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2008 DIGILAW 206 (ORI)

Sudarsan Bag v. State of Orissa

2008-03-12

B.K.PATEL, L.MOHAPATRA

body2008
Judgement B.K. PATEL, J. :- The appellant having been convicted for commission of offences of murder of deceased Basanti under Section 302, I. P. C. and sentenced to undergo R. I. for life and also voluntarily causing hurt to P. W. 2 Rasananda and P. W. 3 Nila and sentenced to undergo R. I. for one year by the learned Addl. Sessions Judge, Sambalpur in S. T. Case No. 201/34 of 1995 has preferred this appeal. 2. The appellant is deceased's brother. The informant P. W. 4 is son of brother of father of the accused and deceased. P. Ws. 5 and 6 are respectively the mother and the sister of the accused and deceased. P. W. 2 is P. W. 4's brother. 3. Prosecution case is that as the appellant was exhibiting symptoms of madness, his sister P. W. 6 had called P. W. 2 and P. W. 7, a co-villager as well as some co-villagers to sleep in their house and keep watch over the appellant in the night of 2/3-1-1995 when the occurrence took place. The house of informant P. W. 4 is situated at a distance of about 100 yards from the house of the appellant. At about 11.00 p.m., P. Ws. 2 and 3, with bleeding injuries on their person, came to P. W. 4's house. P. W. 2 told the informant P. W. 4 that in the night when he was sleeping in the house of the appellant, the appellant expressed his desire to go out to attend the call of nature. When the appellant was not allowed to go out, the appellant quarrelled with P. W. 2 and others upon which the appellant was brought inside the house. The appellant suddenly brought out a sword and dealt blows causing injuries on the heads of P. Ws. 2 and 3. When the deceased came and protested, the appellant dealt sword blows on the neck and other parts of her body as a result of which the deceased sustained injuries, fell down and died. P. W. 2 went to the spot and found the deceased lying dead in the courtyard with injuries on her body. On the basis of P. W. 4's oral report made at 1.00 a.m. in the same night, P. W. 11 the Officer-in-charge, Govindpur P. S. prepared written F. I. R. Ext. 10, registered the case and took up investigation. P. W. 2 went to the spot and found the deceased lying dead in the courtyard with injuries on her body. On the basis of P. W. 4's oral report made at 1.00 a.m. in the same night, P. W. 11 the Officer-in-charge, Govindpur P. S. prepared written F. I. R. Ext. 10, registered the case and took up investigation. In course of investigation, witnesses were examined, inquest over the dead body of the deceased was conducted, dead body of the deceased was subjected to postmortem examination and also injured persons P. Ws. 2 and 3 were medically examined at Govindpur C. H. C. by P. W. 8, seizure of articles including the weapon of offence and wearing apparels of the appellant was effected and the seized articles were sent for chemical examination. Upon completion of investigation, P. W. 12, the Circle Inspector of Police, Kuchinda submitted charge-sheet against the appellant for commission of offence under Sections 302/324, I. P. C. Accordingly, the appellant faced trial for commission of the aforesaid offences. 4. The appellant took the plea of complete denial. In order to establish the charges, prosecution examined twelve witnesses in all. No defence witness was examined. Of the 12 prosecution witnesses, P. Ws. 2, 3. 4, 5, 6, 7, 8, 11 and 12 have already been referred to above. P. W. 1 is an independent post occurrence witness who was told by P. W. 4 regarding the occurrence. P. Ws. 9 and 10 are co-villagers of the appellant and deceased, who depose regarding seizure of weapon of offence i.e. sword M. O. I at the instance of the appellant. It is worthwhile to note that P. Ws. 2, 3, 4, 5, 6 and 7 do not make any statement implicating the appellant and were declared to be hostile witnesses. It is also pertinent to observe that, though no specific plea to that effect was taken by the appellant during his examination under Section 313, Cr. It is worthwhile to note that P. Ws. 2, 3, 4, 5, 6 and 7 do not make any statement implicating the appellant and were declared to be hostile witnesses. It is also pertinent to observe that, though no specific plea to that effect was taken by the appellant during his examination under Section 313, Cr. P. C., a contention appears to have been advanced before the learned trial Court that the appellant being insane should be given the benefit under Section 84 of the I. P. C. The learned trial Court upon reference to the evidence of witnesses including the evidence of hostile witnesses and their statements made during investigation as well as the evidence with regard to seizure of sword M. O. I at the instance of the appellant and the lungi M. O. II and nail clippings of the appellant held the charges against the appellant to have been established. 5. In assailing the impugned judgment and order, it is contended on behalf of the appellant that there is no direct evidence connecting the appellant with the commission of offence of murder or the offence of voluntarily causing hurt to P. Ws. 2 and 3 inasmuch as not only P. Ws. 2 and 3 but also P. Ws. 4, 5, 6 and 7 have not supported the prosecution case and were declared to be hostile witnesses. None of the witnesses whisper regarding the circumstance under which the deceased sustained fatal injuries. Even the injured persons, P. Ws. 2 and 3, do not depose against the appellant to have assaulted and caused injuries on them. It is further contended on behalf of the appellant that the evidence of seizure of the sword M. O. I by P. W. 1 at the instance of the appellant as deposed to by P. Ws. 9 and 10 is vague, inconsistent and discrepant. The further contention is that the evidence available solely from the mouth of P. W. 12 regarding seizure of blood stained lungi M. O. II and blood stained nail clippings of the appellant is not acceptable in the absence of any other evidence and in the absence of any evidence regarding the blood grouping of the appellant. The further contention is that the evidence available solely from the mouth of P. W. 12 regarding seizure of blood stained lungi M. O. II and blood stained nail clippings of the appellant is not acceptable in the absence of any other evidence and in the absence of any evidence regarding the blood grouping of the appellant. It is also contended that admittedly the appellant being the brother of the deceased residing in the same house where the deceased died, presence of blood in his wearing apparels and nail clippings should not be held to be clinching evidence of commission of offence of murder. It is also submitted that even if the evidence adduced by the prosecution is held to be accepted in holding the appellant guilty of the charges, there being ample evidence adduced on behalf of the prosecution to the effect that the appellant had gone mad at the time of occurrence, the appellant is entitled to the benefit under Section 84 of the I. P. C. 6. In defending the impugned judgment and order, it is contended by the learned counsel appearing for the State that though P. W. 4, the informant as well as injured witnesses, P. Ws. 2 and 3 and also other inmates of the house in which the occurrence took place, being close relations of the appellant, do not support the prosecution case, the seizure of sword M. O. I as well as lungi M. O. II and nail clippings of the appellant stained with blood of the same group as that of the deceased unerringly establishes the complicity of the appellant with the murder of the deceased. 7. Admittedly, the witnesses examined by the prosecution as eye-witnesses to the occurrence do not implicate the appellant with the alleged offences while deposing in Court. P. W. 4 the informant says that P. W. 2 came to him in the night and told that mad Sundarsan caused the injuries on his forehead. He says to have gone with P. W. 1 to call a compounder. He specifically says that he did not go to the house of the deceased. P. W. 4 deposes that he orally reported the incident at the police station. P. W. 2 says that in the night of occurrence, the deceased's sister P. W. 6 took him to her house to sleep as the appellant was showing madness. He specifically says that he did not go to the house of the deceased. P. W. 4 deposes that he orally reported the incident at the police station. P. W. 2 says that in the night of occurrence, the deceased's sister P. W. 6 took him to her house to sleep as the appellant was showing madness. After they went to sleep, the appellant went outside. Finding the appellant absent in the room, P. Ws. 2 and 3 went out and found the appellant standing in one corner. They caught hold of him and there was a tussle. They tied the appellant and brought him to the courtyard. It is deposed by P. W. 2 that during tussle with the appellant, some injuries were received by him and P. W. 3. It is stated by P. W. 2 that they saw the deceased lying with bleeding injuries. In his examination-in-chief itself, P. W. 2 says that he does not know how he and P. W. 3 got injuries. He deposes to have narrated the incident to P. W. 4. P. W. 3 deposes that he was called to sleep in the house of the deceased, as the appellant went out of the house when others were sleeping upon which he and others caught hold of him. They saw the dead body of the deceased lying on the floor. He and P. W. 2 had received injuries in course of tussle with the appellant. P. W. 5, the mother of the deceased says that in the night of occurrence, hearing hulla, she woke up and found the deceased lying dead with bleeding injuries on the courtyard. The appellant was dancing as he was mad. P. W. 6, the deceased's sister says that when she woke up, she saw the deceased lying dead with bleeding injuries in the courtyard. P. W. 7, a co-villager who was also sleeping in the house of the deceased in the occurrence night says that when he woke up, he saw that the door was open and the deceased lying dead on the courtyard with bleeding injuries. He also saw that P. Ws. 2 and 3 and the appellant Were tussling and that later on he saw bleeding injuries on the forehead of P. Ws. 2 and 3. P. W. 7 deposes to have tied the appellant and put him on the verandah. He also saw that P. Ws. 2 and 3 and the appellant Were tussling and that later on he saw bleeding injuries on the forehead of P. Ws. 2 and 3. P. W. 7 deposes to have tied the appellant and put him on the verandah. As has been stated earlier, P. Ws. 2 to 7 were declared to be hostile witnesses. The evidence of P. W. 1 is also inconsequential. He simply says that being called by P. W. 4 he came to his house arid saw bleeding injuries on the head of P. Ws. 2 and 3. He also deposes to have seen the deceased lying dead with injury on her neck on the ground. He further deposes to have accompanied P. W. 4 to call the compounder to the house of P. W. 4. Therefore, the evidence of P. Ws. 1 to 7 does not help the prosecution in any manner. 8. P. W. 8 who is the Medicine Specialist, Govindpur C. H. C., deposes to have medically examined P. Ws. 2 and 3 and also to have conducted post-mortem examination over the dead body of the deceased on 3-1-1995. It appears from his evidence that P. Ws. 2 and 3 had sustained incised wounds which were simple in nature. However, in the absence of any evidence even from the mouth of P. Ws. 2 and 3 that the appellant had caused injuries on them, there is absolutely no basis to conclude that the appellant assaulted P. Ws. 2 and 3. It appears that as many as seven incised wounds were found on the dead body of the deceased. Cause of her death was due to severe haemorrhage and shock as a result of injuries to vessels of neck and the injuries were sufficient to cause death. P. W. 8 also appears to have examined the sword M. O. I produced in course of investigation and opined that the injuries on the deceased could be possible by M. O. I. He also deposes to have collected the appellant's nail clippings under Ext. 5. 9. P. W. 8 also appears to have examined the sword M. O. I produced in course of investigation and opined that the injuries on the deceased could be possible by M. O. I. He also deposes to have collected the appellant's nail clippings under Ext. 5. 9. In view of the above discussion, the only material on which the fate of the prosecution rests is the circumstance of seizure of sword M. O. I stated to be at the instance of the appellant, lungi (M. O. II) stated to be from the possession of the appellant and nail clippings of the appellant collected by P. W. 8. From the chemical examination report Ext. 15, it appears that sword M. O. I and lungi M. O. II were found stained with human blood of 'AB' group. Blood stains of group 'AB' were also found in the wearing apparels of the deceased. The nail clippings of the appellant collected by P. W. 8 were found to contain faint human blood, the grouping of which could not be made. 10. Prosecution case is that the Investigating Police Officer, P.W. 11 seized the sword M. O. I under seizure list Ext. 8 consequent upon the statement of the appellant recorded under Ext. 9 in presence of P. Ws. 9 and 10. P. W. 11 deposes that upon his arrest, while in custody, the appellant confessed to have concealed the sword M. O. I under a Mahul tree situated on the north-east corner of the house, agreed to show it and thereafter led P. W. II and the witnesses to Mahul tree from where he brought out the sword. P. W. 9 does not depose regarding seizure of sword from any Mahul tree. He says that police seized one Khanda from the house of the appellant. It is categorically stated by him that the appellant said that he had kept and brought out the sword from his house. In course of cross-examination, P. W. 9 says that there is only one Mahul tree to the west of the house of the appellant and there is no other Mahul tree on eastern, southern and western side of the house. In course of cross-examination, P. W. 9 says that there is only one Mahul tree to the west of the house of the appellant and there is no other Mahul tree on eastern, southern and western side of the house. Therefore, the evidence of P. W. 11 to the effect that the appellant led him and the witnesses to Mahul tree situated on the northeast corner of the house and gave recovery of the sword does not tally with the evidence of P. W. 9. P. W. 10 says in his examination-in-chief that the appellant confessed to have kept the sword and agreed to show it. Thereafter the appellant brought them to a Mahul tree and brought out M. O. I. Though in Ext. 8, the seizure list, time of seizure of M. O. I has been stated to be 12.45 p.m. on 3-1-1995, P. W. 10 in course of his cross-examination says that the seizure of sword was made in the night of occurrence itself. In his cross examination, P. W. 10 categorically says that he had not gone to Mahul tree where the sword was recovered and it was the police who showed him the sword. The evidence regarding recovery and seizure of sword at the instance of the appellant is far from being consistent. 11. The evidence of P. Ws. 9 and 10 does not at all inspire any confidence. We, therefore, find that the prosecution has singularly failed to establish that the seizure of sword M. O. I was effected at the instance of the appellant by resorting to the provision under Section 27 of the Evidence Act. 12. No other witness except the Investigating Police Officer, P. W. 11 deposes regarding seizure of lungi M. O. II belonging to the appellant under seizure list Ext. 12. That apart, the appellant being the brother of the deceased residing in the same house, where the deceased was residing, detection simpliciter of blood on his wearing apparels or nail clippings does not appear to be incriminating circumstance. Prosecution has also not made any effort to show that the appellant's blood is not of 'AB' group. 12. That apart, the appellant being the brother of the deceased residing in the same house, where the deceased was residing, detection simpliciter of blood on his wearing apparels or nail clippings does not appear to be incriminating circumstance. Prosecution has also not made any effort to show that the appellant's blood is not of 'AB' group. Therefore, the circumstances of seizure of sword M. O. I, lungi M. O. II and nail clippings and nature of evidence adduced in support thereof are not found to constitute a firm basis upon which any finding in a criminal trial is capable of being based. 13. In view of the above discussion, we find that as there is absolutely no scope to hold that the prosecution has established beyond reasonable doubt that it was the appellant who committed murder of the deceased or voluntarily caused hurt by assaulting P. Ws. 2 and 3 with a sword, the impugned judgment and order is unsustainable. 14. Accordingly, we allow the appeal and set aside the impugned judgment and order dated 28-6-1996 passed by the learned Addl. Sessions Judge, Sambalpur in S. T. Case No. 201/34 of 1995 convicting the appellant for commission of offence under Section 302 I. P. C. and sentencing him to undergo R. I. for life and also convicting him under Section 324, I. P. C. and sentencing him to undergo R. I. for one year. It is stated that the appellant is still in custody. If that be so, the appellant, namely, Sudarsan Bag be set at liberty forthwith, unless his detention is required in any other case. 15. L. MOHAPATRA, J. :- I agree. Appeal allowed.