Rama Majhi vs State of Orissa

B. Panigrahi, J.—The conviction and sentence passed against the appellant u/s 302/34, IPC for commission of murder of Nana by the learned Sessions Judge, Mayurbhanj directing him to undergo imprisonment for life have been assailed in this appeal.

The scenario of the prosecution story as has been unravelled during the trial is as follows :

That the de facto complainant Bhima Majhi lodged a report at Bisoi Police Station by stating that he saw a dead body at about 9.00 A.M. on 14.3.93 lying near ''"Jhairra" of village Kundura. Following such report the I.O. conducted inquest over the dead body in between 2.30 P.M. and 3.30 P.M. and thereafter it was sent for post mortem examination through the dead body challan, Ext. 2/2. An axe (M.O.I) was seized from near the dead body stained with blood. It was also sent for chemical and serological test through the learned S.D.J.M., Rairangpur. The clothes of the deceased were also seized. From the post mortem examination it has appeared that the deceased Nana met with homicidal death after receiving 7 external injuries which corresponded to four internal injuries. The Medical Officer had, however, opined that those injuries were sufficient to cause death in ordinary course of nature.

During investigation the I.O. had however unearthed the implication of the present appellant along with two others, namely, Bhuban Dehury and Sankha alias Dhabara alias Dabra Majhi and thereafter charge-sheet was laid against all of them u/s 302/34, IPC. The learned Sessions Judge, Mayurbhanj was, however, inclined to place implicit reliance on the ocular statement of P.W.9 and on such basis he convicted the appellant u/s 302/34, IPC whereas he acquitted the other two accused persons.

The learned State defence counsel has advanced the following serious contentions :

(i) When the learned Sessions Judge has acquitted the other accused persons from the charge u/s 302/34, IPC, it is not understood how he could convict the appellant alone u/s 302/34, IPC.

(ii) When the learned trial Court had disbelieved the testimony of P. W. 5 on account of poor visibility whereas he placed utmost reliance on the uncorroborated testimony of P.W.9.

(iii) In the inquest report although1 it was not necessary to mention names of the culprits, but by that time P.Ws. 5 and 9 were aware about the implication of the appellant in the crime and in that case why they did not mention the names of the assailants of deceased Nana in the inquest report.

(iv) There was no acquaitance of the present appellant with P.Ws. 5 and 9. Therefore, their identification in course of occurrence which had taken place in dark night should be of no consequence.

On perusal of the judgment it appears that the trial Court was, however, inclined to place reliance on the testimony of Bimala Mohanta, P.W.9, the daughter of P.W.5. From her testimony it has however appeared that the deceased Nana came on the preceding Saturday to their house in the evening. All the intimates including the deceased took their meal. After dinner the deceased was said to have taken rest in the eastern side room. There was no separate door to that room. P.W.9 slept with her parents in another room. Between 8 and 9 P.M. it is said that the deceased came running out of the room by raising an outcry. All the three alleged assailants entered into the room following deceased ''Nana'' despite obstruction of her father. She brought a ''dibri'' (lamp) from another room and could identify all the accused persons as she knew the appellants previously. No one can for a moment believe that all the three assailants would keep on waiting till P.W.9 brought out a ''dibri'' so that it would be easy for someone to identify them. If they wanted to commit an offence, within flickering of an eye they must have attempted to escape from the place of occurrence after the incident. If the deceased entered into the room where all the inmates were sleeping it also becomes doubtful how all of accused could enter inside the room.

It is alleged that Test Identification Parade was conducted some time after the accused were nabbed. In the T.I. parade all the three suspects were identified. The evidence adduced on behalf of the prosecution in this regard is also the same. P.W.9 stated that all the accused persons dealt blows by an axe. In such circumstances, we are at a loss to understand when the learned Court acquitted two other accused, on what further evidence he convicted the appellant ? From the testimony of P.W.9 it appears that immediately after the occurrence she went running hurriedly to her maternal uncle''s house, but the maternal uncle did not support the prosecution. In that view of the matter the evidence of P.W.9 also remains suspect.

It is true that the deceased met with homicidal death, but prosecution has utterly failed to place any cogent reliance and truthful evidence to connect the appellant in the crime. Apart from this, since all the accused persons were charged u/s 302/34, IPC and two of them have been acquitted the appellant could not have been convicted u/s 302/34, IPC. There has been no charge u/s 302, IPC exclusively. In this regard a Division Bench of this Court in the case of Puma Badnaik v. State of Orissa reported in 2002 (22) OCR 244 held that without framing independent charge on the same set of evidence if some of the accused persons were acquitted u/s 302/34, IPC it would be risky to convict any one. of the accused u/s 302/34, IPC.

From the rationale of the above judgment we hold that the appellant is not guilty for commission of the offence of murder of ''Nana''.

In the result, the conviction and sentence u/s 302/34, IPC are hereby set aside. The appellant be set at liberty forthwith.

Ch. P.K. Misra, J.

I agree.