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2009 DIGILAW 223 (ORI)

Purna Pradhan v. State of Orissa`

2009-03-18

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT PRADIP MOHANTY, J. — The appellant having been convicted for commission of offence under Section 302 I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs.2000/- in de¬fault to R.I. for six months by the learned Additional Sessions Judge, Talcher in S.T. Case No.14/2003, has preferred this ap¬peal. 2. The case of the prosecution is that the deceased Ugre¬sen had taken some contract work from the Block along with the accused and three others. On 11.12.2002 there was a village meeting concerning payment of money among the members of the group at the instance of accused-appellant Purna Pradhan. During course of discussion in the meeting, the accused-appellant got annoyed and threatened the deceased and other members of the group to kill one by one accusing misappropriation of money. At about 6 P.M. on that date, the deceased was going to village Baghabaspur for arranging labourers. While he was passing through the house of one Bajia Behera of his village, the accused-appel¬lant all of a sudden coming from the darkness holding a knife brutally assaulted him causing injuries on his hand, shoulder, face and throat. Due to cutting of his throat, there was profuse bleeding. He was immediately removed to Angul Hospital where the doctor referred him to S.C.B. Medical College & Hospital, Cut¬tack. During course of treatment at S.C.B. Medical College & Hospital, Cuttack the deceased died. After returning from Cuttack, the son of the deceased lodged the report on 12.12.2002 at about 6 A.M. After completion of investigation, charge-sheet was filed against the accused-appellant under Section 302 I.P.C. 3. The plea of the appellant was denial of the prosecution case. 4. In order to prove its case, prosecution examined as many as eighteen witnesses including the doctor and I.O. and exhibited ten documents, whereas defence examined one witness on its behalf. 5. Learned Additional Sessions Judge, Talcher who tried the case by his judgment dated 08.09.2004 convicted and sentenced the appellant as stated hereinbefore with a finding that the accused-appellant caused injury on the neck, throat and face of the deceased with the intention to kill him. 5. Mr. Routray, learned counsel for the appellant assails the impugned judgment on the following ground - (i) P.W. 9 the so-called only eye-witness to the occurrence is aged about 63 years. 5. Mr. Routray, learned counsel for the appellant assails the impugned judgment on the following ground - (i) P.W. 9 the so-called only eye-witness to the occurrence is aged about 63 years. She was at a distance of 100 to 120 feets from the spot and it was dark. She also admitted in her cross-examination that she has low vision on the ground of her age. Therefore, it cannot be said that she had actually seen the incident and her version cannot be accepted. (ii) Recovery of the weapon of the offence at the instance of the appellant has not been proved by the prosecution inasmuch as P.W.12, the witness to the seizure of the weapon has stated that police showed him a knife saying that it was recovered at the instance of the appellant. (iii) P.Ws. 11, 14 and 15 have not supported the prosecution case. (iv) P.W.3 the son of the deceased, is a post occurrence witness. Moreover, he being related to the deceased, no reliance can be placed on his evidence. (v) The prosecution has failed to prove that the appellant had the intention to kill the deceased. 6. Mr. Mohapatra, learned Additional Standing counsel vehemently contended that the evidence of P.W.9, who is the eye-witness to the occurrence, is very clear and cogent. She has vividly described as to how the incident took place. Her evidence also gets ample corroboration from P.Ws.1 and 3. P.W.14, who is a witness to the recovery of the weapon of the offence, has stated that the accused-appellant led the police to the spot and gave recovery of a knife. Moreover, the deceased had made a dying declaration before his son (P.W.3). In view of such clear and clinching evidence, the trial Court has rightly convicted the appellant and there is no reason to interfere with the impugned judgment. 7. P.Ws.1 and 2 are co-villagers who turned hostile to the prosecution and were permitted to be cross-examined by the Public Prosecutor. Nothing has been elicited from them during such cross-examination. P.W.3, the son of the deceased, is the inform¬ant. He stated that Megha Behera (P.W.1) came to his house and told that accused-appellant had assaulted his father (deceased) and his father was lying near the house of Bajia Behera. thereaf¬ter he rushed to the spot and saw Bilasini Bhutia giving water to the deceased. P.W.3, the son of the deceased, is the inform¬ant. He stated that Megha Behera (P.W.1) came to his house and told that accused-appellant had assaulted his father (deceased) and his father was lying near the house of Bajia Behera. thereaf¬ter he rushed to the spot and saw Bilasini Bhutia giving water to the deceased. He shifted the deceased to the District Head-quarters Hospital, Angul. He also stated that on being asked by him, his father told that the accused-appellant had assaulted him. P.W.4 is a witness to the seizure of blood-stained earth. P.W.5 is also a witness to the seizure. P.W.6 is another co-villager, who stated that Megha Behera was proceeding towards the house of the deceased Ugresen by shouting that the appellant had assaulted the deceased near the house of Kalabati. P.W.7 is the father of the deceased. He stated that on 16.12.2002 Megha Behera came to his house and told that the appellant had cut the throat of the deceased. He went to the spot and asked the deceased who disclosed before him that the appellant had cut his throat. Thereafter, he shifted the deceased to Angul Hospital wherefrom the deceased was referred to the S.C.B. Medical College and Hospital, Cuttack. P.W.8 is a co-villager who is a post-occur¬rence witness. He stated that after hearing the shouts of Megha Behera, he rushed to the spot and saw deceased in a sitting position covering his throat by a Sal. There was bleeding from his throat. Thereafter, the deceased was shifted to Angul Hospi¬tal. P.W.9 is an eye-witness to the occurrence. He stated in her deposition that the appellant cut the throat of the deceased by a small katari and there was profuse bleeding from throat of the deceased due to such cut injury. Bilasini gave water to the deceased. Megha Behera (P.W.1) went to give information to the family members of the deceased. In cross-examination she admitted that she had low vision on account of her age. She also admitted that the house of Bilasini is located near the house of Bajia. House of Bula Behera is at a considerable distance from her house and house of Megha is in between her house and the house of Bajia. There is a field in between her house and the house of Megha. She also admitted that after hearing the hullah made by the small children, she went to the spot. House of Bula Behera is at a considerable distance from her house and house of Megha is in between her house and the house of Bajia. There is a field in between her house and the house of Megha. She also admitted that after hearing the hullah made by the small children, she went to the spot. P.W.10 is the wife of the deceased and a post-occurrence witness. She stated that she heard the incident from Megha Behera. Then she proceeded to the spot and found bleeding injury on the throat of the deceased. P.Ws.11, 14 & 15 are the co-villagers who turned hostile. P.W.12 is another post-occurrence witness who corroborated the statement of P.W.10 and proved the seizure list Ext.3. P.W.13 is a witness to the inquest. P.W.16 is the I.O. P.W.17 is the Professor and the Head of the Dept. of E.N.T. Department, S.C.B. Medical Col¬lege and Hospital, Cuttack who conducted autopsy and found fol¬lowing external & internal injuries. (i) cut wound of size 6 cm. X 0.25 cm X skin deep situated transversely over the chin. The wound margins were looking clear cut and regular. (ii) cut wound of size 3 cm X 1 cm X whole thickness of Pina of left ear extending from a point below the antetragus up to mid point of healix. It had involved the whole thickness cutting the cartilage of pina of left ear. The wound margins were looking clear cut and regular. (iii) cut wound of size 11 cm X 2.5 cm on extended neck X 2.5 cm deep situated transversely on the front of the neck just above the upper border of thyroid cartilage being directed from right to left. The martins of the wound were looking regular and clear cut and clotted blood found adhere to the left side of the wound. No hesitation cuts detected. (iv) cut wounds of size 6 cm X 1.5 cm on the extended neck X 1.5 cm deep situated in front of the neck just 1.5 cm below the external injury No.3. No hesitation cuts detected. (v) superficial cut wounds of size 2 cm X 0.2 cm X part thick¬ness of skin associated with an extended tailing from it’s right lower and situated obliquely on the front the chest below the root of the neck extending from the lower border of shpra sternal notch down words and to the right. No hesitation cuts detected. (v) superficial cut wounds of size 2 cm X 0.2 cm X part thick¬ness of skin associated with an extended tailing from it’s right lower and situated obliquely on the front the chest below the root of the neck extending from the lower border of shpra sternal notch down words and to the right. (vi) Superficial cut wounds spinde shape regular and clean cut margin of size 2.5. cm x 0.5 cmx skin deep situated on the ulnar border of left fore arm 2 cm above the ulnartuberosity. (vii) Cut wounds of size 3 cm x 0.5. cm x 1.5 deep situated on the interdigital space of left hand between the thumb and the index finger. The wound marginas were regular and clean cut. (viii) Superficial cut of 1 cm long involved in part thickness of skin situated obliquely on the palmer aspects of right thumb just above the distal erase. (ix) Corresponding to the external injury no.i, the wound had only involved the skin and subcutaneous tissue but not the under lying mandible bone. (x) Corresponding to external injury no.iii the left side ster¬nomastoid muscle alongwith left juglarvein were cut. The upper border of lamina of thyroid cartilage were cut. The muscle of left side and right side of larynx were cut. There was collection of clotted blood found adherence to the muscles of neck and infiltrated into the muscles. The wound had traversed deep to be limited on the interior surface of oesophageous. (xi) Corresponding to external injury no.iv, the wound had cut the first tracheal ring completely detaching the larynx from the trachea and had limited to the interior surface of the oesopha¬geous. Blood clots were found inside the larynx and trachea. (xii) Corresponding to external injury no.viii the wound had cut the interdigital muscles of left hand along with interdigital vessels. He opined that all the injuries were ante-mortem in nature and could have been caused by any heavy or moderately heavy cutting weapon. 8. Defence has examined one witness, namely, Bajia Behera, a co-villager in front of whose house the occurrence took place. He stated that he went to the spot where some children told him that somebody had killed the deceased and fled away. He specifi¬cally stated that Kalabati’s house is situated at a distance of about 100 to 150 fts from the spot and there were houses in between. He stated that he went to the spot where some children told him that somebody had killed the deceased and fled away. He specifi¬cally stated that Kalabati’s house is situated at a distance of about 100 to 150 fts from the spot and there were houses in between. 9. Perused the L.C.R. On scrutinizing the evidence of the prosecution and defence witnesses, it is crystal clear that P.W.9 is not an eye witness to the occurrence. She admitted that it was evening. In cross-examination she also admitted that hearing the hulla of small children about the incident she went to the spot, but she was not in a position to say the names of those children. D.W.1 stated that the house of P.W.9 is situated at a distance of 100 to 150 fts. from the spot and the occurrence took place in the month of December at about 6.00 P.M. P.W.9 also admitted that there was darkness when the incident happened. Megha Behera (P.W.1), who is a material witness and hearing from whom about the incident P.Ws.3 and 10 allegedly rushed to the spot, has turned hostile. After scrutinizing the evidence of P.Ws.1, 3, 6, 9 and 10, it is crystal clear that all the witnesses are post occurrence witnesses and nobody has seen the occurrence. So far as the dying declaration is concerned, P.W.3 stated in his evi¬dence that the deceased disclosed before him that the appellant had cut his throat. But he had not disclosed this fact in his statement recorded under 161, Cr.P.C. The I.O. (P.W.16) also admitted the above fact. P.W.7 has also stated about the dying declaration. But he too had not stated before the I.O. that the deceased told in a slow voice that the accused had cut his throat. Therefore, both the witnesses are not believable and they have developed the story. So far as leading to discovery is concerned, P.W.12, the seizure witness, proved Exts.3 and 4 but at the same time he admitted in his cross-examination that in the police station his signature was taken after the police officer had told him that the knife had been seized from the appellant. In view of the above, it cannot be said that the prosecution has proved the seizure list (Exts.3 and 4) and the disclosure state¬ment made by the appellant (Ext.4) beyond reasonable doubt. 10. In view of the above, it cannot be said that the prosecution has proved the seizure list (Exts.3 and 4) and the disclosure state¬ment made by the appellant (Ext.4) beyond reasonable doubt. 10. From the aforesaid discussion, it is clear that the prosecution has failed to prove the ingredients of Section 302, I.P.C. against the appellant. Therefore, the order of conviction passed by the Additional Sessions Judge, Talcher is set aside and the appellant is acquitted of the charge. He be released from custo¬dy, if his detention is not required in connection with any other case. 11. The Criminal appeal is allowed accordingly. L. MOHAPATRA, J. I agree. Appeal allowed.