JUDGMENT
M.M. Das, J.
1. In this appeal preferred from the prison by the convict Duari @ Satrughana Barik, the judgment dated 29.2.1996 passed by the Addl. Sessions Judge, Bhubaneswar in S.T. No. 9/344 of 1994 has been challenged. By the impugned judgment, the appellant has been convicted for the offence under Section 302, IPC, and has been sentenced to imprisonment for life.
2. On an oral information given by P.W.8, Parati Kumbhar, the same was reduced into writing by the Officer-in-charge, Balianta P.S. at the spot of occurrence and was treated as FIR. On the basis of the said FIR, a case was registered for commission of offence under Section 302, IPC against the appellant. After usual investigation, charge-sheet was submitted. The accused was apprehended, charge-sheet submitted and in due course after commitment of the case and framing of charge, the case was tried being S.T. No. 9/344 of 1994. The prosecution case is that the appellant, Duari @ Satrughana Barik, the deceased-Rudra Kumbhar and many other persons from a village under the jurisdiction of Patnagarh P.S. in the district of Bolangir were engaged by the owner of M/s. Sai Brick Factory situated at Balianta under the jurisdiction of Balianta P.S. in the district of Khurda, as labourers. They were residing within the premises of the brick kiln in shades/Jhumpudi houses constructed by the owner of the brick kiln for accommodating the labourers. There was some quarrel between the deceased and the appellant few days prior to the occurrence which arose due to the younger son of the accused throwing a piece of broken brick towards the younger son of the deceased who was about two years old. The further case of the prosecution is that on 10.5.1994 at about 8.00 P.M., P.W.8, the wife of the deceased alongwith her children slept inside the house provided to them. The said house had no doors. As it was summer season, the deceased slept outside the house near the entrance. At about 1.00 A.M. on hearing a sound, the wife of the deceased, P.W.8 woke up and saw the appellant giving a Fouda (spade) blow on the neck of her husband. Seeing this, she raised hulla. Her eldest daughter and other children woke up and at that point of time, the appellant throwing the spade at the spot fled away on the place of occurrence. It is the further case of the prosecution that though P.W.8 chased the appellant but the appellant managed to escape. Hearing the shout of P.W.8, the watchman and other workers of the factory came to the spot to whom she narrated the incident. The deceased sustained severe injuries on his neck to which he succumbed. P.W.1, Debendra Kumar Sahu who was one of the partners of M/s. Sai Brick Factory and managing the brick kiln, was informed about the incident immediately and he also came to the place of occurrence and saw the deceased lying there having sustained bleeding injuries on his neck. P.W. 1 then rushed to Balianta Police Station and informed the police regarding the incident. The police immediately came to the spot where P.W.8, the wife of the deceased orally reported about the occurrence which was reduced into writing and treated as FIR. The Investigating Officer seized the Fouda (spade), which was alleged to be the weapon of offence and also seized blood stained earth and sample earth. During the course of trial, the prosecution examined as many as 16 persons. No witnesses have been examined from the side of the appellant. The defence of the appellant was one of complete denial of the allegations.
3. P.W. 10, Dr. Santosh Kumar Mishra who conducted the post mortem examination found the following injuries:
Incised wound with regular and everted margins from chin and lip up to right side of upper part of neck, size 5′ x 1½” x ½” – 1″) at medial end at upper part, the lip was cut ¼” right to mid line, and at lower part chin was cut horizontally up to ½” left to mid line exposing mandible and at lateral end, the upper part shows tailing for one inch on right side of neck.
On dissection, the doctor (P.W.10) also found the following internal injuries:
The mandible was cut for whole thickness alongwith its long axis from left incissor area up to right angle. Pharynx was cut transversely except a small strip at left side. The blood vessels and nerves were cut at corresponding level.
4. In the opinion of P.W.10, cause of death of the deceased was due to haemorrhage and shock, the injuries were ante mortem in nature and the same were sufficient in the ordinary course of nature to cause death. The informant who is the wife of the deceased and examined as P.W.8 is the only eye-witness to the occurrence. In her Examination-in-Chief, she stated that both her husband and the accused were working in the brick kiln. The accused caused injuries on the person of her husband by means of a Fouda. She further stated that when she protested the accused threatened to assault her with Fouda and she raised hullah. On hearing the same, the watchman came to the spot and the accused fled away, leaving the Fouda at the spot. The watchman informed this fact to P.W.1 who is one of the partners of the said brick kiln. P.W.1 informed the police and the police came to the spot before whom she orally reported about the incident which was reduced into writing by the police, explained to her and thereafter she put her thumb impression. During cross-examination, this witness has stated that all the employees were provided with Fouda (spade) by the factory. One Fouda was given to her husband and the Fouda supplied to her husband was seized by the police during investigation of the case. She further stated that she saw the accused when he dealt the Fouda blow on the person of her husband.
5. It appears from the evidence of P.W.8 that except stating “accused caused injuries on the person of my husband by means of a Fouda”. She has not stated anything more with regard to the occurrence as was described by her in the FIR.
6. P.W.4-Suresh Kumar Sahu who was working as Supervisor in the brick kiln, P.W.7-Rabindra Sahu, P.W.13-Pudhu Suna and P.W.14-Rajakumar Kumbhar who were labourers working in the brick factory are all post occurrence witnesses. We have perused their evidence given before the Court. All of them have stated that on hearing the shout of P.W.8, they came to the spot and saw the deceased lying dead having bleeding injuries. All the above witnesses except P.W.13 have stated that they were told by P.W.8 that the appellant assaulted the deceased with a Fouda. Even P.Ws. 11 and 16 who are sons of the deceased stated that they heard from P.W.8 that the appellant gave a Fouda blow to the deceased. The other witnesses, such as, P.Ws. 2 and 5 are seizure witnesses. P.W. 15, Sarbeswar Balabantaray was the second Investigating Officer to whom investigation was handed over by the First Investigating Officer, Kulamani Das. It is found from the record that all the prosecution witnesses were examined during investigation by the said Kulamani Das. Seizure of all the material objects was also done by him. The statement of the second Investigating Officer, P.W. 15 discloses that when he took over charge of investigation, the same was almost completed. He sent the seized Fouda to Dr. Santosh Kumar Mishra, P.W.10 to ascertain as to whether the injuries found on the body of the deceased can be caused by the said Fouda. Thereafter, it appears from the statement that he sent the Fouda, wearing apparrels of the deceased and the accused, the blood stained earth and other seized articles for chemical examination to the Forensic Laboratory. Strangely enough, the prosecution chose not to examine the first Investigating Officer, namely, Kulamani Das as a witness in the case thereby depriving the accused from bringing out the material contradiction in the statement of other witnesses.
7. We further find that the second Investigating Officer, P.W.15 has stated that the seized Fouda which was handed over to him was neither sealed nor covered and it was in the same condition which he saw in the Court during trial. Though all the witnesses have stated that the Fouda seized by the police from the spot of occurrence was blood stained but the chemical examination report, Ext.15 shows that the Fouda (spade) had no bloodstain on it. The said report further discloses that there was no bloodstain found on the wearing apparrels and nail clippings of the accused which were sent for chemical analysis. There is enough material brought on record during cross-examination of the prosecution witnesses that the place of occurrence was dark and there was no light provided by the owner of the brick kiln.
8. Considering the entire materials brought on record by the prosecution by way of oral and documentary evidence, we find that the prosecution has failed to prove the charge beyond reasonable doubt against the appellant. We, therefore, have no hesitation in holding that the appellant is entitled to be acquitted from the charge under Section 302, IPC on benefit of doubt and therefore, we set aside the conviction and sentence passed thereunder against the appellant and the appellant is directed to be set at liberty forthwith.
The appeal is, therefore, allowed.
S.B. Roy, C.J.
9. I agree.