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2018 DIGILAW 206 (ORI)

Dhira Hesa v. State of Orissa

2018-02-21

D.P.CHOUDHURY, INDRAJIT MAHANTY

body2018
JUDGMENT : Dr.D.P.Choudhury, J. This Jail Criminal Appeal is filed by the appellant from Jail assailing the judgment of conviction and sentence passed under Section 302 of the Indian Penal Code (hereinafter called as “I.P.C.”) by the learned Sessions Judge, Dhenkanal-Angul in S.T. Case No.73 of 2002 sentencing him to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code (hereinafter called as “I.P.C.”) and to pay a fine of Rs.5,000/-in default to undergo R.I. for one year for the said offence. 2. The unfolded story of the case of the prosecution is that the deceased Syama Soren and Surya Soren were residents of Village-Sundhikateni. The villagers were suspecting the deceased persons as witchcrafts. So, on 19.06.2001 at about 1.00 pm, Kusunu Hesa (P.W.3) informed the Gramarakhi of the Village Suresh Mallick (P.W.1, informant) that the present appellant has caused murder of deceased Syama Soren and Surya Soren by assaulting them by means of an axe. Then the informant went to the spot and found the deceased persons lying with pull of blood. Therefore, he came to know that the present appellant suspected the deceased persons to have exercised witchcraft on his person and for that he has killed them. Then, the informant informed the police. 3. During investigation, police visited the spot, made inquest over the dead body of the deceased persons and sent the same for post-mortem examination, examined the witnesses, seized the weapon of offence and wearing apparels of the deceased and after completion of the investigation, submitted charge sheet. 4. The plea of the appellant, as revealed from his statement recorded under Section 313 Cr.P.C. and the cross-examination led to the P.Ws, that he has been falsely implicated in this case and he pleads innocence. 5. The prosecution, in order to bring the charge against the appellant, has examined as many as 13 witnesses and defence examined none. Relying upon the evidence of the prosecution witnesses and the documents exhibited, learned Sessions Judge found the appellant convicted under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-in default to undergo R.I. for another one year. 6. Mr.Pani, learned counsel for the accused-appellant submitted that most of the witnesses being villagers are hostile to the prosecution. 6. Mr.Pani, learned counsel for the accused-appellant submitted that most of the witnesses being villagers are hostile to the prosecution. P.W.12 although arrayed as an eye witness by the prosecution, he is related to the deceased persons for which his evidence cannot be solely reliable. Leading to discovery of weapon of offence has not been proved by the prosecution. Moreover, as the blood stained with seized wearing apparels of the appellant have no proof of blood group of blood stain found on wearing apparels of the deceased, the question of conviction has no foundation. Hence, it is submitted by the learned counsel for the appellant to acquit the appellant. 7. Learned State Counsel submitted that the evidence of the eye witness cannot be discarded even if he is related to the deceased persons because the evidence of P.W.12 is very clear, cogent and consistent and could not be well shaken by the defence. The witness who has been hostile to the prosecution also has got evidentiary value to the extent of evidence supporting the case of the prosecution. He further submitted that the prosecution has well proved the leading to discovery of weapon of offence at the instance of the present appellant and the same is great circumstance against the present appellant. On the whole, there being well evidence made out, the conviction of the appellant and the sentence passed thereunder should be upheld. 8. DISCUSSONS It is well settled in law that the conviction can be maintained basing on the sole evidence of the eye witness if his/her evidence is clear, cogent, consistent and above the reproach. The evidence should be counted but not be weighed. It is reported in Rizan and another Vs. State of Chatisgarh ; AIR 2003 SC 976 Where Their Lordships at Paragraph-6 have observed in the following manner: “6......... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.” It is further reported in State of Rajasthan –V-Smt. Kalki and another; AIR 1981 SC 1390 where Their Lordships at Paragraph-5A have observed in the following manner: “5A. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.” It is further reported in State of Rajasthan –V-Smt. Kalki and another; AIR 1981 SC 1390 where Their Lordships at Paragraph-5A have observed in the following manner: “5A. .......... For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents.” With due regard to the aforesaid decisions, it appears that relationship is not sufficient to reject the evidence of the witnesses but their evidence has to be considered in relation to trustworthiness and their credibility. If the presence of the witnesses is seen at the time of occurrence is proved or considered to be natural, their evidence is to be construed in the light of the surrounding circumstances and probability of the case for which conviction can be straight way recorded. Keeping in mind these principles, let us find out whether the prosecution has proved the offence against the appellant beyond all shadow of doubts. 9. It reveals from the evidence of P.Ws.3 and 13 that the inquest 10. According to the evidence of P.W.13, two dead bodies were over the dead bodies of deceased persons was made in their presence and they proved the inquest report vide Exts.4 and 5. sent for post-mortem examination. P.W.7 is the doctor who stated to have conducted the post-mortem examination over the dead body of deceased Syama Soren and found the following injuries: “EXTERNAL INJURIES 1. sent for post-mortem examination. P.W.7 is the doctor who stated to have conducted the post-mortem examination over the dead body of deceased Syama Soren and found the following injuries: “EXTERNAL INJURIES 1. Incised like gapping wound present on the back of head on right side of 3.1/2” with fracture of the underlying bone extending; 2. Incised like wound below the right eyelid 3.1/2” length with fracture of the underline bone; 3. Incised like wound over occiput-3.1/2” length; and 4. Incised like wound below the left eye 2” length. INTERNAL INJURY XX XX XX 1. The brain was injured in the region of the above wounds with haemorrhages over those areas.” According to him, the injures were ante mortem in nature and might have caused by sharp edged weapon. He proved his signature vide Ext.7. Similarly, Dr.Madhusmita Panda, who is the wife of P.W.7, had conducted the post-mortem examination over the dead body of deceased Surya Soren and found the following injuries: “EXTERNAL INJURIES 1. Incised like gapping spindle shaped wound on the head with fracture of the underline bones; a. Forehead-longitudinally 3.1/2; b. Right side of forehead 3.1/2” length horizontally; c. Above forehead 3.1/2” length longitudinally towards left side; d. Extending laterally from the right eye 3.1/2” length. Margins are regular and everted; e. Above left eye-extending laterally 3.1/2” f. Above left ear towards the back of head 2.1/2” length; g. Left ear was injured; h. Wound over left cheek which was incised in nature; and 2. Incised like would 4”X1” over the right shoulder joint over right side of neck. On dissection, Dr.Panda, found the following internal injuries “INTERNAL INJURIES 1. The membranes were injured, the region of the wound mentioned above; and 2. Brain was disrupted with haemorrhage in the region of wounds as mentioned above.” P.W.7 further opined that the injuries are ante mortem in nature. From his evidence, it appears that the post-mortem examination of both the deceased was made by the doctor on the same day and Dr.Panda prepared both reports under the dictation of P.W.7 as he had pain on his right hand. There is no fruitful cross-examination to this witness. Thus, the evidence, as discussed above, clearly proves that the death of both the deceased was homicidal. 11. There is no fruitful cross-examination to this witness. Thus, the evidence, as discussed above, clearly proves that the death of both the deceased was homicidal. 11. P.W.12 is the sole eye in this case and from her evidence, it reveals that she has been fostered by the deceased persons in their house. According to her, she saw the appellant Dhir had come with a “Tabala” and at first assaulted on the shoulder portion of her aunt and then assaulted by bamboo lathi on the persons of the deceased Surya Soren. While the appellant entered the house by dealing blows by means of “Tabala” on the Tati Door of the house of the deceased persons, that blow has hit on her person causing injury on her person. Due to such violent overt act of the appellant, she out of fear ran away from the spot. At paragraph-6 of her detailed cross-examination, she has stated that when the persons gathered t the spot, hearing the shout, she went away. On the way, people told her that the present appellant had killed her uncle and aunt. At this juncture, the argument was advanced by the learned counsel for the appellant that the evidence of P.W.12 cannot be taken as an eye witness as she has heard about the death of the deceased persons. This argument of the learned counsel for the appellant is untenable because P.W.12 has narrated the incident in clear, cogent and consistent manner that on the gathering of the people, she left the spot. Even if her evidence is scrutinized with caution because of her relationship with the deceased persons, it is cogent and clear that she had seen the assault made by the present appellant to the deceased persons by means of “Tabala” and “bamboo” during the occurrence, she has received blow on her person. 12. P.W.10 is another doctor, who stated to have examined P.W.12 on police requisition. According to him, P.W.12 has sustained two incised wound on her face. When there is injury on the person of P.W.12, her presence at the spot cannot be doubted. On the other hand, the evidence of P.W.12 is very clear, cogent and consistent to show that she had seen the assault by the present appellant on the person of the deceased. 13. The evidence of P.W.1 shows that he is a post occurrence witness. On the other hand, the evidence of P.W.12 is very clear, cogent and consistent to show that she had seen the assault by the present appellant on the person of the deceased. 13. The evidence of P.W.1 shows that he is a post occurrence witness. After being informed about the murder of the deceased persons, he went to the spot and found them lying dead. He got information from Hari Soren and Rabi that the present appellant had killed the deceased persons on the ground that they were harassing by applying witchcraft. So, he lodged the FIR vide Ext.1. 14. The statements of P.Ws.2, 3, 4, 5, 6 and 9 show that they have not supported the prosecution by showing their ignorance about the occurrence and cause of the death of the deceased persons. They have been cross-examined by the prosecution and during their cross-examination, they declined to have stated before the police about the reason of occurrence, leading to discovery and seizure of the incriminating articles including weapon of offence. Prosecution has confronted the statement of P.Ws.2, 3, 4 and 6 to P.W.13 who admitted about such statement before the police. No doubt, they have resiled from their earlier statement. Since they have not supported the prosecution, their evidence also do not show any support to the prosecution. 15. The statement of P.W.5 has not been confronted to the P.W.13. He is found to be a seizure witness. Even if the prosecution has not confronted his statement to IO, the non-confrontation of his statement to the IO does not make any irregularity with the prosecution as he is seizure a seizure witness. However, he has also sailing in the same boat of P.Ws.2, 3, 4 and 6 and as such is found to have not supported the prosecution. 16. In spite of non-cooperation of P.Ws.2, 3, 4, 5 and 6 to the case of the prosecution, the evidence of P.W.12 cannot be brushed aside. It is reported in Vithal Pundalik Zendge –V-State of Maharashtra; AIR 2009 SC 1110 wherein it has been observed by the Hon’ble Supreme Court that whether the Court should seek the corroboration or not depend on the fact and circumstances of each case. The Court will not insist on corroboration except in cases where nature of witness itself requires as a matter of prudence, that the corroboration should be sought. 17. The Court will not insist on corroboration except in cases where nature of witness itself requires as a matter of prudence, that the corroboration should be sought. 17. With due regard to the aforesaid decision, it appears that the corroboration is not necessary and the conviction can lie on the evidence of single witness if his evidence is clear, cogent and above reproach. In the instant case, the evidence of P.W.12 is very clear, cogent and consistent to show that she had seen the assault by the present appellant to the deceased persons by “Tabala” and “bamboo”. 18. The evidence of IO (P.W.13) shows that the appellant made disclosure statement by stating that he has kept the “Tabala” with broken handle inside his house and the lathi in his firewood stand. His statement was recorded vide Ext.21. After his statement was recorded, the appellant led the police to his house and gave recovery of axe vide Ext.13/1. Also he led the police to the spot near the Asan tree and gave recovery of the lathi which was seized vide Ext.14. He also produced the lathi vide M.O.I and axe with broken handle vide M.O.II. Of course, he admitted in cross-examination that he had not found any bloodstain on the lathi because of the heavy rain. Barring this, there is no fruitful cross-examination to this witness about the statement of appellant recorded under Section 27 of the Evidence Act and leading to discovery of weapon of offence (M.O.I and M.O.II). No reason is assigned to disbelieve his evidence about leading to discovery and recovery of weapon of offence by the appellant. It is true except outside witness, no other witness is examined to lend corroborate to the evidence of P.W.13 in this regard. But it is trite in law that prosecution cannot be doubted for such non-examination of other witness as it is the prerogative of prosecution to produce witness to prove its case. Moreover, the evidence of P.W.13 as scanned suffers from no infirmity to prove the statement of the appellant to cause leading to discovery and seizure of M.O.I and M.O.II at the instance of the appellant. Even if P.W.13 is a police officer, law does not debar to rely upon his sole evidence if it is creditworthy. 19. Moreover, the evidence of P.W.13 as scanned suffers from no infirmity to prove the statement of the appellant to cause leading to discovery and seizure of M.O.I and M.O.II at the instance of the appellant. Even if P.W.13 is a police officer, law does not debar to rely upon his sole evidence if it is creditworthy. 19. However, the doctor (P.W.7) has stated that both the weapon of offences were sent by the police for his opinion and he has opined that on examination, he found the injuries found on the dead body could be possible by lathi and axe produced. He proved his report vide Ext.8. So, the evidence of P.W.7 amply corroborates the evidence of P.W.13 about possibility of weapon of offence used by the appellant at the time of occurrence at the instance of the appellant. It is well settled in law that evidence of Police Officer cannot be discarded merely because he has seized the same. Since the doctor has opined about M.O.I and M.O.II, the leading to discovery of the same at the instance of the appellant, cannot be disbelieved. M.O.I and M.O.II is a circumstantial evidence against the appellant. 20. Of course, from the evidence of P.Ws.8 and 13, it appears that the police seized the wearing apparels of the deceased and sent the same for chemical examination but the report of the chemical examiner shows that the examination was inconclusive. So, it does not lend support to the case of the prosecution. When there are ample evidence adduced by the prosecution as discussed above to prove culpability of appellant, the inconclusive chemical examination report does not prove the innocence of the appellant. 21. In view of the aforesaid analysis, we are of the view that the prosecution has well proved the charge under Section 302 IPC against the appellant by means of the direct and circumstantial evidence. Therefore, the conclusion arrived by the learned Sessions Judge, Dhenkanal-Angul is hereby affirmed. On the other hand the conviction under Section 302 IPC passed against the appellant is well confirmed. 22. Mr.Pani, learned counsel for the appellant submitted that the appellant has already remained in custody since last seventeen years and in such situation, lenience may be taken while awarding sentence. On the other hand the conviction under Section 302 IPC passed against the appellant is well confirmed. 22. Mr.Pani, learned counsel for the appellant submitted that the appellant has already remained in custody since last seventeen years and in such situation, lenience may be taken while awarding sentence. In such type of sorcery case, when the appellant is involved to have killed the deceased persons suspecting to have exercised witchcraft, for the larger interest of the society and public and for the sake of administration of justice free from any superstition, the minimum sentence of imprisonment of life and to pay a fine of Rs.5,000/-in default to undergo for RI for a period of one year cannot be said to be illegal and improper. Hence, the sentence awarded by the learned Sessions Judge, Dhenkanal-Angul in S.T. Case No.73 of 2002 is well confirmed. In the result, the JCRLA, being devoid of merits, stands dismissed.