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2008 DIGILAW 1162 (ORI)

HUIKA SOMANNA v. STATE OF ORISSA

2008-12-17

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT : 1. In Sessions Case No. 51 of 1997, arising out of G.R. Case No. 135 of 1996 of the Court of Judicial Magistrate First Class, Laxmipur, Learned Addl. Sessions Judge, Jeypore has recorded the order of conviction u/s 302/34, I.P.C. against both the accused-Appellants i.e. Huika Somanna and Meleka Das alias Dasana. They have been found guilty of committing murder of Miniaka Singa (hereinafter referred to as 'the deceased') and sentenced to imprisonment for life and to pay fine of Rs. 5,000/- each in default to undergo rigorous imprisonment for one year. 2. Prosecution case is that on 27.11.1996 in late afternoon, both the accused persons came to the house of the deceased and invited him to join with them to consume liquor. The deceased happily agreed and accompanied them. He did not return to the house in that night. On the following day morning accused Somanna informed Miniaka Jaga (P.W. 10), son of the deceased that his father (the deceased) was lying dead. P.W. 10 together with his mother Miniaka Sauli (P.W. 11) and Ors. went and saw the dead body and thereafter police was informed to take up investigation. There was no eye witness to the occurrence. In course of investigation police conducted inquest on the dead body of the deceased (Ext. 1 ) on the land between the huts (Kudias) of the two accused persons and forwarded the same under Ext.5 to Dr. D.K. Biswal, (P.W. 9) for postmortem examination, the Investigating Officer also visited the spot, prepared the spot map, arrested the accused, seized the incriminating materials after recording statement u/s 27 of the Evidence Act of both the accused persons in presence of witnesses and also recorded statements of the witnesses u/s 161, Code of Criminal Procedure including the statements of the witnesses, who stated about extra-judicial confession made by the accused persons. Amongst the seized articles, M. Os. I and II are two wooden lathis (sticks) and M. Os. III to v. are three pieces of stones, which were said to be used as weapons of offence by the accused persons. The blood-stained wearing apparels of the accused and the deceased persons were marked as M. Os. VI to X. 3. To substantiate the charge as against the plea of denial of the accused persons, prosecution relied on evidence of thirteen witnesses and sixteen documents besides the above noted material objects. The blood-stained wearing apparels of the accused and the deceased persons were marked as M. Os. VI to X. 3. To substantiate the charge as against the plea of denial of the accused persons, prosecution relied on evidence of thirteen witnesses and sixteen documents besides the above noted material objects. Accused persons did not adduce any defence evidence. P.W. 2 Turuka Salupu, a co-villager and P. Ws. 10 and 11 were examined as witnesses to prove that the deceased went with the accused persons. P. Ws. 4, 5 and 6 were examined as the witnesses to prove extra-judicial confession of the accused persons. Amongst them, P. Ws. 2, 4, 5 and 6 turned hostile by not supporting the prosecution. P.W. 3 Davada Singh Ankali was the witness to the seizure list, Ext.2 under which the wearing apparels of the deceased were seized. P.W. 1 was examined to prove the inquest report, Ext.1 and P.W. 12 was examined to prove that the dead body of the deceased was at first in the Kudia (hut) of accused Meleka Das. P.W. 13 was the Investigating Officer. 4. P.W. 9 stated before the Trial Court about lacerated injuries as the external injuries numbering about 32 present all over the chest and abdomen and also fracture of 6th and 7th ribs and injuries on the liver and lungs causing intra peritbneal and intra thorasic haemorrhage. Referring to such evidence of P.W. 9, Learned Addl. Sessions Judge recorded that the deceased suffered homicidal death. Learned Counsel for the Appellants does not dispute to that finding of the Trial Court. On assessment of other evidence on record in paragraph 9 of the impugned Judgment, Learned Addl. Sessions Judge summarised the 'circumstance proved and that reads as here under: 9. Keeping in mind the above principle, it is to be seen whether the prosecution has proved the accusation beyond all reasonable doubt. The facts forming the chain of events which is relied upon by the prosecution are as follows: (i) That the two accused persons called the deceased in the evening of 27.11.96 and he accompanied them to have liquor. Keeping in mind the above principle, it is to be seen whether the prosecution has proved the accusation beyond all reasonable doubt. The facts forming the chain of events which is relied upon by the prosecution are as follows: (i) That the two accused persons called the deceased in the evening of 27.11.96 and he accompanied them to have liquor. (ii) The information about the fact of death of the deceased was first given by one of the accused Huika Somanna to P.W. 10; (iii) P.W. No. 10 and P.W. No. 11 found the body of the deceased in the house of the accused and reported to the police; (iv) P. Ws. Nos. 4,5, 6 the co-villagers of the accused state that they were first informed by the accused persons about the death of the deceased and that the body was lying in the Kudia of accused Huika Somanna; (v) The Police conducted inquest over the body which was found at a place between the two Kudias of the accused; (vi) The body of the deceased had multiple injuries in it; (vii) The Post Mortem Report, Ext.6 indicates that the death was caused due to internal injuries; (viii) In the opinion of the doctor, Ext.7 the injuries on the deceased are possible by the M.O.I to M.O.V. (ix) The conduct of the accused persons individually leading to the discovery of the weapon of assault from concealment; (x) The fact that the seized articles i.e., the wearing apparels of the deceased and the blood-stained stones etc., had blood-stains on them; (xi) The blood found on all the M. Os. matched as Human Group 8' blood. Making further analysis of such evidence, Learned Addl. Sessions Judge found that all those circumstances complete the chain of circumstance in conformity to the ratio in the case of Prasanta Kumar Sahu v. State (1998) 15 OCR 591 and Sharad Birdhichand Sarda Vs. State of Maharashtra, . 5. Learned Counsel for the Appellants, inter alia, argues that in course of examination of the accused u/s 313, Code of Criminal Procedure, the incriminating evidence vide circumstance Nos. (x) and (xi) as in paragraph 9 of the Trial Court judgment was not at all confronted to the Appellants and therefore that results in illegality and under such circumstance, the order of conviction is liable to be set aside. She relies on the case of Harijan Magha Jesha Vs. (x) and (xi) as in paragraph 9 of the Trial Court judgment was not at all confronted to the Appellants and therefore that results in illegality and under such circumstance, the order of conviction is liable to be set aside. She relies on the case of Harijan Magha Jesha Vs. State of Gujarat, and the case of Sharad (supra). She also argues that keeping in view opinion of P.W. 9 about the nature of the external injury and absence of blood to identify the group in M. Os. III to V, prosecution case relating to presence of human blood in the wearing apparels of the accused persons cannot be co-related to the deceased without determining the blood group of the accused persons. She also argues that when admittedly, there was no enmity between the deceased and the accused persons and all of them had voluntarily gone to consume liquor judicial notice can be taken of the fact that the occurrence villages are part of the hilly-track of the Koraput district, therefore, sustaining of injuries due to fall and rolling down on the ground may not be ruled out. In that respect she also invites our attention to opinion of P.W. 9, in which the doctor had said that "If the deceased being heavily drunk fall on the ground with violence or sufficient force having stony area, all these injuries may be possible." 6. Learned Addl. Government Advocate without disputing to the position of law emerging from the above cited decisions and the lacuna in not confronting the incriminating evidence i.e. report of the S.F.S.L. to the accused persons, however, argues that the other contentions raised by the Appellants bear no merit. He advances the counter argument accordingly. 7. In the above two cited decisions, the purpose and object of Section 313,.Code of Criminal Procedure have been reiterated with the dictum that noncompliance of the same by not confronting incriminating evidence against the accused, the Court cannot utilize the same while deciding the case. In this case, following that ratio, if the reports from the S.F.S.L., Exts.16 and 16/1 are excluded from the rest of the circumstance, then the other circumstances do not clinching prove that it is the accused persons and none else who could have committed murder of the deceased. In this case, following that ratio, if the reports from the S.F.S.L., Exts.16 and 16/1 are excluded from the rest of the circumstance, then the other circumstances do not clinching prove that it is the accused persons and none else who could have committed murder of the deceased. Then all the probabilities arising from the argument of the Learned Counsel for the Appellants would emerge as 'ifs' and 'buts'. In the case of Prasanta Kumar Sahu (supra) and Sharad (supra), their Lordships have observed that there must be a chain of events so completed as not to leave any reasonable ground for a conclusion consistent with innocence of the accused. In this case, without the circumstance No. (xi), the prosecution case does not complete the chain of circumstances to unfailing point that the accused must have committed murder of the deceased. Under such circumstance, both the accused persons are entitled to the benefit of doubt and accordingly they are acquitted from the charges by setting aside the order of conviction and sentence. Since the accused persons are in jail custody as per the submission of the parties, we direct them to be set at liberty forthwith unless their detention is necessary in connection with any other criminal case. 8. The Jail Criminal Appeal is accordingly allowed. Final Result : Allowed