Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 217 (ORI)

Dabar Purty v. State of Orissa

2017-03-02

S.N.PRASAD, SANJU PANDA

body2017
JUDGMENT : S. Panda, J. The appellants namely, Dabar Purty and Patra Singh Janka convicted under Section 302 read with Section 34 of the I.P.C. by the learned Sessions Judge, Balasore-Bhadrak in Sessions Trial No. 198 of 1994 arising out of G.R. Case No. 225 of 1992 (S.D.J.M., Udala) by judgment dated 18th July, 1995 and sentenced them to undergo imprisonment for life with a fine of Rs.2,000/-each in default to undergo a further imprisonment of two months each. 2. The present appeal is preferred by them challenging the said findings of the trial court. During pendency of the appeal the appellant No.2-Patra Singh Janka died as informed by learned counsel for the appellants as such the appeal is abated in respect of deceased appellant. The appeal is confined to appellant No.1-Dabar Purty only. 3. The appellants along with seven others faced the trial for commission of offence under Sections 302, 323 read with Section 34 of the I.P.C. having committed murder of one Rala Bandra and causing injury to his wife Pala Dei (informant) on her head and left hand. 4. The prosecution case as reveals from the record are as follows:- The accused persons are members of S.U.C.L. and demanded subscription from the deceased-Rala Bandra. He has refused to give such subscription for which they convened a meeting on 28.9.1992 and take serious note for not paying the subscriptions to the party funds. The accused persons in a group on the date of occurrence i.e. 29/30.9.1992 being armed with weapons proceeded to the house of the deceased. While the deceased came out to urinate he was assaulted by the accused persons. Immediately the deceased’s wife who is the informant tried to intervene but she was also assaulted by both the appellants on her head and left hand. She found her husband died on being assaulted by accused Patra Singh Janka, Dabar Purty along with other accused persons by means of hard and blunt weapons. As a result of which the deceased sustained severe bleeding injury and fell down succumbed to the injury. 5. One Durga Charan Hembram made an oral report at Sarat Police Station. The A.S.I. attached to the said Police Station made Station Diary entry on 30.9.1992 in absence of Officer-in-Charge. Immediately thereafter he has deputed a Constable and Grama Rakhi to the spot. Thereafter proceeded to the spot. 5. One Durga Charan Hembram made an oral report at Sarat Police Station. The A.S.I. attached to the said Police Station made Station Diary entry on 30.9.1992 in absence of Officer-in-Charge. Immediately thereafter he has deputed a Constable and Grama Rakhi to the spot. Thereafter proceeded to the spot. The informant made verbal report to him in Kolha language which was transcribed by P.W.4 in Oriya. Accordingly, the A.S.I. reduced the same into writing which was marked as Ext.9 the plain paper F.I.R. The A.S.I. examined Pala Dei and P.W.4 namely, Budhan Tilu. On return he has registered the case on the basis of Ext.9 and made requisition for medical examination of the informant. The Constable and Grama Rakhi guarded the dead body of the deceased. The inquest of the dead body was conducted under Ext.10 and the same was sent for postmortem examination to the Sub-Divisional Hospital, Udala. P.W.16 is the doctor who has conducted the postmortem. 6. Thereafter the case was investigated by O.I.C. (P.W.19) who has examined other witnesses and forwarded the accused persons to the custody and seized the weapon of offence. On completion of investigation he has filed charge sheet. The material objects as well as seized weapons are sent for forensic examination and marked as M.Os.I to M.Os. IX. The case of the defence is one of complete denial however examined three witnesses. 7. Prosecution has examined as many as 19 witnesses to prove its case. Out of which P.Ws. 18 and 19 are the I.Os. P.Ws. 15 and 16 are the doctors. P.W.15 has examined the informant on police requisition. P.W.4 is the only occurrence witness who has supported the case of the prosecution whereas P.Ws. 1, 3, 5, 6, 7, 9, 12 and 14 were declared as hostile having not supported the prosecution case. P.W.2 is the daughter of the deceased who was also turned hostile. P.W.8 is the son of the deceased who deposed about assault of the accused persons on his mother and he is a after occurrence witness and witness to the seizure of M.Os. I, II & III which are napkin, chhadar and gamuchha of the deceased. 8. P.W.10 is a witness leading to discovery of weapon of offence and seizure of the same also declared hostile. I, II & III which are napkin, chhadar and gamuchha of the deceased. 8. P.W.10 is a witness leading to discovery of weapon of offence and seizure of the same also declared hostile. P.W.11 stated about the disclosure statements purported to have been made by the accused persons and consequent seizure of weapon of offence. P.W.13 is the Police Constable who has accompanied the dead body and P.W.17 is the Scientific Officer who has examined the weapon of offence. The informant died before commencement of the trial as such not examined as witness. The informant being eye witness to the occurrence, matter would have different in case she was examined in the case. 9. The defence witnesses were examined as D.Ws. 1 to 3 and documents marked as Ext. A to F. Ext. C is the certified copy of the affidavit filed by the informant to oppose the bail. Ext. X is the carbon copy of the formal F.I.R. at Sarat Police Station. Ext.F the copy of the formal F.I.R. along with the report of the Pala Dei purported to have been reduced to writing by the Investigating Officer, original of which was not produced before the Court. 10. The learned counsel for the appellants submits that the court below acquitted the accused Nos. 1 to 6 namely, Balaram Sahu, Sibil Purty, Pradhan Bandra, Sadhu Charan Bandra, Bijay Singh Purty, Sardar Bandra and accused No.9 Sanga Palia as prosecution was not able to prove beyond all reasonable doubt against the said persons however convicted the accused persons namely, Dabara Purty and Patra Singh Janka relying on the evidence of P.W.4 which was an error of record. The court below also considered an affidavit filed by the informant to oppose the bail application before the High Court. The other circumstances appear in the prosecution case that both the accused persons assaulted the deceased by means of knife and lathi i.e. M.O. VI and M.O. IX and those M.Os. were seized by the police on the basis of statement made by accused Bijay Singh Purty under Ext.1/1 in presence of P.W.11. In view of the evidence of P.W.4 the learned counsel for the appellants submits that the appellant No.1-Dabar Purty was not named by said P.W.4. were seized by the police on the basis of statement made by accused Bijay Singh Purty under Ext.1/1 in presence of P.W.11. In view of the evidence of P.W.4 the learned counsel for the appellants submits that the appellant No.1-Dabar Purty was not named by said P.W.4. Thus, in absence of any direct materials against the said appellant the findings of the court below and the conviction and sentence on such finding liable to be set aside. He further submits that such conclusion of the court below is beyond the materials on record and contradictory to the evidence of P.W.4. 11. The learned Addl. Government Advocate however fairly submitted that there are materials against the other accused persons who have been named by P.W.4 and their specific overt act however those accused persons are already acquitted by the court below. No appeal filed against such acquittal by the State Government. 12. On examination of evidence of P.W.4 it reveals that he has named accused Balaram holding a torch focusing it for which he identified the other accused persons going towards the house of the deceased. He followed them. Accused Sardar was armed with a crowbar and accused Sangha holding a knife. Other accused persons were armed with lathi and axes. Accused Sardar hit the deceased with iron rod on his face. The other accused persons also assaulted the deceased on different parts of the body with the weapons they held. When the assault on Rala was continuing his wife appeared and she has been assaulted by accused Bijay Purty with a lathi on her head and shoulder. Rala died on being assaulted by the accused persons at the spot. In cross-examination no contradiction brought out by the defence. However P.W.4 neither take the name of the Dabar Purty the present appellant in his examination-in-chief nor he has whispered the name of the present appellant and part played by him so far as deceased is concerned. The court below rather ignored the specific evidence of P.W.4 in respect of other accused persons taking their names, weapons hold by them, specific manner of assault made by them and acquitted them and convicted only the appellants relying on Ext.C the affidavit filed by the informant to oppose the bail application before the High Court. The court below rather ignored the specific evidence of P.W.4 in respect of other accused persons taking their names, weapons hold by them, specific manner of assault made by them and acquitted them and convicted only the appellants relying on Ext.C the affidavit filed by the informant to oppose the bail application before the High Court. The said document being produced by the defence and marked as Ext.C. to prove the subsequent addition of facts to the F.I.R. which was marked as Ext.9 by the Investigating Officer which was not First Information Report as written by P.W.18, copy of which marked as Ext.F and Ext. X. 13. The court below has considered the affidavit filed by the informant which was marked as Ext.C. The Ext.C is not a substantial piece of evidence as the said affidavit of the informant was not confronted to the deponent in the trial by the prosecution nor opportunity granted to the defence for cross-examination of the deponent. The so called informant died before commencement of the trial without being examined in Court. On that erroneous impression the court below acquitted the other accused persons and convicted the two appellants even though the eye witness P.W.4 has not named regarding presence of both the appellants on the spot and made specific overt act or assaulted on the deceased. Therefore the finding of the court below is an error of record that P.W.4 has named the present appellants assaulted the deceased. 14. P.W.7 was declared as hostile. However on examination of his evidence on record he has denied the circumstances resulting the death of the deceased at the threshold. It is settled that the evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution treats him as a hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case however the evidence of P.W.7 cannot be dependable as he has from the inception denied regarding the circumstances resulting death of the deceased so also his presence at the spot. 15. In view of the above discussion the judgment and sentence passed by the court below is liable to be set aside as the same is not sustainable. 15. In view of the above discussion the judgment and sentence passed by the court below is liable to be set aside as the same is not sustainable. Accordingly, we allow the appeal and set aside the order of conviction and sentence passed by the learned Sessions Judge, Balasore-Bhadrak in S.T. No. 198 of 1994. The appellant No.1-Dabar Purty is acquitted from the charge under Section 302 read with Section 34 of the I.P.C. The appellant No.1-Dabar Purty being on bail by virtue of order dated 6.8.1996 the said bail bond executed by him stands discharged and he be set at liberty forthwith if his detention is not required in any other crime. Lower Court records along with copy of judgment be sent forthwith to the trial Court for necessary action.