ORISSA HIGH COURT,CUTTACK JCRLA NO. 52 OF 2002 From the judgment and order dated 2.7.2002 passed by the learned Additional Sessions Judge, Angul in Sessions Trial No.113-A of 2000 (30 of 2000) arising out of G.R.Case No.389/2000 committed by the learned S.D.J.M.,Angul corresponding to Jarpada P.S.Case No.61 dated 2.7.2000. ---------- Biranchi Dehury … Appellant -versus- State of Orissa … Respondent For appellant - Mr. S.S.Mohanty For respondent - Addl. Government Advocate PRESENT: THE HONOURABLE SHRI JUSTICE L.MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ----------------------------------------------------------------------------------- Date of hearing & judgment- 2.11.2011 ----------------------------------------------------------------------------------- L.Mohapatra,J. This appeal is directed against the judgment and order dated 2.7.2002 passed by the learned Additional Sessions Judge, Angul in Sessions Trial No.113-A of 2000 (30 of 2000) convicting the appellant for commission of offence under section 302 of the Indian Penal Code (for short, the I.P.C.) and sentencing him to undergo rigorous imprisonment for life. 2. Prosecution allegation is that on 2.7.2000 deceased along with family members had been to their groundnut field. Appellant came there in a naked condition. The family members working in the field seeing the appellant in naked condition ran away from the place. When the deceased protested, appellant suddenly picked up a ‘kanka’ and assaulted the deceased causing his death at the spot. Matter was reported to the police by Sarat Chandra Sahu(P.W.1) and investigation was taken up. Charge-sheet was filed against the appellant for commission of offence under section 302 of the I.P.C. 3. In order to prove the charge, 11 witnesses were examined on behalf of the prosecution. P.W.1 is a post-occurrence witness and is the brother of the deceased. He lodged the F.I.R. P.W.2 is also a post- occurrence witness and had seen the appellant at the place of occurrence with the weapon of offence. P.W.3 is a witness to the inquest as well as seizure under seizure list Ext.3. P.W.4 is an eyewitness to the occurrence and much importance has been given by the trial court to evidence of this witness. P.W.5 is also a post- occurrence witness who had seen the appellant standing near the deceased immediately after the occurrence with the weapon of offence and he is also nephew of the deceased. Similar is the evidence of P.W.6 who came to the spot after the occurrence and saw the appellant standing with the weapon of offence. P.W.7 happens to be the daughter of the deceased. She had seen the appellant coming in a naked condition and seeing the appellant she along with his mother and sister left the place leaving the ‘kanka’ at the spot. P.W.8 is the doctor who conducted post-mortem examination and P.W.9 is the constable who accompanied dead body of the deceased for post-mortem examination. P.W.10 is a witness to seizure and P.W.11 is the Investigating Officer. 2 Plea of defence is complete denial of the prosecution case. Trial court relying on the evidence of eyewitness P.W.4 and also evidence of post-occurrence witnesses coupled with evidence of P.W.8 found the appellant guilty of the charge and convicted him thereunder. 4. Shri Mohanty, learned counsel for the appellant drew attention of the Court to the evidence of P.Ws.3,4,5 and 6 and contended that conduct of the appellant immediately prior to the occurrence, at the time of commission of offence and after the occurrence clearly indicate that he was of unsound mind. Learned counsel for the appellant contended that P.W.4 could not have seen the occurrence as claimed by him as he came to the spot only after arrival of P.Ws. 5 and 6. Though plea of insanity was not taken by the defence at the time of trial and no evidence had been adduced on behalf of the appellant to substantiate such plea, relying on the evidence of prosecution witnesses such plea has been developed by the learned counsel for the appellant at the time of argument. Learned counsel for the State relying on the evidence of P.W.4 the sole eyewitness to the occurrence submitted that there is no reason to discard evidence of said witnesses. It is further submitted by the learned counsel for the State that neither plea of insanity had been taken as a defence at the time of trial nor any evidence had been 3 adduced to substantiate such plea. Conduct of the appellant is also not such that inference could be drawn that he was of unsound mind. 5. On scrutiny of the entire evidence adduced by the prosecution we find that P.W.4 is the most relevant witness for the purpose of prosecution. This witness is the nephew of the deceased. He in his evidence stated that on the date of occurrence he along with the deceased, P.W.7, one Kasturi and labourer Mamata had been to Sagadia Chaka where they had raised groundnuts. While they were working in the field, appellant came running towards Mamata and his sister completely naked and attempted to molest Mamata. Deceased who was present in the filed raised protest. Sister of this witness and Mamata ran away out of shame leaving the ‘kanka’ at the spot. Appellant suddenly picked up the ‘kanka’ and dealt blow on the head of the deceased as a result of which he fell down in the field. Appellant thereafter dealt two other blows as a result of which deceased died at the spot. When he raised hullah P.Ws.5 and 6 came there. When the appellant saw P.Ws. 5 and 6 he threw away the ‘kanka’ and went towards the Nala. P.W.5 is also another nephew of the deceased and in his evidence he stated that on the date of occurrence deceased, P.W.7 and others had gone to the groundnut field. Hearing hullah of his brother P.W.5 went to the spot and saw the deceased lying dead and the appellant was standing with a ‘kanka’. He, in cross-examination, stated that before his arrival others had reached there. He further stated that Tuna Sahu P.W.4 reached after arrival of witnesses and made hullah. 4 Relying on this part of statement of P.W.5 it was contended by the learned counsel for the appellant that P.W.4 having arrived at the spot after the witnesses arrived, could not have seen the occurrence as claimed by him. Similarly, referring to the evidence of P.W.6 it was also contended by the learned counsel for the appellant that this witness in cross-examination further stated that P.W.4 came to the spot after his arrival and according to him P.W.4 could not have seen the alleged assault. However, evidence of P.W.7 clearly shows that she had seen the appellant coming in naked condition towards Jora and seeing him lady members left the place leaving the ‘kanka’ there. Thereafter, they were informed that the deceased had been killed by the appellant. From the evidence of P.Ws. 5 and 6 as discussed above, claim of P.W.4 that he had seen the occurrence assaulting the deceased by means of ‘kanka’ is doubtful. 6. So far plea of insanity is concerned, P.W.3 stated in cross- examination that for last two years the appellant was behaving like a mad person and he was being treated at Cuttack. He used to roam here and there. Basing on this statement of P.W.3 in cross-examination and the conduct of the appellant in coming to the place of occurrence in a completely naked condition without being armed and also not leaving the place of occurrence immediately after the incident took place, plea of insanity was advanced by the learned counsel for the appellant. This Court in State of Orissa –vs- Duleswar Barik, reported in 2008(I) OLR 118, held that where it is proved that the accused has committed 5 multiple murders while suffering from mental derangement of some sort and it is found that there is absence of any motive, secrecy, and prearrangement, and want of accomplices, it would be reasonable to hold that the circumstances are sufficient to support the inference that the accused suffered from unsoundness of mind. In the present case, as per version of P.W.3 the appellant was of unsound and was being treated at Cuttack and he used to move here and here. From the evidence of witnesses it also appears that the appellant came to the place of occurrence in complete naked condition. He was not armed. Only when deceased protested, he picked up a ‘kanka’ left by P.W.7 and assaulted the deceased. Immediately after assaulting the deceased he remained at the spot till witnesses arrived. Such conduct of the appellant prior to, at the time of and after the occurrence, satisfies the requirement as indicated in the judgment to hold that the appellant suffered from unsoundness of mind. 7. Having held that the appellant suffered from unsoundness of mind at the time of occurrence, judgment and order of the trial court convicting the appellant for commission of offence under section 302 of the I.P.C. cannot be sustained. 8. We, accordingly, allow the appeal and set aside the impugned judgment convicting the appellant under section 302 of the I.P.C. and sentencing to imprisonment for life. The appellant is acquitted of the charge. 6 It is stated by the learned counsel for the appellant that the appellant is still in custody. If that be so, the appellant, Biranchi Dehury, be set at liberty forthwith, unless his detention is required in connection with any other case. Before his release the Jail Authority is directed to get the appellant-Biranchi Dehury examined in a Government Hospital with regard to his mental condition/unsoundness of mind and if certified, he may be allowed to move free. If the appellant is found to be of unsound mind, he shall be referred to a Mental Asylum for treatment. …………………… L.Mohapatra,J. ……………………… B.K.Patel,J Orissa High Court, Cuttack, Dated 2nd November,2011/Palai 7