Orissa High Court
Akshya Kumar Mallik vs State Of Orissa on 7 July, 2014
Author: Sanju Panda
Bench: Sanju Panda
HIGH COURT OF ORISSA: CUTTACK
JAIL CRIMINAL APPEAL No.67 of 2004
From the judgment dated 31.05.2004 passed by Sri K.N. Panigrahi,
Additional Sessions Judge, Bhanjanagar in S.C. No.30 of 2002/S.C. 184
of 2002-GDC.
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Akshya Kumar Mallik ... Appellant
- Versus -
State of Orissa ... Respondent
For Appellant ... M/s. Bijoy Dasmohapatra &
B.N. Bhol.
For Respondent ... Mr. Sk. Zafarulla,
Additional Standing Counsel.
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PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE SHRI JUSTICE RAGHUBIR DASH
Date of Argument and Judgment : 07.07.2014
Raghubir Dash, J.This Jail Criminal Appeal is against the judgment dated 31.05.2004 passed by the learned Additional Sessions Judge, Bhanjanagar in S.C. No.30 of 2002/S.C. 184 of 2002-GDC arising out of G.R. Case No.263 of 2001 in the court of S.D.J.M., Bhanjanagar 2 convicting the appellant under Section 302 of the I.P.C. and sentencing him to suffer life imprisonment and to pay fine of Rs.500/-, in default, R.I. for three months with a direction to set off the pre-conviction detention period.
2. On 19.06.2001 at about 9.30 P.M., the S.I. of Police, Jagannath Prasad Outpost received F.I.R. at the spot in village- Budurungu from Chakradhar Pradhan, who is the father of the deceased Jamuna. The informant on getting information that his daughter died in her in-laws house, rushed to village-Budurungu, the deceased's in-laws' village. On his arrival he found that none was there in the house of her deceased daughter's in-laws. At about 9.30 P.M. he got the opportunity to see the dead body of his daughter lying on a cot inside the house with injuries. It appears, the S.I. of Police, Jagannath Prasad Outpost was present at the spot to whom the informant handed over a written report.
On the basis of the report investigation was taken up. During investigation it came to light that 4 to 5 days prior to the incident the convict, who is one of the brothers of the deceased's husband, had a quarrel with the deceased over cooking of fish curry. On the day before the occurrence night deceased's husband had left his house and did not return in the night. In the occurrence night the deceased with her six months old daughter slept in one room closing the door from inside. The 3 convict, his another brother Achuta (P.W.2) and one Amulya (a co- accused, who is convict's matrimonial uncle's son), slept in other rooms. In the morning Achuta (P.W.2) first saw the dead body of the deceased lying on the cot. At that time he found the convict and the co-accused Amulya absent in the house. Taking the deceased's minor daughter with him, Achuta left the house closing the door from outside and went to Banchanidhi Mallik, the Panchayat Samiti Member, before whom he narrated what he had seen.
On post mortem examination it was confirmed that it was a homicidal death. On completion of investigation, charge-sheet was submitted on 16.10.2001 against the convict and his cousin Amulya. Since accused Amulya was an absconder, the case was separated and thereafter the learned S.D.J.M., Bhanjanagar committed the present appellant to the court of Sessions and after surrender of the co-accused Amulya he was also committed. Separate Sessions cases were registered. Both the Sessions cases were clubbed together. Learned Additional Sessions Judge, Bhanjanagar framed charge under Section 302/34, I.P.C. and proceeded to record evidence. As many as 10 prosecution witnesses were examined. No witness was examined on behalf of the defence.
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Here it is pertinent to mention that there is no eye witness to the incident. Out of the prosecution witnesses examined, P.Ws.1, 2 and 3 have turned hostile. Out of them, P.W.2-Achuta is the most vital witness. Analysing the evidence on record, the learned Sessions court concluded that the circumstances formed a complete chain to connect the appellant with the crime but there was no such complete chain of circumstances as against the co-accused. Accordingly, the order of conviction was recorded as against the appellant and the co-accused was acquitted.
3. Learned counsel for the appellant submits that there being no iota of legal evidence against the appellant, the order of conviction suffers from perversity. It is further submitted that whatever incriminating circumstances appearing against the appellant basing on which the order of conviction is found are all hearsay in nature.
Learned counsel for the State argues in support of the order of conviction but fairly submits that evidence of P.W.7 basing on which the learned trial court has recorded the order of conviction is hearsay in nature.
4. Achuta (P.W.2), who was supposed to adduce evidence on the attending circumstances, has turned hostile. Though he was examined under Section 154 of Evidence Act, nothing could be elicited 5 from him. But P.W.7, the deceased's husband has deposed in the court stating that P.W.2 told him that he along with Amulya (the co-accused, who has been acquitted) had slept in the middle room while the deceased slept in the front room and the appellant slept in the third room of the house and that after committing the murder, the appellant had left the house. Achuta has not stated about all these facts while deposing in the court. Evidence of P.W.7 in this regard is undoubtedly hearsay in nature. Similarly, P.W.4 has stated that on being asked P.W.2 disclosed that his brother Akshya and Amulya after killing Jamuna went away taking her cash. But P.W.2 in his deposition has not stated anything about all these facts. Therefore, this part of the evidence of P.W.4 is also hearsay in nature. However, learned Sessions court appears to have relied on this evidence of P.W.s 4 and 7 and recorded the order of conviction. The only piece of direct evidence in the evidence of P.W.7 which goes against the appellant is that five days prior to the occurrence the appellant brought fish to their house and asked the deceased to cook and serve the same to which the deceased complied but there was some delay for which the appellant got annoyed and since then he was not taking meal in the house till the night of occurrence. Save and except this piece of evidence, which at best would be the motive, there is no other legal evidence appearing against the appellant. Had Achuta 6 deposed in the court that in the occurrence night the appellant was sleeping in the same house, though in a different room, and that in the morning he was found missing, there would have been some strong incriminating circumstances against the appellant. In that situation, the evidence of P.W.s 4 and 7 would have been used as corroborative evidence to support the evidence of P.W.2
5. In Raja alias Satiyapal -Vrs.- The State of M.P., VIII- 1986(2) Crimes 581, the following observation made by the privy counsel in Subramaniam -Vrs.- Public Prosecutor has been quoted:
Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay inadmissible while the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.
6. There can be no doubt that P.W.2 had stated to P.Ws. 4 and 7 that in the occurrence night the appellant was sleeping in the same house (though in another room) in which the deceased was sleeping and in the morning the appellant had left the house. If that evidence is intended to establish the truth of what has been contained in the statement of P.W.2 made to P.Ws. 4 and 7, it would amount to hearsay evidence which is inadmissible. Therefore, the learned Sessions court 7 should not have used this statement of P.W.2 made to P.W.s 4 and 7 as a piece of substantive evidence to convict the appellant.
7. In view of the discussion made above, this is found to be a case which the prosecution has miserably failed to establish against the appellant. Accordingly, the order of conviction and sentence is set aside. The appellant Akshya Kumar Mallik is found not guilty of the offence under Section 302, I.P.C. and he is acquitted under Section 235, Cr.P.C. Since the appellant is on bail, the bail bonds stand discharged.
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Sanju Panda, J.
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Raghubir Dash, J.
Orissa High Court, Cuttack.
The 7th July, 2014/D. Aech