Orissa High Court
Yudhistira Naik & Another vs State Of Orissa on 11 May, 2012
Author: C.R. Dash
Bench: L. Mohapatra, C.R. Dash
ORISSA HIGH COURT, CUTTACK.
Jail Criminal Appeal No. 85 of 2003
Arising out of the judgment and order of sentence dated 17.07.2003 passed
by Shri M.K.Mohanty, learned Sessions Judge, Mayurbhanj,Baripada in
Sessions Trial Case No. 224of 2001, under Sections 302,201/34, I.P.C.
-----------------
Yudhistira Naik & another ... Appellants
Versus
State of Orissa ... Respondent
For Appellants : Ms Golaprani Jena, Advocate.
For Respondent : Mr. Sangram Das, Addl. Standing Counsel.
-----------------
PRESENT:
THE HONOURABLE MR. JUSTICE L. MOHAPATRA
AND
THE HONOURABLE MR. JUSTICE C.R. DASH
------------------------------------------------------------------------------------------------------------------------
Date of Argument : 11.05.2012 Date of Judgment : 11.05.2012
------------------------------------------------------------------------------------------------------------------------
C.R. Dash, J.This appeal is directed against the judgment and order of sentence dated 17.07.2003 passed by learned Sessions Judge, Mayrubhanj- Baripada in Sessions Trial Case No. 224 of 2001 convicting the appellants under Sections 302, 201/34, I.P.C. and sentencing each of them to suffer imprisonment for life for offence under Section 302/34, I.P.C. Learned Sessions Judge, however, passed no substantive sentence for offence under 2 Section 201/34, I.P.C. in view of the substantive sentence passed for offence under Section 302/34, I.P.C.
2. A compendium of the prosecution case is as follows:-
The occurrence happened in between 8 to 9 P.M. on 3.4.2001, which was a Tues day in village Chainnebda under Jashipupr P.S. in the district of Mayurbhanj. Dead body of the deceased was found at a distance of about 1 K.M. away from the spot of occurrence on the next day. Information was lodged at the spot at 11.00 A.M. on 5.4.2001 by Raghunath Naik(P.W.1) who happens to be the brother-in-law of the deceased ( husband of the cousin of the deceased). The deceased Jerman Naik was a native of Majhigaon of the State of Jhadakhanda. Since one year past he was staying in the house of the informant and was earning his livelihood as a daily labourer. On 3.4.2001 Satpathy Naik( appellant no.2) called him to his house from the weekly market, but he (deceased) did not return. On 4.4.2001, informant Raghunath (P.W.1) lodged a missing repot in the police station. In course of search by the villagers and some police officials, they came to know that dead body of a person is lying at a distance of 1 K.M. away from the spot village. The informant (P.W.1) along with others going to the spot where the dead body was lying found the deceased lying dead with bleeding injuries. Thereafter they went to the house of the appellants. There they found the inner courtyard of their house to have been plastered with the cow-dung paste. They also found stains of blood on the wooden plank of the Charpoy and other things. On being confronted, the appellants did not say anything. Neighbours of the appellants namely, Budhia Naik (not examined), Sadananda Naik (not examined), Angada Naik( not examined) and Ashamani Naik (P.W.3) told the informant (P.W.1) and othes that in between 8 to 9 P.M. they heard shouts as "MARIGALI BANCHA A, BANCHA A" coming from the 3 inner courtyard of appellant No.1. Suspecting that the appellants have committed murder of deceased Jerman Naik, P.W. 1 lodged the F.I.R. On completion of investigation, charge-sheet was filed against the appellants for offence under Sections 302, 201/34, I.P.C.
3. Prosecution has examined eleven witnesses to prove the charge. . P.W.1 is the informant. P.W.2 is the scribe of the F.I.R. P.W.3 is a neighbour of appellant No.1 Yudhistira Naik and she is testified to have heard some shouting such as "SAVE ME, SAVE ME" coming from the house of Yudhisthira( appellant No.1) on Tuesday night . P.W.4 is the Grama Rakhi, who had seen the deceased Jerman coming with appellant No.2 Sathpahy Naik from Jashipur weekly market side. He also saw drops of blood in the house of the appellants and the courtyard was plastered with cow-dung. P.W. 5 is a witness who was informed about one Durga Majhi regarding lying of a dead body near Keutabandh Tank. P.W.7 is the sister of the appellants but she turned hostile. P.W.8 who happens to be the friend of P.W.7 is the witness to a part of the occurrence. P.W.9 is a witness to the seizure of sample earth, blood stain earth, earthen pot, blood stained and wooden leg of a charpoy etc. made by police vide Exhibits-3, 4 and 5. P.W.10 who happens to be a friend of the appellants has also turned hostile. P.W.6 is the Medical Officer, who conducted the post-mortem examination. P.W.11. is the I.O. .
Defence plea is one of complete denial, but none was examined by the defence.
4. Basing on the evidence of P.W.8, who had seen a part of the occurrence and the evidence of P.Ws. 1, 3, 4 and 9, who have testified to have found stains of blood in the house of the appellants and the evidence of P.W.3 to the effect that she heard shout of "SAVE ME, SAVE ME" coming out 4 from the house of the appellants on a Tues day night, learned Sessions Judge found the appellants guilty.
5. Learned counsel for the appellants submits that the evidence on record is ridden with discrepancies, embellishment and the conclusion arrived at by learned trial court on the point of guilt of the appellants is not sustainable in the eye of law.
Learned Addl. Standing Counsel on the other hand supports the impugned judgment and order of sentence.
6. P.W.8 is the only witness who had seen a part of the occurrence. According to her she had been to the house of the appellant Yudhistira Naik at about 8.00 P.M. to call Adhi Naik (P.W.10). She found deceased Jerman Naik on a cot inside the house of Yudhistira Naik. The appellants were abusing him. They were also assaulting him. She left the spot and Adhi also came with them. Appellant No.2 Satpathy Naik also came with them. She came to the house of her father's sister-in-law. All of them took food in their house. Appellant Satpathy Naik went away from her house after taking food. She has further testified that this incident happened on Tues day and on the Wednesday she came to know that deceased Jerman Naik was already dead. In her cross-examination she has testified that she saw the appellants giving two to three blows on back of the deceased with a bamboo lathi. P.W.3 has testified that she heard someone shouting such as "SAVE ME, SAVE ME" coming from the house of appellant No.1 Yudhistira on a Tuesday night. In her cross-examination she has testified that her house is situated at a distance of about 500 cubits from the house of appellant No.1 Yudhistira Naik. It is further testified by her that on that day a function was going on in her village through out the day and night. P.W.4 has testified that 5 he saw the deceased coming with appellant No.2 Satpathy Naik from Jashipur weekly market side on a Tuesday.
P.W.1 has testified that coming to the house of appellant No.1 Yudhistira Naik, he along with others found blood in the courtyard of that appellant and the courtyard had already been plastered with cow-dung. P.W.4 has testified that he found drops of blood in the house of the appellants and the courtyard was plastered with cow dung and stains of blood were found on the leg of the cot. P.W.9 who is a witness to the seizure vide Exhibits- 3, 4 and 5 has testified that he along with the police and the appellants after their arrest went to the house of appellant No.1 Yudhistira Naik and police seized sample earth, blood stained earth, earthen pot stained with blood, wooden leg of a cot and a cot in his presence vide Exhibit.3 and Police also seized one wooden lathi and a knife vide Exhibits-4 and 5 respectively. In his cross- examination he has testified that police only took his signature and nothing was written in the seizure list in his presence. Out of the aforesaid witnesses, P.W.1 is testified to have found the blood in the courtyard of appellant No.1 Yudhistira Naik and the courtyard had already been plastered with cow-dung. P.W.4 has testified that he found drops of blood in the house of appellants and the courtyard was plastered with cow dung. Yudhistira Naik and Satpathy Naik are shown to be living in different houses. As P.W. 4 being the Grama Rakhi has testified that he had deputed police to the houses of Satpathy Naik(appellant No.2) and Yudhistira Naik( appellant No.1). P.W.4 has not specifically testified in the courtyard of whose house he found drops of blood. P.W.9, who is a witness to the seizure, has testified that police seized sample earth, blood stained earth etc. from the house of appellant No. 1 Yudhistira Naik. The I.O. in paragraph-1 of his examination-in-chief is testified to have deputed scientific team to the spot. No scientific officer has been examined 6 and no seizure of the materials collected by the scientific team is there on record. The spot map which is held to be admissible in evidence to the extent what the Investigating Officer himself saw at the spot as held in Tori Singh and another v. State of Uttar Pradesh, A.I.R. 1962, S.C. 399 has been admitted in evidence vide Exhibit-6. The spot map indicates the spot of occurrence, the spot disposal of the dead body at a distance of 1 K.M. from the spot of occurrence and the house of appellant No.1 Yudhistira Naik. House of appellant No.1 Yudhistira Naik is shown to be different from the spot where the occurrence is alleged to have happened. There is discrepancy in evidence of P.Ws. 1, 4 and 9 so far as seizure is concerned. It was not possible to seize blood stained earth without help of the scientific team, if the courtyard had already been plastered by cow-dung as testified by P.Ws. 1 and 4. P.W.9 has testified that the seizure was effected in the house of the appellant No.1 Yudhistira Naik, which is not shown to be the spot of occurrence by the I.O. in the spot map Exhibit-6. Though scientific team was deputed, there is nothing on record to show seizure of materials as collected by the scientific team. P.W.9 has testified in his cross examination that though he had signed on the seizure lists vide Exhibits- 3, 4 and 5, same were not prepared in his presence. In view of such facts a genuine doubt arises regarding the place of seizure of the articles like blood stained earth, wooden charpoy leg, wooden baton of charpoy etc. on which according to chemical examination report, there are traces of human blood. In view of such fact presence of blood stain in the aforesaid articles as found by the witnesses or as seized cannot be taken to be a corroborative circumstance against the appellants.
7. The next circumstance is seizure of the lathi and knife vide Exhibits- 4 and 5 respectively on the basis of discloser statement alleged to 7 have been made by the appellant No.1 Yudhistira Naik under Section 27 of the Evidence Act.. Such disclosure statement has been proved vide Exhibit-9. No independent witness has been examined to prove the factum of discloser statement as made by appellant No.1 Yudhistira Naik. P.W.9 has testified the seizure of lathi and the knife vide Exhibits-4 and 5 respectively, but he has further testified in his cross-examination that the seizure list was not prepared in his presence. On the basis of the evidence of the I.O. alone, the factum of seizure of lathi and knife at the instance of appellant No.1 Yudhistira Naik merits no consideration especially when no trace of blood was found either on the knife or on the bamboo lathi asserted to have been seized at the instance of appellant No.1 Yudhistira Naik as found from the chemical examination report Exhibit-14.
8. If the aforesaid circumstances are eschewed in view of our discussion supra, the sole evidence of PW.8 remains to implicate the appellants. P.W.8 herself has testified that she saw the appellants assaulting the deceased with a lathi and she saw them giving two to three blows with that lathi on the back of the deceased. She has not testified that both the appellants were armed with lathi. She has further testified that along with her appellant No.2 Satpathy Naik came to the house of her father's sister-in-law where he took his dinner. P.W.3 has testified that a celebration was going on through out day and night in the village on the occurrence day. Even if the appellants would have killed the deceased finding some exclusive moment in the night in their house, it must not have been possible for them to take the dead body to a distance of 1 K.M. to dispose of the same in view of celebration in the village. P.W.6 the Medical Officer, who conducted post- mortem examination found deep seated incised looking wounds at right side of base of neck placed little medially at approximately 1 and ½" apart. Lower 8 bigger wound measured 2 and ½ "x 1" x ¾ "exposing deeper vessel and other structure with averted margins. Upper smaller wound measured 1 and ½" x ¾" x ½" with averted margins. All the aforesaid injuries were opined to be ante-mortem in nature and it is further opined that the injuries might have been caused by sharp cutting weapon. Cause of death is opined to be haemorrhage and shock owing to injuries to vital part of the body like neck. The dead body had started decomposition as testified by P.W.6 and there was presence of profuse maggots in different parts of the body. Rigormortis was partly present in all over four limbs and time since death as fixed by P.W.6 was within 48 to 72 hours from the time of post-mortem examination. The Medical Officer however, has found no injury caused by hard and blunt weapon like lathi on the dead body of the deceased. Semi digested food having been found in the stomach, death of deceased must have occurred within two to three hours of his taking food. If all the aforesaid aspects are taken into consideration, which creates a doubt as to corresponding time of death as fixed by the Medical officer and the prosecution witnesses, evidence of P.W.8 alone cannot be held to be sufficient to implicate the appellants in as much as she saw only the appellants giving two to three blows by lathi on the back of the deceased of which no corresponding injury was found during post-mortem examination by P.W.6. There being a celebration in the village, the deceased might have left the house of the appellants in the night and some other persons might have also killed him. P.W.3 who heard shout of 'SAVE ME SAVE ME" coming from the house of appellant No.1 Yudhistira might have heard that sound while appellants were assaulting the deceased with a lathi. On the other hand it is also doubtful whether P.W.3 could have heard such shout from a distance of 500 cubits when celebration was going on in the village. Further P.W.8 ipse-dixit has testified that appellant No.2 9 Satpathy Naik came along with her leaving appellant No.1 Yudhistira Naik and the deceased in the house of appellant No.1 Yudhistira Naik. Not only the appellants but others like Adhi Naik (P.W.10) and one Anil (not examined) were present at the time when the appellants were assaulting the decease as testified by P.W.8. If the appellants had any plan or intention to kill the deceased, they would not have done so in presence of witnesses and appellant No.2 Satpathy Naik would not have come along with P.W.8 leaving the job half done.
9. If all the aforesaid aspects are taken into consideration, no conviction can be sustained on the basis of the evidence of P.W.8 and the corroborative evidence as discussed supra because the appellants are entitled to the benefit of doubt.
10. In view of the above, we set aside the conviction of the appellants under Section 302,201/34, I.P.C. and sentence passed thereunder. The appeal is accordingly allowed.
11. From the record it appears that the appellants are in custody. They be set at liberty forthwith, if their detention is not required in connection with any other case.
........................
C.R. Dash, J.
........................
L. Mohapatra, J.
Orissa High Court, Cuttack.
The 11th day of May, 2012. /Dhal.