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2007 DIGILAW 341 (ORI)

STATE OF ORISSA v. SRIRAM SAMAL

2007-05-09

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT : 1. Heard further argument, perused the written note of submissions filed by Learned Counsel for both parties. Hearing is concluded and the judgment is as follows: 2. Respondents faced their trial in Sessions Trial No. 29 of 1987 in the Court of Second Additional Sessions Judge, Cuttack on the charge for the offences punishable under Sections 148 and 302/149, I.P.C. alternatively under Sections 302/34, I.P.C. After a full-fledged trial, Learned Additional Sessions Judge acquitted accused persons u/s 235 Code of Criminal Procedure. That judgment is under challenge. 3. In the Trial Court, case of the prosecution was that there were dispute relating to landed properties belonging to the deity under cultivating possession of the accused persons relating to demand of higher share by the villagers and Musei Samal, (hereinafter referred to as (the 'deceased') was taking the leadership in that respect. It is alleged that on 7.7.1986 at about 9.30 A.M. while deceased after seeing off his niece, was moving towards 'Baigaba Danda', accused persons emerged from the place of their concealment behind KIA bushes and murderously assaulted him. As alleged by the prosecution, accused Kailash applied force on the neck of the deceased as a result of which deceased fell down. Accused Sriram and Sukuta holding a basket each covered the face and head and pressed it. Accused Balia @ Balaram caught hold of the legs and when the deceased was in that helpless condition, accused Kailash with the help of a KATARI and accused Dhulia being armed with a knife or BHUJAU dealt blows and inflicted injuries on the body of the deceased. P. Ws. 8 to 12, the eye witnesses to the occurrence, were in the nearby places in surroundings and when all of them from different directions rushed to the spot, the accused person decamped. By then deceased was still alive, but he was gasping. He was shifted to the BHAGABAT GHAR and therefrom before he could be given any medical aid, the deceased succumbed to the injuries. 4. To substantiate the charge prosecution examined as many as 18 witnesses and relied on various documents, marked Exts.1 to 23. Prosecution also exhibited Material Objects I to VIII. Out of them M.O.V is the KATARI, one of the weapons of offence. M. Os. III and IV are two baskets. M. Os. VI and VII are the wearing apparels of the deceased. M. Os. Prosecution also exhibited Material Objects I to VIII. Out of them M.O.V is the KATARI, one of the weapons of offence. M. Os. III and IV are two baskets. M. Os. VI and VII are the wearing apparels of the deceased. M. Os. I and II are said to be blood stain and sample earth respectively and M.O. VIII is the bi-cycle used by some of the accused persons while escaping. 5. While taking the plea of denial to the allegation of murder in the above indicated manner, accused persons took the defence plea that the villagers had turned hostile to them for not acceding to the demand of higher usufructs for possessing the deity's land. 6. Learned Additional Sessions Judge relied on the evidence of P.W. 4, Dr. P.K. Choudhury who conducted post-mortem examination on the dead body of the deceased and proved the post-mortem report, Ext. 5. Referring to that evidence, Trial Court recorded the finding that deceased suffered homicidal death due to ante mortem injuries. On making assessment of the evidence of P. Ws.8 to 12 and their credibility, Learned Additional Sessions Judge also referred to the report of the S,F.S.L. Exts. 22 and 23 and found the evidence of P. Ws. 8 to 12 not reliable on the ground that the spot at which the alleged occurrence took place, according to those eye witnesses, was found without existence of blood on the blood stained earth seized from the spot stated by the eye witnesses as per the spot of occurrence and, therefore, that could not have been the spot of occurrence. 7. Learned Addl. Govt. Advocate argues that the aforesaid reasoning assigned by the Trial Court is not sustainable in view of the consistent evidence of P. Ws. 8 to 12 by narrating the incident in a corroborative manner. He argues that by lapse of time i.e. because of the gap between the time of seizure and examination of the blood stained earth by the serologist in the laboratory, detection of blood could not have been made and, therefore, on that ground alone discrediting the eye witnesses is not proper. Learned Counsel for the accused-Respondents on the other hand states that evidence on record indicates that by about 11.45 A.M. of the date of occurrence under seizure list, Ext. Learned Counsel for the accused-Respondents on the other hand states that evidence on record indicates that by about 11.45 A.M. of the date of occurrence under seizure list, Ext. 2, blood stain and sample earth were seized from the spot shown by the eye witnesses and there is no evidence on record about change of weather or down fall of rain after the occurrence and before the seizure and therefore, if the spot indicated by the eye witnesses would have been the spot of occurrence, then any amount of delay in the S.F.S.L. would not have resulted in absence of blood in the seized earth. 8. On perusal of evidence of P. Ws.8 to 12, we find that they are consistent with each other relating to the manner of assault on the deceased. They are consistent about the spot of occurrence. That veracity of the witnesses has to be cross-checked from the medical evidence and the report from the laboratory (S.F.S.L.). When evidence of P.W. 4 read with Ext. 5 corroborates to that testimony about assault by weapons, Iike KATARI and BHUJALI, their statements about the spot of occurrence are not supported by reports, Exts. 22 and 23. Prosecution did not explain as to why blood was not detected from the blood stained earth seized from the spot. That gave rise to genuine doubt with the Trial Court to doubt the veracity of P. Ws.8 to 12 about the spot of occurrence. That doubt of the Trial Court is neither unreasonable nor illegal. Under such circumstances, when the prosecution has failed to adduce proper evidence to explain that lacuna and when the finding recorded by the Trial Court does not suffer from illegality or perversity, we find no reason to interfere with the order of acquittal. The Government Appeal is accordingly dismissed. Govt. appeal dismissed. Final Result : Dismissed