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ORISSA HIGH COURT
PATHAK, C.J. AND D. P. MOHAPATRA, J.
MAKARADHWAJA BHOI AND ANOTHER
VERSUS
THE STATE OF ORISSA
Jail Criminal Appeal Nos.93, 117 and Criminal Appeal No.102 of 1980,
Decided on : 15 -12 -1983.
CRIMINAL APPEAL - MURDER - S.302, I.P.C. - EVIDENCE - APPRECIATION - EYE-WITNESS ACCOUNT - RELIABILITY - DISCOVERY OF WEAPON OF OFFENCE - CORROBORATIVE VALUE - MOTIVE - SUSPICION - FIRST INFORMATION REPORT - SILENCE ABOUT ASSAULT - IMPROVEMENT OF PROSECUTION CASE - BURDEN OF PROOF - BEYOND REASONABLE DOUBT.
Fact of the Case:
Appellants were convicted of murdering the deceased. The prosecution's case was that the appellants assaulted the deceased with a Gupti and Knife, causing his death. The appellants denied the charges.
Finding of the Court:
The court found that the prosecution's case was based on suspicion and there was no reliable evidence to connect the appellants with the crime. The court noted that the only eyewitness account was unreliable due to inconsistencies and contradictions in the witness's testimony. The court also found that the discovery of the weapon of offence was not sufficient to convict the appellants, as there was no evidence that they had made any statement leading to its discovery. The court further noted that the motive for the murder, a land dispute, was merely a suspicious circumstance and could not be a substitute for proof.
Issues: 1. Whether the eyewitness account was reliable. 2. Whether the discovery of the weapon of offence was sufficient to convict the appellants. 3. Whether the motive for the murder was sufficient to convict the appellants.
Ratio Decidendi: 1. The court held that the eyewitness account was unreliable due to inconsistencies and contradictions in the witness's testimony. The court noted that the witness had given different accounts of the incident to the police and to the court, and that his testimony was contradicted by other evidence. 2. The court held that the discovery of the weapon of offence was not sufficient to convict the appellants, as there was no evidence that they had made any statement leading to its discovery. The court noted that the place from where the weapons were seized was accessible to all, and that there was nothing to show that the appellants had concealed the weapons. 3. The court held that the motive for the murder, a land dispute, was merely a suspicious circumstance and could not be a substitute for proof. The court noted that the prosecution had not provided any evidence to show that the appellants had actually committed the murder.
Final Decision: The court allowed the appeals and set aside the convictions and sentences of the appellants.
JUDGEMENT
Pathak, C. J. :- All these three appeals arise out of a common judgment dated 15-3-80 passed by the learned Additional District and Sessions Judge, Bhawanipatna, in Sessions Case No.21-K/15 of 1979.
Appellants Makaradhwaja Bhoi and Jhaja Bhoi have filed Jail Criminal Appeal No.93 of 1980 and appellant Jogendra Sahu has filed Jail Criminal Appeal No.117 of 1980. All the three appellants have also filed a regular appeal being Criminal Appeal No.102 of 1980 through Mr. D.P. Sahu, Advocate. But before the said appeal was taken up for hearing, Mr. Sahu withdrew his appearance as he was appointed Public Prosecutor for the State. In view of this contingency, we appointed Mr. Krushna Prasad Misra, Advocate, to represent the appellants in all the three appeals at the State expense.
2. All the three appellants stood their trial under S.302/34, I.P.C. and they have been convicted under S.302, I.P.C. and sentenced to undergo R.I. for life.
3. The prosecution case in brief is that on 26th May, 1978 at about 7 P.M. while the deceased Nandeswar Bhoi was coming from the village tank, on the Duli (land) of one Lingaraj Sahu, he was waylaid by all the three appellants who assaulted him with Gupti and Knife. It was only in the next morning that Nandeswar was found by P.Ws.7, 8, 9 and 5 to be lying dead in a pool of blood at the place of occurrence. P.W.5, Kartikeswar Bhoi, lodged the First Information Report (Ext.5) at the Police Station. On receipt of the information, the police swung into action and investigation was started. In course of investigation, inquest was held on the dead body, the dead body was sent for post-mortem examination and the spot map was drawn up. On completion of the investigation, the appellants were charge-sheeted under S.302 read with S.34, I.P.C. and have been convicted and sentenced as stated above.
4. The appellants pleaded not guilty to the charge.
5. 13 witnesses were examined by the prosecution. P.W.13 is the Investigating Officer; P.W.1 is the doctor who held autopsy on the dead body and P.W.9 is the doctor who examined appellant Jogendra Sahu and found some injuries on his person.
No witness has been examined for the defence.
6. The factum of death of the deceased is not in dispute. That has been testified by P.Ws.5, 7, 8 and 6 and corroborated by P.W.1.
P.W.1 on post-mortem examination found the following external injuries on the dead body of Nandeswar:-
(1) An incised wound 5" X 2" X 2" on the back left side 3" below the left shoulder joint situated obliquely towards the vertebral column starting from mid-axillary line. The margins were clear-cut. The left side ribs 7, 8 and 9 were cut.
(2) A punctured wound ½" X ½" X ½" on the back left side 1" left to the vertebral column.
(3) A punctured wound on the right side of the chest 1" X 2½" X 1" left to the right nipple. The margins were clear-cut.
(4) A punctured wound 1" X ½" X ½" on the left side of the chest ½" below and 1" left to the left nipple.
(5) An incised wound 1" X ½" X ½" on the lateral side of the upper 3rd of the left thigh. The margins are clear-cut.
P.W.1 found the following internal in juries :-
The right lung was punctured ½" X ½" X 1" and it contained ante-mortem blood clots. The spleen was cut into two pieces and contained ante-mortem blood clots. There was a punctured wound on the greater curvature. The mouth, oesophagus, liver and kidneys were pale. Both the chambers of the heart were empty. The stomach contained undigested food particles. The intestine was swollen.
According to P.W.1, all the injuries were ante-mortem in nature and were caused by sharp-cutting weapons. He has opined that the death was due to shock and haemorrhage resulting from the injuries in the lung, spleen and stomach.
7. Mr. Misra, the learned counsel appearing on behalf of the appellants, submits that there is no cogent and reliable evidence to bring home the charge against the appellants and that the learned trial Court has convicted the appellants on the basis of the evide
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