ORISSA HIGH COURT,CUTTACK JCRA NO. 76 OF 2001 From the judgment and order dated 12.7.2001 passed by Shri A.K.Senapati, learned Sessions Judge, Keonjhar in Sessions Trial Case No.12 of 1997. ---------- Danda @ Bijaya Naik and Satari @ Zamidar Naik … Appellants -versus- State of Orissa … Respondent For appellant - Mr. Debadipta Panigrahi For respondent - Mr. Sangarm Das, Addl. Standing Counsel. PRESENT: THE HONOURABLE SHRI JUSTICE L.MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ----------------------------------------------------------------------------------- Date of hearing & judgment- 1.12.2011 --------------------------------------------------------------------------------- B.K.Patel,J. This appeal from jail is directed against the judgment and order dated 12.7.2001 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.12 of 1997 convicting the appellants under section 302 read with 34 of the I.P.C. and sentencing each of them to undergo imprisonment for life for having committed murder of deceased Rensa Munda. 2. Informant P.W.3 is deceased’s wife, P.W.4 is deceased’s mother. Appellants are brothers. Prosecution case is that on 26.8.1996 informant P.W.3 was engaged in weeding operation in a paddy field keeping her infant son on the ridge of the land. Deceased, who had been to sell fish, joined her in the afternoon and was engaged in preparation of channel for flow of water from higher land to his land. Within 5 to 6 minutes after arrival of the deceased, appellants arrived there. Appellant Danda @Bijaya was holding a lathi whereas appellant Satari @ Zamidar was holding a small axe and bow-arrow. Both of them charged towards the deceased challenging as to why he was cultivating the land giving out that they would kill him. They restrained the deceased from escaping. Appellant Danda gave lathi blow and, thereafter, appellant Satari dealt blows on the head of the deceased with the axe resulting in fatal injuries on and death of the deceased. P.W.3, out of fear, ran away and informed regarding the occurrence to Choukidar P.W.1. Thereafter, both of them came to Remuli Out Post where P.W.3 orally reported regarding the occurrence to the Assistant Sub-Inspector of Police P.W.10. P.W.10 reduced P.W.3’s statement into writing in the station diary, sent it for registration and took up investigation. On receipt of station diary entry, O.I.C. Champua Police Station P.W.9 registered the case and took over the investigation from P.W.10. On completion of investigation, charge-sheet was submitted against the appellants by P.W.15. 3. Appellant took plea of denial and false implication. 4. In order to substantiate the charge prosecution examined 15 witnesses. P.Ws.1,3,4,9,10 and 15 have already been introduced. P.Ws.2,8,13 and 14 are police constables who witnessed certain seizures 2 and assisted in the investigation. P.W.7 is the Revenue Inspector who demarcated the spot. P.W.5 is an inquest witness. P.W.11 deposed regarding previous land dispute between the appellants and the deceased. P.W.6 is the doctor who conducted post-mortem examination over dead body of the deceased. Placing reliance of the evidence of P.W.3 stated to have been corroborated by medical evidence of P.W.6, trial court held the prosecution to have proved the charge against the appellants. 5. In assailing the impugned judgment it is argued by the learned counsel for the appellants that evidence of P.W.3 is not only vague and sketchy but also is inconsistent with medical evidence of P.W.6. There is no other evidence to support the evidence of P.W.3. Even P.W.1, who is stated by P.W.3 to have accompanied her to the police station, does not corroborate P.W.3. In such circumstances, prosecution cannot be held to have established the charge against the appellants. 6. In reply, learned counsel for the State places reliance of the evidence of P.Ws. 3 and 6 to support the impugned judgment. 7. We have carefully scrutinized the evidence of the witnesses. P.W.3 deceased’s wife is the only eyewitness. She testified that the occurrence took place in the afternoon during weeding operation. She stated that she was working on her land alone keeping her young child on the ridge. Deceased had been to sell fish and on return came to the land to see the condition of water in the field. In the neighbouring land 3 nobody was working as they already left after their work. While the deceased was engaged in making water channel for passing of water to their land from the adjacent land, suddenly the appellants appeared there. Appellant Danda was armed with lathi and appellant Satari was armed with small axe. First appellant Danda dealt a lathi blow for which deceased fell down and immediately appellant Satari dealt three blows with the small axe one after other in quick succession beside right side ear of the deceased. There was profuse bleeding. Out of fear, P.W.3 picked of her child and ran away. She further testified that she came and reported regarding the occurrence to P.W.1 and with him she came to Remuli Out Post and reported regarding the occurrence. In course of her cross-examination, P.W.3 contradicted herself by stating that after the lathi blow by appellant Danda deceased did not fall down and was still standing when the appellant Satari dealt three blows with axe and thereafter deceased fell down. She further testified that she had seen only the axe blows given by appellant Satari to the right side ear of her husband before she escaped. Though discrepancy between the ocular evidence and medical evidence is not always fatal, it is admitted by P.W.6 that there was previous land dispute between them and the appellants. In view of hostile relationship and in view of contradiction made by P.W.3 in her evidence in court with regard to the occurrence itself, it is found appropriate to seek corroboration to the testimony of P.W.3. From the evidence of P.W.6 it appears that deceased was not found to have sustained any injury caused by lathi. Also deceased had no injury on the 4 right side of his head near ear. P.W.6 found two incised injuries, one on the left parietal scalp area and another over neck behind the left ear. Thus, medical evidence does not at all support testimony of P.W.3. Rather, medical evidence is not consistent with P.W.3’s allegations that appellant Danda dealt lathi blow on the deceased and appellant Satari dealt three axe blows to the right side ear of the deceased. P.W.10, A.S.I. of Remuli Out Post, stated that he seized the axe M.O.I on production by appellant Satari and bamboo lathi M.O.II on production by appellant Danda. However, from the evidence of P.W.10 it appears that none of the appellants made any disclosure statement leading to recovery while in custody. On the contrary, it appears from the evidence that appellants were arrested after seizure of axe and lathi. Moreover, evidence of P.W.10 is contradicted by P.W.13 a police constable. P.W.13 stated that both the lathi and axe were seized from a paddy field at village Taduabahal. Admittedly, evidence of no other witness suggests complicity of the appellants with murder of the deceased. P.W.1 simply identified his signature on seizure lists Exts. 1 and 2. Neither he stated to have witnessed any seizure nor did he depose to have accompanied P.W.3 to Remuli Out Post. He also did not say regarding narration of occurrence before him by P.W.3. P.Ws.2,8 and 14 who are police constables are seizure witnesses. Deceased’s father P.W.4 testified that he was informed about murder of the deceased by the villagers. Evidence of P.W.5 inquest witness and P.W.7 Revenue Inspector is also of no consequence. So also is the evidence of P.W.11 who stated regarding previous land dispute 5 between the deceased and the appellants. 8. Thus, on reappraisal of evidence, it is found that in view of inherent infirmity in the evidence of P.W.3 it would not be safe to record any finding on the basis of her uncorroborated testimony. Not only her testimony is not corroborated by any other evidence but also is inconsistent with the medical evidence. In the circumstances, prosecution is not found to have established the charge against the appellants beyond reasonable doubt. The impugned judgment is liable to be set aside. 9. We, accordingly, allow the appeal and set aside the judgment and order dated 12.7.2001 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.12 of 1997 convicting the appellants under section 302/34 of the I.P.C. and sentencing each of them to undergo imprisonment for life. The appellants are acquitted of the charge. It is stated that the appellants are in custody. If that be so, the appellants, Danda @ Bijaya Naik and Satari @ Zamidar Naik be set at liberty forthwith, unless their detention is required in connection with any order case. …………………… L.Mohapatra,J. ………………… B.K.Patel,J 6 Orissa High Court, Cuttack, Dated 1st Dec.,2011/Palai 7