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2014 DIGILAW 676 (ORI)

Hari Das v. State of Orissa

2014-10-17

D.DASH

body2014
JUDGMENT The appellant from inside the jail has preferred this appeal challenging the judgment of conviction and order of sentence passed by the learned Adhoc Additional Sessions Judge, Fast Track, Berhampur (FTC) in Sessions Case NO. 107/2004 (S.C. No. 545/2004 GDC). By the said judgment the appellant has been convicted for commission of offence under Section 304, Part-I of I.P.C. and has been ordered to undergo rigorous imprisonment for a period of ten years with payment of fine of Rs. 2,000/- in default to undergo rigorous imprisonment for a period of six months. 2.Prosecution case is that on 05.06.2004 afternoon the appellant and one Deva Das who are co-villagers were quarreling with each other and then Laba @ Nava @ Nabha Das (deceased) was playing with the boys in front of his house on the village road of Bongaon. Seeing the appellant and Deva Das quarrelling, the deceased requested the appellant to refrain from continuing with the quarrel with Deva Das, who was fairly an old man. It is next alleged that the appellant then got annoyed and threatened deceased to assault and thereafter having rushed towards him, held his neck from backside pushed him with force resulting his fall on the concrete village road facing upward. It is further alleged that the appellant thereafter holding the hairs of the deceased repeatedly dashed his head against the road. So, deceased sustained bleeding injury on his head and went unconscious. Seeing this Hema Das, the wife of deceased and her daughter Narmada came to the place and shifted him to their house and around 11 P.M., he succumbed to the injuries. On the morning, Hema informed the matter to the village Sarpanch as well as other villagers. A meeting was convened and the appellant is stated to have confessed his guilt having also agreed to provide a new house to Hema and to bear the entire funeral expenses of the deceased. Then the police jeep arrived in the village and at their sight, the appellant fled away. It is stated that on 06.06.1984 around 8 A.M., the Junior Sub-Inspector of Police of Berhampur, Sadar Police Station had received the information about the death of Nabha and had made necessary entry in the station diary book of the police station and, therefore, had gone to the village Borigaon. It is stated that on 06.06.1984 around 8 A.M., the Junior Sub-Inspector of Police of Berhampur, Sadar Police Station had received the information about the death of Nabha and had made necessary entry in the station diary book of the police station and, therefore, had gone to the village Borigaon. Hema Das, the widow of the deceased, orally reported the matter and that was reduced into writing. The investigation was immediately taken up at the spot while sending the F.I.R. to the police station for registration of a regular case. During investigation P.W. 10 visited the spot and finding the dead body of Nabha lying in his house held inquest over the same and prepared inquest report vide Ext. 2 in presence of witnesses. The dead body of the deceased was then sent to M.K.C.G. Medical College and Hospital, Berhampur for post mortem examination. Seizure of incriminating materials were also made at the spot and necessary seizure list were prepared to that effect. Finally, the appellant was arrested on 28.06.2004 and was forwarded to the Court on the next date. Sometime thereafter the investigation was made over to the C.I. of Police (Sadar), P.W.11 who on receiving the post mortem report as well as other reports, finally submitted charge-sheet placing the appellant to be tried in the Court of law for offence under Section 302, I.P.C. Learned S.D.J.M., Berhampur having taken cognizance of the said offence committed the case of the Court of Session for trial and that is how the appellant faced the same. 3.The case of the defence is that of complete denial and false implication. Prosecution in the trial has examined 12 witnesses besides proving the documents importantly the F.I.R.- Ext.1., seizure list, inquest report and post mortem report, chemical examination report and other documents. P.Ws. 1,3,4,5 and 6 are the co-villagers of the deceased as well as the appellant. P.W.8 is the widow of the deceased, who is also the informant of the case. The daughter of the deceased has been examined as P.W.9, a child witness; P.W.7 is a police constable whose service was taken in course of investigation in carrying the dead body to the morgue. The first investigating officer is P.W. 10 whereas the doctor conducting the post mortem report has been examined as P.W.12. The daughter of the deceased has been examined as P.W.9, a child witness; P.W.7 is a police constable whose service was taken in course of investigation in carrying the dead body to the morgue. The first investigating officer is P.W. 10 whereas the doctor conducting the post mortem report has been examined as P.W.12. 4.The trial Court in view of the evidence on record has arrived at a conclusion that Nabha met a homicidal death. Next, coming to the complicity of the appellant the trial Court has placed reliance on the evidence of P.W.9, who has given a detail account of the incident right from the beginning till end having found her to be a natural witness have held her testimony to be trustworthy. Along with it having taken into consideration the evidence of P.W.2 before whom the appellant had made the extra judicial confession the trial Court has finally found the appellant to be the author of the injuries upon the deceased which led to his death. Further, viewing the crime scenario as well as the happening of the incident at its inception, it has recorded the conviction for commission of offence under Section 304, Part-I of I.P.C. and has imposed the sentence as stated above. 5.Learned counsel appearing for the appellant as the amicus curie submits that the solitary testimony of P.W. 9 ought not to have been accepted by the trial Court as she being a child witness when the materials on record do not overrule the possibility of her being tutored, more particularly in view of her relationship with the deceased, who is none other than her father and when for a child of that age with relationship generally remains the tendency to exaggerate the version. So, according to her, the evidence of P.W.9 without any corroboration on material particulars coming from independent sources ought not to have been taken as the basis of the finding of authorship of the injuries upon the deceased. She further submits that when most of the co-villagers examined during trial have not supported the case of the prosecution and have turned hostile, the Court below ought not to have believed the evidence of P.W. 2 as regards the extra judicial confession said to have been made by the deceased in the village meeting convened on the next morning of the incident. It is also her submission that when the widow of the deceased has not supported the prosecution case and there remains absolutely no justification as to why she would not come forward to state the incident truly the evidence of P.W.9 ought to have been viewed with suspicion. Next, it is submitted that the trial Court has erred in law by recording the conviction for offence under Section 304, Part-I of I.P.C. as in the facts and circumstances of the case and the factors emanating from the evidence, even with the finding that it is the appellant, who is the author of the injury upon the deceased leading to his death, the conviction ought to have been recorded under Section 304, Part-II of I.P.C. and accordingly the appellant ought to have been sentenced. So, it is her alternative submission that in the event, this Court confirms the finding that it is the appellant, who is responsible for the death of the deceased in view of the injuries caused by him, the judgment of conviction is liable to be modified to one under Section 304, Part-II of I.P.C. and the sentence needs appropriate reduction. 6.Learned Counsel for the State submits that here though P.W.9 is the child witness and is the daughter of the deceased, she has been found by the trial Court to stand as a competent witnesses and the Court has assessed her age to be 14 years when she has given rational answers to the questions put by the Court; she has also been administered oath having found to have understood its implication. Placing the evidence of P.W.9, he contends that there surfaces no material to even suggest that she was at any point of time being tutored and that according to him that submission falls flat on the ground as the best person to tutor her being the mother P.W.8 when has not stated what P.W.9 has stated. According to him, the evidence of P.W. 9 is quite natural and the manner in which she has narrated the incident together with the role of the appellant inspires confidence. So when it is not the law that simply because a witness is a child witness and is interested for deceased, his/her evidence is to be doubted, the trial Court did commit no mistake in accepting her evidence to find out the complicity of the appellant. So when it is not the law that simply because a witness is a child witness and is interested for deceased, his/her evidence is to be doubted, the trial Court did commit no mistake in accepting her evidence to find out the complicity of the appellant. It is also his submission that here the co-villagers having stated as regards the extra judicial confession made by the appellant, that again provide corroboration ot the evidence of P.W.9. Therefore, he contends that in this case what the evidence on record stand there remains no escape from the conclusion that the appellant is the author of the injury caused to the deceased leading to his death which has also been established through the evidence of the doctor. However, with regard to the conviction recorded for offence under 304, Part-I of I.P.C. while conceding that the reason given by the trial Court that it falls within the exception 1 under Section 300, I.P.C., as a faulty one, he contends that in the facts and circumstances of the case although not for that reason but otherwise, it is a case for conviction under Section 304, Part-1 of I.P.C. In that view of the matter, he urges that the sentence imposed is quite proportionate. 7.Keeping the aforesaid rival submission in mind, this Court is now called upon to judge the defensibility of the finding rendered by the trial Court in ultimately convicting the appellant for the offence under Section 304, Part-I of I.P.C. and sentencing him accordingly. It is the evidence of P.W.12, the doctor through whom the post mortem report has been marked as Ext. 10 that he had found one contusion of size 3.5 cm x 3 cm over the occipital region corresponding to the occipital protugerance over which an abrasion of size 1.5 cm x 1 cm was detected and the adjoining area was blood stained, with three small abraded contusions being noticed on the tip of right elbow. On dissection, he has noted the defused subdural haemorrhage over the left hemisphere and also defused subarachnoid haemorrhage in both the hemispheres with the tip of both frontal lobes and tip of left frontal lobes found contused. All these injuries have been found to be ante mortem in nature and consistent with traumatic death resulting from falling on the ground being pushed from the anterior aspect with force. All these injuries have been found to be ante mortem in nature and consistent with traumatic death resulting from falling on the ground being pushed from the anterior aspect with force. The death, according to him, is due to compression and concussion on account of trauma. The evidence of this medical expert does not appear to have been challenged and when he has been suggested that the injury can so happen if a man falls on the ground in an unconscious stage, he has gone to stoutly deny the same. This, the evidence of P.W. 12 clearly establishes that the deceased Nabha met a homicidal death and the finding of the trial Court on that score is unassailable. 8.At this juncture, in view of submission of learned counsel for the appellant, it is worthwhile to refer to the decision of Apex Court in case of State of U.P. vrs. Krishna Master & other; AIR 2010 SC 3071 . It has been held that there is no principle of law that is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. In case of Gagan Kanojia & Anr. V. State of Punjab, (2006) 13 SCC 516 the legal position has also been settled as under:- Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In case of Gagan Kanojia & Anr. V. State of Punjab, (2006) 13 SCC 516 the legal position has also been settled as under:- Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. Next in case of State of M.P. vrs. Ramesh & another, (2011) 5 SCR-1, the Apex Court taking note of series of earlier decisions have finally held that the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the Court land there is no embellishment or improvement therein, the Court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an interference as to whether child has been tutored or not, can be drawn from the contents of his deposition. 9.Now coming to the authorship of the injury upon the deceased resulting his death, let us straight way go to the evidence of P.W.9. She has stated that at the time of the incident she was on the outer verandah of the house when her mother P.W.8 was inside and she found the appellant quarrelling with one Deva Das of their village. She has further deposed that her father rushed to the place and attempted to separate both, simultaneously, making a request to the appellant to refrain from quarrelling. It is her evidence that at this point of time the appellant having got annoyed immediately assaulted her father by giving fist blow on his neck resulting his fall on the concrete village road facing upward and then to have left the place when her father was bleeding with injuries on his head and was going unconscious. During cross-examination she has clearly stated that the appellant was in good term with them. During cross-examination she has clearly stated that the appellant was in good term with them. There appears no reason to doubt this part of evidence that had the deceased been not in good terms with the appellant he would not have ventured to intervene in the said quarrelling between the appellant and the respondent in refraining the appellant from continuing with the quarrel, as the ordinary human conduct and behaviour go to show that one who is in enemical term with another and when he finds his enemy to be involved in an incident, he would hardly think even for a moment to jump to the fray in making a request to his enemy keeping in mind that rather the same would aggravate the situation inviting serious problem to his own life instead of pacifying the situation in any way. However, most importantly during cross-examination she has further stated that on account of her father’s interference, initially there was some push and pull between the appellant and her father and her father fell down. This evidence of P.W.9 appears to be quite natural and the incident according to her as stated in the examination-in-chief that the appellant being annoyed gave fist blows on the neck of the deceased resulting her father’s fall on the concrete road does not appear to give the true picture as regards the appellant’s role therein. The trial Court has totally lost sight of such evidence of P.W.9. So, this Court is inclined to believe her version to the extent that when her father went there to separate the appellant and that Deva Das there was push and pull between him and the appellant and in that process her father fell down. The para in which she was stated during her examination-in-chief is thus eschewed from consideration as exaggeration. But in my considered view, the introduction of that by P.W.9 cannot not lead to discard her evidence in toto when absolutely no further material surfaces in her evidence to entertain any doubt her version as regards her presence at the spot and witnessing the incident. But in my considered view, the introduction of that by P.W.9 cannot not lead to discard her evidence in toto when absolutely no further material surfaces in her evidence to entertain any doubt her version as regards her presence at the spot and witnessing the incident. 10.For the aforesaid reason and discussion of evidence of P.W.9, this Court is led to hold that the death of Nabha has taken place because of his fall on the concrete road in view of push by the appellant, which certainly leads to an interference that the force exerted in the process by the appellant in pushing the deceased is of greater degree than the force to resist it which must have been offered by the deceased or that it having gone un-resisted. The evidence of doctor P.W.12 go to provide support in that regard that the push with force has been the cause of head injury occasioned due to fall. In view of the said evidence of P.W. 9, the daughter of the deceased, who is found to be a wholly reliable witness, this Court is not in a position to straight way accept the evidence of the witnesses, who have stated that the appellant had made extra judicial confession in the meeting that he had murdered the deceased. Therefore, their versions as stated are thus found to be unacceptable in the absence of there being evidence with regard to the exact words used by the appellant. 11.Now comes the question as regards the legality of the conviction for offence under Section 304, Part-I of I.P.C. as recorded by the trial Court. At this stage, it may be stated that in the proven facts and circumstances the trial Court’s view that the case is covered under Exception 1 is a faulty one as it cannot be said that the appellant had received the grave and sudden provocation spontaneously due to said intervention of the deceased in separating him and that Deva Das and offering a request not to indulge in quarrel especially looking at the old age of Deva Das. The conviction for offence under Section 304, Part-I IPC is found to be unsustainable. The conviction for offence under Section 304, Part-I IPC is found to be unsustainable. Simply when the evidence of P.W.9 is gone through as regards the part of her evidence that this Court has accepted with respect to the role played by the appellant and the manner being taken into consideration in its proper prospective, it can neither be said that the appellant by his said act had the intention of causing death nor causing such bodily injury as is likely to cause death. The appellant cannot also be credited with the knowledge that his said act is likely to cause death in view of fall resulting with the head injury with the occipital region of head getting dashed against the concrete road by that fall on account of push. Therefore, it is found to be a case for recording a conviction under Section 325 IPC and thus the conviction of appellant is altered to one under Section 325 IPC from that under Section 304, Part-I IPC. 12.In the upshot of above discussion, the appeal is allowed in part. The conviction of the appellant for commission of offence under Section 304, Part-I of IPC and sentence of rigorous imprisonment for a period of ten years and fine of Rs. 2000/- in default to undergo rigorous imprisonment for a period of six months are set aside and instead the appellant, is hereby convicted for commission of offence under Section 325 IPC and sentenced to rigorous imprisonment for a period of three years and to pay fine of Rs. 2,000/- in default to undergo rigorous imprisonment for a period of six months. The judgment be communicated to the Court below along with the L.C.R. at the earliest for immediate necessary follow up action, as necessary in accordance with law. Appeal allowed in part.