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2009 DIGILAW 823 (ORI)

KUNA @ GANESWAR MAJHI v. STATE OF ORISSA

2009-10-23

A.S.NAIDU, B.N.MAHAPATRA

body2009
JUDGMENT : A.S. Naidu, J. - The judgment and order of conviction dated 12.12.2000 passed by the learned Addl.Sessions Judge, Boudh in S.T. No. 7/2000/S.T. No. 12/99-DC convicting the Appellant of the charge u/s 302, I.P.C., and sentencing him to undergo R.I. for life is assailed before this Court. 2. The prosecution case was set to motion on the basis of an F.I.R. filed by one Radha Mallik (P.W.1) at Manamunda Police Station. It is alleged that on 20.06.1998 at about 11 A.M., the deceased-Syama Mallik had taken the buffalos of Sandheswar Singh for bathing to the tank of Basudev Mallik of village Kanabira. He pushed the buffalos into the tank and was sitting on the embankment of the tank. At that juncture, the accused-Appellant suddenly came from behind and dealt a 'Tangia' blow on the back of the deceased, who, consequently fell down. It is alleged that the accused thereafter dealt Anr. 'Tangia' blow. This assault was witnessed by Laba Pradhan (P.W.4) and Kapileswar Singh (P.W.3), who were also bathing their animals in the tank. The accused threatened them not to disclose the occurrence to anybody. Subsequently, they went to village and informed the father of the deceased about the incident, who came to the spot and saw the dead-body of his son, and went to Manamunda PS and lodged an FIR. 3. On the basis of the said FIR, O.I.C., Manamunda PS registered a PS case and took up investigation, went to the spot, examined the witnesses, made inquest over the dead-body, sent the same for post mortem examination, collected blood stained earth and other incriminating materials, and arrested the accused. It appears that while in police custody, the accused confessed his guilt and gave recovery of the alleged weapon of offence, i.e., 'Tangia', from his house in presence of witnesses. After post mortem and completion of investigation, chargesheet was submitted in G.R. Case No. 236 of 1998. Learned S.D.J.M., Boudh on being satisfied took cognizance of the offence and committed the case for trial to the Court of Sessions. The plea of defence was complete denial to the prosecution allegation. 4. To bring home the charge, prosecution got examined as many as seven witnesses and exhibited thirteen documents apart from six material objects. The defence has neither examined any witness nor exhibited any document. The plea of defence was complete denial to the prosecution allegation. 4. To bring home the charge, prosecution got examined as many as seven witnesses and exhibited thirteen documents apart from six material objects. The defence has neither examined any witness nor exhibited any document. After discussing the evidence in extenso, learned Addl.Sessions Judge came to the conclusion that the prosecution was able to bring home the charges u/s 302, IPC against the accused beyond all reasonable doubt. Consequently, he convicted him there under. 5. In this appeal, as we find from the chain of evidence/circumstances, the Appellant assailed the order mainly on the ground that in the absence of any clear and cogent evidence, the Sessions Court committed illegality in convicting the Appellant u/s 302, IPC. It is stated that the statement made by eyewitnesses cannot be believed and that apart PW-4 has narrated the facts for the first time in the Court, and as such, the same should not be believed. According to the learned Counsel, the entire judgment is based on surmises and conjectures and it is a fit case where the order of conviction should be set aside. Learned Addl.Standing Counsel strongly repudiates this contention and submits that two witnesses have seen the occurrence and they have deposed the fact before the Court. They have also been examined by the Police, that apart they had disclosed the incident before the father of the deceased, who went to the spot and found the dead-body of his son. The weapon of offence, i.e., 'Tangia', as per the statement of the accused while in police custody, was seized from his house and the same contained bloodstains, that apart bloodstains earth was also seized from the house of the accused, where he had kept the Tangia'. All these facts according to learned Addl.Government Advocate only leads to one conclusion that the accused was the assailant, and the learned Addl.Sessions Judge has rightly found him guilty of the charge for commission of offence u/s 302, IPC and the said judgment needs no interference. 6. In order to appreciate the submissions made by learned Counsel before this Court we once again meticulously went through the evidence on record. 6. In order to appreciate the submissions made by learned Counsel before this Court we once again meticulously went through the evidence on record. Out of the witnesses examined, PW-1 is the informant and the father of the deceased, PW-2 is the teacher of the deceased and a post-occurrence witness, PW-3 and PW-4 are the eyewitness to the occurrence, PW-5 is the seizure witness in whose presence the weapon of offence was seized as per disclosure made by the accused, PW-6 is the Medical Officer, who conducted post mortem examination over the dead-body of the deceased and PW-7 is the investigating officer. Perusal of evidence of PW-6, the doctor, coupled with the post mortem report Ext.4 leaves no doubt in our mind that the death of Syama Mallik was a homicidal one. Learned Sessions Court after discussing the evidence of the doctor, as well as, the post mortem report has also arrived at the conclusion that the death was homicidal. We do not find any infirmity in the said conclusion arrived at by the learned Sessions Court and confirm the same. 7. The only other question which is left to be considered, is as to who was the author of the aforesaid crime. PWs-3 and 4 were the eyewitness and were present at the spot. It appears that they have seen the occurrence. The statements of both these witnesse are very clear and unambiguous. They have been cross-examined at length but nothing elicited from them to disbelieve the FIR story. Learned counsel for the Appellant however submits that PW-3 had not made any disclosure about the incident before the Police, but then it appears no such question was put to the I.O. nor he was confronted with regard to the statement made in Court. In absence of such endeavour, the submission made cannot be accepted. That apart, the accused while in police custody, had confessed the guilt and he also disclosed about the place where he kept the weapon of offence. It further appears that in presence of witness, he led the Police to the place of seizure. PW-5, the seizure witness has clearly deposed/stated about the discovery of the weapon of offence at the instance of the accused. The said statement is admissible u/s 27 of the Evidence Act. The seizure list also reveals that 'Tangia', the weapon of offence, seized from the house of the accused contained bloodstains. PW-5, the seizure witness has clearly deposed/stated about the discovery of the weapon of offence at the instance of the accused. The said statement is admissible u/s 27 of the Evidence Act. The seizure list also reveals that 'Tangia', the weapon of offence, seized from the house of the accused contained bloodstains. The wearing apparels of the accused also contained bloodstains. That apart, bloodstained earth was also seized from the house of the accused where the weapon of offence was hidden. Cumulative assessment of these facts leads to an irresistible conclusion that the prosecution was able to establish the guilt of the accused beyond all reasonable doubt. It further appears from the evidence that prior enmity was there between the accused and the deceased in order to fulfill is grudge, the accused taking advantage of the fact the deceased sitting on the embankment of the tank, went there and assaulted him, consequent upon which the deceased died. The Sessions Court has elaborately dealt with the evidence both oral and documentary and made discussions. We do not find any infirmity or irregularity in the conclusion arrived at so as to warrant interference. 8. After going through the evidence on record, we are also satisfied that the prosecution was able to bring home the charges leveled against the accused-Appellant u/s 302, IPC and we are therefore not inclined to interfere with the order of conviction. Accordingly, the Jail Criminal Appeal stands dismissed. B.N. Mahapatra, J. 9. I agree. Final Result : Dismissed