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2017 DIGILAW 1293 (ORI)

Narahari Gouda v. State of Orissa

2017-11-11

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellant Narahari Gouda faced trial in the Court of the learned Addl. Sessions Judge, Jeypore in Criminal Trial No.138 of 2013(T) for offences punishable under sections 302/201 of the Indian Penal Code for committing murder of his wife Manguli Gouda (hereafter ‘the deceased’) on 24.02.2013 night at village Bada-Atal and also causing disappearance of evidence by concealing her dead body. The learned trial Court acquitted the appellant of the charge under section 201 of the Indian Penal Code and found that a case under section 302 of the Indian Penal Code is not made out, however, he found the appellant guilty under section 304 Part-II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-(rupees five thousand), in default, to undergo further rigorous imprisonment for six months. 2. The prosecution case, as per the first information report lodged by P.W.2 Dhana Gouda before the Inspector in charge, Boipariguda police station on 25.02.2013 is that the deceased was the wife of the appellant and their marriage was solemnized twenty to twenty five years prior to the date of occurrence and on 25.02.2013 at about 11.00 a.m., one Rabindra Santa village Bhadraguda came and informed the informant about the death of the deceased. Hearing such news, P.W.2 and his younger brother Somanath Gouda rushed to village Bada-Atal where they found the deceased lying dead in a Dangar nearer to the village. They came to know that there was some dispute between the appellant and the deceased during the night on 24.02.2013 for which the deceased was assaulted by means of a lathi and her dead body was thrown in the Dangar. It is stated that the occurrence was witnessed by the mother-in-law of the deceased namely Pratima Gouda and P.W.4 Lalu Gouda who is the son of the appellant and the deceased. It is further stated that there used to be quarrel between the appellant and the deceased relating to family dispute and the appellant was suspecting the character of the deceased. On the basis of such first information report, P.W.10 Ramachandra Nayak, Sub-Inspector of Police attached to Boipariguda Police Station on the direction of the Inspector in-charge took up investigation of the case. He examined the informant, deputed a constable to guard the dead body. On the basis of such first information report, P.W.10 Ramachandra Nayak, Sub-Inspector of Police attached to Boipariguda Police Station on the direction of the Inspector in-charge took up investigation of the case. He examined the informant, deputed a constable to guard the dead body. On 26.2.2013 he visited the residential house of the appellant, prepared the spot map and also visited the Dangar where the dead body was disposed of and prepared map of that place. He held inquest over the dead body and prepared inquest report (Ext.1). He collected blood stained earth and sample earth from the Dangar under seizure list Ext.6. He dispatched the dead body for post mortem examination to C.H.C. Boipariguda. On 26.2.2013 the appellant was arrested and while in custody, the appellant led the police party and gave recovery of one lathi which is stated to be the weapon of offence and accordingly, the same was seized under seizure list Ext.2. The I.O. collected sample earth and blood stained earth from the house of the appellant under seizure list Ext.8, seized the lungi of the appellant in presence of the witnesses under seizure list Ext.9, wearing apparels of the deceased under seizure list Ext.10. The appellant was forwarded to the Court of learned S.D.J.M., Jeypore on 27.02.2013. The I.O. sent the seized articles to the Regional Forensic Science Laboratory, Berhampur for chemical examination and on 24.06.2013 after completion of investigation, he submitted charge sheet against the appellant under sections 302/201 of the Indian Penal Code. 3. During course of trial, the prosecution examined eleven witnesses. P.W.1 Dambaru Gouda is a witness to the inquest and he proved the inquest report Ext.1. P.W.2 Dhana Gouda is the brother of the deceased and he is the informant in the case. P.W.3 Brunda Santa stated about leading to discovery of a lathi at the instance of the appellant which was seized under seizure list Ext.2. P.W. 4 Lalu Gouda is the son of the appellant as well as the deceased who is an eye witness to the occurrence. P.W.5 Ramesh Nag is a witness to the inquest report Ext.1. P.Ws.6 and 7 stated that they have no knowledge about the incident. P.W.8 Bhima Santa stated about the seizure of stick under seizure list Ext.2. He was declared hostile by the prosecution. P.W.9 Dhana Gouda stated to have seen the dead body of the deceased lying in the Dangar. P.W.5 Ramesh Nag is a witness to the inquest report Ext.1. P.Ws.6 and 7 stated that they have no knowledge about the incident. P.W.8 Bhima Santa stated about the seizure of stick under seizure list Ext.2. He was declared hostile by the prosecution. P.W.9 Dhana Gouda stated to have seen the dead body of the deceased lying in the Dangar. P.W.10 Rama Chandra Nayak was the Sub-Inspector of Police attached to Bopariguda Police station who is the Investigating Officer of the case. P.W.11 Dr. Surjeet Garabadu was the Medical Officer attached to C.H.C., Bopariguda and he conducted the post mortem examination over the dead body and proved the autopsy report Ext.12. The prosecution exhibited twelve numbers of documents. Exts.1 is the Inquest report, Exts.2, 6, 8, 9 and 10 are the seizure lists, Ext.3/2 is the statement of the accused, Ext.4 is the written report, Ext.5 is the first spot map, Ext.7 is the dead body challan, Ext.11 is the office copy of forwarding memo to R.F.S.L., Berhampur and Ext.12 is the autopsy report. The prosecution also proved one material object M.O.I is the lathi. 4. The learned trial Court after considering the evidence on record has been pleased to hold that the evidence of P.W.4 is clear, cogent, reliable and unimpeachable in character and such evidence inspires confidence that the deceased was beaten to death by the appellant at his house. It is further held that the prosecution evidence becomes very much doubtful on the question of appellant giving recovery of lathi to the I.O. It was further held that there is no evidence on record that the lathi which is stated to have been seized by the I.O. was used by the appellant in the commission of assault to the deceased and the prosecution has failed to prove that M.O.I is the weapon of the offence. The learned trial Court further held that the medical evidence gives necessary corroboration to the evidence of P.W.4 that the deceased was beaten to death by the appellant with lathi. The learned trial Court further held that the evidence of P.W.2 suffers from contradictions in material aspects and therefore, the prosecution cannot derive any benefit from the evidence of P.W.2 in support of the case. The learned trial Court further held that the evidence of P.W.2 suffers from contradictions in material aspects and therefore, the prosecution cannot derive any benefit from the evidence of P.W.2 in support of the case. The learned trial Court further held that the circumstances under which the appellant assaulted the deceased do not indicate that appellant knew that the act of assault was so eminently dangerous that it must, in all probability cause the death of the deceased or such bodily injury to her as is likely to cause her death or that the appellant had any premeditation of the mind to kill the deceased and he assaulted the deceased in the heat of passion on a sudden quarrel and accordingly, convicted the appellant under section 304 Part-II of the Indian Penal Code. The learned trial Court while acquitting the appellant of the charge under section 201 of the Indian Penal Code held that there is absolutely no evidence from the side of the prosecution to show that the body of the deceased was concealed in Kendu Dangar so as to make it untraceable rather the prosecution evidence revealed that the body was lying in an open field and therefore, it cannot be said that the appellant caused disappearance of evidence. 5. Since the engaged counsel for the appellant did not appear to argue the appeal, Miss Sharmistha Nayak, Advocate was engaged as the counsel for the appellant. She was supplied with the copy of the paper book and was granted time to prepare the case. Learned counsel for the appellant placed the evidence and submitted that the evidence of the solitary eye witness to the occurrence who is none else than the son of the deceased is not clinching, trustworthy and he being a child witness was prone to tutoring and therefore, the learned trial Court erred in convicting the appellant solely relying on his evidence. He further submitted that the material witnesses who were present at the scene of occurrence as per the evidence of the eye witness like his elder brother has not been examined and therefore, the appellant should be given benefit of doubt. Miss Samapika Mishra, learned Addl. He further submitted that the material witnesses who were present at the scene of occurrence as per the evidence of the eye witness like his elder brother has not been examined and therefore, the appellant should be given benefit of doubt. Miss Samapika Mishra, learned Addl. Standing Counsel on the other hand submitted that the child witness was tested by the learned trial Court relating to his competency and after putting some questions, the learned trial Court found that he was giving rational answers and therefore, he was held to be competent to depose in the case and P.W.4 has categorically stated that the appellant assaulted the deceased by means of a lathi as a result of which the deceased died and thereafter, the appellant carried the dead body to the Danger. She further contended that nothing has been brought out in the cross examination and the ocular testimony of P.W.4 is corroborated by the medical evidence and therefore, the learned trial Court was justified in holding that the deceased died on account of assault by the appellant. 6. Adverting to the contentions raised by the learned counsels for the respective parties and after going through the case records, it appears that the entire prosecution case is based on the testimony of P.W.4 who is the son of the deceased as well as the appellant and also the doctor (P.W.11) who conducted post mortem examination. Coming to the nature and cause of death of the deceased, the doctor (P.W.11) has noticed the following injuries on the person of the deceased:- (i) Abrasion of size 4” x 2” over left buttock; (ii) Abrasion of size 4” x 1” over right buttock; (iii) Bruise of size 3” x 2” over left cheek; (iv) Bruise of size 2” x 2” over left forehead; (v) Bruise of size 2” x 1” on right axilla. He further found that the skull bone was fractured, which was compound in nature on left frontal region and there was an intracranial hemorrhage of size 3” x 2” x 2” on left frontal lobe. The doctor opined that the external as well as the internal injuries were ante mortem in nature and cause of death might have been due to massive intracranial hemorrhage. The doctor opined that the external as well as the internal injuries were ante mortem in nature and cause of death might have been due to massive intracranial hemorrhage. He further stated that the compound fracture injury may be possible due to blow by heavy blunt object like lathi and the compound fracture injury is sufficient to cause instant death. The autopsy report has been marked as Ext.12. Except putting some formal questions, nothing has been elicited in the cross-examination of the doctor to discard his evidence. The learned counsel for the appellant has also not seriously challenged the finding of the doctor relating to the homicidal death of the deceased and therefore, on a conjoint reading of the inquest report, post mortem report and the evidence of the doctor, I am of the view that the findings of the learned Trial Court regarding the nature of death of the deceased to be homicidal is based on clinching materials and therefore, I concur with such findings and I am also of the view that prosecution has established that the cause of death of the deceased was homicidal in nature. 7. Coming to the evidence of the sole eye witnesses to the occurrence i.e. P.W.4, it appears that since he was a child witness, at the time of deposition, the learned trial Court put some questions to him and the answers which were given has been mentioned. After putting the preliminary questions, the learned trial Court was of the opinion that such witness was giving rational answers and held him to be a competent witness. Section 118 of the Evidence Act states that even if a person is of tender age, he is competent to testify unless the Court considers that he is prevented from understanding the questions put to him or from giving rational answers to such questions. Law is well settled that the testimony of a child witness should be accepted only after great caution and circumspection inasmuch as he is susceptible to be swayed away by what others taught him and it is very easy to tutor a child witness. Law is well settled that the testimony of a child witness should be accepted only after great caution and circumspection inasmuch as he is susceptible to be swayed away by what others taught him and it is very easy to tutor a child witness. The learned trial Court has tested the intellectual capacity of the child witness by putting some questions and found that he is able to give rational answers and on going through the questions put and answers elicited, I am also of the view that the learned trial Court has rightly held that P.W.4 is a competent witness to depose. P.W.4 has clearly stated that on the occurrence day in the night, his parents returned home after taking liquor and then the quarreled with each other and during such quarrel, the appellant assaulted the deceased with a lathi as a result of which she died and then the appellant carried her dead body and dumped it in the Kendu Danger. In the cross-examination, P.W.4 has stated that when the deceased returned home with the appellant, she was having injury on her person and there was bleeding from her mouth and that he himself took his food and slept and on the next day morning, he came to know that his mother was dead. To a pertinent question put by the learned trial Court, he has stated that he had seen his father (appellant) assaulting his mother (deceased) with a lathi in the occurrence night. Therefore, the evidence of P.W.4 has not been shaken at all in the cross-examination and he appears to be a reliable and truthful witness and his version is also corroborated by the medical evidence which has been given by P.W.11. Law is well settled that in order to base conviction on the solitary testimony of a witness, the evidence must be clear, cogent, truthful, absolutely reliable and above board and it should inspire confidence. Without any slightest hesitation, I am of the humble view that the evidence of P.W.4 falls in such category. 8. Law is well settled that in order to base conviction on the solitary testimony of a witness, the evidence must be clear, cogent, truthful, absolutely reliable and above board and it should inspire confidence. Without any slightest hesitation, I am of the humble view that the evidence of P.W.4 falls in such category. 8. The occurrence took place all on a sudden and both the appellant and the deceased had taken liquor and there was sudden quarrel between the couple and during such quarrel, the appellant assaulted the deceased with a lathi and only one injury which was on the head proved to be fatal and therefore, the learned trial Court was justified in convicting the appellant under section 304 Part-II of the Indian Penal Code. However, taking into account, the surrounding circumstances under which the offence has taken place, the substantive sentence of rigorous imprisonment for ten years which has been imposed by the learned trial Court is reduced to rigorous imprisonment for a term of seven years. Section 304 Part-II of the Indian Penal Code prescribes punishment which may extend to ten years, or with fine, or with both and therefore, the imposition of fine along with substantive sentence is not mandatory. Since it is a jail criminal appeal and the appellant belonged to tribal area, therefore, looking at the financial condition of the appellant, I am of the humble view that the sentence of fine in addition to the substantive sentence of rigorous imprisonment for seven years is unwarranted. Accordingly, while maintaining the conviction of the appellant under section 304 Part-II of the Indian Penal Code, he is sentenced to undergo rigorous imprisonment for seven years only. 9. Before parting with the case, I would like to put on record my appreciation to Miss Sharmistha Nayak, the learned counsel engaged for the appellant for her effort in arguing the matter and she shall be entitled to her professional fees which is fixed at Rs.2,500/-. 10. The JCRLA stands dismissed subject to modification of the sentence.