Jataram Ho vs State Of Odisha

Appellant Jataram Ho along with co-accused Sitaram Ho faced trial in the Court of the learned Sessions Judge, Mayurbhanj, Baripadda in Sessions Trial Case No.212 of 2000 for the offence punishabble under Section 302/34 of the Indian Penal Code (in short ‘IPC’) on the accusation that on 14.01.2000 at about 3.00 p.m. at village Brahmanipal, in furtherance of their common intention, they committed murder of Gajendra Dalai (hereinafter ‘deceaseed’).

The learnned trial Court, vide impugned judgment and order dated 02.055.2002, though acquitted the co-accused Sitaram Ho of the chharge under section 302/34 of IPC, buut found the appellant guilty under section 302 of IPC and sentencced him to undergo imprisonment for life.

Prosecution Case:

The prosecution case, as per the first inforrmation report (hereinafter ‘the F.I.R.’) (Ext.1) lodged by one Mangalal Singh (P.W.1), the Ward Member of village Brahmanipal, on 15.01.2000 before the Officer in-charge of Sarat police station, in short, is that on 14.01.2000 he had been to the village pond, locally known as ‘Padma Pokhari’ to get fish coming to know about fish catching activities going on. At about 3.30 p.m., while he was returning home, on the way Baidhar Ho (P.W.5) met him and told him that about half an hour back, after returninng from the pond, he found the dead body of the deceased was lying on the thrashing floor of his house with bleeding injuries on the legs and right hand. Geetting such information from P.W.5,, P.W.1 rushed to the spot and found the dead body of the deceassed was lying in the thrashing floor with injuries on his legs and haand. He got information from Champa Hembram (P.W.3), the wife of P.W.5 that both the appellant Jataram Ho and co-accused Sitaram Ho quarrellled with the deceased and assaultted the deceased by meanss of a ‘Budia’ (axe) and killed him. P.W.1 intimated the matteer to the Gramarakhi, who also came to the spot and saw the dead body. Since by that time, night had set in, F.I.R. was lodged on the next day i.e. on 15.01.2000.

On the basis of the report submitted by P.W.1, Sarat P.S. Case No.03 datted 15.01.2000 was registered under section 302/34 of IPC agaiinst the appellant Jataram Ho and the co-accused Sitaram Ho and P.W.9 Banabihari Mohanty, the O.I.C. of Sarat police station took up the investigation of the case.

During the course of investigation, P.W.9 exxamined the informant (P.W.1) and other witnesses, visited the spot and prepared spot map (Ext.8), held inquest over the dead body of the deceased andd prepared the inquest report (Ext.5), dispatched the dead body for post mortem examination through the constable vide dead body challan (Ext.6), searched for the accused persons, but found them absconding. On 16.01.2000, he arrested the appellaant so also the co-accused Sitaram Ho and while in police custtody, the appellant stated to have given a statement regardingg concealing the weapon of offence i.e. axe (M.O.I) and accordingly, his disclosure statement under section 27 of the Evidence Act was recorded vide Ext.7 and the axe (M.O.I) was recoverred as per the seizure list Ext.2/1. A brown colour napkin was seized on 16.01.2000 on being produuced by co-accused Sitaram Ho as per seizure list Ext.3/1 and on 17.01.2000, both the appellant and the co-accusedd were forwarded to the Court. On 26.04.2000, P.W.9 made over the charge of investigation to P.W.7 Damodar Mohapatra, his successor, who durinng course of his investigation, sent thee seized articles to the S.F.S.L., Bhubaneswar for chemical exammination and on completion of investigation, he submitted charge sheet against the appellaant and the co-accused Sitaram Ho under section 302/34 of IPC.

Framing of Chargees:

On receeipt of the charge sheet, the casse was committed to the Court of Session following due procedure, where the learned trial Court framed charge againnst the appellant so also the co-accused Sitaram Ho as aforesaid. Both the appellant and thhe co-accused pleaded not guilty and claimed to be tried and accordingly, the sessions trial proceduure was resorted to establish their guilt.

Prosecution Witnesses, Exhibits & Material Objects:

In order to prove its case, the prosecution examined as many as nine nummbers of witnesses.

P.W.1 Mangalal Singh, who is the Ward Memmber of Village Bramhanipal,, is the informant in the case. He statted that on being informed by Baidhar Ho (P.W.5) regarding the death of the deceased, he haad been to the spot and found that thhe dead body of the deceaseed was lying with injuries on his leg and also found blood on the thrashing floor. He further stated that he along with P.W.5 went to Grama Rakshi (P.W.2) and told him about the death of the deceased and P.W.2 came to the spot and saw the dead body and on the next day, they went to the police station and he orally reported the matter to the police, which was reduced into writing. He proved his report as Ext.1.

P.W.2 Durga Prasad Gandual was the Grama Rakshi and also a co-villagger of the appellant and he stated that on getting information from P.W.1, he had been to the sppot and found the dead bodyy of the deceased lying on the thrashing floor of P.W.5. He also acccompanied P.W.1 to the police station when F.I.R. was lodged.

P.W.3 Chhampa Hembram, who is the wife of P.W.5, did not support the prosecution case for which she was declared hostile by the proseccution.

P.W.4 Ubuga Ho is a witness to the seizure but he has not supported thhe prosecution case.

P.W.5 Baaidhar Ho is a witness to the seizure but he also did not support the prosecution case.

P.W.6 Jasoda Dalai, who is the widow of the deceased, has stateed that on the date of occurrence, she had been to the forest and on her return, she sat on the verandah of her house and at that time, one Joda and Rabi arrived near her and used filthy languuage and threatened to kill her and thhey also told that they had already killed her husband (deceaseed). On hearing the same, she had been to the village Brahmanipal and saw the dead body of her husband lying in the thrashing floor of P.W.5 with injuries on his leg and hand. She also stated that she found drops of bloood near the dead body and thereaftter, she went to the Grama Rakhi and reported the matter.

P.W.7 Damodar Mohapatra was the O.I.C. of Sarat police station, who took over charge of investigation fromm P.W.9 and submitted the charge sheet.

P.W.8 Dr. Srinivas Naik was working as Surgery Specialist in S.D. Hospital, Udala, who conducted post mortem examination over the dead body of the deceased and prooved his report vide Ext.4.

P.W.9 Baanabihari Mohanty, was working as O.I.C. of Sarat police station, who investigated the case froom the beginning and handeed over the charge of investigation to P.W.7.

The prrosecution proved eleven numbeers of documents as exhibits. Ext.1 is the F.I.R., Ext.2/1, Ext.3/1 and Ext.9 are the seizuree lists, Ext.4 is the post mortem report, Ext.5 is the inquest reportt, Ext.6 is the dead body challan, Ext.7 is the disclosure statemennt of the appellant, Ext.8 is the spoot map, Ext.10 is the Chemmical Examination Report and Ext.11 is the report of the Serologgist.

The proosecution also produced two numbbers of material objects. M.O.I is the axe and M.O.II is the napkin.

Defence Plea:

The defence plea of the appellant is one of dennial and it is pleaded that on account of political hostility, he haas been falsely implicated in the case.

Findings of the Trial Court:

The learned trial Court, after analysing the evidence of the doctor (P.W.8) and the report (Ext.4) submitted by him, came to hold that thhe prosecution has proved that the deeceased died a homicidal deaath. Relying on the evidence of extra judicial confession made by the appellant before P.W.6 and the medical evidence adduced by the doctor (P.W.8) and the recovery of M.O.I at the instannce of the appellant as stated by the I.O. (P.W.9) though acquuitted the co-accused Sitaram Ho, but found the appellant guilty under section 302 of IPC.

Contentions of the Parties:

Mr. Debbi Prasad Dhal, learned Senior Advocate appearing on behalf of the appellant emphatically contendded that the conclusions arrivved at by the learned trial Court is commpletely erroneous and therre are no clinching evidence on record to sustain conviction of the appellant under section 302 IPC. It is argued that though in the F.I.R., it is stated that the infformant (P.W.1) came to knoow from P.W.3 that the appellant and the co-accused assaulted the deceased during quarrel, but P.W.3 has been declared hostile by the prosecution and even the infformant (P.W.1) has not stated in his evidence to have receivved any information from P.W.3 that she was an eye witness to the occurrence and thatt the appellant and the co-accused Sitaram Ho were the assailants of the deceased. Learned counsel further submitted that P.W.6, who is widow of the deceased stateed to be a witness to the extra judicial confession, has simply statted that one Joda and Rabi had disclosed before her that they haad killed her husband (deceaased), but she has stated that she did not know the accused persons standing in the dock. Thereefore, it cannot be said that the appellant came before P.W.6 and made an extra judicial connfession. He further argued that even though as per the prosecutiion case, one axe was seized at the instance of the appellant as deposed to by the I.O. (P.W.9) and the C.E. report (Ext.10) also indicates that human blood of Group ‘A’ was found in the said weapon, since the prosecution has faailed to establish any link between the said weapon with the crime in question, mere recovery of the axe (M.O.I) has got no relevance in this case and eveen though it can be said that the prossecution has proved the homicidal death of the deceased, but in absence of any direct evidencce to establish the complicity of the apppellant in the murder of thhe deceased, the circumstances available on record do not form a complete chain and thereforre, the conviction of the apppellant is not sustainable in the eyes of law.

Mr. Sarrat Chandra Pradhan, learned Addditional Standing Counsel appearing for the State supported the impugned judgment and the order of conviction.

Whether the deceaased died a homicidal death?:

Before adverting to the contentions raised by the learned counsel for the respective parties, let us first examine whether the proseccution has successfully established that the deceased met with a homicidal death or not. Apart from the inquest report (Ext.5) prepared by P.W.9, it appears that the Medical Officer (P.W.8) attached to the S.D. Hospital, Udaala, who conducted the post-mortem examination over the dead body of the deceased on 16.01.2000, found the following external injuries:

“(A) There were four nos. of lacerated wounnds on the posterior aspect of left thigh. All the injuries transversely placed. All the injuries weere bone deeep of

(i) size of the injury 4” x 2” x 3”

(ii) Size of the injury 5” x 3” x 2”

(iii) Size of the injury 3” x 2” x 3”

(iv) Size of the injury 4” x 1” x 3”

(B). There were three lacerated injuries on the medial aspect of left leg below knee.

(i) 1” bellow the knee joint size 4” x 1” x 2

(ii) 2” beelow knee joint size 4” x 2” x ½”

(iii) 3” beelow knee joint size 3” x 1” x 2”

(C) Coompound fracture of right arm meddial aspect, 3 nos. of lacerated wounds on the posteriorr lateral aspect of right arm, compouund fracture of right femur, which 2 nos. of laceratted wounds about 4” knee posteriorly. The fractuure of partiaal and lacerated wound on the anterrior aspect of knee.

The docttor further stated that the cause of death was due to severe bleedding and shock. He proved the post-mortem report marked as Ext.4 and further opined that the cause of death was due to severe bleeding.

Nothing has been brought out in the cross- examination of P.W.8 to challenge regarding the homicidaal death of the deceased.

Mr. D.P. Dhal, learned Senior Advocate appearing for the appellant has alsso not challenged the evidence of the doctor.

Thus, we are of the view that on the basis of the evidence of the doctor (P.W.8), the P.M. report finding vidde Ext.4 and the inquest report (Ext.5), the learned trial Court hass rightly arrived at the concllusion that the prosecution has successfully established that the deceased died a homicidal death.

Absence of direct evidence:

The informant (P.W.1) has mentioned in thee F.I.R. that he came to knoow from P.W.3 that the appellant as well as the co-accused assaaulted the deceased by means of a ‘Budia’ during course of a quarrel, however the evidence of P.W.1 is silent that any such information has been received by him from P.W.3. Moreover, P.W.3 has stated that she was not present when the occurrence took place during Makar festival and that she could not say about the occurrence. The prosecutiion has declared P.W.3 as hostile. Therefore, there is no direct evidence on record for the purpose of finding the complicity of the appellant in the crimme in question.

Circumstantial evidence:

Law is well settled that when a case rests uppon the circumstantial evidence, such evidence must satisfy the foollowing tests: (i) the circummstances from which an inference of guilt is sought to be drawn, must be cogently and firmly establishhed; (ii) those circumstances should be of a definite tendency unerringly pointing towards guuilt of the accused; (iii) the circumsstances, taken cumulatively, should form a chain so complete thaat there is no escape fromm the conclusion that within all human probability the crime was committed by the accused annd none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accussed but should be inconsistent with his innocence. In a case based on circumstantial evidence, there is always a danger thaat conjecture or suspicion may take thhe place of legal proof. The Court has to be watchful and ensuure that suspicion, howsoeveer strong, should not be allowed to take the place of proof. A mooral opinion howsoever strong or genuine and suspicion, howsoeveer grave, cannot substitute a legal proof. A very careful, cautiouus and meticulous appreciation of eviddence is necessary when thee case is based on circumstantial evvidence. The prosecution musst elevate its case from the realm of ‘may be true’ to the plane of ‘must be true’.

P.W.1 annd P.W.2 are the post occurrence witnesses and they have stateed to have come to the spot and fouund the dead body of the decceased lying with some injuries.

P.W.6 Jasoda Dalai, who is the widow of the deceased, has statedd that she did not know the accused persons. However, she stated that the occurrence took place duringg Makar festival and she had been to the forest and while she wass sitting on the verandah of her house, at that point of time, onne Joda and Rabi arrived neear her and threatened her to kill and also stated that they had killed her husband (deceased). She however stated that she saw the deceased lying in the thrashing floor of Baidhar Ho (P.W.5).

In view of the evidence of P.W.6, it does not appear that the persons, who made extra judicial confession beffore her are the appellant and the co-accused Sitaram Ho inasmmuch as she has stated that she did know the accused personns. The prosecution has alsso not brought on record that those two persons, who made extrajudicial confession before her are the accused persons staanding in the dock. Therefore, we aree of the view that it cannot be said that the appellant made any extra judicial confession before P.W.6 and thus the learned triaal Court committed error in placing reliance on the evidence of P.W.6 and holding her to be a witness to the extra judicial confession of the appellant before her.

Recovery of Axe (MM.O.I):

The eviddence of the I.O. (P.W.9) only indicattes that after arrest of the appellant, he made a disclosure staatement which was recorded as per Ext.7. The I.O. further stated that one axe (M.O.I) was seized by him. The evidence is commpletely silent to the effect that after giving disclosure statemeent, the appellant led the poolice party and the witnesses to the place of concealment and that at the instance of the appellant, the axe was seized. No inddependent witness has been examiined to substantiate the seiizure of axe (M.O.I) at the instance of the appellant. Therefore, the seizure of M.O.I does not clearlly come within the purview of section 27 of the Evidence Act.

Even thhough the Chemical Examination Report (Ext.10) indicates that the axe which was seized as per the seizure list Ext.2/1 was found to be containing human blood of Group ‘A’, but nothhing has been established to connect this particular weapon with the offence in question and moreover, it has not been provedd that the deceased was having bloodd group of ‘A’. Therefore, on the basis of recovery of axe (M.O.I) as per the seizure list Ext.2/1 and C.E. Report finding, it cannot be said that the prosecution has proved the charge under section 302 of IPC against the appeellant.

Conclusion:

In view of the foregoing discussions, we are of the humble view that the learned trial Court was not justtified in relying on the so-caalled extra judicial confession stated to have been made before P.W.6 as well as recovery of M.O.I for convicting the appeellant under section 302 of IPC. Thus, the conviction of the apppellant under section 302 of IPC is nott legally sustainable in the eyyes of law.

In the result, the Criminal Appeal is alloweed. The impugned judgmentt and order of conviction of the apppellant under section 302 of the IPC and the sentence passed thereunder is hereby set aside and the appellant is acquitted of the charge under section 302 of IPC.

The appeellant is on bail by virtue of the orderr of this Court. He is dischaarged from the liability of bail bondds. The personal bonds and the surety bonds stand cancelled.