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2010 DIGILAW 704 (ORI)

Mania @ Nilamani Naik v. State of Orissa

2010-10-25

B.P.RAY, P.MOHANTY

body2010
JUDGMENT B.P. RAY, J. — Since both the appeal arise out of one judgment, they are heard together and are disposed of by the following common judgment. 2.Both the appellants assailing their conviction under Sections 302/452/34 of the I.P.C. and sentences passed there under to undergo imprisonment for life and R.I. for five years respectively by the learned Addl.Sessions Judge, Cuttack have preferred the appeals. 3.The allegations which led the appellants to trial briefly stated are that on 24.3.1995 at about 4 P.M., the deceased Harmohan Bisoi was returning to his quarter at Railway Colony from his duty. The appellants and two other, namely, Deba @ Debendra Kumar Das (since acquitted) and one Bhaskar Pradhan (absconding accused) who were concealing nearby chased the deceased to the quarters and hacked him by means of sword and knife. Thereafter, the deceased was removed to the S.C.B. Medical College and Hospital, but he succumbed to the injuries at 5.30 P.M. on the very day. 4.Appellants have taken the plea of complete denial. 5.The learned trial Court on appreciation of evidence while acquitting the accused Deba @ Debendra Kumar Das of all the charges found the appellants guilty of committing murder of the deceased-Harmohan Bisoi, accordingly he recorded the order of conviction and sentence as mentioned above. 6.The appellants challenging the impugned judgment and order have urged the following points :- (i)the eye witness cited by the prosecution did not support the prosecution case. (ii)dying declaration is not free from suspicion. (iii)declarant was not in a fit state of mind. (iv)the evidence of P.Ws.4 and 14, witnesses to the dying declaration suffers from infirmities and material contradiction. (v)recovery of weapon of offence is doubtful. (vi)delay in sending the material object for chemical examination. (vii)mere absconding itself is not sufficient to hold a person guilty. (viii)no opinion about the blood group in respect of the pant of the accused (MO-X). 7.The deceased was a railway employee and was allotted quarters No.EL12/A. P.W.13, who happens to be the son of his friend, was residing with him and was searching for employment. On the fateful day while P.W.13 was taking tea in front of the quarters, at that time the deceased returned from his duty. 7.The deceased was a railway employee and was allotted quarters No.EL12/A. P.W.13, who happens to be the son of his friend, was residing with him and was searching for employment. On the fateful day while P.W.13 was taking tea in front of the quarters, at that time the deceased returned from his duty. It is alleged that the accused persons, who were waiting nearby, chased him to the quarters and mercilessly hacked him by means of sword and knife causing as many as 13 cut injuries on different parts of his body. The cut wound and their dimensions have been mentioned by P.W.11 in the post mortem report, Ext.7. The opinion of the Medical Officer is that the death has occurred on account of injuries which were ante-mortem in nature and due to combined effect of shock and haemorrhage from the injuries. From the above evidence, it is concluded that the deceased died a homicidal death. 8.P.W.13, though a witness to the entire occurrence and had lodged the F.I.R. depicting the details of it, but during the trial turned his back to the prosecution. Similarly, P.W.2, who had not only witnessed the assault on the deceased, but also a witness to the disclosure of the names of the assailants by the deceased turned hostile. Since both the witnesses resiled from their previous statement and concealed the facts, no ocular evidence is available. 9.It is contended that the dying declaration is not trustworthy since the declarant was not in a fit state as such the same cannot be acted upon. In order to appreciate the above contention, the evidence of P.Ws.4, 11 & 14 are relevant. P.W.4 in his evidence has stated that on 24.3.1995 he was performing duty in the office of the D.I.G., Railway situated near the Railway Colony. The deceased was residing in the said colony. At about 4.10 P.M. two persons came there and informed that the deceased had been assaulted. Hearing the same P.W.4 reached the quarters of the deceased and found that the deceased was lying in a pool of blood with multiple bleeding injuries on his head, legs and hands. On being asked by P.W.14, the deceased disclosed the names of the accused Mania, Daraba and two others who have inflicted the injuries. Nothing substantial has been brought out in the cross-examination of the witness on this point. On being asked by P.W.14, the deceased disclosed the names of the accused Mania, Daraba and two others who have inflicted the injuries. Nothing substantial has been brought out in the cross-examination of the witness on this point. On the contrary, suggestion has been given that by the time P.W.4 reached the quarters, the deceased was dead therefore, he had not made any declaration. This is not correct. The deceased died at 5.30 P.M. in the S.C.B. Medical College & Hospital and therefore, he was alive when the witness reached the spot. P.W.14 in his sworn testimony has stated that at about 4 P.M. on 24.3.1995 he returned to the barrack. On hearing commotion he went to the quarters of the deceased and found him in wounded condition. The deceased had cut injuries on his hand, head and shoulder. P.W.14 gave some milk to the deceased. He asked him about the names of the assailants and the deceased disclosed the names of Mania, Daraba Naik and others to have hacked him. The evidence of the witnesses have not been discounted in any manner in the cross-examination. The suggestion that the deceased had died by the time he reached has been stoutly denied. From the above evidence, it is clear tha both the witnesses have reached the deceased soon after the assault. On being asked, the deceased named the appellant Mania and others as assailants. 10.Learned counsel for the appellants on the basis of the evidence of P.W.14, the doctor, who attended the deceased in Casualty Ward of the S.C.B. Medical College & Hospital, has contended that since the deceased was received in critical condition in the casualty ward and was in coma stage, he was not able to talk, therefore, the dying declarations alleged to have been given are not trustworthy. This argument is not acceptable in view of the fact that the deceased was received in injured condition at 5.20 P.M. The occurrence took place at 4.10 P.M. and soon after the occurrence the witnesses reached the spot before whom the deceased disclosed the names of the appellants. There is a huge time gap between the dying declaration and admission in the casualty ward. There were large number of incised injuries on the person of the deceased and his condition must have deteriorated by the time he was admitted into the Casualty Ward. There is a huge time gap between the dying declaration and admission in the casualty ward. There were large number of incised injuries on the person of the deceased and his condition must have deteriorated by the time he was admitted into the Casualty Ward. Because the deceased was not in a fit state at 5.20 P.M. when he was admitted to the casualty ward, the declaration made much prior to it at 4.10 P.M. cannot be discarded. Learned counsel for the appellants further argued that the opinion of P.W.11, who conducted the autopsy is that the death might have taken place within few minutes after the assault, as such, the dying declaration made by the deceased is not believable. Admittedly, the deceased was alive up to 5.20 P.M. when he was brought to the casualty ward and therefore, the above opinion of the witness (P.W.11) does not ensure to the benefit of the appellants. 11.The evidence of P.Ws.4 & 14, the witnesses to the dying declaration, are assailed on the ground that they suffer from infirmities and material contradictions. It is contended that though P.W.4 stated in his evidence that by the time of his arrival near the deceased P.Ws.1, 2 & 3 were already present, but none of the said witnesses has supported the prosecution case. P.Ws.1, 2 and 3 all of them have turned hostile and have expressed their ignorance about the occurrence. P.W.1 has stated that he came to the spot at 6.00 P.M. Therefore, question of his seeing P.W.4 & P.W.14 at the time of occurrence does not arise. P.W.2 resorted to falsehood by saying that he returned from work at about 4.00 P.M. and found the deceased lying dead. The deceased died at 5.30 P.M. in S.C.B. Medical College & Hospital, therefore, his evidence is completely false. P.W.3 has partly supported the case by saying that P.W.14 enquired something from the deceased, but he could not hear their conversation as he was standing out side the door of the house. The above evidence do not in any manner affect the credibility of the witnesses rather there is some corroboration to the dying declaration. Combined reading of all these evidence leads to the conclusion that the dying declaration is reliable and worthy of credence. The above evidence do not in any manner affect the credibility of the witnesses rather there is some corroboration to the dying declaration. Combined reading of all these evidence leads to the conclusion that the dying declaration is reliable and worthy of credence. 12.The sword (M.O. II) was recovered from near the boundary fence of a neighbouring quarters which was at a distance of only 30 feet from the quarters of the deceased. The recovery of the weapon of offence MO-II has been proved by P.Ws.14, 16 & 18. It is also challenged that since the dog master has not been examined, the recovery at the instance of the dog should not be believed/accepted. Recovery has been proved through the witness present there. Whether the same was at the instance of the dog or not is inconsequential and do not affect the substratum of the prosecution case. 13.Challenge is also made to the delay in sending the material objects for chemical examination. True it is that there was delay in sending the material object to SFSL, but that itself would not dislodge the finding of guilty. Mere delay is not material since no prejudice is shown to have been caused to the appellants. Absence of opinion about the grouping of blood on MO-IX, the wearing pant of the appellant-Mania has no material bearing on the prosecution case. It is not the case that the deceased was wearing the pant (MO-X) at the time of occurrence. Secondly, the appellants absconded soon after the occurrence, the appellant-Mania was arrested on 28.3.1995 i.e. five days thereafter. For the above reasons the stain got deteriorated and consequently no opinion could be furnished. It is well settled in law that mere absconding is not conclusive proof of guilt of the accused. However, it is an incriminating circumstance which proves the conduct of the accused. There is no reasonable and plausible explanation by the said appellant for his immediate departure from the spot. Therefore, it can be inferred that in order to escape from the course of justice the accused-Mania disappeared from the spot immediately after the occurrence and concealed himself. 14.A feeble attempt has been made to the effect that the identity of the accused persons has not been established since full name, father’s name and residence of the assailants are absent. The deceased was residing in the Railway Colony. 14.A feeble attempt has been made to the effect that the identity of the accused persons has not been established since full name, father’s name and residence of the assailants are absent. The deceased was residing in the Railway Colony. The father of the accused Mania was also an employee of the Railway Department and was residing in the same colony. The accused was staying in his father’s quarters. P.W.10, who searched the accused-appellants has stated this fact. Since the accused was residing in the same colony and his father was a colleague of the deceased, there was no scope for any mistaken identity. 15.Considering the evidence on record in its proper perspective, the conclusion is irresistible that the appellants caused the death of the deceased. The finding of the learned Trial Court regarding guilt of the appellant Mania @ Nilamani Naik is unassailable and is, therefore, confirmed. As regards the conviction of the appellant Ashok Kumar Behera is concerned, the same is solely based upon the blood stain found on the pant (MO-IX) worn by him which matched with the blood group of the deceased. Barring this evidence, there is no direct or circumstantial evidence to establish the complicity of this appellant. Merely because B-Group blood was found in the pant of the appellant-Ashok Behera that itself would not be sufficient to hold him guilty of commission of murder. Accordingly, the appellant-Ashok Kumar Behera is acquitted of the charges. In view of the above, Crl. Appeal No.28 of 1997 is dismissed and Criminal Appeal No.145 of 1997 is allowed. P. MOHANTY, J.I agree. Ordered accordingly.