BALI NAIK & ANOTHER Vs. STATE OF ORISSA

JUDGEMENT

(1.) Challenge in this appeal by the two appellants Bali Naik/A1 and Budura Chalan/A2, is to the impugned judgment of their convictions under Sections 302/394 I.P.C. and sentences of life imprisonment with fine of Rs. 5000/- (Rupees Five Thousand) and in default to pay the fine to serve additional 2 years (Two years) imprisonment on the first count, 5 years (Five years) RI and to pay a fine of Rs. 2000/- (Two Thousand) and in default in payment of fine to serve further 1 year (One Year) RI implanted by Additional Sessions Judge, Fast Track Court District Jeypore, in Criminal Trial No. 38 of 2006, State v. Bali Naik and another (C.T. 101/06 of Sessions Judge Court) vide impugned judgment and order dated 21.12.2006 , which Sessions Trial had arisen from G.R. Case No. 799 of 05 of S.DJ.M., Jeypore relating to Jeypore Sadar P.S. case No. 173 of 05. Learned Trial Judge had further directed that the default sentence shall commence first to be followed by substantive sentences which shall run concurrently.

(2.) A priory, resurrecting prosecution allegations against the appellant, as are apparent from the disgorged testimonies of fact witnesses during the Sessions trial, it emerges that one Gopi Nath Pangi is a resident of village Amkotguda P.S. Jeypore district Koraput of which Durga Bhatta is an adjoining village at a distance of a Kilo meter from his house. Gopi Nath Pangi has two sons Daniai Pangi/PW4 and informant Chandrasen Pangi/PW1. Hira Pangi, the injured deceased was the wife of Chandrasen Pangi/PW1 and was a vegetable seller. Police Station Jeypore is 10 KMs away from the informant's village. In between Amkotguda and Durga Bhatta lies a canal Machina Jodi at a distance of half ( 1/2) a K.M. from the house of the informant which was only a 10 to 15 minutes tramp. Appellant Bali Naik/A1 and his wife Bagaoati are the residents of village Durga Bhatta. Gauri Chalan, the absconding accused, is the sister of Bagabati and appellant Budura Chalan/A2 is her husband and therefore, in relationship, A1 and A2 are sadhu of each other and absconding accused Gari Chalan is sister-in-law of A1. Albeit A2 and his absconding wife were originally residents of Village Pandaranguda P.S. Mudulipada district Malkangiri, but they resided with A1 in his village at Durga Bhatta, at the time of the present incident of murder of the deceased Hira Pangi. Informant was well acquainted with A1 but he came to know A2 subsequently. Further prosecution case is that A1 had taken a loan of Rs. 200/- (Rupees Two Hundred only) from the deceased as he was unable to sustain his desiderated needs but it seems that he was unable to make good the said loan. As per prosecution evidence, on the ill fated Monday, the incident day 28.11.2005 at about 6 a.m., deceased Hira Pangi, aged about 35 years, left her house carrying a bamboo basket to sell vegetables like dried and green chillies, red Guards, some Gudakhu and measurements in the shape of tin boxes, towards village Durga Bhatta. Sometimes thereafter Kamal Lochan Khatial PW3 and Kamulu Khatia saw the deceased in a bleeding injured condition and they rushed to inform the informant/PW1 about his wife, and on receiving such an information, that the informant scampered to the tube well where he found his wife, the deceased, lying in an injured condition. PW1 folded injured in his aims and inquired about the mishap. The deceased then informed him that when she had reached near the canal Machina Jodi both the appellants along with their absconding socio crimins Gauri Chalan, encircled and caught hold of her and while rest of the two A2 and his wife, supinely pressed her ( Hira Pangi) on the ground, A1 assaulted on her neck with a Kati (axe) carried by him, in an attempt to snatch her gold necklace called chapsili. In a life saving attempt she (the injured) rushed back towards her house but fell down near the boring tube well. In an endeavour to save the life of his injured wife, who was able to speak by then, PW1 rushed her to Sub Divisional Jeypore Government Hospital, where under treatment the injured succumbed to her injuries at about 12.05 noon. Robbery and assault on Hira Pangi had occurred at about 7 a.m. No sooner demise of his injured wife in the hospital, that the informant Chandrasen Pangi/PW 1, accompanied with his father Gopinath Pangi, tramped to the police station Jeypore, where he orally reported the incident to Pratap Kumar Rana/PW7, Officer-in-charge Jeypore Sadar Police Station, who slated down the information and, after getting the recorded script confirmed fonts genuineness, got it signed by the informant and then treating it as FIR/Ext1 registered it as crime No. 173, under Section 394/302 I.P.C. at 12.20 p.m. the same day 28.11.2005.

(3.) Investigation was set afoot by the I.O./PW7, who recorded statements of informant/Pw 1, and his father Gopinath Pangi, and also dispatched Constable to guard the corpse of the deceased lying in surgery ward at bed No. 3. I.O./PW7 then came to the hospital where he performed inquest on the cadaver of the deceased after appointing inquest witnesses, including the informant, and prepared inquest memo Ext.5. Informant's signature on the memo is Ext.5/1. Draper of the deceased (Sari), produced by the informant, which was soaked with blood and was got changed by the informant while bringing the injured wife to the hospital, was seized by the I.O. vide Ext.2 and then he dispatched the dead body for post mortem examination 'through constable C/371 N. Naik and villagers along with dead body chalan/Ext 8. From the hospital I.O./PW7 came to the incident spot Machina Jodi in village Amkotguda where he sketched spot map/site plan Ext.9. On.the west bank of the canal I.O. spotted some trickled down blood spots and one big and two other small baskets with scattered vegetables. Blood stained and sample earths, bamboo baskets, and vegetables were seized vide seizure memo Ext. 10. On production by the informant/PW1, who had collected two pieces of gold flowers belonging to his deceased wife from the spot of her assault, PW7 seized those gold flowers vide seizure list Ext.3, which flowers after being weighed by a goldsmith turned out to be 650 mgs of 18 carat gold. Conducted search for the culprits yielded no results. Returning back to the police station I.O. seized wearing apparels of the deceased produced by constable C/371 N. Naik vide seizure list Ext. 11. On 29.11.2005 Gold flowers(phulo Konta), vegetables, rolled gold ear flowers, nose top and two pahuchi of brass (Rosso) were handed over to the informant vide custody memo (zimanama) Ext. 4. Search for A2 and his wife Gauri Chalan, in villages Pandraguda and Khoiriput under police station Mudulipoda, on 30.11.2005, by the I.O. was also a futile effort. On 1.12.2005 at 5.45 a.m., I.O. came to the village Amkotguda from where he arrested A1 at 6 a.m., who was proceeding towards jungle area and, in the presence of witnesses Sadan Hantia and Parmanand Dalai. A1 was interrogated, who confessed his guilt and made a statement, Ext.13, about concealment of Kati, the weapon of assault. After recording of his statement, which was got signed by the witnesses and was thumb marked by A1 as well, that the arrested accused brought the witnesses and the police party to the concealment spot near Machina Jodi, and, from a bush nearby, that he brought out a blood stained Kati/M.O.II; and handed it over to the I.O. which was seized by him vide seizure list Ext. 12. Attires of A1 were seized vide seizure list Ext. 14. Same day through requisition, Ext.6/2, I.O. sent A1 to Sub-Divisional Hospital for collection of his nail clippings through S.I. Siba Charan Mohanti/PW6, and later on seized the nail clippings, on production by the said S.I. vide seizure list Ext.7. Apprehended accused A1, thereafter, was forwarded to SDJM, Jeypore. On 5.12.2005, I.O. received deceased autopsy report which indicated injury to her wind pipe as the primary cause of her demise. Doctor's opinion regarding M.O. II to be plausible weapon of crime was sought by the I.O. vide Ext. 15 on 23.1.2006, which opinion was received to him on the next day, 24.1.2006, which is Ext.15/2 and 15/3. Same day I.O. dispatched apparels of the deceased, of the accused and weapon of assault to RFSL Berhampur, after obtaining orders from SDJM, Jeypore. Forwarding report in this respect is Ext.16. A2 was arrested on 9.3.2006 by S.I. S.C. Mohanti/PW6. Gauri Chalan could be arrested in spite of NBWs. Wrapping up the investigation I.O./PW7 charge-sheeted both the accused A1 and A2 for offences under Section 394/302 I P.C. on 29.3.2006.