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2011 DIGILAW 153 (ORI)

Baruna Sa v. State of Orissa

2011-03-09

C.R.DASH, L.MOHAPATRA

body2011
JUDGMENT C. R. DASH, J. (1) THE appellant was found guilty of the offence of murder. Learned Sessions Judge, Bolangir sentenced him to suffer imprisonment for life. Aforesaid judgment and order of sentence dated 3-11-1992 passed by the learned Sessions Judge, Bolangir in Sessions Case No. 62 of 1992 are impugned in this appeal. (2) THE prosecution case stated succinctly as found from the record is as follows : Deceased Jadu Sa is the father of deceased Dolamani Sa. At about 11.30 p.m.. on 29-2- 1992 they were sleeping in their house. THE appellant at that time came to their house, woke them up and sought their assistance telling them that his father and brother are waiting for his return to thresh him. THEy consoled the appellant and sent him back to his house. In no time the appellant returned to them with a sword and stabbed them both, one after another on their abdominal area. In course of their treatment both of them succumbed to the injuries obliging the appellant to stand trial for offence under Section 302, I. P. C. The appellant pleaded not guilty. It is the specific defence case that while the appellant was asleep, both the deceased persons woke him up and wanted him to come to their house; he declined; the deceased persons attempted to take him forcibly; the appellant being apprehensive of some ill consequences, struggled, freed himself and ran away. (3) PROSECUTION has examined 11 witnesses to prove the charge. P. Ws. 1, 2 and 3 are the eye witnesses to the occurrence. P. W. 4 is a witness to the statement of the appellant recorded under Section 27 of the Evidence Act and consequent recovery of the weapon of offence, i.e., the sword (M. O. I.). P. W. 7 is a witness, who produced the bed-head ticket regarding treatment of deceased Dolamani Sa. P. W. 8 is the Sub-Inspector of police, who conducted inquest oxer the dead body of deceased Dolamani Sa and also issued dead body challan for post-mortem examination of deceased Dolamani Sa. P. W. 5 is the Medical Officer, who conducted postmortem examination over the dead body of deceased Jadu Sa. P. W. 11 is the Medical Officer, who conducted post-mortem examination on the dead body of deceased Dolamani Sa. P. W. 5 is the Medical Officer, who conducted postmortem examination over the dead body of deceased Jadu Sa. P. W. 11 is the Medical Officer, who conducted post-mortem examination on the dead body of deceased Dolamani Sa. P. W. 6 is the Medical Officer, who examined Jadu Sa and Dolamani Sa in sub-Divisional Government Hospital, Patnagarh. P. Ws. 9 and 10 are the Investigating Officers. Defence has examined two witnesses to prove its stand. (4) LEARNED trial Court on consideration of the evidence on record found the appellant guilty on the basis of dying declaration of Jadu Sa vide Ext. 11, dying declaration of deceased Dolamani Sa vide (Ext. 17) and eye witness account of P. Ws. 1,2 and 3 coupled with recovery of the weapon of offence (M.O.-I) at the instance of the appellant. Learned counsel for the appellant at the outset disputes the finding of the learned trial Court to the effect that death of both the deceased was homicidal. It is contended by learned counsel for the appellant that the death of both the deceased persons has not resulted from the act of the appellant or consequence flowing from that. Jadu Sa died as a result of perforated intestine and Dolamani Sa died of Jaundice with Septicaemia. The cause of death of both the deceased is therefore, not proximate to the act of the appellant and it is too remote so as to hold the appellant guilty under Section 302, I. P. C. Learned Additional Government Advocate however, supports the findings arrived at by the learned trial Court on the point. (5) THE occurrence happened at about 11.30 p.m. on 29-2-1992, the Medical Officer (P. W. 6) examined both Jadu Sa and Dolamani Sa in the mid night of the same day, i.e., 29- 2-1992. Jadu Sa had sustained the following injuries :- (i) Stab would 1" x 1/4" x 1/2" i.e. up to bone depth with clean cut margin placed over the left 10th rib in the mammary line. (ii) Laceration with loss of skin 1" x 1/2" x 1/2" with clean cut margin placed over interdigital space between right thumb and index. (iii) Laceration with loss of skin 1" x 1/2" x 1/4" placed over middle phalanx of the right middle finger. (iv) Laceration with loss of skin 1/2" x 1/4" x 1/4" placed over lower phalanx on the right little finger. (iii) Laceration with loss of skin 1" x 1/2" x 1/4" placed over middle phalanx of the right middle finger. (iv) Laceration with loss of skin 1/2" x 1/4" x 1/4" placed over lower phalanx on the right little finger. (v) Laceration with loss of skin 1" x 1/2 x 1/4" placed over first phalanx of the left ring finger. (vi) Multiple abrasions of various sizes over both knees. It is opined by P. W. 6 that all the injuries except injury No. (i) supra are simple in nature but all the injuries except injury No. (vi) were caused by sharp cutting weapon and injury Nos. (ii) to (v) seem to be defence wounds. Dolamani Sa had received the following injuries :- (i) Incised wound 3" x 1/4" x 1/4" with clean cut margin over the left palm over the thenar eminence; (ii) Incised injury (stab wound) 1" x 1/2" x 1/2" over anterior abdominal wall placed transversally and placed 1" lateral and 1" above the pubis. Injury No. (i) was opined to be simple in nature. P. W. 6 examined the weapon of offence (M. O. I.) on police requisition and opined that the injuries received by both the deceased are possible by (M.O.I.). (6) SO far as deceased Dolamani Sa is concerned, he was referred to VSS Medical College and Hospital, Burla after being treated unsuccessfully in District Headquarters Hospital, Bolangir. He succumbed to the injuries on 12-3-1992 P. W. 11 conducted the postmortem examination on his dead body. P. W. 11 is of the opinion that the cause of death of deceased Dolamani is Septicaemic Jaundice. He has further opined that Septicaemic Jaudice occurs ordinarily due to infection. In his cross-examination, P. W. 11 has been specific to the effect that in this case Septicaemic Jaundice was due to infection. Jadu Sa succumbed to the injuries on 22- 3-1992. P. W. 5. conducted post-mortem examination. According to P. W. 5 cause of death of deceased Jadu Sa is faecal peritonitis following perforating injury to the large intestine. He has further opined that the injuries found on the dead body are sufficient to cause death in ordinary course of nature. Medically, 'septicamia' is a condition of blood poisoning. Septicaemic jaundice refers to jaundice caused by septicaemia. Septicaemia, in the present case, was caused by infection of the injuries sustained by Dolamani Sa. He has further opined that the injuries found on the dead body are sufficient to cause death in ordinary course of nature. Medically, 'septicamia' is a condition of blood poisoning. Septicaemic jaundice refers to jaundice caused by septicaemia. Septicaemia, in the present case, was caused by infection of the injuries sustained by Dolamani Sa. Cause of injury on the body of Dolamani Sa is the act of the appellant. 'Peritonitis' medically refers to a condition in which the inside wall of the abdomen becomes swollen. Jadu Sa died of peritonitis, which was caused by perforating injury to the large intenstine. Perforating injury in the large intestine of Jadu Sa is the direct result of attack by the appellant with a sword. In both the aforesaid cases, i.e. septicaemic jaundice in the case of Dolamani Sa and peritonitis in the case of Jadu Sa were the natural and probable result of the injuries which the appellant had caused. (7) IT is well settled in law that in order to held the death of a person to be homicidal, the injuries inflicted must be the proximate cause of death, and not a remote cause connected with the death by a chain of intervening events. In other words, the "death" should be connected with the act of violence or other primary cause not merely by a chain of causes and effects, but by such direct influence as is calculated to produce its effect without the intervention of any considerable change of circumstances. The death of a person must be at least a likely consequence of the injury received. In view of such position of law when any disease, which actually causes death, is natural and probable result of the injury which has been caused, the person who has inflicted injury is to be held responsible for the disease arising from the injury. Therefore, when the disease which actually causes death is disease like meningitis, peritonitis, tetanus, pneumonia, gangrene etc. and it is natural and probable result of the injury which the accused has caused, the accused is to be held to be responsible for the disease arising from the injury and the death in such cases is to be held to be homicidal. and it is natural and probable result of the injury which the accused has caused, the accused is to be held to be responsible for the disease arising from the injury and the death in such cases is to be held to be homicidal. (8) IN view of our discussion supra, we are one in our view with the learned Sessions Judge and it is held that death of the deceased persons was homicidal in nature. Deceased Jadu Sa is the informant. He lodged that F. I. R. (Ext. 11) at about 11.45 p.m. on 29-2-1992, i.e., immediately after the occurrence. In the same night Dolamani Sa was examined by the Investigating Officer in the P. S. and his statement under Section 161 Cr. P. C. was recorded vide Ext. 17. After death of both Jadu Sa and Dolamani Sa, Exts. 11 and 17 were tendered in evidence as dying declarations of Jadu Sa and Dolamani Sa respectively. It is no more res integra as to whether in such a situation Exts. 11 and 17 could have been admitted as evidence under Section 32(1) of the Evidence Act as dying declarations. Learned trial Court in paragraphs 10, 11 and 12 of the impugned judgment has referred to different case laws to come to conclusion that Exts. 11 and 17 are admissible as dying declarations. We do not find any justification to take a different view. (9) LEARNED counsel for the appellant submits that Jadu Sa having died on 22-3-1992 after about 22 days of the occurrence and Dolamani Sa having died on 12-3-1992 after about 12 days of the occurrence, Exts. 11 and 17 are not admissible as dying declarations under Section 32(1) of the Evidence Act. The aforesaid point has been settled by Hon'ble Supreme Court in Naajjam Farghi alias Nijjam Faruqui v. State of West Bengal, 1998 (2) SCC 45 and it is held that the death of declarant long after making the dying declaration did not mean that such a statement lost its value merely because the person making the statement lived for a longer time than expected. But to make the statement admissible it has to be shown that the statement made was the cause of death or with respect to the circumstances of the transaction which resulted in his death. But to make the statement admissible it has to be shown that the statement made was the cause of death or with respect to the circumstances of the transaction which resulted in his death. The facts mentioned in the statement are, however, required to be shown connected with the cause of death whether directly or indirectly. It is further submitted by learned counsel for the appellant that as the injuries caused as mentioned in the alleged dying declaration vide Exts. 11 and 17 were indirectly responsible for the cause of death, the statement of the deceased persons vide Exts. 11 and 17 could not have been admitted into evidence under Section 32(1) of the Evidence Act as dying declarations. Hon'ble Supreme Court while rejecting a similar contention in G. S. Walia v. State of Punjab 1998 (5) SCC 150 : ( AIR 1998 SC 2857 ) held thus :- "Therefore, there is no substance in the contention raised by Mr. U. R. Lalit that the injuries were only directly (?) responsible for causing death of Balwant Singh and as his death cannot be said to have been caused due to the injuries caused, the statement made by him would not fall within Section 32 of the Indian Evidence Act. In view of our finding on this point the decisions in Imperatrix v. Rudra, ILR (1900) 25 Bom. 45 : 2 Bom. L. R. 331, Abdul Gani Bandukchi v. Emperor : AIR 1943 Cal 465 : 47 CWN 332 : 45 Cri LJ 71, Mallappa Shivlingapa Chanagi, Re : AIR 1962 Mys. 82: (1962) 1 Cri LJ 619 and Moti Singh v. State of U. P., AIR 1964 SC 900 : (1964) 1 Cri LJ 727 relied upon by Mr. Lalit are of no help to him. In all these cases, the Court had held that there was no evidence or that the evidence led was insufficient to prove that the deceased had died as a result of injuries caused to him. As the statement of Balwant Singh related to the cause of his death it was admissible in evidence under Section 32 and the High Court was in error in holding otherwise". As the statement of Balwant Singh related to the cause of his death it was admissible in evidence under Section 32 and the High Court was in error in holding otherwise". (10) HON'ble Supreme Court on review of different authorities on the subject has laid down the following propositions under Section 32(1) of the Evidence Act in Sudhakar and another v. State of Maharashtra (2000) 19 OCR 483 : ( AIR 2000 SC 2602 ). "(1) Section 32 is an exception of the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes, statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3- 4 months the statement may be admissible under Section 32. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3- 4 months the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross examined by the accused, would be valueless because the place of cross examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distace of time alone in such cases would not make the statement irrelevant." Viewed in the light of the aforesaid propositions, the FIR lodged by deceased Jadu Sa (Ext. 11) immediately after the occurrence and proved as dying declaration during trial squarely falls under proposition 5 supra. Same is the case in respect of statement of Dolamani Sa, vide Ext. 17, recorded under Section 161, Cr. P.C. In view of our discussion supra, it is clear that cause of death of both the deceased persons is the acts of the appellant. In Exts. 11 and 17 deceased Jadu Sa and Dolamani Sa respectively have stated facts or had revealed facts directly connected with their death. Learned trial Court has painstakingly discussed all the points raised before accepting Exts. 11 and 17 as dying declarations of Jadu Sa and Dolamani Sa respectively. In Exts. 11 and 17 deceased Jadu Sa and Dolamani Sa respectively have stated facts or had revealed facts directly connected with their death. Learned trial Court has painstakingly discussed all the points raised before accepting Exts. 11 and 17 as dying declarations of Jadu Sa and Dolamani Sa respectively. We do not find any justification to take a different view in the matter. (11) JADU Sa in Ext. 17 had stated that the appellant with the sword he was holding, gave a blow to the left side of his abdomen; he (JADU Sa) caught hold of the sword and sustained injuries on both his palms; he (JADU Sa) fell down on the ground on his knees and also sustained injuries on his knees; his son Dolamai came to separate them and the appellant also gave a blow with the sword on the left side of his lower abdomen; Dolamani Sa also tried to snatch away the sword and sustained injury in his palm. Same is the statement of Dolamani Sa in Ext. 17. What had been stated by the deceased persons in Exts. 11 and 17 is corroborated by the Medical Officer P.W. 6. JADU Sa has sustained injury Nos. (ii) to (v), which are opined by P.W. 6 to be defence wounds and injury No. (vi) are injuries on both the knees of JADU Sa Injury No. (i), which is the cause of death, is opined to have been caused by the sword (M.O.I). Other injuries except injury No. (vi) on the knees are also opined to have been caused by the same sword (M.O.I.). Dolamani Sa had also received injury on his left palm while he tried to catch hold of the sword and injury No. (ii) on his person is the injury, which is the cause of his death. According to JADU Sa and Dolamani Sa (in Exts. 11 and 17 respectively), the occurrence happened in their house and they are corroborated by the Medical Officer (P.W. 6) so far as manner of assault on them is concerned. Appellant in his statement recorded under Section 313, Cr. PC. has stated that he was asleep in his house in the night of occurrence. The deceased persons being armed with 'Thenga' and 'Badi', etc. Appellant in his statement recorded under Section 313, Cr. PC. has stated that he was asleep in his house in the night of occurrence. The deceased persons being armed with 'Thenga' and 'Badi', etc. came and woke him up; they asked him to come with them; he refused; they tried to take him forcibly; as they were worshipping sword, he thought that they may sacrifice him; freeing himself he ran away. The aforesaid statement of the appellant is indicative of the fact that whatever had happened, happened near his house and there is nothing in his statement to show that either of the deceased was armed with a sword. D.W. 2 is the father of the appellant. He has given completely a different story. From paragraph 2 of his deposition it is found that the occurrence happened in the courtyard of Jabdu (elder brother of the appellant). It is his evidence that deceased JADU Sa raised a sword at him and he caught hold of the sword to save himself. It is further testified by D.W. 2 that his son (Madan) and Dolamani Sa also caught hold of the sword and all the four struggled over it. According to D.W. 2, in course of such struggle JADU Sa and Dolamani Sa (deceased persons) received injuries on their bellies. Same is the evidence of D.W. 1, who has testified about the occurrence of struggling over the sword by D.W. 2, JADU Sa, Dolamani Sa and Madan in the courtyard of Jabdu, who is another son of D.W. 2. If there was struggle over a sword, which JADU Sa was holding, Madan (son of D.W. 2) and D.W. 2 would have also received injuries; but there is nothing on record to show that they had received any injury. D.Ws. 1 and 2 have completely ousted presence of the appellant at the scene of occurrence and they have shifted the place of occurrence to the courtyard of JADU. If JADU Sa was holding a sword, it becomes improbable for him to receive injuries on both his palms, which are opined by the Medical Officers (P.W. 6) to be defence wounds. There is also no evidence to the effect that the sword, which D.Ws. 1 and 2 are testifying to be the cause of injuries, belongs to the deceased persons. There is also no evidence to the effect that the sword, which D.Ws. 1 and 2 are testifying to be the cause of injuries, belongs to the deceased persons. On the other hand the sword, which is the cause of injuries on the deceased persons, has been identified as M.O.I and the same has been seized from a Shrub near a 'Bamur' tree on the bank of the river at the instance of the present appellant. Taking into consideration the totality of events, as proved by the prosecution and sought to be proved by the defence, we are of the view that the defence story appears to be totally improbable and rather the defence story corroborate the prosecution case to the extent that occurrence had happened in which both the deceased persons had received injuries. Learned counsel for the appellant submits that as it was a dark night, it was not possible for the deceased persons to properly identify as to who assaulted them. Such a contention is too spacious to be accepted in view of the defence evidence. D.W. 2, without help of any light, has identified as to who was holding what and who was going where. The appellant and the deceased persons are known well to each other. They are neighbours and the occurrence has happened in close physical contacts. In such view of the situation, there must not have been any difficulty to identify the appellant especially when the attack is preceded by talk of the deceased persons with the appellant and talk in course of the occurrence, etc. In view of the above, we are of the view that the dying declarations vide Exts. 11 and 17, as corroborated as per our discussion supra, can be made the basis of conviction. (12) P.Ws. 1, 2 and 3 though are eye-witnesses to the occurrence, their evidence is merely corroborative in nature in view of the fact that the dying declarations vide Exts. 11 and 17 assume relevance as primary and substantive evidence on the point of complicity of the appellant. There are some discrepancies in the evidence of P.Ws. 1, 2 and 3 as to who reached when at the spot and who saw what. Learned counsel for the appellant has also raised the question of possibility of identification by P.Ws. 1, 2 and 3 in the darkness. There are some discrepancies in the evidence of P.Ws. 1, 2 and 3 as to who reached when at the spot and who saw what. Learned counsel for the appellant has also raised the question of possibility of identification by P.Ws. 1, 2 and 3 in the darkness. Even if their evidence is taken out of record on the point of complicity of the appellant, they cannot be disbelieved on the point that it was P.W. 2, who caught hold of the appellapt after the assault on the deceased persons and appellant's father and other persons took away the appellant and the sword from there(the spot). They also corroborate the dying declarations of Jadu Sa and Dolamani Sa vide Exts. 11 and 17 respectively to the extent that the spot of the occurrence is the house of the deceased persons. The defence has faintly tried to attribute some motive to P.Ws. 2 and 3 to falsely implicate the appellant, but in vain. We are, therefore, of the view that the prosecution has been able to prove the charge against the appellant. Learned counsel for the appellant in the alternative submits that in view of the nature of injuries sustained by the deceased persons namely Jadu Sa and Dolamani Sa, the appellant can only be punished for offence under Section 326 or 324, IPC and not under Section 302, IPC. Learned Addl. Government Advocate on the other hand submits that death of the deceased persons being homicidal in nature, the appellant is liable under Section 302,I.P.C. (13) REGARD being had to our discussions supra and the injuries sustained by both the deceased persons and the medical opinion regarding the cause of death of both the deceased persons, as tendered by Medical Officers P.Ws. 5 and 11, who conducted postmortem over the dead bodies of Jadu Sa and Dolamani Sa respectively, the act of the appellant cannot be brought under any of the clauses of Section 300, IPC. 5 and 11, who conducted postmortem over the dead bodies of Jadu Sa and Dolamani Sa respectively, the act of the appellant cannot be brought under any of the clauses of Section 300, IPC. True it is that P.W. 5 has opined that injuries found on the dead body of the deceased Dolamani Sa is sufficient to cause death in ordinary course of nature; but Dolamani Sa having not died for the injuries sustained but he having died of septicaemic jaundice caused by the injuries he sustained and there being nothing on record to hold that the appellant had intended to inflict that particular injury on the abdomen of Dolamani Sa which was ultimately found to have been inflicted, the act of the appellant cannot be brought under Clause Thirdly of Section 300, IPC. In view of such fact, the appellant cannot be held guilty of offence under Section 302, IPC. (14) WE have already discussed that when the disease, which actually causes death, is the natural and probable result of the injury which the persons inflicting the injury has caused, the person who inflicted the injury must be held responsible for the disease arising from the injury. In order that a person should be guilty of culpable homicide, the injury inflicted must be a proximate cause of death and not a remote cause connected with death by chain of intervening events. The death of a person must be at least a likely consequence of the injury received. In the present case, on discussion of the aforesaid principle, we have held death of Jadu Sa and Dolamani Sa to be homicidal. The appellant has caused injury to the abdomens of both the deceased persons. Jadu Sa has died of peritonitis and Dolamani Sa has died of septicaemic jaundice, which are probable and natural result of the injuries inflicted to them. The appellant has given single blow one after another to both the deceased persons. Dolamani Sa has come to receive the injury when he interevened. Injuries on both the deceased persons are on the abdominal area and cause of death of both the deceased persons is supervening diseases on account of the injuries they sustained. The appellant has given single blow one after another to both the deceased persons. Dolamani Sa has come to receive the injury when he interevened. Injuries on both the deceased persons are on the abdominal area and cause of death of both the deceased persons is supervening diseases on account of the injuries they sustained. In such a case the appellant must be held to have knowledge that he is likely, by his act, to cause death of the deceased persons and he is liable for punishment under Section 304, Part-II, IPC. In the premises as aforesaid, we hold the appellant guilty of offence under Section 304, Part II, IPC and modify the sentence to the extent that the appellant shall suffer rigorous imprisonment for 10 years under Section 304, Part-II, IPC. WE feel inclined to award the maximum punishment prescribed as the appellant has done away with two human lives by his overt acts. The conviction and sentence of the appellant under Section 302, IPC is accordingly set aside. The appeal is accordingly allowed in part. Needless to say, the appellant shall have the benefit of set off under Section 428, Cr. P.C. If the appellant has already served the sentence, he be released forthwith, unless his detention is required in any other case. If he is on bail and he is required to serve the remaining part of the sentence, the bail be cancelled and he be apprehended for serving the remaining part of the sentence. If he has gone on bail after serving the sentence awarded, he be discharged of the bail bond executed in the present case. L. MOHAPATRA, J.:- I agree. Order accordingly.