Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 117 (ORI)

Khalasi @ Damu Chatar v. State of Orissa

2014-02-13

BISWAJIT MOHANTY, PRADIP MOHANTY

body2014
JUDGMENT In the present Jail Criminal Appeal, the appellants have challenged the order of conviction dated 13.10.2003 passed by the learned Additional Sessions Judge (F.T.), Keonjhar in S.T.No. 60/16 of 2002/03 under Sections 302/34, IPC and consequent sentence to undergo imprisonment for life. 2.The prosecution case in brief is that on 30.10.2001 the informant-Goura Chatar @ Munda (P.W.4) had been to village Chadeibhol to watch football match leaving his father and grandmother at home. At abut 7.00 P.M. while he was returning home, he found his grandmother lying dead with bleeding injuries by the side of the road, in front of his house. The informant out of fear went to the house of his uncle Damu Champia (P.W.3) where his father reached with bleeding injuries. It is the further case of the prosecution that the accused persons, namely, Khalasi, Chandra and Rempa at about 4.00 P.M. assaulted the informant's father with a lathi alleging that his mother has caused death of the son of Khalasi by practising witchcraft. Accused, Khalasi and Rempa assaulted the informant's father in course of which the deceased Gurubari Chatar sought to intervene for which the accused Chandra, Khalasi, Rempa, Tua and Lalu assaulted her with lathi causing her death. Thereafter, the informant (P.W.4) lodged a report before Saharpada Out-post which sent the FIR to Patna Police Station. On completion of investigation, the police submitted charge sheet against the appellants under Sections 302/201/307/380/34, IPC. The defence plea is one of complete denial. 3.The prosecution in order to prove charges examined as many as 12 witnesses including the Investigating Officer and the Doctor and exhibited 29 documents including the Post Morterm Examination Report and Chemical Examination Report. The defence examined none. On completion of trial, the learned Additional Sessions Judge (F.T.), Keonjhar convicted the present appellants under Sections 302/34, IPC basing upon circumstantial evidence and acquitted them of the charge under Section 307, IPC. 4.Learned counsel for the appellants assailed the judgment of the trial Court on the following grounds : (i)Though the case is based upon leading to discovery under Section 27 of the Indian Evidence Act, but the confessional statements have not been proved by the prosecution. Not a single independent witness has been examined in favour of leading to discovery. On confessional statements (Exts. 1 to 16), the accused and witnesses have not put their signatures. Not a single independent witness has been examined in favour of leading to discovery. On confessional statements (Exts. 1 to 16), the accused and witnesses have not put their signatures. Only those were recorded by the I.O. Since all the recoveries/seizures have been made basing upon the so-called above noted unsigned confessional statements said to have been made by the appellants, it is a fit case for acquittal. (ii)Since no question was put to the appellants under Section 313, Cr.P.C. with regard to Chemical Examination Report, the chain of circumstances is incomplete. Therefore, the appellants ought to be acquitted. 5.Mr. Ramesh Agrawalla, learned Additional Standing Counsel submits that the case is mainly based upon circumstantial evidence and all the appellants led the I.O. and witnesses and gave recovery of the weapons of offence. Therefore, the impugned judgment does not call for interference by this Court. 6.Perused the LCR. P.W.1 is a Constable of Saharpada Out Post and witness to the seizure of wearing apparels of the injured and deceased. He proved Exts. 1, 2 and 3. In cross-examination, he admitted that all the seizures were made in connection with murder case. P.W.2 has stated that on the date of occurrence in the morning accused Chandra Chatar called him to his house to perform certain rituals as the son of the accused Khalasi had died. He went to his house and performed the rituals. The accused persons were present at the relevant time. In the cross-examination, P.W.2 admitted that all the accused persons consumed Handia and ate chicken. At that time the situation was peaceful. P.W.3 is the son-in-law of the deceased. He turned hostile and was confronted with the previous statement by the prosecution during cross-examination. He denied in the cross-examination that there was a good relationship between the accused and deceased. P.W.4 is the grandson of the deceased. In the examination-in-chief, he turned hostile and was cross-examined by the prosecution and was confronted with his previous statement. In the cross-examination, he admitted that on the next day, he lodged a written FIR at Patna Police Station. P.W.5 is the son of the deceased and as turned hostile he was cross-examined by the prosecution as to his previous statements. P.W.6 is the witness to the inquest made over the dead body of the deceased and proved the inquest report vide Ext. 4. P.W.5 is the son of the deceased and as turned hostile he was cross-examined by the prosecution as to his previous statements. P.W.6 is the witness to the inquest made over the dead body of the deceased and proved the inquest report vide Ext. 4. In cross-examination, he admitted that he cannot say whose dead body it was and also cannot say from where the dead body was brought. P.W.7 is a co-villager and witness to the seizure of lathi and some blood stained earth. He proved the seizure list vide Ext. 5. In cross-examination, he admitted that he cannot say from where the blood stained earth was brought and also cannot say from where the lathi was brought by the police. He further admitted that police called him to the place of seizure after the lathi and blood stained earth were brought. P.W.8 was the Circle Inspector of Keonjhar Sadar Police Station. In examination-in-chief, he admitted that he took charge from the Sub-Inspector (P.W.10) and sent the exhibits to the S.F.S.L., Rasulgarh, Bhubaneswar through Court for Chemical Examination. After completion of investigation, he submitted charge sheet against the appellants. He proved the Chemical Examination Report vide Ext. 4. P.W.9 was the A.S.I. of Police at Saharpada Out-post. He admitted that the informant (P.W.4) made an oral report before him which he reduced to writing. After the report was read over to the informant he put his L.T.I. He also proved the FIR vide Ext. 6. He entered the allegation in the Station Diary No. 489. He sent the report to the O.I.C. of Patna Station for registration. The OIC (P.W.10) registered and took up investigation. He also visited the spot and prepared the spot map. He sent the injured for medical examination. He seized blood stained earth and sample earth from the spot and prepared seizure list. P.W.10 was the OIC of Patna Police Station. In examination-in-chief he stated that he registered the FIR and took up investigation. On 1.11.2001, he seized the wearing apparels of the injured Bandhua Chatar (P.W.5) on production by him and prepared seizure list. He proved the seizure list vide Ext. 2. On 1.11.2001, he arrested the appellants and recorded their statements under Section 27 of the Indian Evidence Act. He proved the Ext. 11 to Ext. 16 which are the confessional statements made by the appellants in the police station. He proved the seizure list vide Ext. 2. On 1.11.2001, he arrested the appellants and recorded their statements under Section 27 of the Indian Evidence Act. He proved the Ext. 11 to Ext. 16 which are the confessional statements made by the appellants in the police station. But the said statements are without any signatures of the appellants. Thereafter, all the appellants led the police and gave discovery of the weapons and wearing apparels. He also proved the seizure lists vide Exts. 17 to 22. He received the Post-Mortem Examination Report and sent the weapons for Chemical Examination and ultimately handed over the charge to the C.I. (Sadar)(P.W.8). P.W.11 was the Doctor, who conducted the post-mortem examination of the dead body of the deceased and found the following external injuries; "(i) Lacerated wound behind right ear and extending to right pinna 2" x ½" x 2" (ii) Separation of right pinna into two parts in continuation of injury No. (i). (iii) Lacerated wound 3/4" x ½" x deep into scall infront of right ear, (iv) Lacerated wound 1" x ½" x deep into the scall over left parietal area of scalp. (v) compound multiple fracture at right temporal bone. (vi) Fracture of right parietal bone, (vii) Mulyiple fracture on left temporal bone,S (viii) Compound fracture in the left parietal bone, (ix) Fracture of frontal bone of the left half, (x) Subdural haematoma present over both side pareital and temporal areas of brain. (xii) Congestion of brain with mile haemorrhage in its substance." P.W.11 opined that the cause of death was due to intracranial haemorrhage. The injuries were ante-mortem in nature and time since death was within 24 hours. The injuries were sufficient in ordinary course of nature to cause death of a person. He proved the Post Mortem Examination Report vide Ext. 26. He received 5 lathis from the O.I.C., Patna Police Station and opined that he injuries were possible by the weapon of offence sent to him by the OIC Patna Police Station. P.W.12 was the Surgery Specialist, who treated P.W.5 and found the following injuries : "(i) Lacerated injury ½" x ¼" x 1/8" over lateral side of right eyebrow, (ii) Echymosis 3" x 1" over lateral side of upper part of left leg 1" below left knee joint, (iii) Echymosis 2" x 1" over lateral side of the lower part of the left upper arm". He opined that all the injuries are simple in nature and might have been caused by hard and blunt weapon within the probable duration of 12 to 24 hours. He proved the relevant examination report vide Ext. 28. He further stated that on 21.12.2001 the OIC sent him a query for his opinion. He also proved his answer to the same vide Ext. 29. 7.We have gone through the depositions of witnesses and exhibits. The signed confessional statements made by the appellants (witnessed by P.Ws. 6 and 7) were recorded by the I.O. These are available in the L.C.R. but strangely those have not been marked as Exhibits. This is a disturbing feature in this case. It appears that the unsigned statements of the appellants have been marked as Ext. 11 to 16 and the seizure lists have been marked as Exts. 17 to 22. Such seizures have no meaning as they were made pursuant to so-called unsigned and un-witnessed statements of the appellants. Therefore, such information/confessional statements leading to discovery cannot be made admissible under Section 27 of the Indian Evidence Act, 1872. It is well settled that absence of signature or thumb impression of accused on disclosure statement renders those unreliable. (See AIR 1995 SC 2345 (Jackaran Singh v. State of Punjab). Even otherwise recovery of various articles at the instance of accused in absence of proof or other circumstances is not sufficient to fasten criminal liability on accused. Further no specific question was put by the trial Court to the appellants under Section 313, Cr.P.C. with regard to Chemical Examination Report. In the result, this Court finds that the prosecution has not been able to prove any material against the present appellants beyond reasonable doubt for convicting them. The Jail Criminal Appeal is accordingly allowed. It is stated at the Bar that while appellant Nos. 1, 2, 3 and 5 are on bail, appellant Nos. 4 and 6 are in custody. If that be so they be released forthwith if they are not wanted in any other case. Appeal allowed.