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2009 DIGILAW 163 (ORI)

ANGADA KARKARIA v. STATE OF ORISSA

2009-02-26

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT : L. Mohapatra, J. - The Appellant having been convicted by the learned Addl. Sessions Judge, Rayagada in Sessions Case No. 19 of 1999 for commission of offence u/s 302 of the Indian Penal Code (in short 'I.P.C') and sentenced to undergo imprisonment for life has preferred this appeal. 2. The deceased Kasturi Hial and the Appellant are residents of village Kurli under Bissamcuttack Police Station. The acquitted accused persons also are residents of the same village. The deceased is the wife of P.W.4, who was working as postal employee. It is alleged that the Appellant had a desire to have physical relationship with the deceased and 4 to 5 days prior to the occurrence on 5.6.1997 the Appellant had attempted to commit rape on the deceased. He having failed in his attempt due to intervention of some of the villagers, came across another opportunity on 5.6.97 when the deceased had gone to "Kadali Dangar" of one Katu Wadaka and was standing near the mango tree locally known as "Kauchandi Mango tree" to collect mango lying on the ground. Finding her alone it is alleged that the Appellant followed her and attempted to commit rape and when the deceased struggled, both of them fell down on the field. However, when he faced tough resistance from the side of the deceased and it was not possible on the part of the Appellant to commit rape, he brutally struck her with an axe (M.O.V) on the head, neck and shoulder causing instantaneous death of the deceased at the spot. Thereafter, the Appellant left the place concealing the axe inside a nearby bush. At about 10.30 A.M. when P.W.4 returned to his house, he heard that a woman had been killed nearby the mango tree. Finding his wife absent in the house, he along with the villagers rushed to the spot and found the deceased lying dead near the mango tree in a pool of blood. At that time he learnt from P. Ws.2 and 3 that the Appellant had assaulted the deceased. Thereafter, P.W.4 and the villagers came to the house of the Appellant and being asked the Appellant confessed to have killed the deceased. At that time he learnt from P. Ws.2 and 3 that the Appellant had assaulted the deceased. Thereafter, P.W.4 and the villagers came to the house of the Appellant and being asked the Appellant confessed to have killed the deceased. The O.I.C. of Bissamcuttack Police Station, P.W.12 having received information about death of a woman in the village, came to the village and after his arrival, P.W.4 lodged an oral F.I.R. whereafter investigation was taken up and charge-sheet was filed against the Appellant alone for commission of offence u/s 302 I.P.C. The informant, P.W.4 not being satisfied with the manner of investigation filed a complaint petition before the J.M.F.C., Bissamcuttack relating to the self-same incident alleging commission of offence by eleven persons including the Appellant. The said complaint petition was registered as 1.C.C. No. 3 of 1997 and cognizance was taken. Thereafter, the G.R. case in which the Appellant had been charge-sheeted and the complaint case were tagged together and were committed to the court of session for trial. All the accused persons were charged u/s 148 of I.P.C. whereas the Appellant was separately charged u/s 302 IPC. Rest of the accused persons were charged u/s 302/149 IPC. 3. The plea of the Appellant is denial of the charge. The prosecution in order to prove the charge, examined 13 witnesses but none was examined on behalf of the defence. The trial court on the basis of evidence of the two eye-witnesses, P. Ws.2 and 3, coupled with the evidence with regard to recovery of weapon of offence and the postmortem report found the Appellant alone guilty u/s 302 I.P.C. and convicted him thereunder. The rest 10 accused persons were acquitted of the charge. 4. Assailing the impugned judgment, the learned Counsel for the Appellant drew attention of the Court to the evidence of P. Ws.2 and 3 vis-a-vis P.W.12, the I.O. According to the learned Counsel for the Appellant, the two eyewitnesses to the occurrence had developed the story in course of trial and having never stated before the police during investigation to have seen the Appellant assaulting the deceased on her neck and back, these two eyewitnesses should not have been relied upon by the trial court. It was also contended by the learned Counsel that the evidence of P. W.5, the doctor, who conducted postmortem examination rules out any possibility of assault on the deceased considering the fact that four incised wounds found on the body of the deceased could be possible due to struggle on attempt to commit rape. Apart from the above, it was also contended by the learned Counsel for the Appellant that Ext.7 clearly indicates several injuries sustained by the Appellant which have not been explained by the prosecution at all. The learned Counsel appearing for the State relied on the evidence of P. Ws.2 and 3 and submitted that these two witnesses are eyewitnesses to the occurrence. They might have developed the prosecution case to some extent, but they cannot be disbelieved entirely considering the fact that they had seen assault on the deceased by means of a kati at the hands of the Appellant. It was fairly conceded by the learned Counsel for the State that so far as the injuries on the Appellant are concerned, the prosecution has not led any evidence explaining the same. 5. The prosecution as it appears relied on the evidence of P. Ws.2 and 3, who are two eyewitnesses to the occurrence and also the evidence relating to recovery of weapon of offence at the instance of the Appellant and the postmortem report.P. Ws.2 and 3 in course of their examination in court claimed that they had seen the occurrence from a short distance and they had seen the Appellant assaulting the deceased by means of a tangia on her head, neck and back shoulder as a result of which, the deceased fell down and died. The evidence of the I.O., P.W.12 shows that P.W.2 had not stated before him to have seen the occurrence from a distance of 4 to 5 cubits and this witness had also not stated to have seen the assault on the deceased by means of a tangia giving blows on the head, neck and back of shoulder of the deceased. Similarly P.W.3 also did not state before the I.O. that he saw the incident from a distance about 5 to 6 cubits. Similarly P.W.3 also did not state before the I.O. that he saw the incident from a distance about 5 to 6 cubits. From the evidence of P.W.12, it is clear that these two eye witnesses to the occurrence have tried to develop the case of the prosecution by stating that they had seen the occurrence from a short distance and that the Appellant had assaulted the deceased on her head, neck and back of shoulder. Therefore, the evidence of these two eye witnesses cannot be entirely relied upon without any further evidence pointing at the guilt of the Appellant. P.W.5, the doctor, who conducted postmortem examination found as many as ten injuries out of which five were incised wounds. However, in cross-examination this witness has stated that injury Nos. 1 to 4, which are incised wounds could be possible due to struggle on attempt to commit rape. However, he was of the opinion that the death was homicidal because of the sharp cutting injuries appearing on the neck, scalp and shoulder of the deceased. The story of attempt to commit rape is prior to the date of occurrence and nowhere it is alleged that on the date of occurrence the Appellant attempted to commit rape. Though the prosecution has been able to prove that the Appellant had given recovery of weapon of offence, the said weapon of offence was never sent for chemical examination and therefore, in absence of any evidence, it is difficult to accept the contention of the learned Counsel for the State that the weapon seized at the instance of the Appellant is the weapon used for committing murder of the deceased. While this lacunae exists in the case of the prosecution case and this lacunae creates a doubt with regard to involvement of the Appellant in commission of the offence, we find from Ext.7 that the Appellant has sustained several injuries and the prosecution has not explained as to how the Appellant sustained such injuries. In this connection, the learned Counsel for the Appellant referred to a decision of the Apex Court in the case of Lakshmi Singh and Ors. v. State of Bihar reported in Lakshmi Singh and Others Vs. State of Bihar. In this connection, the learned Counsel for the Appellant referred to a decision of the Apex Court in the case of Lakshmi Singh and Ors. v. State of Bihar reported in Lakshmi Singh and Others Vs. State of Bihar. The Apex Court in the aforesaid decision observed that in a case of murder where the injuries sustained by the accused at the time of the occurrence or in course of altercation has not been explained, the following inferences are to be drawn. (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The prosecution having not explained the several injuries sustained by the Appellant in this case, it is guilty of suppressing the genesis and origin of the occurrence and accordingly has not presented the true version of the case. 6. In view of the discussions made above, we extend the benefit of doubt to the Appellant and acquit him of the charge. The appeal is consequently allowed and the judgment and order of the trial court passed in Sessions Case No. 19 of 1999 is set aside. It is stated at the Bar that the Appellant is in custody. If that be so, the Appellant be set at liberty forthwith, unless his detention is required in any other case.