Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1053 (ORI)

Dilip Kumar Pradhan v. State of Orissa

2017-09-14

D.DASH

body2017
JUDGMENT : 1. The appellant from inside the jail has called in question the judgment of conviction and order of sentence dated 27.05.2014 passed by the learned Addl. Sessions Judge, Jajpur in C.T. Case No. 579 of 2013, convicting him for commission of offence under Section 304-I IPC and directing him to undergo imprisonment for a period of ten years with fine of Rs.20,000/-i.d. to undergo rigorous imprisonment for a period of two years. 2. Prosecution case is that the appellant had married the deceased about 14 years prior to the incident and they have been blessed with three children. It is stated that after about 8 to 9 years of marriage, the appellant for some reason started ill-treating the deceased and was regularly assaulting her. Fifteen days prior to the incident, the deceased had been assaulted by the appellant and for that reason, she had left her matrimonial home for some time and take shelter in her parent’s house. It is the further case of the prosecution that the parents of the deceased had then left her in the house of the appellant by settling the dispute in presence of the village gentries. After few days on one night, the appellant assaulted the deceased by means of a split wood on her head and pressed her neck with her saree which resulted her death. The sister of the deceased and others having received that information when went to the house of the appellant, they found Mamata lying dead. She then lodged the report at Binjharpur Police Station which has led to the registration of the P.S. Case No. 114 of 2013. Police after investigation submitted the charge sheet placing the appellant to face the trial in the court of law for commission of offence under sections 498-A/302 IPC. Cognizance of the above offences being taken and the case having been committed to the court of Sessions, it finally came to be tried by the learned Additional Sessions judge, Jajpur. The appellant has taken the plea of complete denial. 3. The trial court upon framing the charge, during trial has examined 15 witnesses produced from the side of the prosecution. Besides leading the above oral evidence, the prosecution has also proved the inquest report Ext. 1, FIR, Ext. 2, Post Mortem report Ext. 7, the report of the Chemical Examiner Ext. 3. The trial court upon framing the charge, during trial has examined 15 witnesses produced from the side of the prosecution. Besides leading the above oral evidence, the prosecution has also proved the inquest report Ext. 1, FIR, Ext. 2, Post Mortem report Ext. 7, the report of the Chemical Examiner Ext. 12 and other documents such as seizure list, forwarding report etc. The trial court having formulated the point for determination, upon scrutiny of evidence let in by the prosecution has found that the allegations relating to commission of offence under section 498-A IPC against the appellant have not been established and thus he has been acquitted of the said charge. But then having gone to analyse the evidence as regards the incident of that night finally leading to the death of Mamata, the wife of the appellant, on extensive discussion of evidence both oral and documentary, finding has been returned that the death of the deceased had taken place on account of the blows being given by the appellant on her head by means of that split wood seized in the case. In view of said finding, on the basis of evidence available on record that the incident had arisen from out of a quarrel between the appellant and the deceased in relation to payment of wages and since the appellant having lost self control had the dealt blows, he has been found to have committed offence of culpable homicide not amounting to murder punishable under section 304-I IPC and accordingly has been convicted and sentenced as aforesaid. 4. Mr. Biswajit Nayak, learned counsel appearing on behalf of the appellant submits that the solitary evidence of the child witness i.e. P.W. 4 ought not to have been believed by the trial court in view of the suspicious features appearing in her evidence rendering the same as unworthy of credence when the question of her being tutored is also not overruled. He has taken the pain of placing the deposition of said witness in great detail. In course of hearing, it is also his submission that when the evidence of P.W. 4 is excluded from consideration, other evidence on record cannot lead to a finding that it is the appellant who is the author of the crime being the assailant, although there is no denial of the fact that the deceased met a homicidal death. In course of hearing, it is also his submission that when the evidence of P.W. 4 is excluded from consideration, other evidence on record cannot lead to a finding that it is the appellant who is the author of the crime being the assailant, although there is no denial of the fact that the deceased met a homicidal death. He further submits that accepting the evidence on record as regards the role of the appellant, in the given facts and circumstances, the appellant is liable to be convicted for offence under section 304-II IPC and accordingly the order of conviction is to be altered and consequentially the sentence would stand reduced. 5. Mr. Sidhartha Sankar Mohapatra, learned Addl. Standing Counsel submits all in support of finding recorded by the trial court fastening the guilt upon the appellant for commission of offence under section 304-I IPC. According to him, the evidence of P.W. 4 is wholly trustworthy and she has deposed in a natural manner when her presence there at the scene of crime is quite obvious and stand established and is quite. He further submits that in view of the evidence on record the trial court has rightly recorded the conviction for offence under section 304-I IPC. 6. In order to address the rival contention, it is felt necessary to go through the evidence of the prosecution witnesses which are relevant for the purpose of finding out the complicity of the appellant since the nature death of the deceased as homicidal in view of evidence of P.W.4 and other witnesses and more importantly the evidence of the doctor i.e. P.W.14 and his clear report on t hat score i.e. Ext. 7 has been established. It is the evidence of P.W. 3 that on 6.6.2013, a telephone call was received regarding the death of Mamata. So she with others including the informant came to the house of the appellant and found the dead body of the deceased to be lying in a pool of blood being kept on a bed sheet with the broken wooden pieces stained with blood lying nearby. It is her evidence that the son and daughter of the deceased present there told that their mother (deceased) had been assaulted by their father (appellant) in the night and was done to death. P.W. 1 is the sister-in law of the appellant who had accompanied P.W. 3. It is her evidence that the son and daughter of the deceased present there told that their mother (deceased) had been assaulted by their father (appellant) in the night and was done to death. P.W. 1 is the sister-in law of the appellant who had accompanied P.W. 3. Her evidence also runs in same vain. Deceased is the sister of P.W.3’s husband whereas P.W.1 is the sister of the deceased. P.W. 2, the brother-in-law of the deceased has also deposed in same vain as like P.Ws. 1 and 3. They being not the witnesses to the occurrence, the star witness for the prosecution in the case is P.W. 4 who is none other than the minor the daughter of the appellant and deceased. At the time of her examination in court she was seven years old. 7. The principle of law in so far as the appreciation of evidence of a child witness is concerned has been declared by the Apex Court in case of State of U.P. vrs. Krishna Master & others; AIR 2010 SC 3071 that there is no principle of law that is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. Also in case of State of M.P. vrs. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. Also in case of State of M.P. vrs. Ramesh & another; (2011) 5 SCR-1, the Apex Court taking note of plethora of earlier decisions have sumarized the law on the issue to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. I may venture to add here that the memory of a child in most of the cases remains sharp and once he has seen the occurrence particularly involving the persons standing under this degree of relationship, as in the instant case, it may be so that he would have the tendency to suppress the role of the offender but ordinarily not to implicate. 8. This P.W. 4, is the daughter of the appellant and deceased, at the time of her examination in court was seven years old. The trial court has found her to be competent to depose with required understanding. It is her evidence that in that night her father, the appellant; mother, the deceased, elder brother Sagar, younger brother Sanjay and she herself were sleeping in the bed room of the house. She has stated that on hearing the cry of her mother, when she woke up, she found her mother to have sustained bleeding injury on her head when her father, the appellant gagged her mother’s mouth by putting cloth and by means of a piece of cloth he pressed her neck for which her mother profusely bled and died. She has stated that on hearing the cry of her mother, when she woke up, she found her mother to have sustained bleeding injury on her head when her father, the appellant gagged her mother’s mouth by putting cloth and by means of a piece of cloth he pressed her neck for which her mother profusely bled and died. She has further stated that her father, the appellant tried to wipe out the blood with that cloth and after moving hither and thither for a while, finally left. The evidence on record go to show that the appellant was no more seen at the place till his arrest there at Howrah in the State of West Bengal on 19.6.2013. This witness P.W.4 has denied the suggestion given by the defence that she had been tutored to say about the authorship of the injuries on the head of her mother by attributing the same to her father. Despite cross-examination no such material is seen to have come out to disbelieve the version of this P.W.4. Her presence at the scene of occurrence is but natural and no such evidence is forthcoming to cast any doubt on that aspect. The defence is not denying the fact that at the relevant night in the room, the appellant, the deceased and their three children were sleeping together. No explanation is tendered from the side of the appellant so as to infer the role of any third hand in the matter much less to suggest even any remote possibility in that regard. On close scrutiny of the evidence of P.W. 4, it is found to be quite convincing when nothing has been brought out from her lips to suggest the factor of tutoring to be having any play. Evidence of P.W.4 appears to be natural and free from any such material discrepancy. The split wood has been seized from the place of occurrence in course of investigation and that too immediately on arrival of police on receipt of information about the death and consequential registration of the case. The post mortem report shows that the doctor had noticed deep lacerated injury on the left side of forehead of the deceased being vertically placed and the skull had been fractured. He has given the size of injury to be 4” X 2” and its shape as irregular. The post mortem report shows that the doctor had noticed deep lacerated injury on the left side of forehead of the deceased being vertically placed and the skull had been fractured. He has given the size of injury to be 4” X 2” and its shape as irregular. The doctor has found sub-scalpel haematoma on the frontal lobe of the brain which was severely contused and lacerated and there was impra cerebral haemorrhage. It is his specific evidence that such injuries being ante mortem in nature are possible by the hard and blunt weapon and also by means of the wooden plank which had been broken into two pieces and had been examined by him for giving the opinion in the affirmative. In course of post mortem examination, he has found another injury on the upper part of the chest of the deceased for which he has deposed that these two injuries are lacerated resulting from two blows. One criticism to the evidence is that when P.W. 4 has stated about the pressing of the neck of the deceased by the appellant, no such ligature mark on the neck of deceased during post mortem examination has been found. This comment is found to have no such base when the doctor has found one fracture injury on the base of the neck just on the upper part of the chest and that rather supports the evidence of P.W.4 as already stated. The evidence of P.W. 4 cannot be thrown aside when absolutely no such reason surfaces as to why she would falsely implicate her own father. The other criticism on the evidence of P.W.4 is that in her statement recorded under section 164 of the Code of Criminal Procedure, she had stated that when she woke up in the morning, she found her mother with bleeding injury. First of all this discrepancy has not been proved in accordance with law and secondly, the criticism is found to have been without reading the deposition in entirety. From the chemical examination report, Ext. 12, it is seen the blood group of the blood which was collected from the floor where the deadbody lying is matching with the blood group of the blood collected from that wooden plank. In view of aforesaid, the evidence of P.W.4 appears to be natural and is found to be having an impress of truth which is wholly reliable. 12, it is seen the blood group of the blood which was collected from the floor where the deadbody lying is matching with the blood group of the blood collected from that wooden plank. In view of aforesaid, the evidence of P.W.4 appears to be natural and is found to be having an impress of truth which is wholly reliable. 9. This now takes me to consider the alternative submission of learned counsel for the appellant as regards conviction of the appellant for offence under section 304-II IPC as has been urged. The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. 10. It is found from evidence on record that the appellant and the deceased were picking up quarrel for quite some time on account of some family matter. The parties hail from lower strata of the society living on wages. Many a time villagers have intervened and settled the dispute. P.W.10 has stated about one such extreme incident when the appellant had left the village for few days and returned about a week prior to the incident. It has been the evidence of P.W.10 that the appellant for some reason or other best known to him was suspicious about the movement and activity of the deceased. The evidence of P.W. 4 is that the appellant by means of a wooden piece gave a stroke on her mother’s head. She is not stating that successive blows had been given on the head. The evidence of the doctor P.W.14 is that the head injury is the result of solitary blow and by another blow the injury on the chest has been caused. P.W. 4 has stated that the appellant after dealing the blow tried to wipe out the blood at the spot and then moving here and there for some time, fled away. The incident has taken place in the room where five persons were sleeping. So the evidence discloses that the incident had taken at the spur of the moment and the blow on the head has proved to be fatal. The appellant has done so by means of a split wood commonly available in every household and is not ordinarily taken as a lethal weapon. So the evidence discloses that the incident had taken at the spur of the moment and the blow on the head has proved to be fatal. The appellant has done so by means of a split wood commonly available in every household and is not ordinarily taken as a lethal weapon. There was no intention or premeditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature 11. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without pre-mediation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted. Thus I find force with the above submission of learned counsel for the appellant as regards alternation of the order of conviction and accordingly, modification of sentence. On consideration of the entire evidence including the medical evidence and viewing these cumulatively, I find that the appellant ought to have been convicted for the offence under section 304-II IPC instead of under section 304-I IPC. Accordingly, the order of conviction of the appellant stands altered to one under section 304-II IPC. Keeping in view, all the relevant factors, in the facts and circumstances of the case, the appellant is sentenced to suffer rigorous imprisonment for a period of seven years. The fine as imposed by the trial court is maintained. The appellant would be entitled to get the benefit of set-off under section 428 of the Code of Criminal Procedure. The appeal is partly allowed in the aforementioned terms and stands disposed of. LCR received be sent back forthwith along with a copy of the judgment.