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2012 DIGILAW 426 (ORI)

Durjyodhan Jena v. State Of Orissa

2012-09-25

PRADIP MOHANTY, S.K.MISHRA

body2012
JUDGMENT PRADIP MOHANTY, J. 1. This appeal is directed against the judgment and order of the learned Addl. Sessions Judge, (Fast Track Court), Chhatrapur convicting the appellant under Sections 302 and 379 of the Indian Penal Code, for short the 'IPC', and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- (Rupees one thousand), in default to undergo simple imprisonment for six months, for the offence under Section 302 of the IPC and rigorous imprisonment for two years for the offence under Section 379 of the IPC, in Sessions Case No. 4/2003/ S.C. 172/2002 GDC. 2. The case of the prosecution, bereft of unnecessary details, is that on 06.09.2001 at about 8:00 A.M. the deceased Mama Polei had been to her land. Her husband had been to nearby forest to bring thorn bush. At noon, two children of the deceased went to the land taking meals for the deceased. They could not get their mother there and came back. They intimated missing of their mother to their elder father (informant), who informed the fact to his brother (husband of the deceased) after his return. Then both the brothers searched for the deceased at 'Balipadar' as well as at her parental house but could not get any trace of her. They along with the villagers again went in search of the deceased and at about mid-night detected the dead body of the deceased, which was kept concealed inside a bush near the 'Jagada River' covering branches of tree in a naked position with some injuries. They also noticed that some gold ornaments of the deceased were missing. Thereafter, they brought the dead body of the deceased to her house and reported the matter at Kodala Police Station consequent upon which the case was registered and investigation taken up. In course of investigation accused gave recovery of 'saree' of the deceased which was seized by the I.O.. After completion of investigation, chargesheet was submitted against the appellant for commission of offences under Sections 302/379/209 of the IPC. 3. The plea of the defence is one of clean denial and false implication due to enmity. 4. In order to prove its case, the prosecution has examined as many as 11 witnesses including the doctor and the I.O. and exhibited 12 documents. Defence has examined none. 5. The learned Addl. 3. The plea of the defence is one of clean denial and false implication due to enmity. 4. In order to prove its case, the prosecution has examined as many as 11 witnesses including the doctor and the I.O. and exhibited 12 documents. Defence has examined none. 5. The learned Addl. Sessions Judge, Chhatrapur on completion of trial, basing on the evidence of P.Ws. 4 and 8, by whom the deceased and accused were last seen together, and other circumstantial evidence including recovery of the wearing apparels of the deceased at the instance of accused, held the appellant guilty for commission of offences punishable under Sections 302 and 379, IPC and accordingly convicted him thereunder and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo S.1. for six months, for the offence under Section 302, IPC and further sentenced him to undergo rigorous imprisonment for two years for the offence under Section 379, IPC. 6. The learned counsel for the appellant assails the impugned judgment of conviction and order of sentence on the following grounds: (i) Evidence of P.Ws. 4 and 8 cannot be relied upon for any purpose, since they for the first time disclosed the fact to police after 25 days of the occurrence and their evidence also otherwise suffers from major contradictions. (ii) P.Ws. 4 and 8 alleged to have seen the accused dragging the deceased at about 12:00 noon and the dead body was recovered after mid-night. In view of such time gap, no reliance can be placed on the last seen theory introduced by the prosecution through P.Ws. 4 and 8. (iii) The prosecution has not been able to establish the disclosure made by the appellant and leading to recovery of the wearing apparels (saree) of the deceased said to have been made at his instance under Section 27 of the Evidence Act. (iv) The weapon of offence, i.e., 'Kati' said to have been recovered from the house of the accused was not sent for chemical examination and no oral or documentary evidence was adduced by the prosecution that said 'kati' was stained with human blood. 7. Mr. Zafuralla, learned Addl. Standing Counsel, on the other hand, submits that P.Ws. (iv) The weapon of offence, i.e., 'Kati' said to have been recovered from the house of the accused was not sent for chemical examination and no oral or documentary evidence was adduced by the prosecution that said 'kati' was stained with human blood. 7. Mr. Zafuralla, learned Addl. Standing Counsel, on the other hand, submits that P.Ws. 4 and 8 specifically implicated the accused with the crime by stating that they saw the accused dragging the deceased towards Jagada river side after quarrelling with her. P.W.4 in cross-examination has categorically stated that seeing 'the accused dragging the deceased when she and her husband (P.W.8) raised 'hullah', the accused showed them the 'kati' which he was holding at that time. P.W.5 is a co-villager, who at the relevant time had come to the river 'Jagada' along with Hari Swain (P.W.6) to take bath. He stated that after bathing while he was changing his cloths by standing on the bank of the river he saw the accused standing on the other side of the river 'Jagada'. Thereafter, he went along with P.W.6 to his village. From the evidence of the I.O. (P.W.10) and the independent witnesses (P.Ws. 5 and 6) it is evident that the accused while in police custody made disclosure before them, led them to the place of concealment and gave recovery of the 'saree' of the deceased. The evidence of P.Ws. 4 and 8 gets support from the evidence of the doctor (P.W.11), who found some incised injuries on the dead body of the deceased. All these circumstances are pointing to the guilt of the appellant and, therefore, there is no scope for this Court to interfere with the impugned judgment of conviction and sentence passed by the Trial Court. 8. Perused lower Court records and gone through evidence of the witnesses minutely. P.W.1 is a constable and a witness to the inquest over the dead body of the deceased. P.W.2 is also a constable and a witness to the seizure of the wearing apparels of the deceased. P.W.3 is the informant of this case and elder brother of the husband of the deceased. In his examination-in-chief he stated that the deceased had been to the Balipadar land to collect 'ragi' crops at about 8:00 to 9:00 a.m. on the date of occurrence and her husband had been to the forest to bring the thorn bosh. P.W.3 is the informant of this case and elder brother of the husband of the deceased. In his examination-in-chief he stated that the deceased had been to the Balipadar land to collect 'ragi' crops at about 8:00 to 9:00 a.m. on the date of occurrence and her husband had been to the forest to bring the thorn bosh. Two daughters of the deceased went to Bali Padar land at about mid-day taking meal for their mother but could not find her there. They returned to the village and intimated him about the missing of their Mother. P.W.3 further stated that when the husband of the deceased came to the village, both of them went to the Bali Padar land in search of the deceased, but they could not get her. At about 6:00 p.m. they returned to the village and went to the parental house of the deceased in search of her but in vain. At mid-night', he along with his brother and some of the villagers again went to the Bali Padar land holding torch lights in search of the deceased. They found the dead body of the deceased lying inside a bush in a naked condition inasmuch as except one blouse there was no cloth in her body. They also noticed some injuries on different parts of the body of the deceased. One golden 'Khasu Mali', one of the golden 'Nadia Phula' of the nose and the ear ring missing. They brought the dead body to the village. On the next day, he (P.W.3) went to the police station and lodged the FIR after getting the same scribed by one Mangaraj Swain. In cross-examination, P.W.3 admitted that he had seen the deceased wearing the 'Khasu Mali' while proceeding to the Balipadar land. He was an accused in a dacoity case and was acquitted. Although P.W.3 in his further examination in chief on recall stated that 'Maridi Padar' situates at a distance of about 4 KMs from their village, in cross-examination to a Court question he admitted that the place where they found the dead body of the deceased is about 3 KMs away from their village. Although P.W.3 in his further examination in chief on recall stated that 'Maridi Padar' situates at a distance of about 4 KMs from their village, in cross-examination to a Court question he admitted that the place where they found the dead body of the deceased is about 3 KMs away from their village. P.W.4, who is a co-villager, stated in her examination-in-chief that on 06.09.2001 at about 11:00 AM to 12:00 noon she along with her husband (P.W.8) was plucking grass from their field and the deceased was collecting 'ragi' crops about 2 kiaries away from their land. At that time, the accused came near the deceased and after some exchange of words between the two took the deceased dragging towards Jagata River. Thereafter, they did not find the deceased. As the accused was rowdy in nature, they did not state about the occurrence to anybody of their village and out of fear left for her parents' house on the following day of the occurrence. In cross-examination P.W.4 admitted that when she and her husband raised hullah, the accused raised his 'kati' and showed to them. Out of fear they kept quiet and that there were no other persons near the place of occurrence at that time. She also admitted that the deceased had not raised 'hullah' when she was being dragged by the accused P.W.5 stated that on the material date at about 12:00 noon he along with Hari Swain (P.W.6) had been to Jagada River to take bath after collecting 'Baguli' from the forest. Taking his bath first he came to the bank of the river and engaged in changing his cloths. At that time, the accused by standing on the other side of the river Jagada asked him why he was standing there. When he answered that he had been to the forest to collect 'Baguli', the accused went away towards Padaraland of Lokanath Das and they returned to the village. In the way, they met one Ganapati Jena of their village and told him that he saw the accused wearing a shirt was proceeding towards the land of Lokanath Das. In the following night the dead body of the deceased was brought to their village from the Padarland of Lokanath Das. In the way, they met one Ganapati Jena of their village and told him that he saw the accused wearing a shirt was proceeding towards the land of Lokanath Das. In the following night the dead body of the deceased was brought to their village from the Padarland of Lokanath Das. On the next day, police came to their village, examined him, arrested the accused and recorded his statement, but he cannot say the contents of the statement. He is also a witness to the seizure of 'sickle', 'kati' and wearing apparels of accused. P.W.5 was declared hostile by the prosecution and while he was confronted with the previous statement admitted that it is a fact that he had stated before police that the accused while in police custody led the police near the bush of the land of Lokanath Das and gave recovery of the 'saree' of the deceased in cross-examination he admitted that 'sickle' and 'kati' are commonly available in agricultural households. He also admitted that he cannot say the contents of the seizure list in which his signatures were taken. P.W.6 in his examination-in-chief, besides supporting the evidence of P.W.5 with regard to proceeding to the forest for collecting 'Baguli' and taking bath in river 'Jagada', stated that the accused while in police custody made a statement before police that he had kept the wearing apparels of the deceased inside a bush near 'Jagada' river and gave recovery of the same which was seized by police under Ext. 9. He proved the statement of the accused marked Ext. 6/1 and his signature Ext. 6/2. He also proved Ext. 9, the seizure list under which wearing apparels of the deceased were seized, and his signature Ext. 9/1. He further proved the seizure list Ext. 7, where under 'kati' and 'sickle' were seized, and his signature Ext. 7/2. He also proved Ext. 8, the seizure list under which wearing apparels of the accused were seized, and his signature Ext. 8/2. In cross-examination, he admitted that he did not know the contents of the seizure lists in which he had signed and that the contents of the seizure lists were not read over and explained to him by the police. P.W.7 is a co-villager and a witness to the inquest. P.W.8 is also a co-villager and husband of P.W.4. 8/2. In cross-examination, he admitted that he did not know the contents of the seizure lists in which he had signed and that the contents of the seizure lists were not read over and explained to him by the police. P.W.7 is a co-villager and a witness to the inquest. P.W.8 is also a co-villager and husband of P.W.4. In his examination-in-chief he stated that he and his wife were working in their field and the deceased was plucking 'ragi' crops at her field situated by the side of their field. At that time, the accused came near the deceased, picked up some quarrel with her and thereafter took the deceased by dragging towards Jagada Nala. In the same night, he informed about the occurrence to Bijaya Palei, husband of the deceased. In cross-examination, he admitted that he and his wife were present in their village when the accused was arrested. He also admitted that he told the occurrence to the husband of the deceased and other villagers, who were searching for the deceased. He also admitted that he was examined by the police about 20 days after the occurrence. P.W.9 is the Officer-in-charge of Kodala Police Station, who registered the case, investigated into the matter and sent the dead body for post-mortem examination. He handed over charge of investigation to the Circle Inspector of Police, Chatrapur. P.W.10 is the C.I. of Police and main I.O., who examined the other witnesses and arrested the accused from his house by engaging spy. While in police custody, the accused gave a statement before him and in presence of witnesses that he had kept the wearing apparels and gold ornaments of the deceased inside a bush. Thereafter, the accused led him and other witnesses to the place of concealment and gave recovery of 'saree', which he seized under Ext. 9. He further stated that he had searched the house of the accused and recovered one 'kati' and one sickle and seized same under Ext. 7. On completion of investigation, he submitted charge-sheet under Sections 302, 201 and 309, IPC. P.W.11 is the doctor, who conducted post-mortem examination on the dead body of the deceased and found the following external injuries: "i. Abraded contusion size 3 cm x 2 cm present over mid forehead 3 cm. above nasion. ii. Abraded contusion size 4 cm x 0.5 cm. P.W.11 is the doctor, who conducted post-mortem examination on the dead body of the deceased and found the following external injuries: "i. Abraded contusion size 3 cm x 2 cm present over mid forehead 3 cm. above nasion. ii. Abraded contusion size 4 cm x 0.5 cm. present obliquely on left side of face adjacent to the lower eyelids. iii. Multiple abraded contusion of varying sizes and shapes present over the left upper eyelid. iv. Contusion size 2 cm. x 1 cm x mucosal deep present on the inner aspect of lower lip almost at its middle, corresponding to the central lower left incisor teeth. v. Multiple, linear scratch abrasion, crescentic in nature present on an area of 6 cm x 4 cm over the left malar area. vi. Abraded contusion of size 3cm x 2cm on the under surface of chin at its middle. vii. Abraded contusion 2 in number, present adjacent to each other of size 2 cm x 1 cm each, little obliquely, and outwardly over the left side face near to the middle of body of mandible with a gap of 0.25 cm. viii. A small lacerated wound of size 2 cm x 1 cm. present over the pinna of left ear into its muscle deep. ix. Contusion of size 3 cm x 2 cm disc shaped present obliquely' and outwards over the right side of neck 2 cm below the middle of mandibular ramus. x. A pressure abrasion looks brownish black in colour of size 4 cm x 0.5 cm. present little obliquely medially on the poster-lateral aspect of left neck 5 cm. below and 1 cm., behind mastoid. xi. Crescent shaped abrasion 0.75 cm. long, present 2 cm. away and 1 cm. above the external injury no. 8. xii. Abraded contusion of size 4 cm. x 3 cm. present over the middle of manumbrium sterni, on the front of chest. xiii. Multiple tiny abrasion of different size and shape covering an area of 8 cm. x 3 cm. on the antero-lateral aspect of right wrist joint. xiv. Multiple linear abrasion, present on the back, directed below upwards in an area of 16 cm. x 12 cm. at the middle. xv. Multiple liner abraded contusions, and abrasions, covering an area of 20 cm. x 18 cm over the poster lateral aspect of left Gluteal area. xvi. Contusion of size 12 cm. xiv. Multiple linear abrasion, present on the back, directed below upwards in an area of 16 cm. x 12 cm. at the middle. xv. Multiple liner abraded contusions, and abrasions, covering an area of 20 cm. x 18 cm over the poster lateral aspect of left Gluteal area. xvi. Contusion of size 12 cm. x 7 cm on the inner aspect of the left thigh, adjacent to the left crural fold. xvii. Contusion of size 11 cm. x 7 cm. on the inner aspect of the right thigh adjacent to the right crural fold and little away from it. xviii. Multiple liner abrasion covering an area of 9 cm. x 6 cm. on the lateral aspect of right Gluteal area. xix. Multiple liner abrasion in an area of 12 cm. x 11 cm. over the anterior aspect of the right thigh. xx. A lacerated wound of size 4 cm x 1 cm x muscle deep extended from the lower margin of vaginal orifice, downwardly to the perineum, where the part is soiled with blood. He opined that all the injuries were ante mortem in nature, Cause of death of the deceased was due to combined effect of physia and vanus congestion resulting from manual strangulation. 9. Analyzing the entire evidence this Court finds that P.Ws. 4 and 8 have not witnessed the appellant committing murder of the deceased. In their evidence they only allege to have seen the appellant quarrelling with the deceased and dragging her towards river Jagada on 06.09.2001 at about 11:00 AM to 12:00 noon. But, as a matter of fact these two witnesses (P.Ws. 4 and 8) were examined by police after 20 to 25 days of the occurrence and till then they had not disclosed about the fact said to have been witnessed by them to anybody. If at all these two witnesses had seen the appellant quarrelling with the deceased and dragging her towards river Jagada, their silence for such a pretty long period rises question mark with regard to veracity of their evidence. The plea taken by these two witnesses, that the appellant being a 'goonda' type man out of fear they left the village immediately after the occurrence, is far from belief. Neither any oral nor any documentary evidence is available on record to show that the appellant has criminal antecedents and is a 'goonda' type man. The plea taken by these two witnesses, that the appellant being a 'goonda' type man out of fear they left the village immediately after the occurrence, is far from belief. Neither any oral nor any documentary evidence is available on record to show that the appellant has criminal antecedents and is a 'goonda' type man. Besides, the material discrepancies appearing in their evidence makes their testimony wholly unreliable. In addition, these two witnesses admit in their evidence that on the next day of the occurrence, when they were present in the village, police came to their village and arrested the appellant. If that be so, why they did not disclose before police about the fact witnessed by them? P.W.3, the informant himself, has not stated either in the FIR or in his evidence that he had heard from P.Ws. 4 and 8 about the deceased last seen by them in the company of the appellant. Under these circumstances, the last seen theory introduced by the prosecution cannot be believed. Apart from the above, in the instant case the wearing apparels of the appellant as well as the deceased, which were seized in presence of the witnesses, were not sent for chemical examination. There is no evidence to show that such wearing apparels were stained with blood. There is also no material to show that the blood was found in the weapon of offence, i.e., 'Kati'. Seizure of wearing apparels cannot solely form the basis of conviction in absence of any other evidence. According to the witnesses, 'Kati; is commonly used for agricultural purposes. So, for seizure of such 'Kati', the appellant cannot be held responsible for the death of the deceased. For all the above reasons, this Court holds that in this case the prosecution has not been able to establish every link in the chain of circumstances. The circumstantial evidence led by the prosecution is not found to be consistent with the guilt of the appellant. Therefore, in absence of any clear, clinching and unimpeachable evidence this Court acquits the appellant of the charge under Section 302, IPC. 10. So far as the conviction of the appellant under Section 379, IPC is concerned, this Court does not find any cogent and convincing evidence against the appellant. Therefore, in absence of any clear, clinching and unimpeachable evidence this Court acquits the appellant of the charge under Section 302, IPC. 10. So far as the conviction of the appellant under Section 379, IPC is concerned, this Court does not find any cogent and convincing evidence against the appellant. P.W.3, whose evidence appears to have formed the basis for conviction of the appellant under Section 379, IPC, has not in any way implicated the appellant in his entire evidence. He only deposed that he had seen the deceased wearing "Khasu Mali" while proceeding towards Bali Padar land and when her dead body was recovered he noticed that one golden "Khasu Mali", one golden "Nadia Phula" and one ear ring was missing. This evidence of P.W.3, as already indicated, does not in any way implicate the appellant. This apart, none of the ornaments, which were allegedly found missing by P.W.3, has been recovered either from the person of the appellant or at his instance. As is revealed from the impugned judgment, the trial Court having found the appellant guilty of committing murder of the deceased has got swayed away and only on the basis of presumption convicted the appellant for the offence under Section 379, IPC. In the circumstances, the conviction of the appellant under the said section cannot be sustained. 11. In view of the discussions made above, this Court sets aside the impugned judgment of conviction and order of sentence passed by the Trial Court and acquits the appellant of the charge under Sections 302/379, IPC. 12. It is stated at the Bar that from the date of his arrest the accused-appellant-Durjyodhan Jena is languishing in jail custody. If that be so, he be set at liberty forthwith, if his detention is not required in connection with any other case. The JCRLA is accordingly allowed. I agree. JCRLA allowed.