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2012 DIGILAW 279 (ORI)

Maghu @ Krushna Naik v. State of Orissa

2012-06-29

C.R.DASH, L.MOHAPATRA

body2012
JUDGMENT L. MOHAPATRA, J. This appeal is directed against the judgment and order of the learned Sessions Judge, Sundargarh in S.T. No. 144 of 2000 convicting the appellant for commission of offence under Section 302 of IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 5,000/- in default, to undergo period of imprisonment for one year. 2. The case of the prosecution is that the deceased Basumati Barua and her husband P.W.6 had gone to Tolimunda to visit the sister of the deceased. On their way they stayed in the house of their daughter, who had married the present appellant at Sankaraposh. During their stay there was some dispute regarding sharing of money earned from Kendu leaf collection and following the quarrel the deceased and P.W.6 left their daughter's house. On their way near the land of one Sansara Naik, the appellant suddenly appeared and dealt an axe blow on the neck of the deceased causing her death. After assaulting the deceased, the appellant ran away with the axe. Krushna Chandra Bag-P.W.2 lodged the FIR in Badgaon Police Station, on the basis of which the case was registered and investigation was taken up. After completion of investigation charge sheet was submitted for commission of offence under Section 302 of IPC. 3. The prosecution in order to prove the charge examined as many as seventeen witnesses. P.W.1 is the wife of the appellant and daughter of the deceased. P.W.6 is the father-in-law of the appellant and husband of the deceased. These two witnesses were examined as eye witnesses to the occurrence. P.W.2 is the informant. P.Ws. 3, 4, 7, 8, 10 and 14 were examined by the prosecution to prove seizure of the incriminating articles as well as the post occurrence scenario. P.W.11 is the Doctor, who collected blood samples and nail clippings of the appellant and P.W.16 is the Doctor, who conducted post mortem examination. P.Ws. 12 and 13 are two Home Guards, who are witnesses to seizure. P.W.9 is a Police Havildar, who had accompanied the dead body of the deceased for post mortem examination. P.Ws. 16 and 17 are two Investigating Officers. The plea of defence was complete denial of the prosecution allegation and the appellant also complained of false implication. 4. Learned Sessions Judge relying on the evidence of P.W.15 found that the deceased died a homicidal death. P.Ws. 16 and 17 are two Investigating Officers. The plea of defence was complete denial of the prosecution allegation and the appellant also complained of false implication. 4. Learned Sessions Judge relying on the evidence of P.W.15 found that the deceased died a homicidal death. Reliance was also placed on the evidence of P.W.6, who was examined as eye witness to the occurrence. Learned Sessions Judge also took into consideration the evidence relating to recovery of weapon of offence and other circumstantial evidence to find the appellant guilty of the charge. 5. Sri S.S. Mohanty, learned counsel appearing for the appellant assails the impugned judgment on the ground that though prosecution examined P.Ws. 1 and 6 as two eye witnesses to the occurrence, P.W.1 turned hostile and did not support the case of the prosecution. P.W.6 also in cross-examination denied to have seen the occurrence. Therefore no reliance could have been placed by the learned Sessions Judge on the evidence of P.W. 6. It was also contended by learned counsel for the appellant that evidence with regard to seizure of weapon of offence is not at the instance of the appellant but the same was seized from P.W.5. Evidence of P.W.5 is such that no finding could have been arrived that it is the appellant who had left the axe in the courtyard of P.W.5. Learned counsel for the appellant submitted that there is no other evidence to connect the appellant with the alleged offence. 6. Learned Addl. Standing Counsel for the Sate on the other hand placed reliance on P.W.6 as an eye witness to the occurrence and also on P.W.5 as an witness to recovery of weapon of offence. According to learned Addl. Standing Counsel the evidence of P.W.6 is fully corroborated by P.W.15, who conducted the post mortem examination and therefore, the learned Sessions Judge was justified in finding the appellant guilty of the charge. 7. On careful scrutiny of the evidence of all the witnesses, we find that P.Ws. 1, 2, 3, 8, 10 and 14 turned hostile and did not support the case of the prosecution. 7.1 Though P.Ws. 1 and 6 were examined as eyewitnesses to the occurrence, P.W.1, the wife of the appellant and the daughter of the deceased turned hostile and specifically stated that she did not know how her mother died or who killed her. 7.1 Though P.Ws. 1 and 6 were examined as eyewitnesses to the occurrence, P.W.1, the wife of the appellant and the daughter of the deceased turned hostile and specifically stated that she did not know how her mother died or who killed her. 7.2 P.W.6, the husband of the deceased though in examination-in-chief stated to have seen the appellant dealing a blow on the neck of the deceased by means of an axe, in cross-examination he admitted that at the time of occurrence he had not seen the appellant assaulting the deceased by means of an axe and he had only seen his wife lying on the ground with pain. The appellant was not present there. In view of such nature of evidence of P.W.6 under no stretch of imagination it can be said that he is an eye witness to the occurrence. Rather his evidence further shows that he had not seen the appellant at the place of occurrence. We are therefore of the view that neither P.W.1 nor P. W.6 had witnessed the occurrence or even had seen the appellant at the place of occurrence. 7.3 So far as circumstantial evidence is concerned, it is a fact that P.W.15 found one chopped wound on the left side of the neck of the deceased, which was ante mortem in nature and was sufficient to cause death. But the prosecution has not been able to prove involvement of the appellant in assaulting the deceased. 7.4 Reliance was placed by learned Addl. Standing Counsel on the evidence of P.W.5 with regard to seizure of axe. P.W.5 in his deposition stated that 4 to 5 days prior to 02.09.1999 the appellant had been to his house in the morning hour and asked for some drinking water. The appellant left the place after drinking water. On 02.9.1999 police came to his house along with the appellant and asked him as to whether the appellant had left any axe in his house. Thereafter he produced the axe, which he had found lying in his courtyard on the day the appellant visited his house for drinking water. He further stated that on the day the appellant came to his house to drink water, there was no axe near the place where he was standing and after the appellant left he found an axe lying there. He further stated that on the day the appellant came to his house to drink water, there was no axe near the place where he was standing and after the appellant left he found an axe lying there. Therefore, P.W.5 also does not specifically state that it is the appellant who had left the axe in his courtyard on the day he came to his house for drinking water. The axe was found from the house of P.W.5 and not at the instance of the appellant from the house of P.W.5. There is no circumstantial evidence except the evidence of P.W.6 to the effect that there was a quarrel in the house of the appellant on the date of occurrence and after such quarrel the deceased, P.Ws. 1, 6 and the daughter of the appellant had left the house. 8. In view of such nature of evidence, we are unable to agree with the findings of the learned Sessions Judge. Accordingly we allow this appeal and set aside the impugned judgment dated 18.9.2003 passed by the learned Sessions Judge, Sundargarh in S.T. No. 144 of 2000 convicting the appellant for commission of offence under Section 302 of IPC and sentencing him to imprisonment for life. The appellant is acquitted of the said charge. The Jail Criminal Appeal is accordingly allowed. Appeal allowed.