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2018 DIGILAW 615 (ORI)

Karma Lakra v. State Of Orissa

2018-06-25

BISWAJIT MOHANTY, S.K.SAHOO

body2018
JUDGMENT Biswajit Mohanty, J. - The present appeal is directed against the judgment dated 28.5.2008 passed by the learned Adhoc Additional Sessions Judge, Fast Track Court, Rourkela in Sessions Trial Case No.8/2 of 2008 in convicting the appellant under Section 302 of the Indian Penal Code. The appellant has also challenged the consequential sentences of imprisonment for life and of direction for payment of fine of Rs. 10,000/-, in case of default in making payment, to undergo R.I. for six months more. 2. The case of the prosecution as revealed from the F.I.R. (Ext.3/1) is as follows: P.W.3 (informant), who is the domesticated son-in-law of the deceased Budhu Lakra when returned to his in-laws' house on 23.10.2007 at around 2.30 p.m., saw her mother-in-law (P.W.5) crying. P.W.5 intimated to him that on the same date around noon when his father-in-law was returning from thrashing floor, on the road he was assaulted by the appellant by means of an axe (M.O.II) and accordingly, he succumbed to the injuries. Hearing this, P.W.3/informant rushed to the spot and saw his father-in-law, namely, Budhu Lakra lying dead on the road. He noticed injuries on the head and back of the deceased inflicted by the axe. After committing the offence, the appellant had fled away. After the village people were intimated about the incident, they came to the spot. Accordingly, he reported the matter to Kuarmunda Out Post at 5.00 p.m. on 23.10.2007 and after making necessary station diary entries, the F.I.R. was sent to Biramitrapur police station for its registration. Accordingly, the F.I.R. under Ext.3/1 was registered at Biramitrapur police station at 6.30 p.m. on the same day. After registration of the case, the investigation commenced. During course of investigation, the I.O.(P.W.8) examined P.W.3 and scribe of the F.I.R.-P.W.6 and other witnesses, visited the spot and later on continued his investigation on the next day morning. In course of such investigation, he seized blood stained earth, weapon of offence stained with blood lying at the spot, conducted inquest over the dead body and sent the same for post mortem examination. He also seized the wearing apparels of the deceased, namely, M.O.IV and M.O.V, and upon arrest of the appellant on 24.10.2007, he seized the wearing apparels of the appellant, recovery of which was given by the appellant himself from a concealed place. He also seized the wearing apparels of the deceased, namely, M.O.IV and M.O.V, and upon arrest of the appellant on 24.10.2007, he seized the wearing apparels of the appellant, recovery of which was given by the appellant himself from a concealed place. He also sent a number of seized materials for chemical examination and after completion of investigation, submitted charge sheet against the appellant and accordingly, the appellant stood trial for committing an offence punishable under Section 302 of Indian Penal Code. 3. The prosecution in order to bring home the charge examined as many as eight witnesses and exhibited fourteen documents. P.W.1 is a post occurrence witness. P.W.2 is a witness to the seizure. P.W.3 is the informant. P.W.4 is the doctor, who conducted the post mortem examination. P.W.5 happens to be the wife of the deceased and mother-in-law of the informant (P.W.3). P.W.6 is the scribe of the F.I.R. P.W.7 claims to be a witness to the disclosure statement under Ext.7/1 and witness to the seizure under Ext.1/2. P.W.8 is the Investigating Officer. None has been examined from the side of the appellant and nor any document has been exhibited on his behalf. While from the side of the prosecution, five material objects were marked, no material objects have been marked on behalf of the appellant. 4. The plea of the appellant was one of the complete denial. 5. The learned trial Court after scanning the evidence on record, came to hold that prosecution has succeeded in establishing the ingredients of Section 300, IPC against the appellant beyond reasonable doubt and accordingly, convicted him under Section 302, IPC. 6. Mr. S.K.Mohapatra, learned counsel for the appellant submitted that the learned court below has gone wrong in recording the conviction of the appellant relying on the testimony of P.W.5 as she happens to be a relative of the deceased. Secondly, he submitted that the F.I.R. under Ext. 3/1 should be totally ignored on account of testimonies of P.Ws.3 and 6 as both of them have admitted in the crossexamination that the F.I.R. under Ext.3/1 was prepared as per dictation/saying of the police. Further, the informant (P.W.3) has himself made it clear that he does not know the contents of the F.I.R. In such background, Mr. 3/1 should be totally ignored on account of testimonies of P.Ws.3 and 6 as both of them have admitted in the crossexamination that the F.I.R. under Ext.3/1 was prepared as per dictation/saying of the police. Further, the informant (P.W.3) has himself made it clear that he does not know the contents of the F.I.R. In such background, Mr. Mohapatra, learned counsel for the appellant submitted that once the substratum of the prosecution case goes, the learned trial court has gone wrong in not treating the entire prosecution case to have collapsed. Lastly and alternatively, he submitted that conceding for a moment but not admitting that the appellant had assaulted the deceased but since such assault took place under an inebriated condition, therefore it cannot be said that the appellant had the intention to cause death. In such background, he prayed that the present Jail Criminal Appeal should be allowed and the appellant should be set at liberty. 7. Ms. Samapika Mishra, learned Addl. Standing Counsel on the other hand defended the impugned judgment and submitted that the submission made by Mr. Mohapatra cannot be accepted as there is no legal principle that the testimony of an eye-witness ought to be ignored merely because such witness happens to be a relative of the deceased. In this context, she further submitted that the version of P.W.5 has been well corroborated by the versions of the witnesses like P.Ws.3 and 4. Secondly, she submitted that the F.I.R. cannot be treated as a compendium of the entire prosecution case and merely because in cross-examination, both P.Ws.3 and 6 have stated that the F.I.R. under Ext.3/1 was prepared as per the dictation of the police that would not imply the entire prosecution case to be false, particularly, when testimony of P.W.5, who happens to be the eyewitness to the occurrence remains un-demolished. With regard to last submission of Mr. Mohapatra, she pointed out that such submission has no legs to stand as there is no evidence to show that the appellant committed the offence under an inebriated condition. She further submitted that the finding of human blood of Group-A on the Tangia (M.O.II) as well as the wearing apparels of the deceased under M.O.IV and M.O.V only reflects that it is the appellant making use of axe, has committed the crime and for which he has been correctly convicted by the learned trial court. 8. She further submitted that the finding of human blood of Group-A on the Tangia (M.O.II) as well as the wearing apparels of the deceased under M.O.IV and M.O.V only reflects that it is the appellant making use of axe, has committed the crime and for which he has been correctly convicted by the learned trial court. 8. In order to appreciate the submissions of both the counsels, let us scan the evidence on record. However, before entering into such an exercise, let it be noted that the homicidal nature of death of the deceased Budhu Lakra has remained undisputed. P.W.1 is a post occurrence witness, who has seen the deceased lying on the ground with bleeding injury on his head and back. P.W.2 is a witness to the seizure of Tangia and the wearing apparels of the appellant. But in the cross-examination, he says that he does not know about the contents of the seizure list. P.W.3, who happens to be the informant has testified that the police seized the blood stained earth, sample earth and Tangia from the spot and he signed over the same at Exhibit-2. However, in cross-examination he says that he does not know about the contents of the document over which his signature was taken and he appended such signature as per saying of the police. On re-examination on recall, he broadly corroborated his version as made in the F.I.R. and stated that after ascertaining about the incident from P.W.5, he went to the spot and found the dead body of his father-in-law on the road with bleeding injuries on the head and back and thereafter he went to the police station and P.W.6 scribed the F.I.R. as per his saying and on understanding the contents of the same, he signed the same with Ext.3 as his signature. However, in the cross-examination, he stated that the F.I.R. was prepared by P.W.6 being dictated by the police and he has no knowledge about the contents. Such testimony of P.W.3 greatly affects his credibility. P.W.4 is the doctor, who conducted post mortem examination. He found the following injuries on the body of the deceased. "1. Incised wound-4"x V/" x 2" bone depth over scalp and skull (left parietal) and brain material was protruding outside scalp. 2. Incised would-3" x V/" x 3" over left pinna. 3. Such testimony of P.W.3 greatly affects his credibility. P.W.4 is the doctor, who conducted post mortem examination. He found the following injuries on the body of the deceased. "1. Incised wound-4"x V/" x 2" bone depth over scalp and skull (left parietal) and brain material was protruding outside scalp. 2. Incised would-3" x V/" x 3" over left pinna. 3. Incised would-3" x V/" penetrating to thorax with 9th rib cut through on the right side". He further stated that the brain was cut through and such injury corresponds to injury no.1 and there was bleeding injury inside the brain. Right posterior chest wall had an incised wound corresponding to injury no.3 and he opined that the cause of death was due to injury on the vital centres of the brain and hemorrhage from all the sides of the injuries. All the injuries were ante mortem in nature and were sufficient to cause death in ordinary course of nature. He also testified that time since death was within 24 hours prior to post mortem examination. He proved the post mortem report as Ext.4. He further testified that as per the requisition of the I.O., he examined the axe and opined that the injuries detected are possible with the axe produced. Such opinion was marked as Ext.5. P.W.4 was not cross-examined by the defence. However, upon a query by the Court, he made it clear that the injuries were caused due to assault by external human force with sharp cutting weapon. P.W.5 is the widow of the deceased and is the eye-witness to the occurrence. As per her testimony, she had seen the appellant assaulting her husband by means of a Tangia on his head. She saw the incident when she came out after hearing the shout of the husband. Her husband had sustained bleeding injury and died immediately. On seeing her, the appellant fled away leaving the Tangia near the dead body. After returning of P.W.3, she told the incident to him. She testified that there existed some dispute between her deceased husband and the appellant. In the cross-examination, she has stated that none was present near her house when the incident took place and that there existed no other house near her house. After returning of P.W.3, she told the incident to him. She testified that there existed some dispute between her deceased husband and the appellant. In the cross-examination, she has stated that none was present near her house when the incident took place and that there existed no other house near her house. While denying existence of any land dispute between the appellant and the deceased, she stated that the dispute between them was on account of taking of liquor. She also admitted existence of visiting terms between them and stated that the appellant was loitering here and there like mad. She denied the suggestion that no such incident had taken place and that the appellant had not assaulted her late husband in Tangia and that she had not seen the incident and he was deposing falsehood. P.W.6 is the scribe of the F.I.R. Though in examination-in-chief he has stated that P.W.3 had approached him to write down the F.I.R. and accordingly as per his instruction, he has prepared the F.I.R. under Ext.3/1, however, in the crossexamination he has stated that the F.I.R. was scribed by him at the police station as per saying of the police. This clearly affects his credibility. However, he denied a suggestion that P.W.3 has never told him about the appellant assaulting the deceased. P.W.7 happens to be a social worker, who speaks of confession by the appellant before the police and leading to discovery of wearing apparels of the appellant from a concealed place in jungle. However, in the cross-examination he has stated that when the appellant did not tell anything about the incident, the police beat him four to five times and after such beating, he confessed his guilt and offered to give recovery. Further, he has stated that he has not signed any paper at the police station. All these throw a great cloud on the disclosure statement of the appellant. P.W.8, who happens to be the I.O. has stated that P.W.3 has lodged a written report on 23.10.2007 alleging that the appellant has killed the father-in-law by assaulting him with a Tangia. Further, he has stated that he has not signed any paper at the police station. All these throw a great cloud on the disclosure statement of the appellant. P.W.8, who happens to be the I.O. has stated that P.W.3 has lodged a written report on 23.10.2007 alleging that the appellant has killed the father-in-law by assaulting him with a Tangia. After getting such F.I.R., he made the station diary entry and sent the same to the Biramitrapur police station for its registration as Ext.3/l. During course of investigation, he examined P.Ws.3 and 6 and commanded one constable Indramani Patra to guard the spot which he visited at 6.30 p.m. He also examined witnesses at the spot and recorded their statements. On the next day i.e. 24.10.2007 as per his direction, photographs of the deceased were taken and he seized the blood stained earth, weapon of offence vide seizure list Ext.2/1. He also held inquest over the dead body at 8.00 a.m. and found injury on the body of the deceased. Thereafter, he dispatched the dead body to P.W.4 and at 11.45 a.m. of 24.10.2007, he arrested the appellant from his house, who confessed to the crime and offered to give recovery of his wearing apparels as per the statement under Ext.7/1. Accordingly, the wearing apparels of the appellant, namely, lungi and banion were seized and the same have been marked as M.O.I and M.O.III. Thereafter, he seized the wearing apparels of the deceased, which have been marked as M.O.IV and M.O.V. Thereafter, he made a query to P.W.4 by sending M.O.II (axe) to know whether the injuries on the deceased can be possibly made with the said weapon. P.W.4 opined in affirmative. On 29.10.2007 he prayed to S.D.J.M.,Panposh to pass order for sending the incriminating materials for chemical examination vide Ext.12. After passing of the order, he dispatched all the materials to the RFSL, Sambalpur for chemical examination vide forwarding letter under Ext.13 and Ext.14 is the chemical examination report and on completion of investigation, he submitted the charge sheet. In crossexamination, he testified that after conducting investigation at the spot on 23.10.2007, he came back to the outpost directing guarding of the spot by the constable. He examined the wife of the deceased (P.W.5) and others and recorded their statements. He denied a suggestion that the appellant being assaulted by him made confessional statement. In crossexamination, he testified that after conducting investigation at the spot on 23.10.2007, he came back to the outpost directing guarding of the spot by the constable. He examined the wife of the deceased (P.W.5) and others and recorded their statements. He denied a suggestion that the appellant being assaulted by him made confessional statement. Though P.W.8 speaks of recording of confessional statement in presence of the witnesses and though the disclosure statement Ext.7/1 refers to P.Ws.2 and 7 as witnesses, however P.W.2 is silent on such disclosure statement and leading to discovery and as indicated earlier P.W.7 has stated that the statement was made under coercion. Therefore, much importance cannot be attached to the disclosure statement under Ext.7/1 and recovery of M.O.I and M.O.III. 9. An analysis of evidence as indicated above would show that though the evidence of P.Ws.3, 6 and 7, no way help the prosecution, however the evidence of the eye-witness, namely, P.W.5 relating to assault on the head of the deceased by the appellant using an axe remains un-demolished. She has also indicated about the dispute between the appellant and the deceased over taking of liquor. Interestingly no suggestion has been given to her that she has been deposing falsely as she happens to be a close relation of the deceased. The version of P.W.5 relating to attack on the head of the deceased gets corroborated from the version of the doctor conducting post mortem examination, namely, P.W.4, who has clearly stated that the cause of death was due to injury to the vital centres of the brain and the injuries described by him are sufficient to cause death in ordinary course of nature. He has further testified that the axe produced before him can cause the injuries noted on the body of the deceased. Further, from the chemical examination report under Ext.14, it is clear that the blood of human origin of Group-A has been found on the axe as well as on the towel (M.O.IV) and underwear (M.O.V) of the deceased. All these clearly point out the appellant to be the author of the crime. 10. Now to the contentions raised by Mr. Mohapatra, learned counsel for the appellant. His first submission was that since P.W.5 happens to be the wife of the deceased, her version as eye-witness ought to be ignored. All these clearly point out the appellant to be the author of the crime. 10. Now to the contentions raised by Mr. Mohapatra, learned counsel for the appellant. His first submission was that since P.W.5 happens to be the wife of the deceased, her version as eye-witness ought to be ignored. There is no principle of law that the evidence of a witness, who happens to be a relative of the victim of the crime ought to be discarded. Rather it is settled that when a witness is a close relative, his/her evidence has to be scrutinized critically and carefully. Here, P.W.5 is a natural witness to the occurrence, who has clearly testified about the incident and the assault on the head of the deceased. P.W.4 doctor in his post mortem report clearly indicates about injuries on the head with an opinion that the cause of death was on account of injury on the vital centres of the brain. Thus, to a large extent he corroborates the version of P.W.5. With regard to lack of any independent corroboration by any co-villager, it may be noted here that P.W.5 in her crossexamination has clearly stated that there existed no other house near her house. Therefore, it is not unnatural not to get a neighbour as a witness to the occurrence under such circumstances. However, P.W.1, a co-villager also makes it clear that the deceased suffering injury on the head. Further, as indicated earlier no suggestion has been given to P.W.5 that she is deposing falsely as the deceased happens to be a close family relative. Further, the testimony of P.W.5 also indicates some motive to carry out the assault. It is also well settled that the conviction can be based on the testimony of a single eye-witness, who is wholly reliable. Here we have no doubt in our mind that the P.W.5 has testified truthfully. Therefore, we refuse to accept the first submission made by the learned counsel for the appellant vis-a-vis acceptance of testimony of P.W.5. With regard to second submission of learned counsel for the appellant that once the credibility of the F.I.R. stands demolished in view of the testimonies of P.Ws.3 and 6, the entire story of the prosecution should have disbelieved, we are of the considered opinion that the same is not a sound proposition of law. As rightly contended by Ms. Mishra, learned Addl. As rightly contended by Ms. Mishra, learned Addl. Standing Counsel, the F.I.R. is not a compendium of entire prosecution case and merely because the credibility of the same is affected, prosecution case cannot be said to have collapsed completely particularly when version of the eye-witness like P.W.5 remains un-demolished and well corroborated. With regard to last and alternate submission of Mr. Mohapatra, learned counsel for the appellant that since the act was committed under an inebriated condition, there was no intention to commit murder and accordingly the appellant cannot be held guilty under Section 302 I.P.C., we will only say that this alternative submission of Mr. Mohapatra has no legs to stand inasmuch as there exists no evidence on record to show that the act was committed under the influence of liquor. Further, the nature of injuries inflicted on the vital part of the body of the deceased clearly show the force with which the attack was carried out with the help of axe. This clearly gives out the intention of the appellant. Further, the doctor has clearly testified that all the injuries were possible by the axe and were sufficient in ordinary course of nature to cause death. All these clearly make out a case as rightly concluded by the learned court below under Section 300 I.P.C. 11. In view of the foregoing discussions, we are not inclined to interfere with the impugned judgment and sentences passed by the learned Adhoc Additional Sessions Judge, Fast Track Court, Rourkela in Sessions Trial No.8/2 of 2008 and accordingly, we dismiss the Appeal. L.C.R. be sent back forthwith.