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2009 DIGILAW 774 (ORI)

DHARAMU SAHU v. STATE OF ORISSA

2009-10-13

A.S.NAIDU, S.K.MISHRA

body2009
JUDGMENT : A.S. Naidu, J. - Accused-Dharamu Sahu faced trial on the allegation that he has committed murder of one Binod Behera on 13th December, 1994 evening at about 6.00 P.M. at Bhairabisahi of Talcher town. Learned Sessions Judge, Dhenkanal-Angul, Angul by his judgment and order of conviction dated 19.7.1997 passed in S.T.No. 45A of 1995 found the Appellant guilty u/s 302 of the Indian Penal Code, in short, 'IPC, convicted him thereunder and sentenced him to undergo R.I. for life. The said judgment and order of conviction is assailed in this appeal. 2. The prosecution case, bereft of all unnecessary details is as follows: Binod Behera was working as a Labourer in Thermal Power Station. On 13.12.1994 at about 6.00 P.M. he left his house to attend the night shift in the power station. Soon thereafter, he returned home holding his neck and informed his uncle, P.W.1 that accused Dharamu stabbed him on his neck. It is further alleged that the informant caught hold of Binod, who sat down on the ground and noticed that there was heavy bleeding from the neck. Binod became senseless. Soon thereafter, the informant, Rajendra Bhutia (not examined), Keshab Bhutia (P.W.6) and Gagan Bhutia (not examined) and Ors. carried Binod to Talcher Hospital. At about 7.00 P.M. they reached at the hospital. The doctor after examining Binod, declared him dead. From the hospital, the informant returned to Talcher police station and lodged the F.I.R. On the basis of the said F.I.R., Talcher P.S.Case No. 139 of 1994 was registered. In the F.I.R. it was further alleged that accused Dharamu Sahu had previous enmity with Binod and he avenged his enmity by stabbing Binod on his neck. 3. On the basis of the F.I.R., police took up investigation. The I.O. examined the informant and the accompanying persons and other witnesses, proceeded to the Government Hospital, Talcher, deputed the constable to guard the corpse. He visited the place of occurrence, examined some of the witnesses, searched for the accused Dharamu Sahu, who could not be traced, held inquest over the dead body, thereafter despatched the same with the dead body chalan for autopsy, seized the blood stained earth, sample earth from the spot, and seized tha wearing apparels of the deceased. While matter stood thus, on 24.3.1994 the accused surrendered in Court. While matter stood thus, on 24.3.1994 the accused surrendered in Court. Coming to know about the said fact, the I.O. took the accused on police remand, interrogated him and on the basis of the information given by the accused, seized the knife (the weapon of offence), which was thrown at the backside of Paschimeswar temple on the river bed, sent the incriminating materials to the forensic science laboratory and after completion of investigation, submitted charge-sheet in the Court of learned SDJM, Talcher in G.R. Case No. 486 of 1994. Learned SDJM after being prima facie satisfied, took cognizance of the offence and committed the case to the Court of Session. 4. The plea of the defence was of complete denial. It is alleged that in view of previous enmity, a false case has been foisted. 5. The prosecution in order to substantiate their case got examined as many as eight witnesses. Out of them P.W.1, Biswanath Behera is the informant and happens to be the father's elder brother of the deceased, P.W.2 is the father of the deceased, P.W.3 is the doctor, who conducted post mortem, P.W.4 is a neighbour and is a eye witness to the occurrence, P.Ws.6 and 7 who were present when the accused gave information about concealing the weapon of offence on the river bed and led the police and the witnesses to the spot, where from the knife was recovered. On behalf of the defence, no witness was examined. 6. After discussing the evidence in extenso, learned Sessions Judge relying upon the evidence of P.Ws.2, 4 and 5 and other evidence arrived at a conclusion that it is the accused and non-else, who was the author of the murder of Binod Behera and found him guilty u/s 302, IPC and convicted him thereunder. 7. 6. After discussing the evidence in extenso, learned Sessions Judge relying upon the evidence of P.Ws.2, 4 and 5 and other evidence arrived at a conclusion that it is the accused and non-else, who was the author of the murder of Binod Behera and found him guilty u/s 302, IPC and convicted him thereunder. 7. The judgment is assailed mainly on the ground that the Sessions Court has not properly appreciation the evidence and has grossly erred in relying upon the evidence of P.W.4, though the statement made by him in Court is contrary to the statement recorded u/s 161, Code of Criminal Procedure According to the learned Counsel for the Appellant, learned Sessions Judge also erred in law in relying on the evidence of P.W.6, who has developed the case from stage to stage inasmuch as the statement made by him in Court that he had seen the occurrence is directly and materially contradictory to his earlier statement made before the police in course of investigation. In short, according to learned Counsel for the Appellant, P.Ws.4, 5 and 6 are not the eye witnesses and no reliance should be placed on their evidence. Further, according to learned Counsel for the Appellant, learned Sessions Judge has misread the evidence of P.W.5.lt is submitted careful reading of the evidence of P.W.5 reveals that he has not an occurrence witness. The recording of the confessional statement made u/s 27 of the Evidence Act is also criticized on the ground that the two witnesses in whose presence the statement said to have been recorded have clearly denied the incident. In short, it is submitted that learned Sessions Judge has proceeded more on surmises and conjectures than the evidence on record and the conclusions arrived at being contrary to the evidence, the order of conviction cannot be sustained. 8. All these submissions are strongly repudiated by learned Addl. Govt. Advocate. According to the learned Counsel for the State, the Sessions Court has discussed the evidence threadbare and the conclusions arrived at are just and proper and in consonance with the evidence both oral and documentary. It is stated that the ocular evidence stands corroborated by the medical evidence. That apart, three witnesses have seen the occurrence and deposed in Court. Coupled with the said fact there was previous enmity between the accused and Binod. It is stated that the ocular evidence stands corroborated by the medical evidence. That apart, three witnesses have seen the occurrence and deposed in Court. Coupled with the said fact there was previous enmity between the accused and Binod. According to learned Counsel for the State, no error apparent on the face of record appears in the judgment and as there is no infirmity in the reasonings arrived at by the learned Sessions Judge, it is a fit case where the order of conviction needs no interference. 9. Heard learned Counsel for the parties at length. Peruses the evidence meticulously. A cumulative reading of the entire F.I.R. gives an impression that there was previous enmity between Binod and the accused and the same related to an affair with a woman. A perusal of the evidence reveals that after being stabbed on his neck, Binod rushed back to his house holding his neck and when Biswanath caught hold of him, he fell down on the ground. The F.I.R. reveals that immediately thereafter, he became unconscious and he was removed to the hospital. Thus, the statement made by P.W. 2, father of Binod that on being asked Binod told him and his brother P.W.1 that accused stabbed him, appears to be a future development. A cumulative reading of the F.I.R. and the evidence of P.W.1 leads to an irresistible conclusion that P.W.2 is not a truthful witness. That apart, P.W.2 did not narrate the said fact before the police in course of his examination u/s 161, Code of Criminal Procedure 10. Be that as it may, P.W.4, who is a eye witness to the occurrence has clearly narrated that'he has seen the accused Dharamu giving kick to the cycle on which Binod was proceeding to Talcher Thermal and when Binod fell down, he gave a stab blow on the neck of Binod by knife. According to the defence, P.W.4 has not stated the said fact before the I.O. Further, it appears that in cross-examination, on being confronted with the said fact, the said witness has clearly stated that the allegation is not true. Apart from P.W.4, P.W.5 is Anr. eye witness. He has also seen the occurrence. The said witness is criticized only on the ground that he was examined by the police two days after. Apart from P.W.4, P.W.5 is Anr. eye witness. He has also seen the occurrence. The said witness is criticized only on the ground that he was examined by the police two days after. A cumulative reading of the entire evidence reveals that the I.O. was busy at Talcher Hospital and in the process of searching for the accused, who absconded from the village. Thus, delay in examining P.W.5 cannot be treated to be fatal to the prosecution case. P.W.6 is Anr. witness, who had seen the accused dragging out the knife from the neck of Binod and running away from the spot. There is nothing to disbelieve the said witness. It appears that accused Binod absconded from the village to avoid arrest. However, he surrendered in Court on 24.3.1995, i.e., about 11 days after. On the basis of a petition filed by the I.O., he was remanded to police custody. While he was in custody, on being interrogated in presence of two of the witnesses, he disclosed about throwing the knife at the backside of Paschimeswar temple on the river bed. On being led by the accused, police recovered the knife in presence of two of the witness. Of course, the seizure witnesses, P.Ws.6 and 7 and did not support the prosecution case. 11. Much has been argued with regard to the statement made by the doctor (P.W.3). In his deposition, P.W.3 has opined that with the type of injury inflicted on the deceased, a person can only move 30-40 ft. in the maximum. He has further stated that as larynx was full of blood, a person cannot talk. According to learned Counsel for the Appellant, in view of the said statement, the allegations made not be believed. Contention of the learned Counsel for the Appellant is not tenable in view of the fact that such statement was made by the deceased immediately after infliction of the stab injury to his throat. Moreover, the opinion of the doctor is a hypothetical answer to a hypothetical question. It cannot take precedence over direct testimony of witnesses. 12. In course of hearing it appears that the Appellant is in custody for about twelve years. Admittedly enmity prevailed between Binod and the accused and the said disagreement relates to a lady. Even according to the prosecution, to fulfill his grudge, the accused dealt a blow on the neck of Binod with a knife. 12. In course of hearing it appears that the Appellant is in custody for about twelve years. Admittedly enmity prevailed between Binod and the accused and the said disagreement relates to a lady. Even according to the prosecution, to fulfill his grudge, the accused dealt a blow on the neck of Binod with a knife. In view of the aforesaid circumstances and as no clear evidence emerged on record to consider as to what was the immediate cause for the accused to deal a stab blow on the deceased and that too a single blow, benefit arising out of such evidence should go in favour of the accused and it can be validly presumed that past dispute between the two resulted in the accused dealing with stab blow. In that event, even if the deceased suffered a homicidal death, the offence would be culpable homicide not amounting to murder within the meaning of exception 4 of Section 300, IPC. 13. In view of the discussions made above, we set aside the conviction passed u/s 302, IPC and in stead, find the accused guilty u/s 304, Part-I, IPC. Taking into consideration the fact that the accused has already in custody for twelve years, this Court sentences him to the period already undergone. Since the accused-Appellant has already served the sentence, he be set at liberty forthwith unless his detention in jail custody is required in connection with any other criminal case. 14. The appeal is disposed of subject to the modification of the conviction and sentence as indicated above. S.K. Mishra, J. 15. I agree.