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2014 DIGILAW 257 (ORI)

Jhituku Jani v. State of Orissa

2014-04-16

PRADIP MOHANTY, SATRUGHANA PUJAHARI

body2014
JUDGMENT S.PUJAHARI, J. : This Jail Criminal Appeal is directed against the judgment and order of conviction and sentence dated 24.04.2004 passed by the learned Ad hoc Additional Sessions Judge, Jeypore in Criminal Trial No.59 of 2002 / S.C. 16/2002 of Addl. S.J./144/01 of Sessions Judge. The learned trial Judge in the impugned judgment, held the appellant guilty of a charge under Section 302 of the Indian Penal Code (for short “I.P.C.”) and sentenced him to undergo imprisonment for life and pay a fine of Rs.5,000/-, in default to undergo R.l. for six months. 2. The prosecution placed before the trial Court a case that the appellant family had animosity with the family of the deceased Dhanapati, inasmuch as four days prior to the date of occurrence, which is 18.12.2000, the father of the appellant was assaulted by the son of the deceased, for which a case was registered against the deceased and his son. On 18.12.2000, deceased had been to Jeypore with his wife and both of them left Jeypore for their village and in the evening time at about 5 p.m. reached in their village and on their way to home in the village road, the wife of the deceased was walking ahead of the deceased followed by him. The appellant then dealt a blow with an axe on the head of the deceased, for which he screamed and fell down. Hearing the screaming of the deceased, his wife turned back and found the appellant to be fleeing away from the spot with an axe. The wife of the deceased then made a shout that the appellant killed her husband. The daughter of the deceased, namely, Sunamani Jani, P.W.7 came there and both of them shifted the deceased to their home. The other family members of the deceased arrived in the house and before them, the wife of the deceased disclosed the incident and they found the deceased to have succumbed to the injuries. The matter had been reported to the police in writing (Ext.I) in B. Singhpur Police Station and police had registered a case and taken up the investigation. On completion of the investigation, police found substance in the report and charge-sheeted the appellant. 3. The matter had been reported to the police in writing (Ext.I) in B. Singhpur Police Station and police had registered a case and taken up the investigation. On completion of the investigation, police found substance in the report and charge-sheeted the appellant. 3. Relying on the aforesaid case of the prosecution placed before the trial Court, which was supported by the materials collected during the time of investigation, the trial Court framed the charge under Section 302 of IPC against the appellant. The appellant having denied the charge; the prosecution examined the witnesses and also exhibited certain documents as well as the Material Objects to bring home the charge. The appellant, who had taken plea of denial and false implication, did not examine anyone in support of his defence. 4. Learned counsel appearing for the appellant assails the judgment and order of conviction and sentence to be erroneous, inasmuch as the circumstances, on which reliance has been placed by the trial Court to record a finding of guilt, have not been firmly established and the chain of circumstances so proved, does not establish the guilt of the appellant, and the circumstances on which reliance has been placed to record such finding of guilt do not form so complete a chain, which is incompatible with the innocence of the appellant. Alternatively, it has also been argued that even if the finding of the trial Court is accepted that the appellant authored the injuries on the person of the deceased, but the injuries inflicted being not sufficient in the ordinary course of nature to cause the death of the deceased, conviction of the appellant for a charge under Section 302 of IPC appears to be fallacious. Therefore, the trial-Court erred in convicting the appellant for a charge under Section 302 of IPC and sentencing him to undergo imprisonment for life. 5. Therefore, the trial-Court erred in convicting the appellant for a charge under Section 302 of IPC and sentencing him to undergo imprisonment for life. 5. Learned counsel appearing for the State, however, drawing notice of this Court to the medical evidence which categorically discloses that the deceased died of injuries which could not have been caused by any accident and a homicidal one, and the other circumstances that the wife of the deceased who was ahead of him (deceased) while they were returning to their house found the deceased to have fallen on the road screaming sustaining injuries and the appellant running away from the spot with an axe, so also the other circumstances that an axe was seized stained with human blood from the house of the appellant by the police which could have been the weapon of offence, as deposed by the doctor, submits that the same leaves no room for doubt that it is the appellant who had inflicted the injuries on the deceased contributing to his death. Since the injuries inflicted could not be proved to be accidentally caused by the appellant or the appellant had not intended the injuries which found to be present on the head of the deceased, and the said injuries were sufficient in ordinary course of nature to cause his death, the conviction of the appellant under Section 302 of IPC cannot be found fault with. Therefore, he submits, this Jail Criminal Appeal challenging the judgment and order of conviction and sentence passed is devoid of merit and liable to be dismissed. 6.During course of argument, learned counsel for the appellant has not disputed the evidence on record, i.e., the evidence of Dr. Hadibandhu Routray, P.W. 11, who conducted autopsy over the dead body of the deceased and found that the injuries which were ante mortem and homicidal in nature on the person of the deceased and the injury sustained by the deceased was not accidental. The doctor in this regard also stands corroborated by the postmortem report, Ext. 12, a contemporaneous document. His evidence that the injury sustained by the deceased was sufficient in ordinary course of nature to cause death is not disputed. The doctor in this regard also stands corroborated by the postmortem report, Ext. 12, a contemporaneous document. His evidence that the injury sustained by the deceased was sufficient in ordinary course of nature to cause death is not disputed. On scrutiny of such evidence, we also do not find anything to suggest that the doctor had not bestowed the required care or caution and the finding is contrary to the features noticed by him on the dead body. In such premises, the evidence of the doctor, P.W. 11 which has been accepted by the trial Court, to record its finding of homicidal death of the deceased also concur by us without any hesitation. 7.Now, coming to the question with regard to the authorship of the death of the deceased. It is not in dispute that in this case, the wife of the deceased, P.W. 5 had not seen the actual assault on the deceased as she was ahead of the deceased. But, she is a witness to the circumstances, i.e., she had seen the appellant fleeing away from the spot with a ‘Tangia’ (M.O.I) and thereafter the deceased was found there with the injuries. Such injury contributed to the death of the deceased, as stated earlier and also seen from the evidence of the doctor, P.W.11. The appellant had animosity with the family of the deceased inasmuch as the son of the deceased prior to the date of incident had assaulted the father of the appellant, for which he was hospitalized and a case was instituted against the son of the deceased by the police at Boriguma Police Station: Relying on the aforesaid circumstances, so also, the M.O. I (axe) seized from the house of the deceased by the Investigating Officer and the opinion evidence of the doctor that the same could cause the injuries sustained by the deceased, the trial Court returned the judgment of conviction. The aforesaid circumstances have been assailed not to have been firmly established and the chain was not complete to record a finding of guilt. of the appellant which has been controverted by the learned counsel for the State. The aforesaid circumstances have been assailed not to have been firmly established and the chain was not complete to record a finding of guilt. of the appellant which has been controverted by the learned counsel for the State. 8.Before addressing the contention of the parties, vis-a-vis the materials available on record, it would be apposite to mention here that date back in the year 1952, the Hon’ble Apex Court in a well illuminated decision in the case of Hanumant Govind Nargundkar and another Vrs. State of Madhya Pradesh, reported in AIR 1952 SC 343 , have laid down the principle with regard to appreciation of the circumstantial evidence for recording a finding of guilt based on circumstantial evidence which is an oft-quoted decision. In the aforesaid decision, their Lordships in the Hon’ble Apex Court have held as follows: “In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind, In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis, but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” The Hon‘ble Apex Court on many occasions reiterated the aforesaid while appreciating the circumstantial evidence. 9.So also, in this case, as it has been contended that the evidence of P.W. 5 which proves one of the most vital circumstances, i.e., deceased fleeing away from the spot with an axe, M.O. I, is assailed to be the version of the interested witness inasmuch as she is the wife of the deceased and, as such, not reliable and basing on the same, it cannot be said that the same has been firmly established. Therefore, the law with regard to appreciation of the evidence of relation witnesses has also required to be looked into. 10.Needless to say that term “Interested” postulates that a person concerned must have some direct interest in seeing that the accused is some how or the other convicted either because he had some animus with the accused or for some other reasons. Close relative who is a natural witness, therefore, is not necessarily an interested witness is well settled in law. The aforesaid proposition of law has been well settled by the Hon’ble Apex Court in a number of decisions, such as - AIR 1977 Supreme Court 472 (Mst. Dalbir Kaur and others Vrs. State of Punjab and (1996) 1 SCC 614 (Kartik Malhar Vrs. State of Bihar). 11.Relationship would not result in the mechanical rejection of the testimony of the witnesses. Settled norms of appreciation of evidence required that the evidence of such witnesses is to be assessed with caution. {See (2007) 2 SCC 31 (Amitsingh Bhikamsing Thakur Vrs. State of Maharashtra)}. Relationship is not a factor to affect credibility of witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. {See AIR 2002 Supreme Court 3633 (Gangadhar Behera and others Vrs. State of Orissa)}. When the natural presence of the relation in the scene of crime is acceptable, his evidence cannot be rejected merely because he happens to be a relation of the deceased, inasmuch as near relatives will be the last persons to leave out the real culprits and implicate those who have not participated in the crime. {See (1993) Suppl. 4 SCC 218 (Ram Asrey Vrs. State of U.P.)}. 12.Keeping in mind the aforesaid, when the evidence in this case is addressed, it is seen that P.W.5, the wife of the deceased, deposed that while she was coming along with her deceased-husband from Jeypore, she was ahead of her deceased- husband and her deceased-husband was following her when they reached near village. State of U.P.)}. 12.Keeping in mind the aforesaid, when the evidence in this case is addressed, it is seen that P.W.5, the wife of the deceased, deposed that while she was coming along with her deceased-husband from Jeypore, she was ahead of her deceased- husband and her deceased-husband was following her when they reached near village. She heard the screaming of her husband and when she looked back, she found that her husband to have fallen on the ground and the appellant fleeing away with an axe, M.O.I. Thereafter, she rushed there and her daughter (P.W.7) came there and they shifted the deceased to her home where he had already succumbed to the injuries sustained. Her such evidence cannot be discarded as an interested version though a close relation, even though the son of the deceased was implicated in a false case by the appellant’s family for assaulting the father of the appellant in close proximity to the date of incident, i.e. four days prior to the date of incident as the same could not have motivated the wife of the deceased to make a false accusation of killing her husband leaving real perpetrator of the crime, in order to see that the appellant to be behind the bar in such a heinous and serious offence. The same is mere so, particularly for the reasons that P.W.5 is a rustic tribal lady belonging to the far-flung backward area of the State mostly inhabited by the tribals. Therefore, she is not an interested witness and on that ground, her version cannot be discarded. But, she being a relation witness, her such evidence is required to be scrutinized with care and caution. From the evidence on record, it appears that the version of P.W.5 that she was coming with her deceased-husband from Jeypore and she was ahead of him, appears to be natural one and no material is there to show that she had not been to Jeypore with her husband and on that day she had not accompanied him while returning to the village. Nothing has been elicited in the cross-examination suggesting the aforesaid. When her presence at the spot in the circumstances is acceptable, her such version also cannot be rightly brushed aside. Nothing has been elicited in the cross-examination suggesting the aforesaid. When her presence at the spot in the circumstances is acceptable, her such version also cannot be rightly brushed aside. The same has also been during the course of argument assailed to be not firmly established’ -as• it was not possible on the part of the P.W.5 to witness the aforesaid incident at the time stated. P.W.5 deposed that the incident had taken place in the evening time in the month of December at about 5 p.m. at a distance of 30 to 40 feet from her. The witness is a rustic Adibasi lady having no knowledge of time and instance and, as such, much importance cannot be given on such evidence. Without knowing the exact time and distance when the appellant belongs to the same village having close acquaintance, her evidence is that hearing the screaming of her deceased-husband when she turned around towards her deceased-husband, she found the appellant going away with an axe, M.O. I cannot be said to be unworthy of credence or unacceptable for the reasons that in that hour of the evening in the month, it was not possible on her part to identify the appellant. Even though evening must have set during that hour even we accept the same, there must have been much light as such it was not difficult to identify from a distance of 30 to 40 feet. The same is more so for the reasons that both the appellant and P.W.5 belong to same village and darkness of the night must not have spread by the aforesaid hour. The same is more fortified from the fact that since her such version gets corroboration from the evidence of P.W.7, before whom she expressed that it is the appellant who had assaulted her husband and also the evidence of her son, P.W.8. So, these circumstances appear to have been firmly established. The other circumstances that there was a motive for commission of the crime, as revealed from the evidence of P.W.5 that her son had assaulted the father of the appellant four days before the incident, for which the appellant must have bore grudge against the family members of the deceased. So, these circumstances appear to have been firmly established. The other circumstances that there was a motive for commission of the crime, as revealed from the evidence of P.W.5 that her son had assaulted the father of the appellant four days before the incident, for which the appellant must have bore grudge against the family members of the deceased. There is also circumstance disclosing that the Investigating Officer during the course of investigation had made search in the house of the appellant and seized the axe, M.O. I. No doubt, the independent witnesses to the seizure have not supported the same. But, for that, the evidence of the Investigating Officer in this regard cannot be discarded when there is nothing on record to suggest that the Investigating Officer had any reason to depose falsely against the appellant with regard to seizure of the weapon of offence, i.e., M.O. I from his house which is corroborated by the seizure list, Ext.3/2. So also, there is no inexorable rule in law of prudence that unless a version of an official witness with regard to seizure is corroborated by independent witness, the same cannot be relied upon. But, the law is that the same is required to be scrutinized with care and caution. Reliance in this regard can be placed on a decision of the Hon’ble Apex Court in the case of Nathu Singh Vrs. State of Madhya Pradesh, reported in 1973 SC 2783, wherein the Hon’ble Apex Court have held that - “The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused”. On scrutiny of the evidence, we find that the Investigating Officer had no axe to grind and his such evidence appears to be truthful, we accept the. same to be an incriminating circumstance against the appellant, more so when the evidence of the doctor, P.W. 11 who had examined the M.O. I sent by the Investigating Officer on seizure and stated that the injuries found on the person of the deceased could have been possible by blunt side of the aforesaid M.O. I. The chemical examination report of M.O. I vide Ext.11 reveals that human blood was found in it. 13.From the aforesaid circumstances, it appears that the contention advanced by the learned counsel for the appellant that the circumstances so established were not firmly established, appears to be without any substance. Therefore, the circumstance, that is firmly established, is that (i) The death of the deceased was homicidal in nature caused by the injury on his head which is in ordinary course of nature could have caused the death; (ii) The deceased was found by P.W.5 to be fleeing away from the spot with an axe, M.O.I where the deceased was lying with the injuries; (iii) The weapon of offence (M.O. I) was seized from the house of the appellant; (iv) The doctor opined on examination of M.O. I vide Ext.9/2, the M.O. I to be the weapon of offence; (v) In the chemical examination report, Ext.11 human blood was found in M.O. (Axe); (vi) The appellant had a motive to commit the crime in which the son of the deceased had assaulted and injured his father four days prior to the incident. The aforesaid circumstances form so complete a chain wherefrom an only inference that could be drawn is that the appellant caused the injury which contributed to the death of the deceased. The aforesaid circumstances as such test of the ratio laid down in the case of Hanumant Govind Nargundkar (supra), to record a finding that the appellant was the author of the death of the deceased. When the trial Court relying on the aforesaid held the appellant to have authored such death of the deceased and as the same suffers from no infirmity inasmuch as the same is based on acceptable evidence, as we found on re-appreciation of the evidence, we see no apparent reason to differ with such finding of the trial Court and, as such, concur the same. 14.Now, coming to the contention that the aforesaid evidence of P.W.5 does not attract the ingredients of charge under Section 302, IPC as the appellant caused the injury contributing to the death using blunt side of the weapon and flee away from the spot and, as such, there was no intention to cause death, which has been controverted by the counsel for the State. Such contention of the counsel for the appellant has also no force, inasmuch as the appellant had intended the injuries on the head which was found in ordinary course of nature to be sufficient to cause death. We are in this regard have also fortified by a well illuminated decision of the Hon’ble Apex Court in the case of Virsa Singh Vrs. State of Punjab; reported in AIR 1958 Supreme Court 465, wherein their Lordships in the Hon’ble Apex Court have held as follows : “The prosecution must prove the following facts before it can bring a case under Sec. 300 “thirdly”, First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature; of the injury must he proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. [Para-12]. Once these four elements are established by the prosecution (and, of course; the burden is on the prosecution throughout), the offence is murder under Sec. 300 “thirdly”. It does not matter that there was no intention to cause death, or that there was no intention even to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. [Para-13]. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. [Para-13]. Thus where no evidence or explanation is given about why the accused thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places, it would be perverse to conclude that he did not intend to inflict the injury that he did. [Para-15]. The question whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. [Para-16]. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that. he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. [Para-17].” 15.Therefore, relying on the aforesaid law laid down, when in this case the appellant could not bring that the injury caused was accidental or he had intended that the same contributed the death and the same does not fall within any of the exceptions of Section 300 of IPC, the finding of the trial Court that the appellant is guilt of charge under Section 302 of IPC also does not require any interference of us. 16.Resultantly, for the foregoing reasons, we find no merit in this appeal and, accordingly, dismiss the same. 16.Resultantly, for the foregoing reasons, we find no merit in this appeal and, accordingly, dismiss the same. The impugned judgment and order of conviction and sentence recorded by the learned Ad hoc Additional Sessions Judge, Jeypore are hereby confirmed. PRADIP MOHANTY, J. I Agree Appeal dismissed.