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2010 DIGILAW 563 (ORI)

Iswar Bisoi v. State of Orissa

2010-08-11

PRADIP MOHANTY, S.K.MISHRA

body2010
JUDGMENT PRADIP MOHANTY, J. — The judgment and order dated 20.04.2001 passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in S.C. No.23 of 1999 convicting the appellant under Section 302 I.P.C. and sentencing him to undergo imprisonment for life is assailed in this appeal. 2.The appellant has been convicted for having committed murder of his wife, who is the sister of the informant. The allegation, as borne out from the FIR, is that 4 to 5 years back from the date of occurrence the appellant had been staying with the deceased in village Badkutra, which is the village of the deceased, leaving his own village Digisalpa after a few days of their marriage. Twelve to fifteen days prior to the date of occurrence, there was a quarrel between the appellant and the deceased, for which the informant brought his sister to his house. On 11.9.98 at about 9:00 AM, when the deceased was taking bath at Sagadia tank, the appellant dealt lathi blows on her and fled away. Hearing the incident, the informant went to the spot and found his sister lying dead in the bathing ghat. Thereafter, he went to Kutru Outpost under Jaipatna police station and lodged a written report. On receipt of the same, the police registered the case, took up investigation and after its completion filed charge sheet against the appellant under Section 302, I.P.C. 3.On receipt of the charge-sheet, the learned Magistrate took cognizance of the offence and committed the case to the Court of Session. The learned Sessions Judge framed charge under Section 302, IPC against the appellant who pleaded not guilty and claimed to be tried. From the side of the prosecution, nine witnesses were examined including the doctor and the investigating officer and fourteen documents were exhibited. None was examined on behalf of the appellant in his defence. In his statement under Section 313, Cr.P.C., the appellant took the plea of denial. The learned Sessions Judge believed the case of the prosecution, convicted the appellant under Section 302, IPC basing upon the admission of P.W.6 in the cross-examination made by the prosecution, evidence of leading to discovery, medical evidence and the circumstantial evidence and sentenced him to imprisonment for life. 4.Learned counsel for the appellant submits that there is absolutely no iota of evidence against the appellant. 4.Learned counsel for the appellant submits that there is absolutely no iota of evidence against the appellant. P.Ws.5, 6 and 7, who are said to be the eye witnesses, have turned hostile. The so-called statement of leading to discovery of weapon of offence made under Section 27 of the Evidence Act, cannot be used as a substantive evidence for recording the order of conviction on the face of the evidence of P.W.3 and in absence of any other corroboration. She also submits that the prosecution has not been able to prove the motive and the chain of circumstances is not complete. 5.Mr. Nayak, learned Additional Government Advocate contends that P.W.1, who is the informant and brother of the deceased, has specifically stated that there was a quarrel between the deceased and the appellant for which the deceased had been staying in their house a few days prior to the occurrence, and that two days before the occurrence the appellant had come to their house and quarreled with his father to take the deceased. P.W.2 has corroborated this part of the evidence of P.W.1. P.W.6, though turned hostile, has admitted in cross-examination by the prosecution that she had seen the accused dealing several blows by means of lathi to the deceased while she was bathing in the Sagadia tank. Leading to discovery made under Section 27 of the Evidence Act and the recovery of the weapon of the offence (M.O.I.) has been proved through the evidence P.W.3 and P.W.9, the investigating officer. Chemical examination report (Ext.13) reveals that blood stains of human origin were found on the weapon of offence (M.O.I.) as well as the wearing apparels of the deceased. These evidence coupled with the medical evidence are sufficient to convict the appellant under Section 302 I.P.C. and, therefore, there is no infirmity or illegality committed by the trial Court in convicting the appellant. 6.Perused the LCR. P.W.1 is the informant and brother of the deceased. In his examination-in-chief, he deposed that there was a quarrel between the deceased and the appellant. One month before the occurrence, the deceased had come to their house due to such quarrel. The appellant had come to their house two days prior to the date of occurrence and quarreled with his father to take his wife (deceased) with him. In his examination-in-chief, he deposed that there was a quarrel between the deceased and the appellant. One month before the occurrence, the deceased had come to their house due to such quarrel. The appellant had come to their house two days prior to the date of occurrence and quarreled with his father to take his wife (deceased) with him. In cross-examination, he admitted that he had not seen the appellant giving assault to the deceased but he heard the same from others. P.W.2 is another brother of the deceased. He deposed that 7 to 8 days before her death the deceased had come to their house, as the appellant assaulted her and drove her out from the house. He corroborated the evidence of P.W.1 to the effect that the appellant had come to their house two days before the death of the deceased. He specifically deposed that on the date of occurrence he had been to Thuamal Rampur and on return heard about the murder of the deceased. P.W.3 is a witness to the leading to discovery and seizure of the weapon of offence vide seizure list (Ext.3) and wearing apparels of the accused vide seizure list (Ext.4). He deposed that on being called by the police he and one Ghana Naik went to the Outpost and that the accused while in police custody gave information about the concealment of the weapon of offence, i.e., Thenga in the field of one Panigrahi and led them and the police to that place wherefrom it was recovered. In cross-examination, he specifically admitted that on being called by the police he and one Ghana Naik reached at the Outpost at 11.00 a.m. and the Thenga was seized from the agricultural land of one Panigrahi which was an open place through which people pass. P.W.4, in his examination-in-chief, stated that when he was near the Badakutru Outpost the accused shouted by saying “MORO MAIJIKI MARI DELI, MORO MAIJIKI MARI DELI and went into the Outpost”. But, in cross-examination, he admitted that he was not examined by the police and not stated the above facts before the police, for which the trial Court has rightly held that his statement was of no use in this case. P.Ws.5, 6 and 7, who were introduced as eye witnesses, did not support the case of the prosecution and turned hostile. P.Ws.5, 6 and 7, who were introduced as eye witnesses, did not support the case of the prosecution and turned hostile. P.W.8 is the doctor, who conducted the autopsy over the dead body of the deceased and found as many as seven grievous injuries. He opined that all the injuries were ante mortem in nature and the death was due to intracranial haemorrhage as a result of head injury caused by hard and blunt weapon like lathi (M.O.I.). P.W.9 is the investigating officer, who on receiving the F.I.R. registered the case, proceeded to the spot, held inquest over the dead body, prepared the spot map, sent the dead body for post mortem examination, examined the witnesses, arrested the accused, seized the wearing apparels of the accused and sent the same for chemical examination along with the lathi and ultimately filed the charge-sheet. He also proved the leading to discovery under Section 27 of the Evidence Act. 7.Scrutinizing the above evidence, it is found that there is no ocular witness to support the case of the prosecution, as P.Ws.5, 6 and 7, who were introduced by the prosecution as eye witnesses, have turned hostile. The admission of P.W.6 in the cross-examination made by the prosecution, that she had stated before the police that at the time of occurrence she and Marua Dei (P.W.5) were taking bath in Sagadia tank and saw the appellant assaulting the deceased by means of a lathi, having not been supported by P.W.5 herself and/or any other prosecution witness cannot form the basis for conviction. The confession statement said to have been made by the accused while in police custody is inadmissible in view of the discrepancy appearing in the evidence of P.W.3 and the investigating officer P.W.9 with regard to the time of arrest of the accused and such evidence also loses its value in view of admission of P.W.3 in the cross-examination that the place, wherefrom the lathi (M.O.I.) was recovered, was easily accessible. No motive has been proved by the prosecution behind the commission of the crime. Although chemical examination report reveals that human blood was found on the wearing apparels of the deceased, it has not been established that the group of the said blood matched with the blood group of the deceased. No motive has been proved by the prosecution behind the commission of the crime. Although chemical examination report reveals that human blood was found on the wearing apparels of the deceased, it has not been established that the group of the said blood matched with the blood group of the deceased. Otherwise also the prosecution has not been able to complete the chain of circumstances to connect the accused with the crime. For all these reasons, this Court holds that the prosecution has miserably failed to establish the guilt of the appellant beyond reasonable doubt. As such, the appellant is entitled to be acquitted under the benefit of doubt. 8.In the result, the appeal is allowed, the impugned judgment of conviction and sentence passed by the learned Sessions Judge is set aside and the appellant is acquitted of the charge. S.K. MISHRA, J.I agree. Appeal allowed.