Orissa High Court
Shyama Bisoi vs State Of Orissa on 8 August, 2012
Author: B.K. Patel
Bench: L. Mohapatra, B.K. Patel
HIGH COURT OF ORISSA: CUTTACK.
JCRLA No.14 of 2006 and CRLA No.488 of 2005
From the judgment dated 16.11.2005 passed by Sri K.C. Pattanaik,
Sessions Judge, Koraput at Jeypore in Criminal Trial No.273 of 2004.
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(in JCRLA No.14 of 2006)
Shyama Bisoi ...... Appellant
-Versus-
State of Orissa ...... Respondent.
For Appellant : Mr. Kishore Kumar Sahoo
For Respondent : Mr. Sangram Das,
Addl. Standing Counsel
(in CRLA No.488 OF 2005)
Deba Harijan ...... Appellant
-Versus-
State of Orissa ...... Respondent.
For Appellant : M/s. G.N. Mishra and S.C. Sahu
For Respondent : Mr. Sangram Das,
Addl. Standing Counsel
PRESENT:
THE HONOURABLE SHRI JUSTICE L. MOHAPATRA
AND
THE HONOURABLE SHRI JUSTICE B.K. PATEL
Date of hearing - 2.8.2012 : Date of judgment - 8.8.2012
2
B.K. PATEL, J.The JCRLA as well as the CRLA are directed against the judgment dated 16.11.2005 passed by learned Sessions Judge, Koraput at Jeypore in Criminal Trial No.273 of 2004 convicting the appellant Shyama Bisoi in JCRLA under Section 302 of the Indian Penal Code (for short 'the I.P.C.') and both the appellants under Sections 201 read with 34 of the I.P.C. Appellant in JCRLA has been sentenced to undergo imprisonment for life under Section 302 of the I.P.C. whereas both the appellants have been sentenced to undergo R.I. for three years and to pay a fine of Rs.2,000/-, in default to undergo further R.I. for six months, each under Section 201 read with 34 of the I.P.C.
2. Allegations in the case relate to commission of murder of deceased Raghunath Harijan, a boy aged about eight years, on 23.1.204. Informant P.W.6 is deceased's father. P.W.9 is P.W.6's brother. P.W.2 is P.W.6's mother-in-law.
3. Prosecution case is that on 23.1.2004 in the morning deceased went to the house of P.W.2 whereas his father P.W.6 went to cultivate his land. On his return home in the noon, P.W.6 found that the deceased had not returned home. He went to the house of P.W.2 and on enquiry could learn that deceased was plucking Barakoli till 8.00 A.M. and that nobody was aware of his whereabouts after that. P.W.6 along with co- villagers searched for the deceased in the village but could not find him on that day. However, on search in the morning on 24.1.2004, it was found that the deceased had been murdered and kept inside a bush with some 3 stones on his dead body near Balia dangar. On the basis of written report lodged by P.W.6 at Sadar Police Station, Jeypore, P.W.5 the Officer- In-Charge registered the case and took up investigation. In course of investigation, it was ascertained that the deceased was last seen in the company of appellant Shyama Bisoi. It is also alleged that on being apprehended by villagers, appellant Shyama Bisoi made extra judicial confession implicating himself with the commission of murder of the deceased and also implicating appellant Deba Harijan in CRLA to have taken the gold earring of the deceased from him. On completion of investigation, charge-sheet under Sections 302/201/34 of the I.P.C. against both the appellants was filed.
4. Appellants took the plea of denial.
5. In order to substantiate the charge, prosecution examined ten witnesses, and also relied upon documents marked Exts.1 to 12 and material objects M.Os.I to VII. P.Ws.2, 5, 6 and 9 have already been introduced. P.Ws.1, 3 and 7 were formal witnesses to prove the inquest and seizure etc. P.W.2 deposed in support of the circumstance of the deceased to have been last seen with accused Shyama Bisoi. P.Ws.4, 6 and 9 were examined in support of the circumstance of the accused Shyama Bisoi to have been made extra judicial confession. Of them P.W.4 was declared hostile. P.W.8, a police constable assisted in investigation. P.W.10 is the doctor, who conducted post-mortem examination over the dead body of the deceased. Appellant Shyama Bisoi examined himself as D.W.1. 4
On an appraisal of evidence on record, placing reliance mainly on the evidence of P.Ws.2, 6, 9 and 10, the trial court held the prosecution to have proved the charge under Section 302 of the I.P.C. against appellant Shyama Bisoi and charge under Section 201 read with 34 of the I.P.C. against both the appellants on the basis of circumstantial evidence.
6. In assailing the impugned judgment it was contended by the learned counsel for the appellants that admittedly there is no eye witness to the occurrence. Prosecution placed reliance on circumstances of
(i) deceased to have been last seen with appellant Shyama Bisoi;
(ii) deceased Shyama Bisoi to have made extra judicial confession; and
(iii) medical evidence available from P.W.10. It was strenuously contended that out of the witnesses who were examined to depose regarding extra judicial confession P.W.4 was declared to be hostile witness whereas P.Ws.6 and 9 admitted that so-called extra-judicial confession was made under threat and assault, and in presence of police. It was further contended that evidence of P.W.2 is too vague and sketchy to record the finding that the deceased was last seen in the company of the appellant Shyama Bisoi. It was also contended that circumstance of last seen together by itself cannot form the basis of conviction in absence of any other circumstance.
7. Learned counsel for the State supported and defended the impugned judgment.
5
8. There is no dispute regarding homicidal death of the deceased. Prosecution case to the effect that dead body of the deceased with injuries on it was recovered near Balia danger remains unassailed. P.W. 10 testified to have noticed external and internal ante mortem injuries on the deceased's neck. He opined that cause of the death of the deceased was asphyxia which could be caused due to throttling and heavy pressure on neck. However, prosecution is required to establish complicity of the appellants with the homicidal death of the deceased.
9. Informant P.W.6 deposed that on the date of occurrence deceased went to P.W.2's house. Appellant Deba's son called the deceased from P.W.2's house to pluck Barakoli from a tree situated by the side of the house of appellant Deba. Thereafter, the deceased did not return. In spite of search, deceased could not be traced out on that date. On the next day, the dead body was discovered lying in the dangar or hillock covered with some pieces of stones upon which P.W. 6 lodged first information report Ext. 3 at the police station. It was further stated by P.W. 6 that later he heard that appellant Shyama Bisoi had come to the house of appellant Deba on the date of occurrence and the villagers had seen appellant Shyama Bisoi with the deceased for which they suspected appellant Shyama Bisoi and searched for him. They apprehended appellant Shyama at Mundiguda and on interrogation regarding the deceased, he confessed to have murdered him by throttling his neck in order to take away the 6 golden earring which was the deceased was wearing and to have handed over the golden earring to appellant Deba. P.W. 6 also deposed that golden earring of the deceased was seized by the police and released to him under Zimanama Ext. 10. P.W. 6 materially contradicted himself in his cross-examination by admitting that police had not released golden earring of his son to him. So far as allegation of appellant Shyama Bisoi to have confessed regarding commission of offence is concerned, it is stated by P.W. 6 in his cross-examination that Police Babu was present when he interrogated the appellant Shyama Bisoi regarding his son and he confessed to have committed murder of the deceased, and that it was due to threat given by the police that he so confessed.
10. As has been stated earlier, P.W. 4 another witness examined to depose regarding extra judicial confession made by appellant Shyama Bisoi has been declared to be a hostile witness. According to this witness, after the deceased was found missing, P.W. 4 heard that he was last seen with the appellant Shyama Bisoi and therefore, people went to meet appellant Shyama Bisoi in village Mundiguda from where he was brought to their village. People interrogated appellant Shyama Bisoi regarding the whereabouts of the deceased and he told that he killed the deceased. According to him, thereafter only people searched for the dead body of the deceased and traced it at the top of the hill covered with a number of stone pieces. In his cross-examination, P.W. 4 stated that appellant 7 Shyama Bisoi had not stated before him regarding his killing the deceased and that only he heard the fact from other villagers.
11. P.W. 9 also deposed that dead body of the deceased was recovered after apprehension and interrogation of appellant Shyama Bisoi. P.W. 9 testified that on the date of occurrence the deceased had gone to the house of appellant Deba to pluck Barakoli and did not return home. In the evening and through out night they searched for him but could not trace him out. Appellant Shyama Bisoi was also found missing. So suspecting him, P.W. 9 and others searched for him and found him in village Mundiguda and brought him to their village. On interrogation appellant Shyama Bisoi disclosed that he committed murder of the deceased by pressing his neck in the forest area as per the instigation of appellant Deba. After murdering the deceased he took away golden earring from the ear of the deceased and handed over to appellant Deba. Appellant Shyama Bisoi also told that after killing the deceased he placed stone pieces over the dead body. After hearing the confession they went to the said hillock of forest area and saw the dead body of the deceased on which stones had been placed. The version of P.W. 9 regarding discovery of the dead body of the deceased after apprehension and interrogation of appellant Shyama Bisoi is not consistent with the prosecution version as depicted by P.W. 6 in court and in the first information report Ext.3. Admittedly, first information report was lodged against unknown culprits after recovery of the dead body of the deceased. Therefore, obviously, till 8 first information report was lodged, there was no suspicion regarding complicity of any of the appellants with the murder of the deceased. So far as extra judicial confession made by appellant Shyama Bisoi is concerned, P.W. 9 also stated in his cross-examination that confession was made by appellant Shyama Bisoi in the presence of police and others. He also admitted that at the first instance he was not confessing but after police assaulted him he confessed and that some of the villagers also assaulted him with slaps. Thus, in view of categorical admission of the witnesses that alleged confession was made by appellant Shyama Bisoi upon threat and assault by police and others, the same cannot be held to be voluntary. Therefore, no reliance can be placed on so-called extra judicial confession as an incriminating circumstance against the appellants.
12. With regard to the other circumstance of deceased to have been last seen together in the company of the appellant Shyama Bisoi prosecution placed reliance of evidence of P.W.6's mother-in-law P.W.2. She stated that on the date of occurrence deceased and others were eating Borokolis plucking from a tree near the house of appellant Deba situated near her house. At that time Shyama reached there and took the deceased to the hill top telling to eat Borokolis. Thereafter, deceased did not return back. In her cross-examination P.W.2 stated that due to defective eyesight she is unable to perfectly see any object from a distance of even 15 to 20 feet. She saw the incident from her house from which the alleged Borokoli 9 tree is situated at a distance of 50 feet. Thus, on her own admission P.W.2 who is an aged lady has defective eyesight. Therefore, her assertion to have seen appellant Shyama taking the deceased to the hill top from near a tree situated at a distance of 50 feet from her house becomes doubtful. Moreover, in absence of proof of any other circumstance indicating complicity of any of the appellants with the offence, sole circumstance that the deceased was last seen in the company of the accused may at best form a link in a chain. Prosecution has not been able to establish any other link to form a chain of circumstances in the present case. In Inderjit Singh and another -vrs- State of Punjab : AIR 1991 SC 1674 it has been pointed out by the Supreme Court that in a number of cases it has been held that the only circumstance that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused.
13. Prosecution sought to implicate the appellants with the commission of the alleged offences by relying upon circumstance of alleged seizure of gold earring of the deceased under seizure list Ext.9. Admittedly, allegedly seized gold earring has not been produced in Court. Investigating Officer P.W.5 testified to have released the gold earring seized under seizure list Ext.9 in favour of deceased's father informant P.W.6 under zimanama Ext.10. Though P.W.6 deposed regarding seizure of gold earring from appellant Deba and release thereof in his zima under zimanama Ext.10, in course of his cross-examination P.W.6 categorically 10 admitted that police has not released gold earring of his son. In such circumstances, prosecution is also found to have failed to establish seizure of gold earring of the deceased so as to lead to an inference against any of the appellants.
14. In view of the above discussion, it is found that prosecution has not been able to establish a chain of circumstance which may constitute a basis for conviction. The impugned judgment and order are liable to be set aside.
15. Accordingly, the both the appeals are allowed. The impugned judgment and order of conviction and sentence are set aside. Both the appellants are acquitted of the charges. It is stated that the appellant Shyama Bisoi is still in custody. Appellant Shyama Bisoi in JCRLA No.14 of 2006 be set at liberty forthwith unless his detention is required otherwise.
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B.K. Patel, J.
L.Mohapatra,J. I agree.
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L. Mohapatra, J.
Orissa High Court, Cuttack,
Dated 8th August ,2012/B. Jhankar