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2014 DIGILAW 863 (ORI)

Katoramsing Banara v. State of Odisha

2014-12-11

PRAMATH PATNAIK, VINOD PRASAD

body2014
JUDGMENT : Vinod Prasad, J. The appellant Katoramsing Banara, who is an Adibasi belonging to a Scheduled Tribe, has knocked the door of this Court through the instant appeal challenging the impugned judgment of his conviction u/s 302 I.P.C., dated 25.03.2003, recorded by the learned Sessions Judge, Myurbhanj, Baripada in Sessions Trial Case No. 210 of 2001(State Vrs. Matal Murmu and others), and imposed sentence of life imprisonment therefor, while being acquitted for the charge u/s 201 I.P.C. by the same judgment. 2. Stating the prosecution version concisely, as is manifest from the prosecution evidences, both oral and documentary, that Mantising Bandra, resident of Mauja Purnadiha, Champai Singh/PW3, resident of Ranagnuadiha, and the appellant Katoramsing, resident of Mauja Khodabahali, all under the same police station Sarat, district Mayurbhanj, were brothers. Informant Smt. Jambising Bandra/PW1 is the wife of Mantising Bandra and mother of Pradhansing Bandra(deceased), whose erstwhile wife, now his widow, is Jamunasing Bandra/PW2. Sukumar, is the sister of the appellant who is married to one Silei Ho, resident of village Dangadiha. It is alleged that on 1.10 2000, a Sunday, appellant came to the house of the informant and for gaming purposes both left with bow and arrows. From the house of the informant and the deceased both went to the village of the sister namely Dangadiha. Joda Ho, a resident of that village wanted to dispose off one S.B.M.L. gun at a price of `` 500/-(Rupees five hundred). The deceased as well as the appellant agreed to purchase that gun at that price and an advance of ` 50/-(Rupees fifty) taken from one Baju Ho was paid the seller Joda Ho with understanding that residue of the sale price shall be paid within a week. Joda Ho, however, had handed over the gun to the deceased-Pradhansing Banara. From the Village Dangadiha, the appellant along with the deceased and Silei Ho came to Kukum Handia Depot, where they stayed during the night. Other acquitted accused persons, namely, Matal Murmu and Rodo Ho also arrived there. At the Depot, the accused persons and the deceased along with their companion consumed locally brewed liquor called “Handia”. It is further alleged that under influence of that intoxication that muscle flexing ensued between the appellant and the deceased amidst which deceased was assaulted fatally. Other acquitted accused persons, namely, Matal Murmu and Rodo Ho also arrived there. At the Depot, the accused persons and the deceased along with their companion consumed locally brewed liquor called “Handia”. It is further alleged that under influence of that intoxication that muscle flexing ensued between the appellant and the deceased amidst which deceased was assaulted fatally. Testimony of Dibar Singh/P.W. 16, who was examined as an eye witness to the scuffle, further reveals that when the scuffle was going on, he had left that place.(There is complete absence of any further evidence regarding any happening after that). Subsequently, as per prosecution version, the appellant alone returned to the native village on 5.10.2000 and that day at about 4 p.m. came to the house of the informant and the deceased and inquired as to whether he had come back or not? Informant mother then inquired about the welfare of her son but without any satisfactory answer. Subsequently, on 7.10.2000, he again came to the house of the deceased and informed the mother that the cadaver of the deceased was lying at Sapanghutu hill. The informant along with her family members went to the sport where the cadaver was lying. Initially an U.D. case was registered and subsequently a formal F.I.R. was registered at the police station regarding the demise of the deceased. Investigation, which followed resulted in submission of charge sheet against the accused persons including the appellant. 3. Case of the appellant was committed to Sessions court for trial and since appellant abjured charge of murder that his prosecution commenced during course of which eighteen prosecution witnesses and one defence witness were examined on behalf of the both sides. P.W.1 is the informant and mother of the deceased, P.W.2 is the widow of the deceased and P.W.3 is the uncle of the deceased. Prosecution evidence further is that it was before Champai Singh that the appellant had made an extra judicial confession. The same is the evidence of P.W.4-Sadansing Kurty. P.W.5-Dibakarsingh Purty, is the scribe of the F.I.R. The other witnesses are the seizure witnesses and the police personnel. The Investigating Officer of the case is Rasananda Rout (P.W.18). 4. During course of the investigation, Lungi M.O.II, Blue colour pant M.O.III, Brown colour pant M.O.IV and Slight Blue colour pant M.O. V were seized. 5. The appellant had denied the allegation and the charge. 6. The Investigating Officer of the case is Rasananda Rout (P.W.18). 4. During course of the investigation, Lungi M.O.II, Blue colour pant M.O.III, Brown colour pant M.O.IV and Slight Blue colour pant M.O. V were seized. 5. The appellant had denied the allegation and the charge. 6. Learned trial judge concluded that though it is not a case of eye witness account, but from the circumstances, which according to him were last seen, confession of the appellant and recovery at his pointing out, the guilt of the appellant has been established beyond any shadow of doubt and therefore, convicted him for the charge of murder and sentenced him life imprisonment, which judgment has been assailed in the instant appeal. 7. We have heard Ms. Sonita Biswal, learned counsel for the appellant and Sk. Zafarulla, learned Additional Standing Counsel for the respondent-State. 8. Assailing the impugned judgment of conviction, learned counsel for the appellant has harangued that non of the circumstances alleged to have been established by the prosecution prove the guilt of the appellant, learned trial judge committed an error in accepting the prosecution version and convicting the appellant. Sri Sk. Zafarulla, learned Additional Standing Counsel argues to the contrary and supported the judgment in its entirety. 9. We have considered the rival submissions and have gone through the record and the evidence both oral and documentary. 10. Admittedly, it is a case, which is based on indirect circumstantial evidence as there is no eye witness account. The first circumstance which weighed with the learned trial judge is the last seen evidence. According to the prosecution version, the deceased left the house in the company of the appellant on 1.10.2000 along with the bow and arrows for the purpose of hunting. We are unable to subscribe the opinion of the learned trial judge on this score because the evidence which has been tendered during the trial by the prosecution is that the deceased and the appellant both were very good friends. There was no hostility between them at the time when the appellant left the house in the company of the deceased. There was no motive for the appellant to annihilate the deceased. There was no adverse psyche possessed by the appellant and therefore, going of two friends together is not an evidence of last seen nor is incriminating. There was no hostility between them at the time when the appellant left the house in the company of the deceased. There was no motive for the appellant to annihilate the deceased. There was no adverse psyche possessed by the appellant and therefore, going of two friends together is not an evidence of last seen nor is incriminating. A circumstance of last seen to be incriminating must be preceded by a hostile animus, which in the present case is missing. Learned trial judge instead of a critically examining the facts and circumstances proceeded in a pedantic way, did not critically appreciate the circumstance and recorded the finding that the last seen evidence exists against the appellant. In our view there was no last seen evidence, so far as appellant or any other accused is concerned. 11. Coming to another circumstance of confession, which, according to the prosecution version, was stated by P.W.3-Champai Singh and P.W.4-Sadansingh Kurty. After examining their depositions was emerges is that so far as P.W.3 is concerned, he recollected only the statement of confession. At what time, on what date and at what place the said confession was made is unbeknown to him. Such a statement by P.W.3 does not inspire any confidence and it only indicates that his testimony is an afterthought and a got up statement. The evidence of Sadansingh Kurty (PW.4) made the matter even worse because a close scrutiny of his evidence reveals that his testimony is hearsay of the worse kind. No reliance can be placed on the deposition of the aforesaid two witnesses and the learned trial judge fell in grave error in accepting their versions. Further it is statement of P.W.3 that after return from the hunting, appellant made a confession to him. This date although has not been spelt out, but we take it that it was on 5th October, 2000 that the confession was made. If that was the fact, it was very bizarre on the part of P.Ws. 3 and 4 to the keep the fact of murder of the deceased closed to their chest for another two days, as the fact reveals that factum of demise of the deceased was surfaced only on 7th October, 2000 after the statement made by the present appellant. In view of this very dicey circumstance, we are unable to attach any credit to the deposition of both P.Ws. In view of this very dicey circumstance, we are unable to attach any credit to the deposition of both P.Ws. 3 and 4 and therefore reject their testimonies in its entirety as uncreditworthy. 12. Coming to the 3rd circumstance, i.e., the recovery, the said recovery alone without any attending fact and culpable circumstance does not lead to establishing guilt beyond all reasonable doubt to the hilt. Merely on the recovery of the weapons i.e., the bow, conviction of the appellant could not and should not have been recorded. 13. There is another reason, why we are unable to subscribe to the opinion made by the learned trial judge and that is that according to the prosecution case itself, as was divulged by P.W.16 during the trial, the incident was preceded by a scuffle between the appellant and the deceased. Had that being the fact, a single assault on the deceased during that scuffle would not bring the charge against the appellant within the ambit of section 302, IPC, and at the worst, what could have been concluded against the appellant is that he is guilty under Section 304, Part-I, IPC. Learned trial judge, without examining the implications and the prosecution charge, in a pedantic way recorded the conviction of the appellant under Section 302, IPC with sentence of life imprisonment and therefore, we are in disagreement with him. In our opinion there was no credible evidence against the appellant to convict him for the charge of murder. Therefore, the appellant is entitled to be acquitted. 14. We hereby record that without there being any credible material the appellant has already suffered 14 years of incarceration. The Court cannot compensate those 14 years which the appellant has already served in the jail, but certainly we would like to observe that henceforth, the trial judges will take into consideration the entire facts and circumstances in all its pros and con and then will come to a conclusion. 15. At the present, we are of the opinion that the impugned judgment of conviction and sentence of life imprisonment are wholly unsustainable and therefore, are hereby set aside. The net result is that the appeal is allowed and conviction of the appellant as well as sentence through the impugned judgment and order dated 25.03.2003 recorded by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial No. 210 of 2000 is hereby set aside. The net result is that the appeal is allowed and conviction of the appellant as well as sentence through the impugned judgment and order dated 25.03.2003 recorded by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial No. 210 of 2000 is hereby set aside. The appellant is acquitted of the charge. The appellant is in jail. He is directed to be set at liberty forthwith unless he is wanted in connection with any other case or crime. 16. Let copy of the judgment be certified to the learned trial judge for its intimation.