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2008 DIGILAW 459 (ORI)

STATE OF ORISSA v. UDHABA KUMAR

2008-06-20

B.P.DAS, M.M.DAS

body2008
JUDGMENT : M.M. Das, J. - This appeal has been preferred by the State against the Judgment and order passed by the learned Sessions Judge, Kalahandi, Bhawanipatna on 26.06.1987 in S.C. No. 10 of 1987. The Respondent-accused was charged for the alleged commission of offences under Sections 302/307/326, I.P.C. for allegedly causing murder of his father Biolochan and attempting to commit murder of his wife Gorimani Dei and for causing grievous hurt to the informant. 2. Since after pronouncement of the Judgment and order of conviction of the Respondent-accused on being found guilty for commission of the alleged offence u/s 307, I.P.C. and also u/s 323, I.P.C. and sentenced to undergo R.I. for seven years and one month respectively which were to run concurrently, the accused was serving the sentence, This Court by order dated 25.08.2006 called for a report from the learned Sessions Judge, Kalahandi regarding the present status of the accused-Respondent and as to whether the accused has already served the imprisonment or not. 3. Pursuant to the said order, the learned Sessions Judge intimated This Court vide his letter dated 06.09.2006 that the accused has already been released from the jail custody on 02.03.1992 after serving the period of the imprisonment for which he was sentenced as reported by the Superintendent, District Jail, Bhawanipatna vide his letter No. 2133 dated 02.09.2006. 4. This appeal has been registered after leave was granted under Sub-section (3) of the Section 378, Code of Criminal Procedure against the order of the learned Court below acquitting the accused from the charge u/s 302, I.P.C. 5. The prosecution alleged that on 14.11.1986 at about 12 noon, the informant and his mother Jama Dei were standing on the road in front of their house. At that time, the wife of the informant was sitting in the house of the deceased Biolochan and suddenly she raised hulla by shouting that the accused-Respondent Udhaba was killing the deceased by an axe. Hearing this, the informant along with his mother went towards the house of the deceased Biolochan and on entering the said house found Gorimani was lying on the Varandah with bleeding injuries on her fore-head and nose and they further found that Biolochan was lying in the house with bleeding injuries on his dead, neck and his right hand was cut. The informant also found that there was a bleeding injury on the right hand of the wife of the accused and she was lying on the ground. The accused was standing their with an axe having blood stains. When the informant wanted to snatch the axe, the accused gave a blow to him but the handle of the axe struck on his right hand and the axe came out of the handle. The informant learnt from his wife that the accused was having some burning sensation in his stomach and he asked his wife to give him lemon water immediately. As his wife delayed in giving the same to the accused, he being angry loosing his temper, gave axe blows on her person. When she and Biolochan went to snatch the axe, the accused assaulted the wife of the informant and Biolochan with the axe. The informant lodged an oral report at the Police Station which was reduced into writing and the informant upon admitting the contents thereof gave his signature in the F.I.R. The case was registered on the strength of the said report and the Sub-Inspector of Police thereafter caused investigation into the case. He seized the iron tangi without handle, one gold nose ring, some pieces of broken bangles, three pieces of blood stained cloth with blood stained sample of earth, in the presence of witnesses under the seizure list Ext.3. he also seized the wooden handle of tangi on production by Jema Dei under Ext.4. The injured was sent for medical examination. The accused was arrested on 16.11.1986 who led to discovery of the blood stained lungi of the accused. 6. The defence plea was a total denial to the charges. The accused also denied that the "lungi" stated to have been given discovery by him, does not belong to him. 7. The prosecution for establishing its case, examined 13 witnesses. After trial of the case, the learned Court below on discussing the evidence adduced by the prosecution, disbelieved the story of leading to discovery of the "lungi" by the accused and on analyzing the statement of the prosecution witnesses, came to the conclusion that the prosecution has failed to establish the charge u/s 302 IPC against the accused. But, however, the charges under Sections 307/323 IPC have been held to be well-established by the prosecution beyond reasonable doubt. But, however, the charges under Sections 307/323 IPC have been held to be well-established by the prosecution beyond reasonable doubt. Coming to such conclusion learned Court below found the accused guilty of commission of offence under Sections 307/323 IPC and passed the sentence thereon as already stated above. 8. Learned Counsel for the State in support of the appeal, vehemently argued that the findings arrived at by the learned Court below that the accused is not guilty of the offence u/s 302 IPC is wholly erroneous and perverse in view of the cogent evidence adduced by the prosecution through P.Ws. 1, 2 and 3. He further submitted that the P.Ws. 1 and 3 have categorically stated that they saw the accused standing with the blood stained axe in the house while, the deceased was lying with injury in a pool of blood. According to the learned Counsel, the circumstances are sufficient for coming to a conclusion that the accused is the author of the crime. It was further contended by him that the medical officer-P.W.11 has categorically supported the prosecution case with respect to the injury caused on the body of the deceased. 9. On analyzing the evidence on record vis-a-vis the impugned Judgment, we find that the learned Court below taking into consideration the circumstances under which the accused is alleged to have led to discovery of his "lungi" does not amount to a leading discovery. On perusal of the impugned Judgment, we also find that no error has been committed by the learned Court below in coming to the above conclusion. 10. It is a fact that the death of the deceased-Bailochan is not disputed. The said deceased was removed to the hospital while in Coma. The medical officer-P.W.11 has stated that the deceased was admitted to the hospital on 14.11.1986 and expired on 15.11.1986. The doctor conducting the post mortem on the body of the deceased, i.e., P.W.11 found the injuries and opined that injury Nos. 1 and 3 can combinedly cause the death of a person in ordinary course. He also stated that injury No. 1 is sufficient to cause the death of a person individually. No direct evidence is available with regard to commission of offence u/s 302 IPC by the accused. None of the P.Ws. stated that they have seen the accused inflicting injuries on the deceased. He also stated that injury No. 1 is sufficient to cause the death of a person individually. No direct evidence is available with regard to commission of offence u/s 302 IPC by the accused. None of the P.Ws. stated that they have seen the accused inflicting injuries on the deceased. P.W.1, who claims to be presented at the spot stated that he did not see the accused assaulting the deceased. Even considering the other circumstances, the prosecution has not been able to establish the case with regard to commission offence u/s 302 IPC against the accused. The case is based upon circumstantial evidence and the circumstances, as proved by the prosecution do not complete the chain for the Court to come to the conclusion that except the accused, none else could have killed the deceased. 11. We have meticulously gone through the evidence adduced by the prosecution as well as the reasons assigned by the learned Court below for finding the accused not guilty of the offence u/s 302 IPC and we do not find any error in it so as to come to a different conclusion. 12. We, therefore, do not find any reason to interfere with the order of acquittal passed by the learned Court below acquitting the accused from the charge u/s 302 IPC. 13. In the result, the appeal fails and is accordingly dismissed. Final Result : Dismissed