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2010 DIGILAW 745 (ORI)

Gobinda Takiri v. State of Orissa

2010-11-03

B.K.NAYAK, PRADIP MOHANTY

body2010
JUDGMENT PRADIP MOHANTY, J. — The appellants have assailed the judgment and order of conviction dated 30.11.2005 passed by the learned Sessions Judge, Koraput, Jeypore in Criminal Trial Case No.430 of 2004 convicting them under Sections 302/34 I.P.C. and sentencing them to undergo imprisonment for life and pay a fine of Rs.5,000/- each, in default to undergo R.I. for six months. 2.The case of the prosecution is that on 28.06.2004 at about 8.00 PM, both the accused persons, being the father-in-law and wife of the deceased, quarrelled with him. During such quarrel, the wife of the deceased instigated her father to kill the deceased. After some time, the informant, who is the sister of the deceased, came to the house of the deceased to call him but he did not come. On the next morning, she again went to the house of the deceased and found him absent. On search, the dead body of the deceased was traced near Champabati river with injury mark on his head. Her nephew Suresh Garada (son of the deceased) told her that on the previous night, his mother (appellant No.2), grand-father (appellant No.1) and grand-mother were quarrelling with his father. Thereafter, all of them, except his grand-mother, went to take liquor, wherefrom his father did not return. Getting this information, the informant became confirmed that her brother (deceased) has been murdered by his wife (appellant No.2) and father-in-law (appellant No.1). So, she lodged F.I.R. in Narayanpatna Police Station on receipt of which Narayanapatna P.S. Case No.31 of 2004 was registered, investigation commenced and on its completion charge-sheet was laid against the appellants under Sections 302/34 I.P.C. 3.The plea of the appellant is one of complete denial and false implication. 4.In order to prove its case, the prosecution has examined as many seven witnesses, including the doctor and the Investigating Officer, and exhibited thirteen documents, The defence has examined none. 5.Learned Sessions Judge on conclusion of the trial came to hold, that the death of deceased by falling on the stony surface of the river bed due to push given by the appellants has been proved by the prosecution beyond reasonable doubt, and so holding convicted and sentenced the appellants as already indicated hereinbefore. 5.Learned Sessions Judge on conclusion of the trial came to hold, that the death of deceased by falling on the stony surface of the river bed due to push given by the appellants has been proved by the prosecution beyond reasonable doubt, and so holding convicted and sentenced the appellants as already indicated hereinbefore. 6.Learned counsel for the appellants has assailed the impugned judgment of conviction inter alia on the following grounds : (i)There is no eye witness to the occurrence, the entire case is based upon circumstantial evidence and the chain of circumstances is not complete; (ii)The most material witness, namely, Suresh Garada, who informed about the quarrel between the appellants on one hand and the deceased on the other to the informant, has not been examined by the prosecution. So, the prosecution is guilty of suppression of true state of affairs; (iii)The conviction of the appellants having been based upon the evidence of the informant, who is not an eye witnesses; and the postmortem doctor having not corroborated the prosecution story, there is no iota of evidence-either oral or documentary- to connect the appellants with the crime and the trial Court has wrongly come to the conclusion that the cause of death of the deceased was due to his falling down on the stony surface as a result of the push given by the appellants. 7.Mr. Rath, learned Additional Standing Counsel while supporting the impugned judgment of conviction vehemently contended that the prosecution has been able to establish the complicity of the appellants in the crime through the evidence of P.W.4, which is clear, cogent and unimpeachable and corroborated by P.Ws. 1, 2, 3 and 5. Besides, the evidence of the doctor (P.W.6), his postmortem examination report as well as the evidence of the Investigating Officer (P.W.7) amply corroborate the prosecution case. The chain of circumstantial evidence led by the prosecution in order to bring home the charge to the appellants is complete. Therefore, no illegality or infirmity can be said to have been committed by the learned Sessions Judge in convicting the appellants. 8.Perused the LCR. P.W.1 is a witness to the inquest. He proved the inquest report (Ext.1) and his signature thereon marked Ext.1/1. But he deposed that on being called by the police, he went to Champa river side and witnessed the inquest conducted by the police. 8.Perused the LCR. P.W.1 is a witness to the inquest. He proved the inquest report (Ext.1) and his signature thereon marked Ext.1/1. But he deposed that on being called by the police, he went to Champa river side and witnessed the inquest conducted by the police. P.W.2 is a co-villager of the appellants and a seizure witness. He stated that in his presence in the police station, the wearing apparels of the deceased were seized vide seizure list (Ext.2) on being produced by police constable after postmortem examination. Some broken glass bangles were seized from the possession of appellant No.2- Radhika vide seizure list (Ext.3). He proved Exts.2 and 3 and his signatures thereon marked Exts.2/1 and 3/1. This P.W.2 in his cross-examination has, however, admitted that the glass bangles were lying on the road near the house of appellant No.2-Radhika and that he has not seen any articles seized by police from the hands of appellant No.2-Radhika. P.W.3 is the nephew of the deceased, who turned hostile. P.W.4 is the sister of the deceased and the informant of the case. In her evidence, she specifically stated that on one night during Ratha Jatra period she did not find her brother in the festival. Coming to know that her brother and his wife had been quarrelling in their house, on the next morning she went to call her brother to her house, but he was not there. On the same day, his dead body was discovered from near the side of river Chambabati and there were several injuries on his body. She disclosed this fact to the villagers. On her interrogation, her nephew Suresh Garada told her that the accused persons severely assaulted his father (deceased) and took him along with them after which his father did not return home. She proved the F.I.R. marked Ext.4. In cross-examination, she admitted that she saw the dead body was lying inside the water of the river and that her deceased-brother used to take liquor in the evening at times. P.W.5 is a witness to the inquest and seizure of photographs of the deceased taken during investigation. He proved the inquest report (Ext.1) and the seizure list (Ext.5) as well as his signatures thereon marked Exts.1/2 and 5/1. In cross-examination, he admitted that the dead body was on the river water. P.W.5 is a witness to the inquest and seizure of photographs of the deceased taken during investigation. He proved the inquest report (Ext.1) and the seizure list (Ext.5) as well as his signatures thereon marked Exts.1/2 and 5/1. In cross-examination, he admitted that the dead body was on the river water. P.W.6 is the doctor, who conducted autopsy over the dead body of the deceased and found the following injuries: “(i)one incised wound of size 4 cm x 1 cm x 5 cm on left frontal part 1 cm above the left eye brow; (ii)one lacerated wound of size 5 cm X 5 cm on left parietal bone 10 cm above the left ear; (iii)one contusion of size 10 cm X 8 cm X 5 cm on right upper leg just above the knee joint; (iv)one abrasion size 4 cm X 2 cm X 5 cm on anterior aspect of right side tibia 10 cm below the right knee; (v)one abrasion size 1 cm X 1 cm X 2 cm on back of the knee (left); and (vi)one abrasion on toes of left leg.” On dissection, the following internal injuries were found: “(i)one contusion on parietal part of the brain and blood clots size 5 cm X 3 cm on left parietal area of brain; (ii)parietal part is congested and peripheral part oedematous; (iii)one fracture on right femour bone; and (iv)one depressed fracture on left parietal bone causing internal haemorrhagic of brain and destroying the parietal lobe of the brain.” The doctor opined that all the above injuries were ante mortem in nature and might have been caused by hard and blunt weapon. Cause of death was due to brain death as a result of injury to the left parietal lobe as well as haemorrhagic shock due to large bone fracture (right femour) & neurological shock due to crushing of testis. In cross-examination, he admitted that all the above injuries were possible by fall of a person from height on a stony surface with successive falls thereon. P.W.7 is the I.O., who registered the case, took up the investigation, seized the articles, sent the dead body for post-mortem, prepared the spot map and ultimately filed the charge-sheet against the appellants under Section 302/34, IPC. P.W.7 is the I.O., who registered the case, took up the investigation, seized the articles, sent the dead body for post-mortem, prepared the spot map and ultimately filed the charge-sheet against the appellants under Section 302/34, IPC. In cross-examination, he admitted that he has not examined Suresh Garada, the nephew of the informant, and that P.W.4 had not stated before him that Suresh Garada disclosed that on the previous night, his mother and mother’s father assaulted his father by means of a lathi and took him away after which, his father did not return home. 9.On scrutiny of the entire evidence available on record, this Court finds that there is no eye witness to the occurrence. The cause of death of the deceased, i.e., by falling on the stony surface of the river bed due to push given by the appellants, as accepted by the trial Court, is not borne out from evidence. There is no direct evidence with regard to quarrel between the deceased on one hand and his wife and father-in-law on the other. The vital witness, namely. Suresh Garada, the son of the deceased and the nephew of the informant from whom the informant heard about the quarrel and assault by the appellants to the deceased has been withheld by the prosecution. There is no material on record to establish that the broken bangles seized from the spot belonged to appellant No.2. There are major contradictions in the evidence of P.W.4. The other material witness, i.e., P.W.3, from whom the appellants and the deceased had allegedly taken liquor soon before the occurrence, has turned hostile and has not supported the case of the prosecution. Even if P.W.3 was confronted with his previous statement before the police, in absence of any other corroboration, it is difficult to place reliance on the same. The various links in the chain of evidence led by the prosecution have not been satisfactorily proved. Except the bald statement of P.W.4, there is no iota of evidence to connect the appellants with the crime. For all these reasons, it is unsafe to convict the appellants. 10.In the result therefore, the Jail Criminal Appeal is allowed. The judgment of conviction and sentence passed by the learned Sessions Judge, Koraput, Jeypore on 30.11.2005 in Criminal Trial No.430 of 2004 is set aside. Both the appellants are acquitted of the charge. For all these reasons, it is unsafe to convict the appellants. 10.In the result therefore, the Jail Criminal Appeal is allowed. The judgment of conviction and sentence passed by the learned Sessions Judge, Koraput, Jeypore on 30.11.2005 in Criminal Trial No.430 of 2004 is set aside. Both the appellants are acquitted of the charge. Bail bonds of appellant No.2-Radhika Garada are discharged. Appellant No.1-Gobinda Takiri, who is in jail custody, be set at liberty forthwith, unless his detention is required in any other case. B.K. NAYAK, J.I agree. Appeal allowed.