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2011 DIGILAW 451 (ORI)

Daitari Badi v. State of Orissa

2011-08-24

L.MOHAPATRA, S.K.MISHRA

body2011
JUDGMENT 1. This appeal is directed against the judgment passed by the learned Additional Sessions Judge, Sonepur in Sessions Case No 47/30 of 2000 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (in short 'IPC') and sentencing him to imprisonment for life. 2. P.W.1 lodged the F.I.R. on 17th March 2000 in Biramaharajpur Police Station alleging therein that the deceased Pankaja Badi has been killed in his village by the appellant. On the basis of such information, investigation was taken up by P.W.11 and on completion of investigation, charge-sheet was filed against the appellant for commission of offence under Section 302 of IPC. The preliminary investigation disclosed that the deceased and the appellant belong to same village and were also related to each other. One Karpura Badi-P.W.2, who is a cousin sister of the appellant developed intimacy with the deceased but when it came to the notice of the appellant, the appellant assaulted the deceased and caused his death. 3. Prosecution in order to prove the charge examined 12 witnesses; out of whom, P.W.1 is the informant and P.W.2 is Karpura Badi with whom the deceased is alleged to have developed the love affair. P.W.3 is a witness to the inquest and the seizure of bloodstained thenga with which the appellant assaulted the deceased. P.Ws.4 and 5 were examined as eyewitnesses. P.W.6 is a post-occurrence witness, who claims to have seen the appellant immediately after the incident near the place of occurrence. P.Ws.7 and 8 are the seizure witnesses. P.Ws.10 and 11 are the Police Officers who investigated into the case. P.W.12 is the Doctor, who conducted post mortem examination. Learned Additional Sessions Judge relying on the evidence of P.Ws.1, 4 and 5 found the appellant guilty of the charge and convicted him thereunder. 4. Learned counsel appearing for the appellant assailed the impugned judgment on the ground that all the material witnesses having turned hostile, the learned Additional Sessions Judge could not have relied upon the testimony of hostile witnesses to arrive at a finding that the appellant assaulted the deceased and caused his death. 4. Learned counsel appearing for the appellant assailed the impugned judgment on the ground that all the material witnesses having turned hostile, the learned Additional Sessions Judge could not have relied upon the testimony of hostile witnesses to arrive at a finding that the appellant assaulted the deceased and caused his death. Learned counsel for the State referring to the evidence of P.Ws.4 and 5 submitted that the circumstances proved by these two witnesses clearly point at the guilt of the appellant and, therefore the learned Additional Sessions Judge was justified in relying on the evidence of these two witnesses. 5. We have carefully examined the evidence adduced in course of trial. P.W.1 is the informant. He in his evidence has stated that in the night of occurrence while he was sleeping, he heard hulla and thereafter he rushed towards the house of appellant along with other co-villagers and found the deceased lying injured at the backside of the house of the appellant. He had cut injury on the backside of his head. The deceased was shifted to Biramaharajpur Hospital and on the next morning, he was shifted to V.S.S. Medical College, Burla for better treatment. Before the deceased reached at V.S.S. Medical College, Burla he succumbed to the injuries. This witness was declared hostile and was subjected to cross-examination by the prosecution. P.W.2 also turned hostile and did not support the case of the prosecution. P.W.3 is a witness to the inquest and seizure but he also turned hostile. P.W.4, who was examined by the prosecution as an eyewitness to the occurrence, also turned hostile. P.W.5 is mother of the deceased. She in her evidence has stated that in the night of occurrence when her son (deceased) was sleeping in a temple of the village, she heard shouting at about 10 p.m. and proceeded towards backside of the house of the appellant and saw the deceased lying with injuries on his person. Thereafter, she and co-villagers took the deceased to Biramaharajpur Government hospital for treatment. In examination-in-chief, she nowhere stated to have seen the assault on the deceased. In cross-examination, she has only stated to have heard the appellant shouting that he had killed the deceased. P.W.6 turned hostile and did not support the case of the prosecution. P.W.7 also did not support the case of the prosecution. P.W.8 is a witness to seizure under Ext.5. In cross-examination, she has only stated to have heard the appellant shouting that he had killed the deceased. P.W.6 turned hostile and did not support the case of the prosecution. P.W.7 also did not support the case of the prosecution. P.W.8 is a witness to seizure under Ext.5. P.W.9 is another signatory to Ext.5 and turned hostile. P.Ws.10 and 11 are the Police Officers and P.W.12 is the Doctor, who conducted the post-mortem examination. Though from the evidence of P. W.12, it appears that the deceased died a homicidal death but the only evidence available in favour of the prosecution is evidence of P.W.5, the rest of the material witnesses having turned hostile. As stated earlier, P.W.5 also nowhere stated to have seen the occurrence and in cross-examination only stated that she heard the voice of the appellant shouting that he had killed the deceased. Except this circumstance, there is no other circumstance available in the evidence of witnesses examined on behalf of the prosecution to prove involvement of the appellant in commission of the alleged offence. Though the material witnesses turned hostile, we examined their evidence also, but did not find anything to connect the appellant with the alleged crime. We, therefore find that the prosecution has miserably failed to prove the assault through the only witness, P.W.5 and, accordingly, the impugned judgment is unsustainable. 6. We therefore allow the appeal and set aside the judgment and order of the learned Addl. Sessions Judge, Sonepur passed in Sessions Case No 47/30 of 2000 convicting the appellant-Daitari Badi or commission of offence under Section 302 of the Indian Penal Code. It is stated at the Bar that the appellant is till in custody. If that be so, he be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed.