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2009 DIGILAW 405 (ORI)

ABHRA ` CHHUTU MURMU v. STATE OF ORISSA

2009-05-11

L.MOHAPATRA, PRADIP MOHANTY

body2009
JUDGMENT : Pradip Mohanty, J. - This appeal is directed against the judgment and order dated 24.09.2009 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No. 10/55 of 1999 convicting the Appellant for commission of offence u/s 302, I.P.C. and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that on 28.10.1998 at about 8 A.M. the informant and his wife (deceased) went to their paddy field. Their daughter, Saradha Murmu went to cut paddy in the field of Kara Majhi. His son went to the School for reading and his mother, Salma Murmu, went to the field by taking the bullocks. The informant was bundling the paddy on his land and the deceased was carrying the paddy bundles to their house. At about 12 noon while the deceased was carrying paddy bundles, suddenly the accused-Appellant dealt knife blows on her belly. As a result, she sustained bleeding injuries and raised hullah by saying "DOUDI ASO ABHRA CHAKHU BHUSI DEICHHI". Hearing hullah, the informant came to the spot and found the deceased lying on the road in front of his house. On his query, the deceased told him that the accused-Appellant had assaulted on her belly and fled away towards the jungle. No male person was present in the village. So, he called the wife of Fadu to the spot. The deceased also told her that the Appellant had dealt knife blows on her belly. She was shifted to Jharadihi P.H.C. and the doctor referred the injured to the Rairangpur Govt. Hospital for treatment. On the way, the deceased succumbed to injury. The matter was reported to the A.S.I., Jharadihi Out-Post who sent the report to the O.I.C. Tiring Police Station for registration. The said A.S.I, investigated into the case and ultimately filed charge-sheet against the Appellant for commission of offence u/s 302 I.P.C. 3. The plea of the defence is complete denial of the allegation. 4. The prosecution, in order to prove the charge, examined as many as fifteen witnesses. P.W.1 is the informant, P.Ws. 2, 3 and 4 are seizure witnesses, P.W.5 is the brother of the deceased as well as the witness to the dying declaration. P.W.6 is the son of the deceased and a witness to the dying declaration P. Ws, 7 and 9 are the brothers of the deceased. P.W.8 is the brother-in-law of the deceased. P.W.1 is the informant, P.Ws. 2, 3 and 4 are seizure witnesses, P.W.5 is the brother of the deceased as well as the witness to the dying declaration. P.W.6 is the son of the deceased and a witness to the dying declaration P. Ws, 7 and 9 are the brothers of the deceased. P.W.8 is the brother-in-law of the deceased. Both P.Ws. 8 and 9 are also witnesses to the dying declaration. P.W.10 is a constable of Jharadihi P.S. P.W.11 is the doctor, who collected sample of nail scrapping, hand wash and gudge piece of cloth soaked with blood from the left ring finger of the Appellant. P.W.12 is the doctor who initially treated the deceased and advised to shift the deceased to Rairangpur Govt. Hospital. P.W.13 is the doctor who conducted autopsy. P.Ws. 14 and 15 are the I. Os. The defence has examined two witnesses on its behalf. 5. The learned Additional Sessions Judge, Rairangpur, who tried the case, by the impugned judgment convicted the Appellant for commission of offence u/s 302 I.P.C. and sentenced him to undergo imprisonment for life solely basing upon the dying declaration of the witnesses. 6. Miss Biswal, learned Counsel for the Appellant submits that the dying declaration is a weak piece of evidence and there is no independent corroboration to that effect. All the witnesses, who stated about the dying declaration, are interested witnesses. The evidence of P.W.15 is very clear and cogent that the Appellant was not in a position to speak. In support of her contention she relies upon the decision in Sushanta Behera and Another Vs. State of Orissa, & Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P., . 7. My. Mohapatra, learned Additional Standing counsel vehemently opposes the contentions of the learned Counsel for the Appellant and submits that when P.Ws. 1, 3, 5, 6 and 7 were shifting the deceased to the hospital, she disclosed before them about the assault given by the Appellant. There is no reason to disbelieve the evidence of the above witnesses. The deceased had specifically stated before them that the Appellant stabbed on her belly by means of a knife. The weapon of offence, i.e., knife has been seized from the possession of the Appellant under Ext. 4. So, there is no illegality or infirmity in the impugned judgment rendered by the trial court convicting the Appellant u/s 302 I.P.C. 8. The deceased had specifically stated before them that the Appellant stabbed on her belly by means of a knife. The weapon of offence, i.e., knife has been seized from the possession of the Appellant under Ext. 4. So, there is no illegality or infirmity in the impugned judgment rendered by the trial court convicting the Appellant u/s 302 I.P.C. 8. Perused the L.C.R. and the decisions cited by the learned Counsel for the Appellant. P.W.1 is the informant and husband of the deceased. He stated in his evidence that while the deceased was carrying paddy bundles, she raised nullah by saying that the Appellant assaulted her. Hearing hullah he along with other witnesses went to the sport and found the deceased had sustained piercing bleeding injuries on her belly. On his query, the deceased disclosed that the Appellant had dealt knife blow below her chest and above the abdomen. Nothing has been elicited by the defence through cross-examination to disbelieve his evidence. P.Ws. 2, 3 and 4 are the seizure witnesses. P.W.5 is a co-villager and a relative of the informant in whose presence the deceased stated to the above effect. P.W.6 is Anr. witness who stated about the dying declaration made by the deceased. Nothing has been elicited from the cross-examination by the defence to disbelieve his evidence. P.W.10 is a witness to the seizure. P.W.11 is the medical officer who collected sample of nail scrapping oflfie Appellant. P.W.12 is the doctor who treated the deceased and found stab injuries with severe haemorrhage on her person. He had issued bed head ticket. He stated in his cross-examination that the injured was not in a position to talk. P.W.13 is Anr. doctor who conducted autopsy of the deceased and found following injuries. (i) Elliptical perturbing injuries directly obliquely of 2" x 1" size on abdomenial deep with sharp cutting margin. (ii) Elliptical injuries of 1" x 1/2" abdomenial deep place 1" above and 1 1/2 lateral umbilicus. (iii) 1/2" x 1/2" abdominal deep on the left side of abdomen 1" lateral on the midline and 2 1/2" above the umbilicus. He opined that all the three injuries might have been caused by sharp cutting pointed weapon. The cause of death is due to haemorrhage and shock. Nothing has been elicited by the defence from the cross-examination to disbelieve his evidence. He opined that all the three injuries might have been caused by sharp cutting pointed weapon. The cause of death is due to haemorrhage and shock. Nothing has been elicited by the defence from the cross-examination to disbelieve his evidence. P.W.14 is the O.I.C. who investigated into the matter and ultimately filed the charge-sheet against the Appellant P.W.15 is the Anr. I.O. 9. It is the settled principle of law that a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no necessity for seeking further corroboration from independent source. Keeping in mind the above ratio, we have scrutinized the evidence on record. P.W.1 is the husband of the deceased who had heard the hullah raised by her and come to the spot. Before him, the deceased had taken the name of the Appellant as the assailant. P.Ws. 2, 6, 7, 8 and 9 have corroborated the statement P.W.1. Further, P.Ws. 2 5 and 9 have stated that while they went to the hospital, before them the deceaseddisclosed the name of the Appellant as her assailant. It has been elicited from P.W.6 through cross-examination that the deceased was on sense while being removed to the hospital. From the above, it is crystal clear that at the time of making the dying declaration she was conscious. Taking the totality of the circumstances into consideration, we are of the opinion that an order of conviction can very well be passed basing upon the aforesaid dying declaration. We, therefore, do not find any reason to interfere with the impugned judgment. 10. The appeal being devoid of merit is dismissed. L. Mohapatra, J. 11. I agree. Final Result : Dismissed