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2006 DIGILAW 458 (ORI)

Budhu Tappo v. State of Orissa

2006-06-22

A.K.SAMANTARAY, P.K.TRIPATHY

body2006
JUDGMENT P. K. TRIPATHY, J. : Judgment of conviction under Section 302, I.P.C. pronounced by learned Additional Sessions Judge, Sambalpur on 30.03.1996 in Sessions No.85/31 of 1995 is under challenge by the convicted accused, who preferred the appeal from the jail. 2. Prosecution case is that, believing Radhi Tiga, the deceased (hereinafter referred to as such) to be a witch and practicing witchcraft, six other accused persons under the lead¬ership of accused-appellant Budhu Tappo on 04.11.1994 at about 10 p.m. assaulted the deceased. The solitary eye-witness to part of the occurrence is Phulamani Tiga (P.W.1), daughter of the de¬ceased. According to her version, accused Budhu Tappo came to their house at about 10 p.m. on 04.11.1994 and alleged the de¬ceased to be a witch, she denied to that, and then accused Budhu Tappo threatened to do away with her. The deceased followed by P.W.1 came to their courtyard. Accused Budhu called the co-accused persons by name and the remaining six accused persons being armed with ‘lathi’ and sticks came upon the spot. All the accused persons including accused-appellant assaulted the de¬ceased, as a result of which she fell down. Then accused-appellant pressed the neck of the deceased. P.W.1 pleaded for mercy and intervened to separate, but she was obstructed by accused Mansit (acquitted) and then because of the slap given to her head by the appellant,she fell down. She ran away from the spot to escape from the clutches of the accused persons, went to the neighboring village Jaraikela to the house of his sworn friend (‘Mita’) Puspanjali (P.W.2). She narrated the incident to Bula (P.W.3), Dhiren (P.W. 4), parents of puspanjali and the other inmates including Maricha (P.W.10) - grandfather of P.W.2. Along with them and others she returned to her house and they discovered that deceased was lying dead. Then they returned to village Jaraikela and thereafter they came to Deogarh Police Station on a truck arranged by a hotel owner (P.W.11). On receipt of the information, F.I.R. (Ext.1) was prepared and P.W.14 (Investigat¬ing Officer) took up the investigation. In course of investiga¬tion, he arrested the accused, seized the incriminating articles, sent the dead body for post-mortem examination after inquest and also recorded statements of witnesses besides sending P.W.1 for examination by doctor relating to her injuries. On receipt of the information, F.I.R. (Ext.1) was prepared and P.W.14 (Investigat¬ing Officer) took up the investigation. In course of investiga¬tion, he arrested the accused, seized the incriminating articles, sent the dead body for post-mortem examination after inquest and also recorded statements of witnesses besides sending P.W.1 for examination by doctor relating to her injuries. The Investigating Officer also sent the witnesses to the Court of the Magistrate for recording their statements under Section 164, Cr.P.C. Some of such statements have been marked as Exts.2, 3, 6, 7, 9, 10, 15 and 20. The Post-mortem Report is Ext.12 and the Opinion Report of the doctor (P.W.13) who conducted the post-mortem examination is Ext.13 relating to possibility of different injuries found on the dead body by the weapons of offence M.Os. I, II and III. Exts.5, 8 and 16 are the Seizure Lists. Ext.11 is the Injury Certificate granted by the Medical Officer (P.W.12) in respect of the injuries found on the knee of P.W.1. M.O.-I is a ‘lathi’, M.O.- II is a piece of stone and M.O.- III is a ‘Budhia’ (axe). Accused persons took the plea of denial but did not adduce any defence evidence except cross-examining the prosecution witness¬es. 3. On assessment of evidence on record, trial Court found that prosecution case for the offence under Section 302, I.P.C. is proved against the appellant by direct evidence of P.W.1 and the circumstantial evidence of statements and extra judicial confessions made prior to and after the occurrence and in that respect evidence of P.W.1 together with such extra judicial confession did not clingingly proved participation of the co-accused persons in the occurrence of murder of the deceased and, therefore, even if P.W.1 made statements that the other co-accused persons were present at the spot with ‘lathis’ and dealt blows, then also such persons are entitled to acquittal. But, so far as accused-appellant is concerned, evidence on record are sufficient to hold that he was the author of the injuries for the homicidal death of the deceased. Accordingly, while acquitting the co-accused persons, accused-appellant was convicted for the offence under Section 302, I.P.C. and sentenced to undergo im¬prisonment for life. 4. But, so far as accused-appellant is concerned, evidence on record are sufficient to hold that he was the author of the injuries for the homicidal death of the deceased. Accordingly, while acquitting the co-accused persons, accused-appellant was convicted for the offence under Section 302, I.P.C. and sentenced to undergo im¬prisonment for life. 4. So far as the charge under Section 323/34, I.P.C. for causing simple hurt to P.W.1 is concerned, learned Addl.Sessions Judge found discrepancy in the statement in the F.I.R., evidence of P.W.1 and the doctor (P.W.12) regarding the limb on which injury was inflicted and accordingly acquitted all the accused persons from the charge under Section 323/34, I.P.C. 5. While challenging to the judgment of conviction, ac¬cused-appellant argued that double standard was applied by the trial Court to appreciate the self same evidence against the appellant and the acquitted co-accused persons. He argued that the methods adopted for acquittal of the co-accused be adopted so far as the appellant is concerned while assessing evidence on record. 6. So far as the offence under Section 302/34, I.P.C. is concerned, evidence of P.W.1 as an eye-witness to the part of the occurrence leaves no room for doubt regarding sharing of common intention by the co-accused persons. The logic applied by the trial Court in not accepting evidence of P.W.1 read with the medical evidence for acquitting the co-accused is not only ille¬gal but also suffers from perversity in as much as evidence on record was misinterpreted so as to grant order of acquittal in their favour. A detailed discussion in that respect would have been truthful had there been an appeal by the State against the order of acquittal of the co-accused persons. For the reasons best known, prosecution remained complacement with the order of conviction against accused Budhu Tappo and admittedly no appeal was preferred by the State challenging to the order of acquittal of the co-accused persons. In the meantime a period of twelve years have elapsed from the date of occurrence. Therefore, we do not find it useful to ask for a suo motu revision against the order of acquittal of the co-accused persons. Be that as it may, acquittal of the co-accused persons when suffers from incorrect appreciation of evidence in their favour, that cannot be the basis for recording acquittal in favour of the appellant. Therefore, we do not find it useful to ask for a suo motu revision against the order of acquittal of the co-accused persons. Be that as it may, acquittal of the co-accused persons when suffers from incorrect appreciation of evidence in their favour, that cannot be the basis for recording acquittal in favour of the appellant. In other words, this Court cannot perpetuate an illegality committed by the Court below. On the other hand, on going through the evidence available to the trial Court we find that a case of homicide is well proved against the appellant. In that respect homicidal death of the deceased is not disputed. The opinion of the doctor regarding nature of the injuries and the weapons used has remained unshaken and, above all, the evidence of P.W.1 remains credible together with the evidence of all other witness¬es who have stated about the conduct of accused Budhu Tappo from the evening of the date of occurrence by taking a decision to do away with the deceased on the belief that she was doing witch¬craft and practiced witchcraft on her daughter-in-law. 7. We also find that order of acquittal under Section 323/34, I.P.C. suffers from similar type of wrong approach to the evidence on record, but again that order of acquittal being not under challenge, we do not discuss that aspect any further. 8. Learned counsel for the appellant being conscious of the clinching evidence available on record, however, argued that it may be treated as a case of culpable homicide not amounting to murder in as much as under a wrong notion and being compelled by suffering of his daughter-in-law that appellant together with others committed the crime. In that respect he relied on the ratio in the cases of Satru alias Satrughana Gouda v. State of Orissa, 2001 (II) OLR 327 and Jakaka Dama v. State of Orissa, 2002 (II) OLR 139 . In that respect he relied on the ratio in the cases of Satru alias Satrughana Gouda v. State of Orissa, 2001 (II) OLR 327 and Jakaka Dama v. State of Orissa, 2002 (II) OLR 139 . The distinguishable facts and circumstances are apparent on bare perusal of the said judgments and, therefore, the principle for converting the conviction to one under Section 304, I.P.C. is not found permissible in this case when the evi¬dence is plentily available to suggest that from the evening of the date of occurrence accused had disclosed his intention to kill the deceased and the injuries found on he dead body of the deceased was sufficient in on delivery cover of nature to cause her death and that there was multiple injuries on the body of the deceased. 9. For the reasons indicated above, we do not find any merit in this appeal and the same is accordingly dismissed. A. K. SAMANTARAY, J. I agree. Appeal dismissed.