GAGAN JANI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant Gagan Jani faced trial in the Court of learned Additional Sessions Judge, Boudh in Sessions Trial No. 14 of 2008 (S.T. No.45 of 2003 -D.C.) for offences punishable under sections 452 and 302 of the Indian Penal Code for committing house trespass by entering into the house of Prahallad Behera (hereafter 'the deceased') on 28/29th day of November 2002 in the night at about 3.00 a.m. situated in village Badala under Purunakatak Police Station in the district of Boudh having made preparation for causing hurt to the deceased and also committed murder of the deceased. The wife of the appellant namely, Ambika Jani and their daughter namely, Pratima Jani also faced trial along with the appellant under sections 452/302/109 of the Indian Penal Code for abetting the commission of crime by appellant Gagan Jani. The learned Trial Court vide impugned judgment and order dated 27.07.2004 found the co -accused persons Ambika Jani and Pratima Jani not guilty of the charges leveled against them and accordingly acquitted them of all the charges. However, the appellant Gagan Jani was found guilty under sections 452 and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years for the offence under section 452 of the Indian Penal Code and to undergo imprisonment for life for the offence under section 302 of the Indian Penal Code.

(2.) The prosecution case, as unraveled from the First Information Report lodged by Prasant Kumar Sahoo (P.W.2), the brother -in -law (wife's brother) of the deceased is that both the informant and the deceased were residing in nearby houses in village Badala with their respective families. The informant was maintaining his family from out of the earnings of his tiffin shop situated near Badla Chhak. On 28/29.11.2002 in the night at about 3.00 a.m., the son of the deceased namely, Muna @ Nirakar Behera came to the house of the informant and told him that the appellant was creating disturbance in their house and shouting to kill. The informant along with others rushed to the house of the deceased and tried to convince the appellant not to create disturbance but the appellant challenged them and told that his son had died and if they would not be able to give life to his son then he would kill all of them. It is the further prosecution case that the son of the appellant was suffering from jaundice and his wife had taken him to the hospital at Phulbani for treatment but during treatment, the son of the appellant died. When the appellant challenged the informant and others, out of fear they came back in order to give message to the village Sarpanch, ward member and others and accordingly they were informed and when all of them came near the house of the deceased, they were told that the appellant after severing the head of the deceased had fled away somewhere with the severed head. The informant marked the trunk of the body of the deceased was lying and he further ascertained from his sister (wife of the deceased) that the appellant was suspecting the deceased to have practised witchcraft on his son and was responsible for the death of his son and basing on such suspicion, the appellant entered inside the house of the deceased on the fateful night and killed him and fled away holding the severed head.

(3.) P.W.9 Promod Kumar Dehury, Assistant Sub Inspector of Police attached to Adenigarh Police outpost reduced the oral information presented on 29.11.2002 by P.W.2 Prasant Kumar Sahoo at the outpost into writing which was treated as First Information Report and it was sent to Purunakatak Police Station by P.W.10 Ram Chandra Swain, the Officer in Charge of Purunakatak Police Station through a grama rakshi for registration and accordingly Purunakatak P.S. Case No.62 of 2002 was registered under sections 452 and 302 of the Indian Penal Code on the very day against the appellant. P.W.10 took up investigation of the case, examined the informant (P.W.2) and the scribe of the First Information Report. On 29.11.2002 at about 8.10 a.m., the appellant arrived at Adenigarh Police outpost holding the severed head and a tangia. The I.O. examined the appellant and seized the tangia, blood stained lungi and baniyan of the appellant in presence of the witnesses and prepared seizure list Ext.2 and conducted inquest over the severed head in presence of the witnesses and prepared inquest report Ext.1. The appellant was arrested and was sent to the Medical Officer, Adenigarh PHC for collection of nail clippings. On 29.11.2002 at about 2.30 p.m., the I.O. visited the spot and prepared spot map Ext.16 and at the spot, he conducted inquest over the trunk of the dead body of the deceased and prepared inquest report Ext.4. Then the I.O. joined the severed head with the trunk of the deceased and prepared another inquest report Ext.5. He also seized the blood stained earth and sample earth from the spot under seizure list Ext.6 and sent the dead body along with the cut head for post mortem examination to District Headquarters Hospital, Boudh where P.W.5 Dr. Susanta Kumar Garnaik conducted post mortem examination and opined that the cause of death was due to massive hemorrhage and shock as a result of decapitation of head with transection of spinal cord and cut of internal and external carotid arteries. The Investigating Officer sent requisition to the medical officer (P.W.5) along with the seized tangia making a query if the cutting of the head from the trunk of the deceased was possible by the weapon of offence. P.W.5 opined that the injury detected on the neck of the dead body of the deceased would be possible by the weapon of offence produced before him and accordingly submitted his opinion vide Ext.8. The Investigating Officer received information that the appellant who was in Adenigarh Police outpost lock up cleverly escaped. On 30.11.2002, the I.O. seized wearing apparels of the deceased, command certificate and prepared seizure list Ext.12. The I.O. also seized the nail clippings of the appellant which were collected by the medical officer under seizure list Ext.18. He received the post mortem report. The appellant was arrested on 31.12.2002 and forwarded to Court on 01.01.2003. The two female co -accused persons were also arrested by the Investigating Officer and forwarded to Court on 17.01.2003. The I.O. sent the seized incriminating articles to SFSL, Rasulgarh, Bhubaneswar on 20.01.2003 through S.D.J.M., Boudh for chemical analysis and also received the chemical examination report Ext.20. After completion of investigation, the Investigating Officer submitted charge sheet on 4.2.2003 under sections 452 and 302 of Indian Penal Code against the appellant and 302/109 of the Indian Penal Code against the co -accused persons Ambika Jani and Pratima Jani.