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2018 DIGILAW 207 (ORI)

Hadi Sisa v. State of Orissa

2018-02-21

D.P.CHOUDHURY, INDRAJIT MAHANTY

body2018
JUDGMENT : D.P. CHOUDHURY, J. 1. This Jail Criminal Appeal is filed by the appellant from Jail assailing the judgment of conviction passed under Section 302 of the Indian Penal Code (hereinafter called as “I.P.C.”) by the learned Ad hoc Additional Sessions Judge (FTC), Malkangiri in Criminal Trial No.42/2008 sentencing him to undergo imprisonment for life for the offence under Section 302 IPC and to pay a fine of Rs.5,000/-in default to undergo R.I. for six months for the said offence. 2. The factual matrix leading to the case of the prosecution is that on 30.04.2008, the appellant assaulted the deceased by shooting arrow from the bow and thus, said arrow pierced to the chest of the deceased. Then, the deceased was carried to CHC, Khariput where the doctor, having found the deceased with injury, lodged the FIR before the police. During investigation, police examined the witnesses and while treatment was going on, the injured succumbed to injuries. So, the post-mortem examination of the injured was also conducted after performing the inquest over the dead body. Police also seized the weapon of offence, wearing apparels of the victim, nail clippings of the appellant, bow and bed head ticket. After completion of the investigation, charge sheet has been submitted. 3. The plea of the appellant, as revealed from his statement recorded under Section 313 Cr.P.C. and the cross-examination made to the prosecution witnesses that he is innocent and had no intention to kill the deceased and a false case has been filed against him. 4. The prosecution, in order to bring home the charge against appellant, has examined nine witnesses and the defence examined none. Learned trial Court, after analyzing the evidence of the PWs, found the appellant guilty under Section 302 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 six months for the said offence. 5. Mrs.Kasturi, learned counsel for the appellant submitted that the motive of the appellant has not been proved by the prosecution. No intention or knowledge of the appellant is proved to cause the death of the deceased. According to him, P.W.2 being arrayed as sole eye witness, cannot be trusted because of his peculiar evidence led. Similarly, the evidence of P.W.8 is not clear, cogent and creditworthy. 6. No intention or knowledge of the appellant is proved to cause the death of the deceased. According to him, P.W.2 being arrayed as sole eye witness, cannot be trusted because of his peculiar evidence led. Similarly, the evidence of P.W.8 is not clear, cogent and creditworthy. 6. Mrs.Kasturi, learned counsel for the appellant further submitted that the material available on record would only indicate that the occurrence took place all of a sudden and the mens rea of the appellant is not proved to cause the death of the deceased. So, he submitted to allow the Jail Criminal Appeal by acquitting the present appellant from the charge. 7. Learned Additional Government Advocate for the State submitted that there is dying declaration of the deceased to the effect that the appellant had intentionally shot the arrow from the bow to cause the death of the deceased. Moreover, since there is direct evidence available against the appellant, the motive for commission of the crime is not required to be proved being academic. As there are lot of evidence proved against the appellant, the judgment of conviction and sentence should be affirmed. 8. DISCUSSONS The FIR vide Ext.1 shows that the Medical Officer of CHC, Khariput is the informant in this case. According to him, when the deceased arrived, the arrow was present piercing the hypochondruim (left side) with omentum protruding out. On being asked, the injured informed that the present appellant assaulted him by bow and arrow on his stomach. Then, he referred the injured to the District Headquarters Hospital, Koraput. He proved his report vide Ext.1. Thus, P.W.1 is not the occurrence witness but an informant to the case. There is no fruitful cross-examination to this witness. Of course, the statement of the deceased is not available to lend corroboration as the prosecution submitted that during course of treatment, he died. 9. P.W.7 is also another doctor, who has treated the injured preliminarily proved the OPD entry vide Ext.4. Of course, he has referred injured to P.W.1. There is no explanation from P.W.7 as to why he has not lodged the FIR. It is made clear that the doctor, who treated the injured at first instance, is duty bound to lodge FIR if no FIR is lodged prior to visit the doctor. 10. Of course, he has referred injured to P.W.1. There is no explanation from P.W.7 as to why he has not lodged the FIR. It is made clear that the doctor, who treated the injured at first instance, is duty bound to lodge FIR if no FIR is lodged prior to visit the doctor. 10. However, P.W.8 is another doctor who was working as Surgery Specialist at D.H.H. Koraput, corroborating the statement of P.Ws.1 and 7, admitted that he had attended the deceased referred to by PWs.1 and 7. According to him, the deceased was having penetrating arrow shot with arrow in place and he was in condition of shock and in a confuse state. The arrow entry was at the hypocondrium with prolapsed omentum. He found the injured had fical peritonitis with the arrow head found lodged in vartibra piercing through peritoneum plurals cavity with two perforating wounds over transverse column and injury to pancreas. The wounds were repaired transverse colostomy done and chest tube given to left chest cavity. The deceased has profuse bleeding from left side chest. He had prepared the bed head ticket vide Ext.7 and proved his signature vide Ext.7/1 but on 01.05.2008 at 9.00 pm, the deceased expired. 11. P.W.8 further testified that Dr.Manoj Kumar Das, who is his colleague, had performed the post-mortem examination over the dead body of the deceased. He has got acquaintance with his handwriting and signature having worked with him together. He proved the post-mortem report vide Ext.10 and signature of Dr.M.K.Das vide Ext.10/1. Dr. Das has not been examined in this case because P.W.8 has further clarified that Dr.Das had gone to SCB Medical College and Hospital, Cuttack for higher studies. No doubt, P.W.8 is competent to prove the post-mortem report because he being the colleague of Dr.Das, has got acquaintance with his handwriting and signature. The acceptance of post-mortem report, as a document, can be admissible in evidence under Section 68 of the Evidence Act. But his evidence cannot be considered as evidence relevant under Section 45 of the Evidence Act because the doctor who performs the postmortem examination has to testify. It is reported in Mohd. The acceptance of post-mortem report, as a document, can be admissible in evidence under Section 68 of the Evidence Act. But his evidence cannot be considered as evidence relevant under Section 45 of the Evidence Act because the doctor who performs the postmortem examination has to testify. It is reported in Mohd. Zahid –V-State of Tamil Nadu; AIR 1999 SC 2416 where the Hon’ble Supreme Court, at paragraph-24, has observed in the following manner: “24.....sufficient weightage should be given to the evidence of the doctor, who has conducted the post-mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value when it is self-contradictory............” 12. It is also reported in State of Madhya Pradesh –V-Sanjay Rai; AIR 2004 SC 2174 where the Hon’ble Supreme Court have observed that opinion expressed in textbooks may have persuasive value but cannot be considered to be conclusive. It cannot have higher value than the opinion of the expert examined in Court. 13. With due regard to the aforesaid decisions, it appears that the doctor who has performed the autopsy must be examined to prove the post-mortem report as an expert whose evidence is very vital and relevant under Section 45 of the Evidence Act. There are exceptions to such view because at times, doctor being dead is not available or doctor is missing being not available. However, in the instant case, Dr.M.K.Das being at SCB Medical College and Hospital for his higher study, was not available to the trial Court. So, the evidence of P.W.8 cannot be taken as relevant to prove the cause of the death as an expert. But, at the same time, the autopsy report of the deceased is accepted being a document duly proved by P.W.8 for the reasons, as discussed above. 14. On perusal of the post-mortem report, it is clear to show that the cause of the death was due to hemorrhagic shock as a result of bleeding from various internal wounds and accumulation of blood in multiple body cavity as well as injury to various organs. 15. Even if the doctor conducting autopsy has not examined but taking the evidence of P.Ws.7 and 8 read with the post-mortem report culminatingly go to show that the deceased had died due to arrow shot. 15. Even if the doctor conducting autopsy has not examined but taking the evidence of P.Ws.7 and 8 read with the post-mortem report culminatingly go to show that the deceased had died due to arrow shot. So, from the material, it is inferred that the death of the deceased was homicidal. 16. P.W.2, who is the eye witness to the occurrence, categorically stated that on the date of occurrence, while he and deceased were sitting on their verandah and talking with each other, at that time, the appellant being armed with bow and arrow, shot an arrow aiming at the deceased and the said arrow pierced through the chest of the deceased for which he fell down on the ground. Then, the appellant fled away from the spot. From the evidence of P.W.2, it reveals that the deceased Sania Sisa was shifted to CHC, Khairput and then at the advice of the doctor, the deceased was shifted to District Headquarters Hospital and on the next date, he died. There is nothing revealed from his cross-examination to shake his testimony. 17. From the evidence of P.W.6, who is the son-in-law of the deceased, it reveals that he was present in his courtyard when the occurrence took place. Hearing the cry of his father-in-law, he rushed to the spot and found the appellant was running away from the spot with his bow. There is nothing revealed from his evidence to discredit his testimony even if he is related to the deceased. On the other hand, his evidence also corroborates the evidence of P.W.2 about the complicity of the appellant to cause death of the deceased. 18. P.W.3 is not an occurrence witness but he had only been to the spot after coming to know about the death of the deceased. 19. From the evidence of the IO (P.W.9), it appears that he has seized the bow from the house of the appellant. From the evidence of P.W.8 (doctor), it reveals that police has seized the arrow from him at district headquarter hospital vide Ext.8. It also reveals from the evidence of P.W.9 that the seized bow and arrow had been sent for doctor’s opinion. Of course, inquiry report prepared by Dr.Manoj Das is proved vide Ext.11 by P.W.8, who has got acquaintance with the signature and handwriting of Dr.Das. It also reveals from the evidence of P.W.9 that the seized bow and arrow had been sent for doctor’s opinion. Of course, inquiry report prepared by Dr.Manoj Das is proved vide Ext.11 by P.W.8, who has got acquaintance with the signature and handwriting of Dr.Das. In cross-examination, P.W.8 denied about possibility of such injury by accidental fall on a pointed object. It reveals from Ext.11 that the injuries, as found by P.W.8 and Dr.Das, are possible by the said arrow. Of course that arrow is not produced in Court. Even if the same is not produced in Court, non-controverted evidence of P.W.9 read with the evidence of P.Ws.1, 7 and 8 do not beleaguer the case of the prosecution. So, the prosecution has well proved that the injury could be possible by arrow and bow. 20. It is revealed from the evidence of PWs that the IO (P.W.9) has seized the wearing apparels of the deceased and appellant. Not only this but also the IO has seized the nail clippings of the appellant. P.W.13 stated to have sent these items for chemical examination but the report of the chemical examiner has not been proved by the prosecution. In the absence of report of the chemical examiner, no adverse view can be taken against the case of the prosecution as other materials, as discussed above, clearly proved the sudden overt act by the appellant upon the deceased by shooting arrow. The evidence of the P.Ws do not disclose about the previous enmity between the parties. Of course, the motive is not criteria as there lies direct evidence available to prove the complicity of the appellant with the commission of offence. 21. It is only available from the evidence of PWs.1 and 7 that if appropriate medical facilities were available at the CHC, Khairput, then the life of the deceased could have been saved. So, the doctor’s opinion is clear to show that in the event of proper medical intervention at right time, they could have saved the life of the deceased. When there is single blow by arrow and opinion of the doctor that the deceased could have been saved had there been proper medical facility at CHC, Khairput, the Court is of the view that the appellant has no intention to kill but to cause serious injuries on the person of the deceased. 22. When there is single blow by arrow and opinion of the doctor that the deceased could have been saved had there been proper medical facility at CHC, Khairput, the Court is of the view that the appellant has no intention to kill but to cause serious injuries on the person of the deceased. 22. It is submitted by the learned counsel for the appellant that in view of the facts and circumstances of the present case, the offence under Section 302 IPC is yet to be proved because the mensrea to cause the death of the deceased is not proved by the prosecution. Moreover, there is no motive proved by the prosecution and it appears that the appellant has no knowledge that the injury in ordinary course will cause death of the deceased. Repelling such argument, learned State Counsel submitted that when there is sudden attack by the appellant by shooting arrow, he had intention and knowledge that the injury would cause the death of the deceased in ordinary course of its nature. 23. From the discussions made hereinabove, we are of the view that the death of the deceased was culpable homicidal one but the single shot by arrow without there being evidence of intention to cause death. The judgment of conviction under Section 302 IPC passed against the appellant, while being not agreed with, the prosecution case for the offence under Section 304-I of IPC against the appellant is well made out. Therefore, we modify the judgment of conviction passed against the appellant under Section 302 of IPC by the learned Ad hoc Additional Sessions Judge (FTC), Balkangiri to Section 304-I IPC. 24. So far as the sentence of the present appellant is concerned, we are of the view that the appellant is a member of Scheduled Tribe, mens rea of appellant being proved and the appellant is in custody since 2008, in the facts and circumstances, we award sentence for R.I. for ten years and to pay a fine of Rs.5000/-(Rupees Five Thousand) in default to undergo R.I. for six months for the offence under Section 304-I of IPC. The period already undergone may be set off against the imprisonment awarded. With the above modification of conviction and sentence, the JCRLA is allowed in part. I.Mahanty, J. : I agree.