{"id":146129,"date":"2000-12-11T00:00:00","date_gmt":"2000-12-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/masang-kisku-vs-state-of-orissa-on-11-december-2000"},"modified":"2017-09-16T01:22:40","modified_gmt":"2017-09-15T19:52:40","slug":"masang-kisku-vs-state-of-orissa-on-11-december-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/masang-kisku-vs-state-of-orissa-on-11-december-2000","title":{"rendered":"Masang Kisku vs State Of Orissa on 11 December, 2000"},"content":{"rendered":"
Orissa High Court<\/div>\n
Masang Kisku vs State Of Orissa on 11 December, 2000<\/div>\n
Equivalent citations: 2001 CriLJ 1633, 2001 I OLR 188<\/div>\n
Author: B P Das<\/div>\n
Bench: B Das, M Papanna<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 B. P. Das, J.  <\/p>\n
1. This appeal is directed against the judgment and order dated 24-3-1993 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 38 of 1992 thereby convicting the appellant, Masang Kisku under section 302, I.P.C. and sentencing him to undergo rigorous imprisonment for life.\n<\/p>\n
2. The present appellant along with accused Furmal Kisku faced trial under section 302 read with section 34, J. P. C. . The trial court, however, acquitted Furmal Kisku of the charges but convicted and sentenced the appellant as aforesaid.\n<\/p>\n
3. The prosecution case in brief is that on 23-11-1991 during morning hours the bullocks of Gunal Kisku the husband of the decaased Jhana, damaged the brinjal plants of the accused persons at village Andher Jheri. The accused while reprimanding Gunal Kisku, there was a quarrel and the accused persons assaulted Gunal Kisku. Mahi Tudu, the sister of Gunal Kjsku, on getting information regarding the assault on Gunal Kisku came to the house of Gunal Kisku to see him. At that time Gunal Kisku was absent, but his wife Jhana Kisku was there in the house. When Main Tudu came to the house, Jhana went to the nearby<\/p>\n
field to ease herself. After some time, Mahi Tudu heard Jhana shouting for help and rushed towards the field. On reaching the spot, she found Jhana lying on the ground with cut injuries on her person and also found the accused appellant and one Furmal Kisku running away from the spot. Mahi Tudu came back and after her brother reached, she told about the incident to him. Both the brother and sister went to the spot and found Jhana lying dead in a pool of blood. They called the villagers and the Gramrakhi. The Gramarakhi lodged the report in Bisoi Police station and after investigation, charge-sheet was submitted against the accused-appellant and the co-accused Furmal Kisku.\n<\/p>\n
4. The plea of the defence was of complete denial. The accused persons pleaded that they have been falsely implicated due to previous enemity.\n<\/p>\n
5. In order to bring home the charges, the prosecution examined as many as 9 witnesses and exhibited 13 documents along with 7 material objects. The defence did not choose to examine any witness.\n<\/p>\n
6. On consideration of the evidence on record, trial court was of the opinion that the prosecution has proved the case against the accused-appellant Masang Kisku under section 302, I. P. C. . It, however acquitted the other accused person namely, Furmal Kisku of the charges by holding that there was no sufficient material against him.\n<\/p>\n
7. Mrs. Bharati Das, learned counsel appearing for the appellant contends that there is no eye witness to the occurrence and the prosecution case is totally based on circumstantial evidence. According to her, even if all the circumstances are taken together it cannot be said that the prosecution has satisfactorily proved that the present appellant is the author of the crime. Therefore, the trial court was not justified in recording the finding of guilt against the present appellant. Elaborating the argument, Mrs. Das submitted that p. w. 1, Mahi Tudu, who is the sister of the husband of the deceased in her evidence has categorically stated that she had not seen any assault on the deceased Jhana but only found that Jhana was lying on the<\/p>\n
ground with cut  injuries  and  the  accused  Masang and Furmal were there who were running away.    She disclosed  this fact only after her brother’s arrival.     Thereafter,  they  went to the spot and  found  cut  injuries on the head,  neck, hand  and finger of Jhana, who was already dead.   Then his brother went to inform the villagers.    This, learned counsel  for  the appellant argues, is highly  improbable  because  the  common  human   nature  is  to disclose such a fact to the  neighbours.    It was  quite unusual on the part of p. w. 1 to keep  the fact closed  to her heart and disclosed   the  same only  after  arrival  of  her   brother.     Learned counsel for the appellant further submits that p. w. 1 has stated, it was the festive  occasion  Kalipuja   day  and   all   the   villagers including  herself  had taken Handia  liquor.    She also submits that there is nothing on record to indicate as   to what transpired between the accused and   the  deceased   which   ultimately  led to her death.    There  might be  some dispute  between the accused persons and   the   husband    of   the   deceased,    but   it   cannot  be presumed that because of such enemity, the accused persons killed the deceased.    P. w. 2 in his deposition has stated that there was a quarrel regarding the damage of the brinjal plants by his cattle, but nothing has come out   regarding   the   motive  to kill the wife of p. w. 2.    P. w. 2 also stated that all of them had  taken Handia on that date.    It is further argued by the learned counsel for the appellant that  as all   had  taken Handia  and   were    under the influence of liquor and intoxication, they were not in a position to know what was right or wrong  and that the occurrence might have taken place due   to  sudden    provocation.     This  argument cannot, be accepted as there is  nothing  in evidence on record and such a plea has never been taken by the defence.\n<\/p>\n
8. Ext. 6, is the statement of accused Masang while in police custody. According to the prosecution, this accused disclosed that he had kept the weapon of offence which is ‘KAPI’ concealed in an ‘Asan’ tree and kept his blood stained chadar in his house. On the basis of the aforesaid disclosure, the ‘KAPI’ was seized. P. w. 4 is the witness to such seizure. He has stated, “In our presence the accused Masang gave statement that he concealed<\/p>\n
the Tangi (Kapi) on an Asan  tree.    Masang  said  that  he would show the tree.    Being led by him we  all   went to the Asan tree. Masang pointed out the place on the tree where he had concealed the Tangi.    Police Babu asked me to  climb the tree and to bring the Tangi.    I climbed  the  tree  and brought the Tangi,    There were blood stains and hairs on the Tangi.   Police Babu seized the Tangi…..” P. w. 6   is  a witness to  the   seizure of   wearing
\napparels of the accused. In his evidence he has stated that they all went to the house of accused Masang. Accused Masang produced one chadar, one Ganji, and one underwear with stains of blood found on the said articles. The evidence of p. w. 9, the doctor, reveals the following injuries on the person of the deceased :\n<\/p>\n
(1)  Cut in jury on the right side skull over the angle of the eye on the perietal bone about 2 in size. There was fracture of the perietal bone with haematoma at the side of the injury.\n<\/p>\n
(2)   Cut  injury on the zygemetic bone extending up to the middle of  ear and back of the neck.    Size 6' X 3'.    There was fracture of the temporal bone underneath.    The right ear had been cut into two parts.\n \n\n(3)   Cut injury from the base of the mandible 7' X 3' extending up to the back of the neck. The large vessels and underlying structures beneath this injury had all been cut.\n \n\n(4)   Cut injury about 3' from the medial end of the left eye extending upto the fore-head. Pupil and the left eye have been cut in the middle.\n \n\n(5)   Cut injury on the right forearm 3' x 1' on the lateral side.\n \n\n8. In her statement the doctor stated that the injuries were caused by sharp cutting weapon.\n \n\n9. The tangi which was recovered along with blood stained hairs were examined by the Director and Chemical Examiner to the Government of Orissa and the examination report which is exhibited as Ext. 12 indicates that the tangi\n\n<\/pre>\n
contains human blood and no opinion can be given as it is deteriorated. The chadar which was seized from the house of the accused was stained with human blood of ‘O’ group. The saree, blouse, and saya of the deceased were stained with human blood of ‘O’ group. So, the blood stains found on the chadar matcbes with the blood group of the deceased which is also ‘O’ group. Though the Tangi was stained with blood, no opinion has been given regarding its group. It is also found that the hair found from the weapon and the hair found from the deceased matched with each other.\n<\/p>\n
10. Learned counsel for the appellant submits that the statement recorded by the police authorities, part of which is marked as Ext. 8, which led to tbe discovery of the weapon as well as the blood stained chadar is not in terms of section 27 of the Evidence Act because, tbe police authorities are to record it separately and not in tbe manner as has been done in the present case and nobody has witnessed it. Hence, the same is not admissible in evidence Similar question had come up for consideration before this Court in the case of Bhakua Kampa and others v. State of Orissa, reported in 1996 Crl. L. J. 350, and the Court held that the statement of the accused is not required to be recorded separately and to be signed by the accused. There is nothing under section 27 of the Evidence Act which requires such a recording. Section 27 of the Evidence Act envisages as follows :\n<\/p>\n
 “27. How much of information received from accused may be proved. – Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, are related distinctly to the fact thereby discovered, may be proved.”\n<\/p>\n
11. In the case at hand, the statement of the accused was recorded in a separate sheet and the accused has also put his thumb impression and the trial court has also utilised that part which distinctly relate to discovery. The part that relates<\/p>\n
to leading to discovery has been exhibited as Ext. 8. Learned counsel for the appellant further submits that no witnesses were present when the statement was taken by the police officer in Ext. 6 which ultimately led to the so-called discovery. Hence, it is not admissible under section 27 of the Evidence Act. In this regard, this Court in the case reported in (1999) 16 O, C. R. S. C. 575 (State of Himachala Pradesh v. Jeet Singh)<\/a> has held that it is not necessary that other witnesses should be present when the accused was interrogated by the I. O. So, this contention is not tenable. The nest ground on which the impugned judgment was attacked by the learned counsel for the appellant is that mere recovery of wearing apparels is not enough to implicate the present appellant with the commission of offence. She drawn our attention to a decision of this Court reported in 88 (1999) C. L. T. 14, (Paulvs Oram v. State, of Orissa)<\/a> wherein this Court held that whatever may be the nature and gravity of the offence, it would not be lost sight of that judicial determination has to be made on the basis of evidence led during trial and not other-wise.\n<\/p>\n
12. She further argues that the blood stained clothes which were seized do not belong to the appellant, as has been stated by him in his statements under Section 313, Cr. P. C.. That apart, though the ‘Kapi’ was seized and has been opined to be stained with human blood, but no opinion has been given as to the blood group since the same was deteriorated. Now the question arises whether the seizure of blood stained chadar which matches the blood group of the deceased can alone be said to be sufficient to hold that the appellant was the author of the crime. Other corroborative evidence arc also necessary to fasten the appellant. There is no material also on record to find that the chadar belonged to the accused appellant and the accused had used the same on the date of incident. P. w. 1. who is the sister of the husband of the deceased does not say anything regarding the fact that the accused was using the chadar. It is admitted that the house where the seizure was made, was occupied by other members of his family. The morphological and microscipic examination of hairs revealed that they are of human origin and<\/p>\n
may be similar to each other. The finding of the learned trial court to the extent that weapon of offence contained some hairs similar to the hair of the deceased, is not correct, as there is no definite opinion regarding this in Ext. 13 which is a report of the serologisr.\n<\/p>\n
13. Now, the question arises whether, taking all these things together, it can be said that the chain is complete to fasten the accused with criminal liability. The finding of trial court is that p. w. 1 saw the accused persons near the deceased immediately after the shout and the accused persons were running away. P. w. 1 told to p. w, 2 as well as other witnesses that the
\naccused persons caused the death of the deceased by cutting her neck. The relevant portion of the deposition of p. w. 1 is as follows :\n<\/p>\n
 ” x x x I came  out and  went  towards the sound of Jhana and there I found Jhana  lying on the ground with
\ncut injuries, on her person. She was bleeding profugely. Accused Masang and Furmal were there. After cutting Jhana they were running away from the spot. x x x ”\n<\/p>\n
14. The statement of p. w. 1 is crystal clear that when she reached at the spot, Jhana was lying on the ground with cut injuries on her person. Then she stated that after cutting Jhana the accused persons were running away. So, if her evidence is read in its entirety, it can be safely said that Mahi Tudu, was a post-occurrence witness. In her cross-examination she has admitted that she did 1191 see the cutting of Jhana by the accused, persons. Moreover in her statement she said that both the accused persons cut Jhana. This being the position we have, no hesitation to say that there is shroud of doubt in the statement of p. w. 1, and we are of the opinion that the prosecution has not proved its case beyond all reasonable doubt in a case which is totally based on circumstantial evidence.\n<\/p>\n
15. Accordingly, the appeal is allowed, and the order of, conviction and sentence as passed against the appellant is set aside. The accused appellant be released forthwith, unless he is required to be in custody in connection with any other case.\n<\/p>\n
M. Papanna, J.–I agree.\n<\/p>\n
16. Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Masang Kisku vs State Of Orissa on 11 December, 2000 Equivalent citations: 2001 CriLJ 1633, 2001 I OLR 188 Author: B P Das Bench: B Das, M Papanna JUDGMENT B. P. Das, J. 1. This appeal is directed against the judgment and order dated 24-3-1993 passed by the learned Sessions Judge, Mayurbhanj, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-146129","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nMasang Kisku vs State Of Orissa on 11 December, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/masang-kisku-vs-state-of-orissa-on-11-december-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Masang Kisku vs State Of Orissa on 11 December, 2000 - 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