RAMESH PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE prosecution story shortly stated is that on 15th March, 1988, at 5.30 P.M. when P.W.2, Subudhi Pradhan was in his house, Sukadev Digal (P.W.7) of his village came running and narrated that he and the deceased Sunasira Pradhan had been to Rajanbadi Padar to take Salap juice. After taking Salap juice when they were returning to village, on the way at Gotadipadar, Trikola Pradhan (not an accused) and the appellants Mathu Digal and Ramesh Pradhan came in a body and attacked the deceased Sunasira Pradhan by laying him down on the ground and dealt fist and kick blows on his chest, belly and head as a result of.which he instantaneously died. When P.W.7 Sukadev Digal questioned as to the appellants' high handed action, they assaulted P.W.7 as a reason whereof he went away from the spot out of fear. P.W.2 on being informed about the incident by P.W.7 immediately intimated to the other villagers, namely Debendra Pradhan, Bala Krushna Pradhan and Asiban Pradhan. He went to th spot first and on reaching Gotadipadar, did not find his brother at the spot, but noticed two teeth and some patch of blood. He also found the track of dragging and blood. P.W.2 following such tracking proceeded upto Alpanga Nalla and found the appellants dragging the body of his brother Sunasira and throwing it into the nalla. Appellant Mathu Digal told the other accused appellant Ramesh Pradhan and one Trikola Pradhan to finish Subudhi Pradhan (P.W.2) Jest he might inform about the incident to others. So, out of fear, he came back to his house. The appellants and their other associates after throwing the deceased into the nalla left for their houses. P.W.2 has also claimed to have informed about the incident to other villagers. Subsequently, he lodged F.I.R. which was marked as Ext. 1 before the learned Sessions Judge. On receiving the F.I.R., the Officer in charge, Sarangagada Police Station, registered the case under Sections 302/201/323/34, Indian Penal Code, and immediately took up investigation. During investigation, he recorded the statements of witnesses, held inquest over the dead body of the deceased, prepared inquest report vide Ext. 2, sent the dead body through the Challan (Ext.8) to Raikia P.H.C. for post mortem examination, made spot inspection, seized the teeth lying near the place of occurrence, seized some blood stained earth and sample earth vide seizure list (Ext. 3), issued requisition for examination of the injured (P.W.7) and after completion of investigation, placed charge sheet against the appellants. At the initial stage, it was claimed by the prosecution that the accused persons had absconded, but after being apprehended they were sent to judicial custody. After submission of the charge sheet, the learned S.D.J.M., Balliguda, committed the case to the Court of Session. On evaluation of the evidence, the learned Sessions Judge, however, was inclined to record an order of conviction against the appellants under Sections 302/201/34, Indian Penal Code, and sentenced them to undergo rigorous imprisonment for life. The appellants having been aggrieved by such conviction and sentence have preferred this appeal.

(2.) MR .Dhal. the learned counsel appearing for the appellants, has contended at the outset that the prosecution having miserably failed to bring home the charge against the appellants, the learned Sessions Judge should not have recorded an order of conviction under Sections 302/201/34, Indian Penal Code. It has been submitted that P.W.7 who is claimed to be a star witness in this case did not support the prosecution story and Anr. version has been made in course of examination in Court.

(3.) THE learned Sessions Judge has basically relied upon the evidence of P.W.2 who is none other than the brother of the deceased. P.W.2 was not an eye witness to the occurrence and he has clearly admitted to have learnt it from P.W.7. When P.W.7 did not support the prosecution story, the evidence of P.W.2 that he disclosed it after having learnt from P.W.7 does not inspire any confidence and that apart, the version of P.W.2 also appears to be based on hear say, since the maker of the statement has not supported the prosecution story. Accordingly, P.W.2's version with regard to the incident appears to be doubtful and was not supported by any other evidence. On close examination of the version of other prosecution witnesses, it seems that they are post occurrence witnesses, who reached the spot after the arrival of P.W.2. Thus in that case, it can safely be concluded that the prosecution was unable to bring home the charge under Section 302, Indian Penal Code, against the appellants, inasmuch as P.W.7 did not support the prosecution story.