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2011 DIGILAW 602 (ORI)

Abani Rout @ Bani v. State of Orissa

2011-12-19

B.K.PATEL, L.MOHAPATRA

body2011
JUDGMENT L. MOHAPATRA, J. – This appeal arises out of the judgment and order of conviction rendered by the learned Additional Sessions Judge, Angul in Sessions Trial No.14-A of 1995 (17 of 1998) 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. 2. The appellant along with one Srimati Rout faced trial for commission of offence under Sections 302/34 of the I.P.C. The co-accused Srimati Rout was acquitted of the charge and the appellant was convicted for commission of the aforesaid offence. Co-accused Srimati Rout is the wife of the deceased. The appellant is cousin brother of the deceased. The appellant and co-accused Srimati had love affair for which the deceased had convened a meeting in the village. It appears from the F.I.R. and evidence of witnesses examined on behalf of the prosecution that the matter could not be settled in the village meeting and the deceased had gone to the police station to lodge a complaint. The police intervened and brought out a compromise. It is alleged by the prosecution that the deceased was being threatened to be killed by the appellant in relation to the above issue. On 14.10.1994 when a village meeting was going on P.W.9, the brother of the appellant was informed by the co-accused Srimati that the appellant had killed the deceased. P.W.9 saw the deceased lying dead and thereafter went to the village meeting and disclosed about the incident before the villagers. The villagers called the Gramarakhi and thereafter all of them went to the spot. They saw the deceased lying dead in a pool of blood and an axe was lying near him. The appellant was absent from the village. P.W.1 gave an oral report on the next day, and such oral report was reduced into writing and the case was registered. On completion of investigation, charge sheet was filed against the appellant and co-accused for commission of offence under Sections 302/34 of the I.P.C. 3. The prosecution in order to prove the charge examined fourteen witnesses, P.Ws. 1, 2, 3, 5, 7, 8 and 9 as well as P.W. 11 are post occurrence witnesses who had visited the house of the deceased after getting information about the death. The prosecution in order to prove the charge examined fourteen witnesses, P.Ws. 1, 2, 3, 5, 7, 8 and 9 as well as P.W. 11 are post occurrence witnesses who had visited the house of the deceased after getting information about the death. They also stated about the affair between appellant and wife of the deceased as much as a previous Panchayat before whom a complaint had been made by the deceased. P.Ws. 3, 4, 7, 11 and 12 and also stated about extra judicial confession made by the appellant before them. P.Ws.2, 11 and 12 stated about the recovery of weapon of offence. P.W. 13 is the doctor, who conducted post mortem examination over the dead body of the deceased and P.W.14 is the investigating officer. None was examined on behalf of the defence and the plea of the appellant was denial of the entire prosecution case. In absence of any direct evidence, the trial Court relied on circumstantial evidence, such as previous enmity, extra-judicial confession made by the appellant, recovery of weapon of offence, existence of human blood on the weapon of offence i.e. axe and wearing apparels of the appellant and the conduct of the appellant in leaving the village immediately after the occurrence. Relying on such circumstances, the trial Court found the appellant guilty of the charge and convicted him thereunder. 4. Miss Sonita Biswal, learned counsel appearing for the appellant submits that in absence of any direct evidence, the prosecution is required to prove a chain of circumstances pointing to the guilt of the appellant. Since the prosecution failed to establish the chain of circumstance, the appellant cannot be convicted for commission of the alleged offence. According to Miss. Biswal, learned counsel for the appellant, the only evidence available against the appellant is previous enmity. No other circumstance relied on by the prosecution has been proved legally and therefore, the trial Court could not have relied on those circumstances. 5. The learned counsel for the State, on the other hand, relies on the circumstances, such as previous enmity, extra judicial confession and recovery of weapon of offence. 6. Out of the fourteen witnesses examined on behalf of the prosecution, none had seen the occurrence. P.W.9 appears to be the first person who came to know about the incident. P.W.9 is the brother of the appellant. 6. Out of the fourteen witnesses examined on behalf of the prosecution, none had seen the occurrence. P.W.9 appears to be the first person who came to know about the incident. P.W.9 is the brother of the appellant. He deposed that on the date of occurrence in between 7 to 8 P.M. he was sleeping. He was called by Srimati, the co-accused and the wife of the deceased, and was informed that the deceased had been killed. He along with his wife came to the spot and saw the dead body of the deceased. On being questioned, Srimati told that the appellant assaulted the deceased. Thereafter, he went to the village where a meeting was going on and disclosed about the incident before the villagers in the meeting. The villagers came to the spot. P.W.1, one of such villagers, who had gone to the village having been informed about the incident by P.W.4. He deposed that after he reached the spot, he saw the deceased lying on a cot with profused bleeding injury. He also stated that earlier there was a village meeting in relation to love affair between the appellant and the wife of the deceased, who was also co-accused and it was disclosed by the deceased that he was being threatened to be killed by the appellant on account of the above issue. He further stated that in the night he guarded the dead body and thereafter, in the morning he went to the police station and narrated the entire incident before Thana Babu who reduced the same into writing. P.W.2 deposed that in the night of occurrence when the village meeting was going on, P.W.9 informed that the appellant had murdered the deceased. Thereafter, villagers went to the house of the deceased and found him lying dead with bleeding injury and axe was lying near the head of the deceased. On the next day, the appellant was found sitting on a hillock about 1/4th K.M. away from the village and thereafter the villagers caught him and brought to the village. On being questioned by the villagers, the appellant confessed to have killed the deceased on account of previous grudge. The appellant also disclosed that he had thrown the axe near the dead body and he had also brought a katari which he had concealed in the heap of stones in his bari. On being questioned by the villagers, the appellant confessed to have killed the deceased on account of previous grudge. The appellant also disclosed that he had thrown the axe near the dead body and he had also brought a katari which he had concealed in the heap of stones in his bari. Thereafter, police came and the said katari was seized. Similar is the evidence of P.Ws.3, 11 and 12. P.W. 4 is a witness to the inquest and P.W.5 is a post occurrence witness who had also signed the F.I.R. P.W.6 is a witness to seizure under Ext.6 P.W. 7 is a witness before whom P.W.4 stated that after the appellant was caught by the villagers, on being questioned he made extra judicial confession admitting to have killed the deceased. P.Ws. 8 and 10 stated about the previous enmity but both of them are post occurrence witnesses. P.W. 10 is the father of the deceased. P.W. 13 is the doctor, who conducted the post mortem examination and found as many as fifteen injuries on the person of the deceased. He was of the opinion that all the injuries were ante mortem in nature and might be caused by sharp cutting heavy object. The injuries were sufficient to cause death in ordinary course of nature. He also stated that the injuries could be caused by axe which had been seized in course of investigation. P.W. 14 is the I.O. On analysis of the entire evidence, it appears that the appellant and wife of the deceased, who was a co-accused, had love affair which was being objected to by the deceased. On the complaint of the deceased, a village meeting was called where the appellant promised not to keep relationship with the wife of the deceased. But later on, the matter went to the police station at the instance of the deceased where a compromise was arrived at. This evidence as stated to by most of the villagers examined in course of the trial clearly establishes that the appellant and the deceased were not pulling on well. So far as the commission of the alleged offence is concerned, the prosecution relied on extra judicial confession made by the appellant before the villagers and recovery of one of the weapons of offence. P.Ws. So far as the commission of the alleged offence is concerned, the prosecution relied on extra judicial confession made by the appellant before the villagers and recovery of one of the weapons of offence. P.Ws. 2, 3, 7, 11 and 12 stated that after the appellant was caught by the villagers, on being questioned he confessed to have killed the deceased. It appears from the evidence of the witnesses that the appellant was found sitting on a hillock on the day following of the incident. He was caught by the villagers and on being questioned, admitted to have killed the deceased. Under such situation, it can be said that such confession made by the appellant was a voluntary one and therefore, no reliance can be placed on such extra judicial confession made by the appellant. So far as the weapon of offence is concerned, it appears from the evidence of P.W.2 that after confessing about the commission of the crime, the appellant further confessed that he had thrown the axe near the dead body of the deceased and he had brought the Katari with him and kept the Katari in the heap of stones in his bari. The appellant also told before the police that he had kept the Katari on the heap of stones in his bari. Thereafter, the appellant led the police party to the place where he had kept the Katari along with some of the villagers and the police seized the Katari. P.W. stated that the appellant informed the villagers that he had kept the Katari in the, back side of his house inside a stone hole. He is not a witness to recovery of the Katari at the instance of the appellant while in custody. P.W.11 is the other witness who stated that on being questioned the appellant confessed to have killed the deceased with Katari. He further stated that on being questioned by the I.O., the appellant disclosed that he killed the deceased with axe and kept the same on the back side of his house. Thereafter, he led the police & witnesses and brought out the axe from the stone heap. He further stated that on being questioned by the I.O., the appellant disclosed that he killed the deceased with axe and kept the same on the back side of his house. Thereafter, he led the police & witnesses and brought out the axe from the stone heap. On analysis of evidence of P.Ws.2 and 11, it appears that the appellant had first disclosed before the villagers to have concealed the weapon of offence in his bari, whereas from the evidence of P.W.11 it appears that the appellant made such disclosure on being questioned by the I.O. P.W.2 stated that the appellant led the police to the place of concealment and the police seized the Katari whereas P.W.11 stated that the appellant led the police to the place of concealment and gave recovery of axe. Because of such inconsistencies, no reliance can be placed on the evidence of P.Ws.3 and 11 about recovery of weapon of offence at the instance of the appellant while in custody as alleged by the prosecution. The only other material is chemical examination report. The chemical examination report shows that the chadi and banian seized from the appellant were stained with human blood. It further appears that the banian had human blood 'A' group which is similar to the blood group of the deceased. Admittedly, blood grouping of the appellant had not been done. Under such circumstance, it is also not possible to rely on the chemical examination report as a very strong piece of evidence against the appellant. 7. In view of the discussion made above, we find that though the deceased died in a homicidal death, the prosecution has been only able to prove previous enmity between the appellant and the deceased. No other circumstance connecting the appellant with actual commission of the crime has been established by the prosecution. The prosecution having failed to prove the charge through a chain of circumstances, the appeal has to succeed. 8. For the reasons stated above, we allow the appeal, set aside the judgment and order passed by the learned Addl. Sessions Judge, Angul in Sessions Trial No.14-A of 1995 (17 of 1998) convicting the appellant for commission of offence under Section 302 of the I.P.C. and acquit the appellant of the said charge. It is stated that the appellant is in custody. Sessions Judge, Angul in Sessions Trial No.14-A of 1995 (17 of 1998) convicting the appellant for commission of offence under Section 302 of the I.P.C. and acquit the appellant of the said charge. It is stated that the appellant is in custody. If that be so, the appellant, Abani Rout @ Bani, be set at liberty forthwith, unless his detention is required in connection with any other case. B.K. PATEL, J. I agree. Appeal allowed.