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2011 DIGILAW 362 (ORI)

Hadi Sisa v. State of Orissa

2011-07-18

B.K.PATEL, PRADIP MOHANTY

body2011
JUDGMENT PRADIP MOHANTY, J. - This appeal is directed against the judgment and order dated 06.02.2002 passed by the Additional Sessions Judge, Malkangiri in Sessions Case No.70 of 1999 convicting the appellant under Section 302 IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution, in short, is that on 20.05.1997 at about 11.00 AM the appellant was cutting a bamboo by tangia. The deceased (Soma Muduli) came and asked him as to why he is cutting bamboo without his permission. At this, the appellant threatened to murder him by the said evening and saying so went towards the jungle to take salap (liquor). In the evening, when the deceased, after some discussion with his elder brother-Hadi Muduli, was returning to his house, the appellant who had concealed himself with bow and arrow, shot an arrow at the deceased. The said arrow pierced into the right side of the chest of the deceased, for which he shouted to have been shot by the appellant. Hadi Sisa (P.W.5) and one Chhaniki Sisa, who had witnessed the occurrence and identified the appellant, tried to pullout the arrow but its iron portion remained sticking into the body and the deceased succumbed to the injury. On the next morning, a meeting was convened in the village, the dead body of the deceased was brought to Mudulipada Police Station where P.W.2 orally reported the incident which was reduced to writing by P.W.11. Consequent upon such report, police registered the case, held inquest over the dead body of the deceased and sent the same for post mortem, seized the incriminating materials and after completion of the investigation filed charge sheet against the appellant under Section 302, IPC. 3. The appellant took the plea of denial and false implication due to enmity. 4. To bring home the charge, prosecution examined as many as twelve witnesses including the doctor and the I.O. and exhibited thirteen documents. The defence did not choose to adduce any oral or documentary evidence. 5. Learned Addl.Sessions Judge, who tried the case, convicted the appellant under Section 302, IPC mainly basing upon the testimony of the so-called ocular witnesses, i.e., P.Ws.5 and 8. 6. Mr. Jena, learned counsel appearing for the appellant submits that the conviction cannot be based upon the evidence of P.W.5, as his evidence is not clear, cogent and trustworthy. 5. Learned Addl.Sessions Judge, who tried the case, convicted the appellant under Section 302, IPC mainly basing upon the testimony of the so-called ocular witnesses, i.e., P.Ws.5 and 8. 6. Mr. Jena, learned counsel appearing for the appellant submits that the conviction cannot be based upon the evidence of P.W.5, as his evidence is not clear, cogent and trustworthy. P.W.8 as per his own admission is not a witness to the occurrence. If the evidence of these two witnesses is discarded, there is no other evidence to implicate the appellant with the crime. 7. Mr. Rath, learned Additional Standing Counsel strongly contends that the evidence of P.Ws.5 and 8 is very clear, cogent and trustworthy. They have specifically implicated the appellant with the crime. The autopsy doctor (P.W.6) opined that the injury sustained by the deceased was ante mortem in nature and caused by a sharp cutting weapon like arrow and he removed the iron portion of the arrow from the dead body. The ocular testimony coupled with the medical evidence clearly establishes the guilt of the appellant, for which there is hardly any scope for this Court to interfere with the impugned judgment. 8. Perused the L.C.R. P.W.1 is the constable of police who guarded the dead-body. P.W.2 is the father of the deceased and a post occurrence witness. He deposed that on getting information, he went to the spot and found his son lying dead by arrow shot. Hadi Sisa (P.W.5) told him about the occurrence. He reported the matter orally at the police station. He further deposed that the arrow was pierced into the body of the deceased. In cross-examination, he admitted that he had not seen the actual occurrence and not stated before the I.O. that P.W.5 told him about the occurrence. P.W.3 in his evidence stated that he had not seen the occurrence. P.W.4, who is a co-villager, has not supported the case of the prosecution. P.W.5 stated that the accused shot an arrow at the deceased which pierced into the left side of his chest and the deceased died at the spot. In cross-examination, he stated that the occurrence took place in a dark night and he had seen the actual assault. He was standing at a distance of 20 feet from the place of occurrence. After seeing the occurrence, he went to his house out of fear. In cross-examination, he stated that the occurrence took place in a dark night and he had seen the actual assault. He was standing at a distance of 20 feet from the place of occurrence. After seeing the occurrence, he went to his house out of fear. P.W.6, the doctor, who conducted autopsy, found one external injury on the right side of the chest near right nipple of size 1.5 cm length X 1 cm breadth X depth. He opined that both external and internal injuries were ante mortem in nature. The cause of death was due to sudden injury to the right abdomen and lung which resulted in severe bleeding and intra-abdominal haemorrhage which led to shock and death. He further opined on examination of the arrow being produced by the I.O. that the injuries could be caused by a sharp cutting weapon like arrow. He proved the post mortem report (Ext.3). P.W.7 is a witness to the seizure of blood stained earth and sample earth. P.W.8 stated that in his presence the appellant pierced an arrow into the chest of the deceased. In cross-examination, he stated that he had not stated before the I.O. that he had seen the murder of the deceased. He further admitted that he heard about the occurrence from Chaniki Toki. P.W.9 stated that the informant told him that the appellant shot an arrow at the chest of the deceased, as a result of which he died. P.W.10 deposed that he heard about the incident from the villagers. P.W.11 is the A.S.I. of police, who, in the absence of the OIC, received the FIR, took up investigation, held inquest and prepared the inquest report (Ext.7), effected the seizure of two numbers of broken bamboo arrows and prepared the seizure list (Ext.8), sent the dead body for post mortem, seized the wearing apparels of the appellant and the bow under Ext. 10, recorded the statement of the appellant and handed over the charge of investigation to the O.I.C. P.W.12 is the OIC who took charge of the investigation from P.W.11, visited the spot and filed charge sheet against the appellant under Section 302 I.P.C. 9. According to the prosecution, P.Ws.5 and 8 are the two witnesses in whose presence the occurrence had taken place. According to the prosecution, P.Ws.5 and 8 are the two witnesses in whose presence the occurrence had taken place. It is the evidence of P.W.5 that in his presence the appellant shot an arrow at the deceased which pierced into the left side of his chest. But, as per the evidence of the doctor (P.W.6), who conducted autopsy, there were injuries on the right side of the chest of the deceased as well as on the right lung and right lobe of the liver of the deceased. This apart, P.W.5 in cross-examination has admitted that the occurrence took place in a dark night at a distance of 20 feet from where he was standing and that he had not disclosed about it to anybody. In such view of the matter, P.W.5 cannot be said to be a witness to the occurrence. Although P.W.8 testified that in his presence the appellant shot an arrow to the deceased, in cross-examination it has been admitted by him that he heard about the murder of the deceased from one Chaniki Toki. Curiously enough, the said Chaniki Toki, from whom P.W.8 head about the murder of the deceased, has not been examined by the prosecution and no explanation has been offered by it in regard to the same. So, in view of his admission in the cross-examination under no stretch of imagination P.W.8 can be termed as an occurrence witness and his evidence cannot be relied upon for any purpose. From the records it reveals that the broken arrow was seized not from the possession of the appellant but from one Hadi Muduli, who has not been examined in this case. In absence of any other incriminating circumstance to substantiate the charge beyond all reasonable doubt, it would be travesty of justice if the conviction of the appellant is sustained. 10. For the foregoing discussion, the JCRA is allowed and the impugned judgment of conviction and sentence rendered by the learned Additional Sessions Judge, Malkangiri in Sessions Case No.70 of 1999 (S.C.228/97 of Sessions Judge, Koraput-Jeypore) is set aside. The appellant be set at liberty forthwith, if his detention is not required otherwise. B.K. PATEL, J. I agree. JCRA allowed.