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2006 DIGILAW 774 (ORI)

DANDAPATI LABA v. STATE OF ORISSA

2006-11-08

P.K.TRIPATHY, PRADIP MOHANTY

body2006
JUDGMENT : 1. Heard further argument and the judgment is as follows: 2. Order of conviction passed by Learned Sessions Judge, Ganjam Gajapati, Berahmpur in Sessions Case No. 340 of 1996 is under challenge in this Jail Criminal Appeal preferred by two out of three accused persons, who faced their trial. 3. Prosecution case is that in the night of 31.12.1995 accused persons namely Juria Sethi, Dandapati Laba and Pravakar Sahu committed murder of D. Khalia (hereinafter referred to as "deceased") in furtherance of their common intention. Charge was framed against them not only for the offence u/s 302/34, I.P.C. but also u/s 120-8, 109 and 201/34, I.P.C. 4. Admittedly, the deceased was a Gramaraskhi in Nuapada Outpost. On 1.12.1995, he left his house with the intimation to his family members that he was going to attend the new year's feast at the Outpost. He did not go to the Outpost to participate in the feast organized by the accused persons. Jagili Sahu (P.W.9) also participated in that feast. According to the case of the prosecution, accused persons with a pre-concerted mind committed murder of the deceased by inflicting injuries with the use of Tangi and Kati. Efforts, of P.W. 9 to intervene were done away with by giving him threatening. Death of the deceased could be detected on recovery of the dead body from the well of one Sashi Pradhan. Investigation was undertaken on the basis of the F.I.R. lodged by the widow of the deceased namely, Dandapati Chanchala, P.W. 5. She alleged that accused. Pravakar Sahu and the people belonging to Sundhi caste in the locality were doing business of illicit liquor and the deceased had cautioned them and therefore, they were bearing grudge and that accused Pravakar Sahu Gandu Sahu and brother-in-law of Pravakar Sahu were suspected to have committed the murder. In course of the investigation, the dead body was sent for postmortem examination after the inquest and in view of the opinion of the Doctor that the death of the deceased is homicidal due to ante mortem injuries, the further investigation was conducted and statements of P. Ws.8 and 9 u/s 164 Code of Criminal Procedure. were recorded and the accused persons were roped in and charge-sheeted for the above noted offences. In course of the trial, accused persons denied to the charge and claimed for trial. 5. were recorded and the accused persons were roped in and charge-sheeted for the above noted offences. In course of the trial, accused persons denied to the charge and claimed for trial. 5. To substantiate the charges for the different offences, prosecution relied on the ocular evidence of fifteen witnesses, documents marked Ext. 1 to 25 and the material objects marked M.O.I to M.O.XII. 6. Evidence of P.W. 11 Dr. P.C. Sahu remained unchallenged regarding the postmortem report, Ext. 9 and the opinion, Ext. 10 regarding the ante mortem injuries and homicidal death of the deceased. Material objects I, II and III were introduced as the weapons of offence. Defence disputed to have any connection of such weapons of offence. Besides such evidence, prosecution heavily relied on the evidence of P.W. 9 relating to the complicity of the accused persons in the alleged crime. The said witness did not support the prosecution while being examined as a witness in the Court, but the prosecution after putting leading questions to him also relied on his statement u/s 164, Code of Criminal Procedure. marked Ext. 25 and evidence of P.W. 15 in that contest. P.W. 15 is the Judicial Magistrate who recorded the statement u/s 164, Code of Criminal Procedure. of P.W. 9. Learned Sessions Judge on taking stock of the entire evidence on record and referring to the above items of evidence, held that the deceased suffered homicidal death and in view of the 164 Code of Criminal Procedure. statement of P.W. 9, accused,Dandapati Laba and Juria Sethi are guilty of the offences under Section.302/201/34, I.P.C. He acquitted accused Pravakar Sahu by granting benefit of doubt. Learned Sessions Judge sentenced each of the convicted accused persons to imprisonment for life for the offence u/s 302/34, I.P.C. and rigorous imprisonment for two years for the offence u/s 201/34, I.P.C. and directed to run the sentences concurrently. Sic. 6. As noted above, challenging the order of conviction the aforesaid two convicted accused persons have preferred this Jail Criminal Appeal. Learned Addl. Government Advocate states that no leave application or Government Appeal was filed as against the order of acquittal of accused Pravakar Sahu. 7. Mr. Sic. 6. As noted above, challenging the order of conviction the aforesaid two convicted accused persons have preferred this Jail Criminal Appeal. Learned Addl. Government Advocate states that no leave application or Government Appeal was filed as against the order of acquittal of accused Pravakar Sahu. 7. Mr. J. Katakia, Learned Counsel for the Appellants, after placing the facts and evidence on record, argues that the entire evidence available in the Trial Court records are not even sufficient to warrant a conviction against both the Appellants, inasmuch as, the only piece of evidence which creates a link between the death of the deceased and the participation of the accused persons is the statement u/s 164, Code of Criminal Procedure. of P.W. 9. The statement has been proved as Ext. 25 with objections from the accused persons. In any event the statement u/s 164, Code of Criminal Procedure. cannot be treated as substantive evidence and therefore, conviction of the Appellants is liable to be set aside. Hearing continues for several dates. Learned Addl. Government Advocate ultimately submits today that there is no decision against the aforesaid principle advocated by the Appellants. On the other hand, the ratio in the case of Ramesh Singh alias Photti v. State of A.P. AIR 2004 SC 4545 relied on by the Appellants clinches the issue that the statement u/s 164, Code of Criminal Procedure. itself is not substantive evidence and not to be acted upon.Once that position of law is accepted, as argued by the Learned Counsel for the Appellants, there is no sufficient material to prove the charges against them beyond reasonable doubt. Therefore, it is not necessary to discuss the other evidence on record. For the reasons stated above, we find that the Learned Sessions Judge failed to comprehend the position of law and the strength of the evidence of Section 164, Code of Criminal Procedure. and wrongly convicted the Appellants, because they were also entitled to benefit of doubt once the statement u/s 164, Code of Criminal Procedure. is not accepted as substantive evidence. 8. For the reasons recorded above, we set aside the order of conviction of the Appellants and direct to release the Appellants from Jail, if their detention in the jail custody is not required in connection with any other criminal case. 9. The Jail Criminal appeal is accordingly allowed. Crl. Appeal allowed. Final Result : Allowed