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2016 DIGILAW 91 (ORI)

Budhu Kisan v. State of Orissa

2016-02-01

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The appellant Budhu Kisan faced trial in the Court of learned Adhoc Additional Sessions Judge, Fast Track Court, Rourkela in S.T. Case No. 161/29 of 2003 for the offence punishable under section 302 of the Indian Penal Code for committing murder of Tatia Minz @ Kisan (hereafter ‘the deceased’) on 08.07.2002 at about 7.00 p.m. at Beldihi Khanda Pada under B. Tarang Police Station in the district of Sundargarh. The learned trial Court vide impugned judgment and order dated 08.01.2004 acquitted the appellant of the charge under section 302 of the Indian Penal Code. However, the appellant was found to be guilty of the offence punishable under section 304 Part-II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.2,000/- (rupees two thousand), in default of payment of fine, to undergo further rigorous imprisonment for a period of three months more. 2. The prosecution case as per the First Information Report lodged by Suren Kishan (P.W.1) on 08.07.2002 before the Inspector-in-Charge, B. Tarang Police Station is that the deceased was his father-in-law and on 08.07.2002 at about 7.30 p.m. while the informant was returning home after taking bath in the river, he found congregation near the house of one co-villager namely Chaitan. Out of anxiety, the informant went there and found that the deceased Tatia Minz @ Kisan was lying on the road with injury on his chest. The sister-in-law of the informant namely, Khairi Kisan (P.W.2), who is also the daughter of the deceased told him that the appellant Budhu Kissan assaulted the deceased by means of a sword. P.W.2 happened to be the daughter-in-law of the appellant and she had married the son of the appellant namely Mangal Kishan. There was matrimonial dispute between the parties, for which P.W.2 left her matrimonial home since six to seven months prior to the date of occurrence. The husband of P.W.2 met with an accident and died and since that day, the appellant used to come to the house of the deceased and was giving threat to kill him. On the date of occurrence at about 7.00 p.m. while the deceased, his wife and P.W.2 were there in the house, the appellant entered inside the house and pierced a sword on the chest of the deceased. 3. On the date of occurrence at about 7.00 p.m. while the deceased, his wife and P.W.2 were there in the house, the appellant entered inside the house and pierced a sword on the chest of the deceased. 3. The Inspector-in-Charge of B. Tarang Police Station got information about the incident of murder and accordingly he along with P.W.14 Pradeep Kumar Pradhan, S.I. of Police, B. Tarang Police Station proceeded at the spot, P.W.1 gave oral information about the incident to the Inspector-in-Charge which was reduced into writing and treated as First Information Report and on the basis of such written report, B. Tarang P.S. Case No.109 dated 08.07.2002 was registered under sections 448 and 307 of Indian Penal Code and the I.I.C., B. Tarang Police Station directed P.W.14 to take up investigation of the case. P.W.14 examined the informant, the witnesses, visited the spot and sent the injured to R.G. Hospital, Rourkela for examination. He seized one sword from inner verandah of the house of the appellant under seizure list Ext.5. He also seized blood stained earth and sample earth in presence of the witnesses under seizure list Ext.6. On 09.07.2002 the appellant was taken into custody and forwarded to the Court. The blood stained wearing apparels of the injured were seized under seizure list Ext.11/1. The I.O. sent requisition to the Medical Officer, R.G. Hospital for recording of dying declaration of the injured. On 14.07.2002, P.W.14 got VHF message from Sector-19 Police Station that the injured Tatia Minz @ Kisan expired in Ispat General Hospital and thereafter the case turned to one under section 302 of Indian Penal Code. P.W.14 conducted the inquest over the dead body on 15.07.2002 in presence of the witnesses and prepared inquest report Ext.12. He sent the dead body for post-mortem examination to S.D. Hospital, Panposh under police requisition. The I.O. seized the command certificate along with nail clippings and blood sample of the deceased in presence of witnesses under seizure list Ext.2. On 16.07.2002 P.W.14 received the dying declaration report from Dr. S.C. Kabisapathy, Medical Officer, R.G. Hospital, Rourkela and also received the post mortem report. On 16.08.2002, P.W.14 handed over the charge of investigation to Inspector-in-Charge of B. Tarang Police Station. On 16.07.2002 P.W.14 received the dying declaration report from Dr. S.C. Kabisapathy, Medical Officer, R.G. Hospital, Rourkela and also received the post mortem report. On 16.08.2002, P.W.14 handed over the charge of investigation to Inspector-in-Charge of B. Tarang Police Station. P.W.15 Nihar Ranjan Das who was the Inspector-in-Charge, B. Taranga Police Station took up investigation of the case on 8.10.2002 and he sent requisition to the Medical Officer to examine the sword to give opinion regarding possibility of injuries detected on the dead body of the deceased by such weapon. P.W.15 seized the bed head ticket of the deceased from Ispat General Hospital, Rourkela and prepared a seizure list marked as Ext.15. On 22.10.2002, P.W.15 seized the bed head ticket of the deceased Tatia Minz from R.G. Hospital, Rourkela under seizure list Ext.16. The appellant who was in judicial custody was taken on remand by P.W.15 after making necessary prayer before the learned S.D.J.M., Panposh and the statement of the appellant was recorded under section 27 of the Evidence Act. Ext.3 is the statement of the appellant and on the basis of such statement, the I.O. recovered one lungi kept inside a bush behind the back of his house which was seized under seizure list Ext.4. The Investigating Officer moved the learned S.D.J.M., Panposh to send the seized exhibits for chemical examination to State Forensic Science Laboratory and after completion of investigation, charge sheet was submitted under section 302 of Indian Penal Code on 31.10.2002. 4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure and the charge was framed by the Trial Court on 12th September, 2003 for offence punishable under section 302 of the Indian Penal Code 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. 5. During course of trial, in order to prove its case, the prosecution examined fifteen witnesses. P.W.1 Suren Kisan is the informant in the case and he is the son-in-law of the deceased Tatia Kisan. He stated to have heard about the incident from P.W.2 Khairi Kisan and found the appellant running away and the deceased was lying with injuries on the road near the house of Chaitan Kisan. P.W.1 Suren Kisan is the informant in the case and he is the son-in-law of the deceased Tatia Kisan. He stated to have heard about the incident from P.W.2 Khairi Kisan and found the appellant running away and the deceased was lying with injuries on the road near the house of Chaitan Kisan. He further stated that P.W.7 Sunil Kisan caught hold of the appellant while he was escaping from the spot. P.W. 2 Khairi Kissan is the daughter-in-law of the appellant and daughter of the deceased Tatia Minz @ Kissan and she is an eye witness to the occurrence who stated that the appellant came with a sword during the evening hours on the date of occurrence and stabbed the deceased on his chest while the deceased was taking meal and after stabbing while the appellant was escaping, P.W.7 Sunil Kissan and others caught hold of the deceased. P.W.3 Chaitan Kisan stated about the dying declaration made by the deceased immediately after the occurrence. P.W.4 Prakash Roy was the Home guard who stated about the seizure of nail clippings and sample blood of the deceased with command certificate by the Investigating Officer under seizure list Ext.2 on being produced by escorting constable Suleman Tete. P.W.5 Sega Kisan also stated about the dying declaration made by the deceased at the spot. P.W.6 Pratap Sekhar Mallick stated about the leading to discovery of a blood stained lungi from the back side of the appellant at the instance of the appellant under seizure list Ext.4. He also proved the statement of the appellant recorded under section 27 of the Evidence Act vide Ext.3. He further stated about the seizure of a blood stained sword kept on the verandah of the house of the appellant under seizure list Ext.5 and also the seizure of blood stained earth under seizure list Ext.6. P.W.7 Sunil Kissan detained the appellant after the occurrence while he was escaping from the spot. P.W.8 Dr. Basant Kumar Puhan was attached to S.D. Hospital as Medical Officer and on police requisition, he examined the sword produced by the police and gave his opinion that the injuries detected on the dead body could be possible by the said weapon. He proved his report marked as Ext.7. P.W.8 Dr. Basant Kumar Puhan was attached to S.D. Hospital as Medical Officer and on police requisition, he examined the sword produced by the police and gave his opinion that the injuries detected on the dead body could be possible by the said weapon. He proved his report marked as Ext.7. P.W.9 Rohita Kumar Nayak stated about the seizure of sample blood by the Investigating Officer on being produced by escorting constable Sunil Kumar Nag under seizure list Ext.8. P.W.10 Dr. Dilip Kumar Sahu who was attached to Rourkela Government Hospital as Gynaecologist proved the injury report of the appellant vide Ext.9. He also examined the deceased on 08.07.2002 on police requisition and submitted his report under Ext.10. P.W.11 Tasid Kissan did not support the prosecution case for which he was declared hostile. P.W.12 Saraswati Kissan stated about the dying declaration made by the deceased on the date of occurrence implicating the appellant. He further stated about the matrimonial dispute between the parties. P.W.13 Bahada Kissan did not support the prosecution case for which he was declared hostile. P.W.14 Pradeep Kumar Pradhan and P.W.15 Nihar Ranjan Das are the Investigating Officers. No witness was examined on behalf of the defence. The prosecution exhibited sixteen documents. Exts.1 is the written report, Ext.2 is the seizure list, Ext.3 is the statement of the appellant, Exts. 4 to 6 are the seizure lists, Ext. 7 is the opinion of the doctor, Ext.8 is the seizure list, Ext.9 is the Medical Examination Report, Ext.10 is the examination report of the injured, Ext. 11/1 is the seizure list, Ext.12 is the inquest report, Ext.13 is the dead body challan, Ext.14 is the requisition for examination of weapon of offence, Ext.15 is the seizure list and Ext.17 is the post mortem report. 6. The defence plea of the appellant was one of denial. 7. The learned Trial Court held that P.W.2 who happens to be the daughter of the deceased was most natural and competent person to enlighten regarding the actual incident that took place on the alleged date of incident and her evidence has remained unshaken and gets corroboration from the evidence of P.W.3, P.W.5 and P.W.12. The learned Trial Court further held that the possibility of false implication of father-in-law by P.W.2 is completely ruled out. The learned Trial Court further held that the possibility of false implication of father-in-law by P.W.2 is completely ruled out. Considering the eye witness account, the evidence of post-occurrence witnesses and the medical evidence, the Trial Court held that the prosecution allegation of assault to the deceased Tatia Minz by the appellant Budhu Kissan with a sword which resulted in his death is established by cogent evidence. However, the learned Trial Court taking into account the fact that only a single blow had been inflicted on the deceased and there was no pre-meditation or pre-plan on the part of the appellant to commit murder of the deceased and taking into account the fact that the deceased died seven days after the incident, found the appellant guilty under section 304 Part-II of Indian Penal Code. 8. Mr. Laxmi Narayan Patel, learned counsel was engaged as amicus curiae on behalf of the appellant was supplied with the paper book and he placed the evidence on record and contended that the evidence of P.W.2 who is the solitary eye witness to the occurrence is not clear, clinching and trustworthy and therefore absolute reliance cannot be placed on her testimony. He further contended that the motive part has not been clearly established in this case and even though the Investigating Officer has stated that he has received the dying declaration report from Dr. S.C. Kabisapathy, Medical Officer, R.G. Hospital, Rourkela but neither such report has been proved in this case nor the concerned doctor has been examined. The learned counsel for the petitioner further submitted that in view of the available materials on record, the impugned judgment and order of conviction cannot be sustained in the eye of law. Mr. Janmejaya Katikia, learned Additional Government Advocate, on the other hand contended that not only the evidence of the sole eye witnesses to the occurrence is clear, cogent, clinching, trustworthy and above board but her evidence is getting corroboration from the other materials available on record like dying declaration which has been stated by number of witnesses and also from the conduct of the appellant in trying to escape from the spot after committing the crime. He further stated that the seizure of blood stained lungi recovered at the instance of the appellant is an additional factor, which goes against the appellant and therefore the Trial Court was justified in convicting the appellant. 9. He further stated that the seizure of blood stained lungi recovered at the instance of the appellant is an additional factor, which goes against the appellant and therefore the Trial Court was justified in convicting the appellant. 9. Adverting over the nature and cause of death of the deceased, it is found that P.W.10 Dr. Dilip Kumar Sahu examined the deceased while he was in an injured condition on police requisition on 08.07.2002 and he noticed a stab injury over anterior chest wall on left side just lateral to the nipple line of size 1 ½” x ½” x 1” and found bleeding from the wound and he proved his report as Ext.10. The doctor who has conducted the post mortem examination, has not been examined during trial but the postmortem report has been marked on admission as Ext.17 and to that effect the learned State defence counsel appearing for the appellant in the Trial Court had filed a memo that the accused has no objection, if the post mortem report is admitted and marked on admission and accordingly the learned Trial Court accepted the memo filed by the learned State defence counsel marked as Ext.17. On perusal of the post mortem report, it appears that the deceased had sustained one stitched penetrating wound on sternum adjacent to the 4th rib on the left side which was opined to be ante mortem in nature and he has also sustained stitched wound between the right thumb and first finger of size 3 cm x 1 cm x 2 cm which was also opined in ante mortem in nature. The doctor conducting post mortem examination has opined that the cause of death of the deceased was due to the injury to the vital organ like the heart (syncope) and haemorrhage. Even though the doctor conducting post mortem has not been examined but since in view of the memo filed by the learned counsel appearing for the appellant before the Trial Court, the post mortem has been marked on admission, the learned amicus curiae fairly submitted that he has nothing to controvert to the findings in Ext.17. The learned Trial Court found no infirmity in Ext.17. The learned Trial Court found no infirmity in Ext.17. In view of the medical evidence under Ext.17, it is clear that the deceased died a homicidal death and the cause of death of the deceased was on account of injury to the vital organ like the heart (syncope) and haemorrhage. 10. Coming to the evidence of the eye witness (P.W.2), she has stated that the deceased was her father and the appellant was her father-in-law and on the date of occurrence in the evening time, while her father was taking meal in the house, the appellant came with a sword and stabbed her father on his chest and after stabbing, while the appellant was escaping, P.W.7 and others caught hold to the appellant. She has further stated that subsequently the police came getting information of the incident and took her father to the hospital for treatment. Except giving suggestion that the appellant had not stabbed the deceased, nothing else has been brought out in the cross-examination to disbelieve the testimony of P.W.2. Law is well settled that it is the quality of the evidence and not the quantity of evidence which is material and quantity of evidence was never considered to be a test for deciding a criminal trial and the emphasis of the Courts is always on quantity of evidence which is based on the sanctity attached to the statutory provision in section 134 of the Evidence Act. An order of conviction can be passed on the basis of the testimony of solitary witness to the occurrence provided that such evidence must be clear, cogent, trustworthy and above board. On going through the evidence of the solitary eye witness P.W.2, I find that she is a related to the deceased but she cannot be said to be a false witness. Her evidence has remained unshaken in the cross-examination and does not suffer from any infirmity and therefore, I am of the view that the evidence of P.W.2 itself is sufficient to convict the appellant. Apart from the evidence of P.W.2, it appears that P.W.3 has stated about the dying declaration of the deceased and he has categorically stated that on hearing hullah of the deceased “Mote Banchao Banchao Budhu Kisan Mari Deuchhi”, he came near him where the deceased disclosed on his enquiry that while he was taking meal, the appellant assaulted him by sword. P.W.5 Sega Kissan has stated that the deceased disclosed before him that he was assaulted by sword on his chest by the appellant. P.W.12 Saraswati Kissan has also stated that the deceased came running to her house and said that he was assaulted by the appellant by sword. The dying declaration inspires full confidence and possibility of either tutoring or prompting is ruled out. Thus the dying declaration made by the deceased before these independent witnesses that the appellant assaulted him appears to be true, voluntary and not influenced by any extraneous consideration and it corroborates the evidence of the eye witness P.W.2. 11. The appellant was trying to escape from the spot and he was caught hold by P.W.7 and others immediately after the occurrence which has been stated by none else than P.W.7 and also by P.Ws.1 and 2. Conduct of escaping from the spot appears to be the conduct of guilty person which is relevant under section 8 of the Evidence Act. In addition to such evidence on record, the Investigating Officer P.W.15 has stated about the seizure of one lungi at the instance of the appellant which was seized under seizure list Ext.4 as per the statement of the appellant vide Ext.3 recorded under section 27 of the Evidence Act. P.W. 14, the I.O. seized one sword from inner verandah of the house of the appellant and the doctor P.W.8 on examining the weapon of offence stated that the injuries detected on the dead body could be possible by the said weapon. 12. In view of the statement of the eye witness P.W.2, dying declaration of the deceased before number of witnesses, apprehension of the appellant immediately after the occurrence while trying to escape from the spot and other surrounding circumstances, it is clear that the prosecution has successfully established that it is the appellant who has assaulted the deceased on the date of occurrence by means of a sword as a result of which the deceased succumbed to the injuries. 13. 13. Coming to the findings of the learned Trial Court that the appellant has dealt a single blow on the vital part of the body and he had not attempted to give further blow to the deceased even though he had opportunity to do so and in absence of any material like premeditation or preplan on the part of the appellant to commit the murder and also the fact that the deceased died on 14.07.2002 while undergoing treatment which is about six days after the occurrence, I am of the view that the Trial Court has rightly convicted the appellant under section 304 Part-II of the Indian Penal Code. The sentence that has been imposed by the learned Trial Court cannot be said to be excessive and therefore the impugned judgment and order of conviction of the appellant under section 304 Part-II of Indian Penal Code and the sentence passed thereunder is hereby confirmed. 14. It appears that the appellant was taken into custody on 09.07.2002 and he was in custody till the conclusion of the trial and thereafter also he has not been released on bail during pendency of the appeal. Therefore, he has already undergone the sentence imposed by the learned Trial Court. The appellant be released forthwith from jail custody if he has not yet been released, if his detention is not required in any other case. Accordingly the JCRLA being devoid of merit stands dismissed.