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2012 DIGILAW 333 (ORI)

Bamia Ho @ Sayan v. State of Orissa

2012-08-02

B.K.PATEL, L.MOHAPATRA

body2012
JUDGMENT L. MOHAPATRA, J. This appeal is directed against the judgment and order dated 28.7.2005 passed by the learned Additional Sessions Judge (F.T.C.), Baripada, Mayurbhanj in S.T. Case No. 13/26 of 2004 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (in short 'IPC') on allegation of committing murder of one Nitima Ho and sentencing him to undergo imprisonment for life. He has also been convicted for commission of offence under Sections 323 and 324 of IPC and has been sentenced to imprisonment for one year for offence under Section 324 of IPC but no separate sentence has been imposed for conviction under Section 323 of IPC. All the sentences have been directed to run concurrently. 2. Case of the prosecution is that on 21.9.2003, the informant (P.W.1), who is also the husband of the deceased, had gone along with his son Abhiram to Tato Hat leaving the deceased, daughter Binapani and Jema, (P.WA) and son Mansingh (P.W.12) in the house. In the evening when he returned from the Hat he was informed by P.W.4 that the appellant assaulted the deceased in his house by means of an axe causing her death. When his son (P.W.12) intervened the appellant also assaulted him for which P.W.12 became unconscious at the spot. Hearing about the incident, P.W.1 proceeded to his house and found his wife lying dead and also found cut injury over the head of his son. He thereafter informed the village Choukidar (P.W.5) to go to Tangabila to inform to the Police Station over telephone. The O.I.C., Jashipur Police Station (P.W.13) came to the house of P.W.1 on the next day at about 5.30 a.m. and received the F.I.R. from P.W.1 written by P.W.6. It was further alleged by P.W.1 that in the morning of 20th September, 2003, cattle of the appellant damaged the paddy of P.W.1 for which complaint was lodged before Jadumani Mahanta, Ward Member (P.W.2) and (P.W.2) had directed the appellant to pay compensation to P.W.1. On completion of investigation, charge sheet was submitted for commission of offence under Sections 302, 307 and 323 of IPC and the appellant also faced trial for commission of the said offence. The appellant denied the prosecution case and took a specific plea that due to land dispute, a false case has been foisted against him. 3. On completion of investigation, charge sheet was submitted for commission of offence under Sections 302, 307 and 323 of IPC and the appellant also faced trial for commission of the said offence. The appellant denied the prosecution case and took a specific plea that due to land dispute, a false case has been foisted against him. 3. The prosecution in order to prove the charges examined thirteen witnesses, out of whom, P.W.1 is the informant and the husband of the deceased P.W.2 is a witness to the inquest and P.W.3 is a post occurrence witness P.Ws. 4 and 12 are the daughter and son of the deceased and are eye-witnesses to the occurrence P.W.12 also received injury at the hands of the appellant in course of incident P.W.5 is the Grama Rakhi, who had informed the Police Station about the incident and P.W.6 has scribed the FIR. P.W.7 had seen P.W.4 running out of the house. P.W.8 is the doctor, who had examined P.W.12 on police requisition and P.W.9 is another doctor, who conducted the post mortem examination, P.W.10 is a Constable and witness to the seizure. P.W.11 turned hostile and P.W.13 is the I.O. The Trial Court, placing reliance on the evidence of P.Ws. 4 and 12 read with the evidence of P.Ws. 8 and 9, found the appellant guilty of the offences for which he was convicted. 3. Miss Sonali Biswal, learned counsel for the appellant placed the evidence of P.Ws. 4 and 12 and submitted that there are material inconsistencies in the evidence of both the eye-witnesses making them unreliable. According to Miss. Biswal, learned counsel for the appellant, if the Court finds that these two witnesses are not reliable merely on the evidence of P.Ws. 8 and 9, no conviction can lie for all the offences for which the appellant had been charged. Learned counsel for the State placed reliance on the evidence of two eyewitnesses and submitted that inconsistencies pointed out by the learned counsel for the appellant are not so important for the purpose of proving the charge and ignoring those inconsistencies, the Court can rely on the said two eye-witnesses. It was further submitted by the learned counsel for the State that evidence of two eye witnesses is fully corroborated by the evidence of P.Ws. 8 and 9 and, therefore, there is no reason to discard the evidence of P. Ws. It was further submitted by the learned counsel for the State that evidence of two eye witnesses is fully corroborated by the evidence of P.Ws. 8 and 9 and, therefore, there is no reason to discard the evidence of P. Ws. 4 and 12. 4. We have carefully examined the evidence of all the thirteen witnesses. The relevant witnesses are P.Ws. 1, 4, 9, 10 and 12. P.W.1 is husband of the deceased and father of P.Ws. 4 and 12. He deposed that on 20th September, 2003 when he came back from the Hat at about 4.30 P.M., he found his daughter (P.W.4) running in search of him. She revealed before him that the appellant assaulted her sister and P.W.12 as well as the deceased. Thereafter, he went to his house and found cut injury over the head of his wife and she was already dead by then. He also marked injury over the head of P.W.12 and another daughter. Thereafter he informed about the incident to P.W.5 and both of them went to Dhaba and informed the police about the incident over phone. The deceased could not be shifted in the night. In the same night at about 7 P.M. police came to their village and remained on guard. On the next day, P.W.6 scribed the FIR and the same was handed over to the I.O. P.W.4 is the daughter of the deceased as well as P.W.1. She is a girl aged about ten years. From her evidence, it appears that the appellant is her brother. She deposed that on the date of occurrence, she was in the house along with the deceased, her injured sister, her injured brother Mansingh (P.W.12) and her younger brother. At that time the appellant and one Charan. @ Chintamani entered into the house. The said Charan @ Chintamani was holding an axe and was provoking the appellant to assault the deceased. Thereafter, the said Charan @ Chintamani handed over the axe to the appellant, who in turn assaulted the deceased over her head. Thereafter, the appellant assaulted her sister, Binapani and P.W.12, Thereafter, she went to the house of Tikaram as the appellant also tried to assault her. She narrated about the incident before Tikaram where his father was also present. Thereafter, the said Charan @ Chintamani handed over the axe to the appellant, who in turn assaulted the deceased over her head. Thereafter, the appellant assaulted her sister, Binapani and P.W.12, Thereafter, she went to the house of Tikaram as the appellant also tried to assault her. She narrated about the incident before Tikaram where his father was also present. In cross-examination, this witness repeated that it is the Charan @ Chintamani, who instigated the appellant to assault P.W.12, another eye-witness to the occurrence and happens to be the son of P.W.1 and deceased. He deposed that at the time of occurrence, he along with three brothers and sisters as well as the deceased were present in the house. The deceased was lying on the cot and his sister was about to cook food. At that time the appellant came and assaulted the deceased over her head by means of an axe. Thereafter, all of them shouted. The appellant thereafter chased his sister to assault and also assaulted him on his head. There was bleeding from his head. At the time of occurrence, his father was not in the house. In cross-examination, he stated that at the time of occurrence one Badatumbi and Charan were with the accused Badatumbi was armed with lathi and Charan was armed with an axe. At that time one Nandu Buda came to the spot to protest for which Badatumbi and Charan chased Nandu Buda. While chasing, both of them were shouting in low voice. Thereafter Charan and Badatumbi had not returned to his house. The inconsistency appearing in the evidence of P.Ws. 4 and 12 is that P.W.4 claims to have seen Charan @ Chintamani handing over an axe to the appellant and instigating him to assault the deceased, whereas evidence of P.W.12 shows that Charan @ Chintamani had come to the house of deceased along with Badatumbi and the appellant. When there was a protest from the side of Nandu Buda, both Charan and Badatumbi chased Nandu Buda and thereafter never returned to the house of the deceased. Therefore, P.W.12 is completely silent about handing over the axe by Charan @ Chintamani to the appellant and also the instigation alleged to have been made by Charan to the appellant to kill the deceased. 5. Therefore, P.W.12 is completely silent about handing over the axe by Charan @ Chintamani to the appellant and also the instigation alleged to have been made by Charan to the appellant to kill the deceased. 5. From the evidence of both the witnesses it is clear that the appellant was not holding any weapon in his hand when he had come to the house of the deceased. Though P.W.4 says that the axe was handed over to the appellant by Charan, P.W.12 is completely silent about the same. P.W.12 has not stated as to how the appellant came in possession of the axe. Such inconsistency appearing in the evidence of P.Ws. 4 and 12 goes to the route of prosecution case and the allegation of assault by the appellant by means of an axe can only be proved provided the prosecution lead evidence to show that either the appellant had come armed with an axe or was handed over the axe by some body else. The inconsistency in this regard is so material that it may be unsafe to rely on the evidence of these two eye witnesses for recording an order of conviction. No doubt the evidence of P.W.9 shows that the deceased had sustained injuries which could be caused by an axe and P.W.12 also sustained injury which could be caused by an axe but in absence of any evidence to show that the appellant was in possession of an axe, it may be unsafe to convict the appellant for the offence solely on the evidence of P.W.4, specially when P.W.12 specifically says that while coming to the house of the deceased, the appellant was unarmed and two other persons, who were holding arms, left the house chasing Nandu Budha. Since we find that it is unsafe to record an order of conviction on the basis of such inconsistency in the evidence of P.Ws. 4 and 12, we find it difficult to sustain an order of conviction recorded by the Trial Court. 6. We accordingly allow the appeal and set aside the impugned judgment and order dated 28.7.2005 passed by the learned Additional Sessions Judge (F.T.C.), Baripada, Mayurbhanj in S.T. Case No. 13/26 of 2004 convicting the appellant-Bamia Ho @ Sayan for commission of offence under Sections 302, 324 and 323 of the Indian Penal Code. The appellant is acquitted of the said charges. The appellant is acquitted of the said charges. It is stated at the Bar that the appellant is still in custody. If that be so, he be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed.