Research › Search › Judgment

Orissa High Court · body

2020 DIGILAW 59 (ORI)

Shiba Hareka v. State of Odisha

2020-02-20

A.K.MISHRA, S.K.MISHRA

body2020
JUDGMENT : A.K. Mishra, J. 1. In this appeal under the provision of Sec. 383 Cr.P.C. the sole appellant has assailed his conviction U/s. 302 of the Indian Penal Code (in short 'the I.P.C.') and sentence to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default to suffer further R.I. for one year, by the learned Addl. Sessions Judge, Jeypore in his judgment dtd. 09.05.2011 passed in Criminal Trial No. 47 of 2010. 2. The case of the prosecution, in short, is that the appellant happens to be the brother-in-law of deceased Meleka Taudu (deceased's sister's husband). It is alleged that prior to the alleged occurrence, the appellant had borrowed Rs. 100/- from the deceased as hand loan. On 09.03.2009 after noon the deceased with his wife Meleka Apalamma went to the house of appellant to ask for the loan amount of Rs. 100/-. The appellant refused to pay back. Therefore, a quarrel ensued between the appellant and the deceased. At that time, the appellant being enraged, brought out an axe from his house and dealt a blow to the chest of the deceased, as a result, deceased succumbed to the injuries at the spot. Thereafter accused finding the deceased dead, ran into the forest. Meleka Apalamma, the wife of the deceased informed the matter in the village; whereafter the villagers along with the appellant burnt the dead body in the village burial ground to cause disappearance of the evidence. Three days thereafter the wife of the deceased presented a written report in Bandhugaon police station being scribed by one Srinivas Patnaik which was registered as P.S. Case No. 4 dtd. 12.3.2009 U/ss. 302, 201 I.P.C. and the O.I.C. himself took up investigation. During course of investigation the I.O. seized half burnt pieces of bones, a handful of ash from the burial ground, blood stained earth, sample earth from the spot, an axe of which the wooden handle being half burnt and one lungi from the appellant. Except the Lungi he sent other materials for chemical examination, arrested the appellant on the very next day of registration of the case from village Almanda and forwarded to court. On completion of investigation, charge sheet was submitted against the appellant U/ss. 302, 201 I.P.C. 3. Prosecution, in order to prove its case, examined only 3 witnesses, two allegedly eye witnesses and the I.O. and proved 6 documents. On completion of investigation, charge sheet was submitted against the appellant U/ss. 302, 201 I.P.C. 3. Prosecution, in order to prove its case, examined only 3 witnesses, two allegedly eye witnesses and the I.O. and proved 6 documents. P.W. 1-Meleka Apalamma is the wife of deceased. P.W. 2-Harika Wannoo @ Wanna is the wife of accused and P.W. 3 is the investigating officer. The seized Tangia and Lungi are marked as M.O.I. and II. Defence examined none. 4. P.Ws. 1 and 2 are eye witnesses to the occurrence. P.W. 1 has stated that she is the wife of deceased. About 2 years prior to her deposition in the court, during Nilabadi Yatra, on a Monday evening she along with her husband went to the appellant to ask Rs. 100/- which he has taken as loan from her husband. At that time P.W. 2 was cooking inside the house. When she asked for money, accused Siba going inside the house, brought out one Tangia and dealt a blow on the left side chest of her husband. He fell down with bleeding injuries and died at the spot. Out of fear she and P.W. 2 ran away from the spot. Accused Siba also left the Tangia there and fled away from the spot. One Lachmi Hikaka has seen the occurrence. But she has not been examined as she died in the meantime. In her cross-examination, this witness has stated that they went to the house of accused at 4 P.M. She has further stated that no one has seen the assault. After half an hour of Taudu's arrival she went there. By the time she reached the spot, Taudu was lying on the ground. P.W. 2-Harika Wannoo @ Wanna has stated that her husband brought out a taniga and dealt a blow to the chest of the deceased and deceased fell down with blooding injuries. When she asked as to why he dealt the blow, the accused threatened her to kill. Therefore, out of fear she ran away. In her cross-examination at paragraph 3 this witness has stated that when she came out of her house from cooking, she found the deceased lying on the ground with the injury. She has further stated that at that time none were present at the spot. Therefore, out of fear she ran away. In her cross-examination at paragraph 3 this witness has stated that when she came out of her house from cooking, she found the deceased lying on the ground with the injury. She has further stated that at that time none were present at the spot. So keeping in view the aforesaid inconsistent evidence of these two witnesses, we do not find any clear, cogent and clinching evidence unerringly pointing towards guilt of the appellant. Moreover, the seized taniga, blood stained earth and lungi of the accused were not found to have stained with any blood. Keeping in view the aforesaid considerations, we are of the considered opinion that the conviction recorded by learned Addl. Sessions Judge cannot be upheld by this court. 5. In the result, the appeal is allowed. The conviction and sentence of the appellant vide judgment dtd. 09.05.2011 passed by the learned Addl. Sessions Judge, Jeypore in Criminal Trial No. 47 of 2010 is hereby set aside. The appellant Shiba Hareka be set at liberty forthwith if his detention is not required in any other case/cases. L.C. Rs. be returned forthwith.