DIBAKAR SADANGI Vs. THE STATE

JUDGEMENT

(1.) THIS is a reference under Section 374, Code of Criminal Procedure by the learned Additional Sessions Judge, Cuttack -Dhenkanal for confirmation of the sentence of death passed by him upon one Dibakar Sadangi who has been convicted by him under Section 302 I.P.C. The accused has also filed an appeal being Criminal Appeal No. 5 of 1955 against his conviction and sentence. The reference and the appeal were heard together by us on the 14th of February, 1955. After hearing learned Counsel for the Appellant, and the learned Counsel on behalf of the State, we came to the conclusion that the conviction of and the sentence passed upon the Appellant could not be sustained. Accordingly, we passed an order on that date setting aside the conviction and sentence of the Appellant and directing that he be set at liberty forthwith. We now proceed to give our detailed reasons for the said order.

(2.) THE accused -Appellant is a Brahmin of village Pahanga in police station Jagatsingpur. The prosecution case is that he had a mistress Malati Devi. The charge against him was that he caused the death of Malati with a Katari on the night of Wednesday, the 28th of April, 1954, at a place near the village Juanga. According to the prosecution case, the accused had no lands. He was making his living by begging, Both he and his mistress Malati were begging in the neighbouring district of Mayurbhanj. There, it is said, the accused came in contact with a young woman Bishnupriya Devi, P.W. 1, who it seems had been decided by her previous husband. She had two sons through her previous husband. The accused brought P.W. 1. with him, and P.W. 1 sold whatever belongings she had in the district of Mayurbhanj, and after P.W. 1 was brought, the accused put up a hut in village Pahanga and began to live there. This took place sometime in January, 1954. The prosecution case is that ever since the advent of P.W. 1 into the house, the accused was ill -treating Malati, as a result of which she was leaving the house off and on, and that two days prior to the occurrence, he had beaten her and brought her back to the house. On the date before the occurrence, that is, on the 27th of April, 1954, he had sent Malati Land the elder son of P. W. 1, Dinabandhu (P. W. 3), to village Tribunal which lies on the other side of the river Devi to, fetch paddy from a bhag -tenant Alekh (P. W. 4). Later on, he himself left for Tumba. All of them remained at Tumba during the night. The next day the accused sent the boy, P. W. 3 ahead with some mangoes and other articles in a tin and in the afternoon he anti Malati started for their village with a basket of paddy and some mangoes. It is said that sometime after the midnight the accused alone reached his house, and P. W. 1 heard a sound of some substance hitting a tin. P. W. 1 opened the door and enquired about Malati but the accused could not give any satisfactory explanation. In the morning, it is said, P. W. 1 bound the Katari, M. O. I, with blood -stains under a tin and a red -bordered Saree worn by Malati, the deceased, M. O. II, bearing blood -stains. This Saree, it is said, is kept in an Atika in the house. She also found that the Dhoti, M. O. II, and M. O. III which had been worn by the accused and had been cast off by him in the night after his return from Tumba, had blood -stains but she had not the courage to ask the accused about it. She then went with the paddy which the accused had brought for being husked to the house of Gopi Sadangi, an uncle of the accused and while she was there, she heard that the accused had been arrested. The dead body which was lying in a field near the village Juanga was first discovered by Pankaj Charan Lenka (P. W. 9) of that village. He noticed some vultures near about the place, and that attached his attention, and on going there he found the dead body. He showed this to the other villagers one of whom is P. W. 8. The residents of the neighbouring villages including Pahanga arrived there and identified the dead body to be that of Malati. The Choukidar Chaitan (P. W. 10) went and informed the Sarpanch of Pahanga (P. W. 7), who gave a letter, Ext. 9, to him to be handed over at the police station at Jagatsingpur.... He went to the police station, but as the officer -in -charge was absent the junior Sub -Inspector (P. W. 14) drew up the F.I.R. at 3 -30 p.m. on 29 -4 -54. It may be noted that the village Juanga is at a distance of 15 miles fro the police station. He left for the spot at 4 p.m. and reached the place at 9.30 p.m. He held the inquest at 10 p. m. with the help of a petromax light. The body had no wearing cloth. A torn dirty cloth was lying covering the legs. He then made arrangement for a cart, but no cart was available that night. He then went to Pahanga being half a mile from Juanga. According to him he seized the M. Os. I, II, III and the Tokei (basket), M. O. V, which was produced by P.W. 1 at 6 a.m., and he seized them at 7 a.m. The senior Sub -Inspector arrived there at 11 a.m., and P. W. 14 thereafter made over the investigation to him. After investigation, the senior Sub -Inspector submitted a charge -sheet, as a result of which the accused was put upon trial.

(3.) TO begin with the seizure of the M. Os. is shrouded in mystery. The method and manner of the production of the articles gives rise to a suspicion that P. W. 1 herself may have had some hand, or may have been in some way connected with the commission of the offence, and that she was trying to save her own skin by creating evidence against the present accused. According to P. W. 14 they were seized on the morning of the 30th, when he reached Pahanga, and examined Bishnupriya at 5 -30 A.M. After examining her he seized the M. Os. after inspection at 7 a.m. The seizure lists, Exts. I, I/A, I/B, also show that they were seized on the 30th April, 1954, at 7 a.m. There were two witnesses to the seizure list, Ext. 1, which is the seizure list in respect of the Katari, M. O. I. Bijayaram Misra one of the witnesses, has not been examined at all. The other witness, Pravakar Naik is P. W. 6. His evidence is that he went to the spot (the place where the dead body was found). The corpse was then about to be tied and despatched. Then he returned back. According to his evidence by the time the Sub -Inspector reached the village it was evening. He examined P. W. 1 and in course of the examination she was producing the M. Os. This evidence would show that the seizure took place in the evening of the 29th, whereas the positive evidence of the Sub -Inspector is that he reached Pahanga in the early hours of the 30th and seized the articles at 7 a.m.