Purna Chandra Das Adhikari and Others vs State of Orissa

Sujit Barman Roy,C. J.

In this appeal the four Appellants namely, Purna Chandra Das Adhikari, Maheswar Andia, Kirtan Pradhan and Ramanath Pradhan have challenged the judgment dated 15.1.1998 passed by the learned Sessions Judge, Balasore-Bhadrak, Balasore in Sessions Trial No. 34 of 1997 convicting all the four Appellants u/s 302/34 Indian Penal Code and sentencing them to suffer imprisonment for life.

Prosecution case in brief is that P.W.13, Shankarsan Mohanty is the brother of the deceased Ramchandra Mohanty. On 26.9.1995 at about 7.30 P.M. the said P.W 13 Shankarsan Mohanty lodged the written complaint before the Officer-in-charge of Baliapal Police Station alleging,inter alia, that on that very day at about 7.30 P.M when he was returning from Simulia market, Appellant No. 4 Ramnath Pradhan crossed him while focussing a torch light on him. After proceeding to some distance near the high school at Mahisamunda Chhak P.W.13 heard a groaning sound from the back side. On hearing such noise, when he focussed his torch light, he could see six to seven persons were there and a cycle was lying. With the torch light he could recognise three of them, namely, Appellant No. 2 Maheswar Andia, Appellant No. 1 Purna Chandra Das Adhikari and Appellant No. 4 Ramanath Pradhan. However, out of fear he ran towards Nehru Library and informed some boys who were sitting there at that time. Thereafter, P.W. 13 along with the boys returned to the place of occurrence and found a person was lying dead. He could recognise him to be his elder brother Ramchandra Mohanty (since deceased). On seeing him dead, P.W.13 fell unconscious. On regaining his sense, P.W. 13 saw many people present and his family members were also informed. On the basis of this written complaint, an FIR u/s 302/34, Indian Penal Code was registered against three Appellants and unknown others. On conclusion of usual investigation, Police submitted charge sheet against the four Appellants u/s 302/34, Indian Penal Code. In course of time, the case was committed to the Court of Session where the trial was held. On perusal of the materials on record, the trial court framed charge u/s 302/34, Indian Penal Code to which the Appellants pleaded not guilty. In course of trial, in all 15 P. Ws. were examined on behalf of the prosecution. None was examined on behalf of the Appellants in their defence. In course of trial, the defence of the Appellants was one of simple denial of the prosecution case as alleged.

On completion of the trial,learned trial court convicted and sentenced the Appellants as already stated above.

During the hearing, learned Counsel for the Appellants as well as learned Additional Government Advocate for the State have taken us through the evidence on record.

We have already given the gist of the FIR as lodged by P.W.13 in this judgment.P.W.13 more or less reiterated the same story during his evidence before the trial Court. Therefore, for the sake of brevity, we do not like to repeat as to what P.W.13 stated in his evidence before the trial court.However, one aspect of the case is required to be mentioned here which has been highlighted by the learned Counsel for the Appellants in course of his argument. From the FIR, it appears that though the FIR in this case was registered on 26.9.1995 in the early evening at about 7.30 P.M, yet, it was received by the learned Sub-Divisional Judicial Magistrate on 9.10.1995. Therefore, there was a delay of about 14/15 days in sending the FIR to the learned Sub-Divisional Judicial Magistrate. Relying upon this fact and some other circumstances of the case, learned Counsel for the Appellants emphatically contended that the FIR was never registered in time and on the date when it purports to have been registered.According to him, the assailants were not known and therefore the informant took about 14/15 days time to lodge the FIR.

After going through the evidence on record, we find that there are only three eye witnesses examined on behalf of the prosecution in this case.P.W.1, Rabindra Mukhi is one such eye witness. For reasons stated above, we do not like to discuss his evidence in detail. Learned trial court also disbelieved this witness. This witness was never examined by the investigating officer.P.W.15 in his evidence admitted that in course of investigation, he never examined or recorded the statement of P.W.1. He has also admitted in his evidence that he never made any prayer before the concerned Magistrate to record the statement of this witness u/s 164, Code of Criminal Procedure However, it appears from the record and the evidence that P.W.1. on his own made a prayer before the concerned Magistrate to record his statement u/s 164, Code of Criminal Procedure and accordingly the statement was recorded by the Magistrate.It is further seen that almost a year after the occurrence, this witness made a prayer before the concerned Magistrate to record his statement u/s 164, Code of Criminal Procedure and accordingly, learned Magistrate recorded his statement. For these reasons, learned trial court failed to place any reliance upon the testimony of this witness. In these circumstances, we are constrained to observe that the learned trial court rightly disbelieved P.W.1, Rabindra Mukhi.

The two important witnesses are P. Ws.3 and 5. P.W.3 Surendra Jena in his evidence before the trial court stated that on the date of occurrence when he was returning home from the house of his daughter''s father-in-law on a cycle and a torch light with him, one Bangara Mukhi met him near Khaparapada Chhak and requested P.W.3 to carry him on his bicycle. But the cycle of P.W.3 was not in a good condition, so P.W.3 proposed to proceed on foot. Accordingly they started on foot. After walking to some distance from Khaparapada Chhak when P.W.3 and other man were proceeding to village Nuasahi, they heard sound of foot steps. On hearing such sound, when he focussed his torch light, he could see the Appellant No. 2, Maheswar Andia was dealing blows with a knife on the neck of the deceased. Appellant No. 3 Kirtan Pradhan was also giving knife blows on the deceased. Appellant No. 4, Ramnath Pradhan was standing with a blood-stained Kati there. Appellant No. 1, Purna Chandra Das Adhikari also dealt some blows with his both hands on the deceased. On seeing this incident, P.W.3 raised an alarm. He could see this incident by focussing his torch light on the spot. However, the Appellants fled away. After few minutes some persons came to the spot from the opposite side. P.W.13, Shankarsan Mohanty also came to the spot along with some others. On seeing the deceased lying dead, he fell down on the ground. This statement was made by this witness during his examination in chief. Without going into details as to what has transpired during his cross examination, it may be noted here that it appears from the evidence of P.W.15 (Investigating Officer) that P.W. 3, Surendra Jena was examined by the Investigating Officer on 30.10.1995. Therefore, his statement was recorded almost more than a month after the occurrence. It is now claimed by P.W.13, Shankarsan Mohanty that when he came to the scene of occurrence, he could see P.W. 3. It further appears from the statement made by this witness during his cross examination that police visited their village, in the next morning after the occurrence. He admits that he did not volunteer any statement to the police when police came to the village in the very next morning. In these circumstances, it is no longer necessary to elaborate his evidence further. It is indeed doubtful as to whether he saw the occurrence as claimed by him. It is most unnatural behaviour on the part of P.W. 3 to have not disclosed about the incident he had seen to the police when the police arrived in the village in the very next morning. His statement was recorded more than a month after the occurrence. In these circumstances, the testimony of this witness does not inspire our confidence and therefore we cannot accept his version without entertaining serious doubt as to its veracity.

The other important eye witness of the case examined on behalf of the prosecution is P.W. 5, Nilakantha Mukhi. The evidence of P.W. 5 is more or less identical to the evidence of P.W.3. The evidence of P.W. 5 also suffers from identical infirmities. The reasons for which we disbelieved the evidence of P.W. 3 equally apply to the testimony of Nilakantha Mukhi, P.W. 5 and accordingly, we are unable to place any reliance whatsoever on the testimony of this witness.

The aforesaid is the only evidence on record. Apart from the aforesaid, there is no further evidence on record. In the circumstances, we are unable to sustain the conviction of the Appellants.

Accordingly, we allow the appeal and set aside the impugned judgment. The Appellants are directed to be set at liberty forthwith.