Akura Majhi vs State Of Odisha

D.Dash, J

The Appellant by filing this Appeal has assailed the judgment of conviction and order of sentence dated 12th July, 2016 passed by the learned Additional Sessions Judge, Kalahandi, Bhawanipatna in Criminal Trial No.13 of 2015 (Sessions) arising out of C.T. Case No.243 of 2014 corresponding to M. Rampur P.S. Case No.113 of 2014.

The Appellant (accused) thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short called as ‘the IPC’). Accordingly, the Appellant (accused) has been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- in default to undergo rigorous imprisonment for a period of six (6) months for offence under section-302 of the IPC.

Prosecution Case:-

On 19.11.2014, one Kain Majhi (Informant-P.W.1) presented a written report (Ext.1) before the Inspector-In-Charge (IIC), M. Rampur Police Station stating therein that on that day around 7 am, when her husband Gokul Majhi had been to his land for fishing, it was around 9 am, her mother-in-law namely, Apuchha Majhi (P.W.5) came and informed that her husband being assaulted by the accused by means of tangia was suffering with pain. Kain (Informant-P.W.1) with her daughter, Rina (P.W.3) went to the spot and saw her husband lying with bleeding injuries in his leg, head, eye and back. She when was administering water of her husband, accused Akura again came to the spot with tangia and expressed before her to have killed her husband. It is further stated that accused threatened the Informant (P.W.1) that if she would disclose the fact to the Police and Doctor, she and her family would also been killed. It is further stated that saying so that accused assaulted the Informant (P.W.1) with the handle of the tangia and when the Informant (P.W.1) protested, a stone was thrown by the accused aiming at her. The Informant (P.W.1) thus having surrendered to the advice of the accused before him that her husband would be treated by the village Doctor at her house, as were arranging to shift Gokul to their home, the accused came with a cot and having shifted the deceased with the help of the Informant (P.W.1) and her daughter (P.W.3); left the place giving threat to the Informant (P.W.1) and her daughter (P.W.3) that if they would disclose the incident, their life would be at stake. It was further stated that Gokul had disclosed before the Informant (P.W.1) that accused assaulted him from the backside.

Receiving the above written report from the Informant (P.W.1), the Inspector-In-Charge (IIC) of M. Rampur Police State, treated the same as F.I.R. and registering the case, took up investigation.

The Investigating Officer (I.O.-P.W.14) in course of investigation examined the Informant (P.W.1) and other witnesses. He then visited the spot and prepared the spot map, Ext.9. He also seized the blood stained and sample of earth under seizure list, Ext.5. He held inquest over the dead body lying there and prepared the report proved as Ext.2. The dead body was then sent for postmortem examination. On 20.11.2014, the accused was apprehended and it is stated that he while in police custody, disclosed to have kept an axe in his house in a particular place and further stated if so taken to the place, he would give recovery of the same. Pursuant to the said statement, the accused led the I.O. (P.W.14) and others to that place and gave recovery of the axe, which was then seized under seizure list, Ext.4. The axe was sent for examination by the Doctor (P.W.11) to opine about the possibility of its user in causing the injuries noticed upon the deceased. All such reports being received, the seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the Final Form was submitted placing this accused to face the trial for commission of offence under section-302/294/323/506 of the IPC.

Learned J.M.F.C., M. Rampur, having received the report as above, took cognizance of the said offences and after observing formalities, committed the case to the Court of Sessions for trial. That is how the trial commenced by framing of charge of the said offences against the accused.

In the trial, the prosecution examined in total fifteen (15) witnesses. Out of whom, as already stated, the wife of the deceased-Gokul who has lodged the F.I.R. (Ext.10) is P.W.1 and P.W.3 is their daughter; whereas P.W.5 is the mother of the deceased and mother-in-law of P.W.1. Another daughter of P.W.1 has also come to the witness box as P.W.4. The Doctor who had conducted autopsy over the dead body of the deceased has been examined as P.W.11.

The prosecution besides leading evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 14. Out of those, the important are; the F.I.R., Ext.1, inquest report, Ext. 2, postmortem report, Ext.6. The statement of the accused in leading the I.O.(P.W.14) and others and giving recovery of the axe from the place where he had kept the same has been admitted in evidence and marked Ext.3 and the corresponding seizure list proved is Ext.4. The report of the Chemical Examiner has been admitted in evidence and marked Ext.14.

The accused in support of his defence of denial and false implication has however not tendered any evidence.

The Trial Court on going through the evidence of prosecution witnesses and embarking upon the exercise of their critical examination has arrived at a finding that the prosecution has established the charges against the accused beyond reasonable doubt. Accordingly, the accused has been sentenced as aforestated.

The Doctor(P.W.11) who had conducted autopsy over the dead body of Gokul has stated to have noticed three incised wounds on different parts of the body of the deceased; one on the right parietal bone over left scapula and left auxilla. He too had noticed two lacerations over left eye lash and lower line in medial aspect about 10 cm proximal to medial malleous of the size of 3!! X 1!!. According to him, all these injuries are antemortem in nature and the cause of death was due to intra corneal haemorrhage causing comma. What we find from the tenor of cross-examination that the evidence of this Doctor (P.W.11) that the nature of death to be homicidal had not been challenged. In additional to the above, we notice the evidence of P.W.14 who having held the inquest over the dead body of the deceased has noted such injuries in the report, Ext.2. The evidence of P.W.1, P.W.3 would show that they had seen the deceased with such injuries. Basing upon these evidence on record, we are left with no option but to conclude that Gokul met a homicidal death.

Mr. Samvit Mohanty, learned Counsel for the Appellant (accused) submitted that the Trial Court relying upon the solitary testimony of P.W.3, who is the minor daughter of the deceased is not right in arriving at a conclusion that it is the accused who had done the deceased to death by assaulting him by means of axe on his head and other parts of the body. He further submitted that here the Informant (P.W.1) as would reveal from her statement on oath in the Trial as well as the F.I.R. is a post occurrence witness and so also her daughter (P.W.3) when and the other important star witness for the prosecution, who is the mother of the deceased and the accused has not supported the prosecution case. Placing the evidence of P.W.3 vis-à-vis the F.I.R. version and the evidence of the I.O. (P.W.14), he submitted that the Trial Court has gone wrong in relying upon the version of P.W.3 in concluding that the prosecution has proved the charges against the accused beyond reasonable doubt.

Mr. Sonak Mishra, learned Additional Standing Counsel submitted all in favour of the finding of guilt against the accused as has been returned by the Trial Court. He contended that the evidence of P.W.3, who has no axe to grind against the accused although she is the daughter of the deceased and P.W.1 has been rightly accepted by the Trial Court. He submitted that this P.W.3 having clearly stated to have gone with the deceased and had seen the incident, merely taking a cue from the evidence of P.W.1 and the F.I.R. version, even though P.W.5 had not supported the prosecution case by attributing the authorship of the injuries upon accused, the Trial Court did commit no mistake in relying upon the version of P.W.3; in holding the accused to have intentionally caused the death of the deceased.

Keeping in view the submissions made; we have carefully read the judgment passed by the Trial Court and we have also extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 15 and marked Exts.1 to 14 from the side of the prosecution have been perused.

The F.I.R. lodged by P.W.1 has been admitted in evidence and marked as Ext.1 when it has been stated by P.W.1 that as per her instruction, it had been scribed by a person named ‘Bada’. The version of P.W.1 in the F.I.R. is that around 9 am, her mother-in-law (P.W.5) came home and told her that the accused had severely assaulted Gokul by means of tangia. It is further stated therein that hearing this, she (P.W.1) and her daughter (P.W.3) went to the place and saw her husband lying in pool of blood with injuries over his body. So, P.W. 1 does not claim to have seen the occurrence as to how her husband-Gokul sustained those injuries and who was author of those injuries. Her evidence reveal that she was so told by her mother-in-law on her coming home that accused had caused those fatal injuries upon the deceased. She then states to have gone there with her daughter P.W.3. This P.W.5 is not coming forward to support the prosecution case in further stating that she had not seen the occurrence. The P.W.5 being cross-examined by the prosecution with the permission of the Court, no such material has been elicited from her in providing support to the prosecution version as to the complicity of the accused and in simply reveals that she in the trial has resiled from her previous statement recorded by the I.O. as has been later on proved through the I.O. (P.W.14).

Coming to the evidence of daughter of the deceased and P.W.1 i.e. P.W.3, it is seen that she has stated that she with her father when were fishing, the accused came and assaulted her father on eyebrow, back and other parts of the body by means of tangia. The suggestion of the defence to this witness that she has not seen the incident although has been denied, we however find P.W.1, the mother of P.W.3, to have not stated that with her husband (Gokul), her daughter P.W.3 had also gone in the morning for fishing. Moreover, her version in the F.I.R. is quite contradictory to the evidence of P.W.3 wherein she has averred that hearing about the incident from P.W.5, she (P.W.1) with her daughter (P.W.3) went to the spot.

It has been brought out from the I.O., P.W.14 that this P.W.3 had not stated before him in her previous statement to have seen the occurrence. When such is the state of affairs in the evidence of P.W.1, P.W.3, P.W.5 and other witnesses are post occurrence witnesses who di not attribute the authorship of the injuries received by the deceased to the accused; we are not in a position to say that the evidence let in by the prosecution indirectly implicating the accused to have caused such injuries on the deceased, satisfy the test of reliability and acceptability so as to say that through their evidence, the complicity of the accused has been proved beyond reasonable doubt.

Next remains the evidence as to the recovery of weapon. It is true that the seized tangia being examined by the Doctor (P.W.11), he has opined that with same, the injuries noticed on the dead body of the deceased are possible. Be that as it may, when has go to the evidence as to the recovery, we find the evidence of the I.O. P.W.14 to be not satisfactory that it was at the instance of the accused pursuant to his statement after his apprehension. First of all, it is seen that P.W.14 does not say that where he apprehended the accused and who were the witnesses then present, when he gave the statement that too in which place, the accused gave such statement and it was so recorded. His evidence is appears to be casual when he says that the accused led him to the spot and gave recovery of the axe from his house.

P.W. 2 then states that accused gave such statement at the Police Station But he does not say as to how he was then present at the Police Station and the I.O. (P.W.14) is not pin-pointedly stating that said statement was given by the accused at the Police Station and that where he apprehended the accused and then how he was dealt. Therefore, the prosecution is found to have not proved the factum of recovery of axe pursuant to the statement of the accused after his apprehension by leading the I.O. (P.W.14) and others to the place where it had been kept by leading, clear, cogent and acceptable evidence.

In the wake of discussion of the evidence let in by the prosecution, the finding of the Trial Court holding accused guilty of commission of the offence under section-302 of the IPC cannot be sustained. Therefore, we are of the considered view that the judgment of conviction and the order of sentence impugned in this Appeal are liable to be set aside.

In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 27th July, 2016 passed by the learned Additional Sessions Judge, Kalahandi-Bhawanipatna in Criminal Trial No.13 of 2015 (Sessions) arising out of C.T. Case No.243 of 2014 are hereby set aside.

Since the Appellant (accused) namely, Akura Majhi is in custody, he be set at liberty forthwith, if his detention in custody is not so required in connection with any other case.

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