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2012 DIGILAW 207 (ORI)

Rupan Rout v. State of Orissa

2012-04-19

C.R.DASH, L.MOHAPATRA

body2012
JUDGMENT C.R. DASH, J. - This appeal is directed against the judgment of conviction and order of sentence dated 19.07.2003 passed by learned Additional Sessions Judge, Bhawanipatna in Sessions Case No.126/3 of 2002-2003, convicting the appellant under Section 302, I.P.C. and sentencing him to suffer imprisonment for life. 2. The occurrence happened at about 10.30 A.M. on 17.03.2002 at village Naktiguda Kumbharapada under Bhawanipatna Town P.S. Suresh Rout (P.W.7), who happens to be the brother of the appellant, lodged F.I.R. alleging therein that one Dhabale Rana (P.W.1 0) of his 'Sahi' called him saying that his brother (appellant) has killed his maternal uncle Bhima (deceased), whose dead body is lying on a charpoy. Coming to the spot, he saw Biraji Rout (P.W.6), who happens to be another brother of the appellant and P.W.7 had caught hold of the deceased and there was bleeding from his head. His wife Sanjulata Rout (P.W.4) and his sister-in-law Prabhasini Rout (P.W.5) told him that Rupan Rout (the appellant) assaulted the deceased with a piece of wooden bar ('Khata Bahi') used in the charpoy, while the deceased was sleeping. Mohan Bag (P.W.8) and Biraji Rout (P. W.6) took away the wooden bar from the hands of the appellant and all of them took the deceased in the rickshaw of P.W.14 to the hospital. Getting the deceased admitted in the hospital in an injured condition, P.W.7 lodged F.I.R. at Bhawanipatna Town P.S., upon which investigation was taken up by P.W.15 and on completion of investigation, charge-sheet was submitted implicating the appellant under Section 302, I.P.C., as the deceased succumbed to the injuries on the same day. 3. Prosecution has examined fifteen witnesses. Besides the aforesaid witnesses already introduced, P.W.12 is the Medical Officer who conducted autopsy on the dead body of the deceased and P.W.3 is the mother of the appellant and sister of the deceased. P.Ws.1 and 2 are witnesses to some of the seizures. P.W.8 is a witness, who saw the appellant with the wooden bar in his hand and he (P.W.8) left the spot when the appellant chased him to assault. P.W.9 is a witness, who had accompanied the informant (P.W.7) to the hospital, P.W.11 is a witness, who went to call the rickshaw of P.W.14, in which the deceased was shifted to hospital. P.W.9 is a witness, who had accompanied the informant (P.W.7) to the hospital, P.W.11 is a witness, who went to call the rickshaw of P.W.14, in which the deceased was shifted to hospital. P.W.13 is the Constable, who had guarded the dead body of the deceased in the hospital and escorted the dead body for post-mortem. 4. The defence plea is one of complete denial, but none was examined by the defence. 5. There is no eye-witness to the occurrence, as admitted by learned counsels for the parties. The basis of conviction of the appellant is the circumstance to the effect that he was seen near the spot with the wooden bar ('Khata Bahi'- M.O.I.) in his hand. Learned counsel for the appellant submits that the aforesaid lone circumstance is not sufficient to point out unerringly to the guilt of the appellant, and in view of unimpeachable evidence to the effect that the appellant was insane and everybody of the locality was calling him 'Baya', the aforesaid lone circumstance may not be sufficient to base the conviction of the appellant under Section 302, I.P.C. 6. Learned Addl. Standing Counsel on the other hand supports the impugned judgment and order of sentence. 7. Learned Trial Court, on the basis of the evidence of P.Ws.3, 4 and 5, who were examined as eye-witnesses to the occurrence and corroborative evidence of P.Ws.6, 7 and 8 as well as the evidence of the Medical Officer (P.W.12), recorded the conviction of the appellant under Section 302, I.P.C. 8. P.W.3 is the mother of the appellant and P.Ws.4 and 5 are the sisters-in-law of the appellant being the wives of his brothers. P.W.3 in her cross-examination has specifically testified that she heard about the incident, but she had not seen anything. In her examination-in-chief she testified that she had only seen the appellant standing at the spot holding a wooden bar of the charpoy. P.W.4 surprisingly has not even stated about presence of the appellant at the spot. She has also testified that she has not seen the occurrence. P.W.5 has testified that as the appellant suddenly came chasing them, they bolted themselves inside the house and she has also not seen the occurrence. Hearing the cries of the deceased, she (P.W.5) and others came out and administered water to the deceased. She has also testified that she has not seen the occurrence. P.W.5 has testified that as the appellant suddenly came chasing them, they bolted themselves inside the house and she has also not seen the occurrence. Hearing the cries of the deceased, she (P.W.5) and others came out and administered water to the deceased. She has also not testified about presence of the appellant at the spot after the occurrence. P.Ws.6 and 7, who are brothers of the appellant, are admittedly not eye-witnesses to the occurrence and by the time they came to the house, the occurrence had already happened. P. W.8, who is a co-villager, has testified that hearing hulla, he came to the spot and found the appellant present with a wooden bar in his hand and seeing him, he chased him to assault. All the aforesaid witnesses in union have testified that the appellant was an insane since long. The 'Iungi' (M.O.-II) which the appellant was wearing at the time of occurrence, along with the wooden bar (M.O.-I) and the wearing apparels of 1he deceased were sent for chemical examination. Blood group 0’ of human origin were found on the wooden bar, 'Dhoti' of the deceased and blood stained earth and the rope; but no blood was found in the 'Iungi' of the appellant. The appellant in his statement under Section 313, Cr.P.C. has specifically stated that the wooden bar was put in his hand by others. But the substance of Jhe defence plea is one of denial. 9. Learned counsel for the appellant submits that except the fact that some of the witnesses found the appellant present at the spot after the occurrence with the wooden bar, there is no other evidence to implicate the appellant, and as the appellant is thought to be insane, the family members might have falsely implicated him to get rid of him. Evidence of the Medical Officer (P.W.12) shows that the deceased had sustained as many as six injuries on his head. The occurrence happened outside the house of the appellant. There is discrepancy in the evidence of P.Ws.3, 4 and 5, as discussed supra, on the point of presence of the appellant at the spot after the occurrence. P.W.3 only heard about the fact that the appellant had assaulted the deceased. The occurrence happened outside the house of the appellant. There is discrepancy in the evidence of P.Ws.3, 4 and 5, as discussed supra, on the point of presence of the appellant at the spot after the occurrence. P.W.3 only heard about the fact that the appellant had assaulted the deceased. P.Ws.4 and 5 contradict each other on the point of what happened prior to the occurrence, and they are conspicuously silent about presence of the appellant with the wooden bar in his hand at the spot after the occurrence, P.W.5 has testified that she and others bolted themselves inside the house, as the appellant chased them to assault, but P.W.4 is silent about such a fact. P.W.8 has only testified that hearing about the incident, he came near the spot, but the appellant chased him to assault. If the appellant was mentally sick, he would have been brought under control after the occurrence of a violent attack on his own maternal uncle. But such evidence is missing as to how the appellant was brought under control. P.W.1, who is a witness to the seizure of the wooden bar, has testified that the wooden bar was seized from the possession of the appellant; but P.W.2, who is also a seizure witness, has testified that the wooden bar was seized from the house of the appellant. Such being the discrepancy on the point of seizure of the wooden bar of the charpoy (M.O.-I), presence of human blood thereon in view of weak evidence, as discussed supra on the point of implication, is of no consequence. In view of the above, and especially in view of the prevaricative and discrepant evidence as discussed supra, none of the circumstances pressed by the prosecution can be held to have been proved. 10. We find from the Paper-Book that learned Trial Court without waiting for the Public Prosecutor, had proceeded to examine the witnesses under Section 165 read with Section 311, Cr. P.C., which is a model method unknown to law. We would have remanded the matter on this score alone, but learned Addl. Standing Counsel having submitted that the prosecution is not prejudiced because the fact the prosecution wanted to prove have already been proved, we do not think of resorting to drastic step and remand of the matter to the trial Court after about 10 years of the occurrence. 11. Standing Counsel having submitted that the prosecution is not prejudiced because the fact the prosecution wanted to prove have already been proved, we do not think of resorting to drastic step and remand of the matter to the trial Court after about 10 years of the occurrence. 11. In the result, the appeal is allowed and the order of conviction of the appellant under Section 302, I.P.C. is set aside. The appellant be set at liberty forth with, if his detention is not required in any other case. Appeal allowed.