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2020 DIGILAW 52 (ORI)

Hiranya Kumar Behera @ Mitu v. State Of Orissa

2020-02-13

A.K.MISHRA, S.K.MISHRA

body2020
JUDGMENT A. K. Mishra, J. - In this appeal U/s.383 Cr.P.C. the appellant has assailed his conviction U/s.302 IPC and sentence to undergo life imprisonment and to pay fine of Rs.10000/- in default R.I for two years passed in judgment dated 30.06.2011 in S.T. Case No.303 of 2009 by learned Sessions Judge, Keonjhar. 2. The prosecution case, in short, is that on 11.9.2009 at about 11.30 P.M. in Village Jamuda while the Sideo Munda was sleeping on a cot on the Verandha accused out of previous enmity dealt axe blows causing injuries on his neck and severance of his right index finger, as a result he succumbed to his injuries. On next day morning the nephew of deceased P.W.1 lodged FIR at 7:00 A.M. which was registered as Harichandanpur P.S. Case No.63 of 2009 and investigation commenced. Inquest was made vide Exhibit-4. Postmortem was conducted by Doctor-P.W.8. The accused was arrested and gave recovery of the seized weapon of offence Axe (M.O-I) from paddy field. The Investigating Officer (P.W.10) got the said weapon of offence and other seized articles forwarded for chemical examination vide Exhibit-13. After completion of investigation charge-sheet was submitted. The SDJM, Keonjar committed the case to the Court of Session. Accused faced trial for the offence under section 302 IPC. The plea of defence is denial simpliciter and false implication. The prosecution examined 11 witnesses in all, defence examined none. P.W.1 is the nephew of deceased who lodged FIR (Exhibit-1). P.W.2 and 9 are the sons of deceased, P.w.3 is the widow of the deceased, P.W.4 is a witness to the leading to the discovery of weapon P.W.5 and 6 are post occurrence witness. P.W.7 is a witness to the inquest, P.W.8 is the Doctor and P.W.10 is a witness to the seizure of the blood stained shirt of the accused. P.W.11 is the Investigating Officer. Exhibt-1 to Ehbit- 13 are marked on behalf of the prosecution. The chemical examination report is not exhibited. 2-A. On verification of order sheet of the Sessions Judge, and also of the record it is found that there is no order passed as to marking of any article as M.O.-I. No such list for material object is available. Exhibt-1 to Ehbit- 13 are marked on behalf of the prosecution. The chemical examination report is not exhibited. 2-A. On verification of order sheet of the Sessions Judge, and also of the record it is found that there is no order passed as to marking of any article as M.O.-I. No such list for material object is available. Despite such, in the judgment a list of M.O.-I has been appended which is contrary to Rule-97 and Rule-108 of the General Rules and Circular Orders (Criminal) Vol.-I. 2-B. Learned Trial Judge has recorded that the death of the deceased is homicidal in nature. The testimony of P.W.9 one of the sons of deceased has contained embellishment and thus unreliable. He relied upon the testimony of P.W.3, the sole eye witness and recovery of the weapon of offence and convicted the accused under section 302 of IPC and passed sentence as stated above. 3. Learned counsel Mr. Himanshu Bhushan Dash for the appellant would contend that the sole eye witness-P.W.3 is not believable because it contradicts the medical evidence wherein the severance of finger is not found by the Doctor-P.W.8. Further, when the widow had seen the attack and identified the culprit due to lantern, the son P.W.2 could not have seen such assault as he wake up from another room hearing hulla of mother. The Investigating Officer has released the lantern in zima and not produced the seized weapon with chemical examination report. He further submits that the factum of recovery of weapon is not believable as the seized axe is not found to be a weapon of offence in absence of chemical examination report. According to him enmity being a double edged weapon, the character of evidence should be clear, cogent and unimpeachable in nature and for want of the same, accused should be given benefit of doubt. He relies upon the decisions reported in Mahtab Singh and another Vrs. State of U.P, 2009 AIR(SC) 2298 and Digamber Vaishnav and another Vs. State of Chhattisgarh, 2019 4 SCC 522 . Learned Additional Government Advocate Mrs. Saswata Pattnaik supported the conviction and sentence on the ground stated in the judgment. She further states that for the fault of Investigating Officer, the accused should not be given benefit of doubt. 4. We carefully perused the evidence and materials on record. State of Chhattisgarh, 2019 4 SCC 522 . Learned Additional Government Advocate Mrs. Saswata Pattnaik supported the conviction and sentence on the ground stated in the judgment. She further states that for the fault of Investigating Officer, the accused should not be given benefit of doubt. 4. We carefully perused the evidence and materials on record. The death of deceased is homicidal in nature, it is proved by P.W.8 Doctor who conducted postmortem on 12.9.2009 vide Exhibit-5. He found three cut injuries, one on the front of the throat, second on the back of the neck and third one on the mandible. No other injury was found. Doctor has stated that weapon of offence was not sent to him for examination and there was a possibility that deceased might have lived if timely medical attention was given to him. It appears that death of the deceased as per prosecution on 11.9.2009 at night was homicidal in nature but the severance of right index finger was not found. We affirm the findings of the learned Trial Court. 5. P.W.9, as observed by learned Trial Court, is found to be unreliable and we do not disapprove such findings. 5-A. The FIR Exhibit-1 was lodged on 12.2.2009 at 7:00 A.M.. P.Ws.2 and 3, the son and wife of deceased, testified that the deceased was sleeping on the Varrendha. P.W.3 was sleeping along with her four sons in a room while another son Jayram(P.W.2) and his wife were sleeping in another room. Both of them stated that at about 11:00 P.M the incident took place. But P.W.3 stated that she found the accused assaulting the deceased by an axe to the neck and right index finger of her husband and her right index finger was severed and then she shouted and called for help. Thereafter villagers came and P.W.1 was also informed. She also stated that a lantern was burning near the spot. For the translation of the testimonies of the witnesses as she spoke in "Ho" language, a translator was engaged by the Court. P.W.2, the son, has stated that hearing the shout of her mother he wake up and found the accused running away. The right index finger of the father was fully severed. Thereafter, he and her mother cried loudly and others came to the spot. P.W.2, the son, has stated that hearing the shout of her mother he wake up and found the accused running away. The right index finger of the father was fully severed. Thereafter, he and her mother cried loudly and others came to the spot. Both of them have admitted that prior to one moth of this incident the deceased had protested the felling of a Sal tree by accused for which there was a village meeting and accused had grudge for that. In cross examination, P.W.2 has admitted that he was sleeping in a separate room with his wife. The evidence does not appear clenching because the four sons who were sleeping with mother had not seen the accused and the other son who had slept inside a separate room with his wife and had come outside hearing shout could able to see accused running away. P.W.1 deposed that he heard the incident from Pranta Prasad Gagarai who came to him and disclosed about the incident where-after he went to the spot and on next day morning he lodged FIR Exhibit-1. But P.W.2 stated that Pranta informed the incident to Krushna P.W.1 over Mobile Phone. P.W.3 claims to have seen the actual assault due to burning of lantern light. Her son P.W.2 has corroborated her to the extent that he had seen the severance of right index finger. The evidence of both with regard to severance of index finger runs contrary to the medical evidence of P.W.8 and postmortem report Exhibit-5. This circumstance affecting credibility of the eye witness is magnified when the weapon of offence and chemical examination report are not proved. 6. No reason is found as to why the Trial Court did not obtain the chemical examination report. In absence of such adjunct, it cannot be said that the seized axe was the weapon of offence. 6-A. The trial is found to have been done with haste ignoring the basic principle to ensure fair trial. The learned Sessions Judge, as record reveals on 16.2.2010 adjourned the case for chemical examination report but subsequently without taking any steps framed charge, examined witnesses and completed trial recording conviction. As stated above, the judgment is found to have contained M.O.-I list contrary to any such proof. Fact remains that Court expedited the process at the expenses of the basic elements of fairness and the opportunity to the accused. As stated above, the judgment is found to have contained M.O.-I list contrary to any such proof. Fact remains that Court expedited the process at the expenses of the basic elements of fairness and the opportunity to the accused. Hon'ble Supreme Court in the judgment of Anokhilal Vrs. State of M.P.,2019 SCCOnlineSC 1637 decided on 18.12.2019 finding that the trial Court had not waited for FSL & DNA report; observed that :- "18. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. Pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice." 7. In the above backdrop, the enmity as a double adged weapon assumes importance. The probability that P.W.3 might have implicated the accused for such prior enmity is not ruled out. 8. As the conviction is based upon the sole eye witnesses P.W.3 and her evidence is found to be not credible enough due to prior enmity and contradiction with medical evidence, the accused is entitled to be given benefit of doubt. 9. In the result, the appeal is allowed. The conviction of appellant under section 302 of IPC and the sentence passed in S.T. Case No.303 of 2009 by learned Sessions Judge, Keonjhar is set aside and the appellant be set at liberty forth with from the jail, if he is not required in any other case. LCR be returned immediately.