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2016 DIGILAW 10 (ORI)

Paila Santa v. State of Orissa

2016-01-05

S.K.SAHOO, VINOD PRASAD

body2016
JUDGMENT : S.K. Sahoo, J. The appellant Paila Santa was charged under section 302 of Indian Penal Code by the learned Addl. Sessions Judge, Nabarangpur in Sessions Case No.17 of 2001 for committing murder of his father-in-law Gadara Santa (hereafter ‘the deceased’) on 19.07.2001 at about 6.00 p.m. at village Amadapadar in the district of Nabarangpur. The learned trial Court found the appellant guilty under section 302 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The prosecution case, as per the First information report (Ext. 2) presented by Manika Santa (P.W.13), wife of the deceased on 20.07.2001 at Maidalpur outpost under Papadahandi Police Station, in the district of Nabarangpur is that at the date and time of the incident the deceased father-in-law asked the appellant as to why he was not engaging himself in some work and wasting time in sleeping at home after consuming liquor. After telling so, the deceased went to the cow shed to take care of the cattle and after finishing his work there, while the deceased was returning back, the appellant dealt two blows to the deceased with a stick which landed on the head and shoulder area for which the deceased fell down on the ground. The grandson of the deceased namely Hadi Santa (P.W.2) brought the deceased inside the house but found him dead. On the basis of such First Information Report, A.S.I of Police Parameswar Mohapatra (P.W.16) took up preliminary investigation and dispatched the First Information Report to Officer-in-charge, Papadahandi Police Station for registration and accordingly Debi Prasad Das (P.W.15), who was attached to Papadahandi Police Station as Officer-in-charge registered Papadahandi P.S. Case No. 36 dated 20.07.2001 under section 302 of Indian Penal Code against the appellant and himself took up investigation of the case. P.W.16 seized the weapon of offence i.e., lathi from the spot vide seizure list Ext.6. He also held inquest over the dead body and prepared inquest report Ext.1/2 and sent the dead body for post mortem examination to P.H.C., Dabugam under dead body challan Ext.7. He issued command certificate in favour of the constables to escort the dead body to the hospital for post mortem examination. On the very same day, P.W.16 handed over the charge of investigation to P.W.15. He issued command certificate in favour of the constables to escort the dead body to the hospital for post mortem examination. On the very same day, P.W.16 handed over the charge of investigation to P.W.15. P.W.15 arrested the appellant on 20.07.2001, examined the witnesses, sent requisition to the doctor for the medical examination of the appellant and forwarded the appellant to Court. On 22.07.2001 the I.O. seized the wearing apparels of the deceased and command certificate under seizure list Ext.3. He received the post mortem report. On 4.10.2001 the I.O. made a query to the Medical Officer by producing the weapon of offence as to whether the injuries sustained by the deceased are possible by such weapon or not and received the query report. On 6.11.2001 he received the injury report of the appellant from the Medical Officer, C.H.C., Papadahandi and on 16.11.2001 he submitted charge sheet under section 302 of Indian Penal Code against the appellant. 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 302 of Indian Penal Code on 23.08.2002 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. During course of trial, in order to prove its case, the prosecution examined sixteen witnesses. P.W.1 Nakula Santa is a co-villager of the appellant as well as the deceased who came to the spot hearing shout and found the deceased lying dead near his cow-shed. P.W. 2 Hadi Santa is the son of the appellant and grand-son of the deceased and he is an eye witness to the occurrence who also stated that the appellant confessed his guilt before others. He is also a witness to the inquest. P.W.3 Tapu Santa is a post occurrence witness who stated about the confession of the appellant. P.W.4 Rupa Santa is a witness to the inquest. P.W.5 Baga Santa is a post occurrence witness who proceeded to the spot hearing shout of the wife and son of the appellant and on reaching at the spot, he found the deceased lying dead with injuries and the appellant who was present there confessed his guilt. P.W.4 Rupa Santa is a witness to the inquest. P.W.5 Baga Santa is a post occurrence witness who proceeded to the spot hearing shout of the wife and son of the appellant and on reaching at the spot, he found the deceased lying dead with injuries and the appellant who was present there confessed his guilt. P.W.6 Laxmi @ Singari Santa is the wife of the appellant and she stated to have heard about the occurrence from P.W.2. She further stated that there was dispute between the appellant and the deceased as the deceased passed comments on the appellant for sitting idle without any work. P.W.7 Jaga Santa is a post occurrence witness who stated about the confessional statement of the appellant. P.W.8 Relli Santa stated that after coming to know about the murder of the deceased, he went to village Tulasipadar to call the widow of the deceased and he heard from P.W.2 that the appellant had assaulted and caused the death of the deceased. P.W.9 Susanta Sahu is the scribe of the FIR. P.W.10 Bipin Behary Benia was the Police constable attached to Maidalpur outpost under Papadahandi Police Station who carried the dead body from the village of the deceased to Dabugam P.H.C. for post mortem examination and after the post mortem, he produced the wearing apparels of the deceased before the A.S.I. of Police (P.W.16) who seized the same under seizure list Ext.3. P.W.11 Bisu Santa is a post occurrence witness who stated about the disclosure made by P.W.2 before him that the appellant committed the murder of the deceased. P.W.12 Mali Santa stated about the disclosure made by P.W.2 before him that the appellant committed the murder of the deceased and on being requested by P.W.2, he went to Tulasipadar to inform the widow of the deceased. P.W.13 Manika Santa is the widow of the deceased who on receipt of the information regarding the murder of her husband returned home and found her husband lying dead. She further stated that P.W.2 intimated her about the murder by the appellant. She is the informant in this case. P.W.14 Dr. P.W.13 Manika Santa is the widow of the deceased who on receipt of the information regarding the murder of her husband returned home and found her husband lying dead. She further stated that P.W.2 intimated her about the murder by the appellant. She is the informant in this case. P.W.14 Dr. Srinivas Sahu was the Medical Officer attached to Dabugam P.H.C. who conducted post mortem examination over the cadaver of the deceased on 21.07.2001 on police requisition and proved his report Ext.4 which indicates that the cause of death was on account of hemorrhagic shock due to internal bleeding and the nature of death is homicidal. He also answered in affirmative to the query made by the I.O. that the weapon sent to him i.e., lathi (M.O.I) can cause the injuries sustained by the deceased. P.W.15 Debi Prasad Das was the Officer-in-charge of Papadahandi Police Station who is the Investigating Officer in this case. P.W.16 Parmeswar Mohapatra was A.S.I. of Police attached to Maidalpur outpost who not only received the First Information Report but also took up preliminary investigation. The prosecution exhibited five documents. Exts.1/2 is the inquest report, Ext.2 is the written report, Ext.3 is the seizure list, Ext.4 is the post mortem report and Ext.5 is the query report. 6. The defence plea of the appellant was one of denial and it was pleaded that it was P.W.2 who had committed the murder but the appellant has been falsely entangled in the case. 7. The learned trial Court has been pleased to hold that the evidence of eye witness P.W.2 and the evidence relating to extra judicial confession before P.Ws.3, 4 and 7 give a clear picture that the appellant dealt one blow on the head and another blow on the belly of the deceased which is corroborated by the testimony of the doctor P.W.14. The learned trial Court further held that the appellant was not happy with the comments of the deceased and therefore to get rid of the deceased, he committed the murder and as such held that the prosecution has been able to establish its case beyond all reasonable doubt against the appellant and accordingly found him guilty of the charge under section 302 of Indian Penal Code. 8. 8. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.1/2, the prosecution has also relied upon the evidence of P.W.14 Dr. Srinivas Sahu who was attached to Dabugam P.H.C. as Medical Officer and he conducted post mortem examination over the dead body of the deceased on 21.07.2001 and found one contusion of size 2” X 1” over lower forehead just above supraorbital region on the right side and another contusion with abrasion of size 2” X 1” over right hypochondrium. The cause of death was opined to be hemorrhagic shock due to internal bleeding and the nature of death was opined to be homicidal. The post mortem report was marked as Ext.4. The learned counsel for the appellant has not challenged the finding of the post-mortem report. The learned trial Court though has not given any specific finding regarding the acceptance of the opinion of the doctor regarding nature of death of the deceased but it seems that he has nowhere deferred from such an opinion. After perusing the evidence on record, the postmortem examination report Ext.4 and the statement of P.W.14 Dr. Srinivas Sahu, we are of the view that there is no dispute regarding the nature of death of the deceased which is homicidal. 9. Mr. Tusar Kumar Mishra, learned counsel for the appellant submitted that P.W.2 is a highly interested witness and the learned trial Court should not have placed implicit reliance on his testimony to convict the appellant as the same is not wholly reliable. The learned counsel further contended that the witnesses to the extra judicial confession have not specifically stated as to what the appellant stated before them and therefore the learned trial Court committed illegality in accepting such evidence. While concluding his arguments, the learned counsel urged that since the appellant seems to have been perturbed by the comments by the deceased assaulted the deceased due to grave and sudden provocation and dealt two lathi blows to him which unfortunately proved fatal, it cannot be a case under section 302 of Indian Penal Code and it would at best constitute an offence under section 304 Part-I of Indian Penal Code and since the appellant is in custody since 20.07.2001, he may be sentenced to period already undergone. Mr. Mr. Janmejaya Katikia, learned Additional Government Advocate conversely contended that since the evidence of P.W.2 is clear, cogent, above board, unimpeachable and trustworthy, the learned trial Court has not committed any illegality in accepting his version and convicting the appellant. He further contended that the evidence relating to extra judicial confession is reliable and the manner in which the appellant reacted to the advice of his father-in-law and assaulted the deceased, the conviction under section 302 of Indian Penal Code is quite justified. 10. Section 134 of the Indian Evidence Act is based on the maxim that “evidence has to be weighed and not counted”. The Court is concerned with the quality and not the quantity of the evidence for proving a fact. There is no legal impediment in convicting a person on the testimony of solitary witness provided that the evidence is clear, cogent, trustworthy, unimpeachable and above board. If the evidence of the eye witness is wholly reliable, the Court can have no difficulty in accepting such evidence and convicting an accused even without any corroboration. Analysing the evidence of solitary eye witness P.W.2 Hadi Santa, we found that he is none else than the son of the appellant and grandson of the deceased. He has stated that in the evening hours on the date of occurrence while the deceased was coming back from the cowshed, the appellant assaulted him by dealing blows by means of a lathi on his head and belly. He identified the lathi as M.O.I. He stated that he witnessed the assault from a distance of 100 meters from the spot. He brought the deceased to the house and raised shout for which other persons arrived at the spot. In the cross-examination, he has specifically stated that though the incident occurred in the evening hours but the things were visible. He further stated that after dealing the blows, the appellant left the spot along with the weapon of offence. He further stated that the assault part took place outside the cowshed and he was alone present there and sometimes thereafter, the others reached. Nothing has been elicited in the cross-examination to discard the evidence of P.W.2. We also find a lot of corroboration to the evidence of P.W.2 coming from the other witnesses. P.W.6 has stated that she ascertained from P.W.2 that the appellant dealt blows by a lathi to the deceased. Nothing has been elicited in the cross-examination to discard the evidence of P.W.2. We also find a lot of corroboration to the evidence of P.W.2 coming from the other witnesses. P.W.6 has stated that she ascertained from P.W.2 that the appellant dealt blows by a lathi to the deceased. P.W.1 has stated that P.W.2 and P.W.6 shouted saying that the appellant assaulted the deceased. P.W.11 and P.W.12 have stated that P.W.2 informed them about the assault by the appellant on the deceased. P.W.13 has also stated that P.W.2 told her that the appellant assaulted the deceased and caused his death. The evidence of all these witnesses indicate the immediate conduct of P.W.2 in disclosing about the incident before them and naming the appellant to be the assailant of the deceased which is admissible as res gestae under section 6 of the Evidence Act. The rationale of making certain statements or facts admissible under Section 6 of the Evidence Act was on account of spontaneity and immediacy of such statement or fact, in relation to the "fact in issue" and thereafter, such facts or statements are treated as a part of the same transaction. The test to determine admissibility under the rule of "res gestae" is embodied in words "are so connected with a fact in issue as to form a part of the same transaction". The illustration (a) under Section 6 of the Evidence Act, especially in conjunction with the words "are so connected with a fact in issue as to form a part of the same transaction" implies that it must be contemporaneous with the acts and there should not be interval which would allow fabrication. The statement of P.W.2 that the appellant assaulted the deceased by means of lathi on the head and belly gets corroboration from the medical evidence and the doctor P.W.14 noticed two injuries on the person of the deceased, one is on the forehead and the other is on the right hypochondrium area which are possible by lathi M.O.I. In view of such evidence of P.W.2 which has practically remained unchallenged and gets corroboration from the other witnesses including the evidence of the Medical Officer, we have no hesitation to put reliance on such testimony. In our humble view, P.W.2 is a reliable and trustworthy witness and his evidence alone is sufficient to hold that the appellant has assaulted the deceased by means of lathi which resulted in his death. 11. Coming to the evidence relating to extra judicial confession of the appellant, it is the prosecution case that when P.W.3, P.W.5 and P.W.7 asked the appellant about the cause of death of the deceased, he confessed his guilt and begged excuse. While dealing with the extra judicial confession, the Court has to satisfy itself that the same was voluntary, without any coercion and without undue influence. The witnesses to the extra judicial confession should be unbiased and not even remotely inimical to the accused. Court has to proceed cautiously where there is material to show animosity between the accused and the witnesses before whom confessional statement is made. The exact words as claimed to have been spoken by the accused are not necessary to be reproduced by the witnesses and their evidence cannot be discarded solely on the ground that they deposed regarding the substance of such confession. It depends on facts and circumstances of each case. If substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused, evidence can be acted upon even though substance and not actual words have been stated. The witnesses are not supposed to depose like tape recorder which records what has been spoken word by word. The witness should be able to precisely say as nearly as possible the actual words spoken by the accused which would rule out the possibility of erroneous interpretation of any ambiguous statement. If Court insists upon word by word repetition of statement of the accused by the witnesses, more often there is possibility of throwing out the evidentiary value of extra judicial confession which is neither the requirement in law or in the interest of justice. If Court believes confession to be voluntary, clear, specific and unambiguous and the witnesses before whom such confession is made are reliable, the Court can act on such evidence. In the case in hand, neither the exact statement of the appellant regarding confession nor the substance of such statement has been brought on record. The witnesses have simply stated the appellant confessed his guilt and begged excuse. In the case in hand, neither the exact statement of the appellant regarding confession nor the substance of such statement has been brought on record. The witnesses have simply stated the appellant confessed his guilt and begged excuse. P.W.2 has stated that the appellant left the spot immediately after the occurrence along with the weapon of offence. Therefore the statements of P.W.3, P.W.5 and P.W.7 that when they reached at the spot hearing shout, the appellant was available there and confessed his guilt before them is a doubtful feature. Extra judicial confession is a weak piece of evidence and the prosecution is duty bound to prove as to why the appellant reposed confidence on those witnesses and confessed before them. In absence of any closeness between the appellant and those three witnesses beforehand and in absence of any reason as to what benefit the appellant would have derived in making such confession, it is difficult to place any reliance on the evidence relating to extra judicial confession and accordingly we discard the same. 12. Coming to the contentions raised by the learned counsel for the appellant that the case would not fall within the ambit of section 302 of Indian Penal Code, we find that P.W.2 has stated that there was no enmity or ill-feeling between the appellant and the deceased prior to the incident. P.W.3 has stated that the appellant was living with his wife and children in one house and the deceased was living with his wife in another house. P.W.5 has stated that he ascertained that there was a quarrel between the deceased and the appellant for which the appellant caused the death of the deceased. P.W.13 has stated that the appellant had got four sons and two daughters and he was sitting idle without doing any work. It is the prosecution case that on the date of occurrence when the deceased father-in-law asked the appellant as to why he was sitting idle at home and not doing any work and always consuming liquor and left the spot, the appellant came with a stick and assaulted the deceased. Affronted by the reprimand by father-in-law that the appellant seems to have acted hastily in assaulting him without taking the verbal reprimands in a positive manner. The time gap between the reprimanding and the assault is very short. Affronted by the reprimand by father-in-law that the appellant seems to have acted hastily in assaulting him without taking the verbal reprimands in a positive manner. The time gap between the reprimanding and the assault is very short. Section 299 of Indian Penal Code defines “culpable homicide.” In order to constitute an offence of culpable homicide, the prosecution has to prove following aspects:- (i) the death was caused by doing an act with the intention of causing death; or (ii) with the intention of causing such bodily injury as is likely to cause death; or (iii) with the knowledge that the act is likely to cause death. Culpable homicide is murder only when it falls within any of the four clauses that are mentioned under section 300 of Indian Penal Code. Culpable homicide is not murder if it either does not fall within any of the clauses or falls within any of the five exceptions mentioned under section 300 of Indian Penal Code. Section 304 of Indian Penal Code has two parts i.e., Section 304 Part-I and Section 304 Part-II. If the culpable homicide is not murder as it falls within any of the five exceptions mentioned under section 300 of Indian Penal Code but it is proved that the accused had the intention of causing death or to cause such bodily injury as is likely to cause death then the offence will come within the purview of section 304 Part-I of Indian Penal Code. If the accused has no intention of causing death or to cause such bodily injury as is likely to cause death but has the requisite knowledge that the injuries are likely to cause death then the offence under section 304 Part-II of Indian Penal Code will be attracted. The intention is a subjective consideration and the state of mind would depend upon various factors like nature of weapon used, nature of injuries inflicted, conduct of the accused prior to the assault and after the assault etc. In case of State of Andhra Pradesh Vs. Rayavarapu Punnayya reported in A.I.R. 1977 SC 45, it is held as follows:- “21. From the above conspectus, it emerges that whenever a Court is confronted with the question whether the offence ‘murder’ or ‘culpable homicidal not amounting to murder’ on the facts of a case, it will be convenient for it to approach the problem in three stages. Rayavarapu Punnayya reported in A.I.R. 1977 SC 45, it is held as follows:- “21. From the above conspectus, it emerges that whenever a Court is confronted with the question whether the offence ‘murder’ or ‘culpable homicidal not amounting to murder’ on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in section 299. If the answer to this question is prima facie in the affirmative, the stage for considering the operation of section 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ‘murder’ contained in section 300. If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’ punishable under the first or the second part of section 304, depending, respectively, on whether the second or the third clause of section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the First Part of section 304, Penal Code”. The doctor (P.W.14) has not stated that any of the two injuries sustained by the deceased is sufficient in ordinary course of nature to cause death. The head injury caused on the deceased has not resulted in causing any internal injury. Two stick blows were given by the appellant out of anger hastily on grave and sudden provocation being reprimanded by the deceased. There seems to be no premeditation and the act was done in a heat of passion and the appellant had not taken any undue advantage of the situation and therefore taking overall view of all these facts, we are of the view that the case of the appellant does not travel beyond the purview of part-I of section 304 of Indian Penal Code. In the result, the impugned judgment and order of conviction of the appellant under section 302 of Indian Penal Code and sentence of rigorous imprisonment for life as was imposed by the learned trial Court is hereby set aside, and instead the appellant is convicted under section 304 Part-I of Indian Penal Code. The appellant is in judicial custody since 21.07.2001. Therefore, while convicting the appellant under section 304 Part-I of Indian Penal Code, we sentence him to the period of imprisonment already undergone by him, which to us shall meet the ends of justice. The appellant be released forthwith if his detention is not otherwise required in any other crime. This jail criminal appeal is allowed in part as above. Lower Court Records along with copy of the judgment be sent down forthwith to the trial Court for necessary action.