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2012 DIGILAW 308 (ORI)

Sarat Pradhan v. State of Orissa

2012-07-19

B.K.MISRA, PRADIP MOHANTY

body2012
JUDGMENT PRADIP MOHANTY, J.- This jail criminal appeal is directed against the Judgment & Order Dated 01.05.2003 passed by the Learned Additional Sessions Judge, Angul in Sessions Trial No.320 of 2001/21 of 2001 convicting the Appellant for commission of offence under Session 302, I.P.C. & sentencing him to undergo imprisonment for life. 2. The prosecution case in brief is that on 14.04.2001 at about 1.30 P.M. while preparation was going on for "Meru Puja" at Kamana temple of village Nagjharan, the accused-Appellant assaulted a minor boy, namely, Bijan of village Dahimal. As the deceased protested such action of the accused-Appellant, a quarrel ensued between them. The informant (P.W:2), Bisi Behera, Nari Bhoi Nari Dehury (P.W.6), Darpani Behera (P.W.1) & Kandarp Naik subsided the quarrel. At this, the accused-Appellant went away towards his house in an angry mood. At about 2 PM. he came with a 'tangia' (commonly) used for cutting the date palm tree) & dealt a blow to the neck of the deceased while he was sitting under the shade of a mango tree. As a result, the deceased sustained bleeding injury & breathed his last. Thereafter, the incident was reported to the police on the basis of which a case was registered & investigation commenced. On closure of investigation, the, charge-sheet was filed against the accused-Appellant under Section 302, IPC & the case was committed to the Court of Session for trial. 2. During trial the Appellant took the plea of complete denial. The prosecution, in order to prove the charge, examined as many as 11 witnesses including two investigating officers & the doctor & exhibited to documents. The defence examined none in support of its plea. 3. The Learned Additional Sessions Judge on conclusion of the trial convicted the accused-Appellant for commission of offence under Section 302, IPC & sentenced him to undergo imprisonment for life having placed reliance on the evidence of P.Ws. 1, 2, 3, 5, 6, & 9 as well as other circumstantial evidence available on record. 4. Mr. Rath, Learned Counsel for the Appellant assails the impugned Judgment on the following grounds: (i) There is discrepancy with regard to the weapon of offence. The informant (P.W.2) in the FIR has mentioned that the weapon of offence is 'Katuri' whereas in his examination-in-chief has stated that it is a 'tangia'. Therefore, it cannot be said that he had seen the occurrence. The informant (P.W.2) in the FIR has mentioned that the weapon of offence is 'Katuri' whereas in his examination-in-chief has stated that it is a 'tangia'. Therefore, it cannot be said that he had seen the occurrence. (ii) The weapon of offence has not been produced nor proved before the Court, for which the prosecution case is to be viewed with suspicion. (iii) The doctor, who conducted autopsy, has admitted in cross-examination, that he had not examined the weapon of offence on the date of postmortem, that he had not specifically noted the name of the weapon & that he had not marked any blood stain on the weapon of offence. This admission by the postmortem doctor casts a serious doubt on the case of the prosecution. (iv) There are a lot of discrepancies between the ocular- evidence & the medical evidence, for which the conviction of the Appellant cannot be sustained. 5. Mr. Sk. Zafarullah, Learned Additional Standing Counsel vehemently contends that there is no dispute with regard to the weapon of offence. It is clearly established from evidence of the witnesses that the accused gave a blow by a sharp cutting weapon which resulted in death of the deceased, even though there is minor discrepancy in their evidence with regard to the weapon of offence. P.Ws.3, 5 & 6 have specifically implicated the accused-Appellant as the assailant. P.Ws.1, 3, 4, 5, & 9 have not only proved the motive behind the crime but also the intention of the accused. The evidence of the doctor (PW.8) gets corroboration from the oral evidence. Seizure of the 'Katari' by the I.O., as the weapon of offence, & the opinion of the medical officer, who conducted autopsy, that the injury can be possible by 'Katari', leaves no room for doubt about the weapon of offence. Therefore, there is no scope for this Court to interfere with the impugned Judgment of conviction & sentence. 6. This Court carefully scrutinized the oral & documentary evidence available in the L.C.A. P.W.1 who is a co-villager of the deceased & also of the Appellant, stated in his examination-in-chief that on the date of occurrence there was a quarrel between the Appellant & the deceased which was subsided by him (P.W.11), the informant (P.W.2), Nari Dehury (P.W.B) & others. This Court carefully scrutinized the oral & documentary evidence available in the L.C.A. P.W.1 who is a co-villager of the deceased & also of the Appellant, stated in his examination-in-chief that on the date of occurrence there was a quarrel between the Appellant & the deceased which was subsided by him (P.W.11), the informant (P.W.2), Nari Dehury (P.W.B) & others. Some time thereafter, the Appellant came & dealt a 'tangia' blow on the neck of the deceased, while the latter was sitting under a mango tree, & went away with the said 'tangia'. However, in cross-examination he stated that he had not seen when the Appellant came & assaulted but saw the Appellant running away with the 'tangia'. P. W.2 is the informant, who specifically stated in his examination-in-chief that there was a quarrel between the Appellant & the deceased on the date of occurrence, as the former assaulted to a boy. Then, the Appellant went away & returned with a 'tangia'. When the deceased was sitting under a mango tree, the Appellant dealt a 'tangia' blow, which struck on the neck of\the deceased, as a result of which the deceased died at the spot. The Appellant thereafter went away with the 'tangia'. He proved the FIR (Ext.1) lodged by him & his signature appended thereto marked as Ext.1/1. In cross-examination he admitted that besides him, six other persons were at the spot & they chased the Appellant, but he ran away. Nothing substantial has been brought out by way of cross-examination to discard his evidence. P.W.3, who is another co-villager, stated in his chief-examination that he heard 'hullah' that the Appellant assaulted the deceased. Police held inquest over the dead body of the deceased in his presence & prepared inquest report Ext.2 on which he appended his endorsement marked Ext.2/1. In cross-examination he admitted that he had .not seen the assault & that the contents of Ext.2 were hot read over & explained to him & being asked by I.O. he signed on the same. P.W.4 is the Grama Rakhi & he is also a co-villager of both accused & the deceased. Like P.W.3 he stated to have heard 'hullah' that Appellant assaulted the deceased. He further stated that hearing that hearing such 'hullah' he went to the spot, saw the dead body, accompanied P.W.2 to the police station & put his endorsement on Ext.1 marked Ext. 1/2. Like P.W.3 he stated to have heard 'hullah' that Appellant assaulted the deceased. He further stated that hearing that hearing such 'hullah' he went to the spot, saw the dead body, accompanied P.W.2 to the police station & put his endorsement on Ext.1 marked Ext. 1/2. P.W.5 is another co-villager who has corroborated the evidence of P.W.2 in material particular. In his evidence he has categorically deposed how & in what manner the Appellant committed murder of the deceased after a quarrel between them. He has also stated that, police seized the blood stained earth & sample earth from the spot in his presence under seizure list Ext.3 & Ext.3/1 is his signature. P.W.6 is yet another co-villager & an ocular witness who has supported the testimony of P.Ws.2 & 5. In his examination-in-chief he has narrated that when the incident took place he was sitting along with the deceased under the mango tree. The accused came from the backside of the deceased & assaulted to his neck by means of the 'Katari', as a result of which the deceased died. The accused then went away towards west direction with the 'Katari'. Despite thorough cross-examination nothing has been brought out to discard the evidence of P.Ws.5 & 6. P.W. 7 stated that when he heard from Nari & others that the accused had killed the deceased, he stopped worship of the deity & went to the spot where the deceased was lying dead. In his presence police conducted inquest over the dead body & prepared inquest report Ext.2 on which he put his signature marked Ext. 2/2. P.W.8 is the doctor who conducted autopsy over the dead body of the deceased & found two external injuries. "(i) Incised wound of size 5" x 2 ½" x 5" over right side of neck. Under this injury No.1 there were injuries to great vessels, cervical nerve trunks with few cranial nerves & muscles of right side neck. The spinal cord at level of lower cervical & T-1 vertebra was injured on right side of neck. (ii) Incised wound of size 1 & 1/2" X 1/4" of collar aspect of right thumb". Under this injury No.1 there were injuries to great vessels, cervical nerve trunks with few cranial nerves & muscles of right side neck. The spinal cord at level of lower cervical & T-1 vertebra was injured on right side of neck. (ii) Incised wound of size 1 & 1/2" X 1/4" of collar aspect of right thumb". He opined that the death of the deceased was due to shock & external haemorrhage as a result of incised injury to great vessels, spinal cord, lower cervical nerve trunks & few cranial nerves of right side neck caused by a sharp cutting weapon. The name of the seized weapon was 'Katara' with iron handle. The injures inflicted in the body of deceased can be possible by the said weapon. He proved his report as Ext.4 & his signature as Ext.4/1. In cross-examination, he stated that he had not specifically noted the name of the weapon of offence & had not marked any blood stain on the weapon of offence. P.W.9 stated in his chief examination that he was near the 'Kamana' house of the village. The accused came & asked him to carry the wooden 'tangia' required to perform 'Danda Nach'. When he refused, the accused assaulted him with the wooden 'tangia'. The deceased intervened & saved him by separating them. Nothing has been elicited from him in cross-examination to disbelieve his testimony. P.Ws. 10 & 11 are investigating officers of this case. PW.11 in his examination-in-chief stated that he sent the dead body for post-mortem, examined the witnesses, arrested the accused, seized the weapon of offence & thereafter due to his transfer he handed over the charge of investigation to P.W.10. P.W.10 stated that on receipt of charge of investigation from PW.11 he produced the weapon of offence before PW.8 for examination & opinion, received the postmortem report, sent the exhibits to S.F.S.L., Resulgarh & on completion of investigation submitted charge-sheet. 7. On careful scanning of the entire evidence, this Court finds that the informant P.W.2, P.W.5 & P.W.6 are not only witnesses to the quarrel between the accused & the deceased but also to the sordid incident in which the accused done the deceased to death. Despite thorough cross-examination, the evidence of these ocular witnesses has remained unshaken. They have also no axe to grind against the accused. Despite thorough cross-examination, the evidence of these ocular witnesses has remained unshaken. They have also no axe to grind against the accused. The ocular testimony of P.Ws.2, 5 & 6 gets support from the medical evidence. P.W.8, the doctor, who conducted autopsy found incised wounds on the body of the deceased & specifically opined that the injuries inflicted on the body of the deceased can be possible by the weapon of offence produced before him for examination. There is no material before this Court to discredit the evidence of the eye-witnesses. Non-production of the weapon of offence before the Court & discrepancy appearing in the evidence of the witnesses with regard to the weapon of offence cannot outweigh, the consistent evidence of the ocular witnesses. It is true that P.W.1 in cross-examination has denied to have seen when the accused came & assaulted the deceased, but he has categorically admitted that he saw the accused running away with the weapon of offence. P.W.9 has testified that on the date of occurrence when he was being assaulted by the accused, intervened & saved him. From the evidence of P.Ws. 1, 2, 5, 6 & 9 it is established that prior to the death of the deceased there was a quarrel between the accused & the deceased. For all these reasons, this Court holds that the prosecution has been able to prove beyond all reasonable doubt that the accused-Appellant was the author of the crime. 8. In view of the foregoing discussions, there is hardly any scope for this Court to interfere with the impugned Judgment of conviction & sentence passed by the Trial court. In the result, therefore, the JCRLA is dismissed by upholding the conviction & sentence of the Appellant. Appeal dismissed.