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2016 DIGILAW 26 (ORI)

Kanda Hansda v. State of Orissa

2016-01-12

S.K.SAHOO

body2016
JUDGMENT : S.K.SAHOO, J. It is a case of patricide. The appellant faced trial in the Court of the learned Addl. Sessions Judge (Fast Track Court), Baripada in S.T. No. 9/151 of 2004 for offence punishable under section 302 of Indian Penal Code for committing murder of his father Dargam Hansda (hereafter “the deceased”) during the intervening night of 11/12th April, 2004 at village Patsanipur under Udala Police Station in the district of Mayurbhanj. The learned trial Court though acquitted the appellant of the charge under section 302 of Indian Penal Code but convicted him under section 304, Part-II of Indian Penal Code and sentenced him to undergo rigorous imprisonment for eight years and to pay a fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for a further period of six months. 2. The prosecution case, as per the First Information Report lodged by Sakila Murmu (P.W.1) before the Officer-in-Charge, Udala Police Station on 12.4.2004 is that on the previous day during mid-night while the informant with his children were sleeping inside their house, the informant heard hullah of the deceased that his son was killing him. Hearing such hullah, P.W.1 rushed to the spot and found the deceased lying like dead in the courtyard in front of his house and the appellant was present there. On the arrival of P.W.1 at the spot, the deceased told him that he would not survive. Thereafter the deceased was shifted to a nearby tree. At that time, the wife of the deceased namely, Salma Hansdah (P.W.12) and others arrived at the spot and found that the deceased had sustained bleeding injuries on his head and abdomen. No arrangement could be made during that night to shift the deceased to the hospital and on the next day early morning when the arrangement was made, it was found that the deceased was dead. The villagers asked the appellant about the occurrence. While confessing his guilt, the appellant stated before the co-villagers that on the previous day night, he had been to the house of co-villager Kali Charan Hansda to take liquor and after returning back, he asked his wife to serve him dinner. At that time, the deceased interfered and told him that he was wasting his time and without going to the market, consuming liquor and wandering in the village and why he was raising so much of shout. At that time, the deceased interfered and told him that he was wasting his time and without going to the market, consuming liquor and wandering in the village and why he was raising so much of shout. At this, the appellant got angry and dealt blows by means of ‘bahungi’ to the head, abdomen as well as on the chest of the deceased as a result of which the deceased died. 3. Narsingha Bhol (P.W.13), Officer-in-charge of Udala Police Station, on receipt of the telephonic information about the incident on 12.04.2004 made Station Diary Entry, instructed the Assistant Sub-Inspector of Police to depute a constable to guard the spot. P.W.13 himself proceeded to the spot and after his arrival at the spot, P.W.1 gave the oral report about the occurrence which was reduced into writing and treated as FIR. P.W.13 prepared the spot map Ext.11, seized blood stained earth, sample earth in presence of independent witnesses under seizure list Ext.2, arrested the appellant. At the instance of the appellant, the weapon of offence (bahungi) was seized under seizure list Ext.4/2. P.W.13 held inquest report over the dead body, prepared inquest report Ext.3 and then prepared the dead body challan and sent the dead body for post-mortem examination to S.D. Hospital, Udala. He also seized the wearing apparels of the appellant under seizure list Ext.7. The appellant was sent to S.D. Hospital, Udala for medical examination and collection of blood sample and nail clippings under police requisition. The wearing apparels of the deceased were seized after the post-mortem examination under seizure list Ext.6. The incriminating materials which were seized during investigation were sent for chemical examination through learned S.D.J.M., Udala to SFSL, Rasulgarh. P.W.13 handed over the charge of investigation to Shri Rasananda Rout (P.W.10) for further investigation who on completion of investigation, submitted charge-sheet on 21.07.2004 against the appellant under section 302 of IPC. 4. After submission of charge sheet, the case was committed to the Court of Session after observing due committal procedure and when the learned Trial Court charged the appellant under section 302 of Indian Penal Code on 24.09.2004, since the appellant refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 5. During course of trial, in order to prove its case, the prosecution examined thirteen witnesses. 5. During course of trial, in order to prove its case, the prosecution examined thirteen witnesses. P.W.1 Sakila Murmu is the informant of the case and he is the brother-in-law of the deceased who stated that on hearing shout of the deceased “MARIDELA MARIDELA DAUDI ASA”, he rushed to the spot and found the deceased lying on the road in front of his house and the appellant was lifting him to a nearby Kusum tree and made him lie on a cot and he noticed bleeding injury on the person of the deceased. P.W.2 Kali Charan Murmu is a witness to the seizure of the blood stained earth and sample earth under seizure list marked as Ext.2. He is also a witness to the inquest over the dead body and proved inquest report Ext.3. P.W.3 Rama Chandra Bindhani did not support the prosecution case and he was declared hostile by the prosecution. P.W.4 Jena Murmu is a witness to the inquest and he did not support the prosecution case, for which he was declared hostile by the prosecution. P.W.5 Kartika Ch. Naik is a witness to the seizure of one green napkin, yellow napkin along with a command certificate under seizure list Ext.6. P.W.6 Niranjan Palei was the Gramarakshi attached to Udala Police Station who is a witness to the seizure of one green napkin, yellow napkin along with command certificate under seizure list Ext.6. P.W.7 Minakshi Sethy who was a constable attached to Udala Police Station is a witness to the seizure of a napkin produced by the appellant under seizure list Ext.7. P.W.8 Basanta Kumar Bhoi is a witness to the seizure of nail clippings and blood sample of the appellant collected at Udala Hospital which was seized under seizure list Ext.8. P.W.9 Sakila Marandi is a constable who stated about the seizure of blood sample and nail clippings bottle on being produced by the constable under seizure list Ext.8 and he is also a witness to the seizure of napkin of the appellant under seizure list Ext.6. P.W.10 Rasananda Rout is the Officer-in-Charge of Udala Police Station who on completion of investigation submitted charge-sheet against the appellant. P.W.11 Dr. Laxmikanta Pati was the Medical Officer who on police requisition conducted post-mortem examination over the dead body of the deceased on 13.04.2004 and proved the post mortem report under Ext.9. P.W.10 Rasananda Rout is the Officer-in-Charge of Udala Police Station who on completion of investigation submitted charge-sheet against the appellant. P.W.11 Dr. Laxmikanta Pati was the Medical Officer who on police requisition conducted post-mortem examination over the dead body of the deceased on 13.04.2004 and proved the post mortem report under Ext.9. According to his opinion, the cause of death of the deceased was due to cerebral haemorrhage. He also submitted his opinion on the query made by the Investigating Officer vide Ext.10. P.W.12 Smt. Salma Hansdah is the widow of the deceased who did not support the prosecution case and she was declared hostile by the prosecution. P.W.13 Narasingha Bhol is the Officer-in-Charge of Udala Police Station who is the Investigating Officer in the case. No witness was examined on behalf of the defence. The prosecution exhibited fifteen numbers of documents. Ext.1 was the plain paper FIR, Ext.2 is the seizure list, Ext.3 is the inquest report, Ext.4/2 is the seizure list, Ext.5 is the signature of P.W.4 on the statement of the accused recorded by police, Exts.6, 7 and 8 are the seizure lists, Ext.9 is the postmortem report, Ext.10 is the query report, Ext.11 is the spot map, Ext.12 is the dead body chalan, Ext.13 is the forwarding report and Ext.14 is the serological report. 6. Miss Anima Kumari Dei, learned counsel for the appellant challenging the impugned judgment and order of conviction submitted that it is a case of no evidence. There are neither any eye witnesses to the occurrence nor any clinching circumstantial evidence against the appellant. Even the seizure witnesses have turned hostile and the trial Court has convicted the appellant solely relying on the inadmissible evidence like the 161 Cr.P.C. statements of the witnesses who turned hostile during trial as well as relying on the facts narrated in the first information report and therefore the impugned judgment and order of conviction is liable be set aside. Mr. Purna Chandra Das and Mr. Tapas Kumar Praharaj, learned Additional Standing Counsels submitted conversely that there is no infirmity in the impugned judgment and from the materials available on record, it is clear that it is none else but the appellant who has committed the crime and therefore the appellant has been rightly convicted by the learned trial Court. 7. Purna Chandra Das and Mr. Tapas Kumar Praharaj, learned Additional Standing Counsels submitted conversely that there is no infirmity in the impugned judgment and from the materials available on record, it is clear that it is none else but the appellant who has committed the crime and therefore the appellant has been rightly convicted by the learned trial Court. 7. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.3, the prosecution has also relied upon the evidence of P.W.11 Dr. Laxmikanta Pati who conducted post-mortem examination over the cadaver of the deceased on 13.4.2004 on police requisition and noticed the following injuries:- External Injuries (i) A lacerated wound of size 5 cm x ¼” wide on the left side of head approximately 3 cm above the ear; (ii) A bruise of size 2” x 2” on left arm just below the shoulder joint lateral aspect; and a cut injury of ¼” to ½” on that bruise; (iii) A lacerated injury over left chest 3 cm below the left nipple of size 3 cm x 1 cm. and also bifurcated sharp edge injury of size 3 cm x 1 cm over the left chest 2 cm blow the nipple. Internal Injuries Scalp is intact except on left temporal bone which was fractured. The membrane was ruptured over left temporal region. The left temporal region was congested, full with clotted blood and left cerebral hemisphere on the temporal region was injured i.e. lacerated injury of size 3” x 3” with clotted blood. Thoracic rib was intact except left side 6th and 7th rib were fractured on front aspect. All other viscera were intact and normal. The doctor has specifically opined that the cause of death of the deceased was due to head injury (cerebral haemorrhage) and he has proved the post-mortem report Ext.9. The learned counsel for the appellant has not challenged the evidence of P.W.11 or the findings in the post mortem report Ext.9. The learned trial Court has also discussed about the nature of death of the deceased with reference to the evidence of doctor P.W.11 and post mortem report Ext.9 and came to hold that the death of the deceased was homicidal in nature. The learned trial Court has also discussed about the nature of death of the deceased with reference to the evidence of doctor P.W.11 and post mortem report Ext.9 and came to hold that the death of the deceased was homicidal in nature. After perusing the evidence on record, the post-mortem report as well as evidence of the doctor P.W.11, I am of the view that the prosecution has successfully proved that the deceased met with a homicidal death. 8. Now the question that crops up for consideration is whether the prosecution has proved beyond reasonable doubt that the appellant has committed the crime. P.W.1 who has lodged the First Information Report has no doubt mentioned about the oral dying declaration of the deceased as well as about the extra-judicial confession of the appellant before the co-villagers in the FIR but in Court he has stated that during mid-night, he heard shout of the deceased “MARIDELA MARIDELA DAUDI ASA” and on hearing such shout, he rushed to the spot and found the deceased lying near the road in front of his house and the appellant lifted him to the nearby tree and made him lie on a cot and he noticed bleeding injury on the head of the deceased. As per his version, he is a post-occurrence witness. He has not stated either about the dying declaration or extra-judicial confession as mentioned in the FIR during his evidence in Court. He has given the oral report before police but he states in Court that the contents of FIR (Ext.1) was not read over and explained to him. Law is well settled that a First Information Report is not a substantive piece of evidence but has a limited use. It can be used to corroborate the statement of the maker under section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. It cannot be used as evidence against the maker at the trial if he becomes an accused nor to corroborate or contradict other witnesses. It cannot be used as evidence against the maker at the trial if he becomes an accused nor to corroborate or contradict other witnesses. Since the informant (P.W.1) has not stated anything regarding dying declaration of the deceased in his evidence and there is also no corroborative evidence that the deceased made any statement after the arrival of the witnesses at the spot, the contents of the First Information Report cannot be taken into account for holding the culpability of the appellant in the commission of the crime. Similarly though the extra-judicial confession part has been mentioned in the FIR but neither the informant nor any other witness has stated about that aspect in Court and therefore such material also cannot be taken into consideration against the appellant. Going through the other evidence available on record, it is clear that there is no other direct evidence or circumstantial evidence available on record against the appellant. Even regarding the seizure of ‘bahungi’, no other witness except the I.O. has supported the prosecution case. No doubt, the investigating officer has stated about the seizure of ‘bahungi’ at the instance of the appellant and the doctor who conducted the post-mortem examination has given his opinion that the injury sustained by the deceased is possible by ‘bahungi’ and human blood was found on the ‘bahungi’ as per serological report Ext.15 but that circumstance itself is not sufficient to hold the appellant guilty of the crime. The learned trial Court has relied upon the 161 Cr.P.C. statements of the witnesses who have been declared hostile in Court by the prosecution and came to the finding that the appellant has committed the crime. The approach of the learned trial Court is not appreciated inasmuch as the settled position of law is that the statements recorded under section 161 Cr.P.C. are not substantive piece of evidence. In view of the proviso to sub-section (1) of section 162 Cr.P.C., the statements can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, I am of the view that the learned trial Court committed a manifest error of law in relying upon wholly inadmissible evidence. In view of the proviso to sub-section (1) of section 162 Cr.P.C., the statements can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, I am of the view that the learned trial Court committed a manifest error of law in relying upon wholly inadmissible evidence. Taking overall view of the materials available on record and in absence of either any direct evidence or any circumstantial evidence against the appellant, I am of the view that the impugned judgment and the order of conviction of the appellant under section 304 Part-II of Indian Penal Code cannot be sustained in the eye of law and accordingly the same is hereby set aside. The JCRLA is allowed. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.