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2014 DIGILAW 239 (ORI)

PAGALA v. STATE OF ORISSA

2014-04-09

BISWAJIT MOHANTY, PRADIP MOHANTY

body2014
JUDGMENT : P. Mohanty, J. - This Jail Criminal Appeal is directed against the judgment dated 09.01.2004 passed by the learned Second Addl. Sessions Judge, Cuttack in S.T. Case No. 803 of 2001 convicting the appellant under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life. The prosecution case in brief is that on 8.5.2001 morning, while the deceased, Ramesh Behera and his wife-Basanti Behera (P.W. 1-informant) were going to the house of one Kamana Nayak of village Nuabhuin to purchase mangoes, at that point of time the deceased was walking ahead of his wife about 25 to 30 feet distance. All on a sudden, the appellant fired at the deceased using a gun by remaining at the thrashing floor situated on the opposite side of the road. As a result, the deceased fell down on the ground in front of the house of Kanana Nayak. Seeing this, the wife of the deceased rushed to her husband. Wife of Kanana Nayak, two daughters-in-laws and the neighbourer, namely, Sarar Kuanar and his wife also arrived there. Water was sprinkled on the face of the deceased and he was given some water to drink. Thereafter, the deceased succumbed to the gun shot injuries. P.W. 1, thereafter, went to the concerned Police Station and lodged a report there and put his L.T.I. Accordingly, P.W. 7 registered a case, investigated the matter, arrested the accused who gave recovery of the weapon of offence. Ultimately, the police sent the seized materials to the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for their chemical examination and submitted charge sheet under Section 302 of I.P.C. against the present appellant. 2. The defence plea is complete denial of the allegation. In order to prove its case, the prosecution examined as many as seven witnesses including the doctor and exhibited eleven documents including postmortem examination report and chemical examination report. P.W. 1 is the wife of the deceased and is the informant in this case. P.W. 2 is the wife of the younger brother of the appellant, who turned hostile later on P.W. 3 is an independent witness of the locality, who has been examined as a witness to the seizure of the gun. P.Ws. 4 and 5 are the post-occurrence witnesses. P.W. 6 is the doctor. P.W. 7 is the investigating officer. The defence has examined none. 3. P.Ws. 4 and 5 are the post-occurrence witnesses. P.W. 6 is the doctor. P.W. 7 is the investigating officer. The defence has examined none. 3. The trial Court, which tried the case convicted the present appellant basing upon the evidence of P.Ws. 1, 4 and 5 indicating the present appellant as the author of crime and sentenced him to undergo imprisonment for life. Being aggrieved with the said judgment, the appellant has preferred the present appeal. 4. Mr. G.S. Pani, learned counsel for the appellant assails the judgment on the following grounds: 1. Though the occurrence took place in the morning in presence of the witnesses, prosecution has not examined any independent witnesses, who were present at the spot. 2. There are lots of contradictions in the evidence of P.W. 1 and the medical evidence does not support the ocular evidence. Accordingly, submits that conviction cannot be sustained basing upon the ocular evidence. 5. On the other hand, Mr. Pradhan, vehemently, contends that P.W. 1, who is the wife of the deceased, is a natural witness to the crime in question. She had seen the occurrence and she specifically involved the appellant as the author of crime. He further stated that as per the evidence of P.W. 3, the appellant led the police to the place of concealment and thereafter the gun was recovered from inside a bunch of creepers under Kanchakhai hill and the same was seized in presence of his and one Subudhi Pradhan and Sankar Jani. The doctor, P.W. 6 also corroborates the oral evidence of P.Ws. 3 and 4 and he specifically stated that the injuries found on the dead body of the deceased was caused due to gun shot. 6. Perused the L.C.R. Gone through the evidence of the prosecution witnesses minutely. At the outset, it may be noted that none has disputed that the death of the deceased was a homicidal one. P.W. 1 is the widow of the deceased. In her examination-in-chief, she stated that she along with her deceased-husband had gone to nearby village to purchase mangoes from Kamana Nayak. The wife of Kamana Nayak told them that when her children would come they would sell the mangoes and when they were returning from the house of Kanana Nayak, the present appellant fired gun in front of his house and the bullet hit the chest of her husband. The wife of Kamana Nayak told them that when her children would come they would sell the mangoes and when they were returning from the house of Kanana Nayak, the present appellant fired gun in front of his house and the bullet hit the chest of her husband. As a result, her husband fell down on the ground sustaining bleeding injury on his chest. Hearing her cry, the daughters-in-law of Kamana Naik, his wife and one Baikuntha of Ranabandha came there. She (P.W. 1) gave water to her husband, soon after which he expired. She further stated in her examination-in-chief that on the very date of occurrence, she lodged a written report before the police being scribed by a person, who was sitting nearby the court. Then, she put her L.T.I. in the said F.I.R. In the cross-examination, she admitted that her husband died in front of the house of Kamana Naik. In many occasions, they used to bring mangoes from the house of Kamana Naik prior to the incident. Whenever the goods were available with Kamana Naik, they purchased the same or they returned back. She had seen the appellant in many occasions in the house of Kamana Naik but she never talked with him. They did not have any altercation with the wife of Kamana Naik on the date of incident. In the right side of the house of Kamana Naik, he had a thrashing floor. The said thrashing floor was very close to his house, which was about four cubits from it. In her cross-examination, she further stated that when she along with her husband was returning from the house of Kamana Naik, her husband was coming behind her maintaining a distance of give to six cubits. At that time the accused fired once from his gun. Thereafter, she came to Narsinghpur Police Station to lodge the report. She orally reported the incident at the Police Station, but later on it was scribed by another. After lodging the report, she came with the police to the house of Kamana Naik. By that time, the dead body of her husband had already been shifted to a distance of 20 to 25 cubits from the house of Kamana Naik. P.W. 2 is the wife of younger brother of the appellant, who later turned hostile. P.W. 3 is an independent witness of the locality. By that time, the dead body of her husband had already been shifted to a distance of 20 to 25 cubits from the house of Kamana Naik. P.W. 2 is the wife of younger brother of the appellant, who later turned hostile. P.W. 3 is an independent witness of the locality. In the examination-in-chief, he stated that about one year and two months back police brought the appellant to their village and the appellant told police in his presence that he had concealed a gun under Kanchakhai Pahad and accordingly led the police to Kanchakhai Pahad and brought out a gun from the bushes. Police seized the same in his presence and prepared seizure list vide Ext. 1. In the cross-examination, he admitted that in presence of Subudhi Pradhan, Sankar Jani and others, the accused-appellant told the police that he had thrown his gun. Police prepared seizure list after recovery of the gun. He further stated that the accused did not tell anything to police when the gun was recovered from inside the bush. The length of the gun is about four feet. He further stated that the villagers frequently visited Kanchakhai Pahad to collect the fire wood and other forest produce. Nothing adverse has been elicited in the cross-examination from this witness. P.W. 4 is another independent witness of the locality and a labourer. In the examination-in-chief, he stated that while he was constructing a house along with another at village Nuabhuin under Indira Awash Scheme, which was in front of the house of the appellant, at that time, P.W. 1 along with her husband passed on the road by the side of their working place and went to the house of the appellant. About half an hour after P.W. 1 ran to them crying and told that her husband was no more. Hearing this, he went to the house of the appellant and saw that the deceased-Ramesh Behera was lying dead in front of the house of the appellant with injury on his right side chest. P.W. 1 told him that her husband died as the appellant fired gun shot at him. But he did not see the appellant or any gun there. Thereafter, he returned back to his place of work. P.W. 1 told him that her husband died as the appellant fired gun shot at him. But he did not see the appellant or any gun there. Thereafter, he returned back to his place of work. In the cross-examination, he stated that six to seven members of the family of the appellant and two to three persons of his neighbouring house were there near the deceased. He had seen one injury on the chest of the deceased. P.W. 5 is also an independent witness of the locality. In the examination-in-chief, he stated that the house of the appellant was at a distance from village Nuabhuin. About one year and two months back at about 8 to 9 A.M., P.W. 1 ran to his village and told him that the appellant had fired at her husband from a gun and as a result of which her husband died. Out of fear, he could not venture to go to the house of the appellant immediately. After half an hour, he along with other villagers went near the house of the appellant and found the deceased lying dead in his Agana. He saw a hole on the right side chest of the deceased. The mother of the appellant told him that her son had killed the deceased. On the same date, police went to their village and seized blood-stained earth from near the dead body of the deceased and prepared seizure list Ext. 2 and Ext. 2/1 was his signature. In the cross-examination, he stated that in his presence, no arrangement was made to shift the dead body of the deceased to the hospital. Police arrived in the village at about noon on the date of occurrence. He further stated that after witnessing the dead body of the deceased, he came to his house and after police went, he again came to the house of the appellant and at that time he found the dead body of the deceased lying at the same place where he had seen previously. P.W. 6 is a medical officer, who in his examination-in-chief, stated that on the date of incident, on police requisition, he conducted postmortem examination over the dead body of the deceased and found the following injuries: "There are fifteen number of pellate injuries on the front of chest wall. Nine injuries were on left chest wall, six were on the right chest wall. Nine injuries were on left chest wall, six were on the right chest wall. The epidermis of the chest wall was peeled out. The opening of the wound were closed present within an oval area of 1" x 1?" size. Out of the nine wounds of the left chest wall five were the wound of entry and four were the wound of exit. One wound on the left chest wall was on forth inter costal space at the mid clavicular line and there was no wound of exit. The pellate had pierced the fourth inter costal space and entered into the right ventricle. The pellate was recovered from the right ventricle. Six number of wounds were present on the right chest wall. The wounds were wide apart within an oval space of 2?" x 3?". Out of those four were wound of entry and two were wound of exit. One wound on the parasternal line had no wound of exit. This pellate pierced the chest wall and entered the right wings through and through. The pellate was recovered from the right pleura cavity. One wound on the third space at the anterior axillary line had no wound of exit. This pellate was recovered from the anterior axillary fold. The three pellates found inside the dead body thus were recovered and handed over the accompanying constable." In his examination-in-chief, he stated that the cause of death was due to injuries to the vital organs like heart and lungs caused by firing from a fire arm discharging multiple pellets. The death must have been instantaneous within few minutes. The time since death was between 24 to 36 hours from the time of post mortem at 10 A.M. on 9.5.2001. Ext. 3 is his report and Ext. 3/1 is his signature. In the cross-examination, he stated that all the fifteen injuries on the left and right side chest wall were visible outside. He did not find any foreign material in any one of the injuries. He did not find any foreign particles on any of the pellete recovered. P.W. 7 is the O.I.C. of Narsinghpur Police Station. In his examination-in-chief, he stated that on the date of occurrence, the wife of the deceased as complainant presented a written report to him regarding murder of her husband due to gun shut injury by the appellant. He did not find any foreign particles on any of the pellete recovered. P.W. 7 is the O.I.C. of Narsinghpur Police Station. In his examination-in-chief, he stated that on the date of occurrence, the wife of the deceased as complainant presented a written report to him regarding murder of her husband due to gun shut injury by the appellant. Thereafter, he registered P.S. Case No. 35 of 2001 and took up investigation. The F.I.R. was marked as Ext. 4 Ext. 4/1 is his endorsement with signature. Ext. 4/2 is the formal F.I.R. which he drew. During investigation, he visited the spot, examined the complainant and witnesses and held inquest over the dead body of the deceased and prepared inquest report. In the examination-in-chief, he further stated that on 8.5.2001, he seized some blood stained earth and sample earth and prepared seizure list. The seizure list was made from the spot and marked as Ext. 2. Ext. 2/2 is his signature. On 10.5.2001 at 5.10 P.M., he seized one hand made country pistol from the side of Kanchakhai hill being led by the appellant to that place in pursuance of the statement made before him relating to concealment of the said pistol there. The appellant led him and the witnesses to the hillock and gave recovery of the said pistol. He seized the same and prepared the seizure list in presence of the witnesses. He recorded the statement of the appellant first and thereafter the appellant led to the place of concealment and gave recovery of the weapon of offence. He had recorded the statement on his own handwriting and on the reverse side of the said statement, he prepared the seizure list vide Ext. ?. Ext. ? was the signature of the appellant. He seized three pelletes and blood stained wearing apparels of the deceased and command certificate on being produced by the constable after postmortem examination. Ext. 7 is the seizure list and Ext. 7/1 is his signature. The wearing apparels of the deceased, pallets and the seized country made pistol were sent to the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for chemical examination. He obtained the sanction order of the District Magistrate, Cuttack for prosecution against the appellant after placing all the relevant papers as per his investigation. He also prepared spot map in course of investigation. On completion of investigation, he submitted charge sheet. He obtained the sanction order of the District Magistrate, Cuttack for prosecution against the appellant after placing all the relevant papers as per his investigation. He also prepared spot map in course of investigation. On completion of investigation, he submitted charge sheet. He also examined P.W. 2, who stated before him that on 8.5.2001 morning, P.W. 1 along with her husband had come to her house to purchase mango and that her mother-in-law told P.W. 1 that her sons had gone outside and she asked her to wait till their return and that the husband of P.W. 1 was standing in her courtyard. P.W. 2 stated before him that the appellant fired from a gun to the deceased, as a result of which, he fell down and that she had witnessed the incident. When she went near the deceased, the appellant fled to the jungle carrying the gun. In the cross-examination, he admitted that he had examined P.W. 4 and that he had not stated before him that on the date of incident, P.W. 1 and her husband passed on the road by the side of their place of work. He held inquest over the dead body of the deceased. He mentioned in his inquest report to have marked one visible injury on the forehead of the deceased. He had not sealed by covering the wearing apparels, which were seized by him on production by the constable. 7. Considering the submissions of learned counsel for the parties and on a careful analysis of the entire evidence of the witnesses, it reveals that the defence has not challenged in any manner that the death of the deceased was due to gun shot. It is a fact that the deceased had sustained some pellet injuries on the date of incident, resulting his instantaneous death. The same has been deposed by P.W. 6, which is not disputed. There is no challenge to the evidence of P.W. 6. regarding the cause of death of the deceased. P.W. 1 had earlier seen the appellant many a times and they had business relationship with the father of the appellant. That apart there arises no justification or reason for this P.W. 1 is an illiterate, rustic village women of 55 years old. P.W. 1 is also a natural witness who immediately disclosed the name of the appellant after the occurrence. That apart there arises no justification or reason for this P.W. 1 is an illiterate, rustic village women of 55 years old. P.W. 1 is also a natural witness who immediately disclosed the name of the appellant after the occurrence. Hence, the evidence of P.W. 1 is trustworthy. There is also no material to discard the evidence of P.W. 1 and nothing has been elicited in her cross-examination to demolish her version. P.W. 3 is an independent witness of the locality and also proved leading to discovery. There is no material that P.W. 3 had inimical relationship with the appellant. P.W. 3 has deposed in his evidence that the appellant led the police as well as him and one Subudhi Pradhan and Sankar Jani to Kanchakhai Pahada and brought out the gun from a bunch of creepers, which was ultimately seized by the police. This evidence of P.W. 3 is acceptable. The evidence of P.Ws. 4 and 5 that soon after the incident, they rushed to P.W. 1, who told them about the occurrence and also disclosed the name of the assailant with a gun also cannot be disbelieved. The Doctor, P.W. 6 also found the gun shot injury on the dead body of the deceased and recovered the pelletes from the body of the deceased and same was sent to the chemical examination along with gun. Furthermore, the report of the Director, State Forensic Science Laboratory, Rasulgarh, Bhubaneswar under Ext. 11 establishes that the gun recovered was in a full working condition and all its parts were in order and it was a country made S.B.M.L. single barrel gun. The said report further goes to show that the pellets P-1 to P-3 recovered from the dead body of the deceased have been used as projectiles in M.L. gun like the one sent for examination and the death of a human being can be caused by such pellets within the effective range of the fire arm used for firing when such pellets hit the vital organs. In such background, contention of Shri Pani relating to non-examination of other independent eye-witnesses has no legs to stand. It may be noted that evidence is to be weighed and not to be counted. It is legally settled that evidence of relatives cannot be rejected on the ground of interestedness, when the evidence is trustworthy, inspires confidence and is well corroborated. It may be noted that evidence is to be weighed and not to be counted. It is legally settled that evidence of relatives cannot be rejected on the ground of interestedness, when the evidence is trustworthy, inspires confidence and is well corroborated. Further, P.W. 1 being a rustic village woman, much cannot be read into the minor contradictions in her deposition. Further, an analysis of evidence shows, evidence of P.W. 6 fully corroborates the evidence of P.W. 1 in material particulars. For the above reasons, this Court arrives at a conclusion that the present appellant was the author of crime. Therefore, there is no illegality and infirmity in the judgment dated 09.01.2004 passed by the learned Second Addl. Sessions Judge, Cuttack in S.T. Case No. 803 of 2001 to be interfered with by this Court. Accordingly, this Court confirms the judgment of the trial court as well as the conviction and sentence passed by it. Accordingly, the JCRLA stands dismissed.