MOBARAK ALI KHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) BOTH the appellants having been convicted for commission of offences under Sections 302/34 of the Indian Penal Code (in short 'I.P.C.') and sentenced to imprisonment for life by the learned Additional Sessions Judge, Khurda in S.T. Case No. 19/95 of 1999 have preferred this appeal against such order of conviction and sentence.

(2.) CASE of the prosecution as revealed from the F.I.P., is that the deceased and appellant Mobarak were carrying on goat business and the appellant Mobarak was coming to the house of the deceased once or twice in a month. Three years prior to the death of the deceased, appellant Mobarak had taken some gold ornaments from P.W. 6 wife of the deceased for marriage of his sister. In spite of repeated requests the said appellant did not return the gold ornaments. A month prior to the occurrence the father of the deceased P.W. 5 had asked the appellant not to come to their house when he found the said appellant gossiping with P.W. 6. Thereafter, prior to the date of occurrence while P.W. 5 was returning to his house, it is alleged that the appellant Yusuf threatened to kill him with a katari for which the village gentries were informed about the incident who assured P.W.5 to wait till the end of fasting month. On two or three occasions there was also quarrel between the appellant Mobarak and the deceased and his wife P.W. 6 in relation to return of the gold ornaments. On the date of incident at about 3 P.M. appellant Yusuf called the deceased to accompany him to collect arrear dues, but the deceased did not return home in the night. On the next day morning while P.Ws. 5 and 6 were in their house, they heard some one saying that a person has been murdered at Gujuri Gadia by the side of the railway line. P.W.5 went to the spot along with the other villagers and found the dead body lying with the multiple injuries on different parts of his body. P.W.5 found the head of the deceased severed from the trunk and also one monkey cap lying on the railway line. Handle of a sword and one GANAPATI mark napkin were also found at the spot. P.W.5 hereafter lodged the report, which was reduced to writing, and investigation was undertaken. After completion of investigation, charge sheet was filed against both the appellants for commission of offences under Sections 302/34 I.P.C. The plea of the defence is complete denial of the prosecution allegations.

(3.) THE learned Counsel for the appellants assails the impugned judgment on the ground that there being no eyewitness to the occurrence, the prosecution case is entirely based on circumstantial evidence. According to the learned Counsel for the appellants, the circumstances tried to be proved by the prosecution in course of trial are full of inconsistencies and there are several missing links making the prosecution case improbable and unacceptable. The learned Counsel for the appellants drew attention of the Court to the evidence of the aforesaid witnesses on whom reliance was placed by the trial Court and pointed out the missing links in support of his submission that a chain of circumstances pointing at the guilt of the appellants having not been proved, both the appellants could not have been convicted for commission of the said offences. The learned Counsel for the State, on the other hand, relied on the very same witnesses and submitted that there was a motive for commission of such offence and on the date of occurrence the deceased had been seen with the appellants whereafter the dead body of the deceased was found. Therefore, on the basis of such nature of evidence, the trial Court having found the appellants guilty of the charges, there is no reason according to the learned Counsel for the State to interfere with the impugned judgment.