SANKAR SAMARTHA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The conviction of accused under section 304(P-II) IPC and sentencing him to seven years R.I. in judgment dated 22.06.1991 in S.T. Case No.54 of 1991 passed by learned Sessions Judge, Puri is challenged in this appeal.

(2.) Accusation leading to the prosecution was that on 13.08.1990 at about 5:00 P.M. accused came to the house of deceased and demanded repayment of loan of Rs.1500/- taken of deceased. The deceased was then in the house of his sister Jhula @ Jhuna Behera few houses apart from her parent. Deceased Nabaghana could not make repayment then. The accused took him in his bicycle. After two hours the accused brought the deceased in a rickshaw. By then deceased was vomiting, he left him on verandah and slipped away. The family members administered water. The deceased disclosed that the accused gave kick and blows to his abdomen at a place between Ekchalia Patna and Cherinala. Then he become unconscious. He was taken to the District Headquarters Hospital, Puri where he was declared dead. At hospital the brother of deceased namely Kishore Dash, P.W. 1 lodged oral report which was reduced into writing and treated as an FIR. Vide Puri Sadar P.S. Case No.103 of 1990 under section 302 IPC. On next day inquest was made, so also postmortem. The cause of death was due to shock and profuse hemorrhage resulting from injuries to the abdomen and rupture of the spleen. After completion of investigation charge sheet was submitted. The case was committed to the court of sessions and trial commenced. The plea of defence was denial. The prosecution examined 11 witnesses. P.W.1, informant, is the brother of the deceased. His sister and father are P.Ws. 2 and 3. P.W. 4 is a post occurrence witness who has signed in the FIR exhibt-2. P.W. 5 is a witness to the inquest, P.W. 6 a constable is a witness to the inquest and seizure of wearing apparels of the deceased. P.W.9 is the brother-in-law of deceased who stated about extra judicial confession of the accused but it was disbelieved. P.W.7 is the rickshaw puller whereas P.W.8 is the adjacent neighbor. Both of them are declared hostile. P.W.10 is the Doctor who conducted the autopsy. The Investigating Officer is P.W.11. Accused had surrendered on 17.08.1990. No witness was examined on behalf of the defence. Learned Trial Court found that the death was homicidal in nature and it was due to anti-mortem injuries caused to spleen, urinary bladder and laceration of peritoneum and intestines. For that learned Trial Court relied upon the Doctor evidence of P.W.10 and postmortem report Exhibit-5.

(3.) Mrs. K. Ray Choudhury learned Amicus Curiae on behalf of the appellant made the following submissions. In a case relying upon circumstantial evidence, the non- examination of Surendra Jena in whose Tea Stall verandah the deceased was found lying and from where he was brought by accused in a rickshaw to his house must be viewed adversely because the rickshaw puller P.W. 7, does not support the prosecution. Further the making of oral dying declaration by deceased is doubtful as he was unconscious then. It is argued that once the above two links are disconnected, the chain of circumstances can not be held completed and for that the accused is to be given benefit of doubt.