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2017 DIGILAW 1245 (ORI)

Kailash Jani v. State Of Orissa

2017-11-01

D.P.CHOUDHURY, S.PUJAHARI

body2017
JUDGMENT S. Pujahari, J. - Kailash Jani, the appellant herein, is the sole accused in this case who faced a trial before the Sessions Judge, Ganjam-Gajapati in Sessions Case No. 615 of 2002 on the allegation that at 5 p.m. on 07.07.2002 he committed murder of Pradeep Kumar Behera (to be referred as the 'deceased' hereinafter) at village-Gudiapalli under Kabisuryanagar Police Station by inflicting a murderous blow on his neck by means of an Axe (Tangia), was convicted by the Trial Court under Section 302 of the Indian Penal Code 1860 (for short "the IPC") and sentenced to undergo R.I. for life. This judgment of conviction and order of sentence are under challenge in this appeal in shape of Jail Criminal appeal. 2. The accusation which led to trial of the appellant is that he and the deceased belong to village Gudiapalli under Kabisuryanagar Police Station and they came in loggerheads when the appellant did not pay money that he owned to the deceased. While the matter stood thus, it is alleged, on 07.07.2002 at about 5 p.m. When the deceased was sitting on a bench in front of his betel shop and taking a loaf, the appellant armed with an axe appeared at the scene and in a twinkling of eye, dealt a deadly blow on the neck of the unarmed deceased by means of an axe, for which the deceased dropped down on the road. It is further alleged that the appellant made good his escape by uttering words like "SALAKU HANIDELI SALA MARU". At that point of time, Gagan Behera @ Gagan Kumar Behera (P.W.7), the son of the deceased, who had entered inside the house just before then to fetch a glass of water for his father, reached near the scene of occurrence and found the appellant who was behind the bench of his father escaping with an axe in his hand uttering the aforesaid words and his father lying in a pool of blood Almost simultaneously, Moheswar Behera (P. W.3), the brother-in-law of the deceased, who was living on the other side of the road and watering his kitchen garden, hearing the scream of his brother-in law (Sister's husband), rushed to the spot and found the appellant running away towards his house with an axe in his hand. Bijaya Kumar Behera (P.W.8), the father of Moheswar Behera and few others of that locality gathered at that spot and immediately shifted the deceased to P.H.C., Polosara, from where on the advice of the doctor the deceased was shifted to MKCG Medical College and Hospital, Berhampur for better treatment. However, on 10.07.2002 at 7a.m. the deceased succumbed to the injuries sustained. While the deceased was undergoing treatment at MKCG Medical College & Hospital, Berhampur, P.W.3 on 08.07.2002 at 7.30 p.m lodged F.I.R (Ext. 4/1) at Kabisuryanagar Police Station whether investigation was taken up by Bansidhar Bardhan (P.W.11), incriminating materials were seized and appellant was arrested. On his production, an axe was also seized. On 10.07.2002 at 7a.m., autopsy was done on the dead body of the deceased by P.W.1- Dr. Jyotin Kumar Das, an Associate Professor, F.M.T., MKCG Medical College & Hospital, Berhampur under Ext 1. On completion of the investigation, charge-sheet was laid under Section 302 of IPC against the appellant. Consequently, the case was committed to the Court of Sessions. Charge was framed against the appellant under Section 302 of IPC. The appellant having denied to the charge and claimed to be tried, prosecution examined 11 witnesses and exhibited 9 documents. The appellant in his statement under section 313 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") denied the allegation. However, no witness was examined on behalf of the defence. Accepting the prosecution version, the Trial Court held the appellant guilty under Section 302 of IPC and sentenced him, as stated earlier. 3. Analyzing the oral and documentary evidence as well as the judgment rendered by the Trial Court, the learned Amicus Curiae representing the appellant to hold the appellant to have authored the crime and the alleged soliloquy being an embroidery in the prosecution case, his conviction under Section 302 of IPC is unsustainable both in law as well as in fact. 4. Per contra, the learned Additional Standing counsel defended the judgment rendered by the lower Court and urged that there being extrajudicial confession, oral dying declaration in addition to the testimony, of PWs. 3, 5 and 8 coupled with the medical evidence of P.W.7, the judgment of conviction and order of sentence do not call for any interference. 5. 4. Per contra, the learned Additional Standing counsel defended the judgment rendered by the lower Court and urged that there being extrajudicial confession, oral dying declaration in addition to the testimony, of PWs. 3, 5 and 8 coupled with the medical evidence of P.W.7, the judgment of conviction and order of sentence do not call for any interference. 5. It transpires from the evidence of the widow of the deceased, viz, Nandini Behera (P.W.4) that since the deceased insisted the appellant to pay back the money he owed, the appellant bore grudge which motivated him to kill her husband. This witness was subjected to some cross-examination where it was never suggested that the appellant did not owe any money to the deceased and there was no dispute over non-payment of the dues. This piece of evidence remained intact, not being countermanded in any manner by the defence. This appears to be the motive for the crime as per prosecution. 6. It is also not disputed that the deceased at the relevant time of occurrence was sitting on a bench in front of his betel shop taking a loaf. This aspect of the prosecution case stood firm despite incisive cross-examination, inasmuch as no suggestion was given to P.Ws. 3, 7 and 8 that at the relevant point of time the deceased was not sitting on a bench in front of his betel shop. Similarly, the topography of the area brought on record proves that the dwelling house and betel shop of the deceased is located near a deserted place with the house of PWs. 3 and 8 being at a distance of 100 to 150 cubit from the spot on the other side of the road and the house of one Prakash Kumar Behera (P.W.5) and that of the appellant being nearer to the house of the deceased. Ext. 7 is the spot map. From the spot, the Investigating Officer (P.W.11) has seized the bloodstains as well as sample earth under Ext.6. There is also no controversy that the appellant was living at a little distance from the house of the deceased in that locality. Ext. 7 is the spot map. From the spot, the Investigating Officer (P.W.11) has seized the bloodstains as well as sample earth under Ext.6. There is also no controversy that the appellant was living at a little distance from the house of the deceased in that locality. In this backdrop, the totality of the evidence revealed that when the deceased had been to his betel shop and taking a loaf sitting on a bench in front of the shop, the appellant came from behind the shop and dealt a menacing blow on the neck of the deceased with the axe. After causing fatal injury the appellant made good his escape raising a voice "SALAKU HANIDELISALA MARU". P.Ws.3, 7 and 8 have testified such aspect which has been elaborately dealt by the learned Trial Court in its judgment. 7. To ascertain whether the deceased died homicidal death, the learned Trial Court has discussed this aspect at length. P.W.1 is the then Associate Professor, Department of F.M.T., MKCG Medical College & Hospital, Berhampur. He had conducted autopsy on the dead body of the deceased on 10.07.2002 around 1.30 p.m. The doctor has noticed the following external and internal injuries "External Injuries : 1. A surgically stitched wound of 6c.m. long on the right side of the napeneck just below the hair margin 7 c.m. below the right mastoid. On removal of the stitches, the wound measures 6 c.m. * 1 c.m. * vertebral deep. The margins of the wound revealed slight bruising. Internal Injuries : 1. All the neck structures including muscles, vessels and nerbes corresponding to external injury No. 1 were cut and severed with extravasation of blood into adjacent tissues. The underlying fifth cervical vertebral was found particularly cut on its right side upto vertebral canal causing partially cut of the corresponding segment of spinal cord. Extra-vasated blood detected in the peri-vertebral tissues and coverings of spinal cord. The cut on the vertebral was associated with fracture and the cut wound on the spinal cord revealed marginal bruising." The P.W. 1 has opined the followings :- "Opinion 1. The injury on the neck mentioned above was antemortem in nature and was caused by a cutting weapon proximately within 48 to 72 hours prior to death. 2. Death was due to shock and haemorrhage resulting from the above mentioned injury to the neck. 3. The injury on the neck mentioned above was antemortem in nature and was caused by a cutting weapon proximately within 48 to 72 hours prior to death. 2. Death was due to shock and haemorrhage resulting from the above mentioned injury to the neck. 3. Time since death was within about six to twelve hours from the time of postmortem examination." 8. In defence cross-examination, the P.W. 1 has stated that a reasonable heavy sharp cutting weapon had been used in inflicting the injury. Admittedly, Axe is a moderately heavy to heavy sharp cutting weapon and when used as a weapon of offence endangers human life. Here, in course of investigation, on production by the appellant an axe has been seized by the Investigating Officer (P.W.11) on 08.07.2002 at 10.30 a.m. under Ext.5. Of course, there being no bloodstain found on that seized axe and unfortunately that axe having not been produced during the trial for identification and when that axe was also not sent to P.W.1 for opinion, seizure of that axe remained as a circumstance alone. Of course, the medical evidence of P.W.1 was not seriously challenged and it remained that the deceased died a homicidal death having sustained a grievous injury on his neck caused by moderately heavy to heavy sharp cutting weapon. 9. To inculpate the appellant as the author of the crime, the prosecution heavily relied on the testimony of P.Ws. 3, 7 and 8 as well as on the oral dying declaration of the deceased and the extrajudicial confession (soliloquy) of the appellant. The F.I.R. (Ext.4/1) has been lodged on 08.07.2002 at 7.30 p.m. by P.W.3. It is almost beyond 24 hours from the time of the occurrence. The cause of delay has been explained in Ext.4/1 as well as in evidence of P.W.3. Since P.W.3 had accompanied the deceased to Polosara C.H.C from the spot and returned at a belated hours after the deceased was shifted to MKCG Medical College & Hospital, Berhampur, there was delay. The explanation as such for the delay has not been questioned by the defence in cross-examination of P. W.3 or in the Crossexamination of P.W. 11. Since P.W.3 had accompanied the deceased to Polosara C.H.C from the spot and returned at a belated hours after the deceased was shifted to MKCG Medical College & Hospital, Berhampur, there was delay. The explanation as such for the delay has not been questioned by the defence in cross-examination of P. W.3 or in the Crossexamination of P.W. 11. In the facts and circumstances, such delay appears to be normal, inasmuch as there was no other adult person in the family of the deceased to lodge information before the Police at Kabisuryanagar Police Station which is 13 K.Ms away from the village-Gudiapalli. It is well settled that delay in lodging F.I.R. by itself would not be sufficient to discard the prosecution version unless it remains unexplained and unless such delay is coupled with the likelihood of concoction of evidence. The factum of delay requires the Court to scrutinize the evidence adduced with greater degree of care and caution. Reverting to this case, P.W.3 has given reason as to why these was delay in lodging F.I.R. Such explanation has also been embodied in the body of Ext.4/1. Explanation given appears to be highly probable and when such explanation has not been was not questioned by the defence, the delay can be said to have been satisfactorily explained. 10. Coming to the evidence of the eyewitness (P.W.7), he is a boy of tender age and has given a graphic description of the events witnessed by him in his inimitable style He was near his deceased father when the deceased was sitting on a bench outside the betel shop and taking a loaf. This aspect is unchallenged. According to this witness, he went inside his house to fetch a glass of water for his father and when he came back immediately with the glass of water, found the appellant armed with an axe standing on the backside of the bench and shouting "HANIDELI HANIDEU". On emergence of P.W.7, the appellant made good his escape holding the axe. Almost simultaneously his deceased father fell down with a bleeding wound on the eight side of his neck. This witness having not testified before the Investigation Officer that he went inside to fetch "A GLASS OF WATER", it has been contended by the learned Amicus Curiae that this witness is a liar and such exaggeration is adequate to discard his evidence. This witness having not testified before the Investigation Officer that he went inside to fetch "A GLASS OF WATER", it has been contended by the learned Amicus Curiae that this witness is a liar and such exaggeration is adequate to discard his evidence. The learned Trial Court has considered such aspect threadbare and reached at an unerring conclusion that notwithstanding such immaterial improvement the evidence of P.W.7 cannot be discarded, his presence at the spot being not an improvement from his earlier statement made before the police. One cannot lose sight of the fact that this P.W.7 is a boy of tender age and had seen his father in a dying state. It is possible that such omission crept in while stating some facts before the Investigation Police officer when the boy was emotionally surcharged having witnessed a gruesome act committed. Since the betel shop of the deceased adjoins his dwelling house, the presence of P.W.7 is natural. He had seen the appellant running away holding an axe shouting "HANIDELI HANIDELI" appears to be highly probable, this witness having seen the appellant running away from the spot. That is a confessional soliloquy. No substantial material has been brought out from this witness during cross-examination to discard such piece of evidence and the suggestion that the appellant never uttered any such word, does not cut any ice. Otherwise, P.W.7 being the son of the deceased, is a natural witness to the occurrence and when his presence at the spot is highly probable and established, his evidence cannot be thrown overboard merely because he is the son of the deceased. He is an immediate post occurrence witness. It is also settled law that merely because a witness is related to the deceased, his evidence cannot be per se discarded if otherwise found to be cogent and credible. Being a relative, it would be his endeavour to see that the real culprit is punished. He would not allow the real culprit to escape an innocent person is implicated in the crime. If the evidence of a relative is found to be consistent and trustworthy, free from infirmities or any embellishment, the same can be relied upon. Being a relative, it would be his endeavour to see that the real culprit is punished. He would not allow the real culprit to escape an innocent person is implicated in the crime. If the evidence of a relative is found to be consistent and trustworthy, free from infirmities or any embellishment, the same can be relied upon. The learned Trial Court after a threadbare discussion, placed absolute reliance on the testimony of P.W.7 notwithstanding some minor omissions and additions here and there and we do not have any reason to differ from the conclusion reached by the Trial Court which had the occasion to notice the demonour of the witness. 11. Adverting to the evidence of P.W.3 who is also the brother-in-law of the deceased, and who is staying at a distance of around 150 cubic from the house of the deceased intervening by a road, we find that on 07.07.2002 at 5 p.m., P.W.3 while sprinkling water in his kitchen garden in front of his house, heard the bawl of the deceased and rushed to the spot. While approaching, this witness had seen the appellant running away with axe in his hand. On arrival, this witness found the deceased lying on the ground beneath the bench of his betel shop with a cut injury on his neck. Being asked by him (P.W.3), it is testified that the deceased immediately uttered "Kailash Jani assaulted him for no reason". This is the substances of the evidence of P.W.3 inculpating the appellant. This witness, as brought on record, had lodged F.I.R. which he proved as Ext. 4/1. He has also accompanied the deceased to C.H.C., Polasara for treatment. Though subjected to a searching and incisive cross-examination, nothing substantial was brought on record to discard this witness outright. His presence at the spot rather stood firm, being not questioned. Otherwise, he is a natural post occurrence witness who at the relevant time was in front of his house and, therefore, had seen what he has deposed. His evidence on careful scrutiny remains intact there being no basic infirmity in his evidence. His presence in front of his house at the relevant time is not disputed. His presence is also probable inasmuch as it was the hour of the day when water is usually sprinkled in the kitchen garden. He had, seen P.W.7 standing near the deceased and weeping. His presence in front of his house at the relevant time is not disputed. His presence is also probable inasmuch as it was the hour of the day when water is usually sprinkled in the kitchen garden. He had, seen P.W.7 standing near the deceased and weeping. There is a ring of truth in his evidence and we are inclined to place reliance on his testimony as placed by the Trial Court. 12. P.W.8, the father of P.W.3, has deposed on oath that at the relevant time he was standing on the verandah of his house and had seen the appellant running away with a raising axe and shouting that he hacked 'BUDHA (nickname of the deceased). He immediately rushed to the spot and found the deceased lying in front of his house near the betel shop with bleeding wounds on his neck. He arranged a vehicle and the deceased was immediately shifted to the hospital for treatment. The presence of this witness on the outer verandah of his house was not challenged. It is natural too. PWs.3, 7 and 8 have no axe to grind against the appellant. P.W.7 being the son and PWs.3 and 8 being the relatives of the deceased have spoken what they had seen and what they had heard. Merely because they are related to the deceased, their evidence cannot be per se discarded if it is otherwise cogent and credible. Being a relative it would be their endeavour to see that the real culprit to escape unpunished and implicate wrong person in the crime. Thus, on cumulative assessment of such evidence, it emanates that all of them had seen the appellant running away from the spot with the axe in his hand and uttering "SALAKU HANIDELI SALA MARU". Their evidence also revealed that the deceased being confronted as to how he sustained injury on his neck, spoke that "BINAKARANARE KAILASHA MOTE HANIDELA". In addition to such piece of evidence, another material circumstance is seizure of an axe on voluntary production by the appellant in course of investigation. As already mentioned, delay in lodging of F.I.R is inconsequential for the same having been well explained to the satisfaction of the Court. Motive for the crime spoken by P.W. 4 also lends assurance to the testimony of the witnesses. The factum of oral dying declaration has also been incorporated in the F.I.R. 13. As already mentioned, delay in lodging of F.I.R is inconsequential for the same having been well explained to the satisfaction of the Court. Motive for the crime spoken by P.W. 4 also lends assurance to the testimony of the witnesses. The factum of oral dying declaration has also been incorporated in the F.I.R. 13. We noticed from the evidence of P.W.3 that his evidence with regard to the actual words said to have been uttered by the deceased was uniform, he having embodied almost identical word in his F.I.R, Ext.4/1. From the evidence of PWs. 3, 7, 8 and others, it is established that at the relevant time the deceased was in a fit mental state to divulge as to who was his assailant. It is settled law that conviction in a murder case on the basis of truthful dying declaration to the parents not even to strangers, even to police not even to the Magistrate is sufficient to convict the accused if there were other circumstantial evidence to support it. When the conviction of the accused is sought to be based on oral dying declaration the exact words of the deceased need to be reproduced. No doctor and Police Officer being present at that moment of time, certificate of mental fitness from the doctor was not expected particularly when it is the oral dying declaration. Admittedly, the deceased died only on 10.07.2002 at 7 a.m. almost three days after he gave such dying declaration incorporated in the F.I.R. P.W.3 normally and naturally has mentioned such fact in his report lodged at his earliest opportunity before the police. There is no reason why at that stage the deceased would falsely implicate the appellant against whom he had no axe to grind. They had no animosity. The only fact is that in an earlier occasion the deceased had insisted the appellant to payback some money he owed to him. Ordinarily, Clause (1) of section 32 of the Indian Evidence Act, 1872 makes relevant what is generally described as "dying declaration". It essentially means statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. Ordinarily, Clause (1) of section 32 of the Indian Evidence Act, 1872 makes relevant what is generally described as "dying declaration". It essentially means statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The general principle of which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this World is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so lawful is considered by the law as creating as obligation equal to that which is imposed by a positive oath administered in Court of justice. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "Nemo moriturus Proesumitur mentiri"- a man will not meet his maker with a lie in his mouth". In this regard, reliance can be placed on a decision of the Apex Court in the case of P.V. Radhakrishna vs. State of Karnataka, AIR 2003 S.C. 2859 . 14. Reverting back to the present case, normally and naturally when P.W.3 found the appellant running away from that side towards his house with an axe and he found the deceased lying with an injury on his neck, this P.W.3 asked the deceased as to how was that, to which the deceased inculpated the appellant by uttering the words "BINAKARANARE KAILASHA MOTE HANIDELA" (Kailasha Jani assaulted him for no reason). We would repeat that when the deceased was conscious as deposed by PWs. 3, 7, 8 and others and succumbed to the injuries only on 10.07.2002 and that oral dying declaration was made on 07.07.2002 immediately when he sustained injuries and particularly when there is no material to show that dying declaration was result of product of imagination, tutoring or prompting. Impact of injury as emanating from the cumulative fact circumstances had no impact on his thinking and speaking capacity. Absence of certification as to the state of mind of the declarant is, therefore, not fatal. Impact of injury as emanating from the cumulative fact circumstances had no impact on his thinking and speaking capacity. Absence of certification as to the state of mind of the declarant is, therefore, not fatal. Moreover, it is the obligation of the Investigating Police Officer as well as the doctor to record dying declaration and that being not done, the dying declaration brought on record being at the first point of time without prompting or tutoring is a piece of evidence which cannot be ignored. It is trustworthy and has credibility. It appears to have been made by the deceased voluntarily when he was conscious and none was there except his minor son where P.W.3 rushed in and ascertained such fact. State of mind being inherent from the testimony of P.W.3 much reliance can be placed on such oral dying declaration as done by the learned Trial Court. Judged in this line the evidence of the dying declaration is an additional link to the evidence of P.W.s.3, 7 and 8 and others chain of circumstances brought on record. 15. Reverting back to the confession of the appellant as incorporated in the F.I.R. "SALAKU HANIDELI SALAMARU" has been testified by P.W.7, the son of the deceased who reached the spot at the moment when the appellant was standing near the deceased holding an axe and when on arrival of P.W.7 he started running shouting "HANIDELI, HANIDELI". At that moment the deceased dropped down from the bench. It is well settled law that statement is a genus, admission is the species and "confession" is the subspecies. "Confession is a statement made by an accused admitting his guilt. Communication to another is not an essential ingredient of the concept of "confession'. A statement whether communicated or not, admitting guilt, amounts to "confession" of guilt. Its probative value does not depend upon communication of the same to another, though just like any other piece of evidence that can be admitted in evidence only on proof. This proof in the case of "oral admission" or "confession" can be offered only by a witness who heard the "admission" or "confession". This is admissible under section 24 of the Indian Evidence Act, 1872. The "confessional soliloquy" is a direct piece of evidence. This proof in the case of "oral admission" or "confession" can be offered only by a witness who heard the "admission" or "confession". This is admissible under section 24 of the Indian Evidence Act, 1872. The "confessional soliloquy" is a direct piece of evidence. It may bean expression of conflict of emotion, an argument to find excuse or justification for his act, a conscious effort to stifle the prick conscience or a penitent or remorseful act of exaggeration of his part in the crime The tone may be high, soft or low giving rise to confusion. They are, generally, mutterings of a confused mind. Before accepting such evidence it must be established by cogent evidence as to what were the exact words used by the accused. Even if so much was established, prudence and justice require that such evidence cannot be made the sole ground of conviction, but may be used only as a corroborative piece of evidence. In this regard, reliance can be placed on a decision of the Apex Court in the case of Sahoo vs. State of U.P., AIR 1966 S.C. 40 . 16. P Ws. 3, 7 and 8 have heard what the appellant uttered while he was leaving the place where none except him was present where the deceased was lying with injury on his neck and the appellant armed with an axe leaving that place uttering words "SALAKU HANIDELI SALA MARU". 17. On the basis of all such chain of evidence, viz. Oral dying declaration of the deceased, extrajudicial confession of the appellant and the evidence of immediate after occurrence witnesses, the appellant was found standing near the bench with an axe in his hand where the deceased was sitting, the deceased was found with an injury on his neck with blood oozing out from the wounds and the appellant running away from that spot uttering such words, the learned Trial Court came to the conclusion that the appellant inflicted that deadly murderous blows on the neck of the deceased who ultimately succumbed to such injuries while undergoing treatment in the hospital. On such findings, the learned Trial Court convicted the appellant under Section 302 of IPC and sentenced him to undergo R.l of life. The circumstance, from which the conclusion of guilt is to be drawn, has been fully established. On such findings, the learned Trial Court convicted the appellant under Section 302 of IPC and sentenced him to undergo R.l of life. The circumstance, from which the conclusion of guilt is to be drawn, has been fully established. All such chain of events lead to one and only conclusion that the appellant was the author of the crime who committed the murder of the deceased. No other reasonable hypothesis could be suggested as discussed threadbare by the learned Trial Court. The extrajudicial confession is a relevant piece of evidence which corroborates the circumstances brought on record. That part, when the appellant inflicted a murderous blow on the neck of the deceased by means of an axe, a dangerous weapon, which when used as a weapon of offence endangers human life, his intent to cause death is manifest from his act Such aspect has been carefully considered by the Trial Court So, the cul-de-sac conclusion is that the judgment rendered by the learned Trial Court holding the appellant guilty under Section 302 of IPC cannot be found fault with. 18. For the foregoing reasons, we find no merit in this Jail criminal appeal and accordingly, it stands dismissed. The impugned judgment of conviction and order of sentence recorded by the learned Sessions Judge, Ganjam-Gajapati are hereby confirmed. 19. L.C.R. received be sent back forthwith along with a copy of this Judgment.