ORISSA HIGH COURT, CUTTACK. Government Appeal No. 4 of 1992 From the judgment of acquittal dated 31.07.1991 passed by Sri R.K. Mohanty, learned Sessions Judge, Kalahandi at Bhawanipatna in Sessions Case No.19 of 1990, involving offence under Sections 302/307, I.P.C. ---------- State of Orissa … Appellant Versus Ganapati Rana … Respondent For Appellant : Additional Govt. Advocate. For Respondent : M/s. S.K. Mund, D.P. Das and J.K. Panda. ---------- P R E S E N T : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH --------------------------------------------------------------------------------------------------- Date of Judgment : 21.09.2011 --------------------------------------------------------------------------------------------------- C.R. Dash, J. This appeal arises out of the judgment of acquittal dated 31.07.1991 passed by learned Sessions Judge, Kalahandi at Bhawanipatna in Sessions Case No. 19 of 1990. 2. The prosecution case, as found from the record, is as follows :- It was 9.00 A.M. on 13.01.1990. Deceased Bhaja Rana with his two sons namely Dalaganjan Rana (informant/P.W.1) and Sasabindu Rana (not examined) were engaged in sowing groundnuts in their field locally known as ‘Barakhal’ in village Pipalchandi under Nuapada P.S. Dalaganjan Rana (P.W.1) was ploughing the land with the help of a pair of bullocks and Sasabindu Rana was ploughing the land with the help of a pair of buffalos. Deceased Bhaja Rana was sowing groundnuts near Dalaganjan (P.W.1). At that time respondent Ganapati Rana with his son Kalakanhu Rana entered inside that field and started ploughing. The deceased protested. Reacting to the protest of the deceased Bhaja Rana, the respondent gave two blows on the head of the deceased by a ‘Tangia’ (M.O.-1). Deceased Bhaja Rana fell down on the land with bleeding injuries. Then respondent gave third blow with the same ‘Tangia’ on the neck of the deceased. Dalaganjan (P.W.1) rushed holding a stick to protect his father. The respondent gave a blow with the same ‘Tangia’ aiming at the neck of Dalaganjan (P.W.1), but the blow struck his left shoulder causing thereby bleeding injury. The other witnesses namely Prahallad Rana (P.W.2), Jagannath Rana (P.W.3), Gopabandhu Rana (P.W.4), Ramnath Rana (P.W.5) and Rohit Rana (P.W.6), who were there in their respective fields, came running to the spot. Seeing them, the respondent and his son decamped with the weapon of offence. Dalaganjan (P.W.1) and some others carried the deceased in a basket to the nearby canal and from the canal they took the deceased to village Pipilichandi by a bullock-cart. Near the house of Jalasai Majhi (some of the witnesses are saying “Dolasai Majhi”, which may be a wrong recording by the learned trial court), the deceased succumbed 2 to the injuries. At about 12.30 P.M., Dalaganjan Rana (P.W.1) lodged a verbal report at Lakna Out-Post under Nuapada P.S. Station Diary Entry No.203 dated 13.01.1990 was made in Lakna Out-Post by Constable No.328 Dibyasingha Sahu (not examined). On the same day (13.01.1990) at 2.00 P.M. the F.I.R. vide Ext.1 was forwarded to Nuapada P.S. by Lakna Out-Post. The Officer-in-charge of Nuapada P.S. (P.W.12) registered a case, took up investigation and filed charge-sheet under Sections 302/307, I.P.C. against the respondent on completion of the investigation. The respondent on 14.01.1990 surrendered before the O.I.C., Paikamal P.S. (P.W.14) with two axes (M.O.-I and M.O.-VIII). P.W.14 in presence of Duaru Padhan (P.W.11) and Purna Chandra Mohanty (P.W.13) seized both the axes. P.W.13 also made a Station-Diary Entry vide S.D. Entry No.295 dated 14.01.1990 showing surrender of the respondent and seizure of the axes (‘Tangia’) and intimated the O.I.C., Nuapada P.S. over telephone about such fact. On the same day the O.I.C., Nuapada P.S. (P.W.12) brought the respondent to Nuapada P.S. and forwarded him to Court on 15.01.1990. 3. The prosecution has examined 14 witnesses to prove the charge. As introduced supra, P.Ws.1 to 6 are eye-witnesses to the occurrence, P.Ws.7 and 10 are witnesses to different seizures, P.Ws.11 and 13 are witnesses to seizure of the axes (M.Os. I and VIII) by P.W.14, P.W.8 is the Medical Officer who examined the injured Dalaganjan Rana (P.W.1), P.W.9 is the Medical Officer who conducted autopsy on the dead body of the deceased. P.W.14 is the 3 O.I.C., Paikamal P.S., before whom the respondent surrendered and produced the axes (M.Os. I and VIII) and P.W.12 is the I.O. The defence plea is one of complete denial. 4. Learned Trial Court on consideration of the evidence on record, acquitted the respondent of the charges on the ground of benefit of doubt. 5. Learned Addl. Govt. Advocate submits that the learned Trial Court having not discussed the evidence of the occurrence witnesses, i.e., P.Ws.1 to 6 and having attached unnecessary importance to the facts that there was some doubt regarding lodging of the F.I.R. and the Station Diary Entry made in Lakna Out-Post was not exhibited, the findings arrived at by the learned Trial Court is perverse. Learned counsel for the respondent on the other hand takes us through the evidence on record to show that there are various discrepancies and contradictions in the evidence of the occurrence witnesses and the entire prosecution case becomes doubtful. He further submits that the learned Trial Court has reached a just decision in acquitting the respondent. 6. Coming to the fact of the case, we find that all the eye- witnesses are descendants of a common ancestor. They are testified to be engaged in their respective fields in agricultural operation like Dalaganjan Rana (P.W.1) at the relevant time of occurrence. The respondent is also a common descendant along with P.Ws.1 to 6 of the same common ancestor. It is the specific case of the prosecution that 4 there was partition among the shareholders in the Police Station earlier to the occurrence and the deceased with his sons was engaged in sowing groundnuts in the spot land on the date of occurrence. The spot land however, according to P.W.1 (cross-examination, para-6), is recorded in the name of the respondent. It is the prosecution case that the spot land felt in the share of the deceased in the partition earlier to the occurrence. The occurrence seems to have arisen out of bona fide claim of right over the spot land. The prosecution case is to the effect that the deceased with his son was ploughing the land to sow groundnuts and the defence case, as found from the statement of the respondent recorded under Section 313, Cr.P.C., is to the effect that the deceased and others had not gone to the land to sow groundnuts. In view of the rival claims of the parties over a piece of land and the occurrence witnesses having testified to be present in their respective fields at the relevant time of occurrence, it was the duty, though not mandatory, on the part of the I.O. (P.W.12) to prepare a Spot Map with reference to the witnesses present surrounding the spot. The I.O. however has ipse dixit testified that he has not prepared any Spot Map in the case. Argument is advanced by learned counsel for the respondent to the effect that the entire occurrence is shrouded in mystery, if the evidences on record in their entirety are taken into consideration. It is further submitted that there is nothing to prove that the deceased with his son was sowing groundnuts in the spot land. We propose to discuss the alleged suspicious features of the prosecution case one by one. 5 7. Prosecution case is to the effect that Dalaganjan Rana (P.W.1) at the time of occurrence was engaged in ploughing the land with a bullock-plough and his brother Sasabindu Rana (not examined) was engaged in ploughing with a buffalo-plough and the deceased at that time was engaged in sowing groundnuts near Dalaganjan Rana (P.W.1). At that time the respondent and his son are alleged to have come over the spot land to forcibly plough the same. P.W.1 in paragraph-7 of his cross-examination has testified that Kala Kanhu, son of the respondent was holding a plough and the respondent was holding a basket of groundnut-seeds at the time of occurrence. It is the further prosecution case that deceased Bhaja Rana only asked the respondent as to why has he (respondent) come over that land. Respondent only uttered “ETA THUR BUA RA BHAGA KI” and saying so, he (respondent) assaulted the deceased by a ‘Tangia’ on his head with two blows and with the third blow on his neck when the deceased fell down. Thereafter the respondent is alleged to have assaulted Dalaganjan Rana (P.W.1) by the same axe (Tangia). When the witnesses present around the land rushed to the spot, they (respondent and his son) decamped from the spot, presumably leaving the things they had brought (as it is specifically testified by the witnesses that they decamped with the axes). Immediately, Dalaganjan (P.W.1) and other witnesses are testified to have shifted the deceased in a basket near the canal and from there by a bullock- cart to the village. There is nothing on record as to what happened to the bullocks and ploughs used by Sasabindu and Dalaganjan (P.W.1). Sasabindu is alleged to have left the spot out of fear on seeing the assault on his father (deceased). If the entire scenario is taken into 6 consideration, there should have been at least three ploughs lying on the spot, i.e. one brought by the respondent and the other two brought by Dalaganjan Rana (P.W.1) and his brother Sasabindu Rana (not examined). If the deceased was sowing groundnut-seeds at the time of occurrence and at that time he was assaulted, the groundnut-seeds should have lied scattered at the spot, as the deceased is alleged to have fallen down on receiving axe blows on his head. Further, the pot / basket containing the groundnut-seeds held by the deceased ought to have lied at the spot, as all present, left the spot leaving everything there, as they had anxiety to save the life of the deceased first. Another suspicious feature which disturbs our mind is that any person with a little knowledge about ploughing by cattle / buffalo must have the knowledge that a pair of bullock or buffalo is tied to a yoke and thereafter the plough is attached to the yoke in the middle by fixing it with ropes. If plough is attached to the yoke and bullocks or buffalos are tied to the yoke, the bullocks / buffalos may not be able to move far with the plough attached to the yoke, with which they are tied on either end, as the plough may get stuck to the ridges of the field. The prosecution case is to the effect that both Dalaganjan (P.W.1) and Sasabindu (not examined) were engaged in ploughing the land at the time of occurrence. Such a fact, therefore, is clear to show that the ploughs were attached to the yokes and the buffalos and bullocks were tied to the yokes to make the ploughing possible. There is nothing on record to show that anybody had untied the bullocks and buffalos from the yokes after the occurrence, rather there is evidence to show that immediately after the occurrence, Dalaganjan (P.W.1) and other witnesses left the spot with the deceased (Bhaja Rana) carrying him in 7 a basket. It is the further case of the prosecution that the respondent and his son came over the land to plough the land. But there is nothing on record to show as to whether they had brought any bullock or buffalos for the said purpose. If these facts are taken into consideration, the I.O. at the time of spot visit, which, according to the seizure list Ext.7 is 3.30 P.M., must have also found the bullocks tied to the yokes being attached with the ploughs at the spot. He (the I.O.) must have found at least three ploughs, i.e., one plough brought by the respondent without being attached to any yoke or bullock and two ploughs used by Dalaganjan (P.W.1) and his brother Sasabindu attached to the yokes, if at least some villager out of his own might have untied the bullocks and buffalos from the yokes. 8. Taking the entire scenario into consideration, we may examine the evidence of the I.O. (P.W.12). The I.O. is testified to have held inquest over the dead body of deceased Bhaja Rana. The I.O. has stated thus :- “……I visited the spot. I held inquest over the dead body of Bhaja Rana and prepared the inquest report in presence of witnesses….” Such cryptic evidence by the I.O. is not intelligible as to what does he mean by ‘the spot’ – whether it was the spot where the dead body was kept, i.e. near the house of Jalasai Majhi or it was the Barakhal land. In paragraph-3 of his examination-in-chief, the I.O. is testified to have seized blood-stained earth, sample earth, bamboo baskets containing groundnut-seeds belonging to the accused-respondent and one 8 wooden plough-share vide Ext.7. P.W.10 is a witness to such seizures. He (P.W.10) has testified that the police seized some blood- stained earth, sample earth, two bullocks, one plough from the place of occurrence of Barkhal land and prepared the seizure list vide Ext.7. The seizure list, vide Ext.7, speaks of seizure of the following materials :- (i) Blood-stained earth from two places; (ii) Sample earth; (iii) One bamboo basket (blood-stained) of deceased Bhaja Rana; (iv) One bamboo basket containing about 1 ½ Kgs. of groundnut-seeds of the respondent Ganapati Rana; (v) One yoke tied to a plough belonging to the respondent. The I.O. (P.W.12) has not cared even to describe the spot. There is nothing to show as to whether groundnut-seeds were lying scattered at the spot and whether there were any groundnut-seeds in the bamboo- basket asserted to be that of the deceased Bhaja Rana. It is further found from the seizure list Ext.7 that the bamboo basket belonging to the deceased Bhaja Rana was stained with blood, but the said basket was not sent for chemical examination report, as found from the forwarding report of the I.O. and the chemical examination report (Ext.14). The I.O. (P.W.12) has found on the spot, if he is believed, one yoke and one plough that too belonging to the respondent. But there is nothing on record to show about the ploughs and yokes asserted to be used by Dalaganjan Rana (P.W.1) and Sasabindu Rana 9 for ploughing the spot land. No groundnut-seeds having been found scattered or having been found in the bamboo basket alleged to be blood-stained and belonging to the deceased Bhaja Rana and said bamboo basket having not been sent for chemical examination, the defence plea of the respondent to the effect that the deceased and his sons were not sowing groundnut-seeds at the time of occurrence appears to be probable. The aforesaid facts alone, if considered by taking into consideration the entire scenario, make the prosecution case doubtful so far as the spot of the occurrence is concerned. If there is infirmity as to the spot of occurrence, all witnesses asserting to have seen the occurrence at the very particular spot are bound to become infirm. 9. The other doubtful features of the prosecution case are as follows :- (i) P.W.1 in paragraph-4 of his deposition has testified that Ramachandra Rana, Raidhar Rana, Baja Rana were ploughing their land and they ran to the place of occurrence. None of the aforesaid persons was examined by the prosecution. P.W.1 has not whispered about presence of any of the witnesses like P.Ws.2 to 6 at the spot; (ii) None of the neighbouring tenants, whose presence for agricultural operation at the relevant time of occurrence is natural, were examined; (iii) P.W.4 Gopabandhu Rana in paragraph-3 of his deposition has testified that the respondent was creating 10 disturbance to the cultivation of his (P.W.4’s) land and the lands of Jagannath Rana (P.W.3) and Prahallad Rana (P.W.2). Such a fact goes to show the specific interestedness on the part of the aforesaid witnesses to falsely implicate the respondent to get rid of him. (iv) P.W.3 Jagannath Rana has testified that except Jaladhar Rana (not examined), Gopabandhu Rana (P.W.4) and Prahallad Rana (P.W.2), none has seen the occurrence. His evidence therefore excludes Ramnath Rana (P.W.5), Rohit Rana (P.W.6) as eye-witnesses to the occurrence. (v) Sasabindu Rana, another son of the deceased though stated to be present at the time of occurrence and stated to have left the place on seeing the occurrence, was not examined by the prosecution. (vi) The witnesses in their evidence have shown their presence in their respective lands and they are testified to be engaged in some work or other in their land. If P.W.1 is believed, there was no noise, altercation or exchange of hot words between the parties preceding the occurrence. Therefore, there is nothing on record to show as to what attracted the attention of the witnesses engaged in different works in their respective fields and facilitated them witnessing the entire occurrence, which they have testified in a parrot-like manner. (vii) P.Ws.1 and 2 in their evidence have testified that son of the respondent was holding a plough and the respondent was holding a basket of groundnut-seeds at the time they 11 entered to the spot land. There is no evidence that any of them was holding ‘Tangia’ at the time of occurrence and it is difficult to find out as to how the respondent could find a ‘Tangia’ at the place of occurrence to deal blows with it on the deceased. (viii) P.W.14 in his evidence has testified that the respondent surrendered with two axes (‘Tangias’) in Paikamal P.S. Both the independent witnesses, i.e. P.Ws.11 and 13 however did not support such evidence when they said that they had never seen the accused in the P.S. and those axes (‘Tangias’) were kept in the Police Station. (ix) The I.O. (P.W.12) has proved the F.I.R. vide Ext.1. He, in paragraph-13 of his deposition, has testified that P.W.1 Dalaganjan Rana himself had scribed the report (F.I.R.). Such an assertion has been denied by P.W.1, who is testified to have lodged an oral report scribed by another person. Be that as it may, the F.I.R. is stated to have been sent immediately on 13.01.1990 to Nuapada P.S., but the endorsement in the F.I.R. (Ext.1) shows that it was sent to learned S.D.J.M. only on 15.01.1990. Learned Trial Court in detail has discussed the effect of suppression of the Station Diary of Lakna Out-Post, Paikmal P.S. and non-examination of Constable No.328 Dibyasingh Sahu and the suspicious features touching the F.I.R. The rationale supplied by learned Trial Court on these aspects cannot be dismissed as “too technical”. 12 10. All the aforesaid features taken together cast a doubt on the veracity of the prosecution case, and on thorough consideration of the materials on record, we do not find any justification to take a different view. 11. The Government Appeal is therefore dismissed. ………………………. L. Mohapatra, J. ………………………. Orissa High Court, Cuttack. The 21st day of September, 2011. /Parida. 13