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2018 DIGILAW 520 (ORI)

LANKA BALOMUCCHU @ MOTU v. STATE OF ORISSA

2018-05-08

D.P.CHOUDHURY

body2018
JUDGMENT : D.P. CHOUDHURY, J. 1. The captioned Appeal is filed against the judgment of conviction and sentence passed by the learned Additional Sessions Judge, Bonai in Sessions Trial No. 135/90/185 of 2011-13 for the offence under Section 304 Part-II and Section 323 of I.P.C. 2. The factual matrix leading to the case of the prosecution is that on 23.3.2012 at about 7 p.m. while the deceased and her husband were staying in a house, the appellant came and assaulted to deceased Bela Munda on her head with lathi and when her husband tried to intervene, the appellant also assaulted him by lathi on the right hand shoulder causing injury on his person. Thereafter Bela Munda was removed to hospital, where she succumbed to the injuries. Accordingly F.I.R. was lodged, inquest was made on the dead body and post-mortem examination was made on police requisition. The police seized the lathi, the weapon of offence on being produced by the appellant. Blood stained wearing apparel of the deceased, sample earth and blood stain earth were seized from the spot. After due investigation charge sheet was submitted. 3. 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. 4. The trial court after analyzing the evidence of witnesses has found the appellant guilty under section 304 Part-II I.P.C. and sentenced him to undergo R.I. for seven years and to pay fine of Rs.5, 000/- in default to undergo further R.I. for six months and convicted him further under Section 323 of I.P.C. R.I. for six months thereunder. SUBMISSIONS: 5. Learned counsel for the appellant submitted that out of 13 witnesses, P.Ws. 1 and 8 have been declared hostile by the prosecution. There is no motive proved in this case. He further submitted that the learned trial court erred in law by relying upon the evidence of P.W.6 who is none other than the husband of the deceased and his evidence should have been scrutinized more as he could not say as to why the appellant assaulted him and his wife. Also there are discrepancy between the evidence of the doctor and the injured (P.W.6) , because P.W.6 stated to have sustained fracture injury, but P.W.12 (doctor) has found all the injuries of simple in nature. Also there are discrepancy between the evidence of the doctor and the injured (P.W.6) , because P.W.6 stated to have sustained fracture injury, but P.W.12 (doctor) has found all the injuries of simple in nature. Since there is no sufficient evidence to prove the overt act of the appellant and no outsider corroborated P.W.6, the judgment of conviction and sentence should be set aside. 6. Mr. Mishra, learned Addl. Government Advocate submitted that conviction can lie basing on the evidence of a single witness and in the present case there is no reason to discard the evidence of P.W.6 as he is the occurrence witness to the occurrence. Even if the witnesses (P.Ws.1 and 8) being hostile, did not corroborate the eye witness (P.W.6) , but that is not fatal. On the whole he supports the judgment of conviction and sentence passed by the learned court below. DISCUSSION: 7. It is Lallu Manjhi and another v. State of Jharkhand, (2003) AIR(Supreme Court) 854 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, (1957) AIR(Supreme Court) 614) ." 8. It is reported in the case of Sunil Kumar v. State Govt. of NCT of Delhi, (2004) AIR(Supreme Court) 552, where Their Lordships observed as follows:- "8. In Vadivelu Thevar vs. The State of Madras, (1957) AIR(Supreme Court) 614 this Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly neither wholly reliable nor wholly unreliable. In the case of first to categories this Court said that they pose little difficulty but in the case of third category of witness corroboration would be required. In the case of first to categories this Court said that they pose little difficulty but in the case of third category of witness corroboration would be required. The relevant portion is quoted as under: "...Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unrealiable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses..." Vadivelu Thevar's case was referred to with approval in the case of Jagdish Prasad and others vs. State of M.P., (1994) AIR(Supreme Court) 1251. This Court held that as a general rule to court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). But, if there are doubts about the testimony the courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise." 9. With due respect to the aforesaid decision it is clear that conviction can be maintained basing on sole evidence of a single witness, if it is clear, cogent and consistent. It is also settled in law that the Court should separate grain from chaff. Keeping in mind of these principles, let the evidence on record be assessed. The evidence of P.W.4 who is the doctor is as follows:- External injuries: 1. The dead body in the stage of rigor mortis with bloodstain along the face and nostrils. 2. Incised looking lacerated wound over the fore head above the left eye brow of size 3" x "x". 3. Hematoma in and around the left eye with black eye due to extra vassated blood. Internal injuries: 1. Hematoma on the scalp. Abdomen with seedling to the peritoneal and peritoneal fluid and large taboo overall mass with matting to the bladder and rectum. He proved the post-mortem examination report vide Ext.4. The cause of death was due to severe bleeding from the head injuries. 10. The evidence of P.Ws.2, 5 and 13 show that inquest over the dead body was made and the inquest report shows that the deceased has got injury on her person. Thus, the inquest report along with the post-mortem examination report shows that the deceased Bela Munda has got death of homicidal in nature. 11. The evidence of P.W.6 shows that on the date of incident at the evening hour while he and his wife Bela Munda were present in their house, the appellant came and assaulted Bela Munda on her head. While the P.W.6 tried to save his wife, the appellant also assaulted him with Lathi causing dislocation of his right shoulder. In cross-examination there was suggestion from the side of the appellant that he killed his wife due to domestic quarrel, to which he denied. There is no plea taken by the appellant in the statement recorded under Section 313 Cr.P.C. that P.W.6 killed his wife. In cross-examination there was suggestion from the side of the appellant that he killed his wife due to domestic quarrel, to which he denied. There is no plea taken by the appellant in the statement recorded under Section 313 Cr.P.C. that P.W.6 killed his wife. Apart from this, there is no other cross-examination to shake his evidence. So the evidence of P.W.6 is clear and cogent to show that he is the husband of the deceased and due to overt act of the appellant, his wife succumbed to the injuries. The statement of P.Ws. 2 and 7 reveal that after the occurrence they reached the spot and took the deceased to hospital, but she died on the way. So, they are post-occurrence witnesses. 12. P.W.1 is the informant, but he only stated that on being filled up a paper he signed thereon. He proved the F.I.R. as Ext.1 and his signature as Ext.1/1. There is cross-examination by the prosecution and denying the suggestion of the prosecution he refused to have stated before the I.O. that it was read over and explained to the informant and then he signed. Such statement is not confronted to the I.O. by the prosecution, for which the statement of P.W.1 cannot be said to be hostile, but he has proved the F.I.R. vide Ext.1 to prosecution. P.W.8 denied to have seen the occurrence and he was cross-examined by the prosecution. During cross-examination denying the suggestion of the defence he stated to have not stated before the police that he has witnessed the appellant assaulting the deceased by Lathi. Such statement is also not confronted to the I.O. When the statement is not confronted to the I.O., P.W.8 cannot be declared hostile. It must be remembered that the prosecutor has got duty to perform in the interest of justice. On the other hand, P.W.8 has not supported the prosecution. 13. P.W.12 testified that while he was the Medical Officer at Kalta Iron Mines Hospital, on police requisition he has examined P.W.6 and found the following injuries:- "(i) Swelling over his right shoulder. (ii) Lacerated injury on right eye brow 1 cm x 5 cm x 5 cm. Both the injuries are simple and might have been caused by any sharp weapon. The duration of injury was within 12 hours of my examination. Ext.10 is injury report and Ext.10/1 is my signature. 14. (ii) Lacerated injury on right eye brow 1 cm x 5 cm x 5 cm. Both the injuries are simple and might have been caused by any sharp weapon. The duration of injury was within 12 hours of my examination. Ext.10 is injury report and Ext.10/1 is my signature. 14. The aforesaid injuries corroborate the evidence of P.W.6 as to the injuries on his right shoulder. Since the injuries on the person of P.W.6 not only proved the overt act of the appellant on his person, but also proved the injuries caused to the deceased by the appellant. 15. Besides, P.W.13 has proved the seizure of the Lathi on production by the appellant, but that was seized actually from the spot as per the evidence of P.W.6. P.W.4, the doctor corroborating the evidence of P.W.13 stated that the weapon of offence was produced before him and he found that the weapon of offence was used to cause injury on the person of the deceased. So, the evidence of P.W.4 coupled with the seizure of the Lathi corroborate the case of the prosecution. 16. Learned counsel for the defence submitted that the blood stain cloth after chemical examination do not contain any blood group to prove the circumstantial evidence against the appellant. Of course prosecution has failed to prove such chemical examination report. 17. Learned counsel for the defence further submitted that there is no cogent evidence to prove the spot, because P.W.6 stated that while they were in their house, the appellant assaulted the deceased causing her death, whereas the evidence of P.W.7 shows that he found the body of the deceased was falling on the road. The spot visit shows that the house of deceased is close to the spot. So, the discrepancy about spot is not relevant as in the rural area there is least distance between the village path and the courtyard of the house. So, the discrepancy as to the spot is not relevant to discard the case of the prosecution. 18. Of course no motive is proved by the prosecution, but when prosecution has proved the occurrence by direct evidence of P.W.6 who is the husband of the deceased and after close scrutiny, his evidence is relied in spite of relationship with the deceased, the lack of proof of motive becomes minimal. 18. Of course no motive is proved by the prosecution, but when prosecution has proved the occurrence by direct evidence of P.W.6 who is the husband of the deceased and after close scrutiny, his evidence is relied in spite of relationship with the deceased, the lack of proof of motive becomes minimal. Of course the assault was made by the appellant on the head of the deceased having no any intention, but the knowledge of the appellant is there to the effect that the injuries would likely to cause death. 19. Learned trial court has analyzed the evidence properly and has found the appellant guilty under Section 304-II I.P.C. There is no wrong in his conclusion. Similarly, the injury on the person of P.W.6 being corroborated by the doctor proved that the appellant has voluntarily caused hurt to P.W.6 and thereby offence under Section 323 I.P.C. is proved against the appellant. In this regard the finding of the learned trial court cannot be stated to be incorrect. 20. In terms of the above discussion, this Court is of the view that the judgment of the learned trial court with regard to conviction under Section 304-II I.P.C. read with Section 323 I.P.C. are proper and the same is confirmed. 21. It is submitted by learned counsel for the appellant that since the appellant is in custody since last six years and he is a young man of 28 years old being a member of Scheduled Tribe community, lenient view may be taken to reduce the sentence. Learned Additional Government opposed the move. 22. In view of the above submission of learned counsel for the appellant and learned Additional Government Advocate, nature of evidence adduced and nature of injuries to cause death, the sentence awarded by learned trial court is modified to the extent of the period of imprisonment already undergone for the offence under Section 304-II I.P.C. and Section 323 I.P.C., but rest sentence of payment of fine, in default of payment to undergo rigorous imprisonment for offence under Section 304-II I.P.C. would remain unaltered. The JCRLA is disposed of accordingly. The L.C.R. be returned forthwith.