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2011 DIGILAW 585 (ORI)

Parameswar Naik @ Gunaru Naik v. State of Orissa

2011-12-05

B.K.PATEL, L.MOHAPATRA

body2011
JUDGMENT B.K. PATEL, J. - This appeal is. directed against the judgment and order dated 19.10.2001 passed by learned Additional Sessions Judge, Sonepur in Sessions Case No.54/32 of 2000 convicting and sentencing the appellant to undergo imprisonment for life under Section 302 of the Indian Penal Code (For short 'the I.P.C.') for having committed murder of deceased Dhanu @ Dheneswar Naik. 2. Appellant is deceased's brother. P. W.4 is deceased's father. P.Ws. 3 and 5 are deceased's son and daughter respectively. Occurrence took place in between 11 P.M. and mid night on 11.5.2000. 3. Prosecution case is that there was enmity between appellant and deceased due to land dispute. In the occurrence night deceased's co-villager P.W.1 along with his nephew P.W.7 was sleeping in a house situated near the boring well in his orchard. At about 9 to 10 P.M. deceased requested P.W.1 to provide for a paty (mat) as he also intended to the sleep there. Accordingly, on being provided with a paty, deceased went to sleep in front of the house in which P.Ws.1 and 7 were sleeping. It is alleged that in between 11 P.M. and mid night appellant all on a sudden came with axe M.O.III. and assaulted the deceased causing fatal injuries. Hearing "Khach Khach" sound, P.W.1 woke up and also he awaken P.W.7. With the focus of torch light they saw the appellant running away from the spot holding an axe. They chased the appellant, but the appellant ran away. P.Ws. 1 and 7 informed regarding the occurrence to deceased's family members. In the following morning P.W.1 lodged written report at Sonepur P.S. upon which case was registered and investigation was taken up. On completion of investigation, charge-sheet was submitted against the appellant under Section 302 of the I.P.C. 4. Appellant took the plea of denial. 5. In order to substantiate the charge, prosecution examined eleven witnesses. P.Ws.1, 3, 4, 5 and 7 have already been introduced. P.W.2 was an inquest witness. P.W.6 is a police constable who assisted in investigation. P.W.8 is the doctor who conducted post-mortem examination. P.W.9 deposed regarding seizure of axe M.O.III at the instance of appellant. P.Ws.10 and 11 were investigating officers. Prosecution also relied upon documents marked Exts.1 to 13 and material objects M.Os.I to III. No defence evidence was adduced. P.W.2 was an inquest witness. P.W.6 is a police constable who assisted in investigation. P.W.8 is the doctor who conducted post-mortem examination. P.W.9 deposed regarding seizure of axe M.O.III at the instance of appellant. P.Ws.10 and 11 were investigating officers. Prosecution also relied upon documents marked Exts.1 to 13 and material objects M.Os.I to III. No defence evidence was adduced. Placing reliance on the evidence of P.Ws.1 and 7 stated to have been corroborated by medical evidence, the trial Court held the appellant guilty of the charge. 6. In assailing the impugned judgment it is submitted by Sri Biswal, learned counsel for the appellant that neither P.W.1 nor P.W.7 is a firm witness. Both of them developed the prosecution case while deposing in Court and posed themselves as eye witnesses to the occurrence. In view of contradictions and inconsistencies in their evidence, no reliance can be placed on P.Ws.1 and 7. It is further submitted that upon chemical examination no blood stain was found on the axe M.O.III. Therefore, circumstance of recovery and seizure of the axe does not incriminate the appellant in any manner. It is argued that land dispute between two brothers by itself cannot constitute the circumstance to sustain the finding that it was the appellant who committed murder of the deceased. 7. Sri Das, learned counsel for the State places reliance on the evidence of P.Ws.1 and 7 to support the, impugned judgment. 8. Informant P.W.1 testified that in the occurrence night when he was sleeping in his house alongwith P.W.7 near boring point, the deceased came to him and asked for a paty to sleep. After giving paty, P.W.1 alongwith P.W.7 went and slept inside the house. The deceased slept on the paty near the road. At about mid night while P.Ws.1 and 7 were in deep sleep, P.W.1 heard "Khach Khach" sound. Hearing such sound, P.W.1 got up from his bed and took a torch light. After taking torch light, he woke up P.W.7 and, therefore, both of them came out of the house, and focused the light of torch to ascertain what was the cause of "Khach Khach" sound. While focusing so, they saw the appellant butchering the deceased with an axe. Seeing the appellant brutally killing the deceased, P.W.1 chased the appellant, but P.W.1 fell down on the way and became unconscious. P.W.7 poured water on him. While focusing so, they saw the appellant butchering the deceased with an axe. Seeing the appellant brutally killing the deceased, P.W.1 chased the appellant, but P.W.1 fell down on the way and became unconscious. P.W.7 poured water on him. Thereafter, both of them went to the house of the deceased and informed regarding the occurrence to his mother and daughter. In the next morning P.W.1 lodged written report at the police station. P.W.1 also deposed that the investigating officer seized his torch light and left it in his zima. It has been brought out in evidence that P. W.1 had not stated before the investigating officer P. W.10 to have seen the accused killing the deceased. It appears that in the F.I.R. Ext.1 also P.W.1 had not stated to have seen the appellant dealing axe blows on the deceased. It has simply been alleged in the F.I.R. that the appellant was running away with an axe in his hand. The other material witness P.W.7 deposed that in the occurrence night deceased had slept in front of the house inside which he alongwith P.W.1 were sleeping. At about mid night P.W.1 all on a sudden got up from his sleep and awaken him telling that accused had killed deceased Dhaneswar. Being told so, he got up from his slumber and followed P.W.1. Subsequently thereafter with the focus of torch light which P.W.1 was focusing, P.W. 7 could see the appellant running away with an axe. Deceased was lying dead in a pool of blood and while P.W.1 chasing the accused he fell down unconscious on the way. The deceased was already dead by then. In his cross-examination P.W. 7 categorically admitted that he had not seen the appellant killing the deceased. It has been brought out in the evidence that P.W. 7 had not stated before the investigating officer P.W. 10 to have seen the appellant fleeing away from the spot with an axe. Thus, the entire evidence of P.W.7 alleging presence of the appellant near the scene of occurrence is an improvement in course of trial. According to P.W.1, upon hearing "Khach Khach" sound he got up and immediately awaken P.W.7 and, thereafter, both of them came out of the house together. It has already been observed that P.W.1 developed the prosecution case in Court by asserting to have seen the appellant assaulting the deceased. According to P.W.1, upon hearing "Khach Khach" sound he got up and immediately awaken P.W.7 and, thereafter, both of them came out of the house together. It has already been observed that P.W.1 developed the prosecution case in Court by asserting to have seen the appellant assaulting the deceased. However, in view of the omission on the part of P.W.7 to have stated before the investigating officer to have seen the appellant fleeing away from the spot with an axe, no reliance can be placed on the evidence of P.W.1 to have seen the appellant running away from the spot. 9. Undoubtedly, P.W.S testified to have found as many as five ante mortem incised injuries on the dead body of the deceased. According to P.W.8, cause of death of the deceased was due to shock resulting from severe haemorrhage. However, nature of homicidal death of deceased by itself does not support the allegation against the appellant. 10. Prosecution relied upon the evidence of P.Ws.9 and 10 to prove the allegation that the axe M.O.III was recovered at the instance of the appellant. However, it appears from the chemical examination report Ext.13 that the axe was not found to be stained with blood. Therefore, recovery and seizure of axe M.O.III does not in any manner indicate appellant's complicity with the murder of the deceased. 11. P.Ws.3, 4 and 5 testified that appellant and deceased were not pulling on well due to land dispute. However, enmity between the parties by itself is not a circumstance to sustain charge of murder in the absence of a complete chain of circumstances unerringly pointing at the guilt of the appellant. 12. Thus, on scrutiny of evidence of all the material witnesses, it is found that prosecution has not been able to marshall cogent evidence to establish that it was the appellant who committed murder of the deceased. It is trite that suspicion howsoever strong cannot take the place of proof. In the absence of proof in support of the charge, the impugned judgment and order are liable to be set aside. Accordingly, the appeal is allowed. The impugned judgment and order passed by the trial Court are set aside. The appellant is acquitted of the charge. Appeal allowed.