Thuba Singh 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 21.07.2017 passed by the learned Additional Sessions Judge, Balasore in Sessions Trial No.7/228 of 2015, arising out of C.T Case No.81 of 2015, corresponding to Berhampur P.S. Case No.13 of 2015 of the Court of the learned Sub Divisional Judicial Magistrate (SDJM), Nilgiri.

The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in default to undergo further rigorous imprisonment for a period of two (2) years.

Prosecution case is that on 28.02.2015 Surendra Singh (informant-P.W.4) had gone to the house of his brother-in-law at Ghuntibania. When the informant (P.W.4) was there in the house of his brother-in-law, his younger brother, Maheswar Singh came and called him. So after taking the meal in the house of his brother-in-law, both Surendra (Informant-P.W.4) and Maheswar (deceased) returned home. When they were coming, it was night. They were ahead of one another and proceeding on foot holding their bicycles. It is stated that while proceeding when Surendra (Informant-P.W.4) suddenly looked back, he saw the accused and Maheswar (deceased) engaged quarreling with each other. He immediately went there and separated them and went back to his sister’s house. It is stated that after some time, he heard sound and when he came out of the house, he saw the accused running away from the spot holding an iron rod in his hand and then his brother Maheswar was lying down with bleeding injury on his face and head. He then called his brother-in-law (P.W.5) and took Maheswar to Berhampur Hospital. Maheswar on the way to Berhampur Hospital succumbed to the injuries. On the next day, Surendra (P.W.4) lodged a written report with the Inspector-in-Charge (IIC), Berhampur Police Station. Receiving the written report from the informant (P.W.4), the IIC (P.W.11) treated the same as FIR and registering the case took up investigation.

In course of investigation, the I.O. (P.W.11) he examined the informant (P.W.4) and other witnesses. Around 10 am, he held inquest over the dead body of the deceased Dengu @ Maheswar in presence of the witnesses and prepared the report (Ext.6/1). He too sent the dead body for post mortem examination by issuing necessary requisition. Proceeding to the spot, he visited the spot and prepared the spot map (Ext.8). He also seized the blood stained and sample earth from the spot under seizure list (Ext.7/3). It was around 2 pm, he arrested the accused and recorded his statement (Ext.9). It is stated that the accused while in police custody gave recovery of the iron rod leading the police and others. In course of further investigation, the I.O (P.W.11) seized other incriminating materials and sent all those for chemical examination through Court. Being transferred, Assistant Sub Inspector of Police (ASI-P.W.12) took charge of investigation and after examining the witnesses and receiving the medical opinion, completing the investigation, submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC.

Learned SDJM, Nilgiri 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 twelve (12) witnesses. As already stated, the informant, who happens to be the brother of the deceased, is P.W.4 and he had lodged the FIR (Ext.4). The brother and sister of the Informant (P.W.4) are P.W.3 and P.W.2 respectively whereas P.W.5 is the brother-in-law of the informant (P.W.4). P.W.6, P.W.7, P.W.8, P.W.9 and P.W.10 are the independent witnesses and some of them are also witnesses to the seizure of the incriminating articles. The Doctor, who had conducted post mortem over the dead body of the deceased has been examined as P.W.1 and P.W.11 and P.W.12 are the two Investigating Officers.

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.14. Out of those, the important are the FIR, Ext.4, Inquest Report, Ext.6/1, Spot Map, Ext.8, Post Mortem Report, Ext.1. The so called statement of the accused has been admitted in evidence and marked as Ext.9 and the reports of the Chemical Examiner are Ext.13 and Ext.14 respectively.

The plea of the accused is that of complete denial and false implication. However, being called upon, the accused has not adduced any evidence either oral or documentary.

The Trial Court having gone through the evidence of the Doctor (P.W.1) and the Post Mortem Report prepared by him (Ext.1) has arrived at a conclusion that the death of Surendra was homicidal. In fact this aspect of the case was not under the challenge before the Trial Court and that is also the situation before us.

We gather from the evidence of P.W.1 that he had noticed four cut injuries over the dead body of the deceased when he held the post mortem examination. The cut injuries are over the right side face, right side forehead, and right side posterior to the ear. He has stated that all these injuries are ante mortem in nature and the cause of death was due to shock on account of bleeding from the seats of those injuries. In addition to the above, we find that the first I.O, who had held inquest over the dead body of the deceased, has noted the injuries which he noticed upon the dead body in his report (Ext.6/1). Other witnesses have also stated to have seen the deceased lying with injuries. We, however, find that no attempt has been made from the side of the defence to impeach the above evidence. Therefore, no fault is found with the finding of the Trial Court that deceased met homicidal death.

Learned Counsel for the Appellant (accused) submitted that the Trial Court having not properly appreciated the evidence of P.W.2, P.W.4 & P.W.5 is not right in arriving at a conclusion that the prosecution has established the charge against the accused beyond reasonable doubt. He submitted that the evidence of P.W.4 who has been projected as the eye witness as well as the evidence of P.W.2 and P.W.5, upon which the prosecution places much reliance are in complete mismatch with one another, especially, as to the role played by the accused as to what they have said to have seen is also not believable. He therefore submitted that the finding of guilt against the accused as has been returned by the Trial Court is not the outcome of just and proper appreciation of evidence on record. According to him upon due scrutiny of the evidence of P.W.2, P.W.4 and P.W.5, the finding of guilt cannot be sustained.

Learned Counsel for the Respondent-State while supporting the finding of the Trial Court in holding the accused to have committed the murder of Dengu @ Maheswar submitted that the evidence of P.W.2, P.W.4 and P.W.5 having been thoroughly scanned by the Trial Court, the conclusion has been arrived at that through their evidence, the prosecution has established its case against the accused as no such serious infirmity in the evidence of P.W.2, P.W.4 and P.W.5 to disbelieve their version has been noticed. He submitted that there being no variance in the evidence of these three witnesses in respect of the material aspects of the case, the trial Court is absolutely right 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.12) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.14.

The informant (P.W.4) is the brother of the deceased Dengu @ Maheswar and he had lodged the FIR (Ext.4). It has been stated in the FIR (Ext.4) that when he with his brother Maheswar were returning home from the house of their sister (P.W.2) and had crossed little distance, as Maheswar was coming behind, he turned back and saw that the accused was quarreling with Maheswar. It has been further stated that he then separated both and sent them to their respective houses. He further narrates therein that when he remained in the house of his brother-in-law for sometime, the accused came with an iron rod and assaulted Maheswar and hearing the shout when he reached near the spot, accused ran away. The above being the FIR narration; in his evidence, P.W.4 states that they were coming on road on foot holding their bicycle and he was little ahead of Maheswar. According to his evidence, when suddenly he heard shout, he turned back and found accused giving an axe blow on the backside of the head of Maheswar. He states that the incident took place near the house of his sister (P.W.2). He has given a go-bye to the FIR narration as regards to the quarrel between the accused and the deceased that he separated them and thereafter the accused again came and assaulted the deceased. In fact in the FIR, it is stated that after the blow fell upon his brother Maheswar, having heard the shout, he rushed to the place and saw the accused leaving the place holding that iron rod. Now it is not stated that accused had given the blow by means of iron rod but it is stated that it was an axe blow. Although he is stating that the accused ran away from the spot, it is not said that then he was holding any weapon. P.W.2, the sister of P.W.4 has states that the incident took place near the tati door of their house and when she with her husband (P.W.5) came out, the deceased was lying on the ground which shows that she had not seen the accused assaulting the deceased. But her statement is that accused was then running away from the spot. She does not state that the accused ran away holding any weapon. It is also not stated by her that P.W.4 had come to the spot, which leads to doubt the presence of P.W.4, who is stating that thereafter he called his sister (P.W.2) and brother-in-law (P.W.5). P.W.2 has further stated that while they were holding Dengu@Maheswar, the accused came at the spot, dealt blows on the head and neck by using iron rod and then left the spot and went to his house, which is not the evidence of P.W.4 and that appears to be a later exaggeration. P.W.4 does not state that the assault took place near the tati door of the house of P.W.2. He is also silent as regards the accused coming and assaulting the deceased by means of iron rod for the second time. P.W.4 when states during trial to have seen the axe blow being given by the accused upon the deceased, it was not her version before the I.O (P.W.11) which has been brought out from P.W.11 during cross-examination. This witness having stated that she had called his sister and brother-in-law to the spot and they came to the spot with other villagers in the trial, the same had not been stated in her earlier statement during investigation, which has been proved from the side of the defence. This material omission tells upon the veracity of the evidence of both P.W.2 and P.W.4. In addition to all these, the evidence of P.W.2 is running on the score that by the time she heard the sound “MAALO MAALO” she was in deep sleep and then none was found near Dengu@ Maheswar, who was lying on the rod. This version of P.W.2 again belies the evidence of P.W.4 that he was very much present there and had seen the assault upon his brother by this accused.

P.W.5 has stated that he having woke up from the sleep, came out and found Dengu @ Maheswar lying dead. He does not state anything more nor he states to have been told about any overt act of the accused by P.W.2 and P.W.4.

In the above state of affair in the evidence of the P.W.2, P.W.4 and P.W.5, we are of the considered view that the finding of the Trial Court that the prosecution has established the charge against the accused beyond reasonable doubt, cannot be sustained.

In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 21.07.2017 passed by the learned Additional Sessions Judge, Balasore in Sessions Trial No.7/228 of 2015 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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