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2017 DIGILAW 1246 (ORI)

Santu (a) Dillip Jena v. State Of Orissa

2017-11-01

S.PANDA, S.PUJAHARI

body2017
JUDGMENT S. Pujahari, J. - The appellant herein, had been convicted by the learned Second Additional Sessions Judge, Cuttack for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short "the IPC") and each of them has been sentenced to undergo R.I. for life 2. The abridged version of the prosecution story revealed that on 30.05.2000 at about 8.10 p.m. the appellant variously armed with arrived at Satichoura in an auto rickshaw giving threatening call in high pitch with intent to annihilate 'Hadia", the son of the deceased-Haramani. No sooner did the appellants reach near the cowshed, they found deceased-Haramani. Appellant-Santu @ Dillip Jena asked her as to whereabout of Hadia and when the deceased expressed her ignorance as to presence of Hadia in the house, all the appellants in an aggressive and menacing mood threatening to kill her unless whereabout of Hadia was divulged So, uttering, appellant-Santu @ Dillip Jena inflicted repeated blows by means of a sword on the head of the deceased while the appellants-Kanhu Jena and Ghunga @ Babindra Jena also dealt blows by means of swords on different pads of Haramani's body. Co-incidentally, Surendra Behera (P.W.5), the husband's brother of the deceased and Jhunu Behera (P. W.4), the daughter of the deceased, were near the cowshed at that moment. Unarmed P.Ws.4 and 5 finding such murderous assault on the deceased by the aggressive appellants trembled in fear and concealed their presence behind the cowshed from where they could notice the entire occurrence. The moment the deceased dropped down in a pool of blood oozing out from the site of assaults, the appellants left the place together still shouting "MAA KAMA SARIGALA, AAU HADIA 00 GEDU RAHIGALE". The appellants left in the same autorickshaw in which they had arrived in the scene of occurrence. After the appellants left the spot, P.Ws.4 and 5 gathered courage and came out of hiding. They found the deceased was lying in a pool of blood with injuries on her head, face and other parts of the body. Within minutes, some police personnel (P.Ws.1, 2 and 3) and several others from the neighbourhood arrived. Few minutes thereafter, at around 8.20 p.m., the I.I.C., Lalbag Police Station also reached the spot, before whom P.W.5 lodged F.I.R. (Ext. Within minutes, some police personnel (P.Ws.1, 2 and 3) and several others from the neighbourhood arrived. Few minutes thereafter, at around 8.20 p.m., the I.I.C., Lalbag Police Station also reached the spot, before whom P.W.5 lodged F.I.R. (Ext. 1) at 8.24 p.m. The deceased who was in a dying stage, was immediately sent to the S.C.B. Medical College & Hospital, Cuttack where she succumbed to the injuries. The plain paper report (Ext. 1) was treated as F.I.R. under Lalbag P.S. Case No. 122 dated 30.05.2000 and on the direction of the I.I.C., P.W.10, S.I. of Police-Braja Mohan Das took up investigation. Inquest (Ext.6) was done over the dead body of the deceased and under dead body challan (Ext.7) the dead body was sent for post-mortem examination where Dr. S.K. Nayak, Lecture in the Department of F.M.T., S.C.B Medical College & Hospital, Cuttack conducted post-mortem examination on the dead body as per his report, Ext.3. The doctor opined that all the injuries, external as well as internal, were antemortem in nature and could have been caused by moderately heavy to heavy sharp cutting weapons and further observed that the death was due to shock and haemorrhages as a result of multiple incised wound involving head, face and other parts of body. Incriminating materials including the autorickshaw were seized. Some incriminating articles were sent for chemical examination. On receipt of chemical examination report (Ext. 10), wrapping up investigation. P.W. 10 charge-sheeted the appellants under Section 302 read with Section 34 of IPC. As usual, the offence being exclusively triable by the Court of Sessions, the case of the appellants was committed to the Court of Sessions after observing all the formalities whereafter the learned Trial Court framed charge against the appellants under Section 302 read with Section 34 of IPC. Since the appellant abjured the charge and pleaded not guilty, trial commenced. 3. In support of the case, the prosecution examined 10 witnesses and exhibited 11 documentary evidences. The appellants in their defence have not laid any witness nor have proved any document. Under the impugned judgment dated 03.07.2003 passed in S.T. Case No. 31 of 2001, the learned Trial Court held the appellants guilty of the charge under Section 302 read with Section 34 of IPC and convicted and sentenced the appellants as stated above. The judgment is under challenge in this appeal. 4. Under the impugned judgment dated 03.07.2003 passed in S.T. Case No. 31 of 2001, the learned Trial Court held the appellants guilty of the charge under Section 302 read with Section 34 of IPC and convicted and sentenced the appellants as stated above. The judgment is under challenge in this appeal. 4. In this case, the autopsy on the dead body was performed by P.W.7, a Lecturer in F.M.T., S.C.B. Medical College and Hospital, Cuttack. On autopsy, P.W.7 has noticed the following external and internal injuries under Ext. 3:- External Injuries:- (1) Curved stitched incised wound of total 28 Cm. Long containing 11 black stitches situated over right side head and face extending from right temporal region to right frontal then to right zygoma then vertically downward along outer canthus of right eye to right angle of mouth then downwards to right side chin then backwards upto right angle of mandible. On removal of stitches the wound is found muscle deep and taking acide a flap of skin with muscles on the right side head and face (2) Stitch incised wound of 3 Cm. Long containing 3 black stitches situated transversely on the right side face extending outward from the middle of right side nose (3) Stitch incised wound of 12 Cm. Long containing 12 black stitches situated on the left side head and face, close to mid line extending vertically downward from left side of front hair margin to lower margin of upper lip across left ala of nose. On removal of stitches the wound was involved frontal bone through and through (4) Stitch incised wound of 2.5 Cm. long containing 3 black stitches situated obliquely extending from middle of upper lip to inner aspect of right ala of nose cutting partly right central incisor tooth of upper jaw (5) Stitched incised wound of 4 Cm. long containing 4 black stitches situated vertically just right lateral to mid line externing from upper margin of lower lip tq base of chin. The wound is found muscle deep, on removal of stitches. (6) Stitch incised wound of 9 Cm. long containing 8 black stitches situated on the left side mandibular and some soft mandibular areas extending downward from upper margin of lower lip close to lateral incisor to chin then backwards. The wound is involved half thinckness of mandible on removal of stitches. (6) Stitch incised wound of 9 Cm. long containing 8 black stitches situated on the left side mandibular and some soft mandibular areas extending downward from upper margin of lower lip close to lateral incisor to chin then backwards. The wound is involved half thinckness of mandible on removal of stitches. (7) Coshaped (sic) curved incised wound of 7 Cm. long exposing skull bone situated on left occipital region Concavity of wound facing anteriorly and downward (8) Stitch incised would of 9 Cm. long containing 6 black stitches situated antero posteriorly on the mid part of top of right shoulder on removal of stitches the wound was cut right clavicle into two pieces (9) Stitch incised would of 3 Cm. long containing two black stitches situated antero posteriorly 2 Cm. medial to lower part of previous injury which superficial telling of 6 Cm. on the back. (10) Multiple (four numbers) superficial linier cuts situated on the right side front of chest and shoulder in different directions (11) Stitch incised wound of 2 Cm. long containing one black stitch situated transversely on the mid part of dorsom of right palm (12) Incised wound of 2.7 cm x 1 Cm x muscle deep situated vertically on the dorsum of left palm extending upward from the web space of left thumb and index fingers. On Dis Section:- (1) Left frontal bone is found cut through and through for 3.5 Cm. long from the upper end of which a fissure fracture radiates backwards for about 6 Cm. to end 2 Cm. in front of coronal suture (2) Dura is cut for 2 Cm. left frontal region. (3) Brain is found intact, pale and mild pedematous. (4) Both the lungs are found intact and pale. (5) Heart is found intact and all the 4 chambers are found empty. (6) Liver, splin and both kidneys are found intact and pale. (7) Stomach is found intact and contains 200 Ml. of rengested blood. (8) Uterous is found intact and empty. The doctor, P.W.7 with reference to Ext.3 has opined the followings :- " All the above mentioned injuries are antemortem in nature and could have been caused by moderately heavy or heavy sharp cutting weapon (2) All the injuries together and external injury no. 3 individually fatal in ordinary course of nature. (8) Uterous is found intact and empty. The doctor, P.W.7 with reference to Ext.3 has opined the followings :- " All the above mentioned injuries are antemortem in nature and could have been caused by moderately heavy or heavy sharp cutting weapon (2) All the injuries together and external injury no. 3 individually fatal in ordinary course of nature. (3) Death is due to shock and haemorrhages as a result of multiple incised wound involving head, face and other parts of body. (4) Time since death was about within 12 to 18 hours prior to the time of conducting post-mortem examination." This evidence of P.W.7 leads to the cul-de-sac conclusion that the deceased died a homicidal death. This evidence of the doctor stood firm since nothing has been brought on record to discard or discredit such firm medical opinion which aspect has been elaborately dealt with and considered by the learned Trial Court 5. In this backdrop, we have heard the learned counsel for the appellants and the learned Addl. Standing counsel for the Respondent-State at length. We have sifted the judgment rendered by the learned Trial Court vis-a-vis the oral and documentary evidence with care and caution 6. It has been contended by the learned counsel for the appellants that all the witnesses named in the F.I.R. having not been examined and prosecution having examined the only witnesses of its choice and more particularly, when P.Ws.4 and 5 are close relations of the deceased, the conclusion of guilt recorded by the learned Trial Court is not above reproach in absence of independent corroboration and, therefore, liable to be interfered with. 7. Assailing such contention, the learned Addl. Standing counsel for the State defended the judgment of conviction and order of sentence. According to him, the evidence of the prosecution witnesses being clear, convincing and consistent and when there is apparently no contradictions between ocular and medical testimony, the verdict of the Trial Court cannot be found fault with. 8. Before we delve into the questions raised, we would like to add that the record revealed that the occurrence under challenge took place on 30.05.2000 at 8.10 p.m., within minutes, the I.I.C., Lalbag Police Station arrived at the spot being intimated by P.Ws. 8. Before we delve into the questions raised, we would like to add that the record revealed that the occurrence under challenge took place on 30.05.2000 at 8.10 p.m., within minutes, the I.I.C., Lalbag Police Station arrived at the spot being intimated by P.Ws. 1, 2 and 3 who were performing duty near Satichoura and who having heard commotion from nearby, reached the spot and found a woman lying in a pool of blood in dying state. When FIR, Ext. 1 was lodged at the spot by P.W.5 within minutes of the occurrence incorporating the names of the assailants and persons who had witnesses the incident and when that plain paper FIR was immediately sent to the Police Station and got registered, chance of concoction, deliberation, addition and embellishment is ruled out. It is a spontaneous report lodged within minutes of the occurrence at the spot by a close relative who had seen the occurrence from a handshake distance while hiding behind the cowshed where the incident occurred P.W.5, the husband's brother of the deceased had narrated in details the entire episode attributing overt acts to all appellants. P.W.4, the daughter of the deceased, who was with P.W.5 near the cowshed, had supplemented and corroborated the evidence of P.W.5 who has deposed in Court on oath what was incorporated in the F.I.R., Ext. 1 lodged within minutes of the occurrence. We have given our anxious considerations to the contentions raised by the learned counsel for the defence. On careful sifting the evidence of P.Ws. 4 and 5, we find such evidence is overboard there being no inherent improbability, contradictions, omission or exaggeration in their version. Nothing substantial was elicited to discard or disbelieve P.Ws. 4 and 5 in this peculiar facts and circumstances of the case where their presence at the spot is natural and highly probable. It is brought on record that usually the deceased, P.Ws.4 and 5 come to their cowshed and on that fateful date and time they had been to that cowshed. Once P.W.5 found the murderous assault on the deceased and when the appellants were in a threatening tone disclosing their intention to kill Hadia and his other family members, in order to save themselves from the clutches of the appellants. P.Ws. 4 and 5 concealed behind the cowshed from where they could notice the entire occurrence. Once P.W.5 found the murderous assault on the deceased and when the appellants were in a threatening tone disclosing their intention to kill Hadia and his other family members, in order to save themselves from the clutches of the appellants. P.Ws. 4 and 5 concealed behind the cowshed from where they could notice the entire occurrence. They have given a graphic description in a most normal and natural manner. Their version being consistent with substratum of the prosecution case as incorporated in Ext. 1 and when their presence at the spot is natural, we find no ground to discard their version outright as contended 9. P.Ws. 1, 2 and 3, all Police constables, as brought on record, were performing usual patrolling near Satichoura Crossing. Around 8 p.m. hearing commotion from the nearby place, they rushed to the spot and found one old lady was lying in a dying state near a thatched hut. P.W.1 being an agile Police constable informed the fact to the I.I.C., Lalbag Police Station over phone. Soon thereafter the I.I.C. appeared and took charge of the preliminary stage of investigation, received the F.I.R., Ext.3, sent it to the Police Station for registration and on his command, P.W. 10, the Investigation Officer arrived soon and took up investigation of the case. Presence of P.Ws. 1 , 2 and 3 is also natural they being at a nearby place performing their routine patrolling. They have seen the deceased lying in a pool of blood at that site. In addition to those close relatives, viz. P.Ws.4 and 5 and Police personnel, viz P.Ws. 1, 2 and 3, several other persons also arrived at the spot, that being a "Basti". One such person is P.W.8 - Keshab Behera. His statement revealed that on the relevant date and time while he was proceeding in a car negotiating Satichoura on the Ring road he noticed a gathering by the site of Ring road with commotion. He had the occasion to notice the appellants along with Babi and Z Nazir Khan armed with swords shouting as "SALA HADIA GEDA KUADE GALA MAKAMA SARIGALA." This P.W.8 rushed to the spot where he found the deceased lying with a pool of blood in an unconscious stage. This witness has noticed injuries on the head and face of the deceased. This witness has noticed injuries on the head and face of the deceased. This witness was subjected to some cross-examination, but on a careful scrutiny we do not find any substantial material to disbelieve this P.W. 8 who is neither inimically disposed towards the appellants nor had any soft corner for the deceased. He appears to be an independent and disinterested witness. 10. P.W.9 (Purna Chandra Senapati is another such person who coincidentally arrived at the scene on hearing such commotion. He has deposed on oath that while negotiating CDA to get his daily wage being a carpenter, near Satichoura crossing he found a gathering with commotion where he also noticed the appellants being armed with swords approaching the Ring road. This witness has also noticed that the appellants left the place in an autorickshaw. On his reaching the spot, he found the deceased-Haramani lying in a pool of blood. This witness was also subjected to some incisive cross-examination but nothing substantial was elicited either to disbelieve his presence or discard his version. Like P.W.8 this disbelieve his presence or discard his version. Like P.W.8 this witness has also no axe to grind against the appellants. He is also not related to the deceased. The PWs. 8 and 9 are totally independent and disinterested immediate post occurrence witnesses who had seen the appellants armed with sword leaving the place in an autorickshaw shouting. They have also seen the deceased lying in a pool of blood with multiple injuries where they ascertained from P.Ws. 4 and 5 as to who assaulted the deceased to death. Such evidence as such is admissible in evidence. This is the gist of the evidence brought on record in addition to the version of the Investigation Officer who has testified as to the investigation conducted by him. 11. A conspectus of evidence revealed that all the appellants arrived at the spot armed with sword shouting to kill Hadia. The evidence also revealed in clear terms that after such murderous assault on the deceased, all the appellants left the spot simultaneously. They had come to the spot in an autorickshaw and left in the same autorickshaw. In course of investigation, that autorickshaw bearing No 0R-05B-6332 was seized from its owner-Krushna Chandra Pradhan (P.W.6). After seizure that autorickshaw was left in the zima of its owner who executed zimmanama (Ext.2). They had come to the spot in an autorickshaw and left in the same autorickshaw. In course of investigation, that autorickshaw bearing No 0R-05B-6332 was seized from its owner-Krushna Chandra Pradhan (P.W.6). After seizure that autorickshaw was left in the zima of its owner who executed zimmanama (Ext.2). F.I.R. (Ext.1) in the instant case was lodged at the spot within 10 minutes of the occurrence indicating the parts played by the appellants. Since the F.I.R. was lodged at the earliest occasion, the chance of embellishment, introduction of any coloured version, exaggeration or concoction are ruled out. Here, in a plain and simple way, P.W.5 had lodged the F.I.R. which is in consonance with the versions of P.Ws.1. 2, 3, 4, 5, 8 and 9. Ocular version revealed that the assaults were made by sword which is a heavy sharp cutting weapon and when used as a weapon of offence that endangers human life. In the peculiar facts and circumstances, non-seizure of such weapon offence is of no avail in face of positive evidence of the prosecution witnesses that the appellants used heavy sharp cutting weapons like sword. P.W.7, the Lecture in FMT with reference to injuries noticed by him, in categorical terms has deposed that the injuries were caused by moderately heavy to heavy sharp cutting weapon. He has also opined that the injuries were sufficient in ordinary course of nature to cause death. Here, the death was due to shock and haemorrhages resulting from multiple incised wounds involving head, face and other vital parts of the body. Only because P.Ws.4 and 5 who are natural eyewitnesses to the occurrence, happened to be close relatives of the deceased, their version cannot be thrown overboard as contended. On the contrary, they being close relatives they would not sphere the real culprit and implicate innocent. Moreover, they have no animosity against the assailants. Their version is consistent and is in consonance with medical evidence. That apart, there is no inherent discrepancy, inconsistency or improbability in the evidence of PWs. 1, 2, 3, 4, 5, 8 and 9. They all appear to be natural witnesses to the occurrence, their claim as to presence at the spot being not demolished or doubted. P.Ws.4 and 5 are close relations having no motive to inculpate the appellant in false accusation and no special reason has been ascribed as to why their evidence should be thrown out. They all appear to be natural witnesses to the occurrence, their claim as to presence at the spot being not demolished or doubted. P.Ws.4 and 5 are close relations having no motive to inculpate the appellant in false accusation and no special reason has been ascribed as to why their evidence should be thrown out. The version of P.Ws.4 and 5 that the appellants dealt "sword" blows on the person of the deceased is in complete agreement with the opinion of P.W.7 as reflected in Ext.3. All such aspects of the lase have been carefully discussed by the learned Trial Court who observed that much reliance can be placed on the testimony of P.Ws.4 and 5 in the facts and circumstances of the case The observation and conclusion recorded by the earned Trial Court seems to be plausible. Therefore, no adverse inference can be drawn against the prosecution case on any such score as contended. 12. There is another piece of evidence pointing to the guilt of the appellants. P.Ws.4, 5 and 8 have stated that while leaving the scene of occurrence armed with swords the appellants in a chorus shouted "MAA KAMA SARIGALA, AAU HADIA OO GEDU RAHIGALE". This piece of evidence is relevant and admissible in evidence. It is well settled law that statement is a genus, admission is the species and "confession" is the sub-species. "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 lot admitting guilt, amounts to a "confession" of guilt. Their probative value does lot depend upon their communication to another, though just like any other piece of evidence they can be admitted in evidence only on proof. This proof in the case of "oral admission" or "confession" can be offered only by 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 be an 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 or soft and low, my be confused. They are, generally, mutterings of a confused mind. The tone may be high or soft and low, my be confused. 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 . 13. It is well settled law that when a group of persons come to the place on occurrence being armed with deadly weapons like sword, their intention and purpose would be more than apparent. Such persons cannot argue with incident occurred at the spur of moment or there being long standing dispute between them, they are innocent of the charge. In this regard, a reliance can be placed on a decision of the Apex Court in the case of Baleshwar Mahto and another vs. State of Bihar and another,(2017) 66 OCR (SC) 737 . So far as the common intention is concerned, it has to be gathered from the facts and circumstances of the case. Proof of overt act is not essential but showing of common intention is necessary. Essence of Section 34 of IPC is simultaneous consensus of minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot. When the appellants arrived in an autorickshaw variously armed with and after commission of the crime when they left the place simultaneously muttering "MAA KAMA SARIGALA, AAU HADIA OO GEDU RAHIGALE", the mischief of Section 34 of IPC is attracted as rightly held by the Trial Court. 14. In the premises aforesaid, when the appellants arrived at the spot beings armed with deadly weapons raising loud voice to annihilate Hadia and any members of his family and when all of them simultaneously dealt murderous blows on the vital part of the body of the deceased and once the deceased dropped out senseless in a pool of blood, all of them left the spot together again raising voice to kill Hadia who deliberately concealed. That being the proved facts, all such lead to the one and only conclusion that the appellants intentionally caused the death of the deceased as held by the Trial Court. 15. In view of the aforesaid discussions, we do not find any error in convicting the appellants for the offence under Section 302 read with Section 34 of IPC by the Trial Court. The learned Trial Court in a well reasoned judgment has dealt' with the factual aspect in the backdrop of legal scenario and there is no chance to disagree with such cul-de-sac conclusion. Consequently, there being no merits, this appeal stands dismissed L.C.R received be sent back forthwith along with a copy of this Judgment.