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2014 DIGILAW 793 (ORI)

Arjuna Jani v. State of Orissa

2014-11-24

B.P.RAY

body2014
JUDGMENT : B.P. Ray, J. This appeal has been filed challenging the judgment and order dated 15.11.1997 passed by the learned Additional Sessions Judge, Jeypore in Sessions Case No. 55 of 1995 convicting the appellant under Section 304, Part-II, IPC and sentencing him to undergo R.I. for a period of seven years. 2. The prosecution case, in brief, is that about four years prior to the date of the occurrence marriage of the daughter of the accused-appellant was solemnized with the brother of the informant. Two months prior to the occurrence, the daughter of the appellant came to her father's house, but did not return to her matrimonial home. Later she was given in marriage to one Nilambar Jani. The informant demanded 'Jhola money' which he had given at the time of marriage of his brother. On the date of occurrence, the informant and others went to the village of the accused-appellant to take back the same. It is alleged that the appellant and others came there and assaulted the prosecution party and as a consequence, the deceased along with others sustained injuries. Two days thereafter, the deceased succumbed to the injuries. 3. The plea of the defence was one of complete denial. It was further pleaded that the members of the prosecution party were the aggressors who assaulted them first for which a separate case was also initiated. 4. In order to prove the case, the prosecution has examined as many as twelve witnesses, out of whom, P.Ws. 1, 2, 4 and 5 and 6 are occurrence witnesses, P.W.3 is a witness to seizure, P.W.7 carried the dead body, P.W.8 is the witness to inquest, P.W.9 is the doctor, who conducted the post mortem examination, P.Ws. 10 and 11 are the Investigating Officers and P.W.12 is the other medical officer, who examined the injured. 5. Though eight accused persons were put to trial under Sections 323/34 and 302/34 IPC, the learned Additional Sessions Judge acquitted all the accused persons of the said charges. However, he found the appellant guilty of the offence under Section 304 Part-II IPC for causing culpable homicide of the deceased Bondaka Paraja and, accordingly, he recorded the order of conviction and sentence as stated above. 6. The appellant in challenging the impugned judgment has taken the following grounds: i. The evidences of the so-called eye witnesses are inconsistent and discrepant. 6. The appellant in challenging the impugned judgment has taken the following grounds: i. The evidences of the so-called eye witnesses are inconsistent and discrepant. Therefore, no reliance can be placed on them. ii. The evidences of the witnesses are full of material omissions and contradictions, which do not inspire confidence. iii. All the witnesses were inimically disposed towards the accused persons since they had been arraigned as accused in Sessions Case No. 52/96 instituted at the instance of the accused persons. iv. Learned trial Court having disbelieved the prosecution version regarding the assault on others, who claimed to have sustained injuries in the same incident, has committed gross illegality in recording conviction against the appellant on the same set of prosecution evidence. v. No blood stain was found on the weapon of offence which falsified the allegation of assault. 7. P.W.1 is the informant, who lodged the F.I.R. vide Ext. 18. His evidence in Court is thoroughly discrepant so far as the assault on the appellant is concerned. In the F.I.R., all that he has stated is that Arjuna Jani, Ramanath Jani, Bhokta Paraja, Sania Jani and others came in a body and assaulted them by means of lathi as a result Bondaka Parajan, Gurupati Paraja, Makar Paraja, Dombu paraja received injuries. There is no allegation that the appellant assaulted the deceased far less to say by means of wooden hammer to his head. This is a vital omission, which renders the testimony of the witness unreliable. Had he seen the actual assault, he would not have omitted to say the most incriminating part. He has developed the story at the stage of trial and has come up with the allegation, which was not spoken earlier. It is the consistent case of the prosecution that the accused persons came together and started assaulting them, but who assaulted whom was not known to them. When the learned trial Court has disbelieved the prosecution case as regards the assault on others even though some injuries were found by the Medical Officer (P.W.12) i.e. on the persons of Gurupati Paraja, Dambaru Paraja and Makara Paraja P.Ws. 2, 4 and 5 respectively, the allegations against the appellant with regard to the assault on the deceased are not free from doubt. 2, 4 and 5 respectively, the allegations against the appellant with regard to the assault on the deceased are not free from doubt. By whose assault the deceased sustained injuries has not been spelt out, if the F.I.R. which is the earliest version is taken into consideration. This carries great importance, particularly when, all the accused persons were acquitted of the charge under Section 323 IPC despite the allegation of assault levelled against them. P.W.2 has deposed that the appellant gave two blows by means of wooden hammer on the head of the deceased. He has further deposed that he was assaulted by Nilakantha. The learned Trial Court disbelieved the assault to others. When the version of the witnesses did not inspire confidence so far as the assault on him was concerned, and consequently, the learned Trial Court acquitted the accused persons, the said witness cannot be treated as reliable one. Moreover, the Medical Officer has opined that there was only one stroke on the deceased and not two blows. P.WA though claimed to be a witness to the assault on the deceased as well as to himself, also appears to be of the same character as that of P.W.2. The assailant was acquitted since the Trial Court disbelieved the testimony of the victim. The evidence of P.W.5 regarding the assault on the deceased is contrary to his statement under Section 161 Cr.P.C. 8. Admittedly, all the witnesses were inimically disposed towards the accused persons and they were arraigned as accused in Sessions Case No. 52/96, which was instituted on the complaint of the appellant and others. In such circumstances, their testimonies can only be accepted if the same are found to be wholly reliable and above the board. None of the witnesses passed through the above test of scrutiny as part of their evidences has been disbelieved and seven accused persons have been acquitted of all the charges. 9. MO-IV is the alleged weapon of offence by which the accused assaulted the deceased causing bleeding injury. The article was sent to the chemical examiner but no trace of blood was found on it. Had it been used in the assault, looking at the nature of injury, in all probability, it would have been stained with blood. 9. MO-IV is the alleged weapon of offence by which the accused assaulted the deceased causing bleeding injury. The article was sent to the chemical examiner but no trace of blood was found on it. Had it been used in the assault, looking at the nature of injury, in all probability, it would have been stained with blood. For the discussion as above, the prosecution cannot be said to have brought home the charge under Section 304, Part II IPC against the appellant beyond reasonable doubt. 10. In the result, the judgment and order of conviction dated 15.11.1997 passed by the learned Additional Sessions Judge, Jeypore in Sessions Case No. 55 of 1995 is set aside. The bail bond furnished by the appellant be cancelled. The criminal Appeal is accordingly allowed.