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2010 DIGILAW 847 (ORI)

Siman Ganta v. State of Orissa

2010-12-13

PRADIP MOHANTY, S.K.MISHRA

body2010
JUDGMENT S. K. MISHRA-, J. (1) THE convict in Criminal Trial No. 28 of 2002 of the Court of ad hoc Addl. Sessions Judge, Gunupur has assailed his conviction under Section 302 of the Indian Penal Code (for short 'the IPC) and sentence of life imprisonment passed on 23-04-2003 by the said Court. (2) THE prosecution alleged that on 17-06- 1998, on a Wednesday, at about 12'o' clock in the noon, the daughter of the informant, Dabida Ganta, whose name was Mika Ganta, aged about 14 years, went towards the eastern side of the village carrying a bamboo basket for collecting Mohuli seeds. That day some times thereafter the accused Siman Ganta of the same village, i.e. Tangarama, also went in the same direction. Till 6 p.m., in the evening the daughter of the informant did not return. As such he along with some others searched her but could not get any trace of her. THE accused Siman Ganta also did not return to the village that evening. On 18-06-1998, the informant along with other villagers searched for her daughter. At about 2 p.m., they found the dead body of Mika Ganta lying in Japan forest near Hechamuti Nala. Her neck was cut and there was bleeding from the wound. Her wearing apparels were torn and there was mark of injury on her chest and that she was almost naked. Suspecting the complicity of the accused, the informant lodged FIR. On receipt of the F.I.R., the Officer-In- Charge, Gudari Police station took up the investigation. He examined the witnesses and held inquest on the dead body of the deceased and sent the dead body for post-mortem examination. He arrested the accused. THE accused, while in police custody, led to discovery of weapon of offence. Upon completion of investigation, the Investigating Officer finding a prima facie case against the appellant filed charge-sheet under Sections 376 and 302 of the IPC. In course of trial, the appellant took the plea of denial of the entire allegation. Additionally, he took up the plea that he is a resident of village Gaibandha under the Padmapur Police Station and had never resided at village Tangarama. He also pleaded that prosecution witnesses are related to each other and that they have falsely implicated him in this case because of inimical relationship. In order to bring home, the charges levelled by the prosecution, it examined nine witnesses. He also pleaded that prosecution witnesses are related to each other and that they have falsely implicated him in this case because of inimical relationship. In order to bring home, the charges levelled by the prosecution, it examined nine witnesses. P.W.2, Kasta Ganta is the solitary eye-witness, P.W. 1, Dabinda Ganta is the informant of this case, who happens to be the father of the victim girl, P.W.6, Chaturbhuja Takiri happens to be the front door neighbour of P.W.I. He corroborates the evidence of P.W. 1 in certain material aspect. He also states about the disclosure statement of the accused and the recovery of weapon of offence. P.W.3, Ganera Kreputika is a witness to the seizure as well as disclosure statement and the seizure of weapon of offence. P.W. 7, Bisiketu Sabar is the scribe of the F.I.R. The rest of the witnesses, namely, P.Ws. 4, 5, 8 and 9 are official witnesses. (3) THE defence, on the other hand, has examined three witnesses, D.W.I, Lunduru Bunia of Tangarama, D.W.2, Mangasa Majhi and D.W. 3 Joseph Lima of village Gaibandha. (4) AFTER assessing evidence on record the learned trial Court took into consideration the following components of evidences :- i. the victim was found to be going towards the jungle on 17-06-1998 at about 12 o' clock some time thereafter the accused went in that direction. ii. the narration of the eye witness P.W.2. iii. leading to discovery of weapon of offence at the instance of the accused, admissible under Section 27 of the Indian Evidence Act, 1972 (for short 'the Act') iv. finding of blood-stains in the wearing apparels of the deceased and the accused on chemical examination. v. the objective determination of the spot by the Investigating officer, which is confirmed by the chemical examiner's report. Taking into consideration the aforesaid evidence available on record, the learned ad hoc Addl. Sessions Judge came to the conclusion that the prosecution has proved that the accused committed murder of the deceased beyond all reasonable doubt, and thereafter proceeded to the convict him under Section 302 of the IPC. However, learned trial Judge, further held that the prosecution failed to prove that the accused committed rape on the deceased and, therefore, acquitted the appellant of the charge under section 376 of the I.PC. However, learned trial Judge, further held that the prosecution failed to prove that the accused committed rape on the deceased and, therefore, acquitted the appellant of the charge under section 376 of the I.PC. The appellant has been sentenced to undergo imprisonment for life for the offence under Section 302 of the IPC. (5) IN assailing the conviction of the appellant, learned counsel for the appellant, Sri J. Katikia has argued, emphatically, that the evidence of the solitary eye-witness cannot be believed in view of the fact that the FIR does not reveal about P.W. witnessing the occurrence. Secondly, it. is contended that the place where the dead body was found differs according to the evidence adduced in the shape of P.Ws. 1, 2 and 6 on the one hand and P.Ws. 8 and 9 on the other hand. Learned counsel for the appellant therefore, argued that the conviction recorded by the trial Court is unsustainable. Learned Addl. Government Advocate, Sri S. K. Nayak, on the other hand, supports the findings recorded by the trial court and argued that the FIR is not an encyclopedia and keeping in view the facts of the case, the judgment of the trial Court does not require interference. (6) IT is not disputed at this stage that the P.W. 2 is the only witness to the occurrence. In other words, P.W. 2 is the solitary eye witness to the occurence. The contention raised by the learned counsel for the appellant that the solitary witness should not be believed is contrary to the provision of Section 134 of the Indian Evidence Act, 1872. Section 134 of the said Act reads as follows : "134. Number of witnesses : - No particular number of witnesses shall, in any case, be required for proof of any fact." A plain reading of Section 134 makes it clear that it is not necessary to examine a number of witnesses to prove in a particular fact. IT is the quality of the evidence not the quantity of evidence, which is material. In this backdrop, the evidence of P.W. 2 has to be examined to find out whether he can be relied upon to record a conviction. P.W. 2 has stated on oath that he is a resident of village Tangarama. There are 23 houses in his village. He knew the informant and his daughter. In this backdrop, the evidence of P.W. 2 has to be examined to find out whether he can be relied upon to record a conviction. P.W. 2 has stated on oath that he is a resident of village Tangarama. There are 23 houses in his village. He knew the informant and his daughter. The witness further stated that the deceased died on a Wednesday about four years back (from the date of deposition) during summer vacation. At that time, Mohua trees were bearing Mahua seeds. On the morning of the day of occurrence, he went to village Gandaguda, which is situated at a distance of three 'kosos' from his village, to sell his articles in that village. After completing his business, he left Gandaguda at about 4 p.m. Hetchamuti jungle lies in between his village and Gandaguda. There is one path, which runs through that forest. While returning in the Hetchamuti forest through the path he heard the cries of a girl coming to the side of the Hetchamuti Nala. She was uttering "Maa Mali. Bapa Mali". On hearing such cries, he went to the place from where the sound was coming, and found the deceased lying on the earth near the nala. The accused Siman was over her chest and was cutting her neck by means of a 'Kati', which he was holding then. The place comes within the 'Japan' tree forest area of Hetchamuti jungle. Seeing the profuse bleeding he was terribly shocked and frightened. Becoming nervous, he immediately left the place and returned to his village. He remained inside the house and did not tell any one about the incident. On the morning of the next day, i.e. Thursday, the father of the deceased was sitting on the verandah of his house when he was going by that way. Her father enquired from the witness, if he knew the whereabouts of his missing daughter. The witness revealed before him that, on the previous day, he saw the accused cutting the throat of his daughter inside nala of Hetchamuti jungle. Then he along with father of the deceased and some other villagers, went to the place of incident and they found the dead body of the deceased lying there. Her dead body was also naked. Her nicker was removed from her body and her wearing apparels lying torn. Then he along with father of the deceased and some other villagers, went to the place of incident and they found the dead body of the deceased lying there. Her dead body was also naked. Her nicker was removed from her body and her wearing apparels lying torn. Thinking that the body would be eaten by the wild animals, they brought the dead body to the village. 9A. In cross-examination he denied the suggestion that he is the brother of the informant, P.W. 1. He also denies the suggestion that the name of his father is also Agastin. He further stated in cross-examination that the house of the accused is situated in one Sahi and the house of the witness is situated in another Sahi in village Tangarama. Their village comprises of two Sahis only. He has no enmity with the accused. He had normal relationship with the accused prior to the incident. (7) P.W. 1 has stated that, on the date of occurrence, at about 12 noon, his daughter went towards the Hetchamuti forest with the bamboo basket. About an hour thereof, the accused went in the same direction. He clarifies fies that the house of the accused is situated in his village. Till the evening his daughter did not return. He along with others searched for her. The accused also did not return to the village. On search they could not find his daughter. On the next day. while he was in his house. Kasta Ganta (P.W. 2) came to his house and told that his daughter, Mika Ganta was lying dead inside the 'Japan' forest of Hetchamuti jungle. He also narrated about the incident and told that he saw the accused cutting the throat of the deceased. Thereafter, the informant Kasta Ganta and others proceeded to that spot and discovered the dead body. On the same day. he also stated that he carried the dead body of the deceased to the village to avoid it being eaten by wild animals. On the same day, he informed one Bisket Sabar. the then Sarpanch, who scribed the report. The informant presented the report before the O.I.C.. Gudari Police Station. Thereafter, the case was registered and investigation was taken up. he also stated that he carried the dead body of the deceased to the village to avoid it being eaten by wild animals. On the same day, he informed one Bisket Sabar. the then Sarpanch, who scribed the report. The informant presented the report before the O.I.C.. Gudari Police Station. Thereafter, the case was registered and investigation was taken up. In the cross-examination, he denied the suggestion that he has not stated before the Investigating Officer that Kasta Ganta came to his house and told that his daughter was lying dead inside 'Japan' forest of Hetchamuti jungle with a cut injury on her throat and that he further told that, on the previous day, while he was returning from Gandaguda to village, he heard cries of a girl. This witness stated in the cross-examination that he is an illiterate person and cannot say all that was written in the FIR. (8) P. W. 6, Chaturbhuja Takri is the front door neighbour of the informant. He also states about the deceased proceeding towards Hatchamuti forest carrying a basket and after sometime he found the accused proceeding in the same direction towards Hetchamuti forest. He described wearing apparels of the accused. This witness further slated that on the next day, P.W. 2 informed P.W. 1 that he saw the deceased being killed by the appellant. Accordingly, they went to the place where the dead body was lying. They found out injury on her throat and other parts of the body and thereafter they brought the dead body to the village from Nala. The dead body was kept under a mango tree. Thereafter, the report was lodged before the OIC. Gudari Police Station. The FIR itself reveals that the informant has not mentioned about the narration of the eye-witness about the occurrence to him. The FIR has been lodged on the suspicion towards the present appellant. Now, in this back drop the evidence of RW. 2 has to be reassessed for reaching at a just and proper conclusion. (9) CRIMINAL trial is not a mock scene from a stunt film. It is about real people deposing about real incident and the Courts are expected to have a pragmatic and practical approach while appreciating evidence in a criminal trial. 2 has to be reassessed for reaching at a just and proper conclusion. (9) CRIMINAL trial is not a mock scene from a stunt film. It is about real people deposing about real incident and the Courts are expected to have a pragmatic and practical approach while appreciating evidence in a criminal trial. The Hon'ble Supreme Court in Anil Phukan v. State of Assam, 1993 Supreme Court Cases (Cri) 810 : ( AIR 1993 SC 1462 : 1993 Cri LJ 1796) has held that conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of realibility. So long as the single eye-witness is a wholly reliable witness the Court has no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the Court should insist on some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the Court finds that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure the defect. The Hon'ble Supreme Court in the aforesaid case has. further, clarified that mere relationship of the witness with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant and implicate an innocent person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, Court should look for some independent corroboration of his testimony to decide involvement of the accused in the crime. The evidentiary value of a related witness was decided by the Hon'ble Supreme Court way back in 1953 in Dalip Singh v. The State of Punjab. The evidentiary value of a related witness was decided by the Hon'ble Supreme Court way back in 1953 in Dalip Singh v. The State of Punjab. AIR 1953 SC 364 : (1953 Cri LJ 1465), which has been later on followed in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 : (1957 Cri LJ 1000) and Guli Chand v. State of Rajasthan ( (1974) 3 SCC 698 ): ( AIR 1974 SC 276 : 1974 Cri LJ 331). The settled principle now is that a witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means that unless the witness has a cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. In this case, there is no dispute that P.W. 2 is the only eye-witness. The prosecution case is that he is not a relation of the informant and the deceased. An attempt has been made by the defence while cross-examining the witnesses to stipulate that P.W. 2 is the brother of the informant, P.W. 1. However, such attempt has not been successful as the witnesses have denied about such a relationship. Moreover, the version of defence witness has also been disbelieved by the trial Court on the ground that they were not able to speak the names of two brothers of P.W. 2. Thus, in all fitness of things, the trial Court's finding that P.W. 2 is not a relation of the deceased is just and proper. So on that score, the evidence of P.W. 2 cannot be held to be that of an interested witness. (10) THE only other aspect with relation to evidence of P.W. 2 is whether he should be believed in view of the fact that the FIR does not contain a statement regarding his witnessing the occurrence. In this connection, this Court takes note of the fact that P.W. 2 himself has not lodged FIR. Rather, another person has lodged the FIR. Secondly, it is also noted by this Court that the FIR has been lodged by an illiterate person. It was scribed by P.W. 7 and the informant has merely affixed his signature. In this connection, this Court takes note of the fact that P.W. 2 himself has not lodged FIR. Rather, another person has lodged the FIR. Secondly, it is also noted by this Court that the FIR has been lodged by an illiterate person. It was scribed by P.W. 7 and the informant has merely affixed his signature. He himself has stated that he is an illiterate person and cannot reproduce the verbatim of the FIR. In such a case, the evidence of RW. 2 should not be viewed with suspicion on the aforesaid ground alone. Additionally, it is evident from the statement of P.W. 6 that in his presence the eye-witness RW. 2 has narrated about the incident to the informant and thereafter they proceeded to search the dead body of the deceased. RW. 6, is an independent witness and has no relationship with the appellant. Such being the evidence of PW. 6 corroborating about the disclosure made by him before P. W. 1, this Court finds enough reason to accept the evidence of P.W. 2. (11) IT is further noticed from the entire evidence of the witness that not a single contradiction has been pointed out by the defence in the cross-examination of P.W. 2. He has withstood rigorous cross-examination and nothing substantial has been brought out by the cross-examiner to hold that the witnesses, Kasta Ganta, P.W. 2 was deposing falsehood. However, considering the fact that there is no mention in the FIR about his witnessing occurrence, it is proper for the Court to seek some corroboration to his testimony. Such corroboration may be in the shape of circumstantial evidence or opinion of the medical officer etc. IT need not be corroboration of other independent eye-witness. (12) IN this case, it is forthcoming that the deceased died due to several injuries on her neck. P.W. 4 has stated on oath that on 20-6- 1998 he was the Medical Officer, Sub-divisional Hospital, Gunupur. On that day, on police requisition, he conducted post-mortem examination on the dead body of the deceased being identified by Constable No. 72 and others. IN course of such examination, he found the following external injuries on the person of the deceased. P.W. 4 has stated on oath that on 20-6- 1998 he was the Medical Officer, Sub-divisional Hospital, Gunupur. On that day, on police requisition, he conducted post-mortem examination on the dead body of the deceased being identified by Constable No. 72 and others. IN course of such examination, he found the following external injuries on the person of the deceased. i. Lacerated injury on the lower part of the neck of the size 18 cms x 5 cms with depth of the wound going up to vertebral body (bone portion) of the lower cervical region. The injury involved the whole breath of the trachea, laryax and large vessels of both sides of the neck. ii. Lacerated injury on the left breast of size 2 1/2 cm x 1 1/2 cm. iii. Contusion at the middle of the inner part of the right thigh of size 1 1/2 cm. x 3/4 cm. On further dissection, he found that the trachea was cut through and through involving 3rd and 4th rings. Both the common carotids and jugular veins were cut. There was clotted blood on the veins. The entire injury corresponds to external injury No. 1. He also found the hymen was ruptured at the junction of anterior and middle third of size 3/4 cm. x 1/2 cm. The doctor opined that all the injuries were ante mortem in nature and the death was due to injuries to the large vessels of the neck and haemorrhage from the injuries. The time of death was within 36 to 48 hours prior to the post-mortem examination. He stated that there was indication of commission of rape with the deceased. He further stated on oath that on production by the police he examined the knife and opined that the external and internal injury No. 1 found on the body by him was possible by means of that knife. Accordingly, he gave a written opinion. IN the cross-examination, the defence has not made any attempt to challenge the opinion of the doctor both with regard to the injuries and the weapon used to cause the same. Thus, it is held that the injuries found on the dead body of the deceased were caused by the weapon seized in this case. Thus, the medical evidence supports the narration of P.W. 2. Thus, it is held that the injuries found on the dead body of the deceased were caused by the weapon seized in this case. Thus, the medical evidence supports the narration of P.W. 2. Additionally, the circumstance of leading to discovery of weapon of offence also supports the evidence of P.W. 2. (13) IT is seen that the Investigating Officer has stated, in course of investigation, he arrested the accused, who made a disclosure statements, which was recorded by him and has been marked as Ext. 15. In the disclosure statement, the appellant stated that he had concealed the knife in the front roof of the house of one Agani Ganta. The evidence of the Investigating Officer is supported by the evidence of P.W. 3 in this regard. Thereafter, the accused led the I.O. to the place of concealment and gave recovery of weapon of offence. Learned counsel for the appellant submitted that since the weapon of offence was seized from an open place and accessible to all, the same cannot be treated as a discovery under Section 27 of the Evidence Act. In this connection, the learned trial Judge has relied upon the ratio decided by the High Court in Araque Lutifi alias Dazy v. State of Orissa, (2003) 95 CLT 35, wherein it has been laid down that there is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if the recovery of the articles was made from any place which is open or accessible to others. IT is a fallacious notion that when the recovery of incriminating article was made at place which is open and accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. An object can be concealed in a place, which is open and accessible to others but not visible. For example, if an article is buried in the main road side and it is concealed beneath dry leaves lying on public places or an article is kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances until such article is disinterred its hidden state would remain unhampered. For example, if an article is buried in the main road side and it is concealed beneath dry leaves lying on public places or an article is kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances until such article is disinterred its hidden state would remain unhampered. In this case the knife was seized from a place, which is not visible from out side and, therefore, the discovery of the knife on the disclosure statement made by the accused shall be squarely covered under Section 28 of the Act. (14) ON top of it, it is found on chemical examination that the knife was found to be stained with blood. Thus, finding of blood on the knife, which was recovered and seized on the disclosure made by the accused corroborates the case of the prosecution. Additionally, it is seen that the seized lungi and full shirt of the accused were found to be stained with human blood of Group-A. Human blood of Group-A was also found in the frock and towel of the deceased. There is no explanation from the side of the defence as to how the accused had blood stains on his wearing apparels of the same group belonging to the deceased, Though this circumstance by itself will not prove the prosecution case, it definitely lends support to the case the prosecution has presented in the shape of narration of the eye-witness. (15) LEARNED counsel for the appellant has placed much emphasis on the evidence of P.Ws. 1, 2 and 6 regarding the shifting of the dead body from the place where the occurrence took place to a place under a mango tree of the village. However, on examination of materials on record reveals that the I.O. has seized the blood-stained earth from the spot, i.e. Japan jungle near Hetchamuti nala. The blood-stained earth was sent for chemical examination and said blood stained was found to be stained with human blood. Such finding of the human blood on the earth collected from the spot objectively determines the spot to be in the jungle of Hetchamuti. This circumstance also lends corroboration to the case of the prosecution. (16) WHILE appreciating the evidence of the solitary eye-witness, the Court has to consider the objective circumstances of the case taken together as an anvil. Such finding of the human blood on the earth collected from the spot objectively determines the spot to be in the jungle of Hetchamuti. This circumstance also lends corroboration to the case of the prosecution. (16) WHILE appreciating the evidence of the solitary eye-witness, the Court has to consider the objective circumstances of the case taken together as an anvil. In order to test the trustworthiness of the solitary witness, his evidence should be placed or tested with the anvil of the objective circumstances. If the objective circumstance supports the evidence of the solitary eye-witness, then it is duty of the Court to record the finding of guilt other wise not. Thus, on conspectus of entire evidence placed on record, the Court comes to the conclusion that the learned ad hoc Addl. Sessions has not committed any illegality by finding the appellant guilty of the offence of murder. The appellant has been right convicted for having committed the offence punishable under Section 302 of the IPC. Accordingly, the appeal has no merit and the same is dismissed. Appeal dismissed.