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2011 DIGILAW 326 (ORI)

Krushna Mohan Samal v. State of Orissa

2011-06-22

SANJU PANDA

body2011
JUDGMENT S. PANDA, J. — This appeal is directed against the order dated 21.11.1997 passed by the learned Addl. Sessions Judge, Jeypore in Sessions Case No.47 of 1996 (S.C. 41/96 of Sessions Judge, Jeypore) convicting the appellant under Section 304-A IPC and imposing a sentence of one year rigorous imprisonment. 2.The prosecution case, in brief, is that the appellant was working as a Sepoy in O.S.A.P. 3rd Battalion, Koraput. Prior to the date of occurrence, on 5.6.1995 the accused and other officials of OSAP 3rd Battalion were sent to Gothalpodar Camp under Gunupur Police Station to perform Anti Naxalite Picketing post duty. He along with other staff was staying in the barrack. On the date of occurrence i.e. on 21.6.1995, inspection programme of the Commandant was scheduled for which all the inmates were busy in preparing themselves for attending the inspection at 8 A.M. At about 7.45 A.M., as alleged by the prosecution, there was a sudden firing from the rifle of the appellant which hit the head of the deceased causing instantaneous death. The deceased was working as a Nayak. The appellant was found to be lying unconscious near his bed. One Banchanidhi Sahu, Jamadar (P.W.11) who was in-charge of the Camp sent VHF message to Gunupur Police Station. On arrival of the police, the said Jamadar lodged an FIR which resulted in the prosecution. 3.The plea of the appellant is one of complete denial and false implication with a specific plea that he was not responsible for the accident causing death of the deceased. 4.The prosecution in order to prove the charge examined as many as sixteen witnesses. P.W.11 is the informant. P.W.9 is the Doctor who conducted post-mortem examination over the dead body of the deceased. P.W.16 is the I.O. P.W.3 is the Havildar. P.Ws. 2,4,5,6 and 7 are Sepoys. P.W.8 is the Tahasildar of Gunupur. P.W.12 is also a Sepoy attached to the said Camp. P.W.13 is the Asst. Armorer of O.S.A.P. 3rd Battalion. In support of the prosecution case, they exhibited documents which were marked as Exts. 1 to 21 out of which, Ext.2 is the inquest report. Ext.7 is the post-mortem examination report. Ext.11/3 is the formal FIR. Ext.16 is the Chemical Examination Report. Ext.17 is the ballistic examination report, etc. M.O.VI is the seized rifle. MO VIII is four numbers of 303 cartridges of 87. M.O.IX is one 303 empty cartridge. 1 to 21 out of which, Ext.2 is the inquest report. Ext.7 is the post-mortem examination report. Ext.11/3 is the formal FIR. Ext.16 is the Chemical Examination Report. Ext.17 is the ballistic examination report, etc. M.O.VI is the seized rifle. MO VIII is four numbers of 303 cartridges of 87. M.O.IX is one 303 empty cartridge. The defence neither examined any witness nor filed any documentary evidence. 5.The trial court, on an analysis of the evidence available on record, held that the appellant guilty of offence under Section 304-A IPC on the finding that P.Ws. 3, 12 and 14 who were said to be the eye-witnesses to the occurrence suppressed the relevant part of the prosecution case. They did not say directly that they saw that at the relevant time while the accused was cleaning his rifle he pressed its trigger as a result of which there was a sudden fire from his rifle and it hit on the head of the deceased who ultimately died at the spot. However, P.W.3 admitted to the extent that at the relevant time he and the other staff who were inside the Barrack were cleaning their respective rifles and preparing themselves to attend the camp in question. P.W.12 said that by the time he was wearing his dress, suddenly he head the gunshot sound and saw that the deceased fell from his cot and was lying dead on the floor and accused-Krushna Mohan Samal, the present appellant, being in an unconscious state was lying on his cot. On the above, it is the admitted fact that the accused was in night centry duty from 1.00 A.M to 3 A.M on 21.6.1995. After his night centry duty was over, he was not supposed to keep the rifle and its bullets with him. Even if the accused kept the same with him, he was also not supposed to keep the rifle in question in loaded condition at the time of cleaning the said rifle. The accused was cleaning the rifle which was with loaded bullets at the relevant time and in the process he pressed the trigger of his rifle by which there was a sudden firing from his rifle by which the deceased died. The accused was cleaning the rifle which was with loaded bullets at the relevant time and in the process he pressed the trigger of his rifle by which there was a sudden firing from his rifle by which the deceased died. 6.Learned counsel appearing for the appellant submitted that the so-called eye-witnesses of the prosecution resiled from their original statements and suppressed some part of the prosecution case, is not correct, as observed by the trial Court. Rather, the prosecution had no direct knowledge regarding the actual firing of the bullet from the rifle of the present appellant. Therefore, the conclusion of the trial Court that due to negligence of the appellant there was firing from the rifle in question causing death of the deceased is liable to be set aside as the same was based on suspicion and conjectures and the appellant is entitled to benefit of doubt. The statement of P.W.12 is only hearsay which cannot be accepted and his statement so far as the time of taking of food by the deceased was concerned is also contradictory to the evidence of the doctor P.W.9 who conducted the post-mortem over the dead body of the deceased. P.W.16 the I.O. had also not taken the finger print of the rifle in question, the vital link to connect the appellant with the incident and the said link is being disrupted. He further submitted that there being no eye-witness to the occurrence, in the absence of any direct evidence, the benefit of doubt should have been extended in favour of the appellant. 7.Learned Standing counsel appearing for the State, however, supporting the finding of the trial Court submitted that since the rifle belonged to the appellant and he was preparing himself for the inspection when the incident took place, it can be concluded that the appellant is the real culprit. 8.It is trite that where two views on the evidence are reasonably possible, the view favouring acquittal is to be taken. The appellate Court being the final Court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. There is no limitation, restriction or condition on exercise of such power and the appellate Court is free to arrive at its own conclusion keeping in mind the acquittal in favour of the accused. The appellate Court being the final Court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. There is no limitation, restriction or condition on exercise of such power and the appellate Court is free to arrive at its own conclusion keeping in mind the acquittal in favour of the accused. State of the accused made under Section 313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such, a statement is not recorded after administration of oath and the accused cannot be cross-examined. His statement so recorded under Section 313 Cr.P.C. cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act. The explanation given by the accused in his statement recorded under Section 313 Cr.P.C. in case appears to be more plausible and believable than the prosecution case then the Court has to accept it on the principle of preponderance of probabilities. 9.The present case is to be tested on the above touchstone principle. 10.From the above submissions of the learned counsel for the parties and after going through the records, it appears that P.Ws. 3,11,12 and 14 are the eye-witnesses who were present at the time of the occurrence. None of the said witnesses in his evidence had stated that they saw the appellant pressed the trigger of the rifle. Rather, all of them stated that they were busy in preparing themselves for the inspection. They heard the firing of the rifle and saw the deceased died on the cot and the appellant was also unconscious. P.W.12 stated that after hearing the gunshot sound, he saw that deceased Ratikanta Sahu sustained bleeding injuries on his head and fell down on the cot and the accused being unconscious was lying on his cot. He further stated that after the night duty of a staff was over, he used to sleep on his cot inside the barrack keeping his loaded rifle with him by his side. This statement of P.W.12 is also corroborated by P.W.2 who stated that anticipating attack by Naxalities, during night they used to keep the rifle loaded with cartridges. After the duty hours of a particular Sepoy during night is over, without depositing the same they keep the same near the bed side. This statement of P.W.12 is also corroborated by P.W.2 who stated that anticipating attack by Naxalities, during night they used to keep the rifle loaded with cartridges. After the duty hours of a particular Sepoy during night is over, without depositing the same they keep the same near the bed side. The accused in his statement recorded under Section 313 Cr.P.C. stated that he was on night duty from 1.00 A.M to 3.00 A.M on the previous day of the occurrence. Therefore, he woke up late in the morning on being asked to be ready for inspection. He brought metal powder from his box which was underneath the cot and at that time there was a fire from his rifle which was kept near the wall and he saw the deceased died and looking at the same, he became senseless. Therefore, taking into consideration the statement of P.Ws. 3, 12 and 14 who were the inmates of the barrack and in the absence of any direct evidence, two views are possible. There is no material on record basing on which the Court can come to a definite conclusion that the appellant is the person who committed the crime. Since the prosecution has failed to do so, two views are not possible. Therefore, this Court has taken the view in favour of the present appellant. 11.Hence, the impugned order of conviction and sentence passed by the trial Court is set aside as the prosecution has not proved its case beyond reasonable doubt. Accordingly, the appeal is allowed. The bail bond furnished by the appellants stands discharged. Appeal allowed.