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2018 DIGILAW 208 (ORI)

Goura Mohan Singh v. State of Orissa

2018-02-21

D.P.CHOUDHURY, INDRAJIT MAHANTY

body2018
JUDGMENT : D.P. CHOUDHURY, J. 1. The aforesaid appeal is directed against the judgment of conviction and sentence passed by Sri K.B. Swain, Adhoc. Additional Sessions Judge, Balasore passed under section 302 of I.P.C. in Sessions Trial No.20/154 of 2007. 2. The conspectus of the case of the prosecution is that on 8.12.2006 at about 3 p.m. the father of the informant while coming from the house of Manu Singh to his house, the appellant came with a spade and assaulted by the handle of the spade to the head of the father of the informant causing injury on his head. Then the deceased fell down on the ground, but the appellant went on assaulting him. The deceased remained laying on the ground with a pool of blood on his person. When the villagers shouted, the appellant fled away. Then the deceased was removed to the hospital, but on the way the deceased expired. Then F.I.R. was lodged before the police. 3. During investigation police examined witnesses, visited the spot and made inquest over the dead body of the deceased. The police sent the dead body for post-mortem examination, seized the wearing apparel of the deceased and the appellant. In course of investigation the accused under custody made disclosed statement and gave recovery of a “Kata” wrapped with cloth from a concealed place. Police seized all these properties and set the same for chemical examination. After completion of investigation charge sheet was submitted. 4. The plea of the appellant as revealed from the statement recorded under section 313 of Cr.P.C. and the suggestion given during cross-examination to the prosecution witnesses, is squarely denial to the occurrence and he pleads innocence. 5. The prosecution in order to prove the charge, examined 28 witnesses but the defence examined none. The learned trial court after analyzing the evidence of the prosecution witnesses convicted the appellant under section 302 I.P.C., sentenced him to undergo R.I. for life and fine of Rs.50,000/-, in default to undergo R.I. for one year. SUBMISSIONS: 6. Learned counsel for the appellant submitted that there are discrepancies in the evidence of the eye witnesses to prove overt act of the appellant, in regard to the weapons of offence used. SUBMISSIONS: 6. Learned counsel for the appellant submitted that there are discrepancies in the evidence of the eye witnesses to prove overt act of the appellant, in regard to the weapons of offence used. According to him, the prosecution has not proved the statement of the appellant recorded under section 27 of the Evidence Act and leading to discovery legally, because P.W.10 was examined by the court to prove the disclosure statement and leading to discovery of the weapon of offence. 7. Learned counsel for the appellant further submitted that the blood group as available from the blood stain on the seized cloth of appellant does not match to the blood group of the deceased. He further submitted that there are discrepancies about the statement of the appellant made towards recovery of the weapon of offence and leading to discovery of the same, because P.W.18 who is the I.O. stated about statement of the appellant, but outside witness does not corroborate the same. It is the further argument on behalf of the appellant that the prosecution has not proved the intention and motive of the appellant to cause death of the deceased. Since there is sudden overt act by the appellant, the intention is far away from the commission of offence. Hence he submitted to acquit the appellant of the charge. 8. Mr. J. Katkia, learned Additional Government Advocate submitted that there is clinching material about the overt act of the appellant, because the eye witnesses have consistently stated about the assault by the appellant by utilizing the sharp cutting weapon. He further submitted that since there is direct evidence, motive is immaterial. The intention is very clear from the overt act of the appellant because the appellant has continuously assaulted the deceased by the weapon of offence till the gathering was made. However, he submitted that in addition to the direct evidence, circumstantial evidence is also clinching one to prove the guilt of the appellant. Hence, he supported the impugned judgment of conviction and sentence. 9. As an appellate Court evidence on record has to be appreciated to find out whether the conclusion arrived at by the trial court is correct or not. It is trite in law that the evidence is to be weighed, but not to be counted. The Court should separate the grain from the chaff. 9. As an appellate Court evidence on record has to be appreciated to find out whether the conclusion arrived at by the trial court is correct or not. It is trite in law that the evidence is to be weighed, but not to be counted. The Court should separate the grain from the chaff. It is reported in A.I.R. 2003 SC 854; Lallu Manjhi and another v. State of Jharkhand, where Their Lordships at paragraph 10 observed as follows:- “The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. (See Vadivelu Thevar etc. v. State of Madras, AIR 1957 SC 614 ).” 10. With due respect to the said decision, it is clear that the evidence of witnesses while being appreciated, the same should be wholly reliable or wholly unreliable or same be partly reliable and partly unreliable. Bearing in mind this principle, let us discuss the evidence on record. It is revealed from the evidence of P.W.28 that he held the inquest over the dead body of the deceased vide Ext.1/1. P.Ws.10 and 15 corroborate the statement of P.W.28 about the inquest over the dead body of the deceased. The inquest report also shows that the deceased was having multiple injuries on his person. The evidence of P.W.21 shows that on 9.12.2006 he conducted the post-mortem examination over the dead body of the deceased and found the following injuries:- “1. One incised wound on the right side of neck 5 cm x 1 cm ante mortem in nature. 2. One incised wound over chin 2” x ½”. 3. One incised wound below left eye 4” x 1/2”. 4. Multiple injury over back region. 5. Bruise over left temporal region. 6. Cutting wound over forehead left side 5” x 1”. 7. One incised wound on the right side of neck 5 cm x 1 cm ante mortem in nature. 2. One incised wound over chin 2” x ½”. 3. One incised wound below left eye 4” x 1/2”. 4. Multiple injury over back region. 5. Bruise over left temporal region. 6. Cutting wound over forehead left side 5” x 1”. 7. Cutting wound over scalp at frontal region left side. 8. Large hematoma over left side of temporal region frontal skull. 9. Swelling of eye lids with black eye.” 11. P.W.21 proved the report vide Ext.6 and his signature vide Ext.6/1. According to him, the cause of death is due to severe bleeding out of multiple injuries on face, skull and hematoma over skull. The post-mortem examination report vide Ext.6 shows that the death was homicidal one. Therefore, the prosecution has proved the cause of death of the deceased as homicidal. 12. The evidence of P.W.1 shows that she is the daughter of the deceased. Although she is 13 years old and related to the deceased, her evidence is clear enough to repose confidence. According to her, she was present while her father was assaulted. According to her, while her father had gone to the house of Manu Singh to call him for work, near the house of Ayodhya Singh, the appellant-accused being armed with a spade and Kata dealt blow by such weapon on the head and face of her father. While the witnesses arrived, he fled away, but it is clear from her evidence that the appellant was threatening the witnesses not to go near the deceased. Denying the suggestion of the defence she stated to have narrated the incident before the police in her earlier statement, but the witness confronted to such statement of the I.O. So, the evidence of P.W.1 cannot be stated to have been exorbitant or contrary to her earlier statement. It is trite in law that a witness being relation cannot be relied upon to prove charge provided his/her evidence is convincing and unimpeachable. So, after scrutiny her evidence is found to be cogent and clinching for which, she being the eye witness has proved the overt act of the appellant. It is trite in law that a witness being relation cannot be relied upon to prove charge provided his/her evidence is convincing and unimpeachable. So, after scrutiny her evidence is found to be cogent and clinching for which, she being the eye witness has proved the overt act of the appellant. Similarly P.W.2 corroborating the evidence of P.W.1 stated that she had seen the assault by the present appellant on the person of the deceased by means of the handle of a spade and Kata. She has been cross examined in detail and admitted that she saw the occurrence although at a distance and categorically stated that two to three blows were given on the face of the deceased. So, her evidence cannot be discarded. P.W.3 who is the wife of the deceased stated that by the time she arrived at the spot the assault was over, but the appellant was standing there with the handle of Kodal in his hand. 13. Similarly, the evidence of P.W.5 revealed that he had witnessed the assault by the present appellant by means of Kata on the deceased. The witness apprehended the appellant, he arranged a rickshaw and shifted the deceased to the hospital. In cross-examination, denying the suggestion of the defence he stated to have witnessed the occurrence. At the same time such statement was not confronted to the I.O. In absence of confronting such statement to the I.O., it cannot be stated that P.W.5 has contradicted his earlier statement. On the other hand, he has sufficiently corroborated P.W.1 about the assault by the appellant on the person of the deceased. P.W.8 also stated that he saw the appellant assualting the deceased by the handle of a Kodal and Kata. He has also restrained the appellant from assaulting. In cross-examination he stated that he was alone when the incident took place. Here, learned counsel for the defence submitted that if he was alone when the incident took place, it cannot be said that P.W.1 was also there witnessing the occurrence. Unless during cross-examination the closeness of P.W.8 to the place of occurrence is ascertained and possibility of other persons is evident, such statement of P.W.8 is not at all conducive to the case of the prosecution. On the other hand, P.W.8 has also proved the overt act of the appellant. 14. Unless during cross-examination the closeness of P.W.8 to the place of occurrence is ascertained and possibility of other persons is evident, such statement of P.W.8 is not at all conducive to the case of the prosecution. On the other hand, P.W.8 has also proved the overt act of the appellant. 14. P.W.19 revealed that hearing hullah he came out from the house and found that the present appellant was assaulting the deceased holding the handle of a Kodal in left hand and dealing blows by Kata on the face and head of the deceased. While he protested, the appellant also threatened him to kill. In cross-examination he admitted to have not stated before the police that he saw the overt act of the appellant. Thus, for the first time he disclosed the occurrence before the court. However, his evidence with regard to his presence at the spot cannot be denied because the threatening by the accused to him could not be washed out from his evidence during cross-examination. P.W.20 stated to have witnessed the assault by the present appellant on the person of the deceased by means of the handle of the Kodal. He being threatened by the appellant, went away, but later on came to the spot again and found multiple injuries on the person of the deceased. There is no fruitful cross-examination to this witness. So, he has proved the assault by the appellant on the person of the deceased. There are minor discrepancies between the eye witnesses in regard to use of weapon of offence because some witnesses stated to have seen the use of handle of Kodal. 15. The aforesaid evidence of eye witnesses are consistent, clear, cogent and above reproach to prove that the appellant had assaulted the deceased by means of the handle of a Kodal and Kata causing multiple injuries on his face and head. The aforesaid evidence of the doctor enjoined with the evidence of the eye witnesses amply proves the overt act of the appellant. 16. There are also evidence of the above P.Ws. and other P.Ws. to show that the appellant did not allow the witnesses to intervene and went on assaulting, which clearly shows an important circumstance against him to prove his intention to cause death of the deceased. 16. There are also evidence of the above P.Ws. and other P.Ws. to show that the appellant did not allow the witnesses to intervene and went on assaulting, which clearly shows an important circumstance against him to prove his intention to cause death of the deceased. Bereft of this evidence, there is also evidence of the I.O. P.W.28 to the effect that on 9.12.2006 at about 11.30 a.m. during the custody the appellant made statement about the blows by the handle of Kodal and Kata on the person of the deceased and he had concealed the Kata by wrapping same by means of a napkin in the Bari of Dhusa Singh and accordingly led the police and gave recovery of the same Kata and napkin. P.W.28 proved the seizure list vide Ext.2. Of course he has not proved the statement of the witnesses recorded separately, but the same has been recorded in the circumstances of the seizure. Although the statement was not separately recorded, but the circumstance to seizure in the seizure list is clear to show recording of statement of the appellant as to concealment of the property in the Bari of Dhusa Singh. At the same time the same document shows that the appellant gave recovery of the Kata, weapon of offence with a napkin which was kept wrapped. It is reported in Pulukuri Kuttaya and others v. Emperor, A.I.R. 1947 P.C. 67 where Their Lordships observed on the following manner in paragraph-10 :- “10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate…...” 17. The aforesaid decision has been reported in the case of Geejaganda Somaiah v. State of Karnataka; A.I.R. 2007 SC 1355, wherein Their Lordships at paragraph-21 have held as follows:- “21. Section 25 of Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 the Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.” 18. With due regard to the aforesaid decisions, it is clear that the relevant fact discovered in consequence of information disclosed is really assurance to the truth of such information. With due regard to the aforesaid decisions, it is clear that the relevant fact discovered in consequence of information disclosed is really assurance to the truth of such information. On the other hand if the material is recovered without any statement, that cannot be taken as compliance of Section 27 of the Evidence Act. Apart from this, leading to discovery by the appellant is a conduct relevant under Section 8 of the Evidence Act showing incriminating circumstance against the appellant. 19. The evidence of P.W.18 shows that in his presence the appellant during police custody produced the Kata with blood stain and napkin from inside the earth. This witness even if did not disclose about the statement of the appellant, but showed recovery of the Material Object at the instance of the appellant which also corroborates with the statement of the I.O. (P.W.18) about discovery of the weapon of offence by the appellant. 20. Thus, the evidence of leading to discovery being proved with consistent evidence is a great circumstance against the appellant. From the aforesaid analysis, we are of the view that the prosecution has proved the occurrence and the complicity of the appellant with the commission of offence by consistent, clear, direct and circumstantial evidence. The appellant has simply pleaded innocence without adducing any evidence to prove the same. It is only submitted by learned counsel for the appellant that no motive in this case has been proved. It is reported in Molu and others v. State of Haryana, A.I.R. 1976 S.C. 2499, where Their Lordships observed at paragraph-11 as follows:- “……It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye witnesses is creditworthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant…….” 21. With due respect to the aforesaid decision, it is clear that motive would take a back seat if the direct unimpeachable evidence is available to prove the complicity of the accused with the commission of offence. With due respect to the aforesaid decision, it is clear that motive would take a back seat if the direct unimpeachable evidence is available to prove the complicity of the accused with the commission of offence. Since in the instant case there is ample direct evidence of the eye witnesses of unquestionable character, the absence of evidence of motive cannot be said to be material to reject the case of the prosecution, which is otherwise proved. 22. In the result we find that the learned trial court has correctly appreciated the evidence on record and recorded the order of conviction and sentence. We affirm the finding of learned trial court. Before parting with the judgment, we make it clear that the prosecution should play active role while the witnesses are produced by the police because in the instant case some witnesses have been put the questions on the fact as per their knowledge directly because the prosecution appears to have not taken active role when witnesses were produced by the police. Role of prosecution is to assist the Court but not to discourage the witnesses from their attendance and prosecution should play all cards before the Court to show its transparency. 23. In the result, the judgment of conviction and sentence is upheld, and the appeal being devoid of merit stands dismissed. A copy of this judgment be sent to the Principal Secretary to the Government in Home Department for circulation to the Public Prosecutors/ Additional Public Prosecutors with regard to discharge of their duties to be performed. The L.C.R. be returned back immediately. I. MAHANTY, J. : I agree.