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2018 DIGILAW 533 (ORI)

SINGRAI BHUMIJ v. STATE OF ORISSA

2018-05-10

D.P.CHOUDHURY

body2018
JUDGMENT : D. P. CHOUDHURY, J. 1. The captive appeal is assailed against the judgment of conviction and sentence dated 19.11.2014 passed by the learned 1st Additional Sessions Judge, Rourkela for the offence under Section 304-II of IPC in Sessions Trial No.300/133/160 of 2011-14. 2. The factual matrix leading to the case of the prosecution is that the deceased who was the wife of the present appellant has been blessed with three daughters and two sons. It is alleged, inter alia, that on 9.7.2011 at about 11 p.m., the appellant assaulted the deceased by lathi and she succumbed to the injures. In the next morning, father of the deceased lodged the F.I.R. During investigation, the inquest over the dead body was conducted by the police. The post-mortem examination of the dead body was conducted. The witnesses examined, blood-stained clothes of the deceased and the appellant were seized. Weapon of offence was seized on being produced by the appellant. After completion of investigation, charge sheet was submitted under Section 302 of IPC. 3. The learned trial Court after analyzing the evidence of prosecution witnesses recorded an order of conviction under Section 304-II of IPC and sentenced him thereunder. The plea of defence as per statement recorded under Section 313, Cr.P.C. and suggestion made to P.Ws. is squarely denial to the charge and he pleads innocence. 4. Ms. Panda, learned amicus curiae for the appellant submits that the learned trial Court has erred in law by recording an order of conviction without any material to substantiate the same. According to her, there is no outside witness but the son and daughter of the deceased stated about the occurrence which are also full of contradictions. 5. Learned counsel for the appellant further submits that the prosecution has relied on the confessional statement of the appellant but the same being made before the police is inadmissible. As there is no cogent, clear and consistent evidence to prove the culpability of the present appellant, the order of conviction and sentence passed thereby should be set aside. 6. Mr. A.K. Behera, learned Additional Standing Counsel for the State submits that there is no bar in law to rely on the evidence of close relation and even if children of the deceased are minors, they are best eye-witnesses to lend corroboration to the case of the prosecution. 6. Mr. A.K. Behera, learned Additional Standing Counsel for the State submits that there is no bar in law to rely on the evidence of close relation and even if children of the deceased are minors, they are best eye-witnesses to lend corroboration to the case of the prosecution. According to him, there is also seizure of the weapon of offence from the possession of the present appellant. So, he supports the judgment of conviction and sentence passed by the learned trial Court. DISCUSSION:- 7. The Hon'ble Apex Court in the case of State of Rajasthan v. Arjun Singh & Ors, (2011) AIR SC 3380 at para-14 have observed as follows:- ".This Court, in a series of decisions, has held that the testimony of such eye-witnesses should not be rejected merely because witnesses are related to the deceased. This Court has held that their testimonies have to be carefully analysed because of their relationship and if the same are cogent and if there is no discrepancy, the same are acceptable vide Abdul Rashid Abdul Rahiman Patel and Others.v. State of Maharashtra, (2007) 9 SCC 1 : (2007 AIR SCW 4576) .." 8. With due respect to the above decision, it is clear that there is no bar to rely on the evidence of the relation. It is settled in law that the evidence of the close relation should be scrutinized but cannot be discarded. It is also settled in law that the Court should separate grain from chaff. Keeping in mind of the principles, let us assess the evidence of prosecution witnesses to find out whether the conclusion arrived at by the learned trial Court is correct. 9. The evidence of P.W.2 shows that the police made inquest over the dead body of the deceased vide Ext.2. It appears from the evidence of P.W.11 that he has conducted the autopsy over the dead body of Nimi Bhumij and found 10 to 12 injuries. The cause of death was due to severe trauma and anemia. He proved the post-mortem examination report vide Ext.8. According to him, most of the injuries were found over foreleg and thigh of both legs which are not vital parts of the body. Thus, the evidence of doctor coupled with the evidence of inquest witnesses amply prove that the death of deceased was homicidal. 10. He proved the post-mortem examination report vide Ext.8. According to him, most of the injuries were found over foreleg and thigh of both legs which are not vital parts of the body. Thus, the evidence of doctor coupled with the evidence of inquest witnesses amply prove that the death of deceased was homicidal. 10. The evidence of P.W.5 shows that he is the son of the deceased. According to P.W.5, in the evening, while the appellant, who is his father inquired about the deceased, he could not get the deceased but the deceased returned late hour in the night to house. He heard the quarrel between the parents and also heard sound of assault by the present appellant to the deceased. He also stated to have witnessed that the appellant was assaulting his mother outside the house, then again entered inside the house. On the next morning, his father asked him to see the mother alive or not. He entered inside the house and found dead body of his mother. But in cross-examination, he clearly stated that till he took sleep, his mother had not returned to their house. But on the next morning, he found his mother for the first time. In further cross-examination, he stated that he could not see how mother died. When the P.W.5 went to sleep and on the next morning found his mother dead, it is obvious that, he has not witnessed the occurrence of assault by the appellant to the deceased. Thus, the evidence of P.W.5 was well shaken during cross-examination. Even if the P.W.5 is the son of the deceased, but his evidence has been scrutinized and found not solely reliable to act upon it. 11. The evidence of P.W.6 who is another child of the deceased stated that hearing quarrel between the parents, he got up and saw his father was assaulting the mother by lathi. But thereafter there was silence in the house. Again his father assaulted the mother. His mother wanted water but his father did not offer. Then, they went to sleep and on the next morning found his mother dead. In cross-examination, he also admitted that till they went to sleep, his mother has not returned from outside. But thereafter there was silence in the house. Again his father assaulted the mother. His mother wanted water but his father did not offer. Then, they went to sleep and on the next morning found his mother dead. In cross-examination, he also admitted that till they went to sleep, his mother has not returned from outside. Simply, he stated that his father was assaulting his mother in night hour but they have not seen the assault and only heard the accused assaulting his mother inside the house. Again, he stated that he has got ill-feeling with the father. Thus, the evidence of P.W.6 has been also well shaken during cross-examination. When he has not seen the assault but only heard about the assault and he is also inimical towards the appellant, his evidence cannot be said to be trustworthy to be relied upon solely. Even if he is another child of the deceased, his evidence does not inspire evidence. 12. There is no other witness examined to prove the occurrence. The evidence of P.W.1 who is the father of the deceased is not eye-witness but lodged the F.I.R. vide Ext.1. According to him, the appellant on query stated that he is the author of the crime but in cross-examination made it clear that on query made by the police he stated so. So, P.w.1 did not prove confession of the appellant. As such confession of the appellant is defeated by the presence of the police. So, this link of circumstantial evidence is also not proved by the prosecution. 13. The evidence of seizure witness along with the evidence of I.O. show that the police has seized the weapon of offence and wearing apparel of appellant and the deceased. With regard to the seizure of weapon of offence, he testified that at the instance of the accused he seized two lathis and prepared seizure list vide Ext.7. So, mere recovery of the lathi from the house of the appellant is not enough to point out finger to appellant. Moreover, the I.O. has not sent exhibits to the S.F.S.L., Rasulagarh for examination. This has been also admitted by the police before the learned trial Court. Due to absence of the blood examination report, the grouping of the blood of the appellant and deceased is lacking in evidence. 14. Moreover, the I.O. has not sent exhibits to the S.F.S.L., Rasulagarh for examination. This has been also admitted by the police before the learned trial Court. Due to absence of the blood examination report, the grouping of the blood of the appellant and deceased is lacking in evidence. 14. In toto, it is found that there is no cogent, consistent direct or circumstantial evidence to prove the injuries on the person of the deceased caused by overt act of appellant. Learned trial Court has based his conviction by relying upon the sole evidence of the doctor and the children of the deceased. It has been already observed above that the evidence of P.Ws.5 and 6 being interested should not be the basis for conviction without any corroboration to it. Hence, it must be observed that the prosecution has failed to prove the occurrence and charge against the appellant beyond all shadow of doubts. The learned trial Court is found to have been swayed away by the material which is inconsequential. So, appellant is entitled to benefit of doubt. 15. Hence, the judgment of conviction and sentence passed by the learned court below are hereby set aside. 16. In the result, the JCRLA is allowed and the appellant be set at liberty forthwith if he is not required to be detained in any other case. The L.C.R. be returned forthwith.