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2017 DIGILAW 944 (ORI)

Sama Kirsani v. State of Orissa

2017-08-28

BISWAJIT MOHANTY, I.MAHANTY

body2017
JUDGMENT : BISWAJIT MOHANTY, J. This appeal arises out of the judgment dated 15.5.2007 recording conviction of the appellant-Sama Kirsani under Section 302 IPC and consequent sentence of imprisonment for life without separate sentence imposing payment of fine. In the above noted appeal, the appellant challenges both the aforesaid judgment of conviction and order of sentence. 2. The case of the prosecution is that on 24.8.2003 while the deceased-Sukra Kirsani was returning from “Hata” during evening hours along with his son-Mangulu Kirsani (informant), the deceased left his company saying that he would go to Kichopada village for a drink and thereafter would return. When the deceased did not return, the informant along with his mother-Sukri Kirsani and another went to Kichopada village. There, they saw the deadbody of Sukra Kirsani infront of the house of the appellant. There was blood all over the deadbody with the sign of knife stab on his right chest. Though the informant asked the appellant about the incident, but he replied that he did not know anything. In such background, the informant reported the matter to the police. After filing charge sheet, the appellant stood trial for committing offence under Section 302 IPC. 3. The case of the defence was one of complete denial. 4. In order to prove charges, the prosecution has examined two witnesses and exhibited around 11 documents. Further, on behalf of the prosecution, four materials were marked as M.Os. In Section 313 Cr.P.C. statement, the appellant answered most of the questions in negative and kept mum with regard to certain questions. 5. From the side of defence, none was examined as a witness and no document was adduced in the evidence. 6. Upon completion of trial, learned trial court/ learned Addl. Sessions Judge, Malkangiri found the appellant guilty under Section 302 IPC, and, accordingly pronounced the judgment on 15.5.2007 and sentenced the appellant to undergo imprisonment for life. 7. Mr. Bismayananda Prusty, learned counsel for the appellant submitted that the entire judgment recording conviction of the appellant and awarding life sentence is wholly perverse as no material evidence exists to justify such conviction under Section 302 IPC. He submitted that this is a case where no eye-witnesses exist and also the informant-Mangala Kirsani, who happens to be the son of the deceased has also not been examined. He submitted that this is a case where no eye-witnesses exist and also the informant-Mangala Kirsani, who happens to be the son of the deceased has also not been examined. Prosecution has examined only a constable and the I.O. No independent witness has been examined in support of the prosecution case though P.W.2 in his evidence has stated that he examined a number of witnesses. In such background, recording of conviction only on the basis of evidence of I.O. (P.W.2) is highly perverse. He also submitted that there exists no evidence from the side of the prosecution whatsoever about the motive of the appellant. Further, there exists no evidence to show that the appellant was last seen with the deceased immediately prior to discovery of the deadbody. With regard to the evidence of P.W.2 (I.O) leading to discovery of the knife, the alleged weapon of offence, he stated that no disclosure statement of the appellant has been proved by the prosecution so as to take help of Section 27 of the Indian Evidence Act, 1872. Rather, the appellant in his statement under Section 313 Cr.P.C. has negatived his confession before P.W.2 leading to discovery. Further, he stated that the chemical examination report under Ext.11 nowhere connects the blood found on the lungi and half shirt of the deceased with the blood found on the knife and shirt of the appellant. Going a step, further he submitted that the chemical examination report under Ext.11 is of no consequence as the forwarding letter has not been proved by the prosecution. Learned counsel for the appellant further submitted that the trial court has gone wrong in convicting the appellant mainly relying on the statement of the appellant under Section 313 Cr.P.C. when such statements cannot be treated as evidence. Lastly, he submitted that the entire decision making process adopted by learned Addl. Sessions, Malkangiri is wrong inasmuch as it has ignored the settled position of law relating to trial of an accused, who does not understand the proceedings of the Court on account of language barrier. In this context, he puts emphasis on the statement of P.W.2, who in his cross-examination has admitted that the appellant could hardly speak Odia and he himself did not know Bonda language. At Paragraph-5 of the examination in-chief, P.W.2 has admitted that the appellant belongs to ‘Bonda’ caste. ‘Bonda’ is a Scheduled Tribe. In this context, he puts emphasis on the statement of P.W.2, who in his cross-examination has admitted that the appellant could hardly speak Odia and he himself did not know Bonda language. At Paragraph-5 of the examination in-chief, P.W.2 has admitted that the appellant belongs to ‘Bonda’ caste. ‘Bonda’ is a Scheduled Tribe. In this context, learned counsel for the appellant relies on a decision of this Court in the case of Bijay Nanda @ Bijaya Kumar Nanda v. State of Orissa reported in 2010 (4) Crimes 71 (Orissa), wherein it has been made clear as to what a court is required to do in case it is confronted with an accused, who does not understand the proceedings of the Court during enquiry or trial. There this Court has laid down that the Court has to make an enquiry to find out whether the accused can be made to understand the proceeding. The Court can do that suo motu on the basis of material on record or may act on the basis of motion made by the accused/prosecution. Here no such enquiry was done. In such background, he prayed that the impugned judgment passed by the learned Addl. Sessions Judge, Malkangiri ought to be set aside. 8. Mr. J.Katikia, learned Addl. Government Advocate, on the contrary, defended the judgment and submitted that the same does not require any interference by this Court. 9. In order to appreciate the rival contentions of the parties, let us first scan the evidence on record. Admittedly, there is no eye-witness to the occurrence and the prosecution has examined only two witnesses. P.W.1 is a constable, who has proved Ext.1, the command certificate and the Ext.2, the deadbody challan. He also identified the deadbody to the doctor. P.W.2 is the I.O. He has stated that on 25.8.2003, the informant, (who has not been examined by the prosecution), presented a written report before him, marked as Ext.3, which was received by him, and, accordingly the same was endorsed. The said report revealed a case under Section 302 IPC specifying therein that on previous day, i.e., 24.8.2003 the informant with his deceased father were returning home and on the way the deceased left the company of the informant saying that he would go for a drink and thereafter his father-Sukra Kirsani did not return. The said report revealed a case under Section 302 IPC specifying therein that on previous day, i.e., 24.8.2003 the informant with his deceased father were returning home and on the way the deceased left the company of the informant saying that he would go for a drink and thereafter his father-Sukra Kirsani did not return. In such background, the informant along with his mother-Sukri Kirsani, who has also not been examined went to village-Kichopada in search for the deceased and there he found the deadbody of the father lying infront of the appellant. The deadbody had blood all over with a knife stabbing injury on the right side of the chest. Though the appellant was present at the spot, he submitted that he did not know anything. On receipt of the above F.I.R. (Ext.3), a P.S. case was registered, and, accordingly, he took up the investigation. During investigation, he examined the informant and other witnesses and visited the spot. He conducted inquest over the deadbody in presence of two witnesses, who have not been examined in this case. Ext.5 is the inquest report. At the time of inquest, the appellant was not present in his house and apparently he fled away from the spot even though murder has taken place infront of his house. He sent the deadbody for post-mortem examination. He apprehended the appellant on 29.8.2003. According to him, the appellant admitted his guilt and led to recovery of weapon of offence, i.e., knife which was marked as M.O.I. At the time of recovery, the knife was stained with blood. He seized the wearing apparels of the appellant, i.e., shirt which has been marked as M.O.II vide seizure list Ext.6. He also seized check lungi of the deceased, i.e., M.O.III vide seizure list Ext.7. He also seized half shirt-M.O.IV vide self-same seizure list. The post-mortem was conducted by Dr.Sashi Bhusan Mohapatra. The post-mortem report was marked as Ext.8 on admission by learned State defence counsel in presence of the appellant. P.W.2 however has proved the signature of the Doctor as Ext.8/1. The doctor has opined that the injury was ante mortem in nature and cause of death was due to haemorrhage leading to cardiac respiratory failure and then leading to shock and death. P.W.2 however has proved the signature of the Doctor as Ext.8/1. The doctor has opined that the injury was ante mortem in nature and cause of death was due to haemorrhage leading to cardiac respiratory failure and then leading to shock and death. He further sent the knife (M.O.I) to the Doctor for his opinion as to whether the injury detected on the chest of the deceased was possible by the said weapon of offence and the Doctor vide Ext.9 opined that the injury inflicted on the deceased was possible by the said weapon. He further stated that he sent exhibits to R.F.S.L., Berhampur for chemical examination. He received the chemical examination report under Ext.11 indicating human blood on the weapon of offence and also on shirt of the appellant. The wearing apparels of the deceased also contained human blood. On 19.12.2003, he submitted charge sheet against the appellant under Section 302 IPC. In his cross-examination, he stated that near the house of the appellant, there were other houses also and the appellant was staying in that house along with his family members. He admitted that the weapon of offence (M.O.I) is invariably available with Bonda Adivasis and the appellant could hardly speak Odia and further that he himself did not know Bonda language. He further admitted that F.I.R. under Ext.3 was lodged against unknown persons. He denied a suggestion that there is no prima facie evidence against the appellant and also denied a suggestion relating to false implication of the appellant by him. The above noted evidence of P.W.2 is self explanatory, which does not require much analysis. However, fact remains that though P.W.2 spoke about he examining a number of witnesses during investigation, however, prosecution has chosen not to examine any such independent witness. Further, though he spoke about appellant admitting the guilt and he leading to recovery of weapon of offence, however, no recorded disclosure statement containing either the signature or L.T.I. of the appellant has been proved. In such background, his evidence relating to leading to discovery is not of much value. Even if for the sake of argument such discovery is accepted then also the evidentiary value of such discovery will not amount to much. In such background, his evidence relating to leading to discovery is not of much value. Even if for the sake of argument such discovery is accepted then also the evidentiary value of such discovery will not amount to much. It will be only confined to proving so much of such information leading to discovery of a blood stained knife and the same can in no way involve the appellant with the alleged offence. Since the postmortem report under Ext.8 was exhibited on admission, the same can only show that the deceased has suffered a homicidal death and nothing more. Similarly, the chemical examination report is not of much value as it does not connect the blood found on the wearing apparels of the deceased with that of blood found on the knife and shirt of the appellant. Merely because as per the chemical examination report under Ext.11, the shirt of the appellant was stained with human blood and the appellant failed to explain the same, in absence of proof of the other circumstances, it cannot connect the appellant with the commission of offence. Present case is no doubt a case of circumstantial evidence. Law relating to appreciation of circumstantial evidence is well settled. In this context, it would be profitable to refer to the decision of the Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharastra reported in 1984 (4) SCC 116 , wherein the Hon’ble Supreme Court has laid down the following guidelines. “1. the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established; 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved, and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 10. Here, against the appellant, no circumstances of conclusive nature have been proved. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 10. Here, against the appellant, no circumstances of conclusive nature have been proved. There exists no evidence relating to motive of the appellant to commit such a heinous crime. It is well settled that in case of circumstantial evidence, the motive assumes an important role. None has deposed that immediately prior to discovery of the deadbody, the appellant was last seen along with the deceased. The evidence of P.W.2 with regard to leading to discovery as explained earlier is also not satisfactory. There also exists no extra judicial confession by the appellant before his acquaintance so as to provide a link in the chain of circumstances. It appears that the learned court below while convicting the appellant under Section 302 IPC, has mostly relied on statements of the appellant made under Section 313 Cr.P.C. and his so-called confession leading to discovery of weapon of offence of which there exists no evidence whatsoever. In fact with regard to the question on leading to discovery pursuant to his confession, the appellant has denied the same. Further, it is well settled that the statements under Section 313 Cr.P.C. are no evidence. These can only be used as additional links when other circumstances have been proved pointing towards guilt of the accused. With regard to answer to the question under Section 313 Cr.P.C. relating to abscondance of the appellant from his house and the village, the learned trial court has treated the answer given to such a question to be an admission on his part thereby supporting the case of the prosecution. Though this statement is not of much value as indicated earlier, however from a perusal of answer statement of the appellant to Question No.2, it is clear that he has refuted the allegation relating to abscondance. In any case, analysis made by the learned trial court at Paragraph-10 of the judgment shows that mostly, he has relied on the statements made by the appellant under Section 313 Cr.P.C. to record a conviction which is legally impermissible as there exists no other circumstances of which these statements can be taken as additional links to complete the chain of circumstances. One of the circumstances used against the appellant by the learned trial court is that the knife on being chemically examined was found stained with human blood. Ipso facto the same cannot be solely used to implicate a person. However, we are not willing to accept the submissions made by learned counsel for the appellant relying on the decision of this Court in Bijay Nanda @ Bijaya Kumar Nanda (supra). Unlike the present case, that was a case where the accused was a deaf and dumb person. Thus, the present case is factually distinguishable. Further, Section 318 Cr.P.C. takes care of a situation, when an accused does not understand the Court proceedings. To deal with such cases, the said Section provides guidelines, which are to be understood in the background of clarification given by this Court in Bijay Nanda @ Bijaya Kumar Nanda (supra). But here, though P.W.2 has stated that the appellant can hardly speak Odia, however, there is no evidence to show that he was not able to understand Odia. It is common knowledge that a person may not be able to speak a language but if he lives amongst the people speaking that particular language and interacts with them over a long period of time, it can safely be assumed that because of interactions over a long period of time he can understand that language. It may also be noted that the counsel for the appellant had never prayed for enquiry into this aspect of the matter either prior to/during trial. Further, the trial Court in its certificate given after conclusion of questioning under Section 313 Cr.P.C. appended to the statements has made it clear that the appellant understood Odia. However as discussed earlier, there being no evidence of any nature to implicate the appellant, we acquit the appellant from the charge under Section 302 IPC, and, accordingly set aside the impugned judgment and direct that the appellant shall be set at liberty forthwith, if his detention is not required in any other case. 11. As an epilogue, we would like to highlight a disturbing feature of this appeal. In this case, though the appellant was granted bail by this Court on 5.10.2012 and though pursuant to the same, the learned Addl. 11. As an epilogue, we would like to highlight a disturbing feature of this appeal. In this case, though the appellant was granted bail by this Court on 5.10.2012 and though pursuant to the same, the learned Addl. Sessions Judge, Malkangiri on 17.11.2012 fixed certain terms and conditions for release of the appellant, however, the appellant could not get the benefit of the same as he could not satisfy the terms and conditions. Accordingly, despite being enlarged on bail on 5.10.2012, he is languishing in custody till date for all these years. This shows lack of sensitivity of all concerned. In such background, the learned State Defence Counsel or for that matter the Superintendent of sub-jail, Malkangiri himself ought to have taken steps for appropriately modifying the conditions for ensuring the release of the appellant. It is also indeed surprising as to how such an important thing has escaped the notice of the concerned District and Sessions Judge during his monthly jail visits. A little proactive role on the part of the learned District and Sessions Judge would also have helped the matter to a great extent. A citizen remaining in custody after being enlarged on bail on account of inability to satisfy the conditions imposed in the bail order shows the entire system in a poor light. In such background, we direct that copies of this judgment be sent to Home Secretary of the State and the Orissa State Legal Services Authority who would sensitize all stake holders in the matter including the Superintendent of all jails in State of Orissa so that such unfortunate thing does not recur in future vis-à-vis socio-economically deprived section of the society. Accordingly, the JCRLA is allowed and disposed of as such.