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Orissa High Court · body

2007 DIGILAW 654 (ORI)

State of Orissa v. Trinath Palai

2007-08-29

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT Heard argument from the parties, hearing is concluded and the judgment is as follows. 2. Order of acquittal passed by learned Second Additional Sessions Judge, Puri in favour of the accused-respondent is under challenge at the behest of the State, the prosecutor. Respondents faced the trial for the charge under Section 302/34, I.P.C. and as per the impugned judgment delivered on 8th May, 1989 in Sessions Trial No. 7/2 of 1989, learned Addl. Sessions Jude, Puri found the respondents not guilty of the offences and acquitted them. 3. Prosecution case, as depicted in the impugned judgment and the evidence of the Court below, is that Sajani (hereinafter referred to as ‘deceased’), a female child of about 1½ years old was done to death in the night of 16.08.1988. Accused persons are her paternal grand parents and the eye-witness is her mother Sahabani Dei, P.W.5. Allegation against the accused persons is that after the marriage of P.W.5 with their eldest son Prafulla Palai, the latter settled at Vijayawada and ran hotel business. By the time of his death due to motor accident, P.W.5 with the child were staying at the in-laws’ house in the occurrence vil¬lage. After the death of her husband, P.W.5 was subjected to ill treatment and torture. She sought for the protection from her parents and as a consequence of that, a village Punch was con¬vened in the occurrence village and it was settled by the village gentries that accused Trinath Palai is to refund a sum of Rs. 4,000/- (four thousand) to P.W.5, i.e. the amount which had been received towards dowry at the time of marriage of P.W.5 with Prafulla Palai. In addition to that, accused Trinath Palai was to alienate an area of one and half ‘Mana’ of land (2½ Mana is equivalent to one acre) in favour of his minor grand-daughter, i.e., the deceased. Such amount was to be paid and the document was to be executed within a month, because accused Trinath had sought for that time. Till parting with the property in the above-indicated manner, P.W.5 with her deceased minor daughter were staying in the in-laws’ house. About 20 to 25 days after that decision of the Panchayat that the occurrence took place. 4. Till parting with the property in the above-indicated manner, P.W.5 with her deceased minor daughter were staying in the in-laws’ house. About 20 to 25 days after that decision of the Panchayat that the occurrence took place. 4. According to the allegation by the prosecution, in the occurrence night the female folks of the family, i.e. P.W.5, her mother-in-law and sister-in-law (‘Nananda’) and also the younger brother-in-law (‘Deara’) slept inside the one-roomed house and accused Trinath Palai went and slept in the adjoining school verandah. After passing of mid night when the child (deceased) cried, P.W.5 was making breast-feeding to her and then accused Trinath knocked at the door and the door was opened by the sis¬ter-in-law of P.W.5. Accused entered into the room and asked why the child was crying, and when P.W.5 narrated the cause, thereafter accused snatched the child from her lap and then the co-accused Bilasini, who is the grandmother of the deceased, physically restrained P.W.5 by catching hold of her hands. Ac¬cused Trinath then put the child on the floor and throttled her and done to death. In the process, blood came out from the angle of the mouth and nostril of the child. Seeing that incident P.W.5 out of sorrow and disgust dashed her head against the floor and became senseless. Accused Trinath thereafter wrapped the dead body of the child in a piece of cloth and in that night took that to the burial ground and buried the child. On the following day morning villagers came to know about the incident and appeared in front of the house of the accused persons. P.W.5 then did not narrate anything to them. In the meantime her brother-in-law (‘Deara’) went and intimated to her father about the death of the child. On the instruction of her father (P.W.6), the brother of P.W.5 arrived at the occurrence house and then P.W.5 narrated the whole incident to him. Thereafter law was set into motion by lodging F.I.R. against the accused persons. In course of the investigation, accused Trinath Palai escorted the police and the Executive Magistrate to the spot where the dead body was buried. The dead body was disinterred, inquest was held and sent for post-mortem examination. 5. Thereafter law was set into motion by lodging F.I.R. against the accused persons. In course of the investigation, accused Trinath Palai escorted the police and the Executive Magistrate to the spot where the dead body was buried. The dead body was disinterred, inquest was held and sent for post-mortem examination. 5. It was explained by accused Trinath that the child was suffering from blood dysentry for over a period of one month and died in that night and therefore he buried the dead body. However, from the post-mortem examination on 18.08.1988 it could be known that death was due to throttling and there were ante-mortem injuries on the neck and forehead of the deceased. Accused persons were arrested on 18.08.1988 and forwarded to the judicial custody on 19.08.1988. In course of the investigation besides making the spot visit and examination of witnesses, the Investi¬gating Officer (P.W.10) also seized the blood-stained cloth which had been wrapped on the dead body of the deceased, the ‘lungi’ of the accused under Seizure Lists - 1 and 2 respectively. Those clothes were sent to the State Forensic Science and Laboratory for chemical analysis and serological test. In the report from the S.F.S.L. (Ext. 10) it was indicated that blood-stains were detected all over the cloth which had been wrapped on the dead body of the deceased, but no blood stain was detected in the ‘lungi’ of the accused. In the serological report it was stated that the blood detected in the cloth was of human origin but its group could not be ascertained, because of non-availability of unstained control. 6. To substantiate the charge, prosecution examined as many as ten witnesses and relied on the documents marked Exts. 1 to 10 and the ‘lungi’ as M.O.-I and the torn cloth as M.O.-II. Amongst the witnesses P.Ws. 1 to 4 are the co-villagers of the accused persons and prosecution relied on their evidence so as to prove the village Punch and about the death of the deceased which was being heard by them on the following day morning. 1 to 10 and the ‘lungi’ as M.O.-I and the torn cloth as M.O.-II. Amongst the witnesses P.Ws. 1 to 4 are the co-villagers of the accused persons and prosecution relied on their evidence so as to prove the village Punch and about the death of the deceased which was being heard by them on the following day morning. All such witnesses did not support the prosecution in the context of village punch and therefore they were declared as hostile wit¬nesses and the prosecution was permitted to put leading questions and to confront them to their previous statements under Section 161, Cr.P.C. As stated above, P.W.5 is the solitary eye-witness to the occurrence and she is the mother of the deceased child. P.W.6 is her brother and P.W.7 is her father. P.W.6 stated about learning about the incident from his sister (P.W.5) and lodging report Ext. 4 at the Police Station and P.W.7 has stated about the inter-se relationship, the torture, village punch, etc. P.W.8 is the Doctor, who conducted post-mortem examination on the dead body of the child and proved the Post-Mortem Report - Ext. 5 so also the Injury Certificate of P.W.5 - Ext. 7. P.W.9 is the S.I. of Police, who received the F.I.R. - Ext. 4 and took up the investigation and P.W.10 is the Executive Magistrate, who was present at the time of disinterring of the dead body of the deceased and the inquest. Ext. 3 is the Inquest Report. 7. The Trial Court, referring to the evidence of P.W.8, held that prosecution has failed to prove that the deceased suffered homicidal death. If that is so, then that would have been the end of the matter, because a person cannot be prosecuted for any other form of death of the deceased, if that does not make out of an offence under the Indian Penal Code. Be that as it may, learned Addl. If that is so, then that would have been the end of the matter, because a person cannot be prosecuted for any other form of death of the deceased, if that does not make out of an offence under the Indian Penal Code. Be that as it may, learned Addl. Sessions Judge assessed the evidence of wit¬nesses and did not find credibility in the evidence of P.W.5 on the ground that after the occurrence she did not narrate the incident to the villagers when they arrived in front of the house of the accused in the following day morning, and apart from that her evidence does not appear to be probable of being true inas¬much as the child could have been done to death in her absence and there was no necessity for the accused persons to commit the crime in the manner narrated by P.W.5. Learned Addl. Sessions Judge also took the view that if the disputed Punch decision was the reason to commit the crime, then the accused persons could have killed P.W.5 instead of the deceased child. Apart from that, learned Addl. Sessions Judge took into note the conduct of the accused persons in cooperating with the investigation as the aiding circumstance and accordingly he held that the defence plea of death of the deceased due to diarrhoea and blood-dysentry cannot be ruled out and, therefore, accused persons are not guilty of the offence under Section 302/34, I.P.C. or for the offence under Section 201, I.P.C. 8. Mr. A.K.Mishra, learned Standing Counsel, after placing the evidence on record and the findings recorded by the trial Court, argues that the reasons assigned by the trial Court is not only flimsy but also it is far from reality and the law as exists in the Evidence Act. Mr. A.K.Mishra, learned Standing Counsel, after placing the evidence on record and the findings recorded by the trial Court, argues that the reasons assigned by the trial Court is not only flimsy but also it is far from reality and the law as exists in the Evidence Act. While vehemently criticizing the impugned judgment, learned Standing Counsel states that the evidence of P.W.8 clearly and clinchingly states that deceased suffered homicidal death and no hypothesis is available to be imported for her death in any manner other than the manner in which it has been done and once that be so, the admission of the accused persons that the child was in the same house and the accused buried the dead body leads to a tale tell circumstance so as to appreciate evidence of the solitary eye-witness to the occur¬rence, i.e. P.W.5, who is none other than mother of the deceased child. He argues that learned Addl. Sessions Judge keeping aside such facts and circumstances went on accepting the defence argu¬ment based on hypothesis to grant the benefit of acquittal in their favour. Accordingly he argues to set aside the order of acquittal and to record the finding of conviction. 9. In that process, to the query made by the Court about the culpability of accused Bilasini Dei, he argues that according to the entire case of the prosecution and the evidence of P.W.5, she caught hold of the hands of P.W.5 when accused Trinath Palai removed the child from the lap of P.W.5. Learned Standing Counsel admits that except that piece of evidence there is nothing on record to indicate that there was prior meeting of mind between the two accused persons to commit the murder of the child or that in any other manner accused Bilasini assisted the accused Trinath for the murder of the child. We find that the learned Standing Counsel is constrained to make that admission, because of lack of evidence on record. Be that as it may, the order of acquittal of Bilasini is not to be interfered with because of lack of evidence for sharing the common intention for murder of the deceased or for screening the offender by burying the dead body. Accordingly learned counsel for the accused-respondents was asked to address the Court only against the accused Trinath Palai. 10. Learned counsel for the accused/respondents, Mr. Accordingly learned counsel for the accused-respondents was asked to address the Court only against the accused Trinath Palai. 10. Learned counsel for the accused/respondents, Mr. Biswal supports the reasoning advanced by the trial Court in support of the order of acquittal and he states that the case of homicide is not made out from the evidence of P.W.8 and therefore punishment of the accused for the offence under Section 302, I.P.C. or Section 201, I.P.C. is redundant. 11. In course of his submission, learned Standing Counsel relies on the case of State of West Bengal v. Mir Mohammad Omar and others etc. etc., 2000 (6) Supreme 172 , in support of his argument that lapses on the part of the Investigating Officer in certain respect should not add to the advantage of the accused and it is advantage of the prosecution if evidence on record are sufficient to prove the charge. He also relies on the case of Leela Ram (D) Through Duli Chand v. State of Haryana and another, (2000) 18 OCR (SC) 34, in support of his submission that the trial Court has made an eye-wash by not properly evaluating the evidence of the witnesses and in what manner such evidence should be assessed. In course of his reply argument, learned counsel for the accused-respondents relies on the case of Premachand S. Ban¬sode and another v. State of Maharashtra, 2007 CRI.L.J. 142, a judgment from the Aurangabad Bench of Bombay High Court, in which learned Judge has reiterated the principle of “falsus in uno, falsus in omnibus” is not a sound principle to be followed in India with respect to a criminal trial. Applying that theory, learned counsel argues that the evidence of P.Ws. 1 to 4, who turned hostile to the prosecution, should not be rejected alto¬gether when their evidence in the cross-examination supports the defence version. 12. In view of the aforesaid facts and the findings recorded by the trial Court besides the contention raised in course of the argument, it is appropriate that we should take a decision on the charge of homicide by determining whether the deceased suffered homicidal death. In that respect, evidence of P.W.8 is of paramount importance notwithstanding the ocular evidence of P.W.5. P.W.8, the doctor who conducted the post-mortem examination, stated in his examination-in-chief that he found the following external injuries on the dead body. In that respect, evidence of P.W.8 is of paramount importance notwithstanding the ocular evidence of P.W.5. P.W.8, the doctor who conducted the post-mortem examination, stated in his examination-in-chief that he found the following external injuries on the dead body. (1) Abrasions multiple in number over the neck near both the angles of mandible. (2) One abrasion 2.5 c.m. x 2 c.m. over the right cheek near the pina. (3) Abrasion 4 c.m. x 2 c.m. on the scalp over line the right side of the frontal bone. He further stated, “on dissection he found that there was no fracture of skull or vertebra but the membrane inside the skull were congested. The brain was congested; the larynx and trachea were congested. Both the lungs were congested, the pericardium was congested, the right chamber of the heart contained dark fluid blood and the left chamber was empty. Blood-stains were seen at the angles of the mouth and in the buccal cavity and around the nostrils and the stomach was containing liquid and the liver was congested.” P.W. 8 opined that the aforesaid external injuries were sufficient in ordinary course of nature to cause death of the deceased and the deceased died due to throttling. In the cross-examination he found confronted with the medical juris¬prudence by inviting his attention to different symptoms, which are possible in case of death due to throttling. While admitting about such symptoms possible, P.W.8 stated that he did not men¬tion in the Post-mortem Report about presence of such symptoms. Capitalizing on that, it was argued in the Court below so also before us that such that death due to throttling is a remote possibility. On the positive evidence of the Doctor after exami¬nation of the dead body, the opined arrived at by him is of much importance than of discrediting the same on the basis of theories which are neither directly applicable nor applicable to the present case. Under such circumstance, on analysis of the evi¬dence of P.W.8 is held that the child suffered homicidal death. 13. It is argued by learned counsel for the accused-respondents that death of the deceased could have been because of diarrhoea and blood dysentry. P.W.5 has categorically denied that her daughter was suffering from any such disease. Under such circumstance, on analysis of the evi¬dence of P.W.8 is held that the child suffered homicidal death. 13. It is argued by learned counsel for the accused-respondents that death of the deceased could have been because of diarrhoea and blood dysentry. P.W.5 has categorically denied that her daughter was suffering from any such disease. The doctor was not cross-examined if he found symptoms of the deceased suffering from any such disease though questions were put about the symp¬toms of blood dysentry and diarrhoea. P.Ws. 1 to 4 who admittedly turned hostile to the prosecution and supported the defence, have stated in their cross-examination that the child was suffering from blood dysentry. Such version is hard to be accepted in the absence of any evidence that they are anyway connected with the family affairs of the accused persons or they are so close that they knew about ailment of the child. Under such circumstance, evidence of P.Ws. 1 to 4 does not inspire confidence regarding ailment of the child by suffering from blood dysentry. 14. Then comes for consideration as to who is the author of the homicidal death of the deceased. Prosecution has built up the motive against accused Trinath Palai on the basis of the decision of the village punch. As stated above, P.Ws. 1 to 4 who are the co-villagers of the accused made statement during the investiga¬tion about such a punch. Gleefully they resiled from that state¬ment in the Court, but the statement confronted to them keep a semblance of inference to corroborate the evidence of P.W.7 that such a Panchayat was taken place and a settlement had been ar¬rived at. P.W.5 was not present in that punch, therefore, her evidence to that effect about the decision taken in the punch amounts to hearsay, but her conduct in staying in the house and awaiting to receive the payment and the landed property is relevant enough to admit that part of the case of the prosecution that accused was to make payment of Rs. 4,000/- as well as to execute document alienating property of one and half ‘Mana’. That part of her evidence was not challenged in course of the cross-examination save and except a denial suggestion, which is evident from the deposition of P.W.5. Accused persons as well as P.W.5 are closely related to the deceased. 4,000/- as well as to execute document alienating property of one and half ‘Mana’. That part of her evidence was not challenged in course of the cross-examination save and except a denial suggestion, which is evident from the deposition of P.W.5. Accused persons as well as P.W.5 are closely related to the deceased. In between them the rela¬tionship of P.W.5 is more closure to the deceased than that of the accused persons. Therefore, when one is the accused of the crime and the other is an eye-witness, his evidence is not to be discarded simply because of close relationship, because such a close relative would not like to protect the real offender and to punish an innocent person. Be that as it may, the evidence of such close relative has to be scrutinized and thereafter to be appreciated either for or against the charge. Adopting that principle, it is seen that P.W.5 in her examination-in-chief has clearly stated that accused Trinath committed murder of the deceased by throttling her neck while putting her on the ground with face upwards. That evidence of P.W.5 corroborates the evi¬dence of P.W.8 regarding the cause of death. P.W.5 stated that accused Trinath applied his hands to throttle the neck. The abrasions found on the neck of the deceased in course of the post-mortem examination as ante-mortem, sufficiently corroborates to that circumstance. P.W.5 sustained injuries on her forehead, because she dashed her head against the floor on seeking the deceased being killed by her father-in-law. The Injury Certifi¬cate, Ext. 7, clearly corroborates to that evidence. Under such circumstance, learned Addl. Sessions Judge has moved astray by resorting to hypothesis as to why accused persons did not kill P.W.5 and choose to kill the deceased or why the accused persons did not kill the deceased in absence of P.W.5. All such factors are non-acceptable reasoning. A case is never decided on the basis of hypothesis. A Court is required to decide whether on the facts and circumstances projected and evidence tendered before it, the crime as narrated, could have been committed, and if that be so, then the charge is to be considered as proved. All such factors are non-acceptable reasoning. A case is never decided on the basis of hypothesis. A Court is required to decide whether on the facts and circumstances projected and evidence tendered before it, the crime as narrated, could have been committed, and if that be so, then the charge is to be considered as proved. In the case at hand, prosecution through the evidence of P.W.5 together with the evidence of P.W.8 has clearly proved that the occurrence took place in the manner P.W.5 witnessed it and stated before the Court and that amounts to murder of the deceased by the accused Trinath Palai. 15. The Trial Court also disbelieved the evidence of P.W.5 on the reasoning that in the morning, after occurrence, when the villagers gathered in front of the house of the accused, P.W.5 did not narrate anything before them about the incident. In the case of Leela Ram (supra), the Apex Court interfering with the reasonings of the similar type, held that : “12. The Court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individu¬als and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unpro¬ductive and a pedantic exercise.” In this case, we see on record that P.Ws. 1 to 4, the four co-villagers of the accused have appeared and supported the defence and not the prosecution notwithstanding the fact of ghastly murder of an innocent child at the hands of her grandfather. P.W.5 had suffered the agony of death of her child in her presence by none else but her father-in-law. Therefore, her no-reaction before the co-villagers cannot be the reason to disbelieve her when admittedly in the morning while P.W.6 arrived before her, she narrated the whole incident. In other words, the conduct of P.W.5 indicates that she had no confidence in the co-villagers of the accused and therefore she did not choose to narrate the incident before them. Therefore, her no-reaction before the co-villagers cannot be the reason to disbelieve her when admittedly in the morning while P.W.6 arrived before her, she narrated the whole incident. In other words, the conduct of P.W.5 indicates that she had no confidence in the co-villagers of the accused and therefore she did not choose to narrate the incident before them. That cannot be the reason to disbelieve her or to reject her testimony as an eye-witness to the occurrence. 16. On analysis of the facts and evidence on record, we find that the deceased suffered homicidal death and accused Trinath Palai is the author of that crime. Admittedly he buried the dead body of the child in the burial ground without intimating anybody and that constitutes the offence under Section 201, I.P.C. At the same time we record that evidence on record is deficient to sustain the charge under Section 302/34, I.P.C. or Section 201/34, I.P.C. against Bilasini Dei, accused-respondent No. 2. Therefore, while setting aside the impugned judgment as against accused Trinath Palai, we maintain the order of acquittal in favour of accused Bilasini Dei. Because of lapse of time, notwithstanding the ghastly act conducted by accused Trinath Palai, he is not to be saddled with the extreme penalty, i.e., death sentence, but for the offence under Section 302, I.P.C. the alternative sentence of imprisonment for life is only available against him. Accordingly, accused Trinath Palai, for his convic¬tion under Section 302, I.P.C. is sentenced to imprisonment for life. For the aforesaid reasons we do not impose any separate sentence for the offence under Section 201, I.P.C. 17. The Government Appeal is accordingly allowed in part. Accused-respondent No. 1 Trinath Palai is directed to surrender to the bail bond within a period of one month, failing which steps be taken by the Court below to send him to jail custody to serve the sentence. Learned Standing Counsel shall impart appro¬priate instruction to the Superintendent of Police, Puri to take appropriate steps. Appeal allowed in part.