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2017 DIGILAW 1217 (ORI)

Adhiswar Kanhar v. State of Orissa

2017-10-28

D.P.CHOUDHURY, I.MAHANTY

body2017
JUDGMENT : D.P. CHOUDHURY, J. The convict challenges the order of conviction and sentence dated 16.7.2004 passed under section 302 I.P.C. by the learned Sessions Judge, phulbani in S.T. No. 58 of 2001. 2. The conspectus of the case of the prosecution is that the appellant is the son of the deceased. It is alleged inter alia that on 20.1.2001 when the deceased Bhubaneswar Kanhar was returning from forest after collecting fire wood, the appellant assaulted by axe on the backside of the head of the deceased causing bleeding injury thereon. After the deceased fell down, the deceased was also assaulted by means of a stone on the chest. Seeing the assault, the daughter of the deceased informed the villagers. After reaching the spot the villagers found that the deceased was dead. Thereafter F.I.R. was lodged. During investigation inquest over the dead body was made, autopsy was conducted, witnesses were examined and necessary incriminating materials were seized. It is also stated that the police seized the weapon of offence. After being arrested the convict led the police to recover the stone which is one of the weapons of offence. Necessary seized materials were sent for chemical examination. After completion of investigation charge sheet was submitted. 3. The plea of defence as revealed from his examination under section 313 Cr.P.C. and the suggestions given during cross-examination is that he has been falsely implicated in this case due to previous land dispute with the deceased. 4. The prosecution examined 14 witnesses and they have been well described in the judgment of the trial court. The defence examined none. Learned trial court after analyzing the evidence on record came to the conclusion that the appellant is the perpetrator of the crime and accordingly sentenced him to imprisonment for life. SUBMISSIONS: 5. Learned counsel for the appellant submitted that the findings of the learned trial court is erroneous and against the weight of evidence on record. According to him, the learned trial court has erred in law by not evaluating the evidence of the eye witness (P.W.11) properly, because she being the daughter of the deceased was interested witness and no reliance can be reposed on her testimony. The evidence of P.W.11 is also full of contradictions as she has never seen any assault on the person of the deceased by stone. 6. The evidence of P.W.11 is also full of contradictions as she has never seen any assault on the person of the deceased by stone. 6. Learned counsel for the appellant further submitted that the prosecution has not discharged its onus beyond all reasonable doubt, because the axe, weapon of offence was not seized from the exclusive possession of the appellant and said weapons of offence have no any blood stain of the deceased as per the report of the chemical examiner. He further submitted that the motive has not been proved by the prosecution with positive evidence. According to him, the circumstantial evidence against the appellant has not been proved in clear manner. When there is neither direct nor circumstantial evidence proved by the prosecution consistently, the order of conviction under section 302 I.P.C. against the appellant has not proved. Learned counsel for the appellant submitted that when the conviction is recorded by the learned trial court against the evidence on record, not only the conviction is against the law, but also the sentence by the learned trial court is improper and illegal. Hence he submitted to set aside the judgment of conviction and sentence passed by the learned trial court. 7. Mr. J. Katkia, learned Additional Government Advocate submitted that the prosecution has adduced consistent evidence of eye witnesses and there is no bar to rely upon the evidence of the relative of the deceased. He further submitted that not only the direct evidence is well proved, but also the chain of circumstance is against the appellant. According to him, the seizure of the seized axe, the weapon of offence from the house of the appellant and leading to discovery of the stone which is another weapon of offence at the instance of the appellant only indicates the consistent circumstance against him. Adding to this the previous land dispute between the deceased and the appellant is also well coloured by the evidence of the prosecution witnesses. So, he supported the judgment of conviction and sentence passed by the learned trial court. Above all he submitted in writing that in the meantime a report is received from the Superintendent of Jail, Phulbani that on 3.11.2012 the appellant has got premature release. DISCUSSION: 8. So, he supported the judgment of conviction and sentence passed by the learned trial court. Above all he submitted in writing that in the meantime a report is received from the Superintendent of Jail, Phulbani that on 3.11.2012 the appellant has got premature release. DISCUSSION: 8. Being the first Appellate Court, we have to re-appreciate the evidence on record to find out whether the conclusion arrived at by the trial court is legal and proper. It is reported in A.I.R. 2009 SC 2263; Joginder Singh v. State of Punjab, where Their Lordships observed at paragraph-9 as follows:- “9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: "We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in –‘Rameshwar v. State of Rajasthan' ( AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel." 9. With due respect to the aforesaid decision there is no bar to rely upon the evidence of a relative, but the law is clear that evidence of such witness is to be scrutinized with caution. 10. It is revealed from the evidence of P.W.5 that after hearing about the occurrence he had been to the spot. Police has also visited the spot. According to him, the police made inquest over the dead body vide Ext.6. 10. It is revealed from the evidence of P.W.5 that after hearing about the occurrence he had been to the spot. Police has also visited the spot. According to him, the police made inquest over the dead body vide Ext.6. The evidence of P.W.8 shows that he is also a witness to the inquest over the dead body. P.W.13, the I.O. stated to have made inquest over the dead body vide Ext.6. The inquest report shows that there is lacerated bleeding injury on the dead body of the deceased near his left side ear. Also there are injuries on his chest and other parts of the body. 11. The evidence of P.W. 3 shows that he has conducted the post-mortem examination of the deceased and his evidence are as follows:- (i) Lacerated injury of size 6 cm. x 2.1 cm. over vertex on the line joining both ears 11 cm. above the left ear. (ii) Lacerated injury of size 3 cm. x 1 cm. x 1 cm. over left temporal area 4 cm. above left ear. (iii) Abrasion of size 5 cm. x 5 cm. on extensor surface of left 4th toe in middle pud. (iv) Abrasion of size 5 cm. x 5 cm. on extensor surface of left 5th toe in distal pud. (v) Bruise of size 7 cm. x 4 cm. on anterior chest wall on right side. All the above injuries are anti-mortem in nature and might have been caused by blunt weapon. On dissection of the dead body P.W.3 found as follows:- (i) There is fracture of left temporal bone below the external injury No.2. (ii) There is fracture of sixth, seventh and eighth ribs anteriorly on right side. (iii) There was haemothorax on the right chest. The above injuries are also anti-mortem in nature. 12. With the aforesaid finding he has opined that the cause of death was due to hemorrhagic shock due to injuries on the head and chest causing cerebral hemorrhage, haemo-thorax and subdural hematoma. He proved his report vide Ext.2 and clearly opined that the death was homicidal in nature. 13. P.W.11, who is the sole eye witness of the case is the daughter of the deceased. On assessing her evidence, it appears that while she was cutting the fire wood from the bottom of the Pahad (mountain) at about 10 am. He proved his report vide Ext.2 and clearly opined that the death was homicidal in nature. 13. P.W.11, who is the sole eye witness of the case is the daughter of the deceased. On assessing her evidence, it appears that while she was cutting the fire wood from the bottom of the Pahad (mountain) at about 10 am. she saw that her father coming down from the hill with a bundle of fire wood and a Tangia (axe) and the appellant was coming behind him. She further witnessed that the appellant gave an axe blow on its blunt side to the backside of her father and her father fell down on the ground shouting “MARIGALI MARIGALI”. Out of fear she did not protest, but returned to her house and informed the occurrence to her mother. With the villagers she went to the spot and found that her father was lying at the spot with bleeding injury on his head and bleeding from his mouth and nostril. During cross-examination she categorically stated that she saw her father at a distance of 25’ to 30’ with clearly visible place. She reiterated that the appellant dealt the Tangia blow from the back of her father. Nothing has been revealed from the cross-examination to shake her testimony even if she is the daughter of the deceased. 14. Not only this, but also P.W.11 is the informant in this case as it revealed from her evidence that she orally reported the police and the police reduced it into writing after which she gave her L.T.I., but nothing has been revealed to contradict her statement made in the F.I.R. Thus, the evidence of P.W.11 is quite consistent clear and above the reproach to prove that she had seen the assault by axe upon her father. 15. The evidence of P.Ws.1, 2, 5, 7, 8 and 10 show that they have reached the spot and found that the dead body of the deceased was lying with bleeding injuries on his head and other parts of the body. Thus they lend corroboration to the evidence of P.W.11. 16. P.W.1 deposed that on the next day of occurrence the police had recovered an axe vide Ext.1 from the house of the appellant, but the appellant was absent at that time in his house. Thus they lend corroboration to the evidence of P.W.11. 16. P.W.1 deposed that on the next day of occurrence the police had recovered an axe vide Ext.1 from the house of the appellant, but the appellant was absent at that time in his house. He identified the axe vide M.O.I. P.W.13 deposed that he seized a blood stained Tangia from the house of the appellant on production by the wife of the appellant. On that score there is no proper cross-examination to P.Ws. 1 and 13. P.W.2 corroborating the evidence of P.Ws.1 and 13 revealed that the police had seized the blood stained axe from the house of the appellant. So, all these witnesses stated about recovery of one of the weapon of offence from the house of the appellant, of course in absence of the appellant. However, when the axe was seized from the house of the appellant, it is one of the circumstances against the appellant. 17. P.W.14 stated that he arrested the appellant and during custody he made statement under section 27 of the Evidence Act. According to him, the appellant confessed by stating that he has killed the deceased by a Tangia and also a stone which he kept concealed near the spot and was ready to give recovery of the same if led to the spot. The I.O. stated to have recorded the statement of the appellant in presence of witnesses vide Ext.2. Then the appellant led the police and witnesses to the spot and from the side of the footpath the appellant brought the stone and produced the same before the police and said stone was stained with blood. P.W.14 stated to have prepared the seizure list videExt.13 and exhibited the Material Object vide M.O.II. There is no proper cross-examination in this regard. It is only brought out from the cross-examination that he has not mentioned in the case diary that he arrested the appellant in presence of his police staff. It is not a major departure to cast doubt on his evidence. Not only this, but also P.W.7 has clearly revealed about the confession of the appellant being followed by leading to discovery of the stone i.e. weapon of offence. He also proved the statement of the appellant recorded under section 27 of the Evidence Act vide Ext.12 and the seizure list vide Ext.13. Not only this, but also P.W.7 has clearly revealed about the confession of the appellant being followed by leading to discovery of the stone i.e. weapon of offence. He also proved the statement of the appellant recorded under section 27 of the Evidence Act vide Ext.12 and the seizure list vide Ext.13. It is only brought out during cross-examination that the bush from which the appellant brought the stone is accessible to all. Even if the place is accessible, but it cannot be said that the stone was not brought by the appellant following his statement made under section 27 of the Evidence Act. Similarly, the evidence of P.W.9 shows that in his presence the appellant made disclosure statement and led the police to the spot and gave recovery of the stone. He is also a witness to Exts.12 and 13. He also identified the seized stone as M.O.II. During cross-examination it is revealed that the place from where the appellant gave recovery is an open place and accessible to all. Even if the place is accessible to all, but the conduct of the appellant relevant under section 8 of the Evidence Act cannot be lost sight of. Moreover, the place of seizure happens to be near to the spot. Apart from this, the blood stained stone as revealed from the evidence of the I.O. and other witnesses cannot be attributed to any other person than the appellant. Ext.12 shows that the appellant has made detailed confessional statement and also stated that he would give recovery of the stone. He also identified the axe already recovered from his house to be the weapon of offence. 18. Thus, the evidence of the witnesses coupled with Exts.12 and 13 led to the conclusion that the appellant has not only made statement under section 27 of the Evidence Act to give recovery of the stone, the weapon of offence, but also led the police to give recovery of the same. 18. Thus, the evidence of the witnesses coupled with Exts.12 and 13 led to the conclusion that the appellant has not only made statement under section 27 of the Evidence Act to give recovery of the stone, the weapon of offence, but also led the police to give recovery of the same. It is reported in A.I.R. 1962 SC 1116 (V49 C150); Udai Bhan v. The State of Uttar Pradesh at paragraphs-10 and 11 as follows:- “This Court, in Lachman Singh v. State, 1952 SCR 839 ; ( AIR 1952 SC 167 ) held that if a person in the custody of the police takes the police to a particular spot and at his instance some blood-stained earth is recovered and he also points out the trunk of one of the dead bodies the case is covered by the language of S. 27 and the evidence of discoveries is admissible. In a later case Ramkishan Mithanlal Sharma v. The State of Bombay, (1955) 1 SCR 903 : ((S) AIR 1955 SC 104 ), it was observed that according to the section if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and it can safely be allowed to be given in evidence. Kottaya's case, 74 Ind App 65:( AIR 1947 PC 67 ) was approved. Bhagwati, J., observed: "On a bare reading of the terms of the section it appears that what is allowed to be proved is the information or such part thereof as relates distinctly to the fact thereby discovered." 11. Thus it appears that S.27 does not nullify the ban imposed by S. 26 in regard to confessions made by persons in police custody but because there is the added guarantee of truthfulness from the fact discovered the statement whether confessional or not is allowed to be given in evidence but only that portion which distinctly relates to the discovery of the fact. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. Applying this test, in our opinion, the evidence in regard to the discovery of the key as well as the box was rightly admitted into evidence in the present case.” 19. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. Applying this test, in our opinion, the evidence in regard to the discovery of the key as well as the box was rightly admitted into evidence in the present case.” 19. With due regard to the aforesaid decision, we are of the view that the prosecution has well proved the statement of the appellant for discovery of weapon of offence and leading for recovery of the weapon of offence from the spot. Thus, this is one of the circumstances against the appellant to prove case of prosecution. 20. Bereft of the above details, the prosecution has projected about the presence of motive of the appellant behind this occurrence. The evidence of P.W.2 depicts that there is previous land dispute between the deceased and the appellant, for which the appellant had threatened to take revenge. It is revealed from his evidence that the deceased and his cousin brother Ramanath were cultivating the land of Surath on Bhag basis, but after returning from Rourkela the appellant demanded share from the usufructs raised by the deceased in the said land, but the deceased and Ramanath refused to give same. From his cross-examination it is revealed that the appellant told him many times that in spite of demand the deceased and Ramanath had not given him any share from the usufructs from the land of his cousin brother. There is no encouraging cross-examination in this respect. From the evidence of P.W.6 it is revealed about the demand of share by the appellant from the deceased. In cross-examination he stated that five years back the present appellant has demanded share from the deceased. So, his evidence without having any ambiguity in mind thoroughly corroborated the evidence of P.W.2 about previous enmity between the appellant and the deceased. The evidence of P.W.6 also corroborates the evidence of P.Ws.1 and 2 about enmity between the appellant and the deceased. From the evidence of P.W.8 it is revealed that he and the deceased were cultivating the land of Surath Kanhar as Bhag Chasi. About 15 days before the occurrence the appellant demanded share from the usufruct of the land of Surath from them. From the evidence of P.W.8 it is revealed that he and the deceased were cultivating the land of Surath Kanhar as Bhag Chasi. About 15 days before the occurrence the appellant demanded share from the usufruct of the land of Surath from them. Thus, the evidence of the prosecution witnesses are enough to prove the previous enmity between the deceased and the appellant, of course the motive being the previous land dispute between the parties, becomes a circumstance against the appellant. In the event of direct evidence the motive has no role, but in case of circumstantial evidence motive has got a great role. So, motive is one of the links to the chain of circumstances, which also goes against the appellant. 21. It is revealed from the evidence of witnesses and the I.O. that police has seized the weapon of offence as discussed above. Police has also seized the wearing clothes of the deceased and sample blood stained earth. It is revealed from the evidence of the I.O. that he sent the same for chemical examination, but the chemical examination report is not trustworthy, because except sample earth stained with blood having “O” group, other seized properties do not show about any group of human blood. However, seizure of the blood stained axe from the house of the appellant has not been explained by the learned counsel for the appellant. 22. In view of the aforesaid discussion, we are of the view that the prosecution has proved the offence under section 302 I.P.C. against the appellant beyond all reasonable doubt. Learned trial court after discussing the evidence on record in detail has come to reach at a right conclusion and same do not want to be intervened by us. Hence, the conviction and sentence passed by the learned trial court are confirmed. In the result, the Jail Criminal Appeal stands dismissed. The L.C.R. be returned back forthwith.