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2002 DIGILAW 517 (ORI)

Bisi Golari v. State of Orissa

2002-08-16

P.K.TRIPATHY

body2002
JUDGMENT P. K. TRIPATHY, J. — Order of conviction under second part of Section 304, IPC vide the impugned judgment dated 18.10.1997 in Sessions Case No. 49 of 1997 of the Court of Additional Sessions Judge, Jeypore is under challenge. Admittedly, appellant is inside the jail since 19.1.1997. He has been sentenced to undergo rigorous imprisonment for seven years. 2. As per the prosecution case on 17.1.1997 at about 8 P.M. deceased in intoxicated condition (after taking ‘Salap’ juice) was creating noise by shouting and the appellant, one of his sons staying with him, came and asked the former to not to shout and received the rebuke of the deceased. As a matter of retaliation, appellant dealt a blow to the right side head of the deceased by using a “Katha Mutula’. Deceased sustained bleeding injury and died at the spot. Siri Golari (P.W.1), a neighbour was hearing the quarrel between the deceased and the appellant and when he arrived at the spot, he found the deceased lying dead with bleeding and the appellant standing there with that weapon of offence. On being asked by P.W.1, appellant made extra judicial confession about the crime. P.W.1 intimated to the other son of the deceased, namely, Iswar Golari (P.W.2) and after his arrival also the appellant made extra judicial confession. Then the village headman and some other villagers were summoned to the spot of the occurrence for a customary meeting (which is usually being held in such instances in the tribal area of Koraput Dis¬trict) and before them also appellant made extra judicial confes¬sion by making similar statement. F.I.R. was lodged in the police station and the law was set into motion. After a routine investi¬gation charge-sheet was submitted under Sec. 302, IPC basing on the aforesaid extra judicial confession and the post mortem report (Ext.13) that the deceased suffered a homicidal death. Appellant was charged for the offence under Sec. 302, IPC and during the course of trial aforesaid P.Ws. 1 and 2 and the co-villagers were examined as P.Ws. 3, 4 and 5. The Doctor who conducted post mortem was examined as P.W.10. The inquest report, seizure list etc. were relied upon and admitted as evidence and the weapon of offence was marked as M.O.I. 3. 1 and 2 and the co-villagers were examined as P.Ws. 3, 4 and 5. The Doctor who conducted post mortem was examined as P.W.10. The inquest report, seizure list etc. were relied upon and admitted as evidence and the weapon of offence was marked as M.O.I. 3. On consideration of the evidence on record, trial Court, as per an unsystematic but threadbare analysis of evidence on record, found that deceased suffered a homicidal death and the appellant was the author of the injury. Trial Court also recorded the finding that since the quarrel was picked up by the deceased and the provocation was given by him, therefore, the act of assault by appellant does not amount to murder as punishable under Sec. 302, IPC but culpable homicide not amounting to murder punishable under second part of Section 304, IPC and accordingly sentenced him to undergo R.I. for seven years. 4. Learned counsel for the appellant puts emphasis on the lack of eye-witnesses to the occurrence as the trump-card for obtaining an order of acquittal and learned Standing Counsel resists to that argument on the ground of acceptability of the extra judicial confession and corroboration from the other circumstantial evidence relating to proof of the occurrence against the appellant. Learned counsel for the appellant also challenges the extra judicial confession to be not credible and simultaneously he also presses into service the plea of alibi which the appellant took in trial by stating that he was absent from the house in the occurrence night and after receiving the news of death of his father while returning to the village he discovered the dead body of the deceased from a ‘Nala’. Learned Standing Counsel advances the counter argument stating that the defence plea is far away from reality and the trial Court justi¬fiably rejected the same. 5. As noted above, while challenging the impugned order of conviction the first and the foremost point urged by the appellant is to the effect that he is entitled to an order of acquittal because there was no eye-witness to the occurrence. Aforesaid argument of the appellant is devoid of any substance inasmuch as a crime does not go unpunished in every case where there is absence of eye-witness. In other words, absence of eye-witness is not suggestive of the fact that the allegation is false or not true. Aforesaid argument of the appellant is devoid of any substance inasmuch as a crime does not go unpunished in every case where there is absence of eye-witness. In other words, absence of eye-witness is not suggestive of the fact that the allegation is false or not true. The Indian Evidence Act, 1872 does not incorporate any provision that a case is not to be believed or accused is to be granted benefit of doubt because prosecution is not supported by eye-witness to prove the occurrence. On the other hand, provision of law in Evidence Act clearly provides for proving of a case by direct or circumstantial evidence or by both. Therefore, where there is availability of direct evidence, i.e., the evidence of eye-witness (in the present context) then prosecution must produce such evidence or to sufficiently and satisfactorily explain the reason for not adducing such evidence. Where there is no direct evidence, i.e., eye-witness then prosecution should produce and prove circumstantial evidence to prove the charge. Where there is availability of both direct and circumstantial evidence, such evidence may be adduced to prove the charge. Whether it is direct evidence or circumstantial evidence or both, the responsible job of the Court is to read it, understand the same in the context, analyse the same keeping in view the charge framed and the requirement of Penal Provision and to give its finding as to whether such evidence proves, disproves or does not prove the fact in support of which such evidence is tendered. That being the law and the settled practice for adjudication of cases, so far as the present case is concerned this Court does not find any reason to discard the case of prosecution for non-availability of eye-witness to witness the occurrence of appel¬lant dealing blow on the head of the deceased by hitting M.O.I. In that respect evidence of P.W.No.1, though circumstantial but that implicates the appellant and none else as the person who could have inflicted the injury on the head of the deceased. 6. So far as the extra judicial confession is concerned, in that respect all the witnesses from P.Ws. 6. So far as the extra judicial confession is concerned, in that respect all the witnesses from P.Ws. 1 to 5 though were witnesses to such extra judicial confession at different point of time, but they are unanimous, consistent and corroborating that the appellant made extra judicial confession before respective witnesses by admitting about dealing a blow to the head of the deceased by use of M.O.I when the latter abused him in intoxicated condition. Evidence of P.W.1 is not confined to prove extra judicial confession but also the circumstance that his house being at a distance of twenty cubits from the place of occur¬rence, he heard the quarrel between the deceased and the appellant and on hearing that while he arrived at the spot he found the deceased lying dead with bleeding and appellant stand¬ing there with M.O.I. It is in his evidence that his house is two houses apart from the house of the appellant. The aforesaid evidence of P.W.1 also circumstantially prove that appellant was present with the deceased when the deceased sustained the injury and succumbed to the same. There is no evidence on record to infer presence of any other persons at the spot of occurrence other than the appellant and the deceased. Under such circum¬stance, the said circumstances sufficiently indicate that it is the appellant, who is the author of the crime. The aforesaid circumstance corroborates to the extra judicial confession, which he made. The post mortem report in that connection undisputedly shows fracture of the skull on the right parietal bone and af¬fecting the brain matter and causing instantaneous death of the deceased. Therefore, that homicidal death of the deceased is proved on record. The plea of alibi adopted by the appellant is far from satisfactory. In that respect lone evidence of appellant as D.W.No. 1 is not believable. Apart from that, there is no evidence worth the name on record to show or suggest that the dead body of the deceased was found in any ‘Nala’. No evidence whatsoever has been brought on record in that respect. Even on perusal of the Case Diary, this Court finds that the dead body and the blood-stained earth were found at the premises of the appellant and not from any ‘Nala’. Thus, there is no hesitation to state that the defence plea is false. 7. No evidence whatsoever has been brought on record in that respect. Even on perusal of the Case Diary, this Court finds that the dead body and the blood-stained earth were found at the premises of the appellant and not from any ‘Nala’. Thus, there is no hesitation to state that the defence plea is false. 7. From the aforesaid analysis of evidence on record, this Court finds that the charge is proved against the appellant for causing the death of the deceased, therefore, this Court concurs with the factual finding recorded by the trial Court. At the same time, keeping in view the facts and circumstances, as noted and discussed above, this Court appreciates that the trial Court has rightly acquitted the appellant from the charge under Sec. 302, IPC and convicted him for the offence under second part of Sec¬tion 304, IPC. Keeping in view the facts and circumstances in¬volved in this case and the fact that appellant has already remained in the jail custody for five years and about seven months, therefore, after hearing learned counsel for the appel¬lant and learned Standing Counsel, this Court reduces the quantum of sentence to a period of rigorous imprisonment for five years and seven months. 8. With the aforesaid modification in sentence the appeal stands dismissed. Send back the L.C.R. and intimate the Court below for necessary action for release of the appellant, if his detention in jail shall not be necessary in connection with any other criminal case. Appeal dismissed.