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2009 DIGILAW 9 (ORI)

Sama @ Saman Tudu v. State of Orissa

2009-01-06

P.K.TRIPATHY, SANJU PANDA

body2009
JUDGMENT P.K. TRIPATHY, J. — Learned Addl. Sessions Judge, Jajpur delivered impugned judgment on 2.12.1998 in Sessions Trial No.616 of 1997/3 of 1998 convicting the appellant for the offence under Sections 302/201/34, IPC. The convicted accused persons thus preferred the appeal from the jail. 2. According to the case of the prosecution, Luna Purty, the deceased, was working as a labourer in Ostapal Mines. On 12.10.1996 afternoon he went to his house and handed over his weekly wage to his family and came to Tisco Weekly market but did not return to his house that night. On the following day morning, his dead body was found lying under a bush near that market. Police took note of the aforesaid dead body and after F.I.R. was made P.W.1 undertook the investigation and submitted charge sheet against the accused persons for the aforesaid offences. 3. To substantiate the charge, prosecution relied on the evidence of eight witnesses and documents marked as Exts.1 to 5. Except P.W.6 who claims to be an eye-witness to the occurrence of assault on the deceased by the accused persons, the rest of the witnesses did not contribute anything to prove the charge against the accused persons. The investigating officer and the doctor who conducted post-mortem examination on the dead body of the de¬ceased could not be examined by the prosecution because of their non-availability and no response from the concerned superior officials of the police department. At the same time no step was taken by the prosecution in the trial Court for acceptance of the post-mortem report as an exhibited document. Notwithstanding that relying on the evidence of P.W.6, learned Addl. Sessions Judge, Jajpur held that accused persons are guilty of assaulting the deceased and causing his homicidal death. Accordingly, he record¬ed the conviction under Section 302 IPC and sentenced each of the tree accused persons to undergo imprisonment for life. 4. Mr. Pani, learned Advocate appearing for the appellants argues that a conviction under Section 302 IPC can be defended by the prosecution provided they have proved homicidal death of the deceased and in this case the evidence of P.W.6 if read and believed then also that does not prove the case of homicidal death. 4. Mr. Pani, learned Advocate appearing for the appellants argues that a conviction under Section 302 IPC can be defended by the prosecution provided they have proved homicidal death of the deceased and in this case the evidence of P.W.6 if read and believed then also that does not prove the case of homicidal death. Indeed on perusal of evidence of P.W.6, we find that, he deposed that in the evening of 12.10.1996 he found the three accused persons assaulting the deceased by dealing slaps and that dispute was relating to cock fight and several other persons were present besides the shopkeepers of the Tisco market. That scanty evidence does not prove about at what time the deceased received a stab injury and whether such stab injury is ante-mortem or post-mortem and what was the cause of the death. Since the post-mortem report is not available as evidence and the doctor was not examined, the prosecution has signally failed to prove that the deceased suffered homicidal death. Under such circumstance, the accused persons cannot be found guilty under Section 302 IPC. For that simple reason, the trial Court ought to have acquitted the accused persons instead of convicting them on a wrong reasoning that the accused persons did not dispute the death of the de¬ceased. Admission of the death of the deceased does not ipso facto prove homicidal death. 5. For the reasons stated above, we set aside the impugned order of conviction and acquit all the accused persons. Accordingly, the jail criminal appeal is allowed. If the accused persons have been released on bail as per the order of this Court dated 18.8.2006 passed in Misc. Case No.22 of 2005 then because of the aforesaid order of acquittal, such bail bonds stand discharged. In the event the accused persons are still inside the jail custody in connection with the present Sessions Case then they may be set at liberty forthwith unless their detention is necessary in the jail custody in connection with any other criminal case. JCA allowed.