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2017 DIGILAW 582 (ORI)

Sibaram Mohanta v. State of Orissa

2017-05-15

D.P.CHOUDHURY, S.K.MISHRA

body2017
JUDGMENT S.K. MISHRA, J. - This is an appeal against the judgment of conviction and order of sentence. On 05.07.2002, at about 1.30 P.M., one Dasarath Nayak was working in his agricultural field (stated to be cutting paddy from his field). He heard ‘hallah’ from a distance and turned his attention to the road, i.e situated at a distance from the paddy field and saw that the accused-convict, namely, Sibaram Mohanta was assaulting the deceased, his own father, by means of a stone. The said witness further saw the accused to be running away from the spot. Hence, he rushed to the village and informed the matter to Lokanath Nayak (P.W.3) and Duryodhan Nayak (P.W.2). They chased the accused and Duryodhan caught hold of him. Then, on their asking, the convict told that he assaulted his father due to anger. These three persons brought the convict to the spot where they found that the deceased was lying dead in a pool of blood. One Kedarnath Naik, Ward Member of the village was informed, who in turn, lodged FIR before the Officer in-charge, Keonjhar Sadar Police Station, who in turn registered P.S. Case No.111/2002 for the alleged commission of offence under Section 302 of the Indian Penal Code, 1862, hereinafter referred to as ‘the IPC’ for brevity and took up the investigation of the case. Out of the aforesaid case, the case, bearing S.T. Case No.13/21 of 2003-04 (G.R. Case No.566/2002) arose and after being committed, the same came to the Court of Adhoc Addl. Sessions Judge (F.T.), Keonjhar for trial. 2. In course of investigation, the Investigating Officer examined several witnesses, made seizures, visited the spot, dispatched the dead body of the deceased for post-mortem examination, arrested the accused and forwarded him to Court. He after receiving the post-mortem report made further queries from the doctors, who had conducted the post mortem examination over the dead body of the deceased and then finally after completion of investigation finding a prima facie case against the petitioner submitted charge-sheet under Section 302 IPC, inter alia stating that the petitioner has committed murder of his father on 05.07.2002, at 1.30 P.M. on the village road near Sahebkata jungle. 3. In course of trial, the convict-accused-appellant pleaded not guilty and took the plea that his father fell down from a ‘Sal’ tree and sustained injuries and, therefore, he died. 4. 3. In course of trial, the convict-accused-appellant pleaded not guilty and took the plea that his father fell down from a ‘Sal’ tree and sustained injuries and, therefore, he died. 4. In order to prove its case, the prosecution examined seven witnesses in total, led into evidence 16 documents, marked as Exhibits 1 to 16/1 and 7 material objects. P.W.4, Kedarnath Nayak is the informant of the case. He is not an eye witness to the occurrence. The solitary eye-witness to the occurrence is Dasarath Nayak He has been examined as P.W. 1. P.W. 2, Duryodhan Nayak and P.W. 3, Lokanath Nayak are the two persons before whom P.W. 1 Dasarathi Nayak narrated about the incident and they decided to catch hold of the appellant and thereafter chased the appellant and caught hold to him. P.W. 5, Jugal Kishore Barik is the Constable, who escorted the dead body of the deceased for post-mortem examination. On return to the Police Station, he produced wearing apparels of the deceased and command certificate, which were seized by the I.O. P.W. 7 is the Doctor, who has conducted post-mortem examination on the dead body of the deceased and also rendered his opinion on the query made by the I.O., P.W.6, Balmukanda Sarangi is the Investigating Officer of the case. 5. In his defence, the appellant himself examined as D.W. 1 but did not lead any documents and material object into evidence. Taking into consideration the evidence on record, especially the statement of P.W. 1, who was supposedly corroborated by P.Ws. 2 and 3 and the medical opinion rendered by P.W. 7, the learned Addl. Sessions Judge went on to convict the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. The learned Addl. Sessions Judge has also examined the defence plea and has come to the conclusion that the plea of the defence is not established. Such judgment of conviction and order of sentence are assailed in this appeal. 6. In course of hearing, the learned Counsel for the appellant challenged the judgment of the learned Addl. Sessions Judge on the ground of erroneous appreciation of the evidence led by the prosecution and the defence. In her contention, the learned Counsel submitted that the Addl. Such judgment of conviction and order of sentence are assailed in this appeal. 6. In course of hearing, the learned Counsel for the appellant challenged the judgment of the learned Addl. Sessions Judge on the ground of erroneous appreciation of the evidence led by the prosecution and the defence. In her contention, the learned Counsel submitted that the Addl. Sessions Judge erred in convicting the appellant for the offence under Section 302 IPC as the case is based on a chance, solitary witness, whose evidence cannot be believed because of the attending circumstances and the fact that he saw the alleged incident from a distance of about 300 meters. The learned Counsel for the appellant also submitted that the learned Addl. Sessions Judge did not appreciate the materials on record in its proper perspective and fastened guilt on the appellant on the basis of latches of the defence case without examining whether the prosecution has successfully brought home the charges levelled against the appellant beyond all reasonable doubt. Therefore, he argued that this is a fit case where the judgment of conviction should be set aside. On the contrary, the learned Addl. Government Advocate argued that the Addl. Sessions Judge has a perspicacious view of the materials on record and there is no reason to disturb the findings in appeal. In other words, he supported the judgment rendered by the leaned Addl. Sessions Judge. 7. In a trial of offence of murder, the most important aspect that needs to be examined at the threshold is whether the death of the deceased is homicidal in nature or not. The doctor has categorically stated that the injury found on the deceased is the cause of death and he has also opined that the death of the deceased could have been caused by means of a stone. However, he also opined that the injury on the deceased-appellant be possible by fall from a height. So, taking into consideration the medical evidence available, it cannot be conclusively stated that the death of the deceased was homicidal in nature. Such a finding has to be dependent other evidence available on record. 8. Undisputedly, the prosecution heavily relied upon the testimony of P.W. 1, who happens to be the eye witness to the occurrence, as claimed by the prosecution. In his statement, he stated that he knew the accused. Such a finding has to be dependent other evidence available on record. 8. Undisputedly, the prosecution heavily relied upon the testimony of P.W. 1, who happens to be the eye witness to the occurrence, as claimed by the prosecution. In his statement, he stated that he knew the accused. He also knew the deceased father of the appellant. He has further stated on oath that the occurrence took place about two years back in the month of Shrabana, at about 1 to 2 P.M. At that time, the witness was cutting paddy from his field. In course of such cutting the paddy, he heard ‘hallah’ from a distance and hence he focused his attention and found the accused to be assaulting the deceased by means of a stone. He has further stated that the accused was running from the spot. The witness decided to rush to the village and informed the villagers about the incident. He has specifically informed Lokanath and Durjoydhan and others of the village. The villagers decided to catch hold of the appellant. Thereafter, the witness himself, Durjyodhan and Lokanath chased the accused and Duryodhan caught hold of the accused. Thereafter, the appellant was asked why he assaulted the deceased to which the appellant answered that he assaulted his father by means of a stone due to anger. Then, the appellant was taken to the place of occurrence where the deceased was lying with multiple injuries on his body. The Ward Member of the village was informed. He informed the matter before the police. Police came, arrested the accused, who was detained in the village. In the cross-examination, P.W. 1 has stated that prior to incident he had no acquaintance with the accused or the deceased. He has further stated that the place of occurrence is at about 300 meters away from-where he was cutting the paddy. He has further stated that the location was surrendered by Sal bushes. Still the spot is visible from his paddy field. He further stated that his village is at a distance of half kilometres from paddy field. He further stated that after the incident he went to the village, he came back to the spot about 30 minutes later. He has further stated that the location was surrendered by Sal bushes. Still the spot is visible from his paddy field. He further stated that his village is at a distance of half kilometres from paddy field. He further stated that after the incident he went to the village, he came back to the spot about 30 minutes later. A contradiction has been brought out from the mouth of this witness, which has also proved by P.W. 6, It is established by the defence by confronting the statement of the witness recorded under Section 161 of the Code of Criminal Procedure, 1973, hereafter referred to as ‘the Code’ for brevity and also drawing attention of the I.O. to that aspect of the evidence. This witness has not stated before the I.O. that he heard ‘hallah’ from a distance and focused his attention in that direction; and that after informing the villagers, himself, Durjyodhan Nayak and Lokanath Nayak chased the accused and that Durjyodhan Nayak caught hold of the accused. 9. Section 134 of the Indian Evidence Act, 1872 provides that no particular number of witnesses is required to prove a particular fact. So, a rational interpretation of the provision leads this Court to hold that even a fact asserted by the prosecution can be proved examining a solitary witness but such evidence of solitary evidence should be of unimpeachable quality, so that conviction can be based on the materials available in his statement. The witnesses are generally categorised into three types, viz. witnesses who are wholly reliable, witnesses who are wholly unreliable and witnesses who are neither wholly reliable nor wholly unreliable. 10. As far as the 1st category is concerned, while appreciating their evidence, Court faces no difficulties. Once a witness is accepted as wholly reliable, then such statement/evidence of a solitary witness can form basis of a conviction. witnesses who are wholly reliable, witnesses who are wholly unreliable and witnesses who are neither wholly reliable nor wholly unreliable. 10. As far as the 1st category is concerned, while appreciating their evidence, Court faces no difficulties. Once a witness is accepted as wholly reliable, then such statement/evidence of a solitary witness can form basis of a conviction. Secondly, a witness, who is wholly unreliable, entire evidence can be discarded but in case of witness, who is neither wholly reliable, nor wholly unreliable, it is the duty of the Court to assess the evidence and separate the chaff from the grain and if the acceptance portion of the evidence is enough, it will not illegal to convict the accused on the basis of such evidence but normally as a rule prudence the Court while appreciating a witness, who is neither wholly reliable nor wholly unreliable, it is better to look into the other attending circumstances and corroboration before proceeding to convict the accused. 11. The same principle applies to solitary witness. Generally witnesses, who are examined in Court, come in the 3rd category. Most of them are neither wholly reliable nor wholly unreliable. In this case also, this court is of the opinion that P.W.1, namely, Dasarath Nayak is a witness, who can be termed as neither wholly reliable nor wholly unreliable. Moreover, he is the solitary witness to the occurrence. As noted earlier, even on the basis of evidence of a solitary witness, conviction can be recorded but a rule prudence is that while assessing evidence of solitary witness, his evidence should be tested with anvils of objective circumstances of the case. If evidence of the solitary witness fits into the anvils of the objective circumstances, then only on the basis of evidence of a solitary witness, conviction can be upheld in appeal. 12. Moreover, in the case, it is argued that the P.W.1, Dasarath Nayak as presence on the spot and heard the ‘hallah’ is doubtful as he is stated the occurrence took place in the month of Srabana and at that time he was cutting paddy from his field. The Court takes judicial notice of the fact that the month of Srabana falls within the rainy season. The Court takes judicial notice of the fact that the month of Srabana falls within the rainy season. Other agricultural activity like planting of seeds, transplantation of sapling and other things take place but the paddy of khariff season is generally sowed in the month of Asada and Shrabana, i.e. in the month of June-July and the paddy cutting takes place in the month of October, if it is short duration paddy in case of long duration paddy, the paddy crop is harvested in the month of December. So the contention raised at the Bar is that in all probability P.W. 1 could not be reliable as there is hardly any chance of harvesting of paddy crop in the month of Sarabana. It is well known that in the month of Shrabana, it rains heavily in Odisha because of the onset of the monsoon. 13. Thus, P.W. 1 could be termed as a chance witness. In the case of Sachey Lal Tiwari v. State of U.P., (2004) 11 SCC 410 , the Hon’ble Supreme Court while considering the evidentiary value of a chance witness in a case of murder observed that the evidence of a chance witness cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, the Hon’ble supreme Court further stipulated that there must be an explanation for the presence there. In this case, the prosecution explains the presence of P.W. 1 in his paddy field because of the fact that he was cutting (harvesting) paddy on his own field and that he heard ‘hallah’ and saw the incident. This Court has already taken note of the fact that in the month of Shrabana, there is hardly any probability of standing paddy crop in a field, which needs harvesting. Moreover, in the preceding paragraph, this Court has also taken note of the fact that in the statement made before the Investigating Officer recorded under Section 161 of the Code, the witness has not stated hearing hallah he focused his attention and saw the incident. His evidence, therefore, is not found to be of unimpeachable character. 14. Judging the case from this angle, it is seen that P.W. 1 is not only a solitary witness to the occurrence but also appears to be a chance witness to the occurrence. His evidence, therefore, is not found to be of unimpeachable character. 14. Judging the case from this angle, it is seen that P.W. 1 is not only a solitary witness to the occurrence but also appears to be a chance witness to the occurrence. In such a case, the court must seek corroboration from independent materials though not in the shape of statement of any other witnesses, but incriminating circumstances appears in the case to examine if it provides support to such testimony of P.W. 1 before upholding conviction solely based on the testimony of such witness. From a holistic analysis of the entire evidence on record, this Court takes note of the fact that the solitary witness available in this case saw the incident as per his own admission from a distance of 300 meters. He had no acquaintance with the accused or the deceased prior to the occurrence. So, in all probability this Court finds that the evidence of P.W. 1 cannot be taken to be reliable as there is a limitation to human vision. Even a person with healthy eyes cannot identify a person at a distance of 300 metres. This Court takes this aspect of the case very seriously. 15. It is further apparent from the records that the witness saw the occurrence, then he saw the accused running away from the spot, the witness rushed to the village, which is ½ kms from his paddy field, informed other persons, especially P.Ws. 2 and 3, all of them then chased the accused and caught hold of him. On the contrary, D.W. 1 himself has stated that his father sustained injury by falling from the tree, he went to the village seeking help. Now, if both the cases are taken into consideration, it appears that the version of P.W. 1 that he ran to the village, got help, chased the accused who left the place ½ hour before them and caught hold of him appears to be improbable. 16. On the discussion restored to in the preceding paragraph, this Court takes note of the fact that P.W. 1 has not described the manner the accused assaulted the deceased. He only saw that the accused was assaulting the deceased by means of a stone. 16. On the discussion restored to in the preceding paragraph, this Court takes note of the fact that P.W. 1 has not described the manner the accused assaulted the deceased. He only saw that the accused was assaulting the deceased by means of a stone. The doctor, who has conducted post-mortem examination, i.e. P.W. 7 has stated that stones seized in course of investigation, i.e. material objects M.O.1 and M.O. II can possibly because injuries found on the deceased. However, in the cross examination, he has also stated that the injuries sustained by the injured may be possible by a fall from height. It is the prosecution case that the road in which the dead body of the deceased was found is a stony road and it is also seen that a tree stands near the place. Hence, adjudging the reliability of the solitary witness, this Court comes to the conclusion that his evidence does not fit to the anvils of the objective circumstances of the case. 17. The learned Addl. Sessions Judge has given much emphasis on the failure to the defence to prove its case. It is settled principles that the prosecution shall succeed only by proving the very case it proposes. A heavy burden relies to the prosecution to prove the guilt of the accused. The prosecution must prove its case beyond all reasonable doubts. In no case, such burden shifts to the defence. There are certain exceptions like the plea of alibi or plea of right to private defence, the onus of proving its case shifts to the defence. That is not the case here. The prosecution case must stand or fail on its own legs and conviction cannot be recorded by taking support from the weaken of the defence case. Hence, this court is in agreement with the arguments advanced by the appellant that the learned Addl. Sessions Judge did not assess the evidence of the prosecution in its proper perspective and has arrived at an erroneous conclusion. This Court is of the opinion that there is enough doubt in the prosecution case to extend the benefit of doubt in favour of the appellant. 18. Another aspect, i.e. crept up during course of hearing is that the appellant allegedly made an extra judicial confession before P.W. 1,2, 3 and 4 to the effect that out of anger he assaulted his father by means of stone. 18. Another aspect, i.e. crept up during course of hearing is that the appellant allegedly made an extra judicial confession before P.W. 1,2, 3 and 4 to the effect that out of anger he assaulted his father by means of stone. However, it is also noticed that the accused, when he was arrested, found to have been sustained an injury on his head and was referred to the medical. Secondly, it is seen that these witnesses, especially P.Ws. 1 to 3, chased, caught hold the appellant and brought him to the spot. So, the alleged confessional statement that made before the witnesses by the appellant cannot be said to be voluntary and once the Court entertains a doubt regarding the voluntariness of the allegedly extra judicial confession, it cannot be accepted. In this case, the injury on the person of the appellant, the fact that he was detained by the villagers reveals that this alleged confession of not voluntary and without coercion. Hence, it cannot form a basis to convict the appellant. It cannot be relied upon to uphold his conviction under Section 302 of the IPC. 19. On the basis of the aforesaid discussions, this Court is of the opinion that the prosecution, in this case, has failed to establish the very case it proposes beyond all reasonable doubts,. There appears certain element of doubt regarding the complexity of the accused-appellant. Hence, this Court has no hesitation to extent the benefit of doubt in favour of the appellant. Therefore, the appeal is allowed. The Judgment of conviction and order of sentence dated 29.11.2004 passed in S.T. Case No.13/21 of 2003/2004 are hereby set aside. The accused-appellant be set at liberty forthwith, unless his detention is required in any other criminal case. Dr. D. P. CHOUDHURY, J. I Agree. Appeal allowed.