State of Orissa vs Gulu

Vinod Prasad, J.�This appeal by the prosecutor-State is directed against the impugned judgment of acquittal dated 1.11.94, of sole respondent Gulu @ Bibhuti Misra recorded by Additional Sessions Judge, Sambalpur in T.S. No. 245/19 of 1993, State of Orissa versus Gulu @ Bibhuti Misra, u/s. 302, IPC.

Preceding background facts narrated as prosecution allegations against the acquitted accused, as was stated in the FIR, Ext. 8, gathered during investigation and divulged in the Sessions Trial revealed that Gourahari Misra/deceased was originally a resident of village Tagila Tiringipada, P.S. Kanpur, district Cuttack but on the way of the incident was a tenant of Sanatan Sahu/P.W. 4 in his house situated at Shanti Nagar, Budharaja area, in Sambalpur town and was residing with the wife Sabitri Misra/P.W. 12 and daughter Rinki Misra/P.W. 11. Accused respondent Gulu @ Bibhuti Misra, used to visit them off and on and was their distance relation. Before the ill fated day of his murder his younger brother Bhawani Shankar Misra/P.W. 9 and sister-in-law Swarnalata Misra/P.W. 10, had written an inland letter, Ext. 13, dated 28.4.93 to Gourahari Misra (deceased) warning him to refrain from allowing respondent accused to reside with them in their house because he had challenged to see him (Gourahari Misra-deceased). In spite of the above warning letter, on the intervening midnight between 6/7.5.93, respondent accused knocked at the door of the deceased and was allowed access inside the house and was offered a mat to sleep. Then all the inmates and the accused went to sleep. Following day dawn at 4.30 a.m., both P.W. 12, informant-wife and respondent accused got up to attend nature''s call in a single lavatory situated inside. Accused was asked to go out for easing and P.W. 12 entered lavatory. After 5/7 minutes P.W. 12 heard groaning sound emanating from her husband''s bed room and she quickly came out and rushed to her husband''s bed room only to find him lying in a pool of blood with bleeding injury on the back side of his neck. She spotted respondent-accused fleeing from the house with blood stains on his person. Their daughter Rinki Misra/P.W. 11 informed her mother/P.W. 12 that respondent accused had cut her father''s neck with a Katari (chopper). Wife/P.W. 12 shrieked for help which collected landlord/P.W. 4 and other neighbours including a doctor and an ambulance was also called but deceased lost his life by the time it arrived. Police of P.S. Ainthapali was also informed on phone which arrived at the spot and there at the incident scene itself widow/P.W. 12 orally dictated her FIR/- Ext. 8 to the Officer-in-charge of the said P.S., who penned it down and on its basis formal FIR was registered at the police station.

Under the orders of the Officer-in-charge S.I. Priyaranjan Satpathy/P.W. 8, commenced investigation into the crime, examined informant and other witnesses, sketched spot map, Ext. 9, conducted inquest over the dead body and prepared inquest report Ext. 4, and dispatched the deceased cadaver to VSS Medical College, Burla, for autopsy examination through constables Indramani Sahu, C/568 and Sripati Sahu C/1112 along with Chalan Ext. 2. Weapon of assault Bhujali (M.O. II) and dried blood at the spot were collected and seized vide seizure list Ext. 6. Blood stained Lungi of deceased (M.O. III), blood stained bed sheet (M.O. IV) and a pair of slippers were also seized vide seizure memo Ext. 10. Inland letter Ext. 13, was also seized vide Ext. 5. Besides all these, one blood stained. Dhoti and a command certificate was also seized by the I.O. as per Ext. 1. For chemical examination seized articles were dispatched to SFSL as per Ext. 11 through SDJM Sambalpur and report by chemical examiner is Ext. 12. Accused respondent had surrendered in Court and wrapping up the investigation against him, he was booked for trial by laying down a charge sheet against him on 29.7.93.

Postmortem examination of the corpse of the deceased was conducted by Dr. Jeetendra Kumar Balbantrai, Asst. Professor, F.M.T., VSS Medical College, Burla, P.W. 7 on 7.5.93, at 11.30 a.m. who detected following ante mortem injury on the person of the deceased:

"One incised wound on the left side of the neck 1 cm lateral to the midline and 3 cm above the clavicle of size 12 c.m. x 6 c.m. x neck deep looking like spindle. The neck muscle fascia, nerves, vessels, jagular and carotid vessels of left side of neck are cut. Left side hyoid bone, thyroid cartilage are cut, trachea in the left side is also cut. Esophagus is cut. The fifth clavicle vertebra on its body and transverse process in the left side is cut. Spinal cord of size 14 c.m. x 3 c.m. x 1/4 c.m. in its left postero lateral aspect is cut."

Aforesaid injury was sufficient in ordinary course of nature to cause death and was inflicted by some heavy sharp cutting weapon and death had occurred within 6 to 9 hours occasioned by shock and haemorrhage. Autopsy report is Ext. 7. According to P.W. 7 recovered Bhujali (M.O. II), which was stained with blood, could have caused aforesaid ante mortem injury.

Following due legal procedure of pre committal stage, the case of the accused was committed to Sessions Court for trial, where it was registered before Additional Sessions Judge as S.T. No. 245/19 of 1993, State of Orissa versus Gulu @ Bibhuti Misra, u/s. 302 IPC. Learned trial Judge charged the respondent-accused with offence under Sec. 302, IPC on 4.1.94 but since accused abjured that charge, pleaded not guilty and-claimed to be tried that, to establish the charge, his prosecution commenced during course of which prosecution examined in all twelve witnesses out of whom last quadruple witnesses P.W. 9 Bhawanishankar Misra, P.W. 10 Swarnalata Misra, P.W. 11 Rinki Misra and P.W. 12 informant widow Sabitri Misra, were fact witnesses and relatives of the deceased. P.W. 7 is the doctor and P.W. 8 is the I.O. P.W. 4 is the landlord of the house tenanted to the deceased and P.Ws. 1 to 3 were seizure witnesses. P.Ws. 5 and 6 were local and seizure witnesses.

Respondent accused in his examination under Sec. 313 pleaded complete innocence, false implication and pleaded alibi of being under medical treatment in a Nursing Home at Raipur and to substantiate it, he examined his father Rabinarayan Misra as D.W. 1 and Nursing Home Doctor G. Satyanarayan Jahari as D.W. 2.

Learned trial Judge after due consideration of the evidences on record and critical examination thereof concluded that prosecution has "miserably failed to establish the charge beyond all shadow of doubts against the accused whom I find not guilty under Sec. 302 Indian Penal Code" and consequently assailed the trial favouring the accused by acquitting him through the impugned judgment and order, which decision has now been assailed by the prosecutor State in the instant appeal.

With above being the background happenings that we have heard Sri D.K. Mishra, learned Additional Government Advocate for appellant State and Sri Dharnidhar Nayak, learned senior counsel for the accused respondent and have vetted through the entire trial court record.

Triggering off the snipping appellants counsel, learned AGA harangued that incident being based on eye witness account and there being complete absence of any motive to falsely implicate and feign a story against the accused respondent there was dearth of reasons for the learned trial Court to disbelieve the widow and the daughter who both had scanty motive to spare real assailant and implicate the respondent. It is ludicrous to think that close relatives especially a wife and a daughter will tell tale a story about murder of their husband and father. Their evidences have a ring of truth and their depositions are straightforward. Defence had miserably failed to shake their worthiness and discredit their corroborative version. It is manifest from the blood at the spot, blood stained Bhujali lying there coupled with blood stained attires and bed sheet that the scene of the incident is the same as was narrated by the prosecution witnesses and accused has also not challenged the same. Medical consistency with doctor''s opinion that (M.O. II) could cause sustained injury by the deceased establishes prosecution case to the core and learned trial Judge fell in grave error in concluding otherwise. Insidious omissions, contradictions and exaggerations do not affect fundamentals of prosecution allegations nor do they discredit otherwise creditworthy testimonies of close relatives whose presence at the incident scene is natural and probable. Impugned judgment is pastiche on hyper technical approach adopted by the learned trial Court who instead should have adhered to a more pragmatic and reasonable approach. Presence of accused at the time of the incident has been stated without ambiguity and therefore, but for him, nobody else could have committed the murder. On an overall assessment of evidences prosecution case has been established beyond all shadow of reasonable doubt and therefore impugned judgment be set aside and respondent be convicted of murder and State appeal be allowed, urged learned counsel ultimately.

Scoffing off appellant''s contentions and unleashing submissions to the contrary, learned senior counsel for the accused submitted that learned trial Court had summated facts and evidences pragmatically and has rightly concluded that prosecution has failed to anoint accused''s guilt to the hilt. Albeit prosecution attempted to build its case on eye-witness account, but both of its star witnesses, the widow and her daughter, irreconcilably contradicted each other to make the prosecution version unacceptable and feigned. According to the wife/widow it was the daughter who had witnessed the assault but the daughter evidenced to the contrary. None of them are reliable and trustworthy witnesses and learned trial Court discarded their testimonies as unbelievable. Site plan also is not in conformity with the prosecution allegations and the blood stained attires were found in two different places and no blood was found inside inner room. Appreciation of evidences by the learned Trial Judge is appropriate and it cannot be snipped. Reasons recorded by the trial Court is neither absurd nor does it suffer from non-consideration of relevant material and evidences and this being an appeal against acquittal, this Court should refrain from substituting its opinion with that of the learned trial Court. Since the two witnesses P.W. 11 and 12 are not trustworthy, therefore no error has been committed by the learned trial Court in returning a verdict of acquittal favouring the respondent accused and the impugned judgment be concurred and the State appeal be dismissed argued learned counsel.

We have pondered over rival submissions vis-a-vis oral and documentary evidences on the record. Decisions concerning appeal against evidences on the record. Decisions concerning appeal against acquittal and the approach of the appellate Court in such appeals are innumerable and runs into volumes, but the gist of all those judgments is that unless the findings recorded by the trial Court are perverse or are based on irrelevant considerations or the trial Court has failed to consider relevant evidences and circumstances establishing guilt of the accused or its conclusions are so palpably absurd and trivial and its analysis is totally false and incipient, which no man of ordinary prudence would have arrived at in the given facts and circumstances that appellate Court should not upturn trial Court''s conclusions. This trite law is too well entrenched and settled to be ignored and analyzing facts and evidences of the present appeal within the ambit of such expounded law, at the outset it is apparently discernible that no motive has been assigned by the prosecution for the appellant to commit deceased''s murder. A single sentence by P.W. 10, brother of the deceased that appellant had said that he would see the deceased is not enough to impute him sufficient motive to do away with the deceased. More importantly the maiden prosecution version was that while wife/widow was in the lavatory, respondent accused murdered the deceased with Bhujali, which assault was seen by the daughter P.W. 11. However, when P.W. 11 entered into the witness box she divulged all together a different version and stated that it was the mother who had informed her about the murder of her father. Learned trial Judge, therefore, was unable to decide as to who, out of the two, was a reliable witness and therefore adopting the safest course he disbelieved both. We find ourselves in complete agreement with the said conclusion by the learned trial Judge. After carefully analyzing evidences of both P.W. 11 and 12, we also have no doubts in our mind that none of them can be relied upon. This completely shakes the very foundation of the prosecution version and crumbles its very edifice. Prosecution had rested its case upon the evidences of these two witnesses and once they are found to be unreliable, there was no other scope left for the learned trial Judge than to accord benefit of doubt to the respondent accused and discard prosecution story. By any hypothesis, it cannot be concluded that the view adopted by the learned trial Court is absurd or unreasonable or that it suffers from any mistake. There is no other eye-witness to the incident and rest of the witnesses had arrived at the scene post murder or they are seizure or formal witnesses on whose evidences accused could not have been held guilty of murder and convicted.

At this juncture, we would like to point out that there are other aspects of the matter, which could have required consideration, but since we are of the opinion that the learned trial Judge has committed no error in acquitting the accused-respondent and the evidence of two witnesses are wholly unreliable, it will be a futile exercise for us to deal with those aspects. However, we would like to observe that those aspects, which occurred post incident, do not at all attract the criminality of the appellant. It will be very difficult for us to believe that widow/wife who was inside the lavatory could have come out so quickly so as to spot the accused fleeing away from the incident scene having blood stain on his body and attire as present is a case of a single blow. Admittedly the incident had occurred at very early hour in the morning and light would not have been so much sufficient as to facilitate locating of blood stained attires. Moreover during her interrogation by the police, no such a statement was made by the wife and, therefore, her deposition in Court is an after thought and embellishment liable to be discarded. Another aspect is that once the deceased and his wife had received Inland letter from their brother, why they had allowed the respondent inside their house during midnight is not understandable. The conduct is contrary to all cannons of human nature. The deceased and his wife P.W. 12 should have been careful enough not to allow the respondent-accused to have access in to their house. On this score also the prosecution story seems to be unbelievable. So far as plea of alibi is concerned, it is manifest from the evidence of D.W. 2 Dr. G. Satyanarayanan Jahari, who had Surgical Nursing Home and Pathological laboratory at Raipur that on 24.3.1993 respondent-accused was treated for peptic ulcer and appendicitis. He was admitted in the nursing home on 23.4.1993 and was discharged only on 11.5.1993. The Doctor has clearly denied the suggestion that he had fabricated all the papers and that he was deposing falsely. He was an independent person without having any interest for the accused and therefore, his deposition cannot be ignored easily. Nobody was found inside the house so as to corroborate the prosecution version of allowing of the deceased to sleep inside the house. Thus, from the post incident investigation and happenings also, prosecution case does not seem to have been established clear of all doubts. Copy of the FIR/special report also reached at the SDJM, Sambalpur on 10.5.1993 whereas the incident had occurred on 7.5.1993. Therefore, doubt is created with regard to registration of the FIR, which according to the prosecution itself was dictated by P.W. 12 at the spot to the Officer-in-charge, Ainthapalli police station. Thus, on an overall analysis we are also of the view that the prosecution has not been able to establish its case clear of all doubts and therefore, the learned trial Judge has rightly conferred benefits of doubt on the accused-respondent.

Having an opinion as above, since we find no illegality or irregularity in appreciation of evidences, facts and circumstances by the learned trial Court that we find present appeal to be devoid of merits and substance and consequently hereby dismiss it as such. Government appeal is dismissed.

Accused respondent is in custody under orders of this Court and therefore he is directed to be set at liberty forthwith unless he is wanted in any other case.

Let the trial Court be informed for follow up action at its end.

Pramath Patnaik, J.

I agree.