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2012 DIGILAW 391 (ORI)

Kandara Munda v. State of Orissa

2012-09-04

B.K.MISRA, PRADIP MOHANTY

body2012
JUDGMENT PRADIP MOHANTY, J. : This jail criminal appeal is directed against the judgment and order dated 10.11.2003 passed by the learned Addl.Sessions Judge (F.T.), Keonjhar in S.T. Case No.196/9 of 2001/03 convicting the appellant for commission of offence under Section 302, I.P.C. and sentencing him to undergo imprisonment for life. 2.The prosecution case in brief is that on 6.4.2001 at about 5.00 P.M. a quarrel ensued between the accused-appellant and his daughter-in-law (deceased) in course of which the accused assaulted his daughter-in-law with a ‘lathi’ and threw her outside the house. It is the further case of the prosecution that when the informant-P.W.3 was giving water to the deceased, the accused entered inside the house, came out with a crowbar and assaulted his daughter-in-law on her chest, left ear, waist, back and eyes indiscriminately as a result of which she died on the spot. P.W.3 lodged the F.I.R. before the O.I.C., Pandapada Police Station, who registered the case and proceeded with the investigation during the course of which he arrested the accused, examined the witnesses, sent the dead body for postmortem examination, seized the weapon of offence and wearing apparels and on completion of investigation submitted charge-sheet against the present appellant under Section 302, IPC. 3.The plea of the defence is complete denial of the prosecution case. 4.The prosecution, in order to prove the charge, examined as many as 6 witnesses including the doctor and exhibited 10 documents. Defence examined one. 5.The learned Addl.Sessions Judge on conclusion of trial convicted the appellant for commission of offence punishable under Section 302, IPC and sentenced him to undergo imprisonment for life mainly relying upon the eye witness account of P.W.2, a child witness, who is the grandson of the accused and son of the deceased, and P.Ws.3 and 4, who are the co-villagers. 6.Mr. Sahu, learned counsel for the appellant assails the impugned judgment and order of the learned Addl.Sessions Judge on the grounds that P.W.2, the child witness, is an interested witness being the son of the deceased and, therefore, is not a reliable witness. He further submits that P.Ws. 3 and 4 came to the spot after hearing hullah and they had not seen the actual assault on the deceased. He further submits that P.Ws. 3 and 4 came to the spot after hearing hullah and they had not seen the actual assault on the deceased. His alternative submission is that the act of the appellant may at the most come under the purview of Section 304, Part-II, IPC, but not under Section 302, IPC since the occurrence took place due to sudden provocation. 7.Mr. Sk. Zafuralla, learned Additional Standing Counsel vehemently contends that evidence of P.W.2, who has categorically narrated the role played by the accused, is very clear, cogent and trustworthy. Merely because P.W.2 is a child witness and is the son of the deceased, his evidence cannot be thrown above board. P.Ws.3 and 4, the co-villagers and neighbours of the accused, who immediately rushed to the spot and saw the occurrence, have corroborated the statement of P.W.2 in material particulars. The oral testimony gets support from the medical evidence. There is nothing on record to suggest that the act of the appellant would come under the purview of Section 304, Part-II of the IPC. Therefore, there is no scope for this Court to interfere with the impugned judgment of conviction and sentence passed by the trial Court. 8.Perused the LCR and gone through the evidence of witnesses minutely, P.W.1 is the Ward Member of the village. In his examination in chief he stated that in the evening of 06.04.2000 Bishnu Munda P.W.3 came to his house and informed him about the incident. On the next day morning, he went and saw the dead body of the deceased lying on the ground in front of the house of the accused. He also saw contusion on the back, chest, left ear and other parts of the body. He instructed the informant, P.W.3 to report the matter before police. He stated to be a witness to the inquest and seizure of the crowbar and lathies. He proved the inquest report Ext.2 and his signature Ext.2/1 as well as the seizure list Ext.1 and his signature Ext.1/1. In cross-examination he admitted that he had not gone through the contents of the seizure list and that he had no direct knowledge about the occurrence. P.W.2 is a child witness and is the son of the deceased and grandson of the accused. In cross-examination he admitted that he had not gone through the contents of the seizure list and that he had no direct knowledge about the occurrence. P.W.2 is a child witness and is the son of the deceased and grandson of the accused. He having passed the test made by the learned Addl.Sessions Judge deposed that on the date of occurrence while his mother was cooking, the accused dragged her by holding her hair and assaulted her with a lathi. After the lathi was broken, the accused brought a crowbar and struck on the ear, chest and eye of his mother (deceased), as a result of which his mother succumbed to the injuries at the spot. P.W.2 identified the crowbar and the broken lathis in Court. He further deposed that the accused also threatened to kill P.W.3, who was trying to give water to his mother. In cross-examination he admitted that they first called P.W.4-Netra Munda and then P.W.3 Bishnu Munda to the spot. The accused assaulted his mother despite protest made by P.W.4. He further admitted that he had seen the blood stains in the weapons of the offence. P.W.3, who is a co-villager and neighbour of the accused, corroborated the statement of P.W.2. In his examination-in-chief he specifically stated that they rushed to the spot hearing the shout of sons of the deceased and saw the accused assaulting the deceased with lathi. On his protest, the accused rushed inside the house but again came out with a crowbar and struck on the chest, left ear and waist the deceased for which the deceased died at the spot. He further deposed that the accused also threatened to assault him. Thereafter, he reported the matter before the Ward Member P.W.1 on whose advice he got the F.I.R. scribed by Rahas Palei and presented the same before Pandapada Police Station. P.W.4 is another co-villager and neighbour of the accused. He corroborated the statements of P.Ws.2 and 3. He also admitted the presence of P.Ws.2 and 3 at the spot. His specific evidence is that hearing hullah of the sons of the deceased, he rushed to the spot and saw the accused assaulting the deceased with ‘lathi’. After the ‘lathi’ was broken, the accused assaulted the deceased with a crow bar on her chest, waist and left ear and when he protested the accused threatened to assault him with the crowbar. After the ‘lathi’ was broken, the accused assaulted the deceased with a crow bar on her chest, waist and left ear and when he protested the accused threatened to assault him with the crowbar. In cross-examination he admitted that P.W.3 and he reached at the spot at the same time and that they protested the accused but the accused threatened to kill them. P.W.5 is the Medical Officer, who conducted autopsy over the dead body of the deceased and found the following injuries :- “(i)Abrasion 1/3” x 1/3” over left eye-lead. (ii)Abrasion 2/3” x 1/4” over right foot. (iii)Abrasion 1/4” x 1/4” over medial side of left thigh above knee. (iv)Haematoma of size 3” x 1/2” over left side of fore-head. (v)Bruise 2½” x 1½” situated over left hypochondrium.” He opined that the death of the deceased was due to haemorrhage and shock and all the injuries were ante mortem in nature. All the injuries, as mentioned above, in ordinary course of nature could cause death of a person. He proved the post mortem examination report Ext.3 and the opinion report Ext.4 whereby he has clearly opined that the injuries he found on the person of the deceased could be possible by the weapons of offence M.Os.I to III. P.W.6 is the O.I.C. of Pandapada Police Station, who registered the case, examined the witnesses, seized the weapons of offence, i.e., crow-bar and lathis, sent the dead body for post mortem examination, seized the wearing apparels of the deceased and sent the same as well as the weapons of offence for chemical examination, and on completion of investigation filed charge sheet against the appellant. 9.On scrutinizing the entire evidence this Court finds that P.Ws.2, 3 and 4 are witnesses to the occurrence and in their evidence, which has remained unshaken despite cross-examination, they have specifically implicated the appellant by narrating in detail the manner in which the deceased was done to death by him. No doubt P.W.2 is a child witness. He is the son of the deceased and grandson of the appellant. The trial Court having tested P.W.2, by putting certain questions, formed an opinion that he was able to depose. P.W.2 specifically stated how his grandfather (appellant) committed murder of his mother (deceased) by assaulting her first with a ‘lathi’ then with a crowbar on her chest, waist and left ear. The trial Court having tested P.W.2, by putting certain questions, formed an opinion that he was able to depose. P.W.2 specifically stated how his grandfather (appellant) committed murder of his mother (deceased) by assaulting her first with a ‘lathi’ then with a crowbar on her chest, waist and left ear. Nothing has been elicited in cross-examination to demolish his evidence. It is the settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The apex Court in Alagupandi alias Alagupandian v. State of Tamil Nadu, AIR 2012 SC 2405 has held as follows :- “That a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The Court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule of practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the Court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record.” With the above touchstone, this Court examined the evidence of P.W.2 and comes to a conclusion that P.W.2 is a believable witness and his evidence is reliable and trustworthy. There is no reason to discard his eye witness account. His evidence gets corroboration from the testimony of P.Ws.3 and 4, who categorically deposed that hearing hullah they came to the spot and seeing the occurrence when they protested the appellant threatened to kill them. P.W.2 in his evidence has admitted that the occurrence was witnessed by P.Ws.3 and 4 also. The ocular testimony of P.Ws.2, 3 and 4 is amply corroborated by the medical evidence. P.W.2 in his evidence has admitted that the occurrence was witnessed by P.Ws.3 and 4 also. The ocular testimony of P.Ws.2, 3 and 4 is amply corroborated by the medical evidence. There is nothing on record to show that the deceased in any manner provoked the appellant to commit such crime. The appellant first gave blows by means of a ‘lathi’ and when it was broken he went inside the house and came out with a crowbar and assaulted the deceased on her chest, waist and left ear, as a result of which the deceased died at the spot. Therefore, under no stretch of imagination the case would come under the purview of Section 304, Part-II of the IPC. 10.For all the above reasons, this Court is not inclined to interfere with the impugned judgment of conviction and the order of sentence passed by the trial Court. Accordingly the Jail Criminal Appeal is dismissed and the sentence passed by the trial Court is confirmed. B.K. MISRA, J.I agree. Appeal dismissed.