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2023 DIGILAW 174 (ORI)

Md. Sadam @ Sudam v. State of Orissa

2023-02-10

D.DASH, S.K.PANIGRAHI

body2023
JUDGMENT D. Dash, J. - The Appellants, in this Appeal, assail the judgment of conviction and order of sentence dated 17th March, 2015 passed by the learned 1st Additional Sessions Judge, Sambalpur, in S.T. Case No.73/27 of 2010 arising out of C.T. Case No.1981 of 2009 corresponding to Sambalpur Town P.S. Case No.288 of 2009 in the Court of the learned SubDivisional Judicial Magistrate (S.D.J.M.), Sambalpur. The Appellants (accused persons) thereunder have been convicted for committing the offence under section 302/34 of the Indian Penal Code, 1860 (for short, 'the IPC') and accordingly, each of them, has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year. 2. Prosecution Case:- On 08.12.2009, around 10.30 a.m., while Abdul Kalam, with his two friends, were going on a motorcycle to purchase goats; on the Ring Road near Hatpada, these accused persons along with Chotu @ Md. Dahid, Faku, Md. Mehasin @ Bitu, Md. Papu and Debar @ Md. Firoz, chased the deceased and demanded money from said Abdul Kalam (deceased). When the deceased refused, they assaulted the deceased by means of deadly weapons like Bhujali, Gupti etc. for which, the deceased sustained bleeding injuries and fell down. It is further stated that then those assailants took away cash of Rs.22,100/- from the deceased and threatened to kill the friends of the deceased, then mastering courage, if they would disclose their names to anybody. The friends of the deceased telephoned to the father of the deceased, namely, Abdul Hanif, who took the deceased to Sadar Hospital, Sambalpur. As the condition of the deceased became serious, he was referred to V.S.S. Medical College & Hospital, Burla for better treatment. However, he succumbed to injuries. The information in writing being submitted by the father of the deceased to the Inspector-in-Charge (IIC) of Sambalpur Town Police Station, Town P.S. Case No.288 of 2009 was registered and SubInspector of Police (S.I.), namely, B.N. Patra (P.W.23) was directed to take up the investigation. During investigation, the Investigating Officer (I.O.-P.W.23) examined the Informant (P.W.21) and recorded his statement under section 161 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.').He visited the spot, prepared the spot map, seized the sample earth and blood stained earth and prepared the seizure list. During investigation, the Investigating Officer (I.O.-P.W.23) examined the Informant (P.W.21) and recorded his statement under section 161 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.').He visited the spot, prepared the spot map, seized the sample earth and blood stained earth and prepared the seizure list. He also recorded the statements of other witnesses under section 161 Cr.P.C and seized the motorcycle on which the deceased and his friends were travelling when intercepted. He held inquest over the dead body of the deceased and prepared the report (Ext.4). The dead body of the deceased was then sent for post mortem examination by issuing requisition. The I.O. (P.W.23), in course of investigation, also seized the knife, wearing apparels and other incriminating articles. The accused persons, being arrested, were forwarded in custody to Court. On completion of the investigation, the Final Form was submitted placing the accused persons to face the trial for commission of offence under section 341/302/34 IPC. 3. The plea of the defence is that of complete denial and false implication. They, however, have not led any evidence in support of said defence. 4. The prosecution, in course of trial, has examined in total twentythree (23) witnesses. Out of them, as already stated, P.W.21 is the Informant, who happens to be father of the deceased. P.W.22 is the mother of the deceased. P.Ws.1, 2 and 3 are the witnesses to the seizure. P.W.4 is a witness to the inquest. P.Ws.12, 13 & 14 are the witnesses to the seizure of the weapons. The Doctor, who had conducted the autopsy over the dead body of the deceased has been examined as P.W.16. The I.O. has come to the witness box at the end as P.W.23 Besides leading the evidence by examining the above witnesses, the prosecution has also proved the documents admitted in evidence and marked Exts.1 to 19. Out of those, importants are the FIR (Ext.11), inquest report (Ext.4) and the post mortem report (Ext.8). The seizure lists have been proved and marked Ext.1/2, Ext.2/1, Ext.3/1, Ext.5, Ext.6 and Ext.9. The spot map prepared by P.W.23 has been admitted in evidence and marked Ext.13. 5. Out of those, importants are the FIR (Ext.11), inquest report (Ext.4) and the post mortem report (Ext.8). The seizure lists have been proved and marked Ext.1/2, Ext.2/1, Ext.3/1, Ext.5, Ext.6 and Ext.9. The spot map prepared by P.W.23 has been admitted in evidence and marked Ext.13. 5. The trial Court upon examination of evidence of Doctor who had conducted postmortem examination over the dead body of the deceased i.e. P.W.16 and her report Ext.8 as well as evidence of other witnesses, who are present during inquest and the Investigating Officer, P.W.23, who had held inquest over the dead body prepared his report, Ext.4 has arrived at a conclusion that the death of deceased namely, Abdul Kalam was homicidal in nature. In fact, this aspect of the case was not under challenge from the side of defence before the trial Court. That is also the situation before us. The evidence of P.W.16 and her report clearly reveal that the deceased had received two incised wounds, one on the left shoulder and another below the anterior medial line which were intervened by the stab wound of 4.5cm of left hypochondria, 17 cm below anterior auxiliary line of the left shoulder present obliquely. It has also been stated by P.W.16 that the stab wound was downward piercing peritoneum and great curvature of stomach, the abdominal cavity was found to contain fluid blood. All these injuries have been found to be ante-mortem in nature and to have been caused within six hours of examination. In view of such available evidence, we find ourselves wholly in agreement with the finding of the Trial Court that the death of Abdul Kalam was homicidal in nature. 6. Learned Counsel for the Appellants submitted that the Trial Court ought not to have accepted the evidence of P.Ws. 6, 7, 21 and 22 on the score that the deceased had disclosed before them that the accused persons and others had assaulted him and the injuries received by him had been inflicted by them. 6. Learned Counsel for the Appellants submitted that the Trial Court ought not to have accepted the evidence of P.Ws. 6, 7, 21 and 22 on the score that the deceased had disclosed before them that the accused persons and others had assaulted him and the injuries received by him had been inflicted by them. He submitted that none of these witnesses having previously stated before the Investigating Officer, P.W.23 that they had heard deceased saying that these accused persons had assaulted him and are the authors of the injuries, which he had sustained, the Trial Court committed grave error of law in saying all these do not amount to contradiction and are saved by sub-section-2 of section-162 of the Cr.P.C. He submitted that sub-section-2 of section-162 of the Cr.P.C. is meant to serve different purpose altogether and does not save the situation for the prosecution. He submitted that when all these witnesses for the first time when are stating that the deceased had given the dying declaration before them and directly thus had implicated these accused persons to be the authors of the injuries sustained by him and that having not been earlier stated by the Investigation Officer, P.W.23 who had recorded their statement under section-161 of the Cr.P.C., such material and vital omissions amount to contradictions, which cannot be brushed aside or side trekked in terming those to be minor. He further submitted that when the evidence of these witnesses in so far as the oral dying declaration made by the deceased goes out of the arena of consideration, the other evidence let in by the prosecution that accused Md. Kalim @ Kalim Baig had given recovery of a knife while being in police custody pursuant to the statement made before the I.O. stained with human blood even if accepted is not enough to record a finding of guilt either against both the accused or against that accused Md. Kalim & Kalim Baig moreso when the group of human blood has not been found out to be matching with that of the deceased. Kalim & Kalim Baig moreso when the group of human blood has not been found out to be matching with that of the deceased. He, therefore, submitted that the conviction of the accused persons here is based on completely erroneous appreciation of evidence relying upon the versions of all these prosecution witnesses, who after long lapse of time, for the first time have come forward in developing a story as to the dying declaration of the deceased said to have been given by the deceased before them. 7. Learned Counsel for the State submitted that all these prosecution witnesses i.e. P.Ws. 6, 7, 21 and 22 have gone to state that the deceased had disclosed before them that these accused persons had assaulted him and the injuries on his person have resulted therefrom. He submitted that when it is seen that the F.I.R. has been lodged clearly mentioning the names of these accused persons and as it has been stated by the P.W.21 in the F.I.R. that he had heard about the incident from his son while being taken to the hospital on the way, the trial Court did commit no mistake to conclude that the accused persons are guilty for commission of offence under section-302 of the IPC. 8. Keeping in view the submissions made; we have carefully gone through the impugned judgment of conviction passed by the trial Court. We have also extensively travelled through the depositions of the prosecution witnesses, P.Ws. 1 to 23 and have perused the documents admitted in evidence and marked Exts.1 to 19. 9. P.W.4 is the friend of the deceased. He has deposed that being informed by his friends that the deceased had been murdered, he proceeded to the VSS Medical College & Hospital and found the deceased lying dead. This witness although had stated before the Investigating Officer, P.W. 23 that when he went to the hospital, he had seen that the deceased was undergoing treatment for the injury which he had sustained and on enquiry, he could know that these accused persons and others had assaulted the deceased by means of knife on the Ring Road, Sambalpur, the fact remains that this part has not been stated by him during trial and on being confronted with his previous statement, he denies to have so stated earlier. The prosecution despite putting leading questions to this witness by cross-examining him with the permission of the Court, has not been able to elicit anything in support of its case in the direction of the complicity of the accused persons. P.W.5 has stated that he had seen the deceased coming in a motorcycle with another boy near Jail Chhak and the deceased by then had sustained bleeding injuries near his abdomen. He has further deposed that he accompanied the deceased and another person on that bike to a private doctor and then he informed the brothers of the deceased, who came and took the deceased to the District Headquarter Hospital, Sambalpur. He further stated to have followed them and could know that the deceased had been shifted to VSS Medical College and Hospital, Burla and there he succumbed to the injuries. This witness too has been cross-examined by the prosecution being so permitted by the Court. Although, he had stated in his previous statement during investigation under section 161 Cr.P.C. that when he first met the deceased, on his asking, was told by the deceased that accused persons Pappu, Chotu, Kayab and Md. Kalim @ Kalim Baig had assaulted him by means of a knife and accused Md. Sadam were also present along with them, when they were so assaulting, he has bade good-by to all those during trial. Being cross-examined by the prosecution with the permission of the Court, he has been confronted with his previous statement before the Investigating Officer, P.W.23, which he too has denied. It has been stated by P.W.6 that he had been to the hospital hearing assault on Abdul Kalam and then had seen him undergoing treatment. He has stated that then on being asked by him, Abdul Kalam (deceased) told him that accused persons namely, Md. Kalim @ Kalim Baig and Md. Sadam had assaulted him by means of a knife. He, however, during cross-examination being confronted with his previous statement has stated to have not so stated before the police to have gone to VSS medical College and Hospital, Burla and had also not stated in his previous statement before the Investigating Officer, P.W.23 that it was then told by the deceased that accused persons have committed the murder of the deceased. This has also been the position in so far as the evidence of P.W.7 is concerned. This has also been the position in so far as the evidence of P.W.7 is concerned. The same is the state of affairs in respect to the evidence of P.W.22. These material and vital omissions amounting to contradictions which surface in the evidence of the above prosecution witnesses appears to have simply been ignored by the Trial Court taking a view that since they have stated about the dying declaration, those are admissible in evidence in view of the provision of section-162(2) of the Cr.P.C. since that provision contained in subsection-1 of section 162 of the Cr.P.C. is having no application to the dying declaration within the meaning of clause -1 of section-32 of the Indian Evidence Act. However, we are here confronted with a situation where these prosecution witnesses, as above, have stated for the first time during trial that the deceased had told before them, when they had enquired from him that these accused and others had inflicted the injuries sustained by him. So, these witnesses having stated nothing about the oral dying declaration of the deceased made before them since are stating for the first time during the trial after the long lapse of time; the same clearly amount to contradictions which here are certainly material and vital and that make their versions unreliable in attributing the authorship of the injuries sustained by the deceased leading to his death, to the accused persons. Furthermore, it is seen that there is no consistency in the version of these witnesses as to when they arrived in the hospital; when they asked the deceased and they also do not state who were then present. It is extremely hard to believe that at that stage, the deceased with such serious injuries on his person after lapse of about 3 to 5 hours would be telling each of the witnesses on being so asked regarding happening of the incident, when it is the very prosecution case that it was then not possible to record dying declaration of the deceased as he became serious in the hospital. Therefore, we are not at all in a position to subscribe to the finding of the Trial Court that the evidence as to dying declaration forthcoming in the testimony of P.Ws. 6, 7, 21 and 22 would stand to acceptance in holding the accused persons guilty of commission of the murder of Abdul Kalam. 10. Therefore, we are not at all in a position to subscribe to the finding of the Trial Court that the evidence as to dying declaration forthcoming in the testimony of P.Ws. 6, 7, 21 and 22 would stand to acceptance in holding the accused persons guilty of commission of the murder of Abdul Kalam. 10. Having said as above, even if, it is held that the prosecution has proved that the accused Md. Kalim @ Kalim Baig while in police custody pursuant to his statement had given recovery of knife which contained blood of human origin which too has not been shown to be matching with the blood group of the deceased, that would not be enough to fasten the guilt upon accused Md. Kalim @ Kalim Baig and accused-Md.Sadam. In the wake of aforesaid, We are of the considered view that the judgment of conviction and order of sentence holding these two accused persons guilty for commission of offence under section 302 of the IPC cannot be sustained. 11. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 17th March, 2015 passed by the learned 1st Additional Sessions Judge, Sambalpur, in S.T. Case No.73/27 of 2010 are hereby set aside. The Appellants (accused persons), namely, Md. Sadam @ Sudam & Md. Kalim @ Kalim Beig being in jail custody; it is directed that they be set at liberty forthwith if their detention is not required in connection with any other case.