Santosh Sahu vs State Of Orissa

D.Dash, J

The Appellant, by filing this Appeal, from inside the jail, has called in question the judgment of conviction and order of sentence dated 29.07.2015 passed by the learned Additional Sessions Judge, Angul in C.T.(S) No.72 of 2012/52 of 2013 arising out of G.R. Case No.1663 of 2011 corresponding to Angul P.S. Case No.642 of 2011 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Angul. The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for one year.

The prosecution case, is that in the intervening night of 15/16.11.2011 at about 10.30 p.m. one Narendra (deceased) was lying in a critical condition with injuries near the cabin shop of one Dusasan of village Balasinga. Nakafudi Sahu (P.W.1) who is the father of the Narendra (deceased) was informed by his employee Pradip Mishra about the same. So, he rushed to the spot with said Pradip and found his son Narendra lying in a critical condition with bleeding injuries and the accused Santosh Sahu, who was there near the spot accompanied them to the hospital. It is stated that they shifted the injured Narendra in a police vehicle, which arrived there. In course of treatment at Angul hospital, Narendra succumbed to injury. During such treatment when Narendra had regained his sense, he had revealed that accused Santosh had struck him by bhujali and he was the author of the injuries received by him. He had also stated that accused Santosh having caused the injury had escaped from the spot hurriedly.

Nakafudi Sahu (Informant-P.W.1), the father of the deceased having lodged the information in writing with the Inspector-in-Charge (I.I.C.), Angul Police Station, the same was treated as an F.I.R. and investigation commenced.

In course of investigation, the Informant (P.W.1) was examined by the Investigating Officer ( I.O.-P.W.14) and he then examined other witnesses and held inquest over the dead body of the deceased. The dead body was also sent for post mortem examination and some incriminating articles were seized in course of investigation. The accused being arrested, his wearing apparels were also seized. All those incriminating articles were sent for chemical examination through court.

On completion of investigation, the I.O. (P.W.14) submitted the Final Form placing this accused and two others to face the trial for commission of offence under sections 302/34, I.P.C.

Learned S.D.J.M., Angul having received the Final Form as above took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions for Trial. That is how the Trial against this accused and two others commenced by framing the charge for the above offences as against them.

In the Trial, the prosecution in total has examined 14 witnesses. Out of whom, the Informant as already stated is P.W.1, who is the father of the deceased whereas P.W.2 is the brother of the deceased, who had accompanied the deceased to the hospital and P.W.4 is the mother deceased. The person who had informed P.W.1 about the fact that Narendra was lying in a critical condition with severe bleeding injuries has been examined as P.W.3. A co-villager has come to the witness box as P.W.5 when the wife of the deceased has been examined as P.W.6. The person, who had informed P.W.3 about the said fact first has been examined as P.W.8. A witness in support of the extra judicial confession said to have been made by Tankadhar @ Tinhikulia (since acquitted) has been examined as P.W.10 and he is also a witness to the recovery of the weapon at his instance pursuant to his statement. The Doctor, who had conducted the autopsy over the dead body of the deceased had come to the witness box as P.W.13 whereas the I.O. is P.W.14.

The prosecution, besides tendering the evidence through the above witnesses, has also proved several documents which are Ext.1 to 16. Out of those, the important are F.I.R. (Ext.1) and the inquest report is (Ext.2). The Post Mortem Examination Report has been admitted in evidence and marked Ext.11 whereas the Chemical Examiner’s Report is Ext.16.

The defence has tendered no evidence in support of the plea of denial.

The Trial Court on examination of evidence of P.W.13, the Doctor who had conducted the post mortem examination over the dead body of the deceased and other evidence on record has come to the conclusion that Narendra met a homicidal death. In fact, this aspect of this case was not under challenge before the Trial Court and that is also the situation before us.

It is the evidence of P.W.13 that during post mortem examination, he had noted four numbers of stitches over the right forearm. He had also noted stitches over the right forearm, fracture of left index finger, two stitches over the left middle and index finger and four stitches over the right chin. As per his evidence, he had noticed laceration of 1” x ½” x ½” x 1/6” on the lateral aspect of right knee. He has stated to have noticed two stitches in black silk present over right arm and presence of blood in peritoneal cavity with small laceration over the right lobe of the liver when the stomach was found to be containing 150 C.C. of half-digested food emitting smell of alcohol. P.W.13 has stated that the death was a consequence of haemorrhage and shock and was within twelve hours of his examination. All these, he has noted in his report (Ext.11). It has been specifically deposed by him that the death was homicidal in nature. P.W.1 who is the father of the deceased had also seen his son in an injured condition with external injuries and that has also been deposed by other witnesses. During inquest, all such injuries have been noted in the report prepared by P.W.14. With the evidence as above discussed; we are wholly in agreement with the finding of the Trial Court that the death of Narendra was homicidal in nature.

Learned counsel for the Appellant (accused) submitted that the evidence let in by the prosecution are wholly discrepant and the Trial Court has gone wrong in holding that the prosecution has proved the charges against the accused beyond reasonable doubt. He further submitted that when the Trial Court has not accepted the evidence of the prosecution witnesses with regard to the role of other two accused persons, namely, Tankadhar and Mulia, who had faced the Trial with the present accused, it committed grave error in accepting their evidence in so far as the role of the present accused is concerned. Placing the evidence of the prosecution witnesses, he submitted that when P.W.1 has stated that his son told him about the role of this accused in assaulting P.W.2 who is the brother of the deceased has stated in a differently that his brother (deceased) had told before him that all the three persons including this accused had played their respective role when this accused had dealt bhujali blows upon him. He also submitted that the evidence of P.W.3 with regard to such oral dying declaration as has been deposed by P.W.1 and 2 run in another direction that the deceased disclosed before him that accused Santosh had killed him without specifically stating anything more. He, therefore, submitted that such evidence of these prosecution witnesses ought to have been placed beyond the arena of acceptance and basis of conviction could not have been the evidence of P.W.1,2 and 3 that the deceased before them had disclosed about the happenings in the incident.

Learned counsel for the State submitted that the prosecution witnesses, i.e., P.W.1,2 and 3 when have clearly stated about the declaration made by the deceased before them implicating the present accused, who had dealt blows upon him by bhujali and as there remains no material to disbelieve their version, the Trial Court has rightly convicted this accused in holding that the prosecution through those witnesses has established the charges against the accused beyond reasonable doubt.

Keeping in view the submissions made, we have carefully read the judgment passed by the Trial Court. We have also gone through the depositions of the witnesses P.W.1 to 14 and have perused the documents admitted in evidence from the side of the prosecution and marked Ext.1 to 16.

Admittedly, the prosecution during trial has not examined any eye-witness. The case of the prosecution insofar as this accused is concerned is based upon the testimony of P.W.1,2 and 3, who have stated that the deceased before them had disclosed about the incident and as to the role of the present accused. Although the deceased was admitted in Angul hospital, no such document with regard to the said admission of the deceased has been seized in course of investigation nor proved in the Trial. The bed head ticket of the deceased has not seen the light of the day and although from that it could have been disclosed that what was the state of the health of the deceased. The prosecution has however chosen not to produce the same. So, no documentary evidence is available as to whether the deceased when was admitted in an injured condition in the hospital was in sense or not and if at any time till his death, he had regained sense for some time. It is the evidence of P.W.1, who is the father of the deceased and the Informant that in the hospital when his son regained sense, he inquired from him as to who assaulted him and then his son (deceased) had disclosed that this accused assaulted him by means of bhujali. This P.W.1 was informed about the fact that his son was lying in a critically injured condition around 10 p.m. in the night and he is not stating as to when his son regained sense and on inquiry told the said fact although it is his version that his son died in the same night. When P.W.1 states as above, P.W.2 who is the younger brother of the deceased and son of P.W.1 is stating that when he with his father found Narendra to have regained sense, his father (P.W.1), having asked Narendra, he told that accused Mulia and Tankadhar caught hold of him and this accused Santu @ Santosh Sahu dealt bhujali blows on different parts of his body. P.W.1 is totally silent about the declaration made by Narendra as regards the role of accused Mulia and Tankadhar. So, there remains great amount of variation with regard to the exact disclosure made by the injured in the evidence of P.W.1 and 2. When we approached the evidence of P.W.3, who is the person who had informed P.W.1 that Narendra was lying in a critically injured condition, he is not stating that Narendra was asked by P.W.1 as to how he sustained the injuries. He has simply stated that on being asked Narendra told them that this accused had killed him. He is not stating that Narendra was told that the accused had given bhujali blows on him nor anything with regard to the role of other two as stated by P.W.2.

The Trial Court has disbelieved the prosecution version in so far as the other two persons are concerned and has acquitted them of the charges whereas has convicted this accused.

The evidence of P.W.1,2 and 3 in our considered view when substantially differ from one another on material particulars and thus discrepant especially with regard to the important aspect of full disclosure said to have been made by the deceased, a doubt arises in mind as to whether the deceased had at all regained the sense at any time after he was admitted in the hospital till he died. The Doctor, who had treated the deceased nor any of the other staff of the hospital has been examined from the side of the prosecution to state as to if the deceased had at any point of time regained the sense. With such evidence on record, we are of the considered view that the Trial Court’s finding that the accused is guilty of commission of offence under section 302, I.P.C. in intentionally causing the death of Narendra is not the outcome of just and proper appreciation of evidence.

Therefore, we are constrained to conclude that the prosecution has failed to establish the charge against this accused. Accordingly, the judgment of conviction and order of sentence holding the accused guilty for commission of offence under sections 302, I.P.C. cannot be sustained.

In the result, the Appeal stands allowed. The judgment of conviction and the order of sentence dated 29.07.2015 passed by the learned Additional Sessions Judge, Angul in C.T. (S) No.72 of 2012/52 of 2013 are hereby set aside.

The accused, Santosh Sahu be set at liberty forthwith if his detention is not so required in connection with any other case.

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