ORISSA HIGH COURT,
CUTTACK
JAIL CRIMINAL APPEAL NO. 179 OF 1999
From the judgment dated 27.04.1999 passed by Sri N.Prusty, 1st
Additional Sessions Judge, Cuttack in Sessions Trial No.220 of 1997.
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Deepak Kumar Dash ......... Appellant
Versus
State of Orissa ......... Respondent
For Appellant - M/s S.R.Mulia, B.R.Dalai,
D.Dash & S.Mohanty.
For Respondent - Additional Government Advocate
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PRESENT:-
THE HON'BLE MR. JUSTICE PRADIP MOHANTY
AND
THE HON'BLE MR. JUSTICE B.K.PATEL
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Date of hearing & judgment : 12.11.2009
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PRADIP MOHANTY, J. This appeal is directed against the judgment and
order dated 27.4.1999 passed by the learned 1st Additional Sessions
Judge, Cuttack in Sessions Trial No.220 of 1997 convicting the
appellant under section 302 I.P.C. and sentencing him to undergo
imprisonment for life and to pay fine of Rs.25,000/- in default to
undergo R.I. for two years.
2. The case of the prosecution is that on 17.10.1996
at about 3 P.M., the father of the informant (P.W.3) had been to his
land to put “GARVANA STICK”, but he did not return. The informant
went in search of his father and found him lying in the maize field
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having injuries on his head and neck. He lodged F.I.R. before the
Kissannagar Police Station suspecting the present appellant and his
parents to be the assailants of his father. After investigation charge
sheet was filed against the present appellant and two others (parents
of the appellant).
3. The plea of the present appellant is complete denial
of the allegations.
4. In order to substantiate the charge, prosecution
examined as many as seven witnesses including the doctor and the
I.O. and exhibited 23 documents. The defence examined one witness.
5. The learned Additional Sessions Judge having
regard to the facts of the case, the evidence on record, leading to
recovery under section 27 of the Evidence Act and corroboration
made by D.W.1 in respect of recovery of weapons of offence came to
hold that the prosecution has been able to complete the chain of
circumstance in order to bring home the charge against the present
appellant and convicted and sentenced him as stated earlier. He,
however, acquitted the other two accused persons with the finding
that the prosecution has miserably failed to prove the charge against
them.
4. Mr. Mulia, learned counsel for the appellant,
assails the impugned judgment on the following grounds:
(i) admittedly there is no eye-witness to the
occurrence and the case solely rests on circumstantial
evidence;
(ii) the prosecution has not been able to
complete the chain of circumstance;
(iii) there is no independent corroboration to the
story relating to leading to recovery of the weapon of
offence;
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(iv) the so-called confessional statement cannot
be accepted as it does not contain signature of the
accused or the witnesses;
(v) the prosecution has not produced nor proved
the material object before the trial court; and
(vi) P.W.4, who is said to be a witness to the
seizure of weapon of offence, has not supported the
same.
5. Mr. Nayak, learned Additional Government
advocate in response submits that the prosecution has been able to
complete the chain of circumstances. P.Ws.2, 3 and 5 have clearly
established the motive behind the murder. Ten to fifteen days prior to
the occurrence, the appellant and other accused persons had
assaulted the deceased. The weapon of offence, i.e., Katari, was
recovered at the instance of the appellant in presence of the
witnesses. The witnesses as well as the appellant have put their
signature on the seizure list (Ext.3). The appellant led the
Investigating Officer to the place of concealment and gave recovery of
the Katari. P.W.6, the doctor, in his examination-in-chief has opined
that the cut wounds as described in the post-mortem report can be
caused by such a weapon, i.e., a katari. Therefore, no fault can be
found in the impugned judgment convicting the appellant under
section 302 I.P.C.
6. Perused the deposition of witnesses and the
exhibits. P.W.1 is said to be an eye-witness but he has not supported
the prosecution case. Although the prosecution declared him hostile
and put leading questions, nothing has been elicited from him to
support its case. P.W.2 is the wife of the deceased Sarat Chandra
Das. She stated in her evidence that on the date of occurrence her
husband had been to their land to fix “GARVANA STICK” as per the
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tradition but till 5 P.M. he did not return. Her son went in search of
his father and found him lying dead in the land. She has also stated
that the appellant was absorbed in a temporary Government service
at Kendrapara due to the arrangement made by her husband.
Subsequently, after the appellant lost his temporary service, there
was ill-feeling between the appellant and her husband. In her cross-
examination P.W.2 stated that since her husband filed a case for
restitution of conjugal rights, she filed a maintenance case against
her husband. She also admitted that she had not informed the
police about entry of the appellant and one Khirod into her house
being armed with Tenta. She also admitted that there was ill-feeling
between them. P.W.3, the informant, is the son of the deceased. He
has corroborated the statement of her mother. It is further stated
that he lodged F.I.R. Ext.2 before Kissannagar Police Station. In
cross-examination he admitted that 15 days before the occurrence
the appellant entered into his house with Tenta but he did not inform
this fact before the police. P.W.4 is the witness to the seizure to
recovery of weapon of offence, i.e., Katari. He has not supported the
prosecution case. He was declared hostile and thereafter leading
questions were put to him. He admitted his signature in the seizure
list but in cross-examination he specifically stated that on
24.10.1996, i.e., the date preceding to the date of seizure, being
shown by the police he traced the knife in the school field near the
damaged latrine and seizure list was prepared and he put his
signature. With regard to leading to recovery of weapon of offence by
the appellant under section 27 of the Evidence Act he has not stated
anything in his statement. P.W.5 is another son of the deceased.
P.W.6 is the doctor who conducted autopsy over the dead body of the
deceased and found the following injuries :
(i) Cut wound of size 13 cm. long with a gap of 12
cm. on extended neck and involves up to a
depth of pharynx, where the wound has cut
through and through the skin underline
5muscles and vessels on front and left side of
neck, the 4th cervical vertebral body along with
spinal cord and situated by encircling the front
and left side of the neck;
(ii) Cut wound 3 cm. x 1 cm. x superficial muscle
deep situated in front of right shoulder vertically
3.5 cm. outer and below the lateral end of right
clavicle.
(iii) Cut wound 8 cm. length cutting 4 cm. in depth
with a gap of 1 cm. situated transversely and
little obliquely in the postero lateral aspect of
right fore arm 16.5 cm. above the lower end of
radius.
(iv) Pressure abrasion of size 4 cm. x 1 cm. with
black coloured skin over it situated on the ulnar
boarder of right fore arm 2 cm. behind the outer
end of injury no.(iii).
(v) Cut wound 4 cm. x 0.75 cm. x bone deep
situated in an antero posterior direction 4 cm.
above the mid point of left eye brow little
obliquely.
(vi) Cut wound 8 cm. x 1 cm. x bone deep situated
over the right parietal region of the head at the
level of parietal eminence 5 cm. behind the
injury no.(vii).
(vii) Cut wound 10 cm. x 1.5 cm. x bone deep
situated on right fronto parietal region of the
head 8 cm. above the root of right ear.
The doctor opined that all the injuries were ante-mortem in nature
and all the injuries, when considered together were fatal in ordinary
course of nature. The external injuries would have been caused by
any heavy or moderately heavy cutting weapon. Nothing has been
elicited from his cross-examination by defence. It is specifically
stated by the doctor that death of deceased occurred due to combined
effect of haemorrhage, shock and complete transection of spinal cord.
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7. There is no dispute that the deceased Sarat
Chandra Dash was lying with cut injuries on the head and neck.
Information given regarding leading to discovery should be recorded
and proved and if not so recorded, the exact information must be
adduced through evidence. In the instant case, the information given
by the accused has not been recorded nor proved and only the seizure
list has been proved. No independent corroboration is there to
support the prosecution case. Ext.16, the disclosure statement, on
which much reliance has been placed by the trial court, does not
contain the signature of the witness or the accused. The station diary
entry has not been proved by the investigating officer. Though the
conviction has been based on circumstantial evidence, the chain of
circumstances is not complete. Only evidence available against the
accused is that there was ill-feeling between the deceased and the
present appellant. The claim of the prosecution regarding leading to
recovery under section 27 of the Evidence Act has not been supported
by any independent witness. No exact information has also been
adduced through evidence that the accused led the police to the place
of concealment and gave recovery of the weapon of offence. The
weapon of offence, i.e., Katari, was not produced and also not proved
by the prosecution. In the circumstances, this Court opines that no
conviction can be based on the evidence adduced/produced by the
prosecution.
8. In the result, this appeal is allowed and the order of
conviction and sentence passed against the appellant is set aside.
………………………..
Pradip Mohanty,J
B.K.PATEL,J. I agree.
...........................
B.K.Patel,J.
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Orissa High Court,Cuttack,
The 12th Nov. 2009/Palai
