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2009 DIGILAW 516 (ORI)

STATE OF ORISSA v. LENGU SANTA

2009-07-16

A.S.NAIDU, J.S.C.PARIJA

body2009
JUDGMENT : S.C. Parija, J. - This Government Appeal has been filed by the State of Orissa, assailing judgment dated 10.04.1996 passed by the Sessions Judge, Koraput Jeypore, in Sessions Case No. 136 of 1995, holding the accused-Respondent not guilty of the charge u/s 302 I.P.C. & accordingly acquitting him. 2. The case of the prosecution in brief, is that the brother of the deceased Nilasa Santa had lodged FIR on 28.12.1994 in the evening stating that his sister was married to the accused ten years back. On 27.12.1994 at noon time, he received information about the death of his sister by cutting of her throat. So he with some villagers came to his sister's house & found her lying dead & the dead body was covered with a bed sheet. Her throat had been cut. On being asked, the accused told that last night (26.12.1994), he was sleeping in the house of his elder brother & his wife (deceased) was sleeping with her two daughters. At night, thief entered into the house, cut her throat & stole cash. Being asked as to why he did not report the matter at the Police Station, he replied that in that case the police would have arrested him. He (accused) requested to settle the matter in the village. The informant became suspicious & called his nephew Hari (son of the deceased) & asked him about the matter & he stated that last night he was sleeping in the house of his Aunt & his two sisters were in the house of his elder father & his parents were sleeping together in their house. At mid-night, his father shouted & he got up & found his father shouting "Chor, Chor" by remaining inside the house & his mother was covered with a bed sheet. Hearing this, the informant asked the villagers to report the matter to the Police Station & returned to his village to call the Ward Member & the Headman. On 28.12.1994, he returned to the village of the accused & found that the matter had not been reported to the police. So he went to the Police Station & on the way he met Dalapati and asked him to guard the dead body, as he is going to report the matter to the Police Station. On 28.12.1994, he returned to the village of the accused & found that the matter had not been reported to the police. So he went to the Police Station & on the way he met Dalapati and asked him to guard the dead body, as he is going to report the matter to the Police Station. Thereafter, the police arrived & the informant lodged the FIR orally, which reduced into writing at 7.30 P.M. The police took up investigation & found a Sindhi-hole on the wall of the room where the deceased was lying. The dead body was sent for post-mortem examination & the accused was taken into custody. While in police custody, the accused gave recovery of the blood stained Kati, one Iron rod used for making a hole on the wall & his blood-stained clothes which were seized. The seized articles were sent for chemical examination. On completion of the investigation, the police submitted the Charge Sheet against the accused for commission of the offence u/s 302 Indian Penal Code. 3. P.W. 4 is a man belonging to the village of the informant (P.W.1). He stated in his evidence that at first he came to the house of the accused on 28.12.1994 & seeing the dead body & talking with the accused, he returned back to his own village. Next date, i.e. on 29.12.1994, he again came to the village of the accused & the police came & the FIR was lodged. The police arrested the accused. This evidence of P.W. 4 suggests that the police arrested the accused on 29.12.1994 & while in police custody, the accused gave recovery of one blood-stained Kati, which was recovered from the cow-dung pit in his back-yard, one Iron rod from the Attu of his house and one blood-stained shirt and two aluminium pots from the house of his brother and the same were seized. P.W. 4 proved the Kati (M.O.I), the Iron rod (M.O.II) & the seized shirt (M.O.III). 4. In his cross-examination, P.W. 4 stated that after recovery of the articles, the informant (P.W.1) signed on the FIR, He categorically stated that the articles were recovered on Wednesday in the after noon before sun set. The informant (P.W.1) signed on the FIR at noon time on 28.12.1994. He again stated that he & P.W. 1 signed on the FIR after the seizure of the articles. 5. The informant (P.W.1) signed on the FIR at noon time on 28.12.1994. He again stated that he & P.W. 1 signed on the FIR after the seizure of the articles. 5. P.W. 5 in his evidence stated that while the accused was In police custody, one Kati was recovered from the cow-dung pit, Iron road from the Attu of his house pursuant to his discloser made by the accused. He however denies recovery of any blood-stained shirt pursuant to the disclosure statement of the accused. In his cross-examination, P.W. 5 stated that on the following day (27.12.1994), the police came to their village & on that day, the police seized the Kati & the Iron rod. 6. P.W. 6 is the police constable, who stated that there was a Sindhi hole on the wall of that room & the house hold articles were lying scattered inside the room & out side it. P.W. 7 is the A.S.I. of Police, who drew up the FIR at the spot. He stated in his evidence that he reached the spot at about 7.15 P.M. & found a Sindhi-hole on the wall. He stated that the accused was present in his house & on being asked, he (accused) told that the thieves cut the throat & fled away. He thereafter enquired from the villagers & from the informant (P.W.1) & then drew up the FIR. 7. P.W. 8 is the Officer-in-Charge, who stated in his evidence that on 29.12.1994, he took charge of the investigation from P.W. 7 & at about 12 noon, he arrested the accused. He further stated that while in custody, the accused gave recovery of the Kati, used for cutting the throat, the Iron rod, used for making the Sindhi-hole & his wearing blood-stained shirt, which were recovered & seized. P.W. 8 proved the Kati as M.O.I. 8. P.W. 9, who is the Circle Inspector of Police, took charge of the investigation from P.W. 8 on 30.12.1994 & seized the wearing apparels of the deceased. The blood-stained shirt of the accused, the blood-stained Kati, the blood stained Sari of the deceased, sample earth and blood stained earth and the bed sheet were sent for chemical examination. The report of the Chemical Examiner (Ext. 18) revealed that the shirt of the accused, Kati and Sari of the deceased were stained with human blood of Group 'B'. 9. The report of the Chemical Examiner (Ext. 18) revealed that the shirt of the accused, Kati and Sari of the deceased were stained with human blood of Group 'B'. 9. On an analysis of the evidence on record, Learned Sessions Judge, came to find that the statement of the brother of the accused & his son does not establish that the accused was sleeping in the house with his wife on the fateful night. Learned Sessions Judge further found from the evidence of the witnesses that they differ as to when the FIR was lodged & when the recovery was made pursuant to the disclosure made by the accused. He further found that there is clear evidence of the witnesses that the articles, i.e., Kati, Iron rod & the blood-stained shirt were seized pursuant to the disclosure made by the accused before sun set & during that night, the FIR was scribed. This shows that the accused was not arrested when the recovery was made, as by then, the FIR had not been lodged. Learned Sessions Judge further found that the blood-stains found on the Kati & the wearing shirt of the accused & the blood sample of the accused was not taken & examined to prove that the Kati & the shirt were not stained with the blood of the accused. In the absence of any other clear, cogent & unimpeachable evidence to establish the involvement of the accused in the alleged offence Learned Sessions Judge proceeded to hold that the prosecution has failed to establish the charge & accordingly found the accused not guilty of the charge u/s 302 Indian Penal Code & acquitted him. 10. On a perusal of the evidence we find that there are inherent discrepancies & contradictions in the evidence of P.W. 1 & P.W. 4 with regard to the date & time of lodging of the F.I.R., the arrest of the accused & the alleged disclosure made by the accused leading to discovery of the seized articles. Moreover the possibility of thieves entering the house, cutting the throat of the deceased & escaping with valuables cannot be discarded, especially when the witnesses have stated that they found a Sindhi hole on the wall & articles were lying scattered inside the room & outside it. 11. Moreover the possibility of thieves entering the house, cutting the throat of the deceased & escaping with valuables cannot be discarded, especially when the witnesses have stated that they found a Sindhi hole on the wall & articles were lying scattered inside the room & outside it. 11. Considering the evidence on record vis-?-vis the findings of the Learned Sessions Judge & the basis on which the same has been arrived at, no impropriety or illegality can be said to have been committed by the Learned Sessions Judge in recording the finding of acquittal, so as to warrant any interference by this Court. 12. The Government Appeal is accordingly dismissed. A.S. Naidu, J. 13. I agree. Appeal dismissed. Final Result : Dismissed