Sudana Sabar vs State Of Odisha

D.Dash, J

The Appellant, by filing this Appeal, from inside the jail, has challenged the judgment of conviction and order of sentence dated 29th April, 2016 passed by the learned Additional Sessions Judge, Kalahandi, Bhawanipatna in C.T Case No.26 of 2015 (Sessions) arising out of C.T Case No.219 of 2014, corresponding to Kesinga P.S. Case No.133 of 2014 of the Court of the learned Judicial Magistrate First Class (JMFC), Kesinga.

The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘the IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- in default to undergo rigorous imprisonment for a period of six (6) months.

On 05.11.2014 one Mahubati Sabar (P.W.12) lodged a written report with the Inspector-in-Charge (IIC) of Kesinga Police Station to the effect that her husband, namely, Mahendra Sabar was assaulted by the accused, who happens to be the elder brother of Mahendra by means of a lathi. Her husband being taken to Kesinga Government Hospital had been shifted to the Hospital at Bhawanipatna and there he succumbed to the injuries.

The IIC having received the said report (Ext.3), treated the same as FIR and registered the case. He then directed the Sub-Inspector (SI) of police attached to the police station (P.W.18) to take up investigation.

In course of investigation, the I.O (P.W.18) examined the informant (P.W.12) and other witnesses. Having visited the spot, he prepared the spot map (Ext.8) and held inquest over the dead body of the deceased. He too prepared the report to that effect (Ext.1). The dead body was then sent for post mortem examination by issuing necessary requisition. Some incriminating articles were seized from the spot under seizure lists and then accused was forwarded in custody to Court. The seized incriminating articles were sent for chemical examination through Court and the report to that effect (Ext.11) was obtained.

On completion of investigation, the I.O (P.W.18) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC.

Learned JMFC, Kesinga on receipt of the Final Form, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused.

In the Trial, the prosecution in total has examined nineteen (19) witnesses. As already stated, the informant, who is the wife of the deceased has been examined as P.W.12 and she is the solitary eye witness to the occurrence. The other independent witnesses are all after occurrence witnesses, witnesses to the seizure and to the inquest. The Doctor, who had conducted post mortem over the dead body of the deceased has been examined as P.W.17 whereas the I.O is P.W.18.

Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.11. Out of those, the important are the FIR, Ext.3, Inquest Report, Ext.1, Spot Map, Ext.8, Post Mortem Report, Ext.6 and Chemical Examiner’s report is Ext.11.

The Trial Court upon examination of the evidence of the prosecution witnesses more particularly that of P.W.12 has held the accused to have dealt the blows upon the deceased resulting his death. Accordingly, the accused has been convicted for causing the murder of his younger brother Mahendra (deceased).

The case of the defence is that of complete denial and false implication. However, no evidence has been piloted from the side of the accused in support of said plea.

Learned Counsel for the Appellant (accused) without disputing the nature of death of Mahendra to be homicidal submitted that the Trial Court has gone wrong in placing implicit reliance upon the solitary testimony of P.W.12 to hold the accused to have caused those injuries upon the deceased. According to him, the Trial Court has not at all appreciated the evidence of P.W.12 who is interested in the success of the prosecution, as it ought to have been. Highlighting the submission he having taken us through the depositions of P.W.12 contended that it would be wholly unsafe and hazardous to accept her version to fasten the guilt upon the accused as her evidence is not of sterling quality.

Learned Counsel for the State while supporting the finding of the Trial Court contended that the evidence of P.W.12 being wholly trust-worthy as she in clear terms has stated that the accused had assaulted her husband which the prosecution has proved when the death has been the result, the Trial Court did commit no mistake in convicting the accused.

Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.19) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.11.

The entire case of the prosecution rests upon the evidence of P.W.12, who happens to be the wife of the deceased. It is stated by P.W.12 that after taking dinner, her husband came out of the house and was attending call of nature and when he was urinating, the accused came with a lathi and assaulted him on his head while abusing him in filthy language. It has also been stated that due to such assault, her husband sustained bleeding injuries on head and fell down. She has further stated that having heard the shout of her husband, she proceeded to the spot and in her presence, the accused went on assaulting him. So from the evidence of this witness, we find that she states to have first arrived at the spot after the incident commenced. During cross-examination, however, this P.W.12 states that she had followed her husband to the place of occurrence which is in front of their house, at a distance of 10-20 cubits. But having so stated, it has been said by P.W.12 that when her husband was urinating, the accused came and assaulted. She has stated that at the time of assault her husband was standing and then the accused was at a distance of 7 to 8 feet when the length of lathi was 3 cubits. During cross-examination she has again exaggerated that she had tried to save her husband but the accused did not allow her. It is next stated that accused had not assaulted her. Her first versions are that her husband after taking dinner had gone outside. She does not indicate in the FIR to have followed in the incident. Nowhere in the FIR (Ext.3) has she stated to have seen the assault by coming out of the house. These important foundational facts when are conspicuously missing in the FIR (Ext.3), the version of P.W.12 for the first time in Court on the above aspects are not receiving the corroboration and rather stands to be viewed as after thoughts.

The daughter of the deceased (P.W.8) has stated that the accused had assaulted her father by means of a thenga on his head and he had fallen on the ground being assaulted and thereafter she and her mother i.e. P.W.12 came to the deceased and gave him water. So the evidence of P.W.8 to a good extent belie the evidence of P.W.12. Thus when we read the evidence of P.W.8 with the evidence of P.W.12, the evidence of P.W.12 as to the incident that she had seen the accused assaulting the deceased is not safe to be relied upon. P.W.8 also does not state that when she with her mother arrived at the spot, the accused was still standing holding the lathi or started running away.

With the above state of affair in the evidence let in by the prosecution, we are not in a position to conclude that the prosecution has established the charge against the accused beyond reasonable doubt. Therefore, we hold that the judgment of conviction and order of sentence impugned in the Appeal cannot be sustained.

In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 29th April, 2016 passed by the learned Additional Sessions Judge, Kalahandi, Bhawanipatna in C.T Case No.26 of 2015 (Sessions) 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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