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2008 DIGILAW 698 (ORI)

Narendra Dora alias Kariodu v. State of Orissa

2008-08-14

N.PRUSTY, P.K.TRIPATHY

body2008
JUDGMENT Heard and the judgment is as follows 2. Appellant was prosecuted in the Court of Additional Sessions Judge, Rayagada in Sessions Case No.13 of 2001 (Sessions Case No.110 of 2001 of the Court of Sessions Judge, Koraput, Jeypore). That Sessions Case arose out of Chandili P.S. Case No.107 of 2000 and G.R. Case No.319 of 2000 of the Court of S.D.J.M., Rayagada. 3. Bidika Pentaya alias Pentha (hereinafter referred to as ‘the deceased’) was allegedly done to death in the late evening hours of 22.11.2000. With such allegation, charge for the offence under Section 302, I.P.C. was framed against the appellant. To substantiate the charge, prosecution relied on the oral evidence of eight witnesses and the documents marked Exts. 1 to 7, besides the weapons of offence i.e. knife (M.O.I.). While taking plea of complete denial, accused did not adduce any defence evidence. 4. According to the case of the prosecution, appellant had been given accommodation to sleep on the verandah of house of the deceased. On the date of occurrence, the deceased did not permit the appellant to sleep on that verandah. Retaliating to that refusal, appellant dealt a single stab blow to the belly of the deceased and as a result of that, intestine came out and the deceased died at the spot. The occurrence could be witnessed by two minor daughters of the deceased, inasmuch as, there was no other inmate in that house, he being a widower. Between the two minor daughters, the eldest one is deaf and dumb and the younger one was around 4 to 5 years old. On seeing the accused dealing the stab blow and the deceased falling down, the younger daughter rushed to the nearby neighbour Jhunu Suna (P.W.4), who was present in front of her house. She came and saw the dead body of the deceased and accused standing at a short distance under a tree and on her request P.W.5 Himirika Lasu detained the accused by tying him. The younger daughter of the deceased also went and intimat¬ed the incident to K. Telema, the younger sister of the deceased. She arrived at the spot and found the dead body of the deceased and the accused being detained. It is stated by the prosecution that accused made extra-judicial confession before the villagers and also gave recovery of the weapon of offence. She arrived at the spot and found the dead body of the deceased and the accused being detained. It is stated by the prosecution that accused made extra-judicial confession before the villagers and also gave recovery of the weapon of offence. M.O.-I, which was ceased in accordance with Section 27 of the Evidence Act. In course of investigation, the investigating Officer (P.W.8) sent the dead body for postmortem examination and Dr. M.V. Rama Chan¬dra Rao (P.W.6) conducted postmortem examination and also exam¬ined M.O.I and proved the postmortem report, Ext.3 and two opin¬ion reports, Exts. 4 and 5. 5. In course of trial, two minor daughters of the deceased were not examined on the ground that they had no capacity to depose. P.Ws.2, 3, 4, 5 and 7 are all post-occurrence witnesses. Though each of them had stated about the death of the deceased and seeing the dead body lying with the injury and that accused was detained or had been detained, no further evidence has been given by them to implicate the accused with the crime. P.W.6, while proving the stab injury described as incised wound on the belly, has opined that the injury was sufficient in ordinary course of nature to cause the death and that the deceased suf¬fered homicidal death. 6. On assessment of such evidence, learned Addl. Sessions Judge took note of the fact stated by the prosecution but not by the witnesses that there was a quarrel between the accused and the deceased and the deceased sustained the stab injury and the accused was present there and, therefore, notwithstanding the non-proof of the extra-judicial confession and the statement relating leading to discovery, the aforesaid circumstance alone is sufficient to prove the guilt of the accused. Accordingly, he found the accused-appellant guilty of the offence under Section 302, I.P.C. and sentenced him to undergo imprisonment for life. 7. While assailing the aforesaid order of conviction, Mr. A. K. Nanda, learned counsel for the appellant argues that the conviction is based on no evidence, be it direct or circumstantial, and the inference which was drawn by the trial Court for the presence of the accused at the spot is not a valid presumption, when admittedly the accused was sharing the verandah portion for his rest and therefore he does not come within the category of culprit in the absence of any evidence on record. Accordingly, he argues to set aside the order of conviction and to grant the benefit of doubt to the accused. 8. Mr. A. K. Mishra, Standing Counsel, on the other hand, states that the presence of the accused at the spot was described as last seen theory and when no other person could have motive to commit a murder, the reason assigned by the trial Court should not be held to be improper. Accordingly, he argues to maintain the order of conviction. 9. On careful consideration of the submissions of the learned counsels and on perusal of the evidence on record, we find that the order of conviction is non-sustainable in the eye of law in the absence of any legal evidence to connect the ac¬cused with the crime. The last seen theory, which is argued by learned Standing Counsel in this case is not good enough to draw permissible inference under law to connect the accused with the crime. His presence may raise a suspicion that he is one of the possible offenders but in absence of any other evidence that inference cannot be further extended beyond that. 10. Prosecution has neglected the case from the stage of investigation by not conducting a proper investigation. The knife could have been sent to trace the fingerprints. The wearing apparels of the accused could have been sent for serological test and the report should have been produced in the Court together with the report of the test of wearing apparels of the deceased. The deaf and dumb minor daughter of the deceased, if was capable of making a statement, then attendance of Instructor (experts) should have been taken to gather the information and to present the same before the Court with the help of interpreter. If any of the witnesses had stated about extra-judicial confession made by the accused, then that should have been brought on record in lawful manner. Without doing any of that unavoidable conduct to prove the charge, the prosecuting agency cannot ask for an order of conviction merely on the basis of a postmortem report which proves the homicidal death and the statement of P.Ws. 4 and 5 that accused had been detained at the spot. Without doing any of that unavoidable conduct to prove the charge, the prosecuting agency cannot ask for an order of conviction merely on the basis of a postmortem report which proves the homicidal death and the statement of P.Ws. 4 and 5 that accused had been detained at the spot. The circumstantial evidence adduced by the prosecution is far below the requirement to complete the chain of circumstances, and under such circum¬stance, as noted earlier, order of conviction is illegal and non-sustainable. 11. Accordingly, the order of conviction of the appellant under Section 302, I.P.C. is set aside and he is acquitted by granting benefit of doubt. Accused-appellant be set at liberty forthwith if his detention in jail custody is not required in connection with any other criminal case. Appeal allowed.