A.K. Samantray, J.
1. The appellant calls in question the judgment and order dated 2.6.2004 passed by the learned Addl. Sessions Judge, Rayagada, convicting him under Section 302, I.P.C and sentencing him to imprisonment for life in Sessions Case No. 13 of 2002 arising out of Tikir P.S. Case No. 41 of 2001.
2. The factual backdrop, which resulted in the trial of the appellant (hereinafter called as 'Accused') in the aforementioned Sessions Case, may be stated as follows :
On 14.10.2001 at about 4.00 P.M. the informant Kailash Jhadia while in his paddy field, got information about murder of his father-in-law Bada Govinda Jhadia (hereinafter referred to as 'Deceased') and immediately rushed to the village and found the deceased lying dead on the backside of the street of Sana Govinda Jhadia. The informant ascertained from his wife and Ors. and was informed by them that on the same day at about 3.30 P.M. when the deceased was standing on the road near about his cow-shed, at that time the accused taking exception to that, went to his house and brought out a 'Tangi' and gave a blow by the said weapon on the right leg of the deceased. Receiving the blow, the deceased started running and the accused dealt another blow on his back, at a result of which the deceased fell down there at the spot and had instantaneous death. Ascertaining this fact, the informant proceeded to Dangasil Outpost along with his co-villagers and reported the occurrence to the A.S.I, of the Outpost, which was reduced into writing and was treated as F.I.R., and on the basis of that F.I.R, Tikiri P.S. Case No. 41 of 2001 was registered and on completion of the investigation, charge-sheet under Section 302, I.P.C. was submitted against the accused Sanabudu Jhadia and the accused faced the trial.
3. The accused adopted the exonerative plea of complete denial.
4. To bring home the charge to the accused, the prosecution examined as many as nine witnesses including the informant and the Investigating Officer, and the accused, in his defence, examined none. From the side of the prosecution as many as ten documents were exhibited including the F.I.R., the Inquest Report and the Post mortem Report and no document was exhibited from the side of the accused. The trial Court, after scanning the prosecution evidence, ultimately found the accused guilty under Section 302, I.P.C. and awarded the sentence as stated above.
5. Learned counsel appearing for the appellant urges vehemently that the impugned judgment of the learned trial Judge is not at all sustainable in law, as none of the P.Ws. examined substantiates involvement of the accused in the alleged crime and the learned trial Court, only on surmises and conjectures, has found the accused guilty under Section 302, I.P.C. In furtherance of his contention, he takes us through the evidence of P.W.1, the informant, who is the son-in-law of the deceased. From a bare reading of his evidence we find that he is not an eyewitness to the occurrence and he only came being informed about the death of his father-in-law and found him lying dead and, ascertaining from others, he went and lodged the F.I.R. against the appellant. P.W.2 is the wife of he accused and she feigned ignorance about the incident and has stated that she had no knowledge how the deceased died. P.W.3 is one Dukhu Jhadia, who is also not an eye-witness to the occurrence. As per his own statement, he is blind and he only heard about the death of the deceased. P.W.4 is the Gramarakhi, who being informed by one Dukhu Jhadia, came and saw the dead body of the deceased lying near his house and an axe struck to his back. In the cross-examination he stated that Dukhu Jhadia did not inform him anything about the murder. P.W.7, who is the niece of the accused (the accused being her maternal uncle), has stated that, hearing the cry of the wife of the accused she came to the spot and found her father-in-law lying dead and she ascertained from the wife of the accused that the accused killed the deceased. In the cross-examination she has stated that when the wife of the accused was crying, she did not name anybody as the author of the murder of the deceased. P.W.8, who is the younger sister of the wife of the deceased and a resident of another village, has stated that knowing about the death of the deceased she came to the village and found the deceased lying dead. In cross-examination she has stated that she did not ascertain from anybody as to how the deceased died. The Doctor (P.W.5), who conducted the post mortem examination over the dead body of the deceased, found two clear cut injuries, one on the backside of the right foot, 5 cm. above the ankle joint and Anr. starting from the left side back and ending on the right side back with cutting of left scapula and right scapula of size 9' x 6' x 4.5' and the said injury had cut four ribs and injured the left lungs and heart with severe haemorrhage, which was the result of injury No. 2. The death, according to the post mortem report, was due to haemorrhage shock and injury to the vital organs like left lungs and heart. He has proved the post mortem report, Ext.2, and has indicated that the injuries were ante mortem and injury No. 2 and the internal injury to the lungs and heart, which are vital part of the body, were sufficient to cause death of the deceased in ordinary course.
6. Learned counsel for the appellant stated that the appellant does not at all quarrel on that aspect of the case and not oppose to the finding of the learned trial Court that the death suffered by the deceased was homicidal. He argued that merely because the deceased suffered homicidal death, the accused could not have been convicted for an offence under Section 302, I.P.C. unless there is connected evidence to bring home the charge to him. We find sufficient substance in his contention. Learned Addl. Sessions Judge, on appreciation of the evidence of the informant - P.W.1, the sole eye-witness to the occurrence (P.W.2) - Sunamani Jhadia, P.W.3 - Dhuku Jhadia. P.W.7 - Jatamani Jhadia and P.W.8 - Rukuni Jhadia, has come to a, finding that the case of the prosecution has not been supported by any of the eye-witnesses to the occurrence including the sole eye-witness Sunamani Jhadia (P.W.2). It is also not disputed by learned Standing Counsel that during the trial of the case not a single eye-witness has connected the accused with the murder of the deceased.
7. Learned trial Judge has based his order of conviction on two counts of evidence and has mostly relied on the evidence of P.W.1, the informant, who stated in the F.I.R. as well as in his evidence in the Court that on his arrival at the spot, Rukuni Jhadia (P.W.8) and Jatamani Jhadia (P.W.7), who are the daughters of the deceased, informed him that her father was killed by the accused, but on scrutiny of the evidence of both P.Ws. 7 and 8 we find that both of them are not eye-witnesses to the occurrence and they only arrived at the spot hearing the cry of P.W.2, Sunamani Jhadia, the wife of the accused, and they found the deceased lying dead at the spot. None of these two witnesses had seen the accused inflicting injuries on the deceased. P.W.2, Sunamani Jhadia, who is admittedly the wife of the accused, has not at all supported the prosecution case implicating the accused in the crime. The sole eye-witness to the occurrence, -P.W.2, when not supporting to the prosecution allegation against the accused, the question of her disclosing the name of the accused to have committed the murder to others stands unsubstantiated. The trial Court also heavily relied on the report from the State Forensic Science Laboratory, which has been marked as Ext.9. In that report it is indicated that the 'lungi' seized from the accused was stained with human blood of 'B' group. Learned counsel for the appellant rightly argued that in the absence of determination of the blood group of the accused, the aforesaid evidence in Ext.9 is of no consequence to connect the accused with the alleged crime.
8. Posted with absence of direct evidence of any eyewitness to the occurrence and absence of any circumstantial evidence completing the chain of circumstance to connect the accused with the alleged crime, learned Standing Counsel fairly concedes that he is not in a position to defend the order of conviction. We appreciate such a fair concession of the learned Standing Counsel, because, on thorough scrutiny of the evidence on record, we find that the trial Court, for reasons best known to him, has imported Utopian ideas to construe proof as against the accused in support of the charge under Section 302, I.P.C. We find absence of any sort of evidence i.e. direct or circumstantial, to prove the accusation against the appellant-accused.
9. Thus, in the result, we set aside the impugned order of conviction and direct to set the accused-appellant at liberty forthwith, if his detention in custody is not required in connection with any other case.
The Criminal Appeal is accordingly allowed.
P.K. Tripathy, J.
10. I agree.