Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 55 (ORI)

STATE v. BHUNDA ` MANGAL SARDAR

2009-01-21

P.K.TRIPATHY, SANJU PANDA

body2009
JUDGMENT : 1. Heard and the judgment is as follows: The Respondent faced trial in S.T. Case No. 92 of 1991 in the Court of the Sessions Judge, Keonjhar on the allegations that on 13.6.1991 in Nimatandi Sahi, he committed murder of Birabar Mahanta, the deceased in this case, by dealing axe blows and causing injuries on his head. 2. To substantiate the charge u/s 302, Indian Penal Code prosecution relied on the circumstantial evidence that (i) the accused had a grudge against the deceased for the latter refusing to part with his ration card (of essential commodities), (ii) on the date of occurrence while the deceased was tending cattle near the house of the accused, the latter called the former to his house, (iii) some time after going into the house of the accused, the deceased shouted for help and witnesses rushing to the spot saw the accused running away with the axe M.O.I and the deceased lying injured with bleeding from the head, (iv) the accused went and confined himself in the house of his brother-in-law Hiralal Sardar and did not respond to the call of the villagers or the witnesses and it is only the police, after their arrival, could bring him out of the room, (v) the accused was possessing the weapon of offence, i.e., M.O.I, till then and it was seized from his possession, (vi) his wearing apparel such as towel stained with blood together with blood-stained earth, sample earth and bloodstained clothing of the deceased were sent for chemical examination and serological test to trace origin and the group of the blood, (vii) the blood group of the accused is 'B' whereas blood group of deceased is 'O' and from the seized blood-stained articles including napkin of the accused 'O' group blood was found, (viii) the deceased made dying declaration before witnesses, viz., his father Chandra Mohan Mahanta (P.W.4) and Suratha Chandra Mahanta (P.W.6), (ix) the doctor (P.W.10) while conducting autopsy on the dead body of the deceased opined that the deceased suffered homicidal death due to ante-mortem injuries. 3. In all, prosecution examined ten witnesses to prove the aforesaid facts and circumstances. Amongst them, P.W. 9 is Dr. Usharani Das who attended to the deceased as a patient and P.W. 10 is Dr. Sudhiranjan Dash who conducted the post-mortem examination and proved the post-mortem report Ext. 18 besides the opinion report Ext. 19. 3. In all, prosecution examined ten witnesses to prove the aforesaid facts and circumstances. Amongst them, P.W. 9 is Dr. Usharani Das who attended to the deceased as a patient and P.W. 10 is Dr. Sudhiranjan Dash who conducted the post-mortem examination and proved the post-mortem report Ext. 18 besides the opinion report Ext. 19. P.W. 1 is the informant. P. Ws.1 to 6 are the witnesses to the aforesaid facts and circumstances as well as the deceased entering into the house of the accused and sustaining injuries there and the accused running away and from his possession the weapon of offence being recovered together with blood-stained cloth. P. Ws 7 and 8 are two police officers who participated in the investigation. 4. On analysis of the evidence, Learned Sessions Judge recorded the findings that the deceased suffered homicidal death due to the ante-mortem injuries. Such finding is not disputed by either of the parties while making their submissions in this forum. On perusal of the relevant evidence, as noted above, we also record the finding that the prosecution has proved beyond all reasonable doubt that the deceased suffered homicidal death due to the ante-mortem injuries which were sufficient to cause death in the ordinary course of life. 5. Learned Sessions Judge discarded the evidence of P. Ws. 4 and 6 about the dying declaration made by the deceased. In that respect, he referred to the evidence of P. Ws. 1, 2 and 3 and stated that after sustaining the injuries the deceased became unconscious and therefore he could not have made dying declaration. The view expressed by the Trial Court in the above manner does not suffer from illegality or perversity. Therefore, notwithstanding the argument of the Learned Standing Counsel, we do not disturb that finding of the Trial Court. 6. Learned Sessions Judge recorded the finding that when the accused was inside the house of Hiralal Sardar together with the weapon of offence and till opening of the door he was possessing that axe and that is how it was seized by the Investigating Officer from him, thus the concept of leading to discovery as provided in Section 27 of the Evidence Act is totally absent and therefore a case of leading to discovery is not made out by the prosecution. With all fairness, Mr A.K. Mishra, Learned Standing Counsel, concedes to the reasoning and finding recorded by the Trial Court. In other words, evidence u/s 27 of the Evidence Act is not available to the prosecution. 7. Learned Standing Counsel argues that even by eliminating the aforesaid two circumstantial evidence, the evidence on record are ample to unfailingly prove that it is the Respondent and none else who was the author of the death of the deceased. In that respect, Mr. 'Mishra draws our attention to the evidence of P.W. 2 wherein he has stated that under the Neem tree he heard the accused calling the deceased and saw the latter entering into the house of the accused. He further argues that Ext. 6 indicates that the blood group of the deceased was 'O' and blood stains of said group were found from the towel of the accused. Notwithstanding the fact that according to the report of the doctor Ext. 14 the blood group of the accused is 'B', that circumstance circumstantially supports the prosecution case that the accused is the author of the crime. He further argues that all the witnesses have seen the deceased entering into the house of the accused and thereafter the accused running away with the axe and the deceased lying injured in the premises of the accused. According to him, these three circumstances conjointly are sufficient to conclude that it is the accused and none else who committed the murder of the deceased. 8. Learned Counsel for the Respondent, on the other hand, argues that the circumstances relating to the accused having 'B' group of blood and 'O' group of blood having been detected from his towel or the accused called the deceased and in response to that, the latter entered into the house of the former, are not confronted to the accused in course of his examination u/s 313, Code of Criminal Procedure. He further argues that the report of the Serologist was not at all confronted to the accused. According to Learned Counsel for the Respondent, those incriminating evidence, if applied against the Respondent, would go to prove the charge against him and therefore such incriminating evidence cannot be utilized against him without providing him an opportunity to explain. He further argues that the circumstances as argued by the Learned Standing Counsel are not sufficient to complete the chain of circumstances. He further argues that the circumstances as argued by the Learned Standing Counsel are not sufficient to complete the chain of circumstances. He also argues that the occurrence took place in the year 1991 and in the year 2009 a remand for re-trial of the case to patch up the aforesaid lacunae of the prosecution should not be allowed, when the accused who was in his fifties during the course of the trial has already gone to the 60+ age in the meantime. Accordingly, Learned Counsel for the Respondent argues to uphold the order of acquittal. 9. Regard being had to the aforesaid facts and submissions, indeed, we find that the Trial Court has not confronted the relevant and incriminating evidence to the accused. Non-confrontation of such material evidence has definitely prejudiced him because he could have offered explanation and that he could not offer because those questions were not put to him. In the case of Ajay Singh Vs. State of Maharashtra it has been propounded by the Apex Court that in such a case the benefit should go in favour of the accused. Therefore, on due consideration of the all the facts and circumstances and the submissions of the Learned Counsel for the Respondent, as noted above, we do not feel it proper to interfere with the impugned order of acquittal or to remand the case for re-trial at this belated stage. Accordingly, the Government Appeal is dismissed. Final Result : Dismissed