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2021 DIGILAW 93 (ORI)

Patra Toppo v. State Of Orissa

2021-03-03

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K.Mishra, J. - The sole appellant Patra Toppo assails his conviction under Section 302 of the Indian Penal Code (hereinafter referred to as the 'Penal Code' for brevity) by the learned Sessions Judge, Sundargarh in S.T. Case No.48/2005 by virtue of the judgment dated 28.3.2007. He has been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.2,500/-(Rupees two thousand five hundred) without any default. 2. The prosecution case in short is that the deceased Pera Toppo, who happens to be the father of the appellant, had a quarrel with the appellant on 21.9.2004 in the night hour. During the course of quarrel the appellant assaulted the deceased, Pera Toppo, on his face and head by means of a hand made wooden hockey stick. Due to assault, the deceased sustained bleeding injuries and died at the spot. On the following day of occurrence, i.e. on 22.9.2004 the appellant confessed his guilt before the villagers. Basing on his confession one Gabriel Dung Dung, the then Ward Member of the village, lodged a written report at Bargaon Police Station. On the basis of the said report, Police registered a case, took up investigation, arrested the appellant and the appellant while in custody confessed his guilt, gave discovery of the weapon of offence, i.e. the hand made wooden hockey stick, M.O.I, dispatched the dead body of the deceased for post mortem examination after holding inquest over the same, and after completion of investigation and receiving the chemical examination report submitted charge sheet against the appellant under Section 302 of the Penal Code. 3. The appellant took the plea of simple denial. 4. In order to prove its case, the prosecution has examined fifteen witnesses and exhibited eleven documents and one material object. The defence, on the other hand, did not examine any witness. It also did not exhibit any document to prove its case. P.W.1-Gabriel Dung Dung is the informant in this case. P.W.8-Ratni Toppo is the wife of the deceased, P.W.13-Dileswar Naik is a Police Constable, P.W.14-Dr. Sarat Chandra Naik, has conducted post mortem examination of the dead body of the deceased. P.W.2-Banjamin Dung Dung, P.W.3-Jogi Toppo, P.W.4-George Tete, P.W.5-Fagu Minz, P.W.6-Jamuna Toppo, P.W.7-Mitra Majhi, P.W.9-Siba Toppo, P.W.10-Ramesh Toppo, P.W.11-Kumara Bada and P.W.12-Charlesh Dung Dung are independent witnesses, who belong to the village and they have not supported the prosecution case. Sarat Chandra Naik, has conducted post mortem examination of the dead body of the deceased. P.W.2-Banjamin Dung Dung, P.W.3-Jogi Toppo, P.W.4-George Tete, P.W.5-Fagu Minz, P.W.6-Jamuna Toppo, P.W.7-Mitra Majhi, P.W.9-Siba Toppo, P.W.10-Ramesh Toppo, P.W.11-Kumara Bada and P.W.12-Charlesh Dung Dung are independent witnesses, who belong to the village and they have not supported the prosecution case. P.W.15-Ranjan Kumar Dey is the Investigating Officer of the case. Most of the witnesses have not supported the case of the prosecution. P.Ws.1,2,4,6,8,9,10 and 12 have been declared as hostile witnesses and cross examined by the defence after seeking permission of the Court under Section 154 of the Evidence Act, 1872. 5. The learned Sessions Judge, however, in spite of the witnesses not supporting the case of the prosecution, has highlighted at pargraph-12 of his judgment, the five circumstances to be clinching against the appellant. They are:- (i) The dead body of the deceased was found in the house where the accused and the deceased were residing. (ii) The appellant and his deceased father were the only male members of the family. (iii) The other inmate was the wife of the deceased. (iv) The appellant gave discovery of the weapon of offence, i.e. hand made wooden hockey stick. (v) On chemical examination the weapon of offence was found to have contained stains of human blood. 6. P.W.1-Gabriel Dung Dung, the informant, has stated that the deceased was the father of the appellant. He was murdered. He has not stated anywhere in his examination in chief that the dead body of the deceased was inside the house where the appellant was also resided. He has also not stated that the appellant and deceased were the only male members of that family. P.W.2-Benjamin Dung Dung, who had scribed the F.I.R., has also not stated about the facts mentioned by the learned Sessions Judge in his impugned judgment at Paragraph-12. P.W.3-Jogi Toppo is a witness to the inquest. P.W.4-Georja Tete has also been declared hostile, but he has stated that the deceased died about one year back and he does not know anything about the incident. P.W.3-Jogi Toppo is a witness to the inquest. P.W.4-Georja Tete has also been declared hostile, but he has stated that the deceased died about one year back and he does not know anything about the incident. P.W.5-Fagu Minz, P.W.6-Janma Toppo, P.W.7-Mitra Majhi, P.W.9-Siba Toppo, P.W.10-Ramesh Toppo, P.W.11-Kumara Bada and P.W.12-Charlesh Dung Dung have not supported the case of the prosecution and have never stated in their examination-in-chief or cross examination by the prosecution that the appellant and the deceased were staying together in one house, the dead body was found in that house and there was no other male member except the appellant and the deceased. So it was erroneous on the part of the learned Sessions Judge to take into consideration certain circumstances which have not been proved by the prosecution. 7. True it is that the prosecution has established the homicidal nature of the death of the deceased by examining the Doctor, who had conducted the post mortem examination. This aspect was not challenged by the learned Amicus Curiae. However the only circumstance that has been proved in this case is that the recovery of the weapon of offence, i.e. the hand made wooden hockey stick, M.O.I which was stained with human blood. But this is the only circumstance established by the prosecution. It is trite law that the prosecution has to establish multiple circumstances to complete the chain of circumstances unerringly pointing towards the guilt of the appellant. 8. In this case, such proof of number of circumstances is not forthcoming. So we are of the opinion that the conviction recorded under Section 302 of the Penal Code by the learned Sessions Judge is wholly erroneous and cannot be sustained. 9. Hence, the appeal is allowed. The judgment of conviction, order of substantive sentence passed by the learned Sessions Judge, Sundargarh in S.T. No.48/2005 and the imposition of fine of Rs.2,500/-(rupees two thousand five hundred) are hereby set aside. The appellant be set at liberty forthwith, if his detention is not required in any other case. T.C.Rs. be returned immediately.