Sadasiva Gouda Vs State Of Orissa

D.Dash, J

The Appellant, by filing this Appeal from inside the Jail, has challenged the judgment of conviction and order of sentence dated 16.03.2013, passed by the learned Sessions Judge, Nabarangpur, in Criminal Trial No.93 of 2011, arising out of G.R Case No.532 of 2011, corresponding to Papadahandi P.S. Case No.122(7) of 2011 of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Nabarangpur.

The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of Indian Penal Code, 1860 (in short, ‘the IPC’) and 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 two years for the offence under section 302 of the IPC.

Prosecution Case:-

On 29.08.2011, around 6 am, one Daimati Gouda had been to mango tope of their village Badakumuli for answering the call of nature. It is stated that accused at that point of time inflicted successive knife blows on her person causing bleeding injuries. The Deceased thereafter fell down and lost her sense. The son of Daimati, namely, Tirtha Gouda (Informant-P.W.5) got the information from one Sukru about the said incident. He then rushed to the place with other villagers when Daimati in that injured condition was being shifted to their house, he breathed her last. Sukru (Informant-P.W.5) then lodged a written report with the Inspector-in-charge (IIC) of Papadahandi Police Station (P.W.15). The above report being received, the IIC (P.W.15) treated it as FIR and after registration of the case, took up the investigation.

In course of investigation, the I.O (P.W.15) examined the informant, visited the spot and prepared the spot map (Ext.8). He conducted inquest over the dead body of the deceased and prepared the report to that effect (Ext.1). He examined the witnesses. He seized one Rasadhala from the spot under seizure list vide Ext.2. He also seized the sample earth and blood stained earth from the spot and prepared the report under seizure list vide Ext.4/1. The dead body of the deceased was sent to District Headquarter Hospital, Nabarangpur for post mortem examination by issuing necessary requisition. He then seized the wearing apparels of the deceased and one command certificate under seizure list vide Ext.6. On 28.09.2011, the I.O arrested the accused and it was ascertained from the accused that he had thrown the weapon of offence in Chikili river. The I.O sent the accused for medical examination and for collection of blood sample and nail clippings. The accused was forwarded in custody to Court. He also seized the wearin apparels of the accused. On 15.11.2011, the seized incriminating articles were sent for chemical examination to RFSL, Berhampur through Court.

On completion of investigation, Final Form was submitted by the I.O (P.W.15) placing the accused to face the Trial for commission of offence under section 302 of the IPC.

Learned SDJM, Nabarangpur, having received the Final Form as above, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against the accused framing the charge for the said offence.

In the Trial, prosecution in total has examined fifteen (15) witnesses. Out of whom, the informant, who had lodged the written report which was treated as FIR vide Ext.3 and is the son of the deceased, has been examined as P.W.5. P.W.1, P.W.2, P.W.3 and P.W.7 are the post occurrence witnesses. P.W.8 to P.W.10 are the witnesses to the inquest. P.W.6, P.W.11 and P.W.13 are the eye witnesses to the occurrence. The Doctor, who had conducted the Post Mortem Examination over the dead body of the deceased, has come to the witness box as P.W.14 whereas the Investigating Officer (I.O) is P.W.15.

Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.12. Out of those, the important are the FIR, Ext.3, Inquest Report, Ext.1, Seizure List, Ext.2, Post Mortem Report, Ext.7, Spot Map is Ext.8 and the Chemical Examination Report is Ext.12.

The plea of the accused is that of complete denial and false implication. However, the accused has not tendered any evidence in support of defence.

Learned counsel for the Appellant (accused) submitted that the prosecution having placed four witnesses i.e. P.W.6, 11, 12 and 13 in the Trial as the eye witnesses, the Trial Court having relied upon their evidence has held the accused guilty of committing the murder of Daimati Gouda. He submitted that a careful scrutiny of the evidence of all the above witnesses would reveal that the incident having taken place on 29.08.2011, long thereafter during Trial, all of them have improved their version in placing themselves in the position of the eye witnesses. Inviting our attention to the depositions of all these witnesses and simultaneously, to the deposition of the Investigating Officer (I.O) (P.W.15), he pointed out that none of them having ever stated to have seen the incident, the role played and the act done by the accused, which has the nexus in leading to the death of the Daimati, they for the first time, have so deposed during Trial. He, therefore, submitted that the evidence of all these witnesses cannot be said to be trustworthy when nothing is shown and also no such imputation is being made against the Investigating agency. Placing the relevant paragraph-10 of the Judgment of the Trial Court, he submitted that the reasons assigned by the Trial Court in saying that the evidence of P.W.6, P.W.11, P.W.12 & P.W.13 are not at all trust worthy and not at all tenable.

Learned counsel for the Respondent-State submitted all in favour of the finding of guilt against the accused as has been returned by the Trial Court. According to him, merely because the witnesses had omitted to state something relating to the occurrence during their examination in course of investigation, the same is no ground to wholly discard their version tendered in the Trial. He pointed out that P.W.6, P.W.11, P.W.12 & P.W.13 what have stated during Trial, which they had not so stated during investigation are not that material to be viewed at this stage in saying that the same place those witnesses in the category of unreliable witnesses.

Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.15 and have perused the documents admitted in evidence and marked Ext.1 to Ext.12.

It appears from the evidence of the Doctor (P.W.14), who had conducted autopsy over the dead body of the deceased that he had noticed two punctured wounds over the back at the level of T-12 and L-1 vertibra and upper border of scapula towards left to mid line as also three other bruises. P.W.14 has also noted the internal injuries in his report (Ext.7). As per his evidence, the death was on account of the punctured wound of heart and spleen causing massive haemorrhage and shock. It is also stated that said injuries were possible by knife. The evidence as above has remained unchallenged. In addition to that, we have the evidence of the I.O (P.W.15), who had held inquest over the dead body of the deceased and noted all such injuries in his own language in the inquest report (Ext.1). The other witnesses have also seen such injuries on the deceased which they have stated. With all such evidence on record, we are left with no option but to affirm the finding of the Trial Court that Daimati met a homicidal death.

Now, coming to judge the sustainability of the finding of the Trial Court on the complicity of the accused in committing the murder of Daimati that P.W.6, who is a co-villager of the accused as well as the deceased has stated that during the morning hour on the relevant day, when Daimati (deceased) was going to attend the call of nature and crossing the mango tope holding a Rasa Dhala, he was also proceeding in a direction to attend the call of nature. His evidence is that the accused came from backside of Daimati and inflicted stab injuries by means of knife on her back and right side chest causing bleeding injuries which lead to her fall. He has further stated that accused then went away on his bi-cycle towards Maltiguda. This is his evidence that he with Radha (P.W.11) and Padma administered water to Daimati and shifted Daimati in an injured condition to her house, where she died. During cross-examination, the defence has drawn the attention of the witness to his previous statement before the Investigating Officer to the effect that he had not stated to have seen the accused dealing the knife blows on Daimati causing bleeding injury and also to have stated before the I.O during investigation that he was proceeding ahead of Daimati at that time. This is found to have been proved through the I.O (P.W.15), who has stated that P.W.6 had not stated before him to have seen the accused inflicting knife blows upon Daimati. Thus, it appears that this P.W.6 has improved her version during trial and the improvement to the extent as indicated above is certainly on material aspect of the case. This P.W.6 is also not providing any such explanation to fill in the gap. Therefore, according to us, the evidence of P.W.6 on the above material feature of the case, particularly relating to the role of the accused and the act done, do not pass through the test of reliability.

The next witness is P.W.11, who has stated that on the relevant date and time, when he was returning from the Tota of the village after attending the call of nature, Daimati was proceeding towards Tota and he had seen accused assaulting by means of knife piercing on her chest and back causing bleeding injuries leading to her fall. His evidence is that except she and Padma (P.W.12), none else had seen the occurrence which again tells upon the veracity of the evidence of P.W.6. More particularly, this witness is also found to have not stated during investigation that when Daimati was going towards Tota for attending call of nature, accused assaulted her by means of knife on her chest and back. It has been proved through P.W.15, which he in clear terms has stated that P.W.11 had not stated before him to have seen accused assaulting Daimati by means of knife on her chest and back. So again this witness is found to have made the improvement more importantly relating to the role played and act done by the accused in the said incident which he having not stated earlier is for the first time stating during Trial. Therefore, in our view, the evidence of this witness also fails in the test of reliability. The evidence of other two witnesses i.e.

P.W.12 and P.W.13 also run to the effect that they had seen accused inflicting blows upon Daimati by Kati. P.W.13 has further stated that Daimati, when was running away from the side, accused holding a knife, chased her and gave the blows on her back. The manner of happenings in the incident as stated by P.W.13 greatly differs in the evidence of P.W.6, P.W.11 and P.W.12. That apart, these two witnesses have also made the improvement during the trial as to the involvement of the accused in the crime especially attributing him to be the author of the injuries upon the deceased as would be evident when the evidence of the I.O (P.W.15) is looked at, wherein he has stated that such was not the statement of these two witnesses before him during their examination in course of investigation. Thus we find the evidence of all these four witnesses to be of the same category failing to pass through the test of reliability and as such not acceptable to form the finding of guilt as against the accused. The view taken by the Trial Court that merely a portion of the testimony of these witnesses is not reliable, it would not be proper to brush aside their entire testimony, according to us, in view of the discussion made, cannot be sustained.

In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 16.03.2013 passed by the learned Sessions Judge, Nabarangpur, in Criminal Trial No.93 of 2011 are hereby set aside.

The Appellant (accused) be set at liberty forthwith, if his detention is not warranted in connection with any other case.

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