Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 1144 (ORI)

SAIBU ` TSHERING LEPCHA v. STATE OF ORISSA

2008-12-16

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT : 1. Heard argument and the judgment is as follows: 2. Appellant together with three other accused persons faced the trial on the charge under Sections 302/34 I.P.C. in S.T. Case No. 154/21 of 1998 of the court of Addl. Sessions Judge, Jajpur, arising out of G.R. Case No. 383 of 1997 of the court of Judicial Magistrate 1st Class, Jajpur Road. While acquitting the co-accused persons, learned Addl. Sessions Judge found the Appellant guilty of murder of Maikel Ray (hereinafter referred to as the 'deceased'). 3. According to the case of the prosecution, deceased and four accused persons (including the present Appellant) were together working as security guards in Maharaja Ferro Alloys Private Ltd., Jajpur Road. On 28.08.1997 during day time there was a quarrel between the Appellant and the deceased. After the duty hour at about 2 p.m. the deceased left for his place of stay, but did not return to the duty at 8 p.m. Next day morning he was found lying dead with multiple bleeding injuries. Said information was lodged with O.I.C., Duburi P.S. The dead body was sent for postmortem examination and it could be ascertained from the postmortem reports that deceased suffered homicidal death. In course of the investigation on police requisition, P. Ws. 5 and 9, the two doctors collected blood samples of the accused persons. In the process of investigation, the investigating officer (P.W.11) suspected four accused persons and took them to his custody for questioning. In course of interrogation in presence of Rajkumar Mohanty (P.W.9), all the accused persons gave discovery of incriminating materials like bloodstained wearing apparels belonging to them. Appellant also made statement about causing death of the deceased by Iron rod, M.O.I and voluntarily gave discovery of the same. Accordingly, M.O.I and wearing apparels of the Appellant were seized respectively under the seizure lists, Exts. 10 and 11 and such evidence was tendered in the trial court u/s 27 of the Evidence Act. After interrogation of the aforesaid accused persons and ascertaining the real spot of assault, P.W.11 visited that spot and seized the bloodstained and sample earth under seizure list, Ext. 15. The wearing apparels of the deceased and the bloodstained and sample earth and other incriminating bloodstained articles seized from different spots were together sent for chemical analysis and serological test at the S.F.S.L. 4. While denying to the charge, accused persons claimed for trial. 15. The wearing apparels of the deceased and the bloodstained and sample earth and other incriminating bloodstained articles seized from different spots were together sent for chemical analysis and serological test at the S.F.S.L. 4. While denying to the charge, accused persons claimed for trial. Prosecution tendered evidence of eleven witnesses and documents marked Exts. 1 to 25, besides, weapon of offence, M.O.I and wearing apparels of the accused M. Os. II & III. Accused persons did not adduce any evidence. 5. Learned Addl. Sessions Judge referring to the evidence of Kulamani Barik (P.W.1) and the postmortem report, Ext.I, recorded the finding that deceased suffered homicidal death. Learned Counsel for the Appellant does not dispute to that finding of the trial court. On perusal of evidence of P.W1, Ext.1 and the finding in paragraph-8 of the impugned judgment, we also agree with the finding that the deceased suffered homicidal death. 6. Learned Addl. Sessions Judge noted the evidence of P. Ws. 7, 9 and 11 together with relevant seizure list, opinion report from S.F.S.L. and the material objects, were the relevant evidence to be considered. On a reference to evidence of P.W.7, the witnesses, who turned hostile to the prosecution on a part of the prosecution case, learned Addl. Sessions Judge held that the factum of quarrel between the Appellant and the deceased on 28.08.1998 is proved. Learned Counsel for the Appellant argues that in view of answer in the cross-examination that he had not seen or heard about the quarrel, it should be held that P.W.7 has not proved the factum of quarrel. We do not agree with that argument in view of clear-cut evidence, in examination-in-chief that P.W.7 had the knowledge about quarrel between the deceased and the Appellant on 28.08.1997. 7. Referring to evidence of P. Ws. 9 and 11, besides, the seizure lists, Exts. 10, 11, 15 and the report from S.F.S.L. Ext. 25, learned Addl. Sessions Judge held that since human blood of same group was found in the wearing apparels of the accused and the deceased so also in M.O.I and the blood-stained earth seized from the spot of assault, therefore such evidence are sufficient to prove that Appellant is the author of the homicidal death of the deceased. Learned Addl. 25, learned Addl. Sessions Judge held that since human blood of same group was found in the wearing apparels of the accused and the deceased so also in M.O.I and the blood-stained earth seized from the spot of assault, therefore such evidence are sufficient to prove that Appellant is the author of the homicidal death of the deceased. Learned Addl. Sessions Judge also held that though the wearing apparels of the other accused persons was found containing human blood, group-B, but in the absence of corresponding evidence to connect that with the act of assault, the other accused persons should be relieved of the charge under Sections 302/34, I.P.C. 8. In course of his submission, Mr. Pattnaik, learned Counsel appearing for the Appellant, inter alia, argues that when the trial court has banked on the report of the serologist as the connecting bridge between the evidence alleged and the circumstances tendered by the prosecution to complete the chain of circumstances in furtherance of prove of charge u/s 302 IPC against the Appellant, such evidence should not have considered by him without confronting the same to the Appellant in course of examination u/s 313 Code of Criminal Procedure Per contra, learned Standing Counsel argues that question No. 5 put to the Appellant in course of his examination u/s 313 Code of Criminal Procedure is sufficient and no further question was necessary. 9. Question No. 5 confronted to the Appellant reads as hereunder: it further transpires that the blood stains found in your wearing apparels given to the police tallied with the blood samples collected from the spot. What do you say ? we are unable to agree with the argument of learned Standing Counsel that by the aforesaid question the relevant incriminating evidence was confronted to the Appellant in compliance to the provision of law u/s 313 Code of Criminal Procedure. In the above context, learned Counsel for the Appellant places reliance on the case of Ajay Singh v. State of Maharashtra 2007(3) Crimes 1 (SC). In paragraph-10 of that judgment, their lordships have considered relevancy and importance of Section 313 Code of Criminal Procedure in the context of criminal justice delivered system. In paragraphs-12 and 13, their lordships propounded that: 12. In paragraph-10 of that judgment, their lordships have considered relevancy and importance of Section 313 Code of Criminal Procedure in the context of criminal justice delivered system. In paragraphs-12 and 13, their lordships propounded that: 12. the word 'generally' in Sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterateperson will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 13. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. Appellant also relies on the case of Sharad Birdhichand Sarda Vs. State of Maharashtra. The Apex Court in that case pressing the precedential value from the case of Hate Singh Bhagat Singh Vs. State of Madhya Bharat stated that: In the first place, he stated that on the personal search of the Appellant, a chadi was found which was bloodstained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement u/s 342, the prosecution cannot be permitted to rely on this statement in order to convict the Appellant. 10. Replying to the aforesaid submission, learned Standing Counsel relies in the case of State of Punjab v. Sawaran Singh 2005(5) Supreme 189 . In Paragraph-10 Hon'ble Chief Justice of India speaking for the Bench has observed, thus, 10. the questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and he is given full opportunity to cross-examine each and every witness examined on the prosecution side. He is given copies of all documents, which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution. However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence, which are adverse to the accused and his explanation would help the court evaluating the evidence properly, the court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence. Generally, composite questions shall not be asked to accuse bundling so many facts together. Generally, composite questions shall not be asked to accuse bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial. (underlined to put emphasis) In the cited case, the benefit of acquittal granted by the High Court was however, not approved because of the relevant question had been put which could be considered as incriminating evidence. 11. Being abreast of the principles of law, we find that evidence tendered by the prosecution relating to the report of the serologist is a much relevant evidence and crucial for the accused. Had that been put to him and answer given, then this Court should have considered the answer of the accused. But when the relevant evidence from S.F.S.L. was not put to the accused utilizing such incriminating evidence against him is found to be not legal. Minus that evidence, as agreed at the Bar, the chain of circumstances is not completed so as to fix the charge u/s 302 I.P.C. against the Appellant for the homicidal death of the deceased. Under such circumstance, Appellant is entitled to benefit of doubt. Accordingly, he is acquitted by setting aside the order of conviction and sentence. The Appellant being on bail, in view of the aforesaid order of acquittal, the bail bond is discharged. Intimate the court below. Final Result : Allowed