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2014 DIGILAW 364 (ORI)

Guru Charan Mallik alias Budha v. State of Orissa

2014-06-19

B.P.RAY, PRADIP MOHANTY

body2014
JUDGMENT PRADIP MOHANTY, J. 1. This jail criminal appeal is directed against the judgment and order dated 03.07.2004 passed by the learned Additional Sessions Judge, Kendrapara in Sessions Trial No. 11/78 of 2004 convicting the present appellant for commission of offence under Section 302, Indian Penal Code and sentencing him to undergo imprisonment for life. 2. The prosecution case, in brief, is that the deceased was the wife of the accused and sister of the informant. It is alleged that the accused used to assault the deceased frequently. So, four months prior to the incident, the deceased had gone away to her brother’s house. But, however, one month prior to the incident, the deceased had joined with the accused. On 09.04.2003, the informant heard that the accused committed murder of the deceased. He immediately proceeded to the occurrence village and saw the dead body of his sister lying at the spot with injury. There, he came to know that the accused assaulted the deceased by means of a tangia, as a result of which she died and, thereafter, the appellant fled away with the tangia. He also came to know that on the day before the incident the accused was assaulting the deceased and was asking her to go away to her parents’ house. Accordingly, he reported the matter to the police consequent upon which investigation commenced and after its due completion charge-sheet was submitted against the accused under section 302, IPC. 3. The plea of the defence is complete denial of the allegation. 4. In order to prove the charge, the prosecution examined as many as 15 witnesses including the doctor as P.W.14 and the I.O. as P.W.15 and exhibited ten documents. Defence examined none. The learned Additional Sessions Judge, who tried the case, convicted the appellant-accused for commission of the offence punishable under section 302, IPC basing upon the circumstantial evidence and sentenced him to undergo imprisonment for life. 5. Mr. Mohanty, learned counsel for the appellant submits that each of the circumstances has not been proved by the prosecution and the chain of circumstances is also not complete. 5. Mr. Mohanty, learned counsel for the appellant submits that each of the circumstances has not been proved by the prosecution and the chain of circumstances is also not complete. The child witness Kusa, who is a very material witness, has been withheld by the prosecution from being examined before the court, for which the prosecution case has to be viewed with suspicion and the evidence of P.W.9 in absence of any corroboration by Kusa has to be accepted with a pinch of salt. That apart, neither seizure of tangia nor leading to discovery of it has been proved by the prosecution. Mr. Mohanty also submits that the trial court fell into grave error in convicting the appellant basing upon the only circumstance that the appellant was not available for ten days in the village. It is well settled in law that abscondance of the accused soon after the incident solely cannot form the basis of conviction in absence of any other corroborative evidence and there is also nothing on record to establish that at the time of incident the appellant was present in his house. P.W.9, who is the son of the deceased so also the appellant, has categorically admitted in his evidence that prior to the incident both the appellant and his deceased mother were living happily. Therefore, it is a fit case for acquittal. 6. Mr. Zafarulla, learned Additional Standing Counsel vehemently supports the impugned judgment of conviction and sentence. He contends that prior to the incident the deceased was being ill-treated by her husband and such fact is evident from the evidence of the informant (P.W.4) and co-villager (P.W.8). Seizure of the weapon of offence, i.e. tangia and leading to its discovery have been proved by the Investigating Officer, who has specifically stated that in presence of police and the co-villagers, the appellant confessed his guilt, led them to the place of occurrence and gave recovery of the weapon of offence, which was seized by him under Ext.3. In Ext.9/1 the doctor (P.W.14), who conducted post mortem examination over the dead body of the deceased, opined that the injuries mentioned in the post mortem report were possible by the weapon of offence tangia. All these circumstances coupled with the fact that the appellant was absconded for ten days soon after the occurrence amply prove that the appellant was the author of the crime. All these circumstances coupled with the fact that the appellant was absconded for ten days soon after the occurrence amply prove that the appellant was the author of the crime. As such, the impugned judgment does not call for interference by this Court. 7. The doctor P.W.14, who conducted post-mortem examination and proved the post-mortem report (Ext.6), opined that all the injuries were ante mortem in nature and the death was due to the injury on the brain matter and intracranial haemorrhage. So, the trial court, in absence of any evidence to the contrary, has rightly come to the conclusion that the death of the deceased was homicidal. 8. Now, it is to be seen whether the appellant is the author of the crime. P.W.1 stated that hearing hullah he reached at the spot and there, Kusa, the younger son of the deceased, told him that the appellant assaulted to his mother. He saw cut injury on the head from which blood was oozing. He proved the inquest report Ext.1 being a witness to the inquest. P.W.2 also stated that hearing hullah he went to the spot and there Laba and Kusa, the sons of the accused, told him that accused assaulted the deceased. He saw the dead body lying inside the room. In cross-examination he, however, admitted that he had not stated to the Investigating Officer that he had heard about the incident from Laba and Kusa. P.W.3 simply stated when he heard the accused assaulted to the deceased, he went to the spot and saw the dead body. P.W.4 is the brother of the deceased and the informant of this case. In his examination-in-chief, he stated that the deceased was blessed with two children, namely, Laba and Kusa. The accused used to ill-treat her and also once threatened to burn her by pouring kerosene. On account of the same, two months prior to the date of occurrence the deceased had come to his house, but he left her in the house of the accused. P.W.4 further stated that on the date of occurrence he heard that the accused assaulted the deceased by means of a tangia and committed her murder. Hearing that, he went to the spot and saw the deceased lying dead with head injury from which blood was oozing. P.W.4 further stated that on the date of occurrence he heard that the accused assaulted the deceased by means of a tangia and committed her murder. Hearing that, he went to the spot and saw the deceased lying dead with head injury from which blood was oozing. Kusa, the younger son of the deceased, told him that by means of a tangia accused assaulted the deceased and went away with the said tangia. He proved the F.I.R. (Ext.2), which was lodged by him getting it scribed through P.W.10. He also proved the inquest report (Ext.1) and his signature appearing thereon (Ext.1/2). In cross-examination, he admitted that he was not in good term with the present appellant and that he had not stated to the I.O. that accused had also tried to burn the deceased by pouring kerosene. P.W.5 stated that the deceased was killed on 09.04.2003. Kusa told to the villagers that accused assaulted to the deceased and committed her murdered. He went to the spot and saw the dead body at the house of the accused lying with bleeding injury on her head. He further stated that I.O. held inquest over the dead body in his presence and prepared inquest report, Ext.1/3 is his signature. He also stated that police seized one tangia from Kiabuda and prepared seizure list. Ext.3 is the said seizure list and Ext.3/1 is his signature. At this stage, he was declared hostile and cross-examined by the prosecution. He denied the suggestion made by the Public Prosecutor that he had stated to the I.O. that accused while in custody lead the police party, brought out the tangia from Kiabuda and produced it before the I.O. However, in the cross-examination by the defence, the said P.W.5 admitted that he cannot say wherefrom the tangia police brought and that he signed on the blank paper and that he had not seen any seizure of blood stained earth. P.W.6 in his examination-in-chief has stated that he heard about the incident and went to the spot where both the sons of accused and deceased told that accused went away after assault. They searched for the accused but failed to trace him out. He has further stated that police seized blood stained earth from the spot under Ext.4 whereon Ext.4/1 is his signature. Accused was arrested ten days after the occurrence. They searched for the accused but failed to trace him out. He has further stated that police seized blood stained earth from the spot under Ext.4 whereon Ext.4/1 is his signature. Accused was arrested ten days after the occurrence. Police seized tangia under Ext.3 whereon Ext.3/2 is his signature. But, he cannot say wherefrom police seized the said tangia. P.W.7 is a hostile witness and on being cross-examined by the public prosecutor he denied to have stated to the I.O. that accused frequently used to assault Tapoi (deceased) for which Tapoi lived with her parents and she came to the accused one month prior to the occurrence and on the date of occurrence the accused assaulted Tapoi and asked her to go away and by hearing hullah he came and saw accused going away. P.W.8 deposed that he heard from Kusa that accused assaulted Tapoi to death by means of a tangia. He saw the dead body with injury lying on the verandah and accused absconded. Prior to the occurrence accused used to assault the deceased. In cross-examination he admitted that he heard about the previous quarrel from the villagers and that Kusa had not told him anything. P.W.9, who is the elder son of accused and deceased, stated in his examination-in-chief that his mother was killed by the accused by means of a tangia. He was not present when the assault took place, but Kusa was all along present with his father and mother. He had been to the market and on return found his mother lying with injury. His younger brother Kusa told him, as accused assaulted his mother, he made hullah and informed the villagers. In cross-examination, he, however, admitted that Kusa told him to tell the I.O. that his mother was assaulted by his father, but prior to that he had not told anything about the incident. He further admitted in cross-examination that the deceased and the accused were living happily. P.W.10 is the scriber of the FIR and proved his signature marked Ext.2/3. P.W.11 and P.W.12 have only stated that they heard about the incident, went to the spot and saw the dead body. P.W.13 is the police Havildar, who accompanied the IIC to the spot, and as per his direction took the dead body for post mortem. He proved Ext.5, the dead body challan. 9. P.W.11 and P.W.12 have only stated that they heard about the incident, went to the spot and saw the dead body. P.W.13 is the police Havildar, who accompanied the IIC to the spot, and as per his direction took the dead body for post mortem. He proved Ext.5, the dead body challan. 9. P.W.14 is the doctor, who conducted autopsy over the dead body of the deceased and found three incised injuries. Injury Nos. 1 and 2 of seize 3” x 1” x 1” and 3” x 1” x 1” were situated on left parietal region of head and injury no.3 of size 3” x 1” x 1” was situated on the right parietal region of head. He also found that there was fracture below injury nos. 1 and 2. He opined that all the injuries were ante-mortem in nature, and cause of death was due to injury on the brain and internal haemorrhage. 10. P.W.15 is the I.O. who in his examination-in-chief stated that during the course of investigation he visited the spot, conducted inquest over the dead body and dispatched it to the district headquarters hospital for postmortem. He collected sample earth and bloodstain earth from the spot, examined the witnesses and sent the dead body for post-mortem examination. He apprehended the accused ten days after the occurrence. While in custody accused made disclosure statement before police, led the police party and gave recovery of tangia, which was the weapon of offence. He seized the said tangia under Ext-3 and sent the same for chemical examination. After completion of investigation he submitted charge-sheet against accused under Section 302 IPC. In cross-examination, he, however, admitted that the place wherefrom the tangia was seized was accessible to all and it was an open place, and that although he had noticed bloodstains on the tangia, the chemical report Ext.10 did not reveal any bloodstain was containing in the tangia. 11. The above discussion and analysis of evidence would show that the death of the deceased was homicidal. There was no eye witness to the occurrence and the prosecution case entirely rests on the circumstantial evidence. Most of the circumstances on which prosecution relied upon have not been conclusively established. 11. The above discussion and analysis of evidence would show that the death of the deceased was homicidal. There was no eye witness to the occurrence and the prosecution case entirely rests on the circumstantial evidence. Most of the circumstances on which prosecution relied upon have not been conclusively established. P.Ws.4 and 8 although stated about the ill-treatment by the accused to the deceased and strained relation between them, in the cross-examination P.W.4 admitted that he had no good term with the accused and P.W.8 admitted that he heard about the same from the villagers. P.W.9, the son of the deceased also admitted in the cross-examination that his father (accused) and mother (deceased) were staying happily. This being the admission of P.Ws.4, 8 and 9, it cannot be unhesitatingly said that the deceased was ill-treated by accused and there was strained relationship between them prior to the occurrence. Therefore, from such a circumstance, which has not been conclusively proved by the prosecution, guilt of the accused cannot be inferred. The child witness P.W.9, who is the son of both accused and the deceased and on whose evidence much emphasis has been laid by the trial court, has categorically admitted in the cross-examination that Kusa (his younger brother) told him to tell the I.O. that their father (accused) assaulted to the deceased, that prior to that he had not told him anything, that prior to the incident deceased and accused were living happily and that it was not a fact that his father (accused) assaulted to his mother. This admission of P.W.9 makes his statement in the examination-in-chief nugatory. Simultaneously, non-examination of Kusa makes the evidence of P.W.9 with regard to last seen theory unbelievable. As such, the evidence of P.W.9 in no way is helpful to the prosecution. The evidence of Investigating Officer (P.W.15), that while in custody accused made disclosure statement before police, led them to the place of concealment and gave recovery of the weapon of offence (tangia), cannot be believed under any stretch of imagination, as P.Ws.5 and 6, in whose presence the tangia was said to have been seized, have not whispered a single word in that regard. Furthermore, the Investigation Officer in the cross-examination has categorically admitted that the place wherefrom the tangia was seized was accessible to all and it was an open place. Furthermore, the Investigation Officer in the cross-examination has categorically admitted that the place wherefrom the tangia was seized was accessible to all and it was an open place. In the circumstance, seizure of tangia cannot incriminate accused with the crime. The postmortem doctor P.W.14 before whom the tangia was produced for opinion has nowhere stated in his evidence that the injuries found by him on the dead body of the deceased were possible by the said tangia, even though in Ext.9/1, which has been marked through the I.O. he has opined so. Furthermore, chemical examination report reveals that the tangia, which was sent for chemical examination, did not contain any bloodstain. Thus, there is no other circumstance available against the accused except that soon after the incident he was absent from his house for ten days. Even though the prosecution has been able to establish this circumstance, as is evident from the evidence adduced by the prosecution, in view of the settled principle of law absconding is not by itself sufficient to warrant a conviction. This apart, no plausible evidence has been adduced by the prosecution to prove that the accused was present in his house at the time of incident. 12. In view of the above, this Court holds that the circumstances, which are relied upon by the prosecution and taken into consideration by the trial court for holding the accused guilty, do not form a complete chain and each link of the chain has not been conclusively proved by the prosecution. As such, it is unsafe to convict the accused-appellant. 13. In the result therefore, the appeal is allowed by setting aside the impugned judgment dated 03.07.2004 passed by the learned Additional Sessions Judge, Kendrapara in S.T. Case No. 11/78 of 2004 convicting the appellant under section 302, IPC and sentencing him to undergo imprisonment for life. It is stated at the Bar that the appellant is languishing in custody. If that be so, the appellant (Guru Charan Mallik @ Budha) be set at liberty forthwith, unless his detention is required otherwise.