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2018 DIGILAW 315 (ORI)

Prakash Gochhi v. State of Orissa

2018-03-27

K.R.MOHAPATRA, S.PANDA

body2018
JUDGMENT K.R. MOHAPATRA, J. - The appellant calls in question the legality and propriety of the judgment and order of conviction and sentence dated 09.03.1999 passed by learned 1st Additional Sessions Judge, Cuttack in Sessions Trial No.259 of 1997 (arising out of GR Case No.255 of 1996 being committed by learned SDJM, Banki) convicting the appellant under Sections 302/201 IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution in brief as made out from the FIR is that in the evening of 11.10.1996, Prasanta, the son of Hadibandhu Gochhi, (hereinafter referred to as ‘deceased’) was watching TV at the house of one Daitari Gochhi of the said village. Although persons watching TV in his house returned, the deceased did not. Everybody of the family of the deceased including the informant-Bipin Gochhi, searched for him. On 12.10.1996, at about 4.00 PM, the dead body of the deceased-Prasanta Gochhi was found buried in a paddy field. A portion of the foot of the deceased was exposed. Thus, suspecting murder of the deceased, Bipin Gochhi, the informant (PW-1) lodged an FIR at Banki Police Station basing upon which Banki PS Case No.203/96 dated 12.10.1996 was registered under Sections 302/201 IPC. The offence alleged being cognizable in nature, the OIC, Banki PS (PW-8) took up the investigation. 3. in course of investigation, the Investigating Officer (PW-8) examined the informant, visited the spot and prepared a spot map (Ext.6). Due to the late hour of the night, PW-8 deputed a Constable to guard the dead body. On the next day, i.e. on 13.10.1996, the body of the deceased was recovered in presence of Executive Magistrate-Pradip Kumar Behera (not examined).The Investigating Officer held the inquest over the dead body and prepared inquest report Ext.7. One Damodar Swain (not examined) was a witness to the inquest. Subsequently, the body of the deceased was sent for post-mortem examination to Sub-Dicvisional Hospital, Banki vide dead body Chalan- Ext. 8. Dr. Bhaskar Kar (PW-7) conducted the post-mortem examination and submitted his report vide Ext. 5. The I.O. also examined other witnesses and on his prayer, statement of Amulya Kumari Swain (PW-2), Dharanidhar Mallik ( PW-4) and Ramesh Mallik (PW-6) were recorded under Section 164 Cr.P.C. by learned SDJM, Banki. The appellant was arrested on 29.01.1997. Appellant also led the IO and identified the spot where the dead body was buried. 5. The I.O. also examined other witnesses and on his prayer, statement of Amulya Kumari Swain (PW-2), Dharanidhar Mallik ( PW-4) and Ramesh Mallik (PW-6) were recorded under Section 164 Cr.P.C. by learned SDJM, Banki. The appellant was arrested on 29.01.1997. Appellant also led the IO and identified the spot where the dead body was buried. On 27.04.1997, charge sheet was submitted against the appellant under Section 302/201 IPC. 4. The plea of the appellant was complete denial of the involvement in commission of the offence. 5. Learned Sessions Judge, Cuttack, taking into consideration the evidence (both oral and documentary), materials on record as well as the plea advanced by learned Public Prosecutor as well the defence counsel, convicted the appellant under Sections 302/201 IPC and sentenced him to undergo imprisonment for life. Since the appellant was sentenced for life, no separate sentence under Section 201 IPC was imposed. 6. Mr. Sudipto Panda, learned counsel for the appellant submitted that the impugned judgment and order of conviction and sentence is against the weight of evidence and materials on record. Learned Sessions Judge has failed to appreciate the fact as well as law in its proper perspective while adjudicating the matter. Elaborating his submission, Mr. Panda argued that the P.Ws. 4 and 6, who are claimed to be eyewitnesses to the occurrence by the prosecution, are set up to rope in the appellant. Although P.Ws. 2 and 6 alleged to have seen the appellant giving slap to the deceased and throttling his neck, they did not disclose the same before anybody till their statements under Section 161 Cr.P.C. was recorded by the I.O.-P.W.8, on 03.02.1997 and 01.02.1997 respectively. They did not disclose the same even before the I.O. who was present in the village on the very next day of the occurrence, i.e. on 12/13.1996. The plea of non-disclosure was out of fear of the appellant, is vague one, inasmuch as the appellant had neither any criminal background or he was an anti-social. The so-called extra-judicial confession made by the appellant before P.W. 2 is of no consequence as it does not stand to the scrutiny of law. Although the appellant stated to have led the Police to the spot where the dead body was buried, neither the statement of the appellant for the witnesses accompanying the I.O. was recorded. The so-called extra-judicial confession made by the appellant before P.W. 2 is of no consequence as it does not stand to the scrutiny of law. Although the appellant stated to have led the Police to the spot where the dead body was buried, neither the statement of the appellant for the witnesses accompanying the I.O. was recorded. The Executive Magistrate before whom the dead body was recovered has not been examined. The witness to the inquest has also not been examined. Although the appellant alleged to have called Braja Sweain and Biren Chandra Gochhi of the village and showed them the spot and informed them that somebody had buried the body of the deceased, none of them were examined. The scientific team utilized the sniffer dog in course of investigation. Sniffer dog led the team to the house of the deceased and Daityari Gochhi, where the deceased was watching T.V., but Daitari was not examined, which is fatal to the prosecution. During investigation, mother of the deceased refused to face the lie detection test. The injury report and the statement of P.W. 7, the Medical Officer who conducted the post-mortem, do not support the case of the prosecution. P.W. 7 stated that the cause of death to be shock and concussion, as a result of injury to the head. He also ruled out the suggestion that the injuries on the dead body were possible by pressing of neck or slap. As such, he prayed for setting aside of the impugned judgment and order of conviction and sentence and to set the appellant at liberty at once. 7. Mr. S.S. Mohapatra, learned Additional Standing Counsel, per contra, supported the impugned judgment and order of conviction and sentence. He argued that the statements of eyewitnesses, P.Ws. 4 and 6, coupled with the evidence of P.W. 7, the Medical Officer and P.W.8, the I.O. are sufficient to bring home the charges against the appellant. It is his submission that the evidence of eyewitnesses, namely, P.Ws. 4 and 6 is cogent, reliable and has not been shattered in any manner during cross-examination. He further submitted that the minor discrepancies in the process of investigation as pointed out by learned Counsel for the appellant cannot be said to be fatal to the prosecution unless the same is shown to be prejudicial to the accused-appellant. 4 and 6 is cogent, reliable and has not been shattered in any manner during cross-examination. He further submitted that the minor discrepancies in the process of investigation as pointed out by learned Counsel for the appellant cannot be said to be fatal to the prosecution unless the same is shown to be prejudicial to the accused-appellant. Although the F.I.R. was lodged after body of the deceased was found, the informant could not name the appellant as he was unaware of author of the crime. He further submitted that P.Ws. 4 and 6, out of fear, could not disclose that they had seen the appellant giving slap and pressing the neck of the deceased. Only after arrest of the appellant they could gather courage to disclose the same before the I.O. on 1st and 3rd of February, 1997. Learned Sessions Judge had taken all material facts into consideration and held that the prosecution has proved the case beyond any reasonable doubt. As such, the impugned judgment cannot be faulted with. Hence, he prayed for dismissal of the appeal. 8. We have heard learned Counsel for the parties at length and perused the case record meticulously. There is no dispute to the fact that death of the deceased was homicidal in nature. It is also not in dispute that the appellant along with Biranchi and Braja first discovered the body of the deceased buried in a paddy field. That by itself is not sufficient to rope in the appellant. It is quite astonishing that Braja and Hiranchi, to whom the appellant had shown the dead body, were not examined. Bipin Gochhi, P.W. 1 (the informant) also does not spell out that the circumstances of disclosure of the dead body in the FIR. Although the F.I.R. was lodged on 12.10.1996 at 6.30 P.M., the same was sent to the Court on 14.10.1996, which casts doubt on the genuineness of the F.I.R. The Police, although visited the spot immediately after the F.I.R. was lodged, had not made any endeavour to recover the body to find out as to whether Prasanta was alive or not. It waited till next morning for recovery of the dead body. Although the body of Prasanta (the deceased) was recovered in presence of the Executive Magistrate, he was not examined. All these circumstances cast a serious doubt about the genuineness of the case of the prosecution. P.Ws. It waited till next morning for recovery of the dead body. Although the body of Prasanta (the deceased) was recovered in presence of the Executive Magistrate, he was not examined. All these circumstances cast a serious doubt about the genuineness of the case of the prosecution. P.Ws. 4 and 6 stated to have seen the appellant giving slap and throttling the neck of the deceased, but they did not disclose the same before anybody including the Police, on the plea of fear of the appellant. Such a plea is not believable, because the I.O. himself was present at the village from 13.10.1996 onwards and the Police Station is only three kilometres away from the spot of the occurrence. The appellant neither had any criminal antecedent nor was he an anti-social. Thus, the plea taken by P.Ws. 4 and 6 to the effect that they did not disclose the same before anybody out of fear, as the appellant had threatened them to deal with their children in the same manner appears to be vague and does not inspire confidence. The Hon’ble Supreme Court in the case of the State of Orissa v. Brahamananda Nanda, reported in (1976) 4 SCC 288 has laid down as follows : “.... It is not possible to accept the explanation, sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than June 15, 1969 on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the clubhouse which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on June 14, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the morning of June 15, 1969 for giving out the name of the respondent. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the morning of June 15, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness....” (emphasis supplied) 9. Thus, the evidence of P.Ws. 4 and 6, stated to be ocular witnesses to the occurrence, are not trustworthy and hence, the same is not acceptable. 10. The evidence of P.W. 7, (Medical Officer), who conducted autopsy over the dead body of Prasanta, completely belies the prosecution case. P.W. 7, after detailing the external as well as internal injuries on the body of the deceased at paragraph-4 of his evidence, described the cause of death to be “Due to shock and concussion, as a result of injury to the head. All the changes found in the organs of the deceased are ante-mortem in character.” Further, in his cross-examination at paragraph-6, he has categorically stated that “.....The injuries I noticed on the deceased is not possible by pressing of neck or slap......” The categorical statement of P.W. 7 in his cross-examination, demolishes the entire case of the prosecution. The categorical case of the prosecution to the effect that the appellant had committed murder of the deceased by giving slap and by pressing his neck is completely ruled out by the statement of PW-7. 11. Another attending circumstance, which needs attention is the extra-judicial confession alleged to have been made by the appellant before PW-2.There is no material on record to show that PW-2 is a person of stature before whom the appellant could confide. Most surprising circumstance is that although the mother of the appellant was present with PW-2, he (the appellant) alleged to have chosen to make confession before PW-2 instead of his mother. Thus, the confession becomes more doubtful, more particularly when PW-2 deposes that “the S.I.-I.O. of this case stayed about eighty feet away from my house till 1.00 PM on the very day. I have not disclosed this fact to the S.I....” Hon’ble Supreme Court in the case of Sahadevan & Anr. vs. State of Tamil Nadu, reported in AIR 2012 SC 2435 , has laid down clear guidelines to make an extra-judicial confession admissible, which are as follows : “22. I have not disclosed this fact to the S.I....” Hon’ble Supreme Court in the case of Sahadevan & Anr. vs. State of Tamil Nadu, reported in AIR 2012 SC 2435 , has laid down clear guidelines to make an extra-judicial confession admissible, which are as follows : “22. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused. The Principles (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) ‘It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession contains grater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” On perusal of the evidence of PW-2 with regard to the confession made by the appellant, appears to be highly doubtful and does not at all inspire confidence particularly because of the circumstances discussed above. Thus, the extra-judicial confession of the appellant alleged to have been made before PW-2 does stand scrutiny of law. 12. Learned trial Court, without taking these material aspects into consideration, proceeded completely on a presumption and suspicion on the appellant to have committed the offence, which cannot take the place of proof to convict him. 13. In view of the above, we are of the firm opinion that the prosecution has failed to prove its case beyond any reasonable doubt. As such, the impugned judgment and order of conviction and sentence is not sustainable in the eyes of fact and law and is set aside. This Court, vide order dated 01.10.2004 in Misc. Case No.188 of 2003, granted the prayer for bail of the appellant. As such, the impugned judgment and order of conviction and sentence is not sustainable in the eyes of fact and law and is set aside. This Court, vide order dated 01.10.2004 in Misc. Case No.188 of 2003, granted the prayer for bail of the appellant. As such, the bail bond be cancelled and the appellant beset at liberty forthwith. 14. The appeal is accordingly allowed; LCR be sent back immediately. Appeal allowed.