Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 163 (ORI)

Harekrushna Sahu v. State of Orissa

2015-03-09

S.K.SAHOO

body2015
JUDGMENT S.K. SAHOO, J. 1. The appellant faced trial in the Court of learned Sessions Judge, Bolangir in Sessions Case No. 92-B of 1998 for offence punishable under section 302, Indian Penal Code for committing murder of Rajani Sahu (hereafter the deceased) on 22.03.1998 at about 7.00 a.m. at village Rengali. The learned trial Court vide impugned judgment and order dated 3.8.2000 while acquitting the appellant under Section 302, IPC, found him guilty under section 304 Part-I, IPC and accordingly convicted him of such offence and sentenced him to undergo R.I. for ten years and to pay a fine of Rs. 4,000/- in default, to undergo R.I. for a further period of one year. 2. The prosecution case, in short, as per the first information report (Ext.1) lodged by Nilachala Sahu (P.W.1), who is the son of the deceased is that on 22.07.1998 at about 7.00 a.m. the deceased with the help of labourers was cutting a tamarind tree for the purpose of sale which was standing on the ridge of his land. At that time the appellant with his brother Kasta Sahu and sister-in-law Debaki Sahu came there and prevented the appellant from cutting the tree. The deceased called two co-villagers Ballava Sahu (P.W.4) and Matu Sahu and showed documents relating to the ownership of the land where the tamarind tree was standing. In spite of that the appellant, his brother and sister-in-law did not allow the deceased to cut the tree. All on a sudden, the appellant being enraged dealt a Tangia blow on the head of the deceased as a result of which the deceased fell down on the ground with bleeding injuries and thereafter he was shifted to his house in an unconscious manner. The deceased was then taken to Agalpur Police Outpost where the written report was lodged. On the basis of such report, Agalpur Outpost S.D. Entry No. 338 dated 22.03.1998 was made and the report was sent to Officer-in-charge, Lohisingha Police Station for registration of formal F.I.R. After receipt of the F.I.R., Officer-in-charge of Lohisinga Police Station registered Lohisingha P.S. Case No. 23 of 1998 on 22.03.1998 under Section 307 Indian Penal Code and directed A.S.I. of Police attached to Agalpur Outpost Bijaya Kumar Pradhan (P.W.10) to continue investigation. P.W.10 examined the informant, sent the injured to Agalpur C.H.C. for medical examination. P.W.10 examined the informant, sent the injured to Agalpur C.H.C. for medical examination. The Medical Officer of Agalpur C.H.C. referred the injured to District Headquarters Hospital, Bolangir. He examined the witnesses, visited the spot and seized some blood stained earth and sample earth from the spot in presence of witnesses and prepared seizure list Ext.2. On the very day Officer-in-charge of Lohisingha Police Station Narayan Nayak (P.W.8) took over charge of investigation. Since the injured was declared dead at District Headquarters Hospital, Bolangir, P.W.8 directed A.S.I of Police Lohisingha Police Station Bhagabat Hota (P.W.7) to proceed to Bolangir and to conduct inquest over the dead body and to dispatch it for post-mortem examination. P.W.7 in compliance to such direction held inquest over the cadaver of the deceased at District Headquarters Hospital, Bolangir and prepared inquest report Ext.5. He also sent the dead body for post-mortem examination. P.W.11 Dr. Pradipta Kumar Panda who was the Asst. Surgeon, D.H.H., Bolangir conducted post-mortem examination over the cadaver of the deceased on 22.03.1998 and submitted his report Ext.15. P.W.7 seized the wearing apparels of the deceased after post-mortem examination under seizure list Ext.10. P.W.8 arrested the appellant on 27.03.1998 and basing on the statement of the appellant recorded vide Ext.3 and on being led by the appellant to the place of concealment, he seized a Tangia from heap of dry jute plants under seizure list Ext.4. He prepared another spot map Ext.12 indicating place of occurrence and place of concealment of weapon of offence. On the same day he received the injury report of the deceased from Medical Officer, Agalpur C.H.C. He also received the post-mortem examination report and on 18.06.1998 he handed over the charge of investigation to Sub-Inspector of Police Biranchi Prasad Dehury (P.W.6). P.W.6 sent a query to Medical Officer, D.H.H, Bolangir along with the seized Tangia for examination. He also took steps to send the exhibits to R.F.S.L., Ainthapali through J.M.F.C., Lohisingha for chemical examination and received the chemical examination report Ext.8. On completion of investigation, P.W.6 submitted charge-sheet against the appellant on 25.06.1998 under Section 302, I.P.C. 3. The defence plea is one of denial and it is pleaded by the appellant that due to previous civil dispute between the parties, the case has been foisted. 4. In order to prove its case, the prosecution has been examined eleven witnesses. On completion of investigation, P.W.6 submitted charge-sheet against the appellant on 25.06.1998 under Section 302, I.P.C. 3. The defence plea is one of denial and it is pleaded by the appellant that due to previous civil dispute between the parties, the case has been foisted. 4. In order to prove its case, the prosecution has been examined eleven witnesses. P.W. 1, Nilachala Sahu is the son of the deceased who is also the informant in the case and he stated about the occurrence what he had heard from Biranchi Seth (P.W.2) and Ballava Sahu (P.W.4). P.W.2 Biranchi Seth is an eye-witness to the occurrence and he identified the weapon of offence Tangia M.O.I. P.W.3 Alekha Bhoi is a witness to the seizure of blood stained earth and sample earth under seizure list Ext.2. He also stated about the seizure of Tangia at the instance of the appellant under seizure list Ext.4. P.W.4 Ballava Sahu is an eye-witness to the occurrence and he also stated about the seizure of Tangia at the instance of the appellant under seizure list Ext.4. P.W.5 Ashok Kumar Sahu shifted the deceased along with others from the village to Agalpur Outpost and then to Agalpur C.H.C. and then to D.H.H., Bolangir. He is also a witness to the inquest and proved inquest report Ext.5. P.W.6 Biranchi Prasad Dehury was the Officer-in-charge of Lohisingha Police Station who was one of the Investigating Officers of the case and he submitted charge-sheet against the appellant. P.W.7 Bhagabat Hota was the ASI of Police, Lohisingha Police Station who held inquest over the dead body and also sent the dead body for post-mortem examination. He also seized the wearing apparels of the deceased. P.W.8 Narayan Nayak was the Officer-in-charge of Lohisingha Police Station who was one of the Investigating Officers of the case. P.W.9 Dr. Daitari Sahu was the Medical Officer, C.H.C., Agalpur who examined the deceased in an injured condition on 22.03.1998 and proved his report Ext.13. P.W.10 Bijaya Kumar Pradhan was the A.S.I. of Police attached to Agalpur Outpost who is also one of the Investigating Officers of the case. P.W.11 Dr. Pradipta Kumar Panda was the Assistant Surgeon, D.H.H., Bolangir who conducted post-mortem examination over the dead body and proved post-mortem report Ext.15. P.W.10 Bijaya Kumar Pradhan was the A.S.I. of Police attached to Agalpur Outpost who is also one of the Investigating Officers of the case. P.W.11 Dr. Pradipta Kumar Panda was the Assistant Surgeon, D.H.H., Bolangir who conducted post-mortem examination over the dead body and proved post-mortem report Ext.15. He also gave his opinion regarding possibility of the injury sustained by the deceased with the seized axe M.O.I. No witness was examined on behalf of the defence. The prosecution exhibited fifteen numbers of documents. Ext.1 is the written F.I.R., Ext.2 is the seizure list, Ext.3 is the statement of the appellant recorded by police, Ext.4 is the seizure list, Ext.5 is the inquest report, Ext.6 is the query made by the I.O. to the Doctor, Ext.7 is the forwarding letter of J.M.F.C., Lohisingha, Ext.8 is the chemical examination report, Ext.9 is the dead body challan, Ext.10 is the seizure list, Exts. 11 and 12 are spot maps, Ext.13 is the injury report, Ext.14 is the forwarding memo and Ext.15 is the post-mortem report. The prosecution also proved three material objects. M.O.I is the Tangia, M.O.II is the green check lungi and M.O.III is the red green shawl. 5. Now it is to be seen how far the prosecution has established that the death of the deceased Rajani Sahu is homicidal in nature. In order to establish such aspects, apart from inquest report Ext.5, the prosecution has examined the doctor P.W.11 who conducted autopsy over the dead body on 22.03.1998. It is pertinent to note that P.W.9 was the Medical Officer of C.H.C., Agalpur who examined the deceased on 22.3.1998 while he was in an injured condition and found one incised injury of size 8 cm x 1.5 cm over left temporal region extending horizontally 2 cm above the left ear. He found the bleeding present and the patient was unconscious. He opined the age of injury to be within six hours and proved his report Ext.13. He referred the patient to District Headquarters Hospital, Bolangir on 22.03.1998. P.W.11 who conducted post-mortem examination over the cadaver of the deceased found one incised injury of size 4" x 1" x 3" over left zygomatic process in which the middle meningeal artery was cut and brain mater had expelled out of the wound. The wound was situated antero-posteriorly and was opined to be ante-mortem in nature. P.W.11 who conducted post-mortem examination over the cadaver of the deceased found one incised injury of size 4" x 1" x 3" over left zygomatic process in which the middle meningeal artery was cut and brain mater had expelled out of the wound. The wound was situated antero-posteriorly and was opined to be ante-mortem in nature. P.W.11 opined the cause of death was due to injury to the brain and time of death was opined to be within twelve hours prior to the post-mortem examination. The injury was opined to be fatal and sufficient to cause death in ordinary course of nature. The post-mortem report has been marked as Ext.15. The learned counsel for the appellant has not challenged the evidence of P.W.11 or the findings in the post-mortem examination report Ext.15. After perusing the evidence on record, post-mortem examination report Ext.15 and the statement of doctor P.W.11, I am of the view that the prosecution has proved the death of the deceased to be homicidal in nature which is also the finding of the learned trial Court. 6. The prosecution has examined P.W.2 and P.W.4 as eye-witnesses to the occurrence. P.W.2 has stated that on being asked, he had gone to the spot as a labourer for cutting a tamarind tree of the deceased. He further stated as to how the appellant, his brother and sister-in-law prevented them from cutting the tree and how the deceased went back to his house and brought the record of rights and tried to convince the appellant in presence of the gentlemen showing those documents. He further stated that the gentlemen suggested for demarcation of land by an Amin. He has categorically stated that the appellant assaulted on the head of the deceased by means of a Tangia for which the deceased sustained bleeding injury and fell down and became unconscious. He further stated that the appellant left the spot with the Tangia. He also identified the Tangia (M.O.I) during trial. He has categorically stated that the appellant assaulted on the head of the deceased by means of a Tangia for which the deceased sustained bleeding injury and fell down and became unconscious. He further stated that the appellant left the spot with the Tangia. He also identified the Tangia (M.O.I) during trial. The learned counsel for the appellant challenged the evidence of P.W.2 as a planted witness as he was not named in the F.I.R. He further contended that since the branches the tamarind tree have not been seized by the Investigating Officer, it is difficult to accept that P.W.2 was engaged by the deceased as a labourer for cutting the tamarind tree and as such the presence of P.W.2 at the spot is very much doubtful. I am unable to accept the contentions raised by the learned counsel for the appellant that the evidence of P.W.2 as an eye-witness to the occurrence is to be discarded merely because his name does not find place in the F.I.R. and the branches of the tamarind tree have not been seized. The F.I.R. was lodged by P.W.1 who is the son of the deceased and at that time he must have been shocked after hearing the incident from the witnesses and also after looking the alarming condition of his injured father. It is not expected that P.W.1 would maintain the mental equanimity of an unconcerned man and cool composure so as to remember every details of the incident of narration of what he had heard from P.W.2 and P.W.4 and also to give the names of the eye- witnesses in the F.I.R. Mere omission of the name of an eye-witness like P.W.2 in the FIR is not a ground to discard his evidence. Nothing has been elicited in the cross-examination of P.W.2 to discredit his version. P.W. 2 has stated that they had cut two roots of the tamarind tree when the appellant, his brother and sister-in-law came and prevented them from cutting the tree. In such circumstances, the contention raised by the learned counsel for the appellant that the branches of the tamarind tree should have been seized by the Investigating Officer is not at all acceptable. P.W.2 has categorically stated that when the appellant told them not to cut the tree, they stopped cutting the tree. In such circumstances, the contention raised by the learned counsel for the appellant that the branches of the tamarind tree should have been seized by the Investigating Officer is not at all acceptable. P.W.2 has categorically stated that when the appellant told them not to cut the tree, they stopped cutting the tree. P.W.2 has identified the weapon of offence M.O.I and the doctor conducting post-mortem examination P.W.11 has stated that he examined the axe and opined that the injury found on the head of the deceased was possible by the said axe. Ext.6/2 is the opinion of P.W.11. Thus the evidence of the P.W.2 is corroborated by the medical evidence. The suggestion given to P.W.2 by the defence that he did not go to cut the tamarind tree as a labourer and that due to previous dispute with the appellant, he was deposing falsehood has been denied by him. The learned defence counsel has failed to point out any other infirmity in the evidence of P.W.2. Thus in my opinion that P.W.2 is a natural witness and his presence at the spot is well proved and his evidence appears to be clear, cogent and trustworthy and therefore acceptable. 7. The evidence of P.W.4 Ballava Sahu who is another eye-witness to the occurrence was assailed by the learned counsel for the appellant firstly on the ground that his name does not find place in the F.I.R. and he was in inimical term with the appellant and he is a stock witness for the informant who had deposed against the appellant in other cases prior to the occurrence. P.W.4 is a co-villager of the appellant as well as the deceased and he came to the spot being called by the deceased when the deceased started cutting tamarind tree with the help of labourers and the appellant and his family objected to the same. He has further stated that in spite of his advice to the appellant to get the tree demarcated in presence of the gentlemen, the appellant dealt a blow by means of a Tangia on the head of the deceased as a result of which the deceased fell down. He tried to administer water to the deceased and then carried him to his house and disclosed about the occurrence before the wife and son of the deceased. He tried to administer water to the deceased and then carried him to his house and disclosed about the occurrence before the wife and son of the deceased. P.W.4 has stated about the presence of the P.W.2 as a labourer at the spot for cutting the tree. He has further stated that the appellant was standing about the 5 to 6 cubits away from the deceased before the assault and the appellant came from the left side of the deceased and assaulted on the left side of the head. The evidence of P.W.4 is also corroborated by the doctor P.W.11 who conducted post-mortem examination as he found an incised wound on the left zygomatic process of the deceased. The evidence of P.W.1 indicates that P.W.2 and P.W.4 carried the deceased from the spot to his house and disclosed the incident before him. Though suggestions have been given to P.W.4 that he was witness in the criminal cases instituted against the brothers, nephew and sister-in-law of the appellant, all instituted by the widow of the deceased but he has denied the same. P.W.1 who is the son of the deceased has stated that P.W. 4 was a witness in a criminal case instituted by his mother against the brother of the appellant but he has expressed his ignorance about P.W.4 being a witness in other cases instituted by his mother. Even if P.W.4 was a witness in one of the cases instituted by the widow of the deceased, he cannot be said to be a stock witness of the informant and that cannot be a ground to discard his testimony when on close scrutiny, his evidence appears to be trustworthy and corroborated by the evidence of P.W.1, P.W.2 as well as the doctor P.W.11. Similarly mere non-mention of the name of P.W.4 is not a ground to discard his evidence. Thus in my opinion, the evidence of P.W.4 is found to be reliable and trustworthy. 8. The I.O. (P.W.8) arrested the appellant on 27.03.1998 and while in custody, the appellant made a statement (Ext.3) that he had concealed the weapon of offence i.e. the axe under heap of jute plants and led the police to that place and gave recovery of the same which was seized vide Ext.4. The evidence of the Investigating Officer is corroborated by P.W.3 and P.W.4. The evidence of the Investigating Officer is corroborated by P.W.3 and P.W.4. The I.O. prepared a spot map indicating wherefrom the weapon was recovered and the said spot map has been marked as Ext.12. Though the learned counsel for the appellant challenged the evidence relating to recovery the weapon of offence on the ground that the place of recovery was an open place accessible to all, but the I.O. P.W.8 has stated that the weapon of offence had been concealed in a heap of dry jute plants. It is a fallacious notion that when recovery of any weapon or incriminating article is made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. When the weapon of offence was concealed beneath the dry jute plants lying on the public place, the weapon must have remained out of the visibility of others in normal circumstances. Until such weapon is disinterred, its hidden state would have remained unhampered. The appellant who had hidden the weapon of offence alone knew where it was until he disclosed that fact to other persons and the investigating officer. Thus even if the place of recovery of the weapon of offence was an open place but the manner in which the weapon was concealed beneath the dry jute plants makes it clear that it was not ordinarily visible to others. The learned counsel for the appellant has failed to bring any other infirmity in the evidence of the recovery and seizure of the weapon of offence M.O.I at the instance of the appellant. 9. The learned counsel for the appellant contended that even though one Hadu Pradhan had accompanied P.W.2 as another labourer for cutting the tamarind tree but he has not been examined. Similarly one Matu Sahu who stated to have accompanied P.W.4 to the spot being called by the deceased for verification of the record of rights has also not been examined. It is not the requirement of law that the prosecution has to produce all the witnesses named in the charge-sheet or all the witnesses whose presence at the spot has been deposed to by the other witnesses during trial. It is not the requirement of law that the prosecution has to produce all the witnesses named in the charge-sheet or all the witnesses whose presence at the spot has been deposed to by the other witnesses during trial. It is not the quantity of evidence but the quality of evidence that counts much in a criminal case and non-examination of some witnesses do not affect the credibility of the prosecution story when the evidence of the witnesses examined during trial are found to be reliable and trustworthy. 10. There is no discrepancy regarding the place of the occurrence. Not only from the evidence of the eye-witnesses but also the spot maps proved in this case clearly established regarding the existence of the tamarind tree at the place of the occurrence. The seizure of blood stained earth and sample earth from the spot under seizure list Ext.2 is also an additional feature which confirms the place of occurrence as per the prosecution case. 11. There is evidence on record that there was exchange of words between the appellant and the deceased at the spot, each claiming the ownership of the tamarind tree. It further appears that the appellant suddenly assaulted on the head of the deceased by means of a Tangia. The deceased was an unarmed person. The learned trial Court has held that the appellant is not entitled to avail the right of private defence of the property. Section 103 of Indian Penal Code deals with right of private defence of property which may extend to cause death or of any other harm to the wrong-doer subject to the restrictions mentioned under Section 99 of Indian Penal Code. The right of private defence of the property will not extend to the causing of death of a person who committed the act of trespass in respect of an open land. Only when a house tresspass is committed under such circumstances as may reasonably cause apprehension that death or grievous hurt would be the consequence, if such right of private defence is not exercised then can only the right of private defence of property would extend to the voluntary causing of death or of any other harm to the wrong-doer subject to the restrictions mentioned in Section 99. Of course such right is also exercisable under other situations which are enumerated under different clauses of Section 103, IPC. Of course such right is also exercisable under other situations which are enumerated under different clauses of Section 103, IPC. The evidence on record indicates that there was ill-feeling between the appellant and the deceased due to demarcation of land but there is no evidence that the appellant came to the spot being armed with an axe. There is also no evidence of any premeditation for committing the offence. There was exchange of words between the appellant and the deceased and the appellant dealt a single blow by means of an axe which unfortunately proved to be fatal and the injury was opined to be sufficient in ordinary course of nature to cause death. Thus it appears that the appellant had intention to cause such bodily injury to the deceased as is likely to cause death. The appellant seems to have deprived the power of self control on account of grave and sudden provocation and thus the act of the appellant would fall under Exception 1 to Section 300 of IPC and therefore he has been rightly held guilty by the learned trial Court for committing the offence of culpable homicide not amounting to murder and convicted under Section 304, Part-I, IPC instead of Section 302, IPC. Taking into account the young age of the appellant and the background of civil dispute between the parties, the learned trial Court has imposed the sentence which accordingly to my opinion is just and proper and therefore the impugned judgment and order of conviction and the sentence passed thereunder cannot be interfered with. Accordingly, the impugned judgment and order of conviction of the appellant under Section 304, Part-I, IPC and imposition of substantive sentence of R.I. for ten years and payment of fine of Rs. 4,000/- in default, to undergo R.I. for a further period of one year is hereby confirmed. The Jail Criminal Appeal stands dismissed. Appeal dismissed.