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2020 DIGILAW 61 (ORI)

Raghu Tudu v. State of Odisha

2020-02-20

A.K.MISHRA, S.K.MISHRA

body2020
JUDGMENT : S.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. 1000/-, in default to suffer further S.I. for one month, by the learned Addl. Sessions Judge, Rairangpur in his judgment dtd. 27.03.2004 passed in S.T. Case No. 14/64 of 2003. 2. The case of the prosecution, in short, is that there was land dispute between the deceased - Gudura Tudu and his brother accused - Raghu Tudu. On 11.10.2002 at about 7 A.M. deceased went to plough his land which is nearby his house and he was ploughing it. At that time appellant Raghu and other two acquitted accused persons, namely Surdhan Tudu and Jagadish Tudu who are his sons, went in a group to the said land and the appellant Raghu killed the deceased by cutting his throat by a knife with the assistance of other two accused persons. The informant, who is son of the deceased heard cry of his father and rushed to the land and saw that appellant, holding a knife and the other two accused persons got up from the place where his father was lying and fled away towards the nearby forest. He raised hulla and some of the villagers gathered there. He informed the incident to them and went to Jharadihi Out Post and lodged F.I.R. being scribed by another person and the investigation commenced. During course of investigation police recovered the weapon of offence, i.e. knife on the information given by the appellant Raghu while in custody and also seized the wearing apparels of accused Raghu along with the knife and the wearing apparels of the deceased and sent those for chemical examination. The chemical examination report reveals presence of human blood of 'B' group on the wearing apparels of the deceased and in the napkin seized from the appellant Raghu. Human blood was also detected in the knife and bunion of Raghu whose blood group could not be ascertained. After completion of investigation, charge-sheet was submitted against the appellant and two other accused persons U/s. 302/34 I.P.C. 3. Defence took the plea of denial and false implication. 4. In order to prove its case prosecution examined 10 and proved 17 documents. After completion of investigation, charge-sheet was submitted against the appellant and two other accused persons U/s. 302/34 I.P.C. 3. Defence took the plea of denial and false implication. 4. In order to prove its case prosecution examined 10 and proved 17 documents. P.W. 1 is the informant, P.Ws. 2, 3, 4 and 8 are the post occurrence witnesses, P.Ws. 5 and 6 are police constables and witnesses to the seizure. P.W. 7 is the O.I.C., Tiring Police Station who has partly investigated the case. P.W. 9 is the I.O. and P.W. 10 is the doctor who conducted post mortem examination over the dead body of the deceased. The seized knife is marked as M.O.I. Defence examined none. 5. Out of three accused persons, learned Addl. Sessions Judge has convicted only the appellant Raghu Tudu and acquitted other two accused persons Surdhan Tudu and Jagadish Tudu. In addition to the narration of eye witness - P.W. 1, prosecution also relied upon discovery of weapon of offence, i.e. knife which was stained with blood and also presence of blood of group 'B' in the napkin of the appellant. 6. Learned counsel for the appellant submits that the version of the eye witness cannot be believed because of the major contradiction that has been brought out by the defence and for that the appeal should be allowed. 7. Heard the learned counsel for the parties and carefully gone through the record. P.W. 1 has stated that about a year back from the date of his deposition in the court, at about 7 A.M. his father had gone to plough their land which is near their house. Hearing cry of his father, he rushed near the spot and found the three accused persons were present there and his father was lying on the ground. The accused Raghu who happens to be his uncle was cutting the neck of his father by a knife. When he rushed to his father, they fled away from the spot. His father sustained bleeding injuries and died at the spot. He thereafter lodged a report before the O.I.C., Jharadihi Out Post and investigation of the case was taken up. The accused Raghu who happens to be his uncle was cutting the neck of his father by a knife. When he rushed to his father, they fled away from the spot. His father sustained bleeding injuries and died at the spot. He thereafter lodged a report before the O.I.C., Jharadihi Out Post and investigation of the case was taken up. In his cross-examination this witness has denied the suggestion that neither he has mentioned in the F.I.R. nor stated before the investigating officer that when he went to the land he saw accused Raghu was cutting the neck of his father by a knife. A cross reference to the evidence of P.W. 9, the investigating officer has been confronted with the contradiction. At paragraph 6 P.W. 9 has stated that P.W. 1 has not stated before him that when he reached the land, he saw accused Raghu was cutting the neck of his father by a knife. Further reference to the F.I.R. (Ext. 1) further reveals that such assertion by the witness P.W. 1 that accused Raghu was cutting the neck of the deceased does not find place. So this is a major contradiction which makes the witness wholly unreliable. In that view of the matter we cannot place reliance upon the evidence of P.W. 1. 8. The second circumstance is that the weapon of offence has been discovered on the disclosure statement made by the appellant while in police custody. The seizure witnesses and the witnesses to disclosure statement have turned hostile to the prosecution. Moreover, the knife was sent for chemical examination and it was found to have been stained with human blood but the blood grouping could not be made. So in our opinion this circumstance will also not help the case of the prosecution, hence we discard this circumstance. 9. The last circumstance appear in this case is that the napkin of accused was stained with human blood of 'B' group. The seizure witnesses have turned hostile to the prosecution. Moreover the deceased and the accused were brothers and there is every possibility that the blood group of the accused may be group 'B'. So in such a situation it was the duty of prosecution to determine the blood group of the accused in order to obviate any reasonable chance of the accused staining his napkin with his own blood. Moreover the deceased and the accused were brothers and there is every possibility that the blood group of the accused may be group 'B'. So in such a situation it was the duty of prosecution to determine the blood group of the accused in order to obviate any reasonable chance of the accused staining his napkin with his own 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. 10. In the result, the appeal is allowed. The conviction and sentence of the appellant vide judgment dtd. 27.03.2004 passed by the learned Addl. Sessions Judge, Rairangpur in S.T. Case No. 14/64 of 2003 is hereby set aside. The appellant Raghu Tudu is acquitted of the charge. He be set at liberty forthwith if his detention is not required in any other case/cases. L.C. Rs. be returned forthwith. Dr. A.K. Mishra, J. I agree.