DEBIPRASAD PADHI Vs. STATE

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment and order of conviction recorded by the Additional Sessions Judge of Ganjam against the appellants Debiprasad Padhi and Ramachandra Choudhury, the former being the son -in -law of the latter, finding them guilty of the charge of murder of Niranjan Subudhi (hereinafter described as the deceased) committed, in furtherance of their common intention, on July 28, 1979, between 1.30 p.m. and 3.00 p.m., at Berhampur in the district of Ganjam. The two appellants and the deceased had partnership business in medicine having a firm under the name and style of 'Messrs Pratap Medical Stores' in the city of Berhampur. It was alleged that dissensions arose between the appellants on the one hand and the deceased on the other with claims and counter -claims and the matter had been referred to the Auditor (P. W. 3) of the firm on July 27, 1979. On the day following, the two appellants allegedly duped the deceased into believing that he would be paid his dues at the residence of the appellant Debiprasad and the three came and entered the house of the appellant Debiprasad at about l to 1.30 p.m. At 3.00 p.m., the two appellants came out, but the deceased did not. Binayak Subudhi (P. W.1), (he brother of the deceased, went in search of the deceased as he did not return home till the evening and on going to the house of the appellant Debiprasad, who had been staying with his parents, learnt from Raghunath, the father of the appellant Debiprasad, that the deceased had come to their house at about 1.30 to 2.00 p.m. and he did not know where he went thereafter. The chappals (M.O. II) and the bicycle (M.O. III) of the deceased were found there, the chappals lying on the verandah of the room of the appellant Debiprasad and the bicycle kept inside the compound of the house. Next morning, P. W. 1 again came to the house of the appellant Debiprasad looking for the deceased when he found M. Os. II and III at the same places as on the previous day and he got the same reply from Raghunath about the whereabouts of the deceased. P. W. 1 then went and lodged the first information report (Ext 1) suspecting that the two appellants had kidnapped his brother. A case under Sections 365, 385 and 342 read with Section 34 of the Indian Penal Code was registered by the Officer -in -charge (not examined) of the police station and under his direction, the Assistant Sub -Inspector of Police (P. W. 18) took up the investigation. On the same day, the appellant Debiprasad had lodged a report (Ext 2/1) at the police station stating therein that the deceased had come to his house on the previous day and had Left for some place leaving his bicycle and shoes and that in the morning of that day, i.e., July 29, 1979. his neighbours and outsiders had entered his house for the purpose of looting. P. W. 18 visited the house of 'he appellant Debiprasad seized M. Os. II and III, the slippers and the bicycle of the deceased, as Per Ext. 3, the seizure list dated 29 -7 -1979 and unsuccessfully searched for the deceased in the houses of the two appellants and found no trace of the deceased on looking into the wells in the houses of both the appellants. On getting information at 8.05 a.m. on 30 -7 -1979 from the Police Constable N. Bisoi that a dead body was floating inside the well of the house of the appellant Debiprasad. P. W. 18 requisitioned the services of a photographer and P. W. 12 Dr. Kiran Kumar Misra, Professor and Head of the Department of Forensic Medicine and Toxicology in the M.K.C.G. Medical College, Berhampur. The dead body was 'hat of the deceased and it was taken out from the well in a state of decomposition emitting foul smell. The photographer and P. W. 12 came to the spot and they took photographs, p. W. 18 held inquest over the dead body as per Ext. 12, the inquest report and sent the dead body for post -mortem examination which was conducted by P. W. 12 as per Ext. 9, the post -mortem report. According to the findings recorded therein, death was homicidal in nature owing to violent asphyxia brought about by compression of the chest and the neck. The gold ring (M.O. I) said to be belonging to the deceased was recovered from the house of the appellant Debiprasad and seized as per Ext. 4, the seizure list dated 30 -7 -1979. In the course of investigation, the appellants and the two other co -accused persons were arrested, the witnesses were examined and on the completion of investigation, a charge -sheet was placed. The two appellants along with the two other co -accused persons, namely, Raghunath Padhi and Manorama Padhi, the father and mother respectively of the appellant Debiprasad, stood charged under Section 302 read with Section 34 of the Indian Penal Code for having committed the murder of the deceased in furtherance of their common intention and under Section 201 of the Indian Penal Code for throwing the dead body of the deceased into the well with the intention of causing evidence of the offence of murder to disappear.

(2.) THE two appellants and the co -accused persons, pleading not guilty to the charges, had denied the accusations made against them.

(3.) ON a consideration of the evidence, the learned Additional Sessions Judge found the two appellants guilty of the charge of murder, while exonerating the two co -accused persons Raghunath Padhi and Manorama Padhi by holding that on account of their old age, they could not have taken any part in the commission of or abetting the commission of the offence of murder. None of the accused persons was found guilty of the charge of causing evidence of the commission of the murder to disappear.