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2009 DIGILAW 662 (ORI)

GANDHA MOHARANA v. STATE OF ORISSA

2009-08-26

A.S.NAIDU, S.C.PARIJA

body2009
JUDGMENT : A.S. Naidu, J. - The judgment and order of conviction dated 1.2.2002 passed by learned Sessions Judge, Mayurbhanj-Baripada, camp at Karanjia convicting the Appellants under Sections 302/34, IPC and sentencing them to undergo rigorous imprisonment for life in S.T. Case No. 184 of 1999, is assailed in this Criminal Appeal. 2. Shorn of unnecessary details, the prosecution case, in short, is that on 6.5.1999 at about 8 A.M. Madha Behera and his wife Rangadei Behera had gone to Satakosia weekly market to sell earthen pot. They returned from the market at about 5. 30 P.M. after purchasing certain household articles. The cousin brother of the deceased and his wife Sujuni Behera had also gone to the market and met them on way back to their house near Duarshuni crossing. The villagers like Gandha Maharana, Sura Maharana, Sambaria Naik (P.W. 5) and Suryo Ho were also returning to the village and all of them met at the crossing. According to the informant, he felt thirsty and went with Harekrushna (P.W. 2) and other family members to the nearby tube well to drink water. Thereafter, they proceeded to the village. On the way he also met his sister-in-law, who enquired about his brother. They waited a while so that his brother Madha would return to the spot, but Madha did not return for quite some time. While the matter stood thus, Surya Ho was found returning to the village in his bicycle. Sambaria Naik (P.W. 5) gave 4 kgs. of rice to the informant at the weekly market with a request to hand over the same in his house. At about 9 P.M. Sambaria Naik came to the house of the informant and enquired about the rice. The informant asked him about the whereabouts of his brother Madha, but he did not answer. In the next morning, the informant on the way found his sister-in-law and her daughter going towards Duarshuni with cooked rice. On being asked, his sister-in-law told him that her husband Madha did not return to the house at night and they were going in search of him. Thereafter, the informant in his bicycle proceeded through the forest road. On the way, he found his brother Madha lying dead on the road, He noticed that blood was oozing from his nose and mouth and there were also marks of injuries on his forehead. Thereafter, the informant in his bicycle proceeded through the forest road. On the way, he found his brother Madha lying dead on the road, He noticed that blood was oozing from his nose and mouth and there were also marks of injuries on his forehead. He returned and informed the fact to his sister-in-law. Thereafter, some of the gentlemen of the village came to the spot and guarded the dead body and the matter was reported at the police station. In the F. I. R, it is further stated that Madha had some disputes with Qandha Maharana, but then he same was. compromised in Court. He suspected that Gandha Maharana and his brother, who went with Madha on the previous day evening to drink 'Handia' while returning from the weekly market had assaulted his brother Madha. On the basis of the information received, a police case was registered and investigation commenced. During the investigation, the garments of the deceased were seized, inquest was conducted over the dead body, which was sent for post mortem and after completing other paraphernalias, charge-sheet was submitted against both the accused in G. R. Case No. 152 of 1999. After taking cognizance of the offence, the case was committed to the Court of Session for trial. 3. The plea taken by the defence was of complete denial. In the statement recorded u/s 313, Code of Criminal Procedure, it was further averred that taking advantage of previous enmity, false case has been foisted. 4. The prosecution in order to substantiate their case got examined 12 witnesses. P.W. 1 is the informant. P.W. 3 came to know from P.W. 1 about the incident. P.W. 4 asserts that he has seen the occurrence. P.W. 5 saw Madha in the company of the accused. P.W. 6 saw the deceased and the accused persons together. P.W. 7, the widow deposed about presence of the accused persons near the road crossing. P.W. 8 is the constable, who accompanied the dead body. P.W. 9 is the Gramarakht. P.W. 10 is the doctor, who conducted autopsy, P.W. 11 is the C. I. of Police, who seized the wearing apparels and submitted charge-sheet, P.W. 12 is the O.l.C. who had received the F.I.R. and conducted preliminary examination and had seized a pair of chapals of the deceased from the spot. 5. P.W. 9 is the Gramarakht. P.W. 10 is the doctor, who conducted autopsy, P.W. 11 is the C. I. of Police, who seized the wearing apparels and submitted charge-sheet, P.W. 12 is the O.l.C. who had received the F.I.R. and conducted preliminary examination and had seized a pair of chapals of the deceased from the spot. 5. Learned Sessions Judge after discussing the evidence threadbare arrived at a conclusion that the prosecution was able to prove that in furtherance of common intention, both the accused persons assaulted Madha brutally thereby causing his death. Each of the accused persons were found guilty and were convicted for commission of offence u/s 302/34, IPC. 6. The said judgment and order of conviction is assailed by the Appellant mainly on the ground that the conclusions arrived at are mostly based on surmises and conjectures and not on cogent evidence. The evidence of the so-called eye witnesses inspires no confidence. The main basis of conviction being circumstantial evidence and as there are number of discrepancies in the deposition of P.Ws. 1, 2, 5 and 7, learned Sessions Judge acted illegally in basing the conviction on the strength of such evidence. The story of last seen theory cannot be believed and was not proved beyond all reasonable doubt. In short, it is submitted that the evidence adduced by the prosecution is highly suspicious and the judgment and order of conviction suffers from the vice of improper consideration and analysis of the evidence and the same needs to be interfered with. 7. All these submissions are strongly repudiated by learned Counsel for the State. According to learned Addl. Standing Counsel, the evidence of P.Ws. 1, 2 and 7 are very cogent. That apart, P.W. 5 is an eye witness to the occurrence and his evidence was not shaken in cross-examination. According to learned Counsel for the State, learned Sessions Judge has considered the evidence in proper perspective and the conclusions arrived at are just and proper. 8. Heard learned Counsel for the parties at length. Perused the entire evidence both oral and documentary meticulously. It appears that P.Ws. 1, 2 and 5 had been to Satakosia weekly market. In the evening while they were returning home, they halted at Duarshuni crossing where they found Madha (deceased) with his wife and the two Appellants. Madha and the two Appellants went to drink 'Handia' and Ors. returned back home. It appears that P.Ws. 1, 2 and 5 had been to Satakosia weekly market. In the evening while they were returning home, they halted at Duarshuni crossing where they found Madha (deceased) with his wife and the two Appellants. Madha and the two Appellants went to drink 'Handia' and Ors. returned back home. On the next day morning P.W. 1 found the dead body of Madha with bleeding injury on head and mouth lying on the jungle road. Thus, it appears that the aforesaid witness saw Madha in the company of the accused persons near Duarshuni crossing for the last time. P.Ws. 3, 5 and 6 deposed about previous enmity between Madha and the two accused persons. According to P.W. 5, the accused persons along with Madha and Ors. took 'Handa' (liquor) near Duarshuni crossing. In his deposition, he has stated as follows: xx x I saw the accused persons assaulting the deceased with first blows and kicks by making him to lie on the ground. This happened near Kantipani Chapal. The accused persons were giving threat by assaulting the deceased as to how many cases were to be started against them. Though this witness was cross-examined at length, nothing could be elicited from him to disbelieve the statement made in examination in chief. P.W. 4 is Anr. witness before whom P.W. 5 had disclosed about the incident on the night of occurrence. P.W. 7 had also seen Madha in the company of the accused persons before his death. 9. A cumulative assessment of all these evidence coupled with seizure of chapal of the accused persons leads to a conclusion that the two accused persons had assaulted Madha on the night of occurrence. The medical evidence and the post mortem report reveals that the cause of death was due to extradural haematoma and injury to vital organs like heart and lung and the same is homicidal in nature. Thus, it appears that there is no missing link in the entire chain of circumstances pointing finger at the two accused persons. The five golden principles relating to appreciation of circumstantial evidence being. (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances must or should and not may be established. Thus, it appears that there is no missing link in the entire chain of circumstances pointing finger at the two accused persons. The five golden principles relating to appreciation of circumstantial evidence being. (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances must or should and not may be established. (ii) the facts 90 established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iv) the circumstances should be of a conclusive nature and tendency. (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. are satisfied in the case in hand. 10. The discussions made above, leads no room of doubt with regard to the involvement of the accused persons in the alleged crime. We, therefore, have no hesitation to confirm the findings arrived at by the learned Sessions judge. 11. However, it appears that civil disputes were pending between the accused persons and Madha (deceased) since long. Some of the cases were compromised. Be that as it may, ill-feeling between the parties was not extinguished. On the given date, both the accused persons as well as the informant while returning from the weekly market went together to take 'Handia' (liquor) and as it is always said, a drunkard loses raionality. It appears, in a drunken state, the old vengeance again bubbled, out, leading to the assault. None of the witnesses have, come forward with a case that the accused persons had any premeditated intention to murder Madha, On the other hand, they returned back and out of his own volition, Madha accompanied the two accused persons and took liquor along with them. That apart, the post mortem report clearly reveals that no weapon was used. From the above circumstances, it is clear that the Appellants had no intention to kill the deceased and in a drunken state they lost their balance of mind and assaulted the deceased by means of kick and fist blows. That apart, the post mortem report clearly reveals that no weapon was used. From the above circumstances, it is clear that the Appellants had no intention to kill the deceased and in a drunken state they lost their balance of mind and assaulted the deceased by means of kick and fist blows. We are therefore of the view that the Appellants should have been convicted for commission of offence u/s 304, Part-II IPC in stead of Section 302, IPC. 12. Accordingly, the impugned judgment convicting the Appellants u/s 302,I.P.C. is set aside and they are convicted for commission of offence u/s 304, Part-II, I.P.C. and sentenced to undergo rigorous imprisonment for a period of eight years and pay a fine of Rs. 2,000/- (two thousand) in default to undergo further imprisonment of two months. It is stated at the bar that the accused persons have already remained in custody for more than seven years. If that be so, the period of imprisonment already undergone by them shall be treated as set off. 13. With the aforesaid modification of sentence, the appeal is allowed in-part. S.C. Parija, J. 14. I agree.