Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 423 (ORI)

Trinath Sethi v. State of Orissa

2016-06-09

B.K.NAYAK, S.K.MISHRA

body2016
JUDGMENT B.K. NAYAK, J. - This appeal has been filed by the appellant from jail challenging the judgment dated 23.07.2004 passed by the learned Additional Sessions Judge, Bhanjanagar in S.C. No. 46 of 2002/S.C. No. 236 of 2006 GDC convicting the appellant under Section 303 of the I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for three months. 2.The prosecution case, in a nutshell, as described in the F.I.R. lodged by the wife of the deceased is that the deceased did not have any ;issue of his own and he had adopted Promod Kumar Sethi, grandson of one of his brothers, who was working as a clerk at Burla. The accused is the nephew of the deceased being son of his (deceased’s) another brother and he had become envious as Pramod was adopted by the deceased and he could not inherit the property of the deceased. On 08.05.2001 at about 3.00 A.M., accused came to the house of the deceased, woke him up and demanded Rs. 5,000/- and some gold ornaments and threatened that unless the same are given, he would kill him. Thereafter, in the morning at about 6.00 A.M., the accused again came and asked the informant the whereabouts of the deceased and when the informant said that she has no knowledge, the accused proceeded towards Sahanapalli Road with a tangia. Thereafter, the deceased slipped through his backdoor and went towards Kulado in order to call his grandson, Hadia Sethi. Then the accused chased the deceased and assaulted him near Benamundia Hill near Sahanapalli. On receipt of blows the deceased fell down and then the informant and some other villagers went to the spot. She found the deceased lying dead with cut injuries on his face, neck and on the right ear. It is also stated that after killing the deceased, accused escaped towards Kulado. On the narration of the informant the F.I.R. was reduced to writing by one Rajendra Kumar Sethi, on the basis of which, the police registered the case and took up investigation and on completion of same, submitted charge-sheet against the appellant. 3.The plea of defence is one of complete denial of occurrence and false implication. 4.In order to prove the case against the accused, the prosecution examined nine witnesses and proved some documents and material objects. 5.P.Ws. 3.The plea of defence is one of complete denial of occurrence and false implication. 4.In order to prove the case against the accused, the prosecution examined nine witnesses and proved some documents and material objects. 5.P.Ws. 1 and 2 did not support the prosecution case, P.W.3 (informant), who is the wife of the deceased is the sole an eye-witness. P.W. 4 is the scribe of the F.I.R. and also witness to seizure of blood stained earth, cloth and tangia. P.W.5 is the adopted son of the deceased, who was at Burla at the time of occurrence. P.W. 6 is the police constable, who accompanied the dead body to the hospital for post-mortem examination. P.W.7 is the doctor, who conducted autopsy over the dead body of the deceased. P.Ws. 8 and 9 are the Investigating Officers. 6.The trial Court on consideration of the evidence of the doctor and the post-mortem report as well as the nature of injuries sustained by the deceased came to the conclusion that the deceased suffered a homicidal death and learned counsel for the appellant does not challenge such finding. The only contention of the learned counsel for the appellant is that the whole case regarding proof of guilt of the appellant rests on the evidence of P.W.3, who claims to be an eye-witness to the occurrence and that P.W.3 being an interested witness and having admitted hostility towards the accused and she having given three different versions-first in the F.I.R., secondly in her examination-in-chief; and lastly in her cross-examination- her evidence suffers from grave inconsistencies and as such the same cannot be believed and that once the Court disbelieves the evidence of P.W.3 there is no other evidence to implicate the appellant in the crime. The learned State Counsel, on the other hand, submitted that the inconsistencies found in the evidence of P.W.3 are minor in nature and the trial Court has proceeded taking a broad view of the evidence and has rightly found the discrepancies and inconsistencies to be inconsequential. 7.It is therefore, necessary to minutely scrutinize the evidence of P.W. 3 in order to find out whether she is a trustworthy witness or not, keeping in view the fact that she is an interested and inimical witness. 7.It is therefore, necessary to minutely scrutinize the evidence of P.W. 3 in order to find out whether she is a trustworthy witness or not, keeping in view the fact that she is an interested and inimical witness. In her evidence in chief P.W. 3 has stated that the house of the accused is adjacent to her house and in the morning of the occurrence day, the accused came and demanded Rs. 5,000/- from her husband and while her husband was thinking and committing to give money, the accused gave a blow by means of tangia on the neck of her husband and ran away towards the Hill. It also appears from her evidence in –chief that her husband died at the spot itself and she went to lodge F.I.R. in the police station, which was scribed by another grandson, Rajendra Kumar Sethi, as per her instruction. The contents of the F.I.R. were read-over to her and she having found the same correct put her LTI. The entire evidence in-chief of P.W.3 goes to show that the whole occurrence took place in her house when the accused came and demanded Rs. 5,000/- from the deceased and while the deceased was committing to give the same, all of a sudden the accused dealt one blow by tangia and thereafter ran away. This evidence of P.W.3 is not compatible with the allegations made in the F.I.R., wherein it is stated that in the morning the accused searched for the deceased in the house and when the informant stated that she had no knowledge about the whereabouts of the deceased, the accused went away towards Sahanapali Road. It further appears from the F.I.R. that at that time, the deceased was inside the house and only after the accused left towards Sahanapalli Road, the deceased secretly got out through his backdoor and went to village-Kulado in order to call one of his grandsons and thereafter seeing the deceased proceeding, the accused chased him and dealt blows by means of tangia near Benamundai Hill at Sahanapalli where the dead body of the deceased was lying as found by the informant and other villagers later. It is thus quite clear that the evidence in –chief of P.W.3 varies in material particulars from the prosecution story depicted in the F.I.R. Hence either the contents of the F.I.R. are false or P.W. 3’s testimony in her evidence –in-chief is false. This is for the reason that in case we accept the evidence of P.W. 3 given in- chief on oath that only one tangia blow was dealt by the accused in the house of the deceased wherafter the accused ran away with the tangia and has never returned to give further blows to the deceased, the F.I.R. cannot be accepted as true. That apart, it was quite impractical and improbable that a person after receiving the tangia blow on his neck would leave the house and go to another village to call one of his relations. In the evidence in cross-examination, P.W.3 gives a complete different statement. In cross-examination, she states that the occurrence took place about one furlong away from her house and that the place of occurrence and her horse are intervened by a mango tope and paddy fields. Contrary to the prosecution case, she has further stated that the accused had demanded money from the deceased on the previous evening when the deceased had taken time by committing to pay money on the next morning. The cross-examination further reveals that while the deceased was going towards Kulado, P.W.3 was inside the house and she voluntarily followed him. For bringing out contradiction, the defence lawyer confronted her with her statement given to the I.O. asking that she did not state that she followed her husband but she denied the suggestion. But, the I.O., P.W. 8 stated in his evidence that P.W.3 in her statement before him did not state that she followed her husband while the latter was going to Kulado. This is a very serious contradiction, inasmuch as once we discard her evidence that she was following her husband and that she was at her house when the occurrence took place, then she cannot definitely be considered to be an eyewitness to the occurrence. This is more so because the informant (P.W.3) in her cross-examination admitted that place of occurrence is not visible from her house. The trial Court, however, very lightly brushed aside this contradiction holding that it is very insignificant and held that P.W. 3 saw the occurrence hear the Hill. This is more so because the informant (P.W.3) in her cross-examination admitted that place of occurrence is not visible from her house. The trial Court, however, very lightly brushed aside this contradiction holding that it is very insignificant and held that P.W. 3 saw the occurrence hear the Hill. It appears from the F.I.R. that P.W. 3 was not an occurrence witness, but in her evidence in chief she claimed to have seen a solitary blow given by the accused on the deceased in the house, and she has tried to develop the prosecution case in her cross-examination and tried to bring it in conformity with the story depicted in the F.I.R. The medical evidence reveals that there are three injures on vital parts of the deceased which also runs contrary to the evidence of P.W. 3 Admittedly, there was some animosity between the family of the deceased and the accused and P.W.3 being an interested witness and her evidence being full of discrepancies and contradiction we cannot place reliance in her evidence. 8.Since the evidence of P.W. 3 is discrepant and not trustworthy and there is no other clear, cogent and clinching evidence on record to connect the appellant with the death of the deceased, we allow the appeal and set aside the impugned judgment conviction and sentence passed by the trial Court against the appellant and acquit him of the charge under Section 302, I.P.C. He be set a liberty forthwith. SK. MISHRA, V.J. - While completely agreeing with the findings given by my learned brother, Hon’ble Shri Justice B.K. Nayak, I find it appropriate to add the following few lines before parting with the case. Admittedly the case of the prosecution wholly rests on the testimony of P.W.3, who is a solitary witness. Therefore, the principle that guided appreciation of evidence of solitary witness should be kept in mind. It has been laid down in plethora of decisions of the Supreme Court that the witnesses are generally of three categories on the point of ‘reliability.’ The first category of witnesses are ‘wholly unreliable’; and the third category of witnesses are neither ‘wholly reliable’ nor ‘unreliable’. It has been laid down in plethora of decisions of the Supreme Court that the witnesses are generally of three categories on the point of ‘reliability.’ The first category of witnesses are ‘wholly unreliable’; and the third category of witnesses are neither ‘wholly reliable’ nor ‘unreliable’. So far as first two categories of witnesses are concerned, the Courts are confronted with problem because the moment the Courts came to the conclusion that the witnesses are wholly reliable or wholly unreliable they may convict or may acquit on the testimony of a single witness. However the difficulty arises when a witness is neither fully reliable nor fully unreliable. In this case, P.W. 3 being a witness neither wholly reliable not wholly unreliable her evidence needs careful scrutiny. From another angle if it is seen the P.W. 3 is a solitary witness and there is no dispute regarding the principle of law that a solitary witness can be relied upon to convict a person if her evidence is found to be trustworthy. Section 134 of the Indian Evidence Act provides that no particular number of witnesses need be examined to prove a fact. However, while appreciating the evidence of a solitary witness the Court is required to scrutinize her evidence and find out if her evidence fit to the anvils of objective circumstances available in the case. Keeping in view the two principles which are applied to this cse, we agree on the point that the evidence of P.W. 3 has three manifest errors. Firstly, regarding the place of occurrence, whether it was at the house of the deceased or at a place away from the house. Secondly the I.O. recorded her statement under Section 161, Cr.P.C. and she did not state that she was following the deceased when the accused assaulted the deceased. Thirdly it is apparent that there are three major injuries on the body of the deceased whereas P.W. 3, the solitary witness, states that the accused gave a single blow by means of tangia on the neck of the deceased in her house and ran away towards the Hill. Keeping in view the aforesaid circumstances, I am completely agreeing with the findings of my learned brother that P.W. 3 should not be relied upon to uphold the conviction and sentence recorded by the Additional Sessions Judge, Bhanjanagar, Accordingly, I agree with the findings that the appeal be allowed. Keeping in view the aforesaid circumstances, I am completely agreeing with the findings of my learned brother that P.W. 3 should not be relied upon to uphold the conviction and sentence recorded by the Additional Sessions Judge, Bhanjanagar, Accordingly, I agree with the findings that the appeal be allowed. Appeal allowed.