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2010 DIGILAW 760 (ORI)

Sugulu Behera v. State of Orissa

2010-11-10

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT The trial Court has convicted the appellant for commission of offence under Section 302 of the Indian INDIAN PENAL CODE (in short ‘I.P.C.’) and sentenced him to suffer imprisonment for life. 2.The aforesaid judgment and order of sentence passed by the learned Additional Sessions Judge, Angul in Sessions Trial No. 10 of 2003/2 of 2003 is impugned in this appeal. 3.The occurrence happened at about 10.30 A.M. on 17.8.2002 at village Similichhuin under Banarpal P.S. The spot of occurrence is the village road near the house of one Panu Behera (not examined). Stated succinctly the prosecution case is that the appellant gave two blows by a Tangia, as a result of which the deceased Gita died at the spot. Prior to the incident there was a quarrel between the appellant and the deceased as the football kicked by the appellant hit Gita (deceased) and at her behest a panchayat was held in the village. On the basis of the report lodged regarding the incident, the case was registered and on completion of investigation, the I.O. (P.W.16) filed charge-sheet implicating the appellant for commission of offence under Section 302 I.P.C. 4.Prosecution examined 16 witnesses to prove the charge out of whom P.W.4 is the sole eye-witness to the occurrence, P.W.1 is the husband of the deceased, P.Ws. 2, 3 and 8 are witnesses to seizure, P.W.5 is the witness to inquest over the dead body, P.Ws. 6 and 7 are the post occurrence witnesses, P.W.9 is the President of the village who had called the meeting at the behest of deceased Gita prior to the occurrence. P.W.10 is a witness who turned hostile. P.W.11 is a non-consequential witness. P.W.12 is the Constable, who took the dead body of deceased Gita for postmortem. P.W.13 is the Constable before whose presence the wearing apparels of the deceased were seized. P.W.14 is a witness, who collected the nail clipping of the appellant and before whom such nail clipping of the appellant was seized. P.W.15 is the Medical Officer who conducted the postmortem. P.W.16 is the I.O. Defence plea is one of denial. No witness was examined on behalf of the defence. 5.The learned trial Court on the basis of evidence of P.W.4 and other materials on record, recorded the findings of guilty against the appellant. P.W.15 is the Medical Officer who conducted the postmortem. P.W.16 is the I.O. Defence plea is one of denial. No witness was examined on behalf of the defence. 5.The learned trial Court on the basis of evidence of P.W.4 and other materials on record, recorded the findings of guilty against the appellant. 6.Learned counsel for the appellant submits that on the basis of evidence of the sole eye-witness P.W.4, who cannot be believed, in view of the discrepancies in the prosecution evidence, the appellant should not have been convicted by learned Court below. Learned Additional Standing Counsel, on the other hand, support the impugned judgment. 7.On perusal of the impugned judgment and the materials on record, we find that the basis of conviction of the appellant is the evidence of the sole eye-witness (P.W.4). The learned trial Court has accepted the evidence of said P.W.4 eschewing all the objections raised by the defence, justifying rejection of his evidence. 8.From the evidence of P.W.4, it is found that he witnessed the occurrence while returning from the land. In his cross-examination, he has testified to have seen the occurrence from the front of the house of one Fasia Behera (not examined), which is situated at a distance of 7 to 8 cubits from the spot. He has further testified that the appellant gave three blows. He gave the first blow on the waist of the deceased Gita and receiving that blow, the deceased fell down. Thereafter, he gave the second blow on the left side of the neck of the deceased and the third blow was dealt on the right side neck. 9.The aforesaid evidence of P.W.4 finds no corroboration from any other witness, if we take into consideration, the entire evidence on record in proper prospective. P.W.7 is none other than the elder brother of P.W.4. In cross-examination, he has testified that P.W.4, Ghanashyam Behera had been with him to their land. P.W.4 went ahead of him and by the time they went to the spot, Gita was lying dead. Such evidence of P.W.7 belies the evidence of P.W.4 to the effect that he is an eye-witness to the occurrence. P.W.4 in is evidence has testified that the house of Fasia Behera from where he saw the occurrence is at a distance of 7 to 8 cubits from the spot. Such evidence of P.W.7 belies the evidence of P.W.4 to the effect that he is an eye-witness to the occurrence. P.W.4 in is evidence has testified that the house of Fasia Behera from where he saw the occurrence is at a distance of 7 to 8 cubits from the spot. P.W.7 further testified that the house of Fasia Behera is at a distance of 200' from the spot. The spot map prepared by the I.O. has been marked as Ext. 12 in the trial Court. On thorough scrutiny of the spot map, we do not find that the house of Fasia Behera has been shown in the spot map though houses of other persons have been shown therein. Near the spot of occurrence, one Guava tree where P.W.4 is shown to have been present has been marked in the spot map. On scrutiny of the evidence of the I.O., it is found that the I.O. (P.W.16) in his cross-examination has testified that the house of Fasia Behera is not situated near the spot and for that it has not been shown in the spot map. 10.In the spot map prepared by the I.O., P.W.4 is shown to have seen the occurrence from near the Guava tree marked-J in the spot map. When the spot map has been prepared with reference to the presence of a particular witness, it must have been prepared on the basis of the statement of that particular witness and the facts shown in the spot map in such as event may not be taken into consideration at the time of trial being hit by Section 162 Cr.P.C. But regard being had to the contradictory statement of the eye-witness, P.W.4 and the spot from where he is alleged to have seen the occurrence as testified by the I.O., a doubt regarding the spot where P.W.4 was present at the time of occurrence is created, and P.W.4 is relegated to the position of an unbelievable witness. 11.P.W.4, who is testified to have seen the appellant giving three blows to the deceased, i.e., one to her waist, second to her left side of neck and third to right side of her neck. Evidence of Medical Officer, P.W.15 however speaks of two incised wound one on the right side of neck 2" above the right clavical and another on the back side of neck near servical C.7. Evidence of Medical Officer, P.W.15 however speaks of two incised wound one on the right side of neck 2" above the right clavical and another on the back side of neck near servical C.7. There is no injury on the waist of the deceased. In view of such evidence of Medical officer, it cannot be also said that P.W.4 finds corroboration from the medical evidence. 12.P.W.4 in his evidence has further testified to have stated about the incidence to the husband of the deceased. Husband of the deceased has been examined as P.W.1, who in his evidence is testified to have come to know about the occurrence from the children. Taking into consideration all the aforesaid facts, we loathe to base the conviction of the appellant on the sole testimony of P.W.4 in absence of corroboration from his evidence. 13.In view of our discussions made above, the judgment and order passed by the learned Additional Sessions Judge, Angul in Sessions Trial No. 10 of 2003/2 of 2003 convicting the appellant under Section 302 I.P.C. is set aside and consequently the sentence passed thereunder is also set aside. The appeal is accordingly allowed. The appellant be set at liberty forthwith unless his detention is required in any other case. Appeal allowed.