Orissa High Court
Govinda Naik vs State Of Orissa on 24 June, 2003
Equivalent citations: 2003CRILJ4179, 2003(II)OLR97
JUDGMENT Sujit Barman Roy, C.J.
1.By this appeal the sole appellant Govinda Naik seeks to challenge the Judgment dated 29-6-1995 passed by the learned Sessions Judge, Koraput, Jaypore in Sessions Case No. 191 of 1994 convicting the appellant under Sections 302 and 201, I.P.C. and sentencing him thereunder to undergo rigorous imprisonment for life and one year respectively, with direction that both the sentences would run concurrently.
2. Prosecution case, in brief, is that on 3-2-1993 at about 8.30 A.M. P.W. 1 Sunasingh Majhi being the son of Dhanful Majhi lodged an information at Kashipur Police Station alleging, inter alia, that on the previous Tuesday in the morning his father Dhanful Majhi (since deceased) had gone to the house of the appellant at village Pinadusi. As the deceased did not return till the evening, P.W. 1 along with his co-villager Jaisingh Majhi went to the village of the appellant when (where) the appellant told him that the deceased along with his uncle of village Barakaudi had gone towards the village of the informant. On being so told, the informant along with said Jaisingh Majhi came back to their village. On returning to the village, the informant could learn that the deceased had not returned back home till then. Then again said Jaisingh Majhi along with one Pisaku Majhi went to the village Barakaudi again and returned to the village of the informant in the next afternoon and informed him that the informant's uncle had left his father in village Katikhaman on the previous Tuesday in the afternoon. On learning this, the informant along with Mania Majhi, Bisu Lohara and some others went to the village Katikhaman in search of his father. But, despite searching for his father in the said village the deceased could not be traced out. Jogendra Naik being the ex-Sarpanch of the said village told the informant that the appellant had killed the deceased on Tuesday and had concealed the deadbody some where. Accordingly, the informant and others searched for the deadbody of the deceased, but failed to trace him out. On the previous Wednesday the appellant was making hue, and cry in the village stating that he had killed the deceased and this statement made by the appellant was heard by Daitari Naik and Narendra Naik. Out of fear, the informant could not ask the appellant about this matter. In the said complaint, it was further alleged by the informant that the appellant had killed the deceased and the deadbody of the deceased could not be traced. On the basis of the said oral complaint lodged by P.W. 1, a case under Sections 302 and 201, IPC was registered against the appellant at the said Police Station. The police after usual investigation submitted charge sheet against the appellant under Section 302/201, IPC. In usual course the case was committed to the court of the learned Sessions Judge, Koraput, Jeypore. On perusal of the materials on record, the learned trial Court framed two charges under Sections 302 and 201, IPC against the appellant to which he pleaded not guilty.
3. In course of trial, in all eight witnesses were examined on behalf of the prosecution. None was examined on behalf of the appellant. The defence of the appellant was that of simple denial of the prosecution case, as alleged.
4. It needs to be stated at the out-set that none of the witnesses examined on behalf of the prosecution witnessed the occurrence. The impugned judgment is based on the extra-judicial confession allegedly made by the appellant before P.W. 5 and the recovery of the weapon of offence, and the deadbody of the deceased at the instance of the appellant. Apart from the aforesaid, there is absolutely no further evidence on record to connect the appellant with the murder of the deceased. It is claimed by P.W. 5 Rupendra Naik that before him the appellant shouted that he had killed the deceased. His evidence before the trial Court is very brief and cryptic. He stated in his evidence that the accused-appellant being drunk, came and shouted in the village that he had killed Dhanful. After this declaration was made by the appellant, P.W. 1 and others came to the village. However, in course of cross-examination P.W. 5 admitted that he heard from his co-villager Baladev that the appellant shouted that he had killed Dhanful. P.W. 5 further admitted in his cross-examination that he himself did not hear the appellant shouting that he had killed the deceased. However, this Baladev has not examined on behalf of the prosecution. Therefore, the evidence of P.W. 5 is based entirely on hearsay and the person from whom P.W. 5 had heard that the appellant made the extra-judicial confession in the aforesaid manner had not been examined in this case on behalf of the prosecution. This being the position; the evidence of P.W. 5 is clearly inadmissible in evidence, and therefore on that basis the appellant could not have been convicted and sentenced.
5. As regards recovery of the weapon of offence, deadbody of the deceased and the Dhoti of the deceased, the evidence of P.Ws. 3 and 8 is very important.
6. P.W. 3 has stated in his evidence that on one Thursday at about noon time he went to the village Katikhaman with the appellant. In that village the police arrested the accused-appellant. The accused stated before them while in Police custody that he could show the deadbody and the weapon of offence. Accordingly, the appellant led this witness along with the Police to the place, which was an open place in the village of this witness and the accused showed the dead body of the deceased which was covered with a shawl. He also showed a stone which was lying near the dead body. The stone was stained with blood. The Police prepared the seizure list and accordingly this witness put his L.T.I. on the seizure list. The Police also held inquest over the deadbody. He also put his thumb impression on the inquest report. The accused-appellant allegedly stated before him and the Police that the Dhoti of the deceased was kept by the appellant in his house and accordingly the appellant led the Police party along with this witness to his house and produced a Dhoti. The Police seized the Dhoti under a seizure memo in which also he put his L.T.I. Admittedly the dead body and the stone were lying in an open place in the village, and this place was accessible to everybody. In fact during the cross-examination this witness stated that the deadbody was lying near a foot-path. There was no forest at our (sic) about that place. As the deadbody and the stone were lying in an open place near the village road, it required no discovery at all. It was visible to everybody of the village. Therefore, mere pointing out that the deadbody and the stone were lying there cannot be treated as evidence of commission of crime. Accordingly, even if the accused-appellant had led the Police and P.W. 5 to the said open place by the side of the village road where the deadbody and the stone were lying, same cannot be interpreted as evidence of commission of crime by the appellant himself. Many parts of the evidence of this witness were inadmissible inasmuch as these amounted to confession made in presence of the police and therefore same are inadmissible in evidence. What were left with is the pointing out of the deadbody and the stone lying in an open place by the side of the village road. Mere leading the Police and this witness and pointing out the deadbody and the stone cannot be held to be evidence of commission of crime by the appellant himself.
7. We are now left with the recovery of the Dhoti on production of the same by the appellant himself from his house. Dhoti was forwarded for chemical examination. Mere recovery of the Dhoti from the possession of the appellant on being produced by the appellant himself is not enough to connect the appellant with the crime inasmuch as it has not been proved by any one that the Dhoti belonged to the deceased . It has also not been established that the blood stain marks allegedly found on the Dhoti were of human origin and that the blood group thereof, tallied with the blood group of the deceased.
8. In these circumstances, we are con-strained to observe that the trial Court failed to consider the aforesaid aspects of the case. We are therefore unable to sustain the conviction of the appellant. Accordingly, we allow this appeal, set aside the impugned judgment of conviction and sentence. We further direct that the appellant, if he is still in jail, shall be set at liberty forthwith.