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2017 DIGILAW 1075 (ORI)

Kanhu Mohakud @ Gopal v. State of Odisha

2017-09-16

K.R.MOHAPATRA, S.K.MISHRA

body2017
JUDGMENT S.K. MISHRA, J. - This appeal is directed against the judgment and order of conviction recorded by learned Addl. Sessions Judge, Rairangpur, in S.T. Case No.21/98 of 2003, wherein as per judgment dated 19.04.2004, the appellant has been convicted for commission of offence under Section 302 of the Indian Penal Code and has been sentenced for imprisonment for life and to pay fine of Rs.500/-. 2. Bereft of unnecessary details, case of the prosecution that evolved during trial is as follows : The informant (PW.1) who is the husband of the deceased was grazing the cattle of the villagers at day time and was watching Badampahad College during night time. Before about one month of the incident, the accused was grazing cattle in the College compound where there was plantation. The informant has asked him not to graze cattle there, but the accused had quarrelled with him. On 06.11.2002 at about 5.30 PM, the accused came near the house of the informant with an axe and quarrelled with him. The wife of the informant came out from the house and intervened. At this, the accused dealt one blow by the axe on her right side neck as a result of which the deceased fell down on the ground. Out of fear, the informant went to the house of Naren Naik (PW.4) a neighbour and while they were coming to the spot, the accused was aiming an axe blow to him but Naren Naik snatched away the axe from him and threw it on the ground and thereafter the accused left the spot. The informant and Naren Naik saw that the deceased was lying on the ground with heavy bleeding from her neck and she was in serious dying condition. The informant immediately called his daughter who was staying in a nearby house and then while they were arranging a vehicle to shift her to the hospital, she died at the spot. Thereafter, the informant and his daughter went to Badampahad Police Station and lodged an oral report at about 6.45 PM of the same day which was reduced into writing by the O.I.C. and the investigation commenced. Thereafter, the informant and his daughter went to Badampahad Police Station and lodged an oral report at about 6.45 PM of the same day which was reduced into writing by the O.I.C. and the investigation commenced. During investigation, the IO had seized the sample search and blood stained earth from the spot, the weapon of offence, i.e., axe on production by the Complainant, the wearing apparels of the accused and the deceased and had sent all those articles for chemical examination and the C.E. report reveals blood stain of human “A” group in the wearing apparels of the deceased and the wearing apparels of the accused and also human blood was detected in the blood stained earth collected from the spot and the weapon of offence and hence after due investigation accused has been charged sheeted for which he is facing the trial. 3. The plea of the accused is of complete denial of the prosecution allegation. 4. In order to prove its case, prosecution examined as many as nine witnesses. PW 1 happens to be the husband of the deceased. He is the informant of the case and the most important witness for the prosecution. PW 2 is his daughter and PW 7 is his son in-law. These two speak about the immediate reaction of PW 1 after murder of the deceased. PW 4 is also a post-occurrence witness, who reached the spot just after the incident along with PW 1, but he has not supported case of the prosecution and was cross-examined under Section 154 of the Evidence Act, 1872 (for short, “Evidence Act”). PW 3 is a post-occurrence witness; PW 5 is the Medical Officer who has conducted post-mortem examination; PW 6 is the Police Constable and a witness to the seizure; PW 8 is a witness to the inquest and PW 9 is the Investigating Officer. 5. The testimony of PW 1 reveals that during Kali Puja of 2002 at about 5.00 PM, while he was taking rest in his front courtyard, the accused came there being armed with an axe and challenged him to kill and a quarrel ensured. Hearing the quarrel, his wife came there. Out of fear, he was running away, but immediately returned back to the courtyard and found his wife falling on the ground having bleeding cut injury on her neck. Seeing him, the accused chased him holding the axe. Hearing the quarrel, his wife came there. Out of fear, he was running away, but immediately returned back to the courtyard and found his wife falling on the ground having bleeding cut injury on her neck. Seeing him, the accused chased him holding the axe. He rushed to the house of Naren Naik (PW 4) and while he was coming with him, the accused aimed the axe blow to him, but PW 4 caught hold him and snatched away the axe from his hand and thereafter the accused left the spot. PW-4 threw the axe at the spot which he had taken from the appellant. On reaching his house, PW 1 found his wife dead. Thereafter, he along with his daughter (PW 2) went to the Police Station and lodged oral report which was reduced into writing by the Police and on the very night Police came to the spot. During cross-examination, he admitted that he has not seen the actual giving of blow by the accused to his wife. Though, this witness has stated that he has not seen the actual giving of blow but the sequence of the events which is revealed from his testimony clearly shows that the accused came near the house of the informant armed with an axe and quarrelled with him and when his wife intervened, he dealt the axe blow on her neck which caused her death. 6. The testimony of PW 2 reveals that her house is at a little distance from the house of PW 1. On the alleged date, her father called her saying that the accused killed her mother and she immediately accompanied her father to his house and found her mother lying on the ground with cut injury on her neck. By the time of her arrival, she was alive, but died after some time and then she accompanied her father to the Police Station. The testimony of PW 2 has not been discredited. The testimony of PW 7 who is the husband of PW 2 corroborates the testimony of PW 1 and PW 2. According to him on the relevant day, he along with his wife had gone to the house of PW 1 to take lunch and returned at about 5.00 PM to their house. The testimony of PW 7 who is the husband of PW 2 corroborates the testimony of PW 1 and PW 2. According to him on the relevant day, he along with his wife had gone to the house of PW 1 to take lunch and returned at about 5.00 PM to their house. After about 10 to 15 minutes of it, PW 1 came to his house and informed them that the accused had killed the deceased. He further states that while they were arranging for a vehicle to shift her to the hospital, she died. His testimony has also not been discredited during cross-examination. PW 3 saw the deceased lying on the ground in front of her house with cut injury on her next and at that spot he was informed by PW 4 that accused caused the cut injury. Though PW 4 is an important witness as per the FIR story, but he did not support the prosecution case and has been declared hostile by the prosecution. He has simply admitted the seizure of an axe by the Police and has identified MO-1 as the seized axe, though according to him he cannot say from whom it was seized. PW 6 is the Police Constable who had produced the sample blood, nail clipping etc. of the accused and the wearing apparels of the deceased after post-mortem examination before the IO, which he had obtained from the Medical. 7. A reading of the impugned judgment leads us to appreciate that the learned Additional Sessions Judge relying upon the evidence of PW 1 as corroborated by PW 2 and PW 7 has come to the conclusion that the prosecution has established its case beyond all reasonable doubt. He also relied upon the inquest report, the objective determination of the spot to the IO, the finding of the doctor conducting post-mortem examination that the enquiry can be possible by the weapon of offence like the axe, i.e., MO-I and the fact that the serological examination of the axe MO-I revealed that the said axe was tainted with human blood. In assailing the judgment of conviction and sentence, learned Counsel for the appellant submitted that the prosecution case cannot be believed on the ground that PW 1 is not an eye witness. In assailing the judgment of conviction and sentence, learned Counsel for the appellant submitted that the prosecution case cannot be believed on the ground that PW 1 is not an eye witness. Secondly, it is contended by him that the said witness being the solitary witness no credibility can be attached to his testimony. Thirdly, learned Counsel for the appellant submits to the effect that PW 4 has not supported the prosecution case, the vital aspect of the case that the PW 1 went and said the fact of commission of murder before PW 4 has to be disbelieved and in such circumstances and in cumulative effect of the same the appellant should be acquitted. However, learned Counsel for the appellant did not assail the evidence of the doctor and the findings of the learned Sessions Judge, i.e. the death of the deceased is homicidal in nature and he did not question inquest report, the objective determination of the spot by the IO. In view of the simple fact that sample earth and blood stained earth are found to be same by the chemical and serological examination and the blood stained earth was found to be stained with human blood. This aspect is also correctly conceded by the learned Counsel for the appellant. Alternatively, he argues that since the accused has dealt only one blow, offence under Section 302, IPC is not made out; rather offence under Section 304, IPC is made out. 8. Sri Soubhagya K. Nayak, learned Additional Government Advocate, on the other hand, submitted that though PW 1 has not seen the exact assault by the appellant on the neck of the deceased, he cannot be termed as “not an eye witness”. According to Mr. Nayak, learned AGA, PW 1 came in between an eye witness and a post-occurrence witness. In the scene, he saw the accused armed with an axe come to him by jumping the fence and picked up quarrel with PW 1, the informant. At that time his wife came there and out of fear PW 1 can away from the spot, but when came back to the spot together with PW 4, found the deceased falling on the ground having bleeding cut injury on her neck, and the accused/appellant standing there holding the axe stained with blood; his evidence should be accepted. At that time his wife came there and out of fear PW 1 can away from the spot, but when came back to the spot together with PW 4, found the deceased falling on the ground having bleeding cut injury on her neck, and the accused/appellant standing there holding the axe stained with blood; his evidence should be accepted. Learned Additional Government Advocate further submits that as per Section 134 of the Evidence Act no particular number of witnesses shall in any case he required for the proof of any fact. Hon’ble Supreme Court in the case of Vadivelu Thevar Vs.The State of Madras, reported in AIR 1957 SC 614 , learned Additional Government Advocate submits that even a solitary witness whose evidence is trustworthy can be relied upon to record a conviction. 9. Having considered the first submission of the learned Counsel for the appellant, we are of the view that in this case, PW 1 though has not seen the exact assault on the deceased by the appellant, still his evidence can be relied upon. This Court takes into consideration the ratio laid down in the case of State of U.P. Vs. M.K.Anthony, reported in AIR 1985 SC 48 , in paragraph-10 of which, the Hon’ble Supreme Court held as under : “10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of trust. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details .Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned Counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible.” 10. In course of hearing, learned Counsel for the appellant submitted that evidence of the witness PW.1 is not trustworthy as he is a coward and should not be believed. When he saw the appellant approached him with an axe, fact that he ran away from the spot should not make him untrustworthy witness. On the other hand, learned Additional Government Advocate placed reliance on a decision in the case of Leela Ram (D) Through Duli Chand Vs. State of Haryana and another, reported in (2000) 18 OCR (SC) 34, wherein, at paragraphs-12 and 13 the Hon’ble Supreme Court has held as under : “12. On the other hand, learned Additional Government Advocate placed reliance on a decision in the case of Leela Ram (D) Through Duli Chand Vs. State of Haryana and another, reported in (2000) 18 OCR (SC) 34, wherein, at paragraphs-12 and 13 the Hon’ble Supreme Court has held as under : “12. The Court shall have to bear in mind that different witnesses react differently under different situations; where as some become speechless, some start wailing some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise. 13. It is indeed necessary to note that hardly one comes across a witness whose evidence does not contain some exaggeration or embellishments : sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give slightly exaggerated account. The Court can sift the chaff from the corn and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. - If this element is satisfied, they ought to inspire confidence in the mind of the Court to accept the stated evidence thought not however in the absence of the same.” Learned Counsel for the appellant also argued that since there is contradiction in the evidence of PW 1 that he has not stated before the IO that he has not seen the accused-appellant giving blow to the deceased at the spot by which he is scaling over the offence, the contradiction here is not regarding approach of the accused to the spot, but regarding scaling over the offence. In view of decision in the case of Leela Ram (supra), this Court is of the view that simple embellishment by a witness will not make him un-believable. In view of decision in the case of Leela Ram (supra), this Court is of the view that simple embellishment by a witness will not make him un-believable. So, we are of the considered opinion that the contention raised by learned Counsel for the appellant is not acceptable and we are agree with the findings of the learned Additional Sessions Judge, who has the advantage of noticing demeanor of the witness while recording his evidence. 11. Second plank of argument advanced in this case is that PW 1 being the solitary eyewitness, his evidence should not be relied upon to uphold the conviction by the learned Additional Sessions Judge. In this connection, the Court takes note of Section 134 of the Evidence Act, which is quoted below: “134. Number of witnesses.- No particular number of witnesses shall in any case be required for the proof of any fact.” Interpreting this provision, the Hon’ble Supreme Court in the case of Chittar Lal Vs. State of Rajasthan, reported in (2003) 6 SCC 397 , has held that conviction can be based on the sole testimony of the witness if his evidence inspires confidence. We find apposite to take note of the exact word used by the Hon’ble Supreme Court in paragraph-7 of the judgment in Chittar Lal (supra), relevant portion of which is quoted hereunder:- “7..... The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’).Administration of justice can be effected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent cases where the testimony of a single witness only could be available, in number of crimes offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact....” 12. Applying this principle, we assess the evidence of PW 1. Not only PW 1 is clear about his statement and no major contradiction has been pointed out, but it is further borne out from record that immediate declaration by him (PW 1) before PW 2 and PW 7 corroborates his testimony. The IO held the inquest over the dead body of the deceased, which was lying on the front courtyard in front of the house of the informant. Spot of the offence has been objectively determined and it is also found that blood stained earth and sample earth collected after being chemically and serologically examined, the same were found to be of same textures and the blood stained earth was found to be tainted with human blood. Moreover, the weapon of offence seized in this case was also found to be tainted with human blood. The medical evidence in this case unequivocally supports the testimony of PW 1 in the sense of injury found on the body of the deceased was incised wound present in right upper anterio lateral part of neck, of size about 2" x 1" trachea deep exposing the internal neck structures and surrounded by dried up blood clots. The injury was ante mortem in nature and might be cause by a sharp cutting weapon. The doctor has also opined that the case of death is as a result of bleeding from torn bigger neck vessels, i.e., hemorrhage and shock. He has also, on police requisition, examined the axe-MO-1 and opined that the injury present on the body of the deceased would be possible by the axe Thus, the solitary testimony of PW 1 has duly been corroborated by the aforesaid attending circumstances. This Court is of the opinion that the evidence of PW 1 itself is sufficient to prove the case of the prosecution. 13. This Court is of the opinion that the evidence of PW 1 itself is sufficient to prove the case of the prosecution. 13. The next contention advanced by learned Counsel for the appellant that the PW4 having been declared hostile by the prosecution would go a long way to hold the evidence of PW 1 not to be very trustworthy. Admittedly, P.W. 4 has not supported the prosecution case so far as it relates to assertion of PW 1 that he went to him and stated about murder of his wife, but he has stated about the seizure of the weapon of offence in his presence. The prosecution has cross-examined him under Section 154 of the Evidence Act after being declared hostile and such contradiction which the witness PW 4 made has been proved through IO PW 9. In such situation, it cannot be held that evidence of PW 4 itself will discredit the testimony of PW 1. Moreover, the Hon’ble Supreme Court in the case of Sat Pal Vs. Delhi Administration, reported in AIR1976 SC 294, held that even in a criminal prosecution, when a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as wiped off the record altogether. It is for the Court to consider in each case, whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited, or can still be believed in regard to a part of his testimony. Thus, this Court is of the opinion that though PW 4 has been declared hostile, his evidence cannot be washed off from the record. His testimony so far as seizure of weapon of offence is concerned is admissible. However, because of the fact that the prosecution has cross-examined and proved that he has contradicted himself with his own statement recorded under Section 161 of Code of Criminal Procedure, 1973, his failure to support the prosecution will not discredit the evidence of PW 1. Accordingly, we do not find any reason to accept the aforesaid arguments of the learned Counsel for the appellant. 14. Contention of learned Counsel for the appellant that the appellant gave only one blow, hence, finding with regard to offence under Section 302 IPC is not made out. Accordingly, we do not find any reason to accept the aforesaid arguments of the learned Counsel for the appellant. 14. Contention of learned Counsel for the appellant that the appellant gave only one blow, hence, finding with regard to offence under Section 302 IPC is not made out. However, coming to facts of the case that the appellant has come to the scene of occurrence with an axe and started quarrelling with PW 1 and when his wife intervened, he started quarrelling with him and when the PW 1 while ran away from the spot out of fear, the appellant committed murder of his wife. This Court thinks that the assault by the appellant cannot be treated as offence under heat of passion and this Court is of the opinion that the findings of the learned Additional Sessions Judge that the offence under Section 302 IPC is completely established by the prosecution cannot be disturbed. 15. Last contention of learned Counsel for the appellant that the appellant is now of 84 years old, he is very poor and unable to defend himself by engaging Counsel before the Trial Court as well as in the appellate Court. Hence, it is submitted that the fine amount may be waived. In that view of the matter, the appeal is dismissed with modification of sentence. Conviction under Section 302 of IPC and the sentence to undergo imprisonment for life are hereby confirmed. However, this Court sets aside the imposition of fine of Rs.500/- only, and the consequential default sentence. K.R. MOHAPATRA, J. I agree. Application dismissed.