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2017 DIGILAW 1465 (ORI)

Batri Santa v. State of Orissa

2017-12-16

S.K.SAHOO, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : The appellant Batri Santa faced trial in the Court of learned Addl. Sessions Judge, Nabarangpur Camp at Umerkote in Criminal Trial No. 29 of 2003 for offence punishable under section 302 of the Indian Penal Code on the accusation that on 3rd day of February 2003 at about 10.00 p.m. in village Kakatabhima under the Raighar Police Station, he intentionally committed murder of one Guru Santa (hereafter ‘the deceased’). The learned trial Court found the appellant guilty under section 302 of the Indian Penal Code and accordingly convicted him and sentenced him to undergo rigorous imprisonment for life. 2. The prosecution case, as per the first information report dated 04.02.2003 lodged by Buga Santa (P.W.1) before the officer in charge, Raighar police station is that on 03.02.2003 about 8.00 p.m. he along with his wife Tulasi Santa (P.W.2) went to sleep after taking their meal. At about 10.00 p.m., the informant heard “Marigali Marigali” sound of his brother (deceased) from outside and then he opened the door of the house and focused the torch light and found that the appellant was holding a tangia in his hand and was chasing the deceased to assault. When the deceased came nearer to the house of the informant and looked back, at that point of time the appellant dealt tangia blow on the face of the deceased as a result of which the deceased sustained bleeding injury and fell down on the ground. The appellant fled away from the spot and the informant tried to lift the deceased from the ground but found him dead. The informant went and informed the member of the village namely Lachman Santa (P.W.4) and others and they came to the spot and found the deceased lying dead. On the basis of such first information report, Raighar P.S. Case No.14 of 2003 was registered under section 302 of the Indian Penal Code by P.W.10 Manoj Kumar Samanta, officer in charge of Raighar police station and he himself took up the investigation. During course of investigation, he examined the informant and other witnesses, visited the spot and prepared the spot map Ext.6, seized the sample earth and blood stained earth and prepared the seizure list Ext.2. He held inquest over the dead body and prepared the inquest report Ext.1. He sent the dead body for post mortem examination to C.H.C., Hatabharandi. During course of investigation, he examined the informant and other witnesses, visited the spot and prepared the spot map Ext.6, seized the sample earth and blood stained earth and prepared the seizure list Ext.2. He held inquest over the dead body and prepared the inquest report Ext.1. He sent the dead body for post mortem examination to C.H.C., Hatabharandi. P.W.9 Jugal Kishore Behera, the Medical Officer attached to the said hospital conducted the post mortem examination and found one penetrating wound over the left pinna cutting the entire skin and skull carotid vessels and its branches with the brain matter severed with bleeding and he opined the death to be homicidal in nature and submitted his report Ext.4. P.W.10 arrested the appellant and seized his wearing apparels and prepared the seizure list Ext.3 and then he forwarded the appellant to Court. The tangia which was sticking to the head of the deceased above the left ear was also seized along with the wearing apparels of the deceased as per the seizure list Ext.7. The seized articles were sent to R.F.S.L., Berhampur for chemical analysis and the investigating officer received the chemical examination report (Ext.9) and after completion of investigation, on 14.05.2003 he submitted charge sheet under section 302 of the Indian Penal Code against the appellant. 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellant under section 302 of the Indian Penal Code on 25.08.2004 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. During course of trial, in order to prove its case, the prosecution examined ten witnesses. P.W.1 Buga Santa is the informant of the case and he is the brother of the deceased and an eye witness to the occurrence. P.W.2 Tulasi Santa is the wife of the informant and she is also an eye witnesses to the occurrence. P.W.3 Bali Santa is a witness to the inquest report as well as witness to the seizure of blood stained earth and sample earth under seizure list Ext.2 and blood stained banyan under seizure list Ext.3. P.W.2 Tulasi Santa is the wife of the informant and she is also an eye witnesses to the occurrence. P.W.3 Bali Santa is a witness to the inquest report as well as witness to the seizure of blood stained earth and sample earth under seizure list Ext.2 and blood stained banyan under seizure list Ext.3. P.W.4 Lachman Santa is a post occurrence witness who came to the spot and found the deceased lying dead with bleeding injuries. He also stated about the extra judicial confession of the appellant before him. P.W.5 Laxmi Santa is also a post occurrence witness who found the deceased lying dead with bleeding injury. P.W.6 Lalu Santa and P.W.7 Rama Santa stated about the extra judicial confession of the appellant before him. P.W.8 Rama Santa is a witness to the inquest as well as witness to the seizure of blood stained earth and sample earth under seizure list Ext.2. P.W.9 Jugal Kishore Behera was the Medical Officer, C.H.C., Hatabharandi who conducted post mortem examination over the dead body of the deceased and proved his report Ext.4. He also gave his opinion after verifying the axe which was produced before him by the investigation officer relating to possibility of the injury noticed on the deceased by such axe. P.W.10 Manoj Kumar Samanta was the officer in charge of Raighar police station who is the investigating officer. The prosecution exhibited nine documents. Ext.1 is the inquest report, Exts.2, 3 and 7 are the seizure lists, Ext.4 is the report of P.W.9, Ext.5 is the F.I.R., Ext.6 is the spot map, Ext.8 is the copy of forwarding letter of J.M.F.C., Umerkote and Ext.9 is the chemical examination report. The prosecution also proved one material object. M.O.I is theaxe. 5. The defence plea of the appellant was one of denial. 6. The learned trial Court after assessing the evidence on record has been pleased to hold that the testimony of P.W.1 and P.W.2 are sufficient to establish that the appellant gave a blow with the help of axe on the head of the deceased for which he fell down and then the appellant fled away. The learned trial Court also accepted the extra judicial confession of the appellant made before P.W.4, P.W.6 and P.W.7. The learned trial Court also accepted the extra judicial confession of the appellant made before P.W.4, P.W.6 and P.W.7. It was further held that the appellant not only intended to cause death but he caused such bodily injury as was likely to cause death and that it is a clear case of culpable homicide amounting the murder and the appellant cannot escape from such liability. 7. Mr. Biswajit Nayak, learned counsel appearing for the appellant contended that the evidence of the two eye witnesses P.W.1 and P.W.2 suffers from material discrepancies and though they have deposed themselves as eye witnesses to the occurrence but it has been elicited in the cross-examination that they have not seen the actual assault. It is further contended that no motive behind the crime has also been established. It is further contended that the witnesses to the extra judicial confession cannot be acted upon and therefore, it cannot be said that the prosecution has successfully established the case against the appellant beyond all reasonable doubt. Mr. Janmejaya Katikia, learned Addl. Government Advocate on the other hand supported the impugned judgment and contended that there was no motive for false implication of the appellant by P.W.1 and P.W.2 and they have corroborated each other which also gets corroboration from the post mortem examination finding and the manner in which the appellant has assaulted the deceased, the site of injury caused is sufficient to hold that the offence squarely comes with the ambit of section 302 of the Indian Penal Code. He also contended that the evidence relating to the extra judicial confession is acceptable and therefore, the appeal should be dismissed. 8. Adverting to the contentions raised by the learned counsels for the respective parties, it appears that the main evidence against the appellant is the statements of the eye witnesses P.Ws.1 and 2, the extra judicial confession of the appellant before three witnesses i.e. P.W.4, P.W.6 and P.W.7 and seizure of one blood stained banyan from the possession of the appellant. 9. 9. Coming to the evidence of two eye witnesses, it appears that P.W.1 is the informant in the case and he had mentioned in the first information report that he along with his wife (P.W.2) went to sleep at about 8 o’ clock in the night and at about 10 o’ clock, they heard shout of the deceased and then the informant opened the door and focused the torch light and saw the occurrence. During trial, P.W.1 has stated that when the deceased shouted for help, he opened the door and came out with a dibiri light and found the appellant giving a blow on the head of the deceased with the help of axe (M.O.I) and P.W.2 was also with him. In the cross-examination, P.W.1 has stated that it was a dark night and when he opened the door, his brother was in the courtyard at a distance of about 20 feet away from him and he himself was in his house with a dibiri and the light was not focused to the appellant. The wife of the informant who has been examined as P.W.2 stated in her chief examination that when they got up, P.W.1 opened the door and they found the appellant with an axe who gave a blow on the head of the deceased causing bleeding injuries for which the deceased fell down and died and then the appellant fled away and a dibiri lamp was illuminating. However in the cross-examination, she has stated that in the night, they usually put off the dibiri when they go to sleep and in the night of occurrence also, they had put off the dibiri and when the deceased called, the informant opened the door and then lighted the dibiri and then both of them found the deceased was lying with bleeding injuries. The deceased had sustained just one injury as per the post mortem report. Therefore, the cumulative effect of the evidence of these two eye witnesses indicates that they had gone to sleep after putting off the dibiri light and when they heard the shout of the deceased, P.W.1 opened the door and then he lighted the dibiri and then both of them found the deceased lying with bleeding injuries. Therefore, the cumulative effect of the evidence of these two eye witnesses indicates that they had gone to sleep after putting off the dibiri light and when they heard the shout of the deceased, P.W.1 opened the door and then he lighted the dibiri and then both of them found the deceased lying with bleeding injuries. If that was the scenario, then the statements which have been given by the two witnesses P.W.1 and P.W.2 that they had seen the actual assault on the deceased by the appellant cannot be accepted. Not only there is discrepancy relating to the source of light through which they claimed to have seen the occurrence (it was ‘torch’ in the F.I.R. and ‘dibiri’ during trial) but the statement given by P.W.2 in the cross-examination clearly rules out any possibility of these two witnesses becoming eye witnesses to the occurrence. P.W.4 has stated that there was no electricity in their village. When “Marigali Marigali” sound of the deceased was heard, both P.W.1 and P.W.2 were sleeping inside their house and the door of their house was locked. It was a case of just one injury on the deceased and some small time must have been taken to open the door and then in lighting the dibiri and it was not expected of the assailant whosoever he might be, to remain present at the spot after causing such injury in the dark night to risk his identification. Therefore, in view of the available materials on record, it is very difficult to accept that P.W.1 and P.W.2 are the eye witnesses to the occurrence. 10. Though the axe was sticking to the head of the deceased but the investigating officer (P.W.10) has stated that he has not ascertained if there was any finger print on the weapon and he did not send the weapon to any expert to verify the finger print and tally with the finger print of the appellant. 11. If the eye witnesses’ version is discarded then remains the extra judicial confession which is stated to have been made by the appellant before three witnesses i.e. P.W.4, P.W.6 and P.W.7. 11. If the eye witnesses’ version is discarded then remains the extra judicial confession which is stated to have been made by the appellant before three witnesses i.e. P.W.4, P.W.6 and P.W.7. Law is well settled that the extra judicial confession in very nature of things is a very weak piece of evidence and the prosecution must prove as to why the accused reposed confidence on the witnesses before whom he made the extra judicial confession, what benefit he would have got by disclosing about the occurrence. The actual words stated by the accused as far as possible should also come on record. When there is no evidence of close acquaintance of the appellant with any of these three witnesses nor they had got any status in the society to help the appellant in any manner and the prosecution evidence is silent on all these aspects, therefore, it is very difficult to speculate as to what prompted the appellant to confide with those three witnesses to make a voluntary disclosure. Thus the evidence relating to extra judicial confession does not inspire confidence. 12. The investigating officer though seized the banyan which is stated to have been stained with blood but the chemical examination report which has been marked as Ext.9 indicates that no blood was found from the banyan. Therefore, mere seizure of a banyan from the possession of the appellant cannot be an incriminating material against the appellant. 13. Therefore, even though the prosecution has proved that it is a case of homicidal death by adducing the evidence of P.W.9 which is also not disputed by the learned counsel for the appellant but in view of the discussion made above, when the eye witnesses’ account is not acceptable, when the evidence relating to the extra judicial confession is also not believable and when the seizure of the banyan is inconsequential in view of non-detection of any blood stain on it and no attempt has been made by the investigating agency for verification of the finger print on the axe sticking to the head of the deceased, we are of the view that the impugned judgment and order of conviction of the appellant is not sustainable in the eye of law. 14. Accordingly, the jail criminal appeal is allowed. The impugned judgment and order of conviction and sentence passed thereunder is set aside. 14. Accordingly, the jail criminal appeal is allowed. The impugned judgment and order of conviction and sentence passed thereunder is set aside. The appellant is acquitted of the charge under section 302 of Indian Penal Code. The appellant who is in jail custody since the date of his arrest shall be released forthwith if his detention is not otherwise required in any other case. Lower Court records along with copy of the judgment be sent down forthwith to the trial Court for necessary action.