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2017 DIGILAW 1300 (ORI)

Pramod Kumar Nayak v. State of Orissa

2017-11-13

S.PANDA, S.PUJAHARI

body2017
JUDGMENT S.PUJAHARI, J. - The appellant herein, calls in question the judgment of conviction and order of sentence dated 31.07.2003 passed by the learned Sessions Judge, Puri in S.T. No. 174 of 2002 convicting him under Section 302 of the Indian Penal Code, 1860 (for short “the IPC”) and sentencing him to undergo imprisonment for life. 2. Prosecution case, in brief, is that in the intervening night of 8/9.09.2001 the appellant killed his wife by inflicting injuries, by means of an axe on the vital part of her body, and that P.W.2, the Grama Rakhi of the village on receiving information of the incident from P.W.3, the elder brother of the appellant at about 4 a.m. rushed to the spot, noticed the deceased lying dead in her bedroom with profuse bleeding injuries and the appellant being present there. To the query of the P.W.2, the appellant admitted to have killed the deceased. Thereafter, the P.W.2 leaving the appellant under the guard of some people went to Nimapara police station and orally reported the incident. His report was reduced into writing and investigation was taken up by the Officer-in-Charge of the police station (P.W.14). In course of the investigation, the P.W. 14 conducted inquest over the dead body of the deceased, sent the same for postmortem examination, arrested the appellant, seized the Material objects including the weapon of offence upon disclosure statement made by; the appellant while being in police custody, recorded the statement of the material witnesses and on completion of investigation, submitted charge-sheet against the appellant under Section 302 of IPC. As the appellant pleaded innocence, trial commenced and prosecution examined 15 witnesses in toto and got entered into evidence, documents vide Exts. 1 to 12. The seized Material Objects were also produced during the trial vide M.Os. I to VI. The appellant did not choose to adduce any evidence in defence. 3. On evaluating the evidence on record and relying most on the evidence of the informant (P.W.2), child witness (P.W.7) who is the son of the appellant and on appreciating the circumstances incriminating the appellant, the learned trial Court held the charge to have been proved to the hilt and ultimately, convicted the appellant under Section 302 of IPC and sentenced him to life imprisonment vide the impugned judgment and order. 4. 4. The learned Amicus Curiae engaged for the appellant contends, inter-alia, that the learned trial Court ought not have relied on the evidence of the child witness, inasmuch as the improvement made by him during the trial is clearly suggestive of his being tutored. He also points out certain contradictions in the evidence of the P.W.2. He further highlighted that the other projected material witnesses did not support the prosecution case during the trial. As regards the factum of recovery of seizure of the axe (M.O.I), the learned Amicus Curiae argues that in view of non-support from the side of independent witnesses, the evidence of the Investigating Officer (P.W.14) could not have been relied upon so as to avail of the import of Section 27 of the Evidence Act. He further points out that the M.O.I. having not been produced before the P.W.1 who conducted postmortem examination, could not have been taken as the weapon of offence. 5. Per contra, the learned Addl. Standing counsel appearing for the State supports the verdict of the trial Court on the ground that the same has been based upon a through and painstaking evaluation of the evidence on record. 6. According to the prosecution, at the relevant night, the appellant was present along with the deceased-wife in the same room and their minor son, and there was no scope for anybody else to enter into the said room. The prosecution has also attributed the motive of crime to the appellant by presenting evidence that the appellant was not pulling on well with the deceased, for which the later along with the minor son was taking shelter at her parental home, and that the deceased had visited the house of the appellant to participate in the obsequies of the mother of the appellant and during that short stay, she was done away with at the hand of the appellant. It needs no mention that prosecution is not required in each and every case to prove the motive of the crime and if proved, the same can add to the strength of the prosecution. A perusal of the evidence of the relative witnesses, namely, P.Ws. 4, 8 etc. It needs no mention that prosecution is not required in each and every case to prove the motive of the crime and if proved, the same can add to the strength of the prosecution. A perusal of the evidence of the relative witnesses, namely, P.Ws. 4, 8 etc. would reveal that the relationship between the appellant and the deceased had been estranged for the reasons, inter-alia, that the appellant was not financially sound, for which he was demanding money from his in-laws and ill-treating the deceased, for which the deceased along with her minor son was staying at her father’s house for a period of above four years prior to the case incident. It is also pertinent to mention here that the defence elicited from the P.W.3 during cross-examination that the appellant was suspecting fidelity of the deceased resulting in the relationship being strained. Having regard to the materials as above, the learned trial Court has rightly affirmed that the estranged relationship between the couple was a motivative factor for commission of the crime. 7. P.W.3 has categorically stated in his chief that in the relevant night, while he was sleeping in one room, the appellant along with his wife was sleeping in another room in the same house. During cross-examination by defence, he however, turned inconsistent by saying that on the relevant date the appellant had returned home at midnight and slept on the outer verandah of the room of the P.W.3. It may be mentioned here that, the P.W.3 was declared hostile during the trial by the prosecution. Keeping in view the evidence of the P.W.2 and other circumstantial evidence on record to be dealt with hereinafter, the hostility of the P.W.3 to the prosecution is apparent on record. Be that as it may, the appellant during his examination under Section 313 of Cr.P.C., affirmatively replied to the question no. 4 that on the date (night) of the occurrence he was sleeping along with his wife separate from the room occupied by his elder brother (P.W.3). In that view of his statement, coupled with the evidence of P.W.2 and other materials on record, it can be safely held that at the relevant night he was available in the separate room along with the deceased. 8. In that view of his statement, coupled with the evidence of P.W.2 and other materials on record, it can be safely held that at the relevant night he was available in the separate room along with the deceased. 8. Now, adverting to the evidence of P.W.2, while being in the witness box, he has categorically stated that on being informed of the incident he reached the house of the appellant, found the deceased lying dead with throat being cut and that the appellant who was present there, admitted to have inflicted the injuries. The F.I.R. vide Ext. 2 affords corroboration to his evidence. During cross-examination at the instance of defence, some contradictions were elicited, which in our opinion, are not so major or grave as to distrust him. His version during the trial appears to be natural and there is nothing on record to suggest that he had any axe to grind against the appellant. It is thus proved through him that the appellant was present in the room near the dead body of the deceased and the P.W.2 noticed cut injuries on the neck of the deceased, i.e., the vital part of the body. I so far as the factum of extrajudicial confession is concerned, there is no quarrel over the legal proposition that a Grama Rakhi being not a police official, confession before him does not attract the bar under Section 25 of the Evidence Act. To reiterate, the P.W.2 being a natural and impartial witness, we agree with the view of the learned trial Court that the extrajudicial confession as proved through him is an admissible and reliable piece of evidence against the appellant. 9. P.W.7, the minor son of the appellant was reading in Class-V by the date of the incident. The learned trial Court had also the occasion of testing the competence of this child witness and on being satisfied in that respect, it believed his testimony notwithstanding some contradictions on material particulars. 9. P.W.7, the minor son of the appellant was reading in Class-V by the date of the incident. The learned trial Court had also the occasion of testing the competence of this child witness and on being satisfied in that respect, it believed his testimony notwithstanding some contradictions on material particulars. In his chief part of evidence, P.W.7 stated, inter-alia, that he was sleeping along with his parents in the same room and that on hearing cry of her mother, he got up and found his father (appellant) giving cut blows with ‘Kataria’ to the deceased, and that he became nervous at the scene and his father shifted him to the room of P.W.2 During cross-examination by defence, he admitted not to have stated before the Investigating Officer that he heard the cry of his mother or that he witnessed the assault. During cross-examination, however, it was brought out from him that on the relevant day there was ‘Gandagol’ (quarrel) between his parents. Being a child, it was very natural that he was sleeping with his parents in the relevant night. Notwithstanding the contradictions indicated above, the learned trial Court has reposed confidence in him and relied upon his evidence. The chance of tutoring has been rightly ruled out by the trial Court having regard to the nature, rationale spelt out in his evidence and other surrounding circumstances borne out from record. Needless to mention here that a motherless child is not supposed to speak anything falsehood against his father or rope him in any false implication. 10. Now, coming to the factum of recovery of axe (M.O.I.)., according to the prosecution, the same was seized by the P.W.14 concealed under a pineapple tree in the backyard of the spot house upon a disclosure statement made by the appellant while being in police custody. It is true to note that there is no independent corroboration to the evidence of P.W. 14 in this regard. At the same time, it may be said that there is no bar to believe the evidence of the Investigating Officer on a particular fact notwithstanding absence of any independent corroboration, if there is nothing to suggest that the Investigating Officer was biased or the investigation was tainted with any inherent flaw, falsehood or prejudice against the accused. At the same time, it may be said that there is no bar to believe the evidence of the Investigating Officer on a particular fact notwithstanding absence of any independent corroboration, if there is nothing to suggest that the Investigating Officer was biased or the investigation was tainted with any inherent flaw, falsehood or prejudice against the accused. Be that as it may, it is relevant to find that during his examination under Section 313 of Cr.P.C. the appellant vide his reply to the question no. 21 categorically admitted that being asked by the police he handed over the ‘Katari’ (axe) to the police (Investigating Officer) which he had kept under a tree (Pineapple tree). It is argued by the learned Amicus Curiae before this Court that the ‘Bari’ land being accessible to public, it is not safe to hold that the recovery was made on the disclosure statement of the appellant so as to bring the same under Section 27 of the Evidence Act. In the context, it may be stated here that Pineapple tree is not exactly a tree, but a bushy plant and something if kept under the said bushy plant, cannot be openly visible without a searching look. That apart, the place of recovery being the ‘Bari’ land of the appellant and there being nothing on record to show that the same was openly accessible to general public, having regard to the evidence of the P.W.14 and the statement of the appellant under Section 313 of Cr.P.C., it cannot be said that there was not concealment or that Section 27 of the Evidence Act was not applicable. 11. Now coming to the findings of the postmortem examination, it would appear from the evidence of the P.W. 1 who conducted such examination, the following external injuries were present on the dead body of the deceased; “(i) Incised wound on the right side of nostril of size ½” x 1/6th” x full thickness of nostril vertically placed. (ii) Incised wound on the right side of cheek of size 1 ½” x 1/4 “ x bone deep vertically placed, tailing downwards. (iii) Incised wound on the upper part of tragus of right ear of size 2" x 1/2" x bone deep vertically placed. (ii) Incised wound on the right side of cheek of size 1 ½” x 1/4 “ x bone deep vertically placed, tailing downwards. (iii) Incised wound on the upper part of tragus of right ear of size 2" x 1/2" x bone deep vertically placed. (iv) Chop wound on the lower boarder of right side mandible of size 5" x 1" x 1" extending from midline of neck upto right side angle of mandible. (along the line of mandible), tailing medially. (v) Incised wound on the right side of neck 1" below to the injury no.v and parallel to it of size 2" x ½” x ¼” . (vi) Incised wound over right side of clavicle horizontallyplaced of size 3" x ½” x ½” (upper broader of clavicle is cut). (vii) Incised wound present over left side and lower lip of mouth, obliquely placed 1 ½” x ½” x bone deep tailing medially. (viii) Incised wound over lower boarder of left side mandible ½” x 1/4th” x bone deep obliquely placed. (ix) Incised wound on the anterior part of left side shoulder 2 ½” x 1" x bone deep horizontally placed. (x) Chop would on the dorsal aspect of right hand extending from upper part of writ joint up to middle part of shaft of third metacarpal bone vertically placed 4 ½” x 1 ½” x bone deep.” 12. As per the opinion of the P.W.1, all those injuries were antemortem in nature and might have been caused by a heavy cutting weapon. His further opinion is that the death of the deceased was due to shock and haemorrhage resulting from the above injuries. It is also noteworthy that most of the injuries were seated on or near the neck which is vital part of the body. Needless to mention here that axe is a heavy cutting weapon. Although during investigation the Investigating Officer was bit lax in not producing the axe (M.O.I) before the P.W.1 for getting confirmation of the injuries being inflicted by the M.O.I., taking inot consideration the totality of the evidence already dealt with, we have no hesitation to affirm that the injuries were inflicted by means of M.O.I. and the death of the deceased was a result of those injuries. 13. 13. A cumulative study of the entire evidence thus leaves no room for doubt that the appellant intentionally inflicted bodily injuries as mentioned above which were sufficient to cause death in ordinary course of nature. The learned trial Court has righty convicted and sentenced the appellant and the impugned judgment warrants no interference by this Court. 14. Accordingly, this Criminal Appeal fails and is dismissed. L.C.R. received be sent back forthwith along with a copy of this Judgment. Appeal dismissed.