Iswar Dehury vs State of Orissa

P.K. Tripathy, J.—Heard this Jail Criminal Appeal is as against the order of conviction passed by Learned Additional Sessions Judge, Deogarh in Sessions Trial Case No. 75/9 of 2002.

Prosecution case is that on 24.10.2001 the deceased went with the accused to consume Handia. They left house of the accused at about 4 P.M. In the night, the accused returned to his house but the deceased did not. On the query of P.W. 2, the widow of the deceased, accused replied that the deceased had gone to a Blacksmith. But on the following day morning, i.e., on 25.10.2001, P.W. 2 discovered the dead body of the deceased amongst a bushy forest and intimated the fact to villagers saying that on the previous day the deceased had gone together with the accused to consume Handia. The villagers confronted the circumstances to the accused at the instance of Grama Rakhi, but he gave evasive reply and when the Grama Rakhi with threat asked him to tell the truth, he made extra-judicial confession stating that he committed murder of the deceased for Rs. 10/- which was under the possession of the deceased and that he used a piece of bolder weighing 4-5 kgs. to strike on the head to the deceased of crush the same. Accused also gave recovery of a stone from a nalla. Thereafter, FIR was lodged, investigation was undertaken and ultimately the charge sheet was submitted.

Prosecution relied on circumstantial evidences, viz., extra judicial confession leading to recovery of weapon of offence and the post mortem report in support of the homicidal death. The Trial Court relied on the evidence of P.W. 5 and the post mortem report Ext. 4 to hold that the fracture of skull bone and other associated injuries are sufficient in ordinary course of nature to cause death of the deceased and that the said injuries could not have been possible due to fall. Therefore, the death of the deceased is homicidal in nature. The Trial Court also relied on the evidence of P.Ws. 1 and 3, the two witnesses to the extra judicial confession who in apart from disposing (sic.) about the extra-judicial confession, stated about the accused leading to discovery of M.O.I. The Trial Court found the evidence of P.Ws. 2, the widow of the deceased to be true as to the last seen together. In the aforesaid manner he found the accused guilty of murder u/s 302 of the IPC, convicted him there under the sentenced him to imprisonment for life as per the impugned judgment.

Learned Counsel for the appellant argues that the evidence on record was neither properly perused nor evaluated by the Trial Court and as a result of that a mistake was committed by finding the accused guilty of the aforesaid offence. According to Learned Counsel for the appellant, the evidence of P.W. 5 as has been reported under Ext. 5 together with absence of reliable information on the last seen together corroborating the post mortem report about the time of death suggests thereby that the accused could not have been the author of the crime.

Learned Addl. Government Advocate is unable to meet the aforesaid points in view of the lack of evidence contrary to the aforesaid criticism levelled by the appellant. On perusal of the evidence of P.W. 5 and the post mortem report Ext. 5, we see that there were crush injuries with multiple fractures of mandible, upper jaw bones and bones of face. The front parietal region of skull was also fractured corresponding to consequential external and internal injuries for the instantaneous death of the deceased. While opining about the homicidal death, it is stated by P.W. 5 and also noted by P.W. 4 that time of death was more than 72 hours by the time of post mortem examination. Post mortem examination was conducted at 12 noon of 27.10.2001. Therefore, the person who was last seen with the deceased before the noon of 24.10.2001 could not be attributed to the crime and not also the accused who allegedly accompanied him at 4 P.M. Prosecution neither led any evidence nor sought for appropriate clarification either from the Investigating Officer, Medical Officer or P.W. 2 to clarify the aforesaid ambiguity in prosecution evidence. Apart from that in the opinion report, Ext. 5, to the query of the I.O. (P.W. 6) P.W. 5 opined, "to the best of my knowledge, the deceased has been over powered by a group of persons". That opinion of doctor gives rise to probable suspicion of accused not being the sole person to do the mischief of causing bodily injury to the deceased. It has been stated by P.W. 3 in his evidence that accused made extra judicial confession before him and P.W. 1 and also in presence of Grama Rakhi. In cross-examination, he stated that "but when the Grama Rakhi said him to tell the truth or else he would be handcuffed, the accused said that they went together and consumed Handia together. He did not speak anything else. Again says he also admitted to have assaulted the deceased with a stone." P.W. 1 has also stated in his evidence that accused made the confession in the presence of Grama Rakhi. P.W. 2, the widow of the deceased in her examination-in-chief did not support the prosecution case relating to aforesaid extra-judicial confession. However, in cross-examination she admitted the circumstances relied on by the prosecution as such the confessional statement made by the accused in presence of Grama Rakhi and the villagers. When the evidence stands in such a manner, the Trial Court without properly following and assessing the same in accordance with law laid down in Evidence Act has mechanically endorsed the view that the chain of circumstances are complete so as to prove the charge against the accused. However, on examination of the evidence on record, we find that none of the circumstances has been proved beyond reasonable doubt to warrant a conviction against the accused.

Under the circumstances, we allow the appeal, set aside the conviction of the appellant u/s 302 of IPC and direct that he be set at liberty forthwith if his detention in jail is not required in connection with any other case.

A.K. Samantaray, J.

I agree.