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2011 DIGILAW 568 (ORI)

Jogeswar Pradhan @ Joge v. State of Orissa

2011-11-17

B.K.PATEL, L.MOHAPATRA

body2011
JUDGMENT L. MOHAPATRA, J 1. This Criminal Appeal is directed against the judgment and order dated 22nd March, 2005 passed by the learned Sessions Judge, Kandhamal-Boudh, Phulbani convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (for short 'the I.P.C.') and sentencing him to undergo imprisonment for life In S.T. No.116 of 2003. 2. The case of the prosecution is that both the deceased persons Balaram Behera and Pramila Behera, related to each other as husband and wife, had gone to nearby forest in the morning on 2.2.2003 to collect fire wood. When they did not return to the village till 3 P.M., their daughter P.W.3 informed this matter to P.W.2, who happens to be her uncle. Thereafter, P.Ws.2 and 3 with co-villagers went in search of the deceased persons. They found dead body of Pramila Behera lying on the embankment of the Nala near a brick kiln and the dead body of Balaram Behera was found near the Nala. They noticed cut injuries on the dead bodies of both the deceased persons. Thereafter; the informant P.W.2 lodged the FIR at Pasara Out Post in writing and investigation was taken up. On completion of investigation, charge-sheet was submitted against the appellant under Sections 376 and 302 of the I.P.C. 3. The prosecution in order to prove the charge has examined as many as 16 witnesses but none was examined on behalf of the appellant. The plea of the appellant was complete denial of the prosecution allegation. Out of 16 witnesses examined on behalf of the prosecution, P.W.2 is cousin brother of deceased Balaram, who lodged the FIR having been scribed by P.W.1 P.W.3 is daughter of both the deceased persons. P.Ws.5, 6 and 7 are witnesses who stated regarding certain circumstances in relation to the case and P.W.4 is a witness to the inquest. P.W.9 is the doctor who conducted post mortem examination over the dead body of Balaram and P. W.14 is another doctor who conducted post mortem examination over the dead body of deceased Pramila. P.Ws.15 and 16 are the investigating officers. P.W.11 is a friend of the appellant who stated about certain circumstance on which reliance has been placed by the trial Court. 4. P.Ws.15 and 16 are the investigating officers. P.W.11 is a friend of the appellant who stated about certain circumstance on which reliance has been placed by the trial Court. 4. In absence of any direct evidence, the trial Court relied upon the circumstantial evidence and found the appellant guilty of the offence under Section 302 of the I.P.C. and convicted him thereunder. The appellant was acquitted of the charge under Section 376 of the I.P.C. 5. Learned counsel for the appellant assails the impugned judgment on the ground that the prosecution relied on circumstantial evidence to prove the charge and it is for the prosecution to prove the circumstance so as to point out the guilt of the accused leaving no room any other inference. According to him, in the present case, no such circumstance has been proved by the prosecution to even suggest the guilt of the appellant. 6. The learned counsel for the State relied upon evidence of post occurrence witnesses to support the findings of the trial Court. 7. On careful scrutiny of the deposition of all the 16 witnesses, we find that there is no eye witness to the occurrence and the case of the prosecution is based on circumstantial evidence. P.W.1 is the scribe of the FIR Rand P.W.2 is the informant, who happens to be the cousin brother of the deceased Balaram. He in his deposition stated that on the date of occurrence, he was informed by daughter of both the deceased persons P.W.3 that both the deceased persons had been to the forest to collect fire wood in the morning but they did not return till 3 P.M. Thereafter, he, P.W.3 and others went in search of the deceased persons and found both of them lying dead on the embankment of the Nala. They also noticed cut injuries on the dead bodies. Thereafter, he lodged the FIR. Similarly, P.W.3 is the daughter of both the deceased persons who stated that her parents went to collect fire wood from the near by forest. They did not return till 3 P.M. She informed about the same to P.W.2 and others. All of them went in search of the deceased persons and found their dead bodies near a brick kiln and near the Nala. P.W.4 is a witness to the inquest. They did not return till 3 P.M. She informed about the same to P.W.2 and others. All of them went in search of the deceased persons and found their dead bodies near a brick kiln and near the Nala. P.W.4 is a witness to the inquest. P.W.5, on whom reliance has been placed, has deposed in Court that on the date of occurrence at about 1.00 P.M. She was standing in the Bari of her house and heard the sound of a female "RAKHYA KARA MUN MARl JAUCHHI". She could know that it was the voice of deceased Pramila and that the sound was coming from the brick kiln side of her village. At about 5 P.M. she could know that both the deceased persons were found dead P.W.6 is a witness from whom the appellant and others had purchased NIRA on the date of occurrence at about 8 P.M. in the morning. P.W.7 is a witness to seizure. He stated that a blood stained Tangia was lying near the dead body of deceased Balaram and police seized the same in his presence. He also stated that on 6.2.2003 at about 11 A.M., police brought the appellant after arrest and asked him about the case in his presence. The appellant narrated the manner in which he committed the crime and led to the spot where he had committed the crime. The police reduced his confession into writing and from the spot some broken bangle pieces were seized P.W.8 is another witness who stated that on the date of occurrence at about 1.00 P.M. while he was returning to his house after taking bath, he heard shout of a woman "HAY BOPA MAA RAKHYA KARA RAKHYA KARA". He also saw the appellant coming from the Nala side. When he enquired from the appellant about the hullah, he was informed that there was nothing. At about 3.00 P.M. he saw the dead bodies of the deceased persons near the Nala and also saw the appellant coming by running. He was wearing a half pant and a banian. P.W.9 is the doctor who conducted post mortem examination over the dead body of Balaram. He found injuries on the head of said deceased and the injuries were found to be ante mortem in nature. There is no dispute that the deceased died a homicidal death. He was wearing a half pant and a banian. P.W.9 is the doctor who conducted post mortem examination over the dead body of Balaram. He found injuries on the head of said deceased and the injuries were found to be ante mortem in nature. There is no dispute that the deceased died a homicidal death. He opined that the injuries on the dead body of deceased Balaram might be caused by Tangia M.O.1. P.W. 14 is another doctor who conducted post mortem examination over the dead body of Pramila. He found one incised wound of right fronto parietal bone with laceration and leaking of brain material from wound. The cause of death was due to haemorrhage and shock. He also opined that the said injuries could be possible by a Tangia. P.W.10 was the constable who accompanied the dead bodies for post mortem examination. P.W.11 is a friend of the appellant on whose evidence no reliance has been placed by the trial Court. He in his deposition stated that prior to the incident he himself, Birendra Konhar and the appellant prepared bricks at the instance of the villagers for construction of a Mondup in the village over the land of Mungulu Prusti. They prepared bricks and on Saturday fire was set to the bricks. On Sunday the appellant told them to have a feast and brought NIRA on payment of money from one Nakula Naik. Thereafter, they went to the house of Satru Pradhan and prepared the feast. After the feast, at about noon, they all slept After one hour or more, when they got up, they did not find the appellant. He found that the appellant was coming by running from the Nala side of the village. When he enquired about the matter from the appellant he told him that after sometime everything will be known to him. P.W.12, on whose evidence reliance has been placed by the trial Court, stated that on the date of occurrence at about 1.00 P.M. he met the appellant and on being asked he was peturbed and replied "nothing nothing". P.W.13 is the doctor who examined the appellant on police requisition to establish the charge under Section 376 of the I.P.C. P.Ws.15 and 16 are the two investigating officers. 8. P.W.13 is the doctor who examined the appellant on police requisition to establish the charge under Section 376 of the I.P.C. P.Ws.15 and 16 are the two investigating officers. 8. On analysis of the evidence of above witnesses, we find that the prosecution has relied on evidence of P.W.5 and P.W.8 who stated to have heard the voice of a woman near about the time of occurrence. P.W.16 the I.O. in his cross-examination stated that P.W.5 at the time of her examination under Section 161 Cr.P.C. had not stated before him that she heard the shout of deceased Pramila from the brick kiln side. Therefore, the evidence of P.W.5 and the evidence of P.W. 8 is contradicted by P.W.15. So far as P.W.8 is concerned, he has not stated the voice he heard is that of the deceased Pramila. The other circumstance on which reliance has placed by the prosecution is the evidence of P.Ws.8, 11 and 12 who claimed to have seen the appellant coming from the side of the Nala. P.W. 8 stated that he saw the appellant coming from Nala side and when he enquired from the appellant about the hullah, appellant told that there was nothing. Similarly, P.W.11. also stated that he saw the appellant coming by running from the Nala side of the village and when he enquired about the matter from the appellant he told him that after sometime everything will be known to him. P.W. 12 also stated that on the way near the house of Satrughana Pradhan, they met the appellant and on being asked the appellant was perturbed and replied "nothing nothing". Even if accepting the evidence of three witnesses, the prosecution has been able to only prove that the three witnesses had seen the appellant coming from the side of Nala. So far as leading to discovery of M.O.I. is concerned, P.W.7's evidence is relevant. Though P.W.7 in his evidence stated that on 6.2.2003, at about 11 A.M. police brought the appellant after arrest and asked him about the case in his presence, the appellant confessed the entire incident while in custody and led them to the spot where the occurrence took place and nothing was given in discovery by the appellant. This part of the statement has also been corroborated by P.W.16 in his cross-examination. This part of the statement has also been corroborated by P.W.16 in his cross-examination. Therefore, it is evident from the record that the prosecution has established the case to prove the charge that on the date of occurrence at about 1.00 P.M., the appellant was found coming from the side of the village Nala. 9. We are therefore, of the view that the learned Sessions Judge could not have convicted the appellant solely on the above circumstantial evidence in the absence of any other material whatsoever. 10. For the reasons stated above, we allow the appeal, set aside the impugned judgment and order passed by the learned Sessions Judge, Kandhamal-Boudh, Phulbani convicting the appellant for commission of offence under Section 302 of the I.P.C. and sentencing him to undergo imprisonment for life in S.T. No.116 of 2003 and acquit the appellant of the charge. It is stated that the appellant is still in custody. If that be so, the appellant, Jogeswar Pradhan @ Joge, be set at liberty forthwith, unless his detention is required in connection with any other case. Appeal allowed.