Prafulla @ Mangulu Pradhan vs State of Orissa

B. Panigrahi, J.—The appellant Prafulla @ Mangulu Pradhan has called in question the validity, legality and propriety of the order of his conviction u/s 302 of the Indian Penal Code (for short, "IPC") for committing the murder of Nabaghan Bisoi and sentence of imprisonment for life passed by the Second Additional Sessions Judge, Berhampur, in S.C. No. 23 of 2001 (S.C. No. 85 of 2001-GDC).

The skeletal picture of the prosecution story, as revealed during trial, is that on 18.8.2000 at about 2.00 A.M., the de facto complainant Khali Bisoi (P.W. 2) of village Banaraghunathpur lodged a report at Kabisurya Nagar Police-station vide Ext. 22 stating that his son Nabaghan Bisoi (deceased) was working at Surat along with other villagers and relatives. All of them decided to construct a Gram Devati Temple in the village by collecting subscriptions out of their income. Somehow or other, a dispute arose amongst them at Surat, which could be solved there. Notwithstanding such settlement, there was ill-feeling brewing between the deceased on one hand and the other villagers on the other, for which the deceased along with his family members came back to his village. Later on, the appellant and others also came back. As there was bitter feeling among themselves on the collection of subscription, the other group were looking for an opportunity to attack the deceased Nabaghan. On 17.8.2000 at about 6.00 P.M., while the informant was sitting on the village Mandap, his son Nabaghan passed through the said Mandap to attend the call of nature. At that juncture, the appellant with his associates, namely, Gandhia Pradhan, Bhogi Pradhan, Trinath Pradhan, Jogi Pradhan, Sankar Pradhan, Narasingh Pradhan and Dukhi Pradhan, being armed with deadly weapons, such as, lathies, crowbar, kati, stone, etc., formed an unlawful assembly and proceeded towards the place where the deceased Nabaghan had gone to answer the call of nature. It is alleged that the appellant and his associates assaulted the, deceased causing severe bleeding injuries atf over his body. They also assaulted him by stone. The informant and his daughter-in-law (wife of the deceased) tried to rescue the deceased, but the accused persons assaulted them too causing grievous hurt. The deceased was shifted to his house where he was found dead. The de facto complainant informed about the death of the deceased to his relatives and reported the matter at Kabisuryanagar police-station. On the basis of such report, a case against the appellant and his associates was registered under Sections 147/148/323/325/302/149, IPC and the O.I.C. of Kabisuryanagar P.S. (P.W. 11) sprang into action. In course of investigation, he visited the spot, recorded the statement of witnesses, seized the blood stained earth and sample earth, held inquest over the dead body and sent the same for post-mortem examination, seized the blood stained wearing apparels of the informant and arrested the appellant and the other accused persons (since acquitted). The appellant while in police custody gave recovery of a ''kati'', which was seized u/s 27 of the Evidence Act. A crowbar was also seized from accused Bhogi Pradhan u/s 27 of the Evidence Act. After receipt of the postmortem report, the I.O. seized the wearing apparels of the deceased as well as the accused persons and also collected the nail clippings of the accused persons. On completion of investigation, charge-sheet was submitted against the appellant and the other accused before the learned Judicial Magistrate First Class, Kodala, who committed them to the Court of Session to face trial. It may be stated here that by order of the learned Magistrate, the seized articles were sent for chemical examination and Serologist''s report.

The defence plea was one of complete denial of the occurrence and false implication.

To prove its case, prosecution examined eleven witnesses. P.Ws. 1 and 2 are the wife and father respectively of the deceased. P.W. 2 is also the informant. P.W. 3 is an eye-witness to the occurrence. P.W. 4 is an eye witness and also a witness to the seizure. P.W. 5 is the Constable who had guarded the dead body and accompanied the dead body to the P.H.C. for post-mortem examination. P.W. 6 is the Constable to the seizure of the wearing apparels. P.W. 7 is the doctor who examined the injured (P.Ws. 1 and 2). P.W. 8 is the doctor who conducted post-mortem examination over the dead body. P.W. 9 is a deed-writer. P.W. 10 is an eyewitness to the occurrence. P.W. 11 is the investigating Officer.

All the eye-witness including the father and the wife of the deceased did not support the prosecution and were declared hostile. Though P.W. 4 was shown as a witness to the seizure made u/s 27 of the Evidence Act, he also did not support the prosecution. P.W. 8 conducted post-mortem examination over the dead body and submitted his report vide Ext. 20 (marked on admission). He also examined the weapon of offence and submitted his report. The trial Court, on the basis of evidence available on record, acquitted all other accused persons, but convicted the appellant u/s 302, IPC, even though there was no separate charge framed thereunder.

In order to prove the culpability of the appellant, the prosecution has relied upon the evidence of the Investigating Officer (P.W. 11) with regard to the seizure of the knife from the appellant u/s 27 of the Act and the report of the Serologist who has opined that the knife alleged to have been recovered from the appellant contained human blood of ''O'' origin, which tallied with the blood group of the deceased, The trial Court has accepted the same and convicted the appellant u/s 302, IPC.

In order to determine the validity of the judgment of the lower Court we have been taken through the evidence of all the witnesses. Unfortunately, all the witnesses, except the officials have turned hostile to the prosecution. Though P.W. 4 was regarded as an eye-witness to the occurrence as well as a witness to the seizure of the Kati u/s 27 of the Evidence Act, he did not support the prosecution case in Court. Even he stoutly denied the factum of seizure of the knife from the possession of the appellant. During cross-examination by the prosecution, he has stated :

"I have not seen when police arrested the accused persons."

He has also stated :

"It is not a fact that I have stated to the police that accd. Mangulu Pradhan alias Prafulla Pradhan while was in police custody confessed his guilt and had concealed the weapon of offence ''kati'' on the backside thatched roof...."

Thus, the prosecution has not been able to bring out any incriminating circumstance against the appellant from P.W. 4. Now, turning to the evidence of P.W. 11, it is found that he stated in Court that on 18.8.2000 at 7.00 P.M., the appellant, while in police custody, made a statement u/s 27 of the Evidence Act and led the police as well as witnesses to his house and gave recovery of the weapon of offence, i.e., ''kati'' from the backside thatch of his house. In cross-examination, the defence put a suggestion that the signature of P.W. 4 and that of the appellant were obtained on a blank paper, which was utilised as the seizure list in respect of the weapon of offence, to which has denied. In this connection, it is apposite to mention that though every official work has to be presumed to be true, but it would not be proper to attach credibility to the same without it being corroborated by other evidence. Since P.W. 4 has turned hostile, it would be risky to place full reliance on the testimony of P.W. 11 in the facts situation.

The post-mortem report has been marked as Ext. 20 by applying Section 293 of the Code of Criminal Procedure. It has unfortunately escaped the notice of the trial Court as well as the learned counsel conducting the case on behalf of the prosecution that such a document could not have been marked as an exhibit by applying the aforesaid provision without properly proving the document itself. Even if the defence has admitted the document, since it has not been properly proved by the prosecution, it shall have little evidentiary value, particularly when the doctor (P.W. 8) has been examined in Court and no steps have been taken by the prosecution to place the report before him. The defence has also shirked its duty to bring it to the notice of the trial Court that such a document could not have been exhibited without formal proof. It may be stated here that the documents enumerated u/s 293(4), Cr.P.C. can only be admitted in evidence without formal proof. Those documents are, reports of the Chemical Examiner or Assistant Chemical Examiner to Government, Chief Inspector of Explosives, Director of Finger Print Expert, Director of Haffkeine Institute, Bombay, Director, Deputy Director or Assistant Director of Central Forensic Laboratory or State Forensic Science Laboratory, and Serologist to the Government. Since post-mortem report does not come within those exceptions, steps should have been taken by the prosecution to prove the same through the doctor who conducted , post-mortem examination.

If recovery of the weapon of offence is excluded from consideration, we are left with the report of the Serologist. But, as discussed above, the prosecution having failed to prove the seizure of the weapon of offence from the possession of the appellant, even assuming that the Serologist''s report is there, it cannot be taken to be an incriminating material against the appellant.

From the prosecution story as revealed from the FIR, the appellant along with his companions by forming an unlawful assembly with the common object of committing the murder of Nabaghan Bisoi proceeded to the place of occurrence and assaulted him brutally indiscriminately. From the doctor''s evidence it transpires that injuries 1 to 10 can be possible by ''kati'' as well as crowbar, whereas injuries 11 to 14 would be possible by lathi and stone. There is no evidence as to who gave the fatal blow as a result of which Nabaghan died. As all accused persons have been acquitted of the charge u/s 302/149, IPC, it is not understood how the trial Court convicted the appellant alone u/s 302, IPC without any separate charge framed thereunder. Accordingly, we are unable to agree with the observation of the learned Second Additional Sessions Judge that the appellant is guilty of the offence of committing the murder of Nabaghan Bisoi, punishable u/s 302, IPC.

In the result, the appeal succeeds and is hereby allowed. The order of conviction and sentence passed against the appellant is set aside. He be released from jail custody and set at liberty forthwith.

P.K. Misra, J.

I agree.