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2011 DIGILAW 521 (ORI)

Nanda Pradhan v. State of Orissa

2011-10-18

B.K.PATEL, PRADIP MOHANTY

body2011
JUDGMENT PRADIP MOHANTY, J. - This jail criminal appeal is directed against the judgment and order dated 25.09.2000 passed by the Sessions Judge, Dhenkanal-Angul, Dhenkanal in S.T. Case No.115 D of 1998 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. Appellant is the younger brother of deceased's father. After the death of her husband, the deceased along with her daughter was residing with the appellant since her parents died earlier. On 06.04.1998 at about noon, there was a quarrel between the appellant and the deceased, for which the appellant gave two blows to the head of the deceased by means of a wooden plank (M.O.I.). As a result, the deceased died at the spot having sustained bleeding injuries. Many villagers gathered at the spot in whose presence the appellant confessed that he assaulted the deceased for which she died. The villagers called the Grama Rakhi in whose presence the appellant again confessed his guilt. P.W.1 Akrura Pradhan, a co-villager, orally reported the incident to the Officer in-Charge of Hindol Police Station (P.W.7), who reduced the same to writing, registered the case and took up investigation. After completion of the investigation. P.W.7 laid charge sheet against the appellant. 3. The appellant while denying the allegations levelled against him specifically pleaded that due to fit of epilepsy, the deceased dashed against the door frame and died. 4. In order to prove its case, the prosecution examined as many as seven witnesses and exhibited thirteen documents. In support of its case, defence examined one witness. 5. Learned Sessions Judge on conclusion of trial found the appellant guilty for commission of offence under Section 302, IPC mainly basing upon the evidence of P.Ws.1 & 2 and convicted and sentenced him as already indicated hereinbefore. 6. Mr. Pani, learned counsel for the appellant submits that this is a case where there is no direct evidence to implicate the appellant with the murder of the deceased and he has been convicted on the basis of the circumstantial evidence. The circumstance on which the prosecution has relied heavily and the trial Court has given much emphasis is the extrajudicial confession said to have been made by the appellant before P.Ws.1 and 2. The circumstance on which the prosecution has relied heavily and the trial Court has given much emphasis is the extrajudicial confession said to have been made by the appellant before P.Ws.1 and 2. But, in the face of the evidence of P.Ws.3 and 4, it cannot be believed that P. WS.1 and 2 are in reality witnesses to the extrajudicial confession. Because, although P.Ws.1 and 2 stated that when appellant confessed his guilt at that time P.Ws.3 and 4 were present, P.Ws.3 and 4 themselves did not whisper a single word about any such extra judicial confession said to have been made by the appellant. Learned counsel further submits that the trial Court has not considered the evidence of D.W.1, who specifically stated that the deceased had fit of epilepsy. There is no reason to entertain doubt on the evidence of D. W. 1, as in his evidence he has explained that when the deceased was of nine years she was being tutored by him and one day she fell down unconscious foaming at her mouth and that after her marriage the deceased had also suffered from fits as was told by her husband. His further submission is that no motive has been proved by the prosecution and therefore, the impugned judgment of conviction and sentence is liable to be set aside. In the alternative, learned counsel submits that even if the prosecution case is believed, the act of the appellant will come within the purview of Section 304-II, IPC and not under Section 302 IPC since it is the admitted case of the prosecution that there was a sudden quarrel between the appellant and the deceased. 7. Mr. Das, learned Additional Standing Counsel, on the other hand, contends that the evidence of P.W.1, who is an independent witness, is very clear and cogent before whom the appellant confessed his guilt. The evidence of P.W.1 with regard to extrajudicial confession gets corroboration from the evidence of the Grama Rakhi (P.W.2). From the medical evidence it reveals that the death of the deceased was due to the injuries on the vital organ like brain which were ante mortem and homicidal in nature and that the same could be possible by the wooden plank (M.O.I). From the medical evidence it reveals that the death of the deceased was due to the injuries on the vital organ like brain which were ante mortem and homicidal in nature and that the same could be possible by the wooden plank (M.O.I). It transpires from the evidence of the I.O. that he seized the wooden plank (M.O.I) from the possession of the appellant and as per the Chemical Examiner's report the said M.O.I. found stained with blood of human origin. The version of D.W.1 cannot be accepted since he is a got up witness. He further submits that this case cannot come within the purview of Section 304-II, IPC, because the existence of two injuries, the site of assault which is the vital organ like brain and the force used imply that the appellant assaulted the deceased with the intention of causing her death. Therefore, there is no scope for this Court to interfere with the impugned judgment of conviction and sentence. 8. Having regard to the rival submissions of the parties, this Court minutely examined the oral and documentary evidence available in the LCR. In the instant case, P.W.1 is the informant. He stated that on the date of occurrence at about 12.00 noon he saw the deceased lying dead in the house of the appellant-with bleeding injury on her head. He came to know that the appellant assaulted her. The appellant was sitting by the site of the deceased and reading PURANA. Many of the villagers arrived at the spot and on being asked the appellant confessed that he assaulted the deceased as a result of which she died. Thereafter, he went to the police station and on the basis of his oral report Ext.1 was drawn up. He further stated that the appellant disclosed before him and others that due to family quarrel he assaulted the deceased. He saw the wooden plank (M.O.I.) whereby the appellant had assaulted the deceased. In cross-examination, he admitted that by the time he arrived at the spot, there were 10 to 12 persons already present in the house of the appellant. On being questioned by Panchu, Sumanta and Chihuru (P.W.4) about the cause of death, the appellant replied that he assaulted the deceased, for which she died. He further admitted that after the report was scribed, it was not read over to him. P.W.2 is the Grama Rakhi. On being questioned by Panchu, Sumanta and Chihuru (P.W.4) about the cause of death, the appellant replied that he assaulted the deceased, for which she died. He further admitted that after the report was scribed, it was not read over to him. P.W.2 is the Grama Rakhi. He stated that after getting information from the villagers, he went to the spot. He enquired from the villagers that the appellant assaulted his niece (deceased) and she died. On being asked, the appellant disclosed before him that due to family quarrel, he assaulted the deceased by means of a wooden plank. In cross-examination, he admitted that when the appellant confessed his guilt, Panchanan Pradhan, Akrura Pradhan (P.W.1), Dhaneswar Dehury (P.W.3), Basanta Pradhan, Jaya Pradhan and Kanduru Pradhan were present. P.W.3 is a co-villager and a witness to the inquest who proved the inquest report (Ext.2). He is also a witness to the seizure of blood stained earth and sample earth under Ext.3. P.W.4 is another co-villager and a witness to the seizure of the weapon of offence (wooden plank, M.O.I.) under Ext.4. In cross-examination, he admitted that police seized M.O.I. on being given by the Grama Rakhi (P.W.2). P.W.5 is the doctor who conducted autopsy over the dead body of the deceased and found one lacerated injury of size 2" X ¼" X ½” and another injury of size 2"X ¼” X ½” both situated half inch apart over the left side of the scalp 3" above the upper boarder of helix of left ear and 3" lateral to midline 6" behind the lateral end of the left supra orbital Arch. She opined that both the injuries were ante mortem and homicidal in nature. They were sufficient to cause death of a person in ordinary course of nature. The cause of death was due to the injury and laceration to vital organs like brain. On examination of M.O.I., she opined that the injuries found on the deceased could be possible by the same. She proved the post mortem report (Ext.5) and the opinion report (Ext.6). P.W.6 is the Havildar of Police who guarded the dead body and accompanied it for post-mortem examination. P.W.7 is the Officer in-Charge of Hindol Police Station and I.O. of the case. She proved the post mortem report (Ext.5) and the opinion report (Ext.6). P.W.6 is the Havildar of Police who guarded the dead body and accompanied it for post-mortem examination. P.W.7 is the Officer in-Charge of Hindol Police Station and I.O. of the case. He deposed that he reduced the oral report to writing, registered the case, examined the informant and other witnesses, visited the spot and prepared spot map, held inquest over the dead body and sent the same for post mortem examination. He seized the blood stained earth and the sample earth under Ext.3 and also seized the weapon of offence and wearing apparels of the appellant as well as the deceased. Ultimately, after completion of the investigation he filed charge sheet against the appellant under Section 302 IPC on 05.07.1998. D.W.1 is a co-villager who deposed that the house of the appellant is situated near his house intervened by the house of Chihuru Pradhan (P.W.4). He tutored the deceased when she was nine years old and one day she fell down unconscious foaming at her mouth. After her marriage, she suffered such fits as told by her husband. After the death of her husband, she along with her daughter was staying in the house of the appellant. On hearing about the death of the deceased, he went to the house of the appellant and found the deceased in a dying condition and in fact she died after few minutes of his arrival. He found the appellant administering water to the deceased. By the time of his arrival, 7 to 8 other persons of his village were present near the deceased. On his asking, the appellant told that the deceased suffered fits and her head dashed against the door-frame. In cross-examination by prosecution, he stated that by the time of his arrival at the spot, Jaya Pradhan, Chihiru Pradhan (P.W.4), Dhaneswar Dehury (P.W.3), Srimanta Pradhan, Daya Pradhan and others were present and the informant (P.W.1) came after some time. 9. As is evident from the impugned judgment, the trial court has not at all considered the evidence of D.W.1, and convicted the appellant placing reliance on the extrajudicial confession said to have been made by him before P.Ws.1 and 2. 9. As is evident from the impugned judgment, the trial court has not at all considered the evidence of D.W.1, and convicted the appellant placing reliance on the extrajudicial confession said to have been made by him before P.Ws.1 and 2. A careful perusal of the evidence of P.Ws.1 and 2 would go to show that when they asked the appellant disclosed before them that due to family quarrel he assaulted the deceased by means of a wooden plank (M.O.I.) and that at the time of such disclosure P.Ws.3 and4 as well as other villager were present. D.W.1 in his evidence also stated that by the time he arrived at the spot P.Ws.3 and 4 were already present. But surprisingly P.Ws.3 and 4 in their evidence did not whisper a single word with regard to the extrajudicial confession said to have been made by the appellant. Be that as it may, it is the settled principle of law that extrajudicial confession by itself is not clinching piece of evidence but can be used as corroborative evidence where the witnesses giving evidence about such confession are reliable and words spoken by them are unambiguous. In the instant case, the extrajudicial confession said to have been made by the appellant before P. WS.1 and 2 is not corroborated by any other evidence and, on the other hand, P.Ws.3 and 4, who were said to be present at the time of such extrajudicial confession, have not supported the version of P.WS.1 and 2 with regard to extrajudicial confession. As regards the seizure of the weapon at offence (M.O.I.), P.W.4 appears to be the only independent witness in whose presence the seizure was effected. He, however, admitted in cross-examination that M.O.I. was seized by the police on being produced by the Grama Rakhi. Therefore, it cannot be utilized as an incriminating circumstance against the appellant. It reveals from the evidence of P.W.1 that the appellant was sitting by the side of the deceased and reading PURANA. D.W.1 has testified that the appellant was administering water to the deceased and was all along present till his arrest. The above conduct of the appellant shows his bonafide. For all these reasons, it cannot be said that the prosecution has conclusively proved the circumstances from which conclusion of guilt of the appellant can be drawn. D.W.1 has testified that the appellant was administering water to the deceased and was all along present till his arrest. The above conduct of the appellant shows his bonafide. For all these reasons, it cannot be said that the prosecution has conclusively proved the circumstances from which conclusion of guilt of the appellant can be drawn. In other words, the circumstances relied on by the prosecution neither fully established nor consistent with the hypothesis of the guilt of the appellant. Not only that; there is apparent missing link in the chain of circumstances which led this Court to entertain a reasonable doubt about the complicity of the appellant in the crime. Therefore, the appellant is entitled to benefit of doubt. 10. In the result, the Jail Criminal Appeal is allowed by setting aside the judgment of conviction and sentence passed by the Sessions Judge, Dhenkanal-Angul, Dhenkanal on 25.09.2000 in S.T. Case No.115 D of 1998. The appellant be set at liberty forthwith, if his detention is not required otherwise. I agree. Appeal allowed.