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2021 DIGILAW 55 (ORI)

Bijay Ho Alias Munda v. State Of Orissa

2021-02-09

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K. Mishra, J. - The sole convict/appellant- Bijay Ho alias Munda calls in question his conviction and sentence to undergo imprisonment for life under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "the Penal Code" for brevity) recorded by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.65 of 1999 (arising out of G.R. Case No.360 of 1998 corresponding to Karanjia P.S. Case No.114 of 1998). 2. The prosecution alleges that the appellant-Bijay Ho alias Munda, Bira and Sukra came to the house of the deceased- Bikram Munda and took him away forcibly stating that the daughter of Bijay was ill. All these three persons suspected that Bikram Munda was practicing witchcraft and also they blamed him for killing the daughter of Bijay by following such practice. Bijay killed Bikram by dealing blows with a sharp cutting weapon like axe on his head. The dead body of the deceased was lying in bleeding condition in the courtyard of the house appellant- Bijay Ho alias Munda. On such information, Pratap Munda, the son-in- law of the deceased examined as P.W.1 went to the spot and saw his father-in-law. There were cut and smash injuries on the head of the deceased and there were bleeding then. The matter was brought to the notice of the Police and the Police registered a case and took up investigation and upon completion of investigation, charge-sheet was submitted against two persons, namely, Sukra Ho alias Munda and Bijay Ho alias Munda, the sole appellant. 3. The defence took the plea of complete denial. 4. In order to prove its case, the prosecution examined 12 witnesses and the defence examined none. P.W.1-Pratap Munda is the son-in-law of the deceased and informant of this case. He is a post occurrence witness. P.W.2-Narendra Munda is the younger brother of the deceased and he stated about the occurrence. P.W.3-Gurubari Munda is the daughter of the deceased and wife of P.W.1. She stated about the occurrence. P.W.4-Samrai Munda is the brother-in-law of P.W.1. He did not know anything about the case. P.W.5-Dambarudhar Mohanta being an inhabitant of village Nuagaon stated about the occurrence. P.Ws.6-Mukta Mohakud and 7-Laxmidhar Mohanta did not know anything about this case and they resiled from their earlier statements made before the Police. P.W.8-Dr. She stated about the occurrence. P.W.4-Samrai Munda is the brother-in-law of P.W.1. He did not know anything about the case. P.W.5-Dambarudhar Mohanta being an inhabitant of village Nuagaon stated about the occurrence. P.Ws.6-Mukta Mohakud and 7-Laxmidhar Mohanta did not know anything about this case and they resiled from their earlier statements made before the Police. P.W.8-Dr. Parul Pati conducted post-mortem examination on the dead body of the deceased and furnished her report marked as Ext.3. She also examined the seized weapon M.O.III (axe) and furnished her report marked as Ext.4. P.W.9-Dr. Suresh Chandra Mohanta examined the accused Bijay Ho alias Munda by collecting the blood sample and nail clippings. P.W.10- Biswambar Mohanta is the A.S.I. of Police who seized white cloth, blood sample and nail clippings of the accused Bijay Munda. P.W.11-Kartik Chandra Biswal made Station Diary entry and proceeded to the spot by getting a telephonic message. P.W.12- Pranadhan Mohapatra is the Investigating Officer of this case. 5. Considering the evidence adduced by P.Ws.2, 3 and 5, learned Sessions Judge, Mayurbhanj, Baripada came to the conclusion that the prosecution has prove its case beyond all reasonable doubt. 6. Learned counsel for the appellant submits that the appellant at this stage does not dispute the homicidal nature of death of the deceased. He disputes the complicity of the appellant in commission of the crime. Admittedly, there is no eye witness to the occurrence and the prosecution has relied upon the last seen theory as stated by P.W.3 and recovery of weapon of offence under Section 27 of the Indian Evidence Act, 1872 at the instance of the appellant. It may be noted here that the co-accused Sukra Ho @ Munda was found not guilty by the learned Sessions Judge, Mayurbhanj, Baripada. 7. P.W.3 speaks about the last seen theory. She happens to be the daughter of the deceased. She has stated that on that day herself and the deceased were in the state of intoxication. The accused persons called the deceased from their house and they all went towards the house of the accused persons. She could not say as to why they called her father. She could not say anything. She further stated that her father did not return and he was killed. On that day, police came to their village and examined her and found her father lying dead near the house of accused Bijay. She could not say as to why they called her father. She could not say anything. She further stated that her father did not return and he was killed. On that day, police came to their village and examined her and found her father lying dead near the house of accused Bijay. She had been to the spot and saw the dead body of her father and noticed cut injury on his head. In her cross-examination, she has stated that she did not know as to who called her father as she was in a state of intoxication. P.W.2 also did not state anything regarding the last seen theory though he happens to be the nephew of the deceased. P.W.1, the informant stated that he came to know from his wife that his father-in-law was dead and his dead body was lying near the house of accused Bijay. As stated earlier, the evidence of P.Ws.4, 6 and 7 are of no value to the prosecution, as they did not speak anything against the appellant. From the aforesaid materials on record, it cannot be said that the prosecution has proved its case beyond all reasonable doubt that the appellant was seen with the deceased, to the exclusion of others and immediately thereafter the dead body of the deceased was found. In fact, the learned Sessions Judge, Mayurbhanj, Baripada while acquitting the co-accused Sukra Ho @ Munda, at paragraph 15, at page 13 of the impugned judgment, has stated that there is no such positive evidence available against accused Sukra Ho though he was present with Bijay while going away with the deceased from his house together. If there is evidence that Sukra Ho was there with Bijay when they were going along with the deceased, excluding Sukra Ho from criminal liability does not appear to be correct. The learned Sessions Judge, Mayurbhanj, Baripada further held in the said paragraph that it is not in the evidence of any prosecution witness that Sukra Ho was found to be in any way inimical to the deceased. There is also no material available on record that the appellant was in inimical term with the deceased. No material is available against Sukra Ho connecting him in the alleged crime. The learned Sessions Judge, Mayurbhanj, Baripada has acquitted Sukra Ho stating that he might have abetted co-accused Bijay Munda for the commission of the crime. There is also no material available on record that the appellant was in inimical term with the deceased. No material is available against Sukra Ho connecting him in the alleged crime. The learned Sessions Judge, Mayurbhanj, Baripada has acquitted Sukra Ho stating that he might have abetted co-accused Bijay Munda for the commission of the crime. But, his participation in the crime is not free from doubt. 8. In our considered opinion, this fact is also applicable to the appellant. There is no material worth the name on record to show that the appellant was in company of the deceased to the exclusion of others and immediately thereafter the deceased was found dead. So, last seen theory cannot be pressed in this case. 9. The other circumstance is the recovery of weapon of offence at the instance of the appellant on the basis of his statement under Section 27 of the Indian Evidence Act, 1872. The independent prosecution witnesses have not supported the recovery of the weapon of offence at the instance of the appellant. However, such evidence is available in the shape of testimony of P.W.12-Pranadhana Mohapatra. He stated that on 15.11.1998 at 7.00 A.M. he arrested the accused Bijay Munda. Accused Bijay Munda while in police custody deposed to the fact of concealment of the weapon of offence in presence of witnesses. He reduced his statement into writing i.e. Ext.15. Thereafter, the accused led them to his house where he had concealed that weapon and he himself brought out the axe and produced before him which was seized as Ext.14. This weapon of offence i.e. axe was chemically examined and no blood was found on it. So, the weapon of offence was not connected to the crime allegedly committed by the appellant. Hence, the prosecution cannot press the component of evidence admissible under Section 27 of the Indian Evidence Act, 1872. 10. There being no material available on record worth the name in the shape of incriminating circumstances appearing against the appellant, this Court is of the opinion that the learned Sessions Judge, Mayurbhanj, Baripada committed error in convicting and sentencing the appellant Bijay Ho @ Munda to undergo imprisonment for life under Section 302 of the Penal Code. 11. In the result, the appeal is allowed. 11. In the result, the appeal is allowed. The conviction and sentence to undergo imprisonment for life under Section 302 of the Penal Code recorded by the learned Sessions Judge, Mayurbhanj, Baripada against the appellant-Bijay Ho @ Munda in the aforesaid case are hereby set aside. The appellant stands acquitted of the charge under Section 302 of the Penal Code. 12. Record reveals that the appellant- Bijay Ho @ Munda has been granted bail. He be set at liberty forthwith by cancelling the bail bond executed by him. The T.C.R. be returned back forthwith. As restrictions are continuing due to COVID-19 pandemic, learned counsel for the parties may utilize the soft copy of this order available in the High Court's official website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.