State of Orissa vs Rajkishore Subudhi and Others

L. Mohapatra, J.—This appeal at the instance of the, State, is directed against the judgment and order of acquittal recorded by the Learned Additional Sessions Judge, Bhubaneswar in Sessions Trial Case No. 2/1 of 1987 acquitting all the Respondents of the charges under Sections 302/34 Indian Penal Code.

The prosecution allegations are that the family of the accused persons and the family of the deceased were at the daggers end prior to the date of occurrence. About ten months prior to the date of occurrence, there was a quarrel between the father of the Respondents and the family of the deceased relating to a well. Some time after such quarrel the three Respondents had thrown a bomb which had caused severe injuries to the deceased and he was treated in the hospital for about three months. On 29.4.1986 while the deceased was returning from Jatni after attending his work in the Malgodown, near about Chitralaya Cinema, the three Respondents suddenly emerged from the bush on the road side. The Respondents Saroja and Dukha being armed with farsa and Respondent Rajkishore being armed with tenta, caused severe injuries to the deceased. P. Ws.1 & 2, the sons of the deceased were coming from behind and saw the occurrence from a distance of about 200 quibits and shouted for help. Respondents thereafter fled away from the place. The said two sons; P. Ws.1 & 2 came to the spot and found their father lying with several bleeding injuries. P.W.2 remained at the spot whereas P.W.1 rushed to the Jatni Police Station for lodging the F.I.R.. P.W.1 and the police officials came to the spot and found the deceased was still alive though he was not able to say anything. The deceased was carried in the trekker to the Capital Hospital in the same vehicle where he was declared dead on arrival. On the basis of such allegations, the F.I.R. was registered, investigation was taken up and on completion of investigation, charge-sheet was filed for commission of offences under Sections 302/34 Indian Penal Code against all the Respondents.

Prosecution examined nine witnesses to prove the charges but none was examined on behalf of the defence.

The plea of the defence was of denial of the entire prosecution case.

The Trial Court on analysis of evidence, was of the view that the distance between the place of occurrence and the place where P. Ws.1 & 2 were standing was such that they could not have seen the occurrence from such long distance. The Trial Court also found that the so-called dying declaration made by the deceased, is not acceptable. Having found thus, the Trial Court acquitted all the Respondents.

Shri Mohapatra, Learned Counsel appearing for the State assails the impugned judgment on the ground that P. Ws.1 & 2 who are none other than the sons of the deceased, had witnessed the occurrence from a distance of 200 quibits and their versions being consistent and trustworthy, there was no reason for the Learned Additional Sessions Judge to disbelieve their testimony. Apart from the above, it was also contended by the Learned Counsel for the State that the dying declaration made by the deceased was not accepted by the Trial Court without assigning any reason and if the dying declaration is accepted along with other evidence on record, the Respondents could have been convicted for the offence alleged. Mrs. Jena, Learned Counsel engaged by this Court to defend the Respondents, drew the attention of the Court to the findings of the Learned Additional Sessions Judge and submitted that the distance between the place of occurrence and the place where P. Ws.1 & 2 were standing, is about 200 yards and from such a long distance, P. Ws.1 & 2 could not have seen the occurrence, as rightly found by the Learned Additional Sessions Judge. So far as the dying declaration is concerned, the Learned Counsel further submitted that such dying declaration not being found to be voluntary, was rightly not accepted by the Trial Court and in absence of any other material, the Trial Court was justified in acquitting the Respondents of the charges.

The witnesses on whom much reliance is placed by the prosecution, are P. Ws.1, 2 & 4. P.W.1 is one of the sons of the deceased. In his deposition, he has stated that on the date of occurrence, he and P.W.2 saw the Respondents Saroja and Dukha assaulting the deceased by means of farsa and the other Respondent Rajkishore assaulting by means of tenta on the pack of the deceased. They saw the incident from a distance of about 200 quibits. P.W.2 who is another son of the deceased, has corroborated the evidence of P.W.1 and he has also stated that he along with P.W.1 saw the occurrence from a distance of 200 quibits. The Learned Addl. Sessions Judge considering the evidence of P. Ws.1, 2 & 4 as well as the evidence of the I.O. and the spot map, came to a conclusion that the distance between the place where the occurrence took place and the place where P. Ws.1 & 2 were standing, is near about 200 yards. To find out as to whether such a conclusion is correct or not, we have perused the evidence of P. Ws.1, 2 & 4 and the I.O.P. Ws.1 & 2 have stated to have seen the occurrence from a distance of 200 quibits. The place where they were standing, is before Distillary near Chitralaya Cinema Hall. P.W4 has stated that he has been working in the Distillary for last seven to eight years and the said Distillary is in the west of Chitralaya Cinema Hall. The distance between Chitralaya Cinema Hall and the Distillary would be about 300 to 400 yards. The prosecution allegation is that the deceased was assaulted in between Chitralaya Cinema Hall and the Kudiary liquor bhati. The I.O. (P.W.9) has stated that P.W.2 in his statement made before him u/s 161, Code of Criminal Procedure, has stated to have seen the occurrence from a distance of 200 yards. The spot map also shows that the distance between the Distillary and the place where the deceased was assaulted would be near about 200 yards. All these factors were taken into consideration by the Learned Addl. Sessions Judge while coming to a finding that P. Ws.1 & 2 were at a distance of 200 yards from the place of occurrence while the deceased was being assaulted. Relying on a decision of this Court in the case of Rama Chandra Jena and Others Vs. State of Orissa, , the Learned Addl. Sessions Judge held that from such a distance P. Ws.l & 2 could not have seen the occurrence. The finding of the Learned Additional Sessions Judge appears to be based on evidence available on record and one earlier decision of this Court. No unreasonableness in such findings has been brought out by the Learned Counsel for the State so as to disagree with such a finding. So far as the dying declaration is concerned, reliance was placed by the prosecution on evidence of P.W.9. The dying declaration on which reliance is also placed by the prosecution is stated to have been made before P.W.9 who is the SI of police, Jatni P.S.. In paragraph 3 of his examination in chief, this witness has stated that he brought the deceased in the office vehicle to the Capital Hospital. On the way at about 4 p.m. the deceased regained his senses and asked for a glass of water and also stated that he had been assaulted by Rajkishore Subudhi and his brother by means of a farsa and tenta at 4.30 P.M. and lost sense thereafter. This part of the evidence of P.W.9 has been disbelieved by the Learned Additional Sessions Judge on the ground that immediately after the occurrence, the deceased had lost his senses and only on the way, he regained his senses to make a dying declaration and again lost his senses. The I.O before whom such statement is alleged to have been made, has also not recorded the dying declaration separately. P.W.l has stated that he also accompanied the deceased in the jeep but he is totally silent about any such dying declaration made by the deceased. We are, therefore, of the view that the Learned Addl. Sessions Judge was justified in not referring such a dying declaration.

In view of the discussion made above, since we find that there is no unreasonableness in the findings of the Learned Additional Sessions Judge while acquitting the Respondents and such findings are based on the oral evidence of P. Ws. l, 2, 4 and 9 as well as the spot map, we have no reason to interfere with such judgment and order of acquittal.

Accordingly the Government Appeal is dismissed being devoid of merit.

B.P. Ray, J.

I agree.