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2016 DIGILAW 845 (ORI)

State of Odisha v. Jadua Samad

2016-09-21

K.R.MOHAPATRA, VINOD PRASAD

body2016
JUDGMENT : K.R. Mohapatra, J. This is an Appeal under Section 378 (1) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) assailing the order of acquittal dated 10.09.1986 passed by the learned Sessions Judge, Mayurbhanj at Baripada in Sessions Trial No.62 of 1985 acquitting the appellants from the charges under Sections 302/201/34 of Indian Penal Code, 1860 (for short, ‘IPC’). 2. Case of the prosecution in brief is that on 19.02.1985, the informant, namely, Digal Patra @ Rath Patra (PW-1) along with his son and the deceased, namely, Chhota Mundari had been to Rajabasa weekly market on the occasion of Sivaratri, where he had opened a shop. The deceased was assisting him in selling ‘Bidi’ in the shop. On 20.02.1985 at about 5.30 PM, respondents (accused persons) came to the shop of the informant and asked for ‘bidi’ on credit to which the deceased refused. At this, respondent No.1-Jadua Samad being enraged, assaulted the deceased with his waist belt. After the incident, the informant closed his shop and he along with his son and deceased started return journey to their village with their articles. On the way, they found the respondents taking Handia by the side of the road. Having found Jadua at that place, the deceased pulled out an empty red bottle from the articles they were carrying and assaulted Jadua, as a result of which the bottle broke. Apprehending danger, the deceased left his Cycle there and left for his village. The informant collected the Cycle of the deceased from the spot and left it at Rajabasa. Thereafter, both the informant and his son proceeded to their village. On their way back, Jadua came from behind and asked whereabouts of the deceased brandishing knife. The informant told him that the deceased had left for village. Jadua then proceeded towards the village of the deceased. After proceeding a little, the informant and his son found respondent No.2–Gardi Mudya, respondent No.3-Atal Samad, and respondent No.5-Mutua Budhali discussing something iin a very low pitch. After proceeding a little, at about 7.30 PM, they found Jadua Samad (respondent No.1) and Jatua Naik (respondent No.4) had caught hold of the deceased. Jadua, thereafter gave signal and called other respondents who rushed to the spot on getting signal, surrounded and started giving fist blows to the deceased. After proceeding a little, at about 7.30 PM, they found Jadua Samad (respondent No.1) and Jatua Naik (respondent No.4) had caught hold of the deceased. Jadua, thereafter gave signal and called other respondents who rushed to the spot on getting signal, surrounded and started giving fist blows to the deceased. The deceased was desperately trying to save himself with the broken piece of bottle in his hand. When the informant asked the respondents not to assault the deceased, Jadua rushed to him with the knife in his hand. The informant apprehending danger left the place. However, the informant and his son could hear the cry of the deceased to save him. In the same night, the informant narrated the incident before Samu Samad (PW-5), the Ward Member of the village. Being afraid of the respondents, the informant did not inform the incident to the Police till 25.02.1985. However, on 23.02.1985 at about 5.30 PM, the Officer in-Charge of Tiring Police Station received a missing report of the deceased from his wife, namely, Sumi Dei through the Ward Member (PW-5). She reported that the deceased had gone to Rajabasa Mela on 20.02.1985 and since then he was missing. The OIC, Tiring Police Station receiving such report, made a Station Diary Entry bearing No.405 dated 23.02.1985 and sent information to different Police Stations. On 24.02.1985, OIC, Tiring PS enquired about the matter and searched for Rath Patra-the informant, but could not find him in village Jata. On 25.02.1985 at about 8.00 AM, when Police was camping at village Jata to enquire whereabouts of the deceased, the informant appeared before him and orally reported the incident of 20.02.1985. On the basis of such information, a formal FIR was drawn up and Police registered Tiring PS Case No.10 of 1985 dated 25.02.1985. During investigation, the Police arrested the respondents on 26.02.1985 from the embankment of Kachuagobra M.I.P. and seized blood stained earth and sample earth from the spot, i.e., from the western side of the road from Pachagobaria road towards village Jata [close to the brinjal garden (bari) of one Jina Mahakud]. One Dinu Mahakud (not examined) produced a knife and a red colour broken bottle which was seized by the IO. One Dinu Mahakud (not examined) produced a knife and a red colour broken bottle which was seized by the IO. While in custody, the respondents gave information about concealment of the dead body of the deceased and led the IO and witnesses to the place where the dead body was lying under a stone surrounded by small blackberry plants. The IO after recovery made inquest over the dead body, which was in a decomposed state and dispatched the same for postmortem examination. He also seized the blood stained wearing apparels from the respondents (accused persons) which were subsequently sent for chemical examination. On completion of investigation, the Police submitted charge sheet under Section 302/201/34 of IPC against the respondents. 3. The plea of defence was of complete denial of their involvement in the offence alleged and accused persons pleaded their innocence. 4. In course of the trial, prosecution examined as many as seven witnesses including PW-1, the informant; PW-2, Medical Officer who had conducted postmortem; PW-4, witness to the process of recovery of the dead body; and PW-7, the IO. PWs-5 and 6 did not support the case of the prosecution and they were cross-examined under Section 154 of the Indian Evidence Act. The prosecution also relied upon Exts.1 to 19 and MO-I to MO-XII, to bring home the charge against the respondents. Ext.2 is the postmortem report; Ext.5 is the missing report of the deceased; Ext.1/1 is the FIR, Ext.12 is the inquest report. Exts. 6, 14, 8/1, 9/1, 10/1, 11/1 and 15 are the seizure lists; Ext.18 is the chemical examination report. 5. Learned Sessions Judge discussing the evidence and materials available on record, more particularly relying upon the evidence of PW-2, the Medical Officer, who had conducted the postmortem, came to the conclusion that the injuries could not either be self-inflicted or accidental; hence, he held the death of the deceased to be homicidal. However, he disbelieved the case of the prosecution on the ground of failure of prosecution to prove the case beyond reasonable doubt and acquitted the respondents of the charges under Sections 302/201/34 of IPC. Hence, the prosecution filed this Appeal against the order of acquittal. 6. During pendency of the appeal, due to death of respondent No.5-Mutua Budhiali, the appeal abated against him vide order dated 27.07.2011 of this Court. Hence, the prosecution filed this Appeal against the order of acquittal. 6. During pendency of the appeal, due to death of respondent No.5-Mutua Budhiali, the appeal abated against him vide order dated 27.07.2011 of this Court. Subsequently, by order dated 18.07.2016, the appeal against respondent No.6, namely, Badaganga Mudya was directed to be separated as his whereabouts could not be traced out by the State (Prosecution). 7. Mr.Katkia, learned Additional Government Advocate assailing the order of acquittal submitted that the learned Sessions Judge completely misconstrued the evidence with regard to recovery of the dead body under Section 27 of the Indian Evidence Act. He submitted that the learned Sessions Judge has not assigned any reason as to why the testimony of the IO, PW-7 should be disbelieved with regard to the process of recovery of body of the deceased. The evidence of PW-1 is sufficient to establish the charge against the respondents as the same is reliable and convincing. The delay in lodging the FIR has been properly explained by the informant, which ought to have been believed by the learned Sessions Judge. Hence, he prayed for allowing the appeal and to convict the respondents under Sections 302/201/34 of IPC. 8. None appears for the respondents at the time of call and therefore, we have vetted through the record ourselves. 9. Investigating Officer, PW-7 in his deposition, stated that at 1.30 PM on 26.02.1985, he arrested the accused persons, namely, Gardi Mudya, Atal Samad, Jatua Naik and Badaganga from the embankment of Kachuagobra M.I.P. Bandh and examined them. While in custody, each of the above accused persons so arrested, individually and separately, gave information about the concealment of the dead body of the deceased in the water ditch near MIP project and led the IO to that place. The dead body was found to have been concealed in the Patharkhali under a stone surrounded by small blackberry trees. He specifically deposed that Gardi Mudaya led him and the witnesses to the place of concealment of the dead body. PW-4, namely, Nundru Baipal was a witness to the process of recovery of the dead body. He has also signed on the inquest report. He specifically deposed that Gardi Mudaya led him and the witnesses to the place of concealment of the dead body. PW-4, namely, Nundru Baipal was a witness to the process of recovery of the dead body. He has also signed on the inquest report. Thus, the IO in his evidence, though stated that the dead body was recovered in presence of PW-4, he (PW-4) in his evidence, does not whisper a single word to the effect that the respondents, more particularly, Gardi Mudaya had led the party to the place of recovery of the dead body and on his (Gardi Mudaya’s) information, the dead body was traced out. In absence of such vital corroboration to the statement of PW-7 to the effect that all the accused persons jointly and independently confessed about the concealment of dead body before the IO as well as other villagers present there, more particularly PW-4, such disclosure, if any, can at best be treated to be a statement under Section 25 of the Evidence Act and is not admissible in evidence. Thus, the learned Sessions Judge rightly did not place any reliance on the process of leading to recovery of the dead body under Section 27 of the Evidence Act. PW-1 and his son were the eyewitnesses to the occurrence. However, the son of PW-1 has not been examined in this case. PW-1 supported the FIR story. He stated in his evidence that when all the accused persons (respondents herein) surrounded the deceased and started assaulting, he requested the respondents not to assault the deceased, but respondent No.1-Jadua Samad brought out a knife and threatened him with dire consequences, in case he intervene in the matter. Thereafter, he along with his son left the place. PW-2, the Medical Officer, in his evidence, has categorically deposed that the injury on the temporal region causing damage to the brain matter is sufficient in ordinary course of nature to cause death. The injury to the left temporal region, as opined by the Medical Officer, could be possible by an accidental fall from a cycle provided that fall is violent and that particular part of the head comes in contact against hard and rough substance like a stone (MO-I). Further, PW-1 deposed that the respondents were giving fist blows to the deceased; on the other hand, the deceased was holding a broken bottle. Further, PW-1 deposed that the respondents were giving fist blows to the deceased; on the other hand, the deceased was holding a broken bottle. Although PW-1 stated in his evidence that respondent No.1, namely, Jadua was holding a knife, but there is no evidence on record to show that any of the injuries available on the dead body could be inflicted by MO-I, the knife. Thus, the solitary evidence of PW-1, in the facts and circumstances of the case, cannot be relied upon to convict the respondents. PW-1 and his son were stated to be the eyewitnesses. However, son of PW-1 was withheld from the witness box. Thus, PW-1 was only examined as eyewitness. Surprisingly, he did not disclose the matter to anybody till 25.02.1985, when he lodged oral complaint while the Police was camping at Village Tiring for investigation in connection with missing report of the deceased. Though an explanation was given to the effect that being afraid of the respondents he did not report the matter before Police, it is not known what prompted him to report the matter voluntarily before the Police on 25.02.1985, more particularly when he had stated in his cross-examination that he had been to Bahalda to purchase grocery on the next day of occurrence and did not report to Police at Bahalda Police Station. Thus, the explanation for not lodging the FIR casts cloud on the veracity of the statement made by PW 1. We have already held that the purported confession of Gardi Mudaya (respondent No.2) who led the IO as well as the witnesses to the place of concealment of the dead body was only a confession under Section 25 of the Indian Evidence Act and is not admissible in evidence. Neither the statement of the Medical Officer (PW-2) nor the chemical or serological report supports the case of the prosecution. In that view of the matter, the entire prosecution case is shrouded with suspicion and cannot be believed at all. Law is well-settled by the Hon’ble Supreme Court in Mookkiah v. State, rep. by the Inspector of Police, Tamil Nadu, reported in [2013] 2 S.C.R. 881 relying on a catena of decisions reported in 2004 (1) Suppl. SCR 480, 2011 (5) SCR 1, 2011 (14) SCR 411, 2012(6) SCR 62, 2012 (10) SCC 383 , AIR 1934 PC 227 (2) and 2007 (2) SCR 630 as follows:- 4. by the Inspector of Police, Tamil Nadu, reported in [2013] 2 S.C.R. 881 relying on a catena of decisions reported in 2004 (1) Suppl. SCR 480, 2011 (5) SCR 1, 2011 (14) SCR 411, 2012(6) SCR 62, 2012 (10) SCC 383 , AIR 1934 PC 227 (2) and 2007 (2) SCR 630 as follows:- 4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ]” (emphasis supplied) In the case at hand, the material available on record does not suggest an absolute assurance of guilt committed by the respondents. 10. From the discussions made above, it cannot be said that the impugned judgment is either perverse or based on no evidence. In that view of the matter, we find no merit in the appeal and the same is accordingly dismissed. Vinod Prasad, J. I agree.