both of them did not support the prosecution and nothing was elicited from their mouth so as to prove the occurrence against the appellant. P.Ws.5 and 6 are close relatives of the deceased being his father and brother respectively. But the fact remains that nobody has seen the accused com¬mitting the crime save and except P.Ws.1 and 2. Both of them did not support the prosecution and nothing was elicited from their mouth so as to prove the occurrence against the appellant. P.Ws.5 and 6 are close relatives of the deceased being his father and brother respectively. Therefore, when the prosecution wants to rely on the statement of the deceased at the time of his death and when admittedly independent witnesses from nearby spot were available, prosecution has not explained any reason to not to bring such evidence on record. 10. Learned Standing Counsel argues that it is the quality and not quantity of evidence that matters. Theoretically that is correct. But so far as the present case is concerned, the quality of the evidence of P.Ws. 5 and 6 does not inspire confidence and, therefore,prosecution should have examined the independent wit¬nesses who were admittedly present at the spot by the time of the arrival of P.W.5 and when there was chance of those witnesses to hear the exact statement made by the deceased in a better and more clear manner being residing at a nearer place than P.Ws.5 and 6. 11. For the reasons indicated above, we find that prosecution has only one circumstance as against the accused which can be legally utilised against him. But that circumstance under Section 27 of the Evidence Act in this case is found to be a very weak piece of evidence so as to complete the chain of cir¬cumstances to clinchingly prove the accused as the author of the homicide. Under such circumstance, we do not find any merit in the order of conviction. Accordingly, we set aside that order and granting benefit of doubt acquit the accused-appellant. He be set at liberty forthwith if his detention is not required in jail in connection with any other case. 12. The Jail Criminal Appeal is accordingly allowed. Appeal allowed.