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2019 DIGILAW 496 (ORI)

Rabindra Bisi v. State of Orissa

2019-08-01

A.K.MISHRA, S.K.MISHRA

body2019
JUDGMENT : S.K. Mishra, J. 1. In this appeal, the appellant having been convicted by the Addl. Sessions Judge (FTC), Bolangir for the offence under Section 302 of the IPC, 1860, hereinafter referred to as the IPC for brevity, and sentenced to undergo imprisonment for life in Sessions Case No. 124-B/9 of 2003 has assailed the judgment of conviction and sentence. 2. Bereft of unnecessary details, the case of the prosecution is that on 11.06.2003 at about 4 p.m., while the informant was working in the field, one Susanta Swain, son of his brother informed him about the death of the deceased. The informant along with Susanta Swain came in a cycle from the field and the informant saw that the deceased was lying near the Duhel crossing road. The deceased had sustained 5 to 6 injuries on his head and face and blood was coming out of the said injuries. A bicycle, goggles and two pair of slippers were lying at the spot. The informant suspected that the accused has committed the murder as he was enemy of the deceased. The informant lodged FIR on the same day at about 8.30 p.m. The police registered the case and took up investigation. After completion of investigation, the police submitted charge sheet against the accused under Section 302 of the IPC. 3. The defence has taken the plea of denial and took further plea that one Prasanna Negi by instigating the villagers has started this false case against him. 4. In order to prove its case, the prosecution examined as many as 18 witnesses. Out of whom, P.W. 11 is the informant. P.Ws. 1, 2, 10, 12, 14 and 16 are the independent witnesses. P.Ws. 3 to 6 and 9 are witnesses to the seizure. P.Ws. 13 and 15 are doctors, who have conducted post-mortem examination. P.Ws. 7, 8, 17 and 18 are the police officers, who have done different parts of the investigation. No witness has examined on behalf of the prosecution. 5. Admittedly, the case is based on circumstantial evidence and the learned counsel for the appellant does not dispute the homicidal nature of the death of the deceased. What he disputes is the complicity of the accused in the commission of the crime. No witness has examined on behalf of the prosecution. 5. Admittedly, the case is based on circumstantial evidence and the learned counsel for the appellant does not dispute the homicidal nature of the death of the deceased. What he disputes is the complicity of the accused in the commission of the crime. It was strenuously argued by him that the circumstances proved in this case are not forming a complete chain of events unerringly pointing to the guilt of the accused. Hence, he argues that the appellant be acquitted of the offence and appeal be allowed. The learned Addl. Government Advocate Mr. K.K. Mishra, on the other hand, submits that there is eyewitness to the occurrence i.e. P.W. 16 and the circumstances like leading to discovery of the weapon of offence and finding of blood on the wearing apparels of the accused sufficiently proves the case of the prosecution. 6. P.W. 16 has stated that on 11.06.2003, at about 5 p.m., he was proceeded towards village Patharla with fancy articles for the purpose of sale. He saw the accused dealing axe blow to the deceased and out of fear, he fled away. He further stated that he has seen the occurrence from the distance. In the cross-examination, he has stated before the police that on the next day of the occurrence, getting information about death of the deceased, he went to the spot and found the dead body of the deceased lying at the village Patharla and that he came to know on the previous day at about 5 p.m. the accused assaulted the deceased as a result of which he died. He denied the defence suggestion that he has not seen the occurrence. Across reference to the evidence of P.W. 17, it is found that in the cross-examination he has stated that Anuchara Negi, P.W. 16 is not an eyewitness to the occurrence. Moreover, the evidence of P.W. 16 was not accepted by the learned Addl. Sessions Judge and he has come to a definite conclusion that P.W. 16 cannot be believed. Once the evidence of P.W. 16 is excluded, the only circumstance that is available in the case is the recovery of weapon of offence and the finding of blood on the wearing apparels of the accused. Sessions Judge and he has come to a definite conclusion that P.W. 16 cannot be believed. Once the evidence of P.W. 16 is excluded, the only circumstance that is available in the case is the recovery of weapon of offence and the finding of blood on the wearing apparels of the accused. Firstly, it is seen that P.W. 17, at Paragraph-4, on examination in-chief has stated that the accused-Rabindra Basi led him and witness to the village Kata and he produced the weapon of offence i.e. axe and torn jerry bag in which the axe was wrapped.' He prepared seizure list under Exhibit 5 and the axe has been marked as M.O. III and the jerry bag marked as M.O. III/1. Firstly, it is seen that the I.O. has not recorded the statement of victim under Section 27 of the Evidence Act. So, exactly what was stated by the appellant to the I.O. while in custody is not forthcoming forward. P.W. 2-Prafulla Karmi is a witness to the seizure of the axe. However, this witness has stated that accused made a statement before the police, i.e. Exhibit 4. Such statement was recorded in his presence. The accused led the police and the witness P.W. 2 and Daman Bastia to the place of concealment and gave recovery of the axe, which was kept concealed under Amari Bush. Police seized the same. The witness has stated that he cannot say the exact contents of the seizure list under Exhibit 5. He also could not say the exact statement given by the accused before the police prior to the leading to the discovery. P.W. 14, Daman Bastia is the other witness to the seizure of the axe. He has stated that on 11.06.2002 at about 5 p.m., while the accused was under arrest, he admitted to have killed the deceased when he was returning home on the blunt side of axe and that he concealed the said axe and saying so he led the police to Amari Bush closed to Pipal Kata. The police recovered one axe and its broken handle, which was wrapped in Jerri paper. He has put LTI on the seizure list. This witness also does not say about the statement of the accused being recorded by the I.O. while in custody under Section 27 of the Indian Evidence Act. The police recovered one axe and its broken handle, which was wrapped in Jerri paper. He has put LTI on the seizure list. This witness also does not say about the statement of the accused being recorded by the I.O. while in custody under Section 27 of the Indian Evidence Act. The axe was sent for chemical examination and it was found to be stained with human blood but no opinion could be referred as to the group of human blood found on the axe. Thus, on a total conspectus of the three witnesses, the I.O. and the seizure witness, a reasonable doubt arises in the mind of the Court regarding the confessional statement made by the appellant in the custody of the I.O., especially when the confessional statement has not been proved by the I.O. We are of the opinion that the circumstance of the leading to discovery is doubtful. Moreover, it is seized from an open space, which is accessible to all and therefore it cannot be said that it was Concealed and was not visible by passers of that area. 7. The 2nd circumstance i.e. appearing in this case is the grouping of blood on the wearing apparels of the appellant as well as the deceased. This small patches on wearing apparels on the full paint and shirt of the accused is not consistent only with the theory of guilt of the accused as the blood group of the accused-appellant has not been determined. It was duty of the prosecution to determine the blood group of the accused so as to exclude the possibility of his own blood stain on the wearing apparels he was wearing. So, in that view of the matter, the 2nd circumstance can also not be held to be sufficient and conclusive in nature to fasten guilt on the accused. 8. Keeping in view the aforesaid facts, we are of the opinion that the circumstances available in this case are not fully established. A complete chain of events has not been established unerringly pointing to the guilt of the accused. Hence, this Court comes to the conclusion that the conviction recorded by the learned Addl. Sessions Judge (FTC), Bolangir cannot be sustained and the appeal has to be allowed. So, the appeal is allowed and the conviction and the sentence are hereby set aside. Hence, this Court comes to the conclusion that the conviction recorded by the learned Addl. Sessions Judge (FTC), Bolangir cannot be sustained and the appeal has to be allowed. So, the appeal is allowed and the conviction and the sentence are hereby set aside. The accused is not guilty of the offence under Section 302 of the IPC and is acquitted of the same. Since he is in bail, the bail bond executed by him be cancelled. The Jail Criminal Appeal is disposed of. The LCR be returned to the trial court forthwith.