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2011 DIGILAW 181 (ORI)

Bidu alias Bidyadhar Naik v. State of Orissa

2011-03-22

B.K.NAYAK, PRADIP MOHANTY

body2011
JUDGMENT PRADIP MOHANTY, J. — This appeal is directed against the judgment and order of conviction passed by the learned Sessions Judge, Keonjhar convicting the present appellant under Section 302 of the Indian INDIAN PENAL CODE and sentencing him to undergo imprisonment for life in S.T. No. 13 of 1998. 2.The prosecution case, in short, is that on 18.08.1997 the deceased Budhia Dehury had been to Keonjhar town to sell fire wood, but he did not return. Subsequently his dead body was found on the river bed of Machhakandana near village Bhaliadihi. The fact was reported at Keonjhar Sadar P.S. for which U.D. Case No. 11 of 1997 was registered and enquiry was conducted by the A.S.I. of Police. During enquiry it was noticed that some incised wounds were found on the face, chest and shoulder of the deceased. On getting P.M. examination report the A.S.I. lodged the report before the O.I.C. of Keonjhar Sadar P.S. which has been treated as F.I.R. (Ext.10), who conducted investigation, seized the weapon of offence, arrested the accused and ultimately after completion of investigation charge sheet was submitted against the appellant under Section 302 of the Indian INDIAN PENAL CODE. 2.The plea of the accused-appellant is complete denial of the allegation. In order to prove its case, the prosecution has examined as many as 13 witnesses including the Doctor and the I.O. and exhibited 14 documents and no evidence has been adduced on behalf of the defence. 4.The learned trial Court after scrutinizing the evidence adduced by the prosecution convicted the present appellant under Section 302 of the Indian INDIAN PENAL CODE mainly basing upon leading to discovery and extra judicial confession before P.Ws. 4 and 5. 5.Mr. Karunakar Das, learned counsel for the appellant assails the judgment impugned on the following grounds: i)The only incriminating material against the present appellant is leading to discovery and no corroborative evidence is found against the appellant. ii)The extra judicial confession is not a substantive piece of evidence to convict an accused under Section 302 of the India INDIAN PENAL CODE. iii)Even though the weapon of offence recovered was sent for chemical examination, but no blood stain was found on it as revealed from the report of the Scientific Officer. 6.Mr. Nayak, learned Additional Government Advocate vehemently contends that the evidence of P.Ws. iii)Even though the weapon of offence recovered was sent for chemical examination, but no blood stain was found on it as revealed from the report of the Scientific Officer. 6.Mr. Nayak, learned Additional Government Advocate vehemently contends that the evidence of P.Ws. 2 and 5 are clear, cogent with regard to leading to discovery and the appellant made an extra judicial confession before P.Ws. 2 and 5 and the Budia (M.O.I) which was used as a weapon of offence recovered at the instance of the appellant and the autopsy conducted by the Medical Officer over the dead body of the deceased found fatal injury on his dead body. 7.Perused the record. Admittedly there is no eye witness to the occurrence. Only basing upon the evidence of P.Ws. 4 and 5 the conviction has been made. P.W.1 is the widow of the deceased. She specifically stated in her evidence that her husband while returning from Keonjhar after selling fire wood on the way he was called by the mother of the appellant to her house. There her husband and others took liquor but her husband did not return home. They searched for him and on the following Wednesday the dead body of her husband was recovered from a water channel. P.W.3 is a co-villager of the deceased who has specifically stated in his evidence that they searched for the deceased. On the following Wednesday his dead body was found in a water channel at Tikarpada. He has no knowledge as to how he died, nor he has seen him coming to Keonjhar for sale of fire wood. P.W.4 is a material witness. He specifically deposed that he took Budhia the deceased with him to his house for lunch. They both took cakes and meat at his house. At about 5 P.M. the deceased left his house and on the way he was called by the mother of the appellant to her house. The deceased did not return his home thereafter. After search his dead body was traced in a water channel at Tikarpada. Information was lodged before the Keonjhar Sadar P.S. and thereafter he specifically deposed that during investigation the Police arrested the accused. The deceased did not return his home thereafter. After search his dead body was traced in a water channel at Tikarpada. Information was lodged before the Keonjhar Sadar P.S. and thereafter he specifically deposed that during investigation the Police arrested the accused. The accused while in police custody admitted to have committed the murder of the deceased by means of a budia and saying so led the witnesses and police to his house and gave recovery of the budia which was kept concealed in the corner of his room. Police seized the same under Ext. 2 and another lathi under Ext.3. P.W.5 corroborated the evidence of P.W.4 to the effect that in presence of the Police Officer he gave out that he has committed the murder of the deceased with a budia since Budhia was found having sex relation with his mother. Thereafter the appellant while in custody led them to his house and gave recovery of the budia which was kept in the corner of the room. P.W.8 is Dr. Raghunath Biswal who conducted Post Mortem Examination over the dead body of Budhia Dehury and found the following injuries: i)One incised wound of size 4" x 3" x 3" on right side cheek extending from right eye up to middle of mandible. ii)One incised wound seen on the 5th and 6th vertebra of right side neck of size 6" x 3" x 3" iii)another incised wound on right side chest starting from right side shoulder up to the nipple right side of 6"x2"x3" size causing fracture of third and fourth ribs. iv)Incised wound on right side arm. It’s margin could not be measured due to putrification. It was over the right hummers. v)Incised wound on the right temporal region of scalp with markings of cut on temporal bone. Its size could not be ascertained due to putrification. The Doctor opined that the injuries are ante mortem in nature. The injuries might have been caused by sharp cutting weapon and the cause of death was due to haemorrhage and shock. P.W.13 is the I.O. He has stated in his evidence that on the written report of A.S.I. (P.W.11) Banamali Bej he registered Sadar P.S. Case No. 107 of 1997 under Section 302 of the Indian INDIAN PENAL CODE and took up investigation. P.W.13 is the I.O. He has stated in his evidence that on the written report of A.S.I. (P.W.11) Banamali Bej he registered Sadar P.S. Case No. 107 of 1997 under Section 302 of the Indian INDIAN PENAL CODE and took up investigation. During the course of investigation he examined the witnesses, arrested the accused, visited the spot and prepared the spot map. While the accused was in custody, he recorded his statement under Section 27 of the Evidence Act in presence of witnesses. 8.On scanning the evidence, it is crystal clear that there was no eye witness to the occurrence. The materials collected in the case against the appellant are not sufficient to record a conviction under Section 302 of the Indian INDIAN PENAL CODE. The chemical examination report reveals that no blood stain was found on the budia (M.O.I). The recovery of weapon of offence on the information given by the appellant would hardly advance the prosecution case against the appellant as per the decision reported in the case of Baboo and others -v- The State of Madhya Pradesh reported in AIR 1979 S.C. 1042 . Similar view has also been taken by this Court in the case of Satrughana alias Satura Majhi v. State reported in Vol.XXXV CLT at page 351. In the present case the motive has not been proved by the prosecution against the appellant. In absence of any motive, it cannot be said that the appellant is the author of the crime. No independent corroboration is forthcoming to hold the appellant guilty under Section 302 of the Indian INDIAN PENAL CODE. 9.In the result, the appeal is allowed. The order of conviction and sentence recorded against the appellant under Section 302 of the Indian INDIAN PENAL CODE by the Sessions Judge, Keonjhar in S.T. No. 13 of 1998 is set aside and the appellant be set at liberty forthwith. Appeal allowed.