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2017 DIGILAW 1157 (ORI)

Kangali @ Chaturbhuja Maharana v. State of Orissa

2017-10-14

D.P.CHOUDHURY

body2017
JUDGMENT : D.P. CHOUDHURY, J. The captive appeal is assailed against the judgment of conviction and sentence dated 03.04.2012 passed by the learned Ad hoc Additional District & Sessions Judge, Fast Track Court, Keonjhar, under which the appellant has been convicted and sentenced to undergo R.I. for seven years and to pay a fine of Rs.5,000/- in default to undergo R.I. for six months. FACTS : 2. The factual matrix leading to the case of the prosecution is that on 03.06.2011 at about 11 AM, there was some altercation between the appellant and his father who is the deceased in this case. Suddenly, the appellant assaulted on the head of the deceased by lathi causing bleeding injuries thereon. Thereafter, the deceased was removed to the hospital but in the hospital he succumbed to the injures. The F.I.R. was lodged by the Sarapanch of the Mahadeijoda Gram Panchayat. Police took up investigation and during investigation, the police examined the witnesses, visited the spot and sent the dead body of the deceased to conduct the post mortem report examination. During investigation, the police also seized the wearing apparel of the deceased and also seized the weapon of offence. The police made query from the doctor as to whether the injuries are possible by the weapon of offence and also seized the blood stained cloth from the wife of the appellant. The Police sent all the seized properties to the S.F.S.L., Rasulgarh for the opinion. After completion of investigation, charge sheet was submitted under Section 302 of IPC. The plea of the appellant was denial to the charge. 3. The learned trial court examined eleven witnesses and also received good numbers of documents adduced by the prosecution. After going through the evidence, the learned trial court convicted the appellant under Section 304 Part-II of IPC instead of offence under Section 302 of IPC. After hearing on question of sentence, learned trial court sentenced the appellant to undergo R.I. for seven years and to pay a fine of Rs.5,000/- in default to undergo R.I. for six months with further order to set off the period already undergone. SUBMISSIONS 4. Learned counsel for the appellant submitted that the learned trial court has committed error in convicting the appellant basing on no evidence. According to her, out of eleven witnesses P.Ws.2, 3, 4, 5 and 6 have turned hostile to the prosecution. SUBMISSIONS 4. Learned counsel for the appellant submitted that the learned trial court has committed error in convicting the appellant basing on no evidence. According to her, out of eleven witnesses P.Ws.2, 3, 4, 5 and 6 have turned hostile to the prosecution. She further submits that there was no eye witnesses to the occurrence examined in this case to support prosecution and there is no chemical examination report produced by the prosecution to show that the blood-stain on the wearing apparel of the deceased also contains the blood group of the appellant. On the whole, neither there is direct evidence nor circumstantial evidence adduced by the prosecution to prove the culpability of the appellant. So, she submitted to set aside the order of conviction and sentence passed against the appellant. 5. Learned Additional Government Advocate for the State submits that there is material on record to show that the deceased met homicidal death and it is the appellant who is responsible for the death caused to the deceased. He further submits that even if witnesses turned hostile, the statement of such witnesses are also relevant to the extent of this support to the prosecution and cannot be thrown out outright. On the other hand, he supported the judgment of conviction and sentence passed by the learned trial Court. DISCUSSION 6. It is well settled in law that conviction can be maintained basing on the sole evidence of single witness if his evidence is above reproach. It is well settled in law that evidence of hostile witness cannot be discarded as a whole but the Court must make scrutinize of the same to find out as to what extent the same can be reliable to support the case of prosecution. It is also the settled law that while scrutinizing evidence, the Court must separate the grain from chaff. Basing on such principles let the evidence on record be scrutinized to come to a conclusion whether the case of prosecution stands to prove the charge against the appellant. 7. It is revealed from the evidence of P.W.10 who is the I.O. that she has made investigation after getting report from the I.I.C., Keonjhar that the deceased had succumbed to the injuries. She stated to have conducted inquest over the dead body of the deceased. 7. It is revealed from the evidence of P.W.10 who is the I.O. that she has made investigation after getting report from the I.I.C., Keonjhar that the deceased had succumbed to the injuries. She stated to have conducted inquest over the dead body of the deceased. It appears from prosecution evidence that after the occurrence the deceased has been removed to the hospital and while undergoing treatment, he succumbed to the injuries. It also appears from the evidence of P.Ws.2 and 5 that police made inquest over the dead body before the witnesses and same is marked as Ext.1. According to P.W.10, she has sent the dead body for post mortem examination. 8. It is revealed from the evidence of P.W.8 that he has made post mortem on the dead body of the deceased Sagar Moharana. According to him, he found one external injury on the skull of the deceased and further found on dissection that brain matters present with blood clot. He opined that the cause of death was due to injury on the vital organ like brain. He has proved it vide Ext.4. There is no serious cross-examination to the witness in this aspect. 9. The evidence of the P.Ws.2, 4 and 10 coupled with the inquest report, the evidence of P.W.8 along with the post mortem report vide Ext.4 amply proved that cause of death of the deceased was homicidal. 10. Now it is to be found whether the appellant is perpetrator of crime responsible for the death caused to the deceased. 11. It is revealed from the evidence of P.W.1 who is brother-in-law of the deceased that he is a post occurrence witness because after hearing about the assault made by the present appellant reached the spot. He stated to have removed the deceased to the District Headquarters Hospital, Keonjhar for treatment. It is his clear evidence that he has not seen the occurrence but he heard that there was quarrel between the appellant and the deceased due to construction of a shed to keep chicken (Cocks) but from the cross-examination it is clear that except hearing from others he has no knowledge about the occurrence or about the quarrel. So, his evidence cannot be considered for any purpose except removing the deceased to the Hospital. 12. The P.Ws.2, 3, 5 and 6 have not supported the prosecution and they have been cross-examined by the prosecution. So, his evidence cannot be considered for any purpose except removing the deceased to the Hospital. 12. The P.Ws.2, 3, 5 and 6 have not supported the prosecution and they have been cross-examined by the prosecution. During the cross-examination by the prosecution they have not admitted to have stated before the police, about their direct knowledge regarding assault by the present appellant to the deceased as a result of which he died. But unfortunately, the prosecution has not confronted the statement of these witnesses to the I.O. to find out whether they have suppressed the statement made during the examination under Section 161 Cr.P.C. It is the duty of the prosecution to confront the statement of the witnesses who do not support their earlier statements so as to declare them hostile to the prosecution. However, in the present case, the evidence of the P.Ws.2, 3, 5 and 6 have not proved occurrence and overt act of appellant. The evidence of P.W.7 has not improved the case of the case of prosecution to prove occurrence and overt act of appellant. The statement of P.W.4 shows that she is wife of deceased but stated Examination-in-Chief that she has no knowledge about occurrence. During cross-examination by prosecution she admitted to have stated before the police that she learnt about occurrence. Over all her evidence does not improve case of prosecution except attending her husband at Hospital. 13. It is revealed from the evidence of P.W.11 who is the scribe of the F.I.R. that he has no knowledge about the occurrence. It is needles to observe that the F.I.R. is not substantive evidence and it can be used for only corroboration or contradiction. CONCLUSION 14. In terms of the above discussion, prosecution is not found to have any tangible direct evidence or the circumstantial evidence pointing out the guilt of the appellant. The analysis made by the learned trial Court to prove the offence under Section 304 Part-II of IPC is far from the evidence on record. So, while disagreeing to the conclusion arrived by the learned trial court, the Court is of the view that the conviction of the appellant under Section 304 Part-II of IPC is vulnerable and not sustainable under law. 15. So, while disagreeing to the conclusion arrived by the learned trial court, the Court is of the view that the conviction of the appellant under Section 304 Part-II of IPC is vulnerable and not sustainable under law. 15. In view of the aforesaid analysis, it must be held that the case of prosecution crumbles and as such conviction and sentence against appellant passed by the learned trial Court is hereby set aside and appellant is acquitted of the offence under Section 304 Part-II of IPC and he be set at liberty at once if not to be detained otherwise. In the result, the appeal is allowed. The L.C.R. be returned back immediately.