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2011 DIGILAW 316 (ORI)

Rajani Kanta Panda v. State of Orissa

2011-05-20

B.K.NAYAK, PRADIP MOHANTY

body2011
JUDGMENT B. K. NAYAK, J. (1) IN this appeal the appellant assails the judgment and order dated 02-03-2002 passed by the learned Sessions Judge, Ganjam-Gajapati, Berhampur in S.C. No. 253 of 2001 convicting the appellant under Sections 302/498-A of the I.P.C. and sentencing him to undergo imprisonment for life for the offence under Section 302 of the I.P.C. and R.I. for one year for the offence under Section 498-A of the I.P.C. with a further direction that both the sentences would run concurrently. (2) SHORN of unnecessary details, the prosecution case is that the deceased-Sumitra alias Tiki Panda had married the accused-appellant about ten years prior to the date of occurrence, i.e. 01-02-2001. Though at the time of marriage dowry had been given to the accused as per the demand, he was constantly demanding more dowry and for non fulfilment of the demand he had been torturing the deceased physically and mentally. At times he was taking some amount of money from his father-in-law. On 31-01-2001, he had come to the house of his father-in-law (informant) and demanded the Pass Book in which a sum of Rs. 15,000/- had been deposited. But his demand was not complied, for which, he had left the house of the informant by giving threats. On the following day, i.e. 01-02-2001, two persons of the village of the accused intimated the informant that his daughter was killed by the accused. On receipt of such information, the informant lodged F.I.R. (Ext.1) in the Mahila Police Station, Berhampur, on the basis of which a case was registered and investigation taken up during the course of which the I.O. held inquest over the dead body of the deceased, sent the body for post mortem examination, examined witnesses, effected seizure of different articles including some dowry articles and on completion of investigation submitted charge-sheet against the accused. While admitting his marriage with the deceased, the accused took the plea of denial in respect of the entire occurrence. In order to bring home the charges, the prosecution examined nine witnesses. P.W.1, the informant, is the father of the deceased. P.Ws.2 and 6 are respectively the mother and brother of the deceased. P.Ws.3 and 4 are witnesses to seizure of wearing apparels of the deceased. P.W.5 is the doctor, who conducted post mortem examination. In order to bring home the charges, the prosecution examined nine witnesses. P.W.1, the informant, is the father of the deceased. P.Ws.2 and 6 are respectively the mother and brother of the deceased. P.Ws.3 and 4 are witnesses to seizure of wearing apparels of the deceased. P.W.5 is the doctor, who conducted post mortem examination. P.W. 7 is the daughter of the accused and the deceased and is an eye-witness to the occurrence. P.W. 8 is a photographer, who had taken photographs of the dead body of the deceased on police requisition, and P.W. 9 is the I.O. (3) THE accused has led no evidence in his defence. (4) MR. Katkia, the learned counsel for the appellant contends that the conviction of the appellant under Section 302 of the I.P.C. is primarily based upon the evidence of P.W.7, who is a child witness of about five years of age, and that the said child witness had no sufficient power of understanding questions and to give rational answers and there was ample scope of her tutoring by the in laws of the accused and, therefore, her evidence should not be believed. His further submission is that the evidence of P.Ws. 1, 2 and 6 with regard to demand of dowry and torture of the deceased by the appellant is too shaky and lacks credibility as the said witnesses are interested witnesses. Therefore, the conviction under Section 498-A of the I.P.C. is bad and illegal. Mr. Nayak, the learned Additional Government Advocate, on the other hand, contends that the trial Court tested the power of understanding of P. W. 7 and was satisfied that she was capable of giving rational answers after understanding the questions and that the child witness being the daughter of the appellant himself there was no reason on her part to falsely implicate him and that there is nothing on record to show that she was tutored by any body to speak falsehood against the appellant. It is his further contention that there is sufficient credible evidence with regard to dowry demand and torture by the appellant and, therefore, conviction of the appellant under Section 498-A of the I.P.C. is well founded. It is his further contention that there is sufficient credible evidence with regard to dowry demand and torture by the appellant and, therefore, conviction of the appellant under Section 498-A of the I.P.C. is well founded. (5) FOR convicting the appellant, the trial Court has relied upon the evidence of child witness (P.W.7), the medical evidence with regard to death caused by poisoning, apart from some other minor injuries on the person of the deceased and the circumstance to the effect that just one day before the death of the deceased, the appellant given threat to the father and mother of the deceased that they would conduct post mortem of the deceased on the next day. It has also taken into consideration as a corroborative circumstance the occurrence of death inside the house of the accused while he was present and that the accused failed to explain the death of the deceased due to poisoning. FOR convicting the appellant under Section 498- A of the I.P.C. it has relied upon the evidence of P.Ws. 1, 2, 6 and 7. (6) THE deceased having died in the night of 01-02-2001, postmortem was conducted over her dead body by P.W. 5, the Associate Professor of F.M.T. Department, M.K.C.G. Medical College, Berhampur on 02-02-2001. Evidence of P.W. 5 and the postmortem report (Ext. 6) reveals that the lips and nail beds of the deceased were found bluish and cyanosed and pupils of her eyes were found moderately contracted. Mucoid froth was coming out from mouth and nostrils and emitting an aromatic-pungent odour. On dissection P.W. 5 found that the stomach contained about 150 ml. of grayish white oily fluid having kerosene mixed aromatic pungent odour. THE mucosa of stomach was hyperemic and oedemotous with patchy submucosal haemorrhagic areas. That apart, the deceased was found to have sustained abrasion of size 1.5 cm. x 0.5 cm. on the front of right knee and three small abrasions of varying sizes on the front of left knee and another small abrasion of 1.25 cm. x 1 cm. on the upper lip corresponding central incisor teeth. All the above injuries are ante mortem in nature. Death was due to ingestion of an oral poison possibly an organo-phosphorous group of insecticide/pesticide. THE viscera of the deceased was preserved and subsequently sent to the S.F.S.L. for chemical examination. THE chemical examination report (Ext. x 1 cm. on the upper lip corresponding central incisor teeth. All the above injuries are ante mortem in nature. Death was due to ingestion of an oral poison possibly an organo-phosphorous group of insecticide/pesticide. THE viscera of the deceased was preserved and subsequently sent to the S.F.S.L. for chemical examination. THE chemical examination report (Ext. 11) shows that on examination organocloro in- secticidal poison was detected in the viscera. In cross-examination, P.W. 5 stated that his post mortem findings were consistent with organo phosphorous poisoning. He has also ruled out any food poisoning. With regard to abrasions, no question has been put to P.W. 5 by the learned defence lawyer. From the above findings, it is crystal clear that the deceased died due to organocloro insecticidal poisoning. It is nobody's case that the deceased committed suicide by consuming poison. On the contrary, it is the specific allegation of the prosecution that the appellant administered poison to the deceased and caused her death. In proof of such allegation the prosecution examined P.W. 7, the child witness, who was aged about five years at the time of occurrence. P.W. 7 is no other than the daughter of the deceased and the appellant. The learned trial Judge asked some relevant questions to P.W.7 in order to assess whether she was capable of understanding the nature of questions and was able to give rational answers. The trial Court has found that P.W. 7 was capable of understanding the nature of questions put to her and gave rational answers to them. The trial Court, however, found that she could not understand the nature and sanctity of oath and, therefore, no oath was administered to her. During evidence P.W. 7 identified the appellant as her father. She has stated in her evidence that one day at evening time her father sat on the belly of her mother and put some liquor in the mouth of her mother by a steel glass and after taking the liquor her mother started trembling. When P.W. 7 asked the appellant what happened to her mother, the latter replied that her mother was suffering from headache and then he asked her to go out of the room where the deceased was lying. Her evidence further reveals that the deceased died in that condition. She has further stated that her father was frequently assaulting her mother before her death. Her evidence further reveals that the deceased died in that condition. She has further stated that her father was frequently assaulting her mother before her death. In her scanty cross-examination she has stated that she is the second child of her parents and that her other brothers were there in their house and that when her father administered liquor to her mother there was no adult person in the house. She has further stated that the deceased was sitting in one of the rooms of the house, by the time the appellant came. Her father closed the room when she (P.W.7) came out on his direction. Even no suggestion has been given to her as to whether she has been tutored by anybody to speak in the manner she did or that she was not present in the house when the occurrence took place. P.W. 7 appears to be a very truthful witness, who, in spite of her tender age, has clearly and vividly described what happened in the evening of occurrence. Since she was not aware that what was being administered by the appellant to the deceased was poison, she has very truthfully stated that some liquor (liquid substance) was administered by the appellant. She is no other than the daughter of the appellant and there was no reason on her part to falsely implicate the appellant being tutored by some body. In any event, the defence could not even prima facie establish that the child witness gave a tutored version before the Court. (7) IT is well settled that a child of tender age can be allowed to testify if he/she has intellectual capacity to understand the questions and give rational answers thereto. Evidence of child witness is not required to be rejected perse. But, the Court as a rule of prudence considers such evidence on close scrutiny and only on being convinced about the quality and reliability thereof records conviction based thereon. See 2009 (43) OCR (SC) 374 : ( AIR 2009 SC 2144 ), State of Karnataka v. Shantappa Madivalappa Gulapuji and others. On close scrutiny, we are satisfied that P.W. 7 is a truthful witness whose evidence proves that the appellant sat on the belly of the deceased and forcibly administered some liquid substance to her, who after consuming the same started trembling. On close scrutiny, we are satisfied that P.W. 7 is a truthful witness whose evidence proves that the appellant sat on the belly of the deceased and forcibly administered some liquid substance to her, who after consuming the same started trembling. Probably she struggled in protest of forcible administration, for which she has sustained injuries like abrasion on her upper lip and her knees. The conduct of the appellant in driving out P.W. 7 from the room when she asked as to what happened to her mother also goes to show that his intention was never good. On consumption of the liquid substance, which was administered by the appellant, the deceased died and the liquid substance was subsequently found to be organocloro insecticidal poison. (8) THE appellant developed a motive to do away with the deceased, though he married since 9 to 10 years. From the evidence of P.Ws.1,2 and 6, who are the father, mother and brother respectively of the deceased, it reveals that a few years after the marriage the appellant stayed separately from his brothers and parents in a rented house. While staying separately, he faced financial difficulties, for which he some times used to demand and take money from his parents-in- law. It is evident from the testimony of P.W. 2 that for sometime, P.W. 2 used to pay the rent for the rented house of the appellant. While staying in the rented house, he used to assault the deceased frequently, for which the deceased was going back to her parents' house and staying there for months together and the appellant was going to their house and bringing her back. Evidence of P.W. 6 also reveals that for sometime the appellant along with the deceased stayed in the parental house of the deceased and during such stay also the appellant used to assault and ill-treat her. THE most important aspect of the circumstance that ultimately led the appellant to commit the gruesome act of murder has been spoken to by P.Ws. 1, 2 and 6 to the effect that on 31-1-2001 afternoon the appellant came to the house of his in-laws and demanded the pass book which had been opened by his in-laws in the joint names of the appellant and the deceased in which there was a deposit of Rs. 1, 2 and 6 to the effect that on 31-1-2001 afternoon the appellant came to the house of his in-laws and demanded the pass book which had been opened by his in-laws in the joint names of the appellant and the deceased in which there was a deposit of Rs. 15,000/- P.W. 2 refused to give the pass book, whereupon the appellant left by giving threats that they (in-laws) would conduct the post-mortem of their daughter on the next day. On the next day, i.e. on 1-2-2001, the occurrence took place and in the late night two persons of the appellant's village came and informed the informant that the deceased died in the house of the appellant. On the following morning, P.W. 1 went to the Mahila Police Station and lodged the report (Ext. 1). Immediately after the report was lodged, the police came to the rented house of the accused, held inquest over the dead body and prepared inquest report (Ext. 2) in presence of P.W. 1 Except some minor discrepancies with regard to the exact duration during which the appellant and the deceased were staying in the rented house, nothing substantial has been brought out during cross-examination to discard or disbelieve the evidence of P.Ws. 1, 2 and 6 with regard to the fact that the appellant used to frequently assault, torture and ill-treat the deceased and that the day before the occurrence he had threatened his in-laws indirectly to cause the death of the deceased when his demand for the joint pass book was refused by P.Ws. 1 and 2. The availability of the appellant in the rented house where the deceased died in the night of the occurrence is not disputed by the appellant. It is also not the defence of the appellant that the deceased committed suicide by taking poison. Had it been so, the appellant would have made effort to give medical treatment to the deceased. Having himself administered poison to the deceased, the appellant left her to die. (9) APART from the evidence of P.Ws. 1, 2 and 6, the evidence of child witness (P.W. 7) also shows that the appellant used to frequently assault the deceased. (10) THE learned counsel for the appellant had relied upon some decisions pertaining to the rules governing assessment of evidence of child witness. THEre is no quarrel over the proposition laid down in those decisions. 1, 2 and 6, the evidence of child witness (P.W. 7) also shows that the appellant used to frequently assault the deceased. (10) THE learned counsel for the appellant had relied upon some decisions pertaining to the rules governing assessment of evidence of child witness. THEre is no quarrel over the proposition laid down in those decisions. Keeping in mind, the value of evidence of a child witness and the rules governing evaluation thereof it has already been seen that P.W. 7 is a very truthful and reliable witness and her evidence is of an unimpeachable character, which coupled with other proved circumstances unerringly points to his guilt. In the light of the discussions made above, we find no infirmity in the impugned order of conviction and sentence. The JCRA is, therefore, dismissed. PRADIP MOHANTY, J.:-16. I agree. Appeal dismissed.