Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 519 (ORI)

Fhuljens Kispata v. State of Orissa

2010-07-28

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT The appellant having been convicted for commission of of¬fence under Sections 302/201, I.P.C. and sentenced to imprison¬ment for life for offence under Section 302 I.P.C. and to suffer R.I. for two years for offence under Section 201, I.P.C. by the learned Sessions Judge, Sundargarh in Sessions Trial Case No. 282 of 1996, has preferred this appeal against the said order of conviction and sentence. 2. The case of the prosecution is that on 22.08.1996 at about 7.00 A.M. the informant (P.W.1) and others residents of village Lamloi Majhipara got information that the appellant killed his mother. After receiving such information they rushed to the spot and found a pool of blood in front of the house of the appellant, but there was none inside the house. They found the appellant entering into the house of one Patras Ekka and they caught hold of him and questioned as to how his mother deceased Jasphine died. The appellant confessed before them that he has killed his mother. Thereafter, the appellant was tied and was confined in a room in his house. The informant and other villag¬ers also noticed a trailing mark of blood extending from the courtyard of the house up to the motor pump house situated on the backside of the main house. The dead body was detected lying inside the pump house with bleeding injuries. Thereafter, the appellant was brought to the police station and P.W.1 lodged the F.I.R. On the basis of the F.I.R. investigation was taken up and charge-sheet was submitted for commission of offence punishable under Sections 302/201, I.P.C. The appellant faced trial for commission of both the offences. 3. In course of trial the prosecution examined eighteen witnesses, out of whom P.Ws. 2 to 8 turned hostile. P.W.1 is the informant, but he also turned hostile. P.Ws. 9 to 13, are wit¬nesses to seizure of different articles and P.W.14 is a witness to the leading to discovery of the weapon of offence. P.W.15 is a seizure witness in respect of blood stained earth and sample earth, whereas P.W.16 is the A.S.I. of Police and is a witness to seizure of the wearing apparels of the deceased. P.W.17 is the Medical Officer who conducted the post-mortem examination and P.W.18 is the I.O. The plea of the appellant was complete denial of the prose¬cution allegation. 4. P.W.17 is the Medical Officer who conducted the post-mortem examination and P.W.18 is the I.O. The plea of the appellant was complete denial of the prose¬cution allegation. 4. Learned Sessions Judge on analysis of the evidence found that the deceased died a homicidal death. In absence of any eye witness to the occurrence the learned Sessions Judge found the following circumstances against the appellant on the basis of which the order of conviction was passed:- (i) Soon after the occurrence the appellant was produced at the police station by the villagers; (ii) the wearing apparels (pant of the appellant) was stained with blood of the deceased; (iii) the bamboo lathi seized from the spot and the Katuri given recovery of by the appellant were also stained with blood; and (iv) the dead body was found concealed in the pump house belonging to the appellant. 5. Mr. Chand, learned counsel appearing for the appellant assails the impugned judgment on the ground that except the official witnesses, all other witnesses have turned hostile. According to Mr. Chand, learned counsel appearing for the appel¬lant, even if evidence of P.W.14 is accepted in relation to recovery of the weapon of offence at the instance of the appel¬lant, that cannot be the sole basis for convicting the appellant on the aforesaid materials. 6. Learned counsel for the State relied on two circumstances to support the order of conviction. The first circumstance relied upon by the State counsel is the recovery of the weapon of offence (Katuri) at the instance of the appellant and the second circumstance is presence of blood on the pant of the appellant as well as the weapon of offence (Katuri). 7. Admittedly, there is no eye witness to the occurrence and the prosecution relies on the circumstantial evidence. P.W.1 is the informant. Though he admits to have lodged the F.I.R., he denied knowledge of anything else and according he was declared hostile. P.Ws. 2,3,4,5,6,7 and 8 were declared hostile, as they stated to have no knowledge about the case. P.W.9 is the witness to the inquest. P.W.10 is a witness to seizure, but he stated in his evidence that nothing was seized by the police in his presence and he had put his signature vide exhibits 3 and 4 being directed by the police in the police station. Similar is the evidence of P.W.11, who is a witness to seizure. P.W.10 is a witness to seizure, but he stated in his evidence that nothing was seized by the police in his presence and he had put his signature vide exhibits 3 and 4 being directed by the police in the police station. Similar is the evidence of P.W.11, who is a witness to seizure. P.W.12 also stated that nothing was seized in his presence. P.W.13 only stated about the seizure of Katuri under Ext.6, but did not say anything else except that he had signed on Ext.6. For the above reasons he was also declared hostile. P.W.14 is a witness who has stated that in his presence the appellant led the police to his house and gave recovery of an iron Katuri. P.W.15 is a witness to the seizure of blood stained earth sample earth as well as the bamboo lathi. P.W.16 is the A.S.I. of police who had seized the wearing apparels. P.W.17 conducted the post-mortem examination and found several incised wounds and multiple fractures on the body of the deceased. According to P.W.17 the deceased died a homicidal death. P.W.18 is the I.O. 8. On analysis of the evidence of all the witnesses we find that the evidence of P.W.14 is material in relation to recovery of the weapon of offence. This witness has specifically stated that he was called to Rajgangpur Police Station by the police and when he went to the police station, he saw the appel¬lant sitting on the verandah of the police station. At the time of interrogation while in police custody the appellant disclosed that he has kept concealed the weapon of offence in his house in a Bhadi and saying so he came and gave recovery of Katuri. Even if evidence of this witness is accepted, the prosecution has been able to prove the fact that the appellant made statement before the police and that he had kept the weapon of offence concealed in his house and gave recovery of the same. However, from the chemical examination report we found that though blood was found on the Katuri it was insufficient for proper test. Therefore, there is no material to show that the blood on the Katuri is that of the deceased. The other circumstance on which reliance is placed by the learned counsel for the State is presence of blood on the pant of the appellant. Therefore, there is no material to show that the blood on the Katuri is that of the deceased. The other circumstance on which reliance is placed by the learned counsel for the State is presence of blood on the pant of the appellant. Though from the chemical examination report, we find that the half pant worn by the appellant was stained with human blood of ‘B’ group. At the same time, we find that the deceased who is the mother of the appellant and also blood group of ‘B’. Under this circumstance, the prosecution should have examined blood group of the appellant as it may be possible that the appellant had also the same blood group of `B’. 9. Considering the above facts, all that we find that the appellant while in police custody gave recovery of the weapon of offence, but the chemical examination report shows that the blood found on the said weapon of offence was insufficient for proper examination. Only on the basis of such a circumstance, the appel¬lant could not have been convicted in absence of any corrobora¬tive evidence. The law is well settled that when the prosecution relies on circumstantial evidence, it has to prove the chain of circumstance unerringly pointing to the guilt of the appellant giving no scope for entertaining a doubt. This is a case where only one circumstance has been proved by the prosecution without any corroborative evidence. 10. We, therefore, for the reasons stated above set aside the impugned judgment and allow the appeal. It is stated that the appellant is still in custody. If that be so, he be set at liber¬ty forthwith if his detention is not required any other case. While releasing the appellant, the order dated 3.11.2009 passed by this Court in Misc. Case 117 of 2005 be taken note of. Appeal allowed.