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2015 DIGILAW 22 (ORI)

Sania Muduli v. State of Orissa

2015-01-12

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT S.K.SAHOO, J. - The appellant faced trial in the Court of learned Addl. Sessions Judge, Malkangiri in C.T. Case No.36 of 2002 for offence punishable under Section 302 IPC for committing murder of Hadi Dora (hereafter the “deceased”) at Kendu Dangara Jholla near village Podeiguda on 11.4.2002 at about 4.00 p.m. The learned trial Court vide impugned judgment and order dated 18.5.2006 held the appellant guilty under Section 302 IPC and accordingly convicted him of such offence and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine to undergo R.I. for six months more. 2.The prosecution case as per the First Information Report submitted by Sukra Kirsani (P.W.1) before Officer-in-Charge, Mudulipada police Station on 13.4.2002 is that on 11.4.2002 at about 1.00 p.m. the deceased along with the appellant, P.W.2 Sukra Muduli, P.W.3 Lachhim Muduli and one Sadhu Chalan had been to Kendu Dangara Jholla to take salap (liquor prepared from date palm tree). At about 4.00 p.m. while P.W.2, P.W.3 and Sadhu Chalan were returning after taking salap, they heard quarrel between the appellant and the deceased. The deceased called out in high pitch and stated that the appellant shot at him. Hearing such shout of the deceased, P.W.2, P.W.3 and Sadhu Chalan returned back and saw that the arrow shot by the appellant has pierced on the right side chest of the deceased and they pulled it out and then proceeded to the village and intimated the villagers about the incident. During midnight, P.W.2 along with five other co-villagers brought the deceased to his house from the Kendu Dangara Jholla. P.W.2 asked the deceased about the incident who stated that after taking salap when he asked the appellant for more salap, there was quarrel between them and the appellant shot an arrow at him. On 12.4.2002 at about 3.00 a.m., P.W.2 and others tried to shift the deceased to the hospital but he expired at the outskirts of the village. After taking back the dead body to the village, a panch was convened in the night but the appellant did not turn up for which the dead body was taken to the police station along with the arrow shot by the appellant. On the oral report of P.W.1, the Officer-in-charge of Mudulipada police station reduced it into writing and treated it as FIR. On the oral report of P.W.1, the Officer-in-charge of Mudulipada police station reduced it into writing and treated it as FIR. During course of investigation on 19.4.2002, the appellant was arrested by P.W.5 Purna Chandra Nayak, Officer-in-charge Mudulipada police station and the exhibits were forwarded to R.F.S.L., Berhampur to SDJM, Malkangiri. P.W.5 handed over the charge of investigation to P.W.6 Y. Jagannath Rao who was the Circle Inspector of police, Orkel on 30.4.2002 who after completion of investigation submitted charge sheet. 3.That the defence plea is one of denial. 4.In order to prove its case, the prosecution examined six witnesses. P.W.1 Sukra Kirsani stated to have carried the deceased in an injured condition to his house where the deceased made the dying declaration. He is the informant in this case. P.W.2 Sukra Muduli stated to have pulled out the arrow from the chest of the deceased and further stated about the dying declaration of the deceased. P.W.3 Lachhim Muduli also stated to have brought the deceased to his house where he made the dying declaration. P.W.4 Dr. Sashibhusan Mohapatra conducted post mortem examination over the dead body and proved his report (Ext.1). He further replied to the query of the I.O. that injury noticed on the dead body was possible by the arrow. His report has been marked as Ext.2. P.W.5 and P.W.6 are the Investigating Officers. 5.So far the conviction of the appellant under Section 302 IPC is concerned, it is first to be seen as to how far the prosecution has established that it is a case of homicidal death. P.W.4 who was attached to C.H.C., Khairput conducted post mortem examination on 14.4.2002 and he noticed the following injuries:- (i) one incised wound over right side chest having size 1½ cm x ¼ cm x 2 cm on third intercostal space, which according to him was caused by sharp cutting weapon and grievous in nature. He found that the right lung was cut causing haemothorax which has lead to cardio respiratory failure resulting in death. The injury was opined to be ante mortem in nature. The learned counsel for the appellant has not challenged the version of P.W.4 and the findings in the post mortem report (Ext.1). He found that the right lung was cut causing haemothorax which has lead to cardio respiratory failure resulting in death. The injury was opined to be ante mortem in nature. The learned counsel for the appellant has not challenged the version of P.W.4 and the findings in the post mortem report (Ext.1). In view of the evidence of P.W.4 as well as the post mortem report (Ext.1), we are of the view that the prosecution has proved the death of the deceased to be homicidal in nature. 6.In this case, there is no direct evidence and the entire case is based on the oral dying declaration stated to have been made before P.W.1, P.W.2 and P.W.3. All the three witnesses have categorically stated that the deceased specifically implicated the appellant to have shot arrow at him. The version of these three witnesses regarding dying declaration is corroborated by the medical evidence and the doctor has specifically stated that the injury found on the dead body is possible by arrow (M.O.1). A dying declaration is a statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death and it is admissible under Section 32 of the Indian Evidence Act, 1872. Great solemnity and sanctity is attached to the words of a dying person because on the verge of death, a person is not likely to tell lies or to concoct a case so as to implicate an innocent person. When every hope of this world is gone, when every motive to speak falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. The dying declaration must be of such a nature so as to inspire full confidence of the Court regarding its correctness. Once the Court is satisfied that the declaration is true and voluntary, it can base an order of conviction. The rule requiring corroboration is merely a rule of prudence. The dying declaration must be of such a nature so as to inspire full confidence of the Court regarding its correctness. Once the Court is satisfied that the declaration is true and voluntary, it can base an order of conviction. The rule requiring corroboration is merely a rule of prudence. When the deceased is in a fit state of mind and is capable of making a statement and he has a clear opportunity to observe and identify his assailant and there is no evidence of tutoring to the deceased, the dying declaration made by such person can be acceptable. Oral dying declaration can also form the basis for conviction if it is found to be trustworthy, free from any kind of blemish and inspire confidence. Law does not require that the maker of the dying declaration has to narrate the whole incident. Even if the dying declaration is brief and it merely indicates as to who assaulted the declarant, it can be accepted and relied upon provided that the other criterias are satisfied. In the present case the evidence of P.W.1, P.W. 2 and P.W. 3 regarding the dying declaration appears to be very natural and nothing has been brought out in the cross examination to discard such evidence. P.Ws.1, 2 and 3 have no hostile attitude against the appellant to implicate him falsely. The dying declaration is also mentioned in the FIR which was lodged by P.W.1. In view of the evidence of P.W.1, P.W.2 and P.W.3 that the deceased specifically mentioned the name of the appellant as his assailant which is corroborated by the evidence of the doctor (P.W.4), we accept the dying declaration made by the deceased to be true and voluntary. We also held that the arrow shot by the appellant which caused injury on the right side chest of the deceased is the cause of his death. 7.The learned counsel for the appellant submitted that though the incident stated to have taken place on 11.4.2002 at about 4.00 p.m. but the FIR was lodged on 13.4.2002 at 12.30 p.m. and the prosecution has not satisfactorily explained the delay caused in lodging the FIR. 7.The learned counsel for the appellant submitted that though the incident stated to have taken place on 11.4.2002 at about 4.00 p.m. but the FIR was lodged on 13.4.2002 at 12.30 p.m. and the prosecution has not satisfactorily explained the delay caused in lodging the FIR. We are not convinced by the argument advanced by the learned counsel in as much as the material available on records clearly indicates that the deceased was shifted from the spot to his house in an injured condition at about 12’O clock midnight on 11/12.4.2002 and an attempt was also made thereafter to shift him to the hospital but on the way the deceased expired for which the dead body was brought back to the village. In the night on 12.4.2002, a Panchayat was convened in the village but the appellant did not attend the same and ultimately on 13.4.2002 the report was lodged. It is the settled law that mere delay in lodging the first information report cannot by itself be regarded as fatal to the prosecution case. The Court has a duty to take notice of the delay and examine the same in the backdrop of the factual score, whether there has been any acceptable explanation offered by the prosecution and whether the same deserves acceptation being satisfactory, but when delay is satisfactorily explained, no adverse inference is to be drawn (Ref:-(2014) 58 Orissa Criminal Reports 645, Om Prakash -v- State of Haryana). In view of the evidence on record, we are of the view that the delay in lodging the FIR can be said to have been explained satisfactorily by the prosecution. 8. From the narration of incident, it is clear that there was no pre- meditated attack by the appellant and the incident occurred all on a sudden. The appellant, the deceased and others had been to Kendu Dangara Jholla near their village Podeiguda and after taking liquor there was quarrel between the appellant and the deceased. P.W.1, P.W.2 and P.W.3 have stated that there was no previous dispute or ill feeling between the appellant and the deceased. There is also absolutely no evidence that the appellant was an expert in shooting arrow or that he shot the arrow aiming at the right side chest of the deceased. There is also no evidence as to from what a distance the arrow was shot at the deceased. There is also absolutely no evidence that the appellant was an expert in shooting arrow or that he shot the arrow aiming at the right side chest of the deceased. There is also no evidence as to from what a distance the arrow was shot at the deceased. There was no previous deliberation or determination to assault the deceased. In absence of any pre-meditation and in the influence of the liquor and during course of the sudden quarrel, the arrow appears to have been shot at the deceased by the appellant. Under the circumstances, we are of the opinion that intention of commission of murder cannot be inferred. However, knowledge can be attributed to the appellant regarding likelihood of death because of arrow shot injury. It would, therefore, be proper to held the appellant guilty under Section 304-II IPC and direct him to suffer imprisonment for eight years. In the result, the appeal partly succeeds. The impugned judgment and order of conviction and sentence passed under Section 302 IPC is set aside and the appellant is convicted under Section 304 Part-II IPC and directed to suffer imprisonment for eight years. It appears that the appellant was in jail custody since 20.4.2002 and he was released on bail by this Court vide order dated 21.6.2010 and thus he has already served the sentence imposed by us and therefore he is not required to be taken into custody further in connection with this case. He is set at liberty and his personal and surety bonds are discharged. VINOD PRASAD, J. I agree. Appeal partly succeeds.