Sukuria Naik vs State of Orissa

C R Dash, J.—The appellant has challenged the'' judgment of conviction and order of sentence dated 17.5.2003 passed by learned Ad hoc Additional Sessions Judge (FTC), Chhatrapur in Sessions Case No. 58 of 2002. The occurrence happened at about 2.00 p.m. on 15.6.2002 in riverbed of Rushikulya under Chhatrapur P.S. Malati Naik (PW2), who happens to be the daughter of the deceased is the informant. The deceased was staying in the house of Malati Naik (PW2) situated at village Bahalpur since five years prior to the date of occurrence after he left the house of his son for some dissension with his son. He was in receipt of old age pension of Rs. 100. On the 15th day of every month he used to go to Bada Madhapur for receiving the said old age pension. In the month preceding next the date of occurrence the appellant had picked up quarrel with the deceased when he had been to Bada Madhapur for receiving the old age pension. The cause of such alleged to be the practice of sorcery by the deceased on one of the daughter of the appellant. The appellant confronted the deceased about his such conduct and asked him to undo the effect of sorcery. The deceased, however, denied the allegation leading to quarrel between them. On the date of occurrence the deceased left the house of his daughter (PW2) at about 9.00 a.m. and went to Bada Madhapur for receiving the old age pension. He usually returns by 12.00 noon to 1.00 p.m. On the date of occurrence PW2 went in search of her father, when he (deceased) did not return till 2.00 p.m. She (PW2) took the route in which her father had gone. On her way towards Hansapur village, she (PW2) found her father struggling for his life in the river bed and saw the appellant fleeing away from the spot. She started weeping loudly there seeing the condition of her father, who breathed his last immediately on her arrival. At about 3.00 p.m. some villagers came to the river for bathing and PW2 narrated about the incident before them. PW3 G. Balraju and PW4 Hari Naik are two such persons before whom PW2 is state to have narrated about the incident. PW4, who is the Grama Rakshi telephoned to the local police and the police reached at the spot at about evening. On reaching of the police party PW2 lodged the FIR at spot on being scribed by Niranjan Padhi (PW5). On the basis of the FIR the case was registered. After completion of investigation charge-sheet was filed implicating the appellant in offence u/s 302, IPC.

Prosecution has examined ten witnesses to prove the charge. Besides the witnesses introduced in the preceding paragraph PW8, is the elder sister of PW2 who lives in another village called Molada at a distance of one mile from the spot village. PWs 6 and 9 are witnesses to the seizure of wearing apparels of the deceased. PW7 is a constable, who guarded the dead body overnight. He is also a witness to inquest over the dead body and he took the dead body for post mortem, examination. PW1 is the Medical Officer, who conducted the post-mortem examination. PW10 is the Investigating Officer.

The defence plea is one of complete denial, but none was examined by the defence.

There is no dispute that the death of the deceased Naya Naik was a homicidal death cause of. death being strangulation. The point of dispute is the question of implication of the appellant in the offence alleged and the evidence adduced by the prosecution to prove the factum of such implication, which according to learned counsel for the appellant is shaky. Learned Additional Standing Counsel for the State supports the impugned judgment and order of sentence.

PW2 is the sole eye witness, who is deposed to have seen the accused fleeing away from the spot when she arrived near the dead body of her father. According to learned Additional Standing Counsel she is corroborated by PW4 and according to learned counsel for the appellant, evidence of PW 3 is totally contradictory to evidence of PWs 2 and 4 on the point of implication of the appellant.

Perusal of the evidence of PW 2 shows that the appellant is her first cousin, he being the son of the brother of her deceased father. In her cross-examination she has testified that there was no good relationship between their family and the family of appellant since the time of her marriage, which had taken place 15 to 20 years back; they were not in visiting and talking terms and she had not seen the appellant for about 10 years prior to the occurrence as he was staying at Chirimiri. Such evidence of PW2 goes a long way to suspect her ability to identify a person in a glimpse whom she saw after about 10 years. Another feature in the evidence of PW 2, which reinforce our doubt about the ability of PW 2 to identify the appellant is her testimony (In cross-examination) to the effect that she saw the appellant running away when he was at a distance of 10 to 15 feet from her father and the appellant had not turned his face towards his back, Such evidence is indicative of the fact that PW2 saw the appellant from his back side. There is no evidence to show that the spot was covered by any obstructions like trees etc. As the spot is the river bed, the appellant must have fled seeing PW2 coming towards the spot and at that time PW 2 must be at some distance (even if we take it is minimum) from the sport where her father was lying. It is therefore difficult to believe PW 2 that she could identify the appellant from his back side from a distance of more than 25-30 feet though she had not seen him for last 10 years. P''W. 3, one of the witnesses reaching the spot after the occurrence has testified that when he asked Malati Naik (PW2) as to who had killed her father, she told him that she did not know who had killed. It has further been testified by PW3 that later at about 11.00 p.m. police came to the spot after getting information from the Grama Rakshi and after the police came, Malati (PW2) told them that she saw the accused running away from near her father when she arrived at the spot. PW4 on the other hand has testified that on being questioned by him, Malati Naik (PW2) told him that her brother Sukuria Naik (appellant) had killed her father. He (PW4) has further stated that he went to the village Molada and from there telephoned to the police of Ganjam Out Post and intimated that dead body of Naya Naik is lying on the river bed. Evidence of PW 3 is indicative of the father that the went to the spot where the dead body was lying at about 4.00 p.m. On reaching the spot when he asked PW 2 she did not implicate the appellant before him. On the other hand, PW4 went to the river bed in the evening which is a time later to arrival of PW 3 at the spot. PW4 has testified that on being questioned Malati Naik told him that the appellant had killed her father and such fact he had intimated to Ganjam Out Post over telephone. PW10 is the Investigating Officer and the Police Officer, who had received the telephonic message from Hari Naik (PW4) PW10 is silent about the fact that Hari Naik intimated him (PW10) about the assailant.

Taking into consideration all the aforesaid facts we have no hesitation in our mind that the evidence of PW2 goes without corroboration on the point of implication of the appellant in view of infirmity in the evidence of PW4 as discussed supra. Further we suspect the ability of PW2 to identify the appellant at a glimpse whom she saw about 10 years after as stated ipse dixit by her, In view of admitted enmity between the two families, i.e., family of the deceased and especially PW2 and the family of the appellant, and in view of the inherent infirmity in the evidence of PW2 as discussed supra, we do not fell it safe to accept the evidence of PW2 to base the conviction. We also find from record that there is no direct evidence so far as quarrel between the appellant and deceased prior to one month of the occurrence at Bada Madhapur is concerned. The evidence of PWs 2 and 8 on this point is hearsay. There is also no evidence to show whether daughter of the appellant was suffering in any manner and the appellant had any feeling to the effect that the cause of his daughter''s suffering is practice of witchcraft.

As the evidence of PW2 is held to be not sufficient to inculpate the appellant, seizure of the Gamuchha from the possession of the appellant by the police alone cannot be held to have any incriminating effect only for the reason that the death of the deceased was caused by strangulation, especially when the Gamuchha had not been sent for chemical examination to find out presence of blood of the deceased there. In view of the above, the appeal succeeds. The conviction of the appellant u/s 302, IPC is set aside. The appellant being stated to be on bail, he be discharged of the bail bond.