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2014 DIGILAW 574 (ORI)

Bishnu Dakua v. State of Orissa

2014-09-05

S.K.SAHOO, VINOD PRASAD

body2014
JUDGMENT : S.K.SAHOO, J. The Appellant Bishnu Dakua faced trial in the Court of Adhoc Additional Sessions Judge, Fast Track Court No.4, Bhubaneswar being charged under Section 302 Indian Penal Code in Criminal Trial NO.7/55 of 2008 for committing murder of Bhagaban Goud (hereinafter "the deceased") on or about 6.7.2007 night at Salia Sahi, Sriram Nagar. The Learned Trial Court vide impugned Judgment & Order Dated 29.8.2009 found the Appellant guilty under Section.302 I.P.C. & sentenced him to undergo imprisonment for life & to pay a fine of RS.5,000 & in default to suffer R.I. for a further period of six months. 2. The prosecution case as per the First Information Report lodged by one Ganesh Gauda (P. W. 7) of village Badakholi before the Inspector-in-Charge, Nayapalli Police station on 6.7.2007 at about 4.00 a. m. is that P. W. 7 was working as a daily labourer & staying at Salia Sahi of Sriram Nagar since last 15 days. On 5.7 .2007 in between 8.00 p.m. to 9.00 p.m. while he was going to take his dinner, the landlord of the rented house where the Appellant & the deceased were staying came to him & informed him that the Appellant & the deceased had a tug of war & one of them is lying on the ground. Receiving such message, P.W.7 proceeded to the spot & found that the deceased was lying injured in front of the shop room situate close to the house of the landlord. When P.W.7 asked the deceased about the injury, the deceased disclosed that there was a quarrel between him & the Appellant over cooking & the Appellant stabbed him. Immediately P.W.7 & another shifted the deceased to a private clinic where first aid bandage was tied on his abdomen. The doctor told them that in case the deceased was not cured, he should be shifted to Unit-VI Hospital, Bhubaneswar. During course of treatment, some other persons arrived at the clinic & the deceased was then brought back to his rented house. Some persons suggested that the deceased should be taken to some other place as there was quarrel between him & the Appellant & accordingly the deceased was taken to the school verandah. The landlord came & informed about the arrival of the Appellant in the house & accordingly P.W7 & others apprehended the Appellant. Some persons suggested that the deceased should be taken to some other place as there was quarrel between him & the Appellant & accordingly the deceased was taken to the school verandah. The landlord came & informed about the arrival of the Appellant in the house & accordingly P.W7 & others apprehended the Appellant. The matter was intimated to the Police Station & with the help of police the deceased was shifted to Unit-VI Hospital, Bhubaneswar, where he was declared dead. Basing on such information of P.W.7, on 6.7.2007 at 4.00 a.m. Nayapalli P.S. Case NO.215 of 2001 was registered under Section 302 I.P.C. against the Appellant. After registration of the case, I.I.C. Nayapalli P.S. directed SI. Rabi Narayan Padhi (P.W4), of said Police Station to investigate the matter. During investigation I.O. P.W.4 examined P.W.7 at the Police Station & also arrested the Appellant on being produced by P.W.7 & others. On the disclosure statement of the Appellant, a scissors (M.O.I) was recovered from under a stone near Loyal School vide seizure list (Ext.2). The wearing apparels of the Appellant i.e. one Ganji, one light black colour pant suspected to have been stained with blood were also seized under seizure list (Ext. 5) & the Appellant was forwarded to Court. P.W4 conducted inquest over the dead body of the deceased at Capital Hospital, Bhubaneswar on 6.7.2007 in presence of witnesses & prepared inquest report (Ext.6). The dead body was sent for post-mortem examination & Dr. Sarbeswar Acharya (P.W6), F.M.T. Specialist of Capital Hospital, Bhubaneswar conducted the post-mortem examination & submitted his report vide Ext.12. The Medical Officer examined the scissor & opined that the injury on the deceased was possible by that scissor. P.W.4 also seized the wearing apparels & blood sample of the deceased produced by the Constable after the post- mortem examination vide seizure list (Ext.8). The seized articles including the scissor were sent to the State Forensic Laboratory, Bhubaneswar on 3.8.2007 for chemical examination & finally charge sheet was submitted against the Appellant. 3. The defence plea is one of denial. It is pleaded by the Appellant that the deceased was his close friend & both of them were staying together in one room & cooking food in that room & on the date of occurrence, he was not present in his rented room & had gone to his .work place & he has been falsely entangled. It is pleaded by the Appellant that the deceased was his close friend & both of them were staying together in one room & cooking food in that room & on the date of occurrence, he was not present in his rented room & had gone to his .work place & he has been falsely entangled. 4. In order to prove its case, the prosecution examined 7 witnesses. P.W.1 Rabindra Pradhan is the landlord of the house where the Appellant & deceased were staying together. He has a grocery shop near the spot & he stated about the push & pull between the Appellant & the deceased on the road & found that the deceased has received bleeding injury on the lower part of the abdomen & the Appellant leaving the spot telling "let him die". He further stated about the shifting of the deceased to the hospital & apprehension of the Appellant during late night of the occurrence. P.W.2 Ajit Kumar Sahu & P.W.5 Krushna Chandra Swain have stated about the recovery of the scissor under a stone at the instance of the Appellant near Loyal school on 6.7.2007 under seizure list (Ext.2). P.W.3 Jayasen Palai was the Constable attached to Nayapalli Police station who had escorted the dead body for post-mortem examination & after the post-mortem was over, produced the Lungi of the deceased, blood samples & scissor given by the doctor before the Investigating Officer. P.W4 Rabi Narayan Padhi is the Investigating Officer. P.W.6 Dr. Sarbeswar Acharya, F.M.T. Specialist, Capital Hospital, Bhubaneswar had conducted the post-mortem examination over the dead body of the deceased & proved his report• vide Ext .12. P.W.7 Ganesh Gauda is the informant in the case. The Appellant examined himself as a defence witness under Section 315 Cr. P.C. & he stated that he has been falsely entangled in the crime. 5. Let us first see as to whether the prosecution has proved that the deceased met a homicidal death or not? Apart from the inquest report vide Ext.6 prepared by the 1.0. (PW4), the prosecution relies upon the evidence of P.W.6, the F.M.T. Specialist of Capital Hospital, Bhubaneswar who conducted the post-mortem examination. According to P.W.6, a lacerated would of size 1/4" x 1/4" looking dark red & dry was present on right lower abdomen 5" down & out to the navel. (PW4), the prosecution relies upon the evidence of P.W.6, the F.M.T. Specialist of Capital Hospital, Bhubaneswar who conducted the post-mortem examination. According to P.W.6, a lacerated would of size 1/4" x 1/4" looking dark red & dry was present on right lower abdomen 5" down & out to the navel. On dissection, the wound was looking like a lacerated puncture into the abdominal cavity up to mesentery of large gut. The doctor opined the injury to be ante mortem caused by blunt pointed object & the cause of death was due to syncope as a result of the injury which according to him was sufficient in ordinary course of nature to cause death. P.W.6 examined the scissor sent by the Investigating Officer & opined that injury found on the abdomen of the deceased was possible by the said scissor. The Learned Counsel for the defence does not dispute about the homicidal death of the deceased. In view of the evidence of P.W.6 coupled with the post-mortem report (Ext. 12), we are of the view that the deceased met a homicidal death. 6. At the outset, it is noticed that even though the informant (P.W.?) has mentioned in the F.I.R. about the dying declaration of the deceased at the spot immediately after the occurrence implicating the Appellant, but during his evidence in Court, he has not whispered anything regarding the dying declaration. The prosecution also has not declared this witness as hostile & has not confronted him about the contents of the F.I.R. In the case of Madhusudan Singh v. State of Bihar reported in AIR 1995 SC 1437 , it is held as follows: "5. F.I.R. by itself is not a substantive piece of evidence. It can be used to either contradict or corroborate the maker thereof in the manner provided under the Evidence Act." P.W7 has not supported the version relating to dying declaration mentioned in the F.I.R. in Court & nothing has also been brought out by the prosecution on record that the deceased made any dying declaration at the spot or thereafter implicating the Appellant. Thus, we cannot give any importance to the alleged oral dying declaration part as has been reflected, in the F.I.R. 7. In the Present case there is no eye witness to the actual assault on the deceased. Thus, the case virtually rests upon circumstantial evidence. Thus, we cannot give any importance to the alleged oral dying declaration part as has been reflected, in the F.I.R. 7. In the Present case there is no eye witness to the actual assault on the deceased. Thus, the case virtually rests upon circumstantial evidence. The circumstances are as follows: (i) There was push & pull between the Appellant & the deceased at the spot on the date of occurrence & immediately thereafter the deceased was found lying with bleeding injury on the abdomen;& (ii) Recovery of scissors (M.O.I) at the instance of the Appellant. MOTIVE. 8. The prosecution case is based on circumstantial evidence. Let us see whether the prosecution has established any motive behind the commission of the crime. U/s. 8 of the Evidence Act, any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. In case of Prem Kumar & anr -v- State of Bihar reported in 1995 S.C.C. (Criminal) 445, it is held as follows: "5. Very often, a motive is alleged to indicate the high degree of probability that the offence was committed by the person who was prompted by the motive. In our opinion, in a case when motive alleged against the accused is fully established, it provides a foundational material to connect the chain of circumstances. We hold that if the motive is proved or established, it affords a key or pointer, to scan the evidence in the case, in that perspective & as a satisfactory circumstance of corroboration. It is a very relevant & important aspect- (a) to highlight the intention of the accused & (b) the approach to be made in appreciating the totality of the circumstances including the evidence disclosed in the case." In case of Surinder Pal Jain -v- Delhi Administration reported in 1993 Supreme Court Cases (Criminal) 1096. it is held as follows:" 11. In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the Court on its guard to scrutinize the circumstances more carefully to ensure that suspicion & conjecture do not take place of legal proof". P.W.1 has stated that the Appellant & the deceased were staying together in a room in his house on rent. The absence of motive, however, puts the Court on its guard to scrutinize the circumstances more carefully to ensure that suspicion & conjecture do not take place of legal proof". P.W.1 has stated that the Appellant & the deceased were staying together in a room in his house on rent. He further states that the Appellant & the deceased had no quarrel or fighting prior to the date of occurrence. The Appellant during his examination as D.W.1 has also stated that the deceased was his close friend & both of them were staying in one room & they were also cooking their food in that room. There is no other material regarding any kind of previous dispute or enmity between the Appellant & the deceased. Thus, the prosecution has failed to bring forth any motive for the Appellant to commit the crime. FIRST CIRCUMSTANCE 9. P.W.1 has stated about push & pull between the Appellant & the deceased at the spot on the date of the occurrence. According to him, he was running a grocery shop at Sri ram Nagar Basti & on 5.7.2007 between 7.00 p.m. to 7.30 p.m., he was in his grocery shop & Had seen Appellant & the deceased were pushing each other & when he went there, he found blood was coming out from the lower part of belly of the deceased & the Appellant left the spot saying "let him die, let him die". P.W.1 has stated in his cross-examination that there used to be good business in his shop during morning & evening time & at the time of alleged incident; there were one or two customers in his shop. None of the customers have been examined in this case. P.W.1 has stated that there were other houses by the side of the road & the persons were staying in those houses. None of those person has also been examined. P.W.1 has stated that the Appellant first started the push towards the deceased & both the Appellant & the deceased were giving push & pull to each other. He has not stated to have seen any scissor in the hands of the Appellant during tussle. None of those person has also been examined. P.W.1 has stated that the Appellant first started the push towards the deceased & both the Appellant & the deceased were giving push & pull to each other. He has not stated to have seen any scissor in the hands of the Appellant during tussle. P.W.1 has stated in his chief examination that the deceased told him that he was killed & he was killed (Maridela, Maridela) but in the cross-examination he has stated that when he saw the deceased, the deceased was crying saying "Marigali, Marigali" (i.e., I am dying, I am dying) & was not in a stable mind. P. W.1 has stated" in his chief examination that the Appellant was telling at the spot "Marijau, Marijau" (let him die. let him die), but in the cross-examination he has stated that when he asked the Appellant to stay there, he did not hear & ran away. P.W.1 has stated that the chapals of both the Appellant & the deceased were lying at the spot but the l.0. (P.W.4) has not seized any chapal from the spot. In view of the self contradictory evidence: of P.W.1. it would not be safe to accept his solitary testimony to come to a finding that there was push & pull between the Appellant & the deceased at the spot & immediately thereafter the deceased was found with bleeding injury on his abdomen. SECOND CIRCUMSTANCE. 10. The witnesses to the recovery of scissors (M.O.I) at the instance of the Appellant are P.W.2, P.W.5 & the 1.0. (P.W.4). All these witnesses have stated that the Appellant first confessed his guilt & then gave statement regarding place of concealment of scissor which was recorded under Ext.1 & then led the police & others to give recovery of scissor. The Learned Trial Court has relied on the confessional part of the Appellant before the police made in the disclosure statement vide Ext.1. Section 27 of the Evidence Act indicates that in consequence of any information received from an accused in the custody of a Police Officer, if any fact is discovered, then so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. This Section is an exception to Sections 25 & 26 of the Evidence Act. This Section is an exception to Sections 25 & 26 of the Evidence Act. Section 25 of Evidence Act states that confession to Police Officer shall not to be proved as against a person accused of any offence & Section 26 of the Evidence Act states that confession by an accused while in police custody unless it being made in. the immediate presence of a Magistrate, shall not be proved against him. The object of making a provision in Section 27 of the Evidence act was to permit certain portion of the statement made by an accused to a Police Officer admissible in evidence whether or not such statement is confessional or non-confessional. That bar against admissibility would stand lifted if the statement distinctly relates to a discovery of fact. Recovery or even production of object by itself need not necessarily result in discovery of a fact. The fact discovered within the meaning of the Section is not equivalent to the object recovered but the fact embraces the place from which the object is recovered & the knowledge of the accused as to it. The pre-condition to bring Section 27 of the Evidence Act into operation is that the discovery of a fact must be deposed to, & thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. In case of Bhaga Gauda v. State, reported in (1988) 1 OCR 400 it is held as follows: "8. Therefore, the exact information given by the accused while in custody or in other words, the statement made by the accused must be recorded by the 1.0. & if pursuant to such information or statement, recovery is made, then that information or statement becomes admissible under Section 27 of the Evidence Act." The confessional part of the accused in his statement recorded under Section 27 of the Evidence Act is not admissible & only such information given by an accused pursuant to which any fact is discovered is admissible. In case of Mohmed Inayatullah v State of Maharashtra reported in AIR 1976 SC 483 , it is held as follows: "11. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably”. 13. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably”. 13. What the accused sated that, "I will tell the place of deposit of the 3 Chemical drums which I took out from the Haji Bunder on 1st August; 14. The next step would be to split up the stater1ent into its components & to separate the admissible from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal evidence & not the rest which must be excised & rejected. Thus processed, in the instant case, only the first part of the statement, viz., "I will tell the place of deposit of the three Chemical drums" was the immediate & direct cause of the fact discovered. Therefore, this portion only was admissible under Section 27. The rest of the statement, namely, "which I took out from Haji Bunder on first August", constituted only the past history of the drums or their theft by the accused:, it was not the distinct & proximate cause of the discovery & had to be ruled out of evidence altogether." In case of Baboo & ors -v- State of Madhya Pradesh reported in AIR 1979 SC 1042 , it is held as follows:" 13. However, it is revealing to refer to the recovery memos, Katarna is recovered from accused NO.1 under seizure memorandum Ext. P-8 in which it is recited that accused NO.1 made the statement that he would show the Katarna with which he assaulted Diwan Singh on 21,9.19.73 at night. The first part in the seizure memo would be Inadmissible because the fact that accused NO.1 assaulted Diwan Singh is not discovered in pursuance of the information given by accused NO.1. It would be a confessional statement to police officer hit by Section 25 of Evidence Act." 11. The Learned -Trial Court has observed in his Judgment as follows: "Therefore in the evidence of P.Ws. It would be a confessional statement to police officer hit by Section 25 of Evidence Act." 11. The Learned -Trial Court has observed in his Judgment as follows: "Therefore in the evidence of P.Ws. 2, 4 & 5, it is proved that the accused has confessed before police & witnesses that he has stabbed Bhagaban Goud by means of the scissor seized vide Ext.2 & later proved as M.O.I to cause his death on 5.7.07." According to us the Learned Trial Court has committed illegality In relying upon the confessional part of the statement of the Appellant made in Ext. 1 as it is hit by Section 25 of Evidence Act. The Learned Counsel for the Appellant submitted that the recovery of M.O.I was made from near the Loyal school which is obviously an open & accessible place to all & therefore no importance can be given on such recovery. In case of State of Himanchal Pradesh v. Jeet Singh reported in 1999 S.C.C. (Criminal) 539, it is held as follows: "26. There is nothing in Section 27 of Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is •open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main road side or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses the fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others." P.W.2 has stated that the accused searched for the scissors at two to three places & lastly brought it out. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others." P.W.2 has stated that the accused searched for the scissors at two to three places & lastly brought it out. P. W.2 has further stated that he cannot say as to who was proceeding first & who was following whom, when they were proceeding to the alleged spot of recovery. P.W.5 has stated that police vehicle was parked in front of Loyala School & police officer first alighted & then they alighted but he does not remember who first alighted & who was following whom. In view of such statements, it is very difficult to accept that the Appellant led the police party & others to give recovery of M.O.I & that he had previous knowledge about the exact place of concealment of M.O.1. Mere fact of recovery of a scissor at the instance of the Appellant is also not sufficient to base a conviction under 'Section 302 I.P.C. In case of Manju @ Mohan Das v. State reported in Vol. 59 (1985) Cuttack Law Times 180, it is held as follows: "7. Even if it be held that M.O.1 did belong to the Appellant, in the absence of other evidence pointing to the guilt of the Appellant, the recovery of M.O.1 at the spot coupled with the evidence relating to a previous quarrel, could not sustain the charge. The recovery of a blood stained article of an accused person' can be used to corroborate other evidence & it cannot, by itself, prove a charge of murder." 12. In this case, there is no material on record that after the seizure of the scissor, the same was kept in a sealed cover by the Investigating Officer. The seizure of scissor was made on 6.7.2007 but it was sent for chemical examination only on 3.8.2007. There has been inordinate delay in sending the scissor for chemical examination & there is absolutely no explanation as to why there was such delay. All the articles including the blood stained wearing apparel of the deceased as well as the Appellant & the Scissor were kept in one card board box & sent for chemical examination. There has been inordinate delay in sending the scissor for chemical examination & there is absolutely no explanation as to why there was such delay. All the articles including the blood stained wearing apparel of the deceased as well as the Appellant & the Scissor were kept in one card board box & sent for chemical examination. In case of Lakshmi Jani -v- State reported in 1985 Cuttack Law Reports 256, it is held as follows: ''12. As observed & held by this Court in 1985 (1) Crimes 593 (Nimai Murmu v. State) seized articles containing suspected stains of blood should invariably be sent for chemical examination immediately after their seizures. It is necessary & desirable that the police officer recovering articles with suspected stains of blood should immediately take steps to seal them & evidence should be produced that the seals were not tampered with till the articles were sent to the Chemical Examiner for analysis. If such precautions are not taken, the Court may not place the same reliance on the discovery of blood stains on the seized articles as it would have done if necessary precautions had been taken." 13. The Learned Trial Court has relied upon the evidence of P.W.1 so also the recovery of the scissor at the instance of the Appellant coupled with the confession of the Appellant before police to convict the Appellant. We have already discussed as to how & why the evidence of P. W.1 is not acceptable & why the recovery of scissor is not sufficient to convict the Appellant. In view of our discussions & in view of the evidences discussed above, we are not able to agree with the findings of the Trial Court. We hold that the chain of evidence is not complete & the prosecution has not established the case against the Appellant beyond all reasonable doubt. In the result, the appeal is allowed & the impugned Judgment & order of conviction & sentence is set aside & the Appellant is acquitted of the charge under Section 302 I. P. C. The Appellant is in custody. He is directed to be set at liberty forthwith if he is not required in any other case.