Sukanta Kabati vs State of Orissa

R.K. Patra, A.C.J.

This appeal is directed against the judgment of the Second Additional Sessions Judge, Cuttack by which the Appellant has been convicted u/s 302 I.P.C. and sentenced to imprisonment for life. He has also been convicted under Sections 148 and 323 I.P.C. and sentenced to rigorous imprisonment for one year on each count; the sentences are to run concurrently.

The case of the prosecution is that the Appellant and four others (they could not be placed on trial as they absconded) being armed with deally weapons were awaiting the arrival of Rabindra Sethi (P.W. 2) at Odasingh village crossing in the evening of 7.10.1993. At about 8 p.m. said Rabindra returned home from his tailoring shop situated at Odasingh Market. Seeing the Appellant and his accomplices, he focused torch on them. Accused Sagan (absconder) challenged the flashing of the torch and scolded Rabindra. Another accused Huna (absconder) dealt a lathi blow on his head at the instance of the Appellant. After being assaulted Rabindra (P.W. 2) raised hullah. Hearing the alarm of Rabindra, his cousin Chandramani (hereinafter referred to as ''the deceased'') came rushing to the spot followed by P. Ws. 1,3,4 and others. At this moment, absconder Huna dealt a lathi blow on the back of the head of the deceased. Thereafter, the Appellant dealt another blow on the head of the deceased as a result of which he fell down unconscious. The deceased was immediately removed to Salipur P.H.C. whereafter he was referred to Cuttack Medical College where he succumbed to the injury on 8.10.1993.

The plea of the Appellant was one of denial.

On behalf of the prosecution 12 witnesses were examined out of whom P. Ws. 1, 2, 3 and 4 are the eye witnesses.

There is no dispute that the deceased had a homicidal death. The learned Additional Sessions Judge basing on the evidence of P. Ws. 1,2,3 and 4 who were witnesses to the occurrence found the Appellant guilty and convicted him, as mentioned above.

Shri Das, Learned Counsel for the Appellant, seriously contended that the evidence of the eye witnesses is full of contradictions and, as such, their testimony could not be accepted. The learned State Counsel on the other hand submitted that the eye witnesses being close relations of the deceased would not spare the real assailant.

In view of such rival contentions, it is necessary to assess the evidence of the eye witnesses.

No doubt, P. Ws. 1 to 4 are relations of the deceased. Merely because they are related, their evidence cannot be rejected on that ground alone. Their evidence requires careful and close scrutiny.

P.W. 1 deposed that when the deceased came to rescue Rabindra (P.W. 2), it was the Appellant who dealt a lathi blow on the back side of his head as a result of which he fell down on the ground. The witness immediately changed his version by stating that it was absconder Huna who dealt first blow on the back side of the head of the deceased whereafter he (appellant) dealt the second blow on the back of the head of the deceased. It may be noted that at his (P.W. 1''s) instance the F.I.R. (Ext. 1) was written wherein it was stated that in the evening the Appellant and the absconders after being intoxicated attacked his son (P.W. 2) as well as the deceased. The F.I.R. was received by the A.S.I. who was in-charge of the Out-Post. It was the earliest version. There was no mention of individual role played by the Appellant in the sense that it was ominbus in nature. But in the Court he changed his version by stating that it was the Appellant who gave first blow. This version also was changed by him when he stated that it was the absconder who first gave blow on the back side of the head of the deceased and thereafter the Appellant gave the blow. Witness deposing inconsistently without any regard to truth can hardly be believed as truthful witness. P.W. 2 is the son of P.W. 1. He stated that at the instance of the Appellant absconder Huna dealt a lathi blow on his dead. When he raised hullah, the deceased came to his rescue. At this moment, absconder Huna dealt a lathi blow on the back side of his head and thereafter Appellant dealt another lathi blow as a result of which he fell down. It was brought out, in his evidence that he had not stated to the police in course of investigation that after Huna, the Appellant gave a lathi blow to the deceased. He has also not stated that the Appellant assaulted P.W. 1. In view of such contradictory version at different stages, this witness inspires no confidence. P.W. 3 is the cousin brother of the deceased. He is also the brother of P.W. 2. He stated that it was absconder Huna who dealt lathi blow on the back of the head of the deceased and thereafter the Appellant dealt a lathi blow. In cross-examination, it was brought out that he stated before the police that by the time they arrived at the spot, the deceased had already been assaulted. In respect of the incident he admitted that there is a counter case pending against him. As this witness also had made prevaricating statements at different stages, his evidence can hardly be accepted.

P.W. 4 is the father of the deceased. He stated that from a distance of 5 cubits, he saw the Appellant assaulting on the back side of the head of the deceased when he rushed to the spot to rescue P.W. 2. Thereafter absconder Huna dealt the second blow. This sequence of assault on the deceased as narrated by P.W. 4 is different from P. Ws. 1 to 3. He also admitted in his cross-examination that he stated before the police that on hearing the alarm, he along with his wife rushed to the spot and found the deceased lying on the ground. In the face of such weak and contradictory evidence, no reliance can also be placed on his testimony.

For all the reasons mentioned above, the evidence of the eye witnesses as analysed above cannot be accepted.

There is no other evidence to connect the Appellant with the commission of the offence. Therefore, we have no hesitation to hold that the prosecution has not been able to prove its case against the Appellant beyond all reasonable doubt and he is, therefore, entitled to benefit of doubt.

In the result, the conviction and sentence of the Appellant under Sections 302, 148 and 323 I.P.C. are hereby set aside and he is acquitted of the charges. He may be set at liberty forthwith if his detention is not required in connection with any other case.

The appeal is accordingly allowed.