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2010 DIGILAW 637 (ORI)

Narada Munda v. State Of Orrisa

2010-09-14

PRADIP MOHANTY, S.K.MISHRA

body2010
JUDGMENT S.K. MISHRA, J. — The appellant assails his conviction under Section 302 of the Indian Penal Code, 1860, hereinafter referred as “I.P.C” for brevity, in Sessions Trial Case No.52 of 1997 of the Court of Sessions Judge, Keonjhar. 2. Bereft of unnecessary details, the prosecution case is that in the night of 22.10.1996, the accused armed with a Tangia came to the house of Gania Munda and by standing in front of his house called him to come out. While Gania Munda came out of his house, the accused dealt a blow by means of the Tangia on the back of his head. As a result of the assault, Gania Munda fell down and died. At that time Gurubari Munda, wife of Gania Munda, raised alarm. The accused then threw the Tangia there and ran away. Thereafter, Gurubari Munda reported the matter to her nephew Mahendra Munda, who came and saw the dead body of Gania Munda and then went to the Grama Rakhi. The fact was thereafter reported by Mahendra Munda and Baneswar Munda at Nayakote Police Station on 23.10.1996. On such F.I.R., the investigation was conducted by the Officer In-charge of that Police Station and on completion of investigation, he submitted charge-sheet against the accused. 3. The accused took the plea of complete denial and alter¬native pleaded that at times he losses balance of his mind and behaves irrationally. 4. To substantiate the charges, the prosecution examined nine witnesses. As it appears from the impugned judgment, P.W.6 Gurubari Munda is the wife of the deceased, who is the only eye-witness to the occurrence. All other witnesses, excepting the official witnesses, are post-occurrence witnesses. P.W.7 is the Police Constable, P.W.8 is the Doctor and P.W.9 is the Investi¬gating Officer. P.W.1 is a witness to the alleged extra-judicial confession made by the accused. The defence has not examined any witness on its behalf. 5. In course of hearing of the case, the learned counsel appearing for the appellant did not dispute to the fact that the death of the deceased was due to ante mortem injury on the back of his head, which can be caused by the sharp cutting weapon like Tangia (M.O.I.). There is no dispute that the death of the de¬ceased was homicidal in nature. There is no dispute that the death of the de¬ceased was homicidal in nature. The learned counsel for the appellant however argued that complicity of the accused has not been brought home beyond all reasonable doubt. The learned coun¬sel for the State, on the other hand, argued that the judgment passed by the learned trial Court requires no interference. 6. While assessing the judgment impugned, we have examined the evidence of witnesses examined on behalf of the prosecution and found that the prosecution relies mainly on the narration of the P.W.6, the sole eye witness to the occurrence, as alleged by the prosecution and the extra-judicial confession made before the witness, P.W.1-Kanhei Charan Dehuri. 7. The evidence of P.W.6, the wife of the deceased, re¬veals that at the time of occurrence in the evening, she was present in her house with her husband, the deceased. The accused came near the house and called her husband to come out. On the request of the accused, her husband came out of the house and the accused assaulted him with the Axe, M.O.I. She has further stated that she has not actually seen the blow given by the accused to her husband. After falling of her husband in front of the room, she came out of the room and saw the accused was going away at a close distance of about 20 to 30 cubits away from her house. None else were present there. Thereafter, she wept and shouted. She further states that on the following morning, she requested P.W.5 - Mahendra Munda to go and inform the matter before the Nayakote Police Station. 8. Law is well-settled that the prosecution succeeds only when it proves the case it alleges. The substratum of the prose¬cution case in the present matter is that P.W.6, the only eye witness to the occurrence, has seen the accused was assaulting the deceased by means of the Axe, but her evidence clearly shows that she has not seen the actual assault by means of an axe on the deceased by the accused. She has stated on oath that she saw the accused was going away at the distance of 20 to 30 cubits from her house. She has not stated that the accused was holding the axe in his hand at that time. She has stated on oath that she saw the accused was going away at the distance of 20 to 30 cubits from her house. She has not stated that the accused was holding the axe in his hand at that time. A close examination of the F.I.R. and the statements of other witnesses reveal that a story has been presented at the time of investigation and also at the time of trial that P.W.6 has actually seen the assault on the deceased, which was not stated by the said prosecution witness. 9. It is not the case of the prosecution that P.W.6 saw the accused was running away from the spot, where the deceased was lying with fatal injury and nobody else was there. Thus, such evidence has been developed at the stage of trial. Hence, it has to be viewed suspiciously. P.W.6 is not an eye witness to the occurrence, rather she states about a circumstance that it is a fact that she saw the accused running away from the spot. It is only a circumstance albeit a strong one. It is also seen that it was a dark night and she was holding a Dibiri (lamp) and she saw the accused from 20 to 30 cubits. As observed earlier, this is not the case of the prosecution and taking the entire evidence into consideration, we are of the opinion that it was not possi¬ble to identify the accused with the Dibiri light after the occurrence especially when the accused was about 20 to 30 cubits away from the house. Thus, reasonable doubt arises in the mind of the Court regarding version presented by the prosecution witness No.6. 10. The second limb of evidence is the alleged extra-judicial confession made by the accused before the P.W.1-Kanhei Charan Dehuri. He stated on oath that accused Narada came to his house at about 7 to 8 P.M. and reported him that he has committed murder of Gania Munda and requested him to accompany him to the spot. He has further stated that he did not believe the accused nor took it seriously as because the accused was behaving like a semi-crack person and at times making out such statement. There¬after, he deputed one Subarna Dehury to the hamlet of the de¬ceased and the accused. On return, Subarna confirmed before the witness that the information given by the accused was correct. There¬after, he deputed one Subarna Dehury to the hamlet of the de¬ceased and the accused. On return, Subarna confirmed before the witness that the information given by the accused was correct. In cross-examination, a contradiction has been brought out from the mouth of this witness that he has not stated before the Investigat¬ing Officer that Narada reported him about the murder on that night and revealed before him that he has committed the murder of Gania. Such contradiction is a material one and in view of such a glaring contradiction, the evidence of P.W.1 cannot be accepted. 11. Thus, on the basis of the aforesaid discussion, we come to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubt as there is some nagging and substantial doubt remained unexplained. Therefore, we are of the view that the conviction of the accused-appellant is not justi¬fied. In the result, the Appeal is allowed. Conviction of the accused under Section 302 of the I.P.C. and sentence of imprison¬ment for life are hereby set aside. The appellant is acquitted. It appears from the record that the accused is on bail. The bail bond be cancelled. PRADIP MOHANTY, J. I agree. Appeal allowed.