Lambu Besra Vs State Of Orissa

D.Dash, J

The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of 0conviction and order of sentence dated 22nd April, 2013 passed by the learned Sessions Judge, Balasore in Sessions Trial No.341 of 2010 arising out of C.T. No.466 of 2010 corresponding to Jaleswar P.S. Case No.181 of 2010 in the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Jaleswar.

The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for three (3) months for commission of the said offence.

PROSECUTION CASE:-

On 16.08.2010 around 5.00 p.m., the Gramarakhi under Jaleswar Police Station (P.S.), namely, Karunakar Jena (Informant-P.W.2) was proceeding towards the Office of Service Cooperative. At that time, he found the accused, who is a resident of Village-Deulabad Nabharia Adivasi Sahi, coming from the Hospital with his wife, namely, Basanti Besra, who was then lying on a trolley rickshaw. The Informant (P.W.2) when questioned the accused about the said condition of his wife, it is stated that the accused disclosed before him that on that day, around 3.00 p.m in course of a quarrel with his wife, he had assaulted on her head and face, which made her senseless. The accused took her to the Hospital where she was declared dead.

The written report to the above effect being presented  before the Inspector-in-Charge of Jaleswar P.S., he treated the same as F.I.R. (Ext.3) and upon registration of the case, directed the Sub-Inspector (S.I.) of Police (P.W.10) to take up the investigation.

The Investigating Officer (I.O.-P.W.10), in course of the investigation, examined the informant (P.W.2) and other witnesses and recorded their statements under section 161 of the Cr.P.C. The I.O. (P.W.10), having visited the spot, prepared the spot map (Ext.6). He too held the inquest over the dead body in presence of the witnesses and prepared the report (Ext.4). He (P.W.10) sent the dead body of Padma for post mortem examination by issuing necessary requisition. The I.O. (P.W.10) seized the sample earth, blood stained earth under seizure list (Ext.7). The wearing apparels of the accused were seized under seizure list (Ext.9). It was stated that the accused, while in police custody, gave the statement to have concealed the weapon and stated that if he would be taken to the place, he would give recovery of the same. Pursuant to the statement (Ext.10), the accused is said to have led the I.O. (P.W.10) and other witnesses in giving recovery of the weapon, which was seized under seizure list (Ext.11). 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 the offence under section 302 of the IPC.

Learned J.M.F.C., Jaleswar, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against the accused.

The prosecution, in support of its case, has examined in total eleven (11) witnesses during Trial. Out of them, the informant is P.W.2. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.1. P.W.3 is a co-villager and a witness to the inquest. P.W.4 is the Doctor, who had first medically examined the deceased and declared her dead. P.W.5 is the Pharmacist, who advised the accused to get his wife treated by a Doctor. P.W.6 is also a co-villager and a rickshaw puller. P.W.7 is the sister-in-law of the accused. P.W.8 is the police constable whereas P.W.9 is a witness to the seizure of the command certificate and wearing apparels of the deceased. P.W.10 is the I.O. of the case who had conducted major part of investigation and the P.W.11 is the second I.O., who took charge of investigation from P.W.10 and submitted the Final Form.

Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 12. Out of those, the important are, the FIR (Ext.3), the inquest report (Ext.4), the post mortem report (Ext.1) and the spot map (Ext.6).

The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of his defence.

Mr.Sk. Zafarulla, learned counsel for the Appellant (accused) submitted that there is absolutely no direct evidence to establish the authorship of the injuries on the head of the deceased in attributing the same upon the accused. He further submitted that the evidence as to the accused having led the police and other witnesses to the place in giving the recovery of the lathi is not believable. He, therefore, submitted that simply basing on the evidence of P.W.2, who has stated to have seen the accused taking his wife in a trolley rickshaw in a senseless condition to the Hospital, the Trial Court has erred in holding the accused of guilty of committing the murder of his wife as no such explanation as to how his wife came to that condition is forthcoming. He submitted that the foundational facts for the provisions of section 106 of the Evidence Act to come into play being not proved beyond reasonable doubt, the Trial Court ought  not  to  have  convicted  the  accused.  He,  therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside.

Mrs.S.Patnaik, learned Additional Government Advocate, while supporting the finding of guilt against the accused as has been returned by the Trial court and having invited the attention of this Court to the evidence of P.W.2 as also the statement of the accused recorded under section 313 Cr.P.C., submitted that the Trial Court did commit no error in recording the conviction when the accused, who was having the special knowledge as to the happenings in the incident leading to that condition of his wife when has not come forward to provide any sort of explanation.

Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.11) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.12.

It is the evidence of P.W.1, the Doctor, who had conducted the post mortem examination over the dead body of the deceased that during post mortem examination, he had noticed four external injuries on the dead body of the deceased and those were large bruise on right side of face, incised wound on forehead, incised wound on lower chin and fracture of skull bone of frontal region with laceration of brain. On dissection, he had detected laceration of the brain and laceration of maninges and fracture of the skull with hematoma and haemorrhage. His evidence is that the death of the deceased was on account of the injuries on the head. His further evidence is that the death was homicidal in nature. The finding of the Doctor (P.W.1) has remained unchallenged. With such evidence on record, we find the evidence of the Informant (P.W.2), who had seen the deceased being taken in the trolly in a senseless condition and the I.O., who had held inquest over the dead body of the deceased, has also noted the head injury in his inquest report (Ext.4).

With such overwhelming evidence on record, when we conclude that the death of the deceased was homicidal in nature.

Now the question arises as to who is the author of such head injuries, which have led to the death of the deceased.

There is no direct evidence on the above score. It has been stated by P.W.2, who had lodged the FIR (Ext.3) that he had seen the accused bringing the dead body of his wife in a trolley rickshaw and then he was returning from Nampo Government Hospital. In the FIR (Ext.3), although it has been stated by him that the accused, in course of a quarrel, had confessed before him to have assaulted his wife (deceased) by means of a lathi on her head, that he has not stated during trial. So, the FIR version cannot be taken to be the substantive piece of evidence to prove the extra judicial confession of the accused in assaulting the deceased on her head.

The evidence of P.W.4, the other Doctor is not directly on the point when he has stated to have inquired from the local persons.

P.W.5, a retired pharmacist, has stated that on 16.8.2010 around 5.00 p.m., the accused brought his wife in a trolley rickshaw and he instructed the accused to take her to a Doctor. His further evidence is that on being asked, the accused disclosed before him that he had assaulted his wife for which his wife became senseless. When P.W.2 has stated that around 5.00 p.m., he saw the accused returning from Hospital carrying his wife in a trolley rickshaw, P.W.5 is stating that around that time, the accused had been to him and he is not stating as to thereafter where the accused went and to which place. It is also not stated by P.W.5 that if he was told by the accused as regards the happening, what action P.W.5 took thereafter. The conduct of P.W.5 in remaining silent is certainly such as to adversely view his evidence telling upon his credibility. No other witness has supported the case of the prosecution as regards the recovery of lathi at the instance of the accused while in police custody in leading the police and other witnesses to the place of keeping of the said lathi.

The I.O. (P.W.10) has stated on that score. But he does not state as to where the accused gave such statement and where the accused was arrested. It is also not stated that to which place the accused led him and others in giving recovery of that lathi. He simply states that the lathi was seized from the place of its concealment, i.e., on the roof of the thatched house of the accused being produced by him, which to us makes no sense. Thus, with the solitary evidence of P.W.2 that he had seen the accused carrying his wife (deceased) in a trolley rickshaw in a senseless condition is also not acceptable. He being the Grama Rakhi of the area, is silent as to what prompt action he took thereafter. When P.W.2 had seen the accused at 5 p.m, he had gone to report the matter at P.S. at 10.30 p.m. and that delay is not explained. Being the Gram Rakhi, he has not proceeded with the accused to the place where he carried his wife in a senseless condition which was the normal conduct expected from that P.W.2. Therefore, we are unable to place reliance on the evidence of the informant (P.W.2) even to accept that part.

All these being the evidence on record, which we have discussed, we are of the considered view that the prosecution cannot be said to have established the charge against the accused beyond reasonable doubt.

In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 22nd April, 2013 passed by the learned Sessions Judge, Balasore in Sessions Trial No.341 of 2010, are hereby set aside.

Since the accused, namely, Lambu Besra is on bail, his bail bonds shall stand discharged.

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