HEMANTA BAG Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Appellant along with three others faced trial for commission of offences under Sections 302/34 I.P.C in S.C No. 21/2 of 2005. Learned Addl. Sessions Judge, Balangir, convicted the Appellant alone under the said Sections & sentenced him to undergo rigorous imprisonment for life & to pay a fine of Rs. 2,000, in default to undergo further rigorous imprisonment of one year. The said order of conviction & sentence is assailed in this Criminal Appeal.

(2.) THE factual matrix of the prosecution case, in brief, is that on 26.9.2004 the brother of the informant Hafiz Khan had gone to upper hamlet of the village with one Danial Kumar & did not return till night. On the next day morning while inquiring about his brother, the informant came to know that his brother Hafiz is lying dead in front of the house of one Rajendra Patra. On inquiry he came to know that Hemanta Bag, Hrusikesh Bag, Kalpana Bag, Bhagabana Bag and Ors. have killed his brother by means of deadly weapons & after committing the murder they have absconded from the village. According to the informant. about 15 days prior to the occurrence, Hemanta Bag had some altercation with Bimbadhar Patra, which was pacified by Hafiz & being aggrieved Hemanta had threatened to kill him & in fact chased him holding a sword, but fortunately Hafiz escaped. Though the said dispute was compromised but then the accused persons had a grudge against Hafiz. He submitted a written report at Sadar Police Station, Balangir on 27.9.2004. On the basis of said report Balangir Sadar P.S Case No. 147 (21) of 2004 was registered, which was subsequently converted to G.R Case No. 545 of 2004. The Officer -in -Charge, Sadar Police Station took up investigation, held inquest over the dead body, sent it for postmortem, seized blood stained earth, chapal & cycle from the spot & found that all the accused persons had absconded. On 29.9.2004 he apprehended the accused Hemanta. While in police custody Hemanta made a confession admitting to have killed Hafiz with the help of his brothers & also disclosed that he had concealed the sword i.e. the weapon of offence in a ditch of a farmhouse. He also led the police to the spot, brought the sword from the ditch & handed over the same to the Investigating Officer in presence of witnesses. While the investigation was under progress the other accused persons surrendered in Court. After completion of investigation, charge sheet was submitted & the Learned S.D.J.M after being satisfied that a prima facie case was made out took, cognizance of offences & committed the case to the Court of Session for trial.

(3.) MISS D. Mohapatra, Learned Counsel for the Appellant submitted that there were a number of discrepancies in the statements made by the witnesses in Court vis -a -vis the statements recorded under Section 161 Code of Criminal Procedure. She further submitted that no blood was found on the sword, which was recovered from an open place where other people had access & that on the basis of same evidence, Learned Addl. Sessions Judge having acquitted the other three accused persons, who were similarly placed as that of the Appellant, has acted illegally in convicting the Appellant. According to Miss D. Mohapatra, absconding from the village cannot be taken as a ground for conviction, more so because in the present case, as would be evident from the evidence of the Investigating Officer, the male members of the entire village had absconded out of fear. Added to that, she submitted that the prosecution had totally failed to prove the intention or motive of the accused persons & as such, the entire prosecution case should be disbelieved & the recovery made on the basis of statement made under Section 27 of the Evidence Act cannot be a sole basis for conviction.