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2017 DIGILAW 1216 (ORI)

Madhusudan Sahu v. State of Orissa

2017-10-28

D.P.CHOUDHURY, I.MAHANTY

body2017
JUDGMENT : D.P. Choudhury, J. This Jail Criminal Appeal is filed by the appellant from Jail assailing the judgment of conviction and sentence passed under Section 302 of the Indian Penal Code (hereinafter called as “I.P.C.”) by the learned Sessions Judge Koraput at Jeypore in Criminal Trial No.185 of 2003 sentencing him to undergo imprisonment for life for the same offence. 2. The factual matrix leading to the case of prosecution is that on 31.12.2002 at about 10.00 AM, the appellant, after tying the hands of his wife, assaulted her mercilessly with fist blows and slaps leading to her death. The brother of the appellant (P.W.3), after seeing the occurrence, informed other villagers. He lodged the FIR consequent upon which the police registered the case and conducted investigation. During investigation, police made inquest over the dead body of the deceased and sent the same for post mortem examination. During course of further investigation, police examined the witnesses, seized blood stain earth and other materials and sent the seized properties to State Forensic Laboratory for chemical examination. After completion of the investigation, police filed charge sheet. 3. The plea of the accused-appellant, as revealed from his examination under section 313 of Cr.P.C. and suggestions made to the prosecution witnesses, is squarely denial to the charge and he has been falsely implicated in this case. 4. In order to bring home the charge, during trial the prosecution has examined as many as eight witnesses. P.W.4 is the eye witness to the occurrence, P.Ws.5 and 7 are seizure witnesses, P.W.8 is the Investigating Officer, P.W.3 is the informant and P.Ws.1 and 2 are the relatives of the deceased. It is made clear that the deceased is the wife of the accused-appellant. The defence examined none. After analyzing the evidence of the prosecution witnesses, learned trial Court found the accused-appellant guilty and convicted him under Section 302 of IPC with sentence to undergo imprisonment for life. 5. Mr.Das, learned counsel for the appellant submitted that the trial Court has relied upon the evidence of only eye witness (P.W.4). According to him, the evidence of P.W.4 is not clear, cogent and consistent to be relied upon solely because he had gone to that village for the first time as a labourer and his evidence, if read as a whole, would only indicate that he is neither a local villager nor a neighbouring villagers. According to him, the evidence of P.W.4 is not clear, cogent and consistent to be relied upon solely because he had gone to that village for the first time as a labourer and his evidence, if read as a whole, would only indicate that he is neither a local villager nor a neighbouring villagers. But, his village is situated quite at a distance from the house of the deceased. He also pointed out that the evidence of P.W.4 is not credible to show him as occurrence witness. He, therefore, submitted that the learned trial Court has erroneously convicted the accused-appellant basing on improbable evidence of P.W.4. 6. Mr.Das, learned counsel for the accused-appellant further contended that P.Ws.1 and 2 have not supported the case of prosecution for which they have not been cross-examined by the prosecution and as such, they became hostile to the prosecution. Basing on the statement of P.W.1, P.W.3, who is a post occurrence witness, has lodged the FIR (Ext.1). According to him, the evidence of the doctor that he has seen only abrasions on the chest and bruise on the right side of the face of the deceased and the same are simple in nature and under no circumstance, they can be attributed for causing death of the deceased. The chemical examination report does not disclose about any opinion as to blood group of human being and the same does not prove any incriminating circumstance against the accused-appellant. Thus, the judgment of conviction and sentence passed by the learned trial Court against the accused-appellant is illegal and improper and, therefore, the same should be set aside and the accused-appellant may be acquitted of the charge. By the by, he has submitted that the accused-appellant has already suffered fifteen years by remaining inside the jail. 7. Mr.Katkia, learned Additional Government Advocate submitted that the evidence of the doctor (P.W.6) is very clear and cogent to show that the death of the deceased was caused only due to fist blows and kicks inflicted upon her. He also submitted that the evidence of P.W.4, who is the only eye witness to the present occurrence, is clear enough to lend corroboration to the prosecution case to show that it is the accused-appellant who had inflicted such fist blows and kicks upon the chest and other parts of the body of the deceased which led to her death. He also submitted that the evidence of P.W.4, who is the only eye witness to the present occurrence, is clear enough to lend corroboration to the prosecution case to show that it is the accused-appellant who had inflicted such fist blows and kicks upon the chest and other parts of the body of the deceased which led to her death. The statements of P.Ws.1, 2 and 3 are clear to show that they had reached the spot after the occurrence and found both the hands of the deceased have been tied on her back side and her body was lying on the ground with pool of blood on her mouth. 8. Mr.Katkia, learned Additional Government Advocate further stated that the evidence of P.Ws.1, 2 and 3 are clear enough to show that there was quarrel between the accused-appellant and the deceased prior to occurrence and they were not pulling well with each other, thus proves the motive of the appellant to cause death of the deceased. Since there are clear, consistent and unimpeachable evidence as produced by the prosecution to show that the appellant has caused the death of the deceased, the judgment of conviction and sentence should be upheld. 9. It is well settled in law that the Appellate Court has got a duty to re-appreciate the evidence available on record and come to a conclusion whether the finding of the learned trial Court is correct in arriving at the conclusion. Moreover, Appellate Court would not fail in duty to consider in criminal trial that prosecution has to prove the case beyond all reasonable doubts and any such doubt raised in mind would only go to the benefit of the accused. 10. It is reported in A.I.R. 2003 SC 854; Lallu Manjhi and another v. State of Jharkhand where Their Lordships observed as follows in paragraph-10: “The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. (See Vadivelu Thevar etc. v. State of Madras, AIR 1957 SC 614 ).” 11. From the aforesaid decision, it is clear that while appreciating the evidence of witnesses, he may be reliable by taking his evidence as a whole or may be unreliable after reading the whole evidence. At times, the evidence of witness can be partially reliable and partially unreliable for which the evidence of such witnesses must be applied in part but cannot be rejected in toto. It is well settled in law that the conviction can be maintained basing on the evidence of sole witness if his or her evidence is clear, cogent and above reproach. It is well settled in law that Court should separate grain from the chaff in order to reach the conclusion. Keeping in mind all these principles, let us find out whether the prosecution has proved its case beyond all shadow of doubts. 12. DISCUSSIONS The statement of P.W.3 shows that he is the brother of the deceased and after getting information about the death of his sister, he had gone to the village and saw the dead body of the deceased. He stated that in his presence, the police (P.W.8) made inquest over the dead body of the deceased vide Ext.2. Ext.2 shows that both the hands of the deceased were tied in a rope and there was pool of blood from her mouth. 13. The evidence of the doctor (P.W.6) shows that he had made post mortem over the dead body of the deceased and found the following injuries: “(i). Abrasion ½” X ½” on the right side of chest; (ii). Abrasion ½” X ½” on the left side of chest; and (iii). Bruise of 1 ½” X 1/2” on the right side of face.” According to the doctor, the injuries found on the person of the deceased might have been caused by blow and they are simple and ante mortem in nature. On dissection, he found the head, skull and scalp were intact. Bruise of 1 ½” X 1/2” on the right side of face.” According to the doctor, the injuries found on the person of the deceased might have been caused by blow and they are simple and ante mortem in nature. On dissection, he found the head, skull and scalp were intact. The cause of death was due to haemorrhage and shock as consequence of violence. He proved the post mortem report vide Ext.4. However, the inquest report coupled with the post mortem report amply proved that the death of the deceased was homicidal in nature. Now, the question arises whether the accused-appellant is the perpetrator of the crime. 14. P.W.4 is the only eye witness to the occurrence and the brother of the deceased. From his evidence, it appears that while he has gone to a neighbouring house of the deceased as a labourer, he heard crying of the deceased and after going there, he saw the appellant was mercilessly inflicting fist blows and kicks and out of fear, he did not intervene. In examination in chief, he specifically stated that after reaching at village, he along with other neighbouring villagers went inside the house of appellant and saw the deceased lying in dead condition and saw bleeding from her mouth. Further, he saw both the hands of the deceased were tied with rope on the back portion of her body. Thus, it is not clear whether he had really seen the occurrence. In the examination in chief, there are discrepancies in his statement as to witnessing the occurrence inasmuch as he has not stated to have seen the assault on deceased after tying her hands in her backside whereas after accompanied the witnesses to the house of the appellant, they saw the deceased with injuries after her hands being tied in her backside. 15. Moreover, during cross-examination, P.w.4 could not tell the name of the owner of the house on whose call he has gone to work there. Apart from this, he admitted that the distance between the house where he was working and the house of the accused-appellant is about 100 yards being intervened by other persons’ house. So, he was not working in the neighbouring house. He admitted that it would take half of a day to reach the village of the accused-appellant if someone starts walking from his village in the morning. So, he was not working in the neighbouring house. He admitted that it would take half of a day to reach the village of the accused-appellant if someone starts walking from his village in the morning. If he had gone from his village to the village of the accused-appellant for work and would take half of a day, it is not conceived as to how he saw the occurrence at 10.00 AM? Apart from this, he has stated that he had gone to that village for the first time which casts more doubt on his veracity. Not only this but also it is not conceived that if at all he saw the occurrence, it is not known why he did not intervene to stop the assault by the appellant. Thus, the evidence of P.W.4 after reading as a whole, same is not found to be consistent, clear and cogent to array him as occurrence witness. Since he is a relative of the deceased, his evidence is scrutinized with care and caution. Thus, the evidence of P.W.4 does not repose confidence to prove the occurrence of assault by the accused-appellant upon the deceased. 16. P.W.3, who is the brother of the deceased and from his evidence, it is revealed that he heard from P.W.1 about the murder of his sister at the instance of the accused-appellant. P.W.1 informed him that after tying both the hands of the deceased on the back side, the accused-appellant made her unresistent and forcibly made her fall down on the ground, he pounced upon her body repeatedly which led her to death. After hearing this, he went to the spot and found the deceased lying dead. So, he submitted the report vide Ext.1. Ext.1 was scribed by one Senu as per his statement and after being read over him, he put his signature on the same. Kailash Sahu, P.W.1 has not stated to have informed P.W.3 about the occurrence, rather P.W.1 has stated that he has no knowledge about the occurrence. Of course, he has been cross-examined by the prosecution where he denied to have stated before the police that after visiting the house of the deceased, he informed P.W.3 about the occurrence after which the FIR was lodged. But, when such statement was confronted to the I.O, he admitted about such statement of P.W.1 before him. Of course, he has been cross-examined by the prosecution where he denied to have stated before the police that after visiting the house of the deceased, he informed P.W.3 about the occurrence after which the FIR was lodged. But, when such statement was confronted to the I.O, he admitted about such statement of P.W.1 before him. Thus, when P.W.1 is found to have resiled from his earlier statement, his evidence does not help in any way to prosecution rather he has become hostile to the prosecution. On the other hand, he has not corroborated the statement of P.W.3 to have narrated about the occurrence of assault and death of the deceased. As such, the evidence of P.W.3 becomes hearsay and inadmissible. 17. From the statement of P.W.2, it is revealed that he is the son of the deceased. He admitted that he was absent at the time of occurrence because he had been to river side to catch fish. P.W.1 informed him at the river side that his parents were quarrelling and assaulting with each other. After hearing this, he came to the house and found his mother dead and his father was not there. He admitted to have no knowledge as to how his mother died. It is reiterated that the statement of P.W.1 is clearly shows that he has not supported the case of the prosecution and his evidence does not reveal that he had ever informed P.W.2 about said quarrelling. So, the evidence of P.W.2 is also hearsay and not admissible to prove the quarrel between the deceased and the accused-appellant. However, he has been cross-examined by the prosecution and during cross-examination, he denied to have stated before the police that after coming to the house, he found his mother lying dead after her hands tied down behind her body and prior to the occurrence, his father was continuously quarrelling with his mother. He further stated to have not stated before the police that P.W.1 informed him stating that his father tied down two hands of his mother and assaulted her out of which she died. This statement was confronted to the I.O. who confirmed about such statement of P.W.2 before him. Thus, P.W.2 has also become hostile to the prosecution case and has not supported the prosecution. This statement was confronted to the I.O. who confirmed about such statement of P.W.2 before him. Thus, P.W.2 has also become hostile to the prosecution case and has not supported the prosecution. But, it is well settled in law that evidence of hostile witness cannot be thrown out as a whole but the portion of the statement either proving the prosecution case or proving the innocence of the accused-appellant can be taken into consideration. On the other hand, the evidence of hostile witness cannot be rejected as a whole but to scrutinize same with caution. On re-assessment of the evidence of P.W.2, it appears that he has only proved that after reaching the house, found his mother dead and the accused-appellant was not there. On the other hand, he has not proved any culpability of the accused-appellant. 18. The statements of P.Ws.7 and 8 show that the police has seized the wearing apparel of the deceased and the appellant which were sent for chemical examination. P.W.8 proved the report of the chemical examiner vide Ext.12. On going through the same, it appears that none of the wearing apparel of the accused-appellant has human blood stain except the blood stain on the wearing apparel of the deceased. Therefore, the chemical examiner’s report also does not prove any circumstance against the appellant. 19. In terms of the above discussion, we are of the view that the prosecution has not proved the occurrence and the overt act of the appellant by clear, cogent and consistent direct or circumstantial evidence. Learned trial Court, without analysing the evidence with proper perspective, has come to a wrong conclusion that the accused-appellant is the perpetrator of the crime. On the other hand, we do not agree with the view of the learned trial Court to find the accused-appellant guilty. Rather in re-appreciation of the evidence, we find the accused-appellant is not guilty for the offence under Section 302 IPC and as such, judgment of conviction and sentence dated 07.08.2004 passed by the learned Sessions Judge, Koraput at Jeypore in Criminal Trial No.185 of 2003 is set aside and the accused-appellant is acquitted of the offence under Section 302 IPC. Accordingly, he be set at liberty forthwith, if his detention is not required otherwise. In the result, the JCRLA is allowed and the LCR be sent back immediately.