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2018 DIGILAW 626 (ORI)

Gopal Sagar v. State of Odisha

2018-06-29

K.R.MOHAPATRA, S.K.MISHRA

body2018
JUDGMENT K.R. MOHAPATRA, J. - The convict namely, Gopal Sagar in Criminal Trial No. 123 of 2003 (arising out of G.R. Case No. 228 of 2002 of the Court of learned J.M.F.C., Laxmipur, corresponding to Laxmipur P.S. Case No. 57 of 2002), has filed this appeal assailing the judgment and order of conviction and sentence dated 9th September, 2004 passed in the aforesaid criminal trial, wherein, the appellant has been convicted under Sections 302/498-A/309 I.P.C. and has been sentenced to undergo imprisonment for life. In view of imposition of sentence of imprisonment for life passed under Section 302 I.P.C., no separate sentence has been imposed for commission of offence under Sections 498-A/309 I.P.C. 2. The short matrix of incident narrated in the FIR is that upon receiving information about the death of Soha Sagar (the deceased), the wife of the appellant, the informant, namely, Darsan Takri, PW-1, who was the Gramarakhi of the village, went to the house of the appellant and found the body of the deceased lying in a pool of blood. It was stated in the F.I.R. that previously the appellant suspecting the character of the deceased (his wife) was frequently assaulting her, due to which the deceased had been staying with her brother at Narayanpatna for 1 and ½ months prior to the incident. On the request of the appellant, the deceased had returned to the matrimonial home prior to five days of the incident. On the date of the incident, the appellant, deceased and their children were sleeping after taking dinner. At about 2.00 A.M., the appellant gave two blows on the head of the deceased by means of a wooden pidha causing severe bleeding injury and due to the injury sustained, the deceased succumbed to death. After the incident, the appellant out of fear had rushed to the nearby railway track to commit suicide, but subsequently came back to his house and slit his neck by means of a blade with intention to commit suicide. Thereafter, the appellant went to the house of his elder brother, namely, Sarathi Sagaria and narrated the incident to his elder brother and sister-in-law (wife of elder brother) (PW-3). Hearing from the appellant, his elder brother and sister-in-law had gone to the spot and subsequently, the informant also reached the spot on receiving information and found that the deceased was lying dead in a pool of blood. Hearing from the appellant, his elder brother and sister-in-law had gone to the spot and subsequently, the informant also reached the spot on receiving information and found that the deceased was lying dead in a pool of blood. On interrogation, the appellant had confessed his guilt before the informant and narrated the incident before him. 3. The FIR (Ext.1) was scribed by one Suryanarayan Pattnaik on the instruction of the informant and being read over and explained to him by the scribe, the informant put his signature on the FIR. Since the allegation disclosed cognizable offence under Sections 302/309 I.P.C., the O.I.C., Laxmipur Police Station registered the same as Laxmipur P.S.Case No.57 dated 11.11.2002 and took up investigation. On completion of the investigation, charge-sheet under Sections 302/498-A/309 I.P.C. was filed. 4. The plea of defence was complete denial of involvement of the appellant in the incident. The defence further took a plea that the Investigating Officer and O.I.C., Laxmipur Police Station was inimically disposed off against him as he was a Gramarakhi of the village and was not performing the household works of the OIC. Due to the untimely death of his wife, the appellant was crying, in course of which he fell down on some wooden plank resulting injury to his person. 5. The prosecution in order to bring home the charges examined eight witnesses. PW-1 is the informant and the Gramarakhi of the village Laxmipur; PW-2 and PW-4 are the son and daughter of the appellant respectively. PW-3 is the sister-in-law (elder brother’s wife) of the appellant. PW-5 is the co-villager and a post-occurrence witness. PW-6 is the Medical Officer of Laxmipur P.H.C., who conducted autopsy over the dead-body. PW-7 is the Police Constable, who carried the dead-body for postmortem. PW-8 is the OIC of Laxmipur Police Station and IO of the case. 6. PW-3 is the sister-in-law (elder brother’s wife) of the appellant. PW-5 is the co-villager and a post-occurrence witness. PW-6 is the Medical Officer of Laxmipur P.H.C., who conducted autopsy over the dead-body. PW-7 is the Police Constable, who carried the dead-body for postmortem. PW-8 is the OIC of Laxmipur Police Station and IO of the case. 6. In addition to the oral evidence, the prosecution relied upon Ext.1, the FIR; endorsement and signature thereon marked as Ext.1/1 to Ext.1/4; inquest report and endorsement and signature thereon Ext.2 to Ext.2/2; seizure lists Ext.3, Ext.4 and Ext.11, postmortem report as Ext.5, letter of requisition of the weapon of offence to the Medical Officer as Ext.6 and the report of the Medical Officer as Ext.7 and Ext.8; command certificate and dead-body challan as Ext.9 and Ext.10 respectively; spot map as Ext12; forwarding letter of Medical Officer for chemical examination as Ext.13 and report of the chemical examination as Ext.14. The prosecution also relied upon MO-1, the wooden pidha and MOs. 2 to 7 in support of their case. The accused-appellant examined himself as DW-1 in support of his plea. 7. Learned Session Judge, on scrutiny of evidence, both oral as well as documentary, and relying upon the M.Os. 1 to 7 convicted and sentenced the appellant, as aforesaid. Assailing the same, the appellant wrote a letter to this Court, which has been entertained as a memo of appeal and the appeal was registered appointing Sri Hrusikesh Tripathy as the counsel to prosecute the appeal. 8. Learned counsel for the appellant does not dispute the death of the deceased to be homicidal in nature. Thus, the question that remains to be adjudicated in this appeal is with regard to involvement of the appellant in commission of the crime. Learned counsel for the appellant assailing the impugned judgment submitted that there is no ocular witness to the incident. The story spelt out in the FIR is concocted. Although the informant (PW-1) categorically deposed in his evidence that he knows reading and writing in Oriya, the FIR was written by one Suryanarayan Pattnaik and the appellant was only a signatory to the same. Said Suryanarayan Pattnaik was not examined. Although PWs-2 and 4 were sleeping with their mother after taking dinner, they deposed to have not seen the occurrence. They are only the post-occurrence witnesses. Said Suryanarayan Pattnaik was not examined. Although PWs-2 and 4 were sleeping with their mother after taking dinner, they deposed to have not seen the occurrence. They are only the post-occurrence witnesses. Further, PWs-2 and 4 are child witnesses and their evidence cannot be relied upon to hold the appellant guilty. The so-called extra-judicial confession made by the appellant before PW-3 and his elder brother as well as PW-1 is a weak piece of evidence and the conviction cannot sustain basing upon such extra-judicial confession. The so-called confession of the appellant before the informant (PW-1), who was a Police Officer, being a Gramarakhi, is not admissible in evidence. Referring to the evidence of the Medical Officer PW-6, learned counsel for the appellant submitted that the fatal injury on the head of the deceased could be possible by fall on a hard and blunt substance. He also submitted that there are material contradictions in the evidence of the witnesses. 9. Learned counsel for the appellant, in the alternative, took a plea that the case of the prosecution, if accepted in toto, would not attract a conviction under Sections 302/309 IPC. It would at best attract a conviction under Section 304 Part-II IPC. Hence, he prayed for setting aside the impugned judgment of conviction and sentence. 10. Miss Sabitri Ratho, learned Additional Government Advocate, on the contrary, refuting the submission of Mr.Tripathy submitted that the evidence, both oral and documentary, if considered in its entirety, would implicate the appellant, and none else, to be the author of the crime. Elaborating her submission, she submitted that there are materials on record, which suggest that there was frequent quarrel between the couple and the appellant was assaulting the deceased quite often for which the deceased prior to 1 and ½ months of the incident, had left the matrimonial home and was staying with her brother. Five days prior to the incident, on the request of the appellant, she had returned to her matrimonial home. The appellant in his statement under Section 313 Cr.P.C., categorically admitted that he was suspecting character of the deceased. Thus, the motive is wellestablished. The appellant also does not dispute that on the ill-fated night after taking dinner, the appellant, the deceased and their children slept in one room and the incident occurred at about 2.00 AM. The appellant in his statement under Section 313 Cr.P.C., categorically admitted that he was suspecting character of the deceased. Thus, the motive is wellestablished. The appellant also does not dispute that on the ill-fated night after taking dinner, the appellant, the deceased and their children slept in one room and the incident occurred at about 2.00 AM. The appellant had not shifted the deceased to the hospital for her treatment, which would have been the normal reaction of the appellant. On the other hand, after committing the crime, he rushed to the house of his elder brother (husband of PW-3) and informed him about the incident. No material could be placed on record by the defence to disbelieve the evidence of the PW-3 about the confession made by the appellant before them (she and her husband). The extra-judicial confession is very weak piece of evidence. But, in the instant case, the appellant immediately after the incident rushed to the house of his elder brother, which situates nearby and voluntarily made a confession before him and his wife (PW-3), which was quite natural. There is also close proximity of time of occurrence and confession made by the appellant and as such, there was no possibility of any concoction. As such, the same is admissible in evidence and a conviction can be based relying upon the same. She further submitted that the age of PW-2, the son of the appellant and the deceased was about 15 years, when his evidence was recorded. He was about 14 years of age at the time of the incident. He had already crossed the age of discretion and his statement is consistent and believable. Likewise, there is no reason to disbelieve the evidence of PW-4 (the daughter of the appellant), who was about 13 years of age at the time of the incident and her statement was recorded, when she was 14 years of age. There is no reason as to why the children would falsely implicate their father for the death of their mother. Taking into consideration the postmortem report (Ext.5) and report of the Medical Officer on the query of the I.O. (Ext.8/1) about the possibility of injuries by means of MO-1, there can be no iota of doubt that the appellant had committed the offence by means of MO 1. Taking into consideration the postmortem report (Ext.5) and report of the Medical Officer on the query of the I.O. (Ext.8/1) about the possibility of injuries by means of MO-1, there can be no iota of doubt that the appellant had committed the offence by means of MO 1. The appellant also does not deny that after the incident he had made an attempt to end his life. Although the plea of enmity of the I.O. (PW-8) and informant (PW-1) with the appellant was taken, no material could be placed by the appellant to substantiate the same. Hence, the judgment of conviction and sentence needs no interference. 11. We have heard learned counsel for the parties with raft attention and perused the materials on record meticulously. 12. Ext.1, the FIR, has been scribed by one Suryanarayan Pattnaik, who has not been examined in this case. PW-1, the informant, also in his evidence, categorically stated that as per his instruction, the written report was scribed by Suryanarayan Pattnaik. After scribing the report, he (Suryanarayan Pattnaik) read over and explained the contents of PW-1, who acknowledging the same to be true and correct, gave his signature thereon (Ext.1/1). Only a suggestion was put to PW-1 to the effect that he got the FIR scribed by Suryanarayan Pattnaik in order to concoct the incident to which PW-1 answered in negative. The FIR is not the encyclopedia of all relevant facts. It is an information to launch the prosecution. When the FIR (Ext.1) was proved by PW-1, non-examination of the scribe, namely, Suryanarayan Pattnaik, cannot be fatal to the prosecution case. Although the appellant challenges the correctness of the narration of the incident in the FIR, no material could be placed by him to raise any doubt with regard to the same. The incident occurred at about 2.00 A.M. in the night of 10/11.11.2002. PW-1 upon receipt of the information went to the house of the appellant in the morning of 11.11.2002 and thereafter lodged the FIR at about 11.00 AM in the Police Station. Although the plea of the enmity of the appellant with the IO was taken, no endeavour was made to bring home the same. Thus, the contention of learned counsel for the appellant with regard to the correctness of the narration of incident in the FIR does not hold good. 13. Although the plea of the enmity of the appellant with the IO was taken, no endeavour was made to bring home the same. Thus, the contention of learned counsel for the appellant with regard to the correctness of the narration of incident in the FIR does not hold good. 13. After the incident, the appellant rushed to the house of his brother. The evidence of PW-3, sister-in-law of the appellant, revealed that in the morning of 11.11.2002 at about 4.00 AM, the appellant had gone to her house and disclosed that in the previous night he had killed his wife. He was not sure as to whether his wife was, by then, alive. He also disclosed that out of fear of Police, he had slit his own neck to commit suicide. The PW-3 along with his husband had immediately rushed to the house of the appellant and found that the deceased was lying dead in a pool of blood with severe fracture injuries on her head. MO-1 was lying near to the dead-body. Admittedly, there was no enmity between the appellant and PW-3. Hence, there is no reason as to why PW-3 would depose falsehood against her brother-in-law. Learned counsel for the appellant submitted that the hearsay evidence of PW-3 regarding the incident is not admissible in evidence. Law is no more res integra on this issue. In the case of S.Arul Raja Vs. State of Tamil Nadu, reported in (2010) 47 OCR (SC)-204, Hon’ble Supreme Court while dealing with scope of Section 24 of the Evidence Act, held as follows: “49. The evidentiary value of the extra-judicial confession must be judged in the facts and circumstances of each individual case. Extra-judicial confession, if voluntarily made and fully consistent with the circumstantial evidence, no doubt, establishes the guilt of the accused. The extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. However, the extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved, can be relied upon by the Courts.” In the case at hand, the extra-judicial confession made by the appellant before PWs-1 and 3 was voluntary and is fully consistent with the circumstantial evidence. However, the extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved, can be relied upon by the Courts.” In the case at hand, the extra-judicial confession made by the appellant before PWs-1 and 3 was voluntary and is fully consistent with the circumstantial evidence. However, an argument has been advanced by learned counsel for the appellant that the extra-judicial confession made by appellant before the PW-1 is not admissible in evidence as he was a Gramarakhi and thus was a Police Officer. Thus, the same is inadmissible in evidence as per Section-25 of the Evidence Act. The argument has no substance in view of the law laid down by Hon’ble Full Bench of this Court in the case of Gurua Naik Vs. State of Orissa, reported in (2014) 57 OCR-820, which read as follows: “23. No where the Act or the Rules prescribe any power or authority on the part of the Grama Rakshi to investigate a case or to submit a report (charge-sheet) under Section 173, Cr.P.C. The powers to be exercised by the Grama Rakshi, is primarily for surveillance, prevention of crime in the village, providing assistance to police in discharge of their duties and provide assistance to Panchayat and Revenue Authorities, whenever required. So far as power of arrest by the Grama Rakshi or assistance by him to a private person to arrest a culprit are concerned, similar power is given to even a private person under Section 43 of the Cr.P.C., which provides that any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence or is a proclaimed offender and make over any person so arrested to the police officer or to the police station. For the aforesaid power of arrest on the part of a private person, a private person making an arrest in a given case cannot be treated as a police officer within the meaning of Section 25 of the Evidence Act. Such a view, if taken, becomes too far fetched. For the aforesaid power of arrest on the part of a private person, a private person making an arrest in a given case cannot be treated as a police officer within the meaning of Section 25 of the Evidence Act. Such a view, if taken, becomes too far fetched. In view of such fact, similar power given to a Grama Rakshi in Rule 17 of the Rules will not make him a ‘police officer’ within the meaning of Section 25 of the Evidence Act, because he has neither further power of investigation nor has authority of submitting charge-sheet against the person arrested. xx xx xx 25. From the duties and responsibilities of a Grama Rakshi, as discussed above, it is clear that he (a Grama Rakshi), for the nature of his duties, has got proximate relationship with the regular police establishment. Because of his position in the scheme of things and his vulnerability as a rustic person coupled with the dominant supervision over him by the police, there is possibility of his being influenced by an Investigating Officer to secure a conviction in certain cases, though not all. It may so happen that in a case, where there is no other evidence, the extra judicial confession of the accused before a Grama Rakshi may be brought on record by examining the Grama Rakshi under Section 161, Cr.P.C. The Grama Rakshi in such a case, because of his inferior position, is bound to support his statement during trial. The accused, otherwise in such a case, may take advantage of Section 24 of the Evidence Act. We, however, taking a clue from the case of Francis Stanly @ Stalin (supra), are constrained to hold that the Court in such a situation, when confession before a Grama Rakshi is brought in evidence, should insist, as a rule of prudence, on corroboration. 26. The discussion supra, therefore, shows that the view expressed by the Division Bench of this Court in Madan @ Undu Barik’s case is erroneous and subsequent decisions of this Court on the said point like Dusasan Bhoi and others vs. State of Orissa, 1981 CRL. L.J. 1452; Boisakhu Kollar vs. State, 60 (1985) CLT 61 and Pandru Khadia vs. State of Orissa, 1992 CRL. L.J. 762, etc. are also erroneous. They are held to be not good law in view of the development of law, as discussed supra. 27. L.J. 1452; Boisakhu Kollar vs. State, 60 (1985) CLT 61 and Pandru Khadia vs. State of Orissa, 1992 CRL. L.J. 762, etc. are also erroneous. They are held to be not good law in view of the development of law, as discussed supra. 27. In view of the decisions of Hon’ble Supreme Court discussed supra and of this Court in Khageswar Khatua’s case (supra), the view taken in Madan @ Undu Barik’s case and other similar decisions in the case of Dusasan Bhoi and others vs. State of Orissa, 1981 CRL. L.J. 1452; Boisakhu Kollar vs. State, 60 (1985) CLT 61 and Pandru Khadia vs. State of Orissa, 1992 CRL. L.J. 762, are overruled to the extent they hold that the confession made to a Grama Rakshi is inadmissible in evidence under Section 25 of the Evidence Act.” Thus, the confession made by an accused (appellant) cannot be said to be inadmissible in evidence. But, as held supra, when confession before a Gramarakhi is brought in evidence, the Court, as a rule of prudence should insist upon corroboration. In the case at hand, PWs-2 and 4, who are none other than the offspring of the appellant, in all unambiguous terms implicate their father to be the author of the crime. Credence of their testimony is unshaken in cross-examination. In addition to the above, the confession/disclosure of appellant about the incident before PWs-2, 3 and 4 was spontaneous, proximate and above all, there was no reason as to why they would falsely implicate the appellant. 14. DW-1 (appellant) in his evidence deposed that PW-2 (his son) was not present at the spot on the date of occurrence. He was working in a shop at Berhampur. In his cross-examination, PW-2 has categorically stated that he had some back to his village from Berhampur 7 to 8 days prior to Deepavali and his mother was killed 2 days after Deepavali. He had narrated the incident vividly in his evidence and there is nothing on record to disbelieve the same. The evidence of P.W.2 was quite clear and inspires confidence. Although in the statement recorded under Section 313 Cr.P.C., the appellant had stated that P.W.2 has stated falsely being tutored by his elder brother, no suggestion to that effect put to P.W. 2 during his cross-examination. Likewise, P.W. 4 also supports the prosecution case in material particulars. The evidence of P.W.2 was quite clear and inspires confidence. Although in the statement recorded under Section 313 Cr.P.C., the appellant had stated that P.W.2 has stated falsely being tutored by his elder brother, no suggestion to that effect put to P.W. 2 during his cross-examination. Likewise, P.W. 4 also supports the prosecution case in material particulars. A plea has been taken by learned counsel for the appellant that P.Ws.2 and 4 being child witnesses, their evidence is not admissible in law. Law is well settled in the case of Suryanarayana –v- State of Karnatak, reported in (2001) 9 SCC 129 , which is quoted below:- “the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon as the rule of corroboration is of practical wisdom than of law.” 15. On a scrutiny of evidence of P.Ws. 2 and 4, it appears that they have intellectually matured to understand the question and have given consistent and rational answers thereto. The testimony of P.Ws.2 and 4 finds corroboration with the evidenced of P.Ws.1 and 3 in all material particulars. Thus, the same can be safely relied upon to bring home the charges. Further, both P.Ws. 2 and 4 have attained the age of discretion and have vividly described the incident. There is no reason as to why they would depose falsehood against their father. No material is also placed before us which would raise any semblance of doubt to the testimony of P.Ws. 2 and 4. In addition to the above, the Medical Officer (P.W.6), in his deposition, categorically stated that he found external injuries of a lacerated wound over left periatal region of 4” length x 3” breadth and 3” depth as well as 2 multiple bruise mark over anterior chest wall of average size of length 2 c.m. x breadth 2.c.m.. On dissection, P.W.6 found that left side of cerebral hemisphear was lacerated and congested. He opined the cause of death to be shock due to external and internal intra carnial haemorrhage. He also opined vide Ext.8/1 that the injury could be possible by wooden pidha (M.O.1). On dissection, P.W.6 found that left side of cerebral hemisphear was lacerated and congested. He opined the cause of death to be shock due to external and internal intra carnial haemorrhage. He also opined vide Ext.8/1 that the injury could be possible by wooden pidha (M.O.1). He proved the postmortem report (Ext.6), the query of the I.O. with regard to possibility of the injury by M.O.1 (Ext.8) and his report under Ext.8/1 affirming such possibility. The appellant (D.W.1) in his deposition, has taken a plea that after taking meal when he and his wife, went to sleep, his wife (deceased) fell down on the ground and died. Admittedly, no attempt was made by the appellant to take her to hospital. On the contrary, the appellant immediately after the incident, went to the nearby railway track to commit suicide. However, being unsuccessful on returning therefrom, he slit his neck by means of a blade and rushed to the house of P.W.3 to inform about the incident. P.W. 6, the Medical Officer, who examined the appellant also opined that injury on the neck of the appellant can be possible by means of blade. In that view of the matter, we are of the opinion that the appellant was author of the crime and none else. 16. On a close perusal of the evidence on record in its entirety, it does not disclose that the appellant had mens rea to commit murder of his wife, but he had sufficient knowledge of the fact that the injury inflicted by him on his wife (deceased) would cause her death in ordinary course of nature. Though there was no pre-mediation or preparedness to commit offence, the appellant out of anger and frustration took the wooden pidha (M.O.1), which is commonly used in every household and dealt two blows on her head, when the deceased was sleeping. As such, there was no chance of resistance on the part of the deceased and thus the children could not know about the same though they were sleeping nearby. 17. Taking into consideration the facts and circumstances of the case in its entirety, we are of the opinion that the appellant has committed the offence, which is culpable homicide not amounting to murder. Thus, we are inspired to set aside the conviction under Section 302 I.P.C.. 17. Taking into consideration the facts and circumstances of the case in its entirety, we are of the opinion that the appellant has committed the offence, which is culpable homicide not amounting to murder. Thus, we are inspired to set aside the conviction under Section 302 I.P.C.. There is no evidence on record to the effect that the deceased was subjected to ill-treatment for demand of dowry. As such, no offence under Section 498-A I.P.C. is made out. There is material on record to show that the appellant had made an attempt to commit suicide repenting for his guilt. Thus, we are of the opinion that although conviction of the appellant under Section 309 I.P.C. is proved beyond reasonable doubt but conviction under Sections 302 and 498-A I.P.C. will not sustain and therefore, the same is set aside. Taking into consideration the facts and circumstances of the case, we feel it just and proper to convict the appellant for commission of offence under Section 304 Part-I, I.P.C. and sentence him to undergo R.I. for 10 years. 18. In the result, the appeal is allowed in part. The appellant is convicted under Section 304 Part-I, I.P.C. and is sentenced to undergo R.I. for 10 years. The appellant was arrested on 11.11.2002 and since then, he is in custody for more than 15 years. As such, he be set at liberty forthwith, if he is not required incarceration in any other case. S.K. MISHRA, J. I agree. Appeal allowed in part.