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2021 DIGILAW 146 (ORI)

Rohidas Kisku v. State Of Orissa

2021-03-24

S.K.PANIGRAHI, S.PANDA

body2021
JUDGMENT S.K. Panigrahi, J. - The present appeal has been directed against the judgment of conviction and order of sentence dated 05.12.2003 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.13/67 of 2002, whereby the appellant has been convicted for commission of offence punishable under Section 302 of the Indian Penal Code, 1860 and sentenced to undergo imprisonment for life and to pay fine of rupees one thousand or in default to further S.I. for one month. 2. Bereft of unnecessary details, the facts of the matter presented before us remain that on 26.08.2001 at around 8:00 P.M., the accused was taken to the house of the informant- Madhu Majhi (P.W.1) by Sawan Kisku (deceased), his son Baidyanath (P.W.2), his two son-in-laws; Balaram (P.W.6) and Singrai (P.W.4), as the accused was suffering from fever and possibly malaria. P.W.1 requested everyone to return in the morning as he would be treating the accused with herbal medicines only after observing his condition throughout the night. However, the deceased, P.W.2, P.W.4 and P.W.6 decided to stay and wait. The deceased and P.W.1 went to sleep in P.W.1's room, where P.W.1 rested on his cot and the deceased laid on a mattress on the floor. P.W.2, P.W.4 and P.W.6 were cooking food outside the house. Around midnight upon hearing some noise, the P.W.1 noticed that the accused had picked up a Barisi (an iron instrument with a short handle generally used by carpenters) which was lying in the room and assaulted the deceased by means of the same on the left side of his head, ear and neck region. Immediately P.W.1 created a 'hulla' (commotion) due to which the accused ran out of the room but was apprehended by P.W.2, P.W.4 and P.W.6 who were cooking outside and had rushed towards the door hearing the commotion. In the struggle that ensued to apprehend the accused, P.W.6 received some injuries. P.W.1, P.W.2, P.W.4 and P.W.6, however, were finally able to tie up the accused. Immediately afterwards, P.W.1 along with one Jagannath Lohar went to the Police Station at Badampahad and lodged a report at around 2 A.M. Police registered the FIR and came to the spot, but by then the deceased has already died due to the injuries inflicted upon him. Immediately afterwards, P.W.1 along with one Jagannath Lohar went to the Police Station at Badampahad and lodged a report at around 2 A.M. Police registered the FIR and came to the spot, but by then the deceased has already died due to the injuries inflicted upon him. The police arrested the accused and in course of investigation, seized the weapon of offence, i.e., the Barisi, the blood stained clothes of the deceased, the mattress, on which the deceased was sleeping, one blood stained lungi of the accused, and collected blood samples of the accused, the deceased and P.W.6, and sent all those for chemical examination. After due investigation, the police charge sheeted the accused for the offences U/s.302/324 I.P.C. 3. The trial court thereafter framed 4 issues. The prosecution examined 6 witnesses; out of whom P.W.1 is the informant and eye witness to the incident; P.W.3 is the Medical Officer, who conducted the Post Mortem Examination; P.Ws.2, 4 and 6 are the family members who had accompanied the accused and the deceased to the house of P.W.1 and were present around the spot at the time of the alleged incident and P.W.5 is the Investigating Officer. The plea of alibi taken by the appellant included complete denial of the allegations made against him. However, no witnesses were produced from the appellant's side before the trial court in support thereof. 4. Upon going through the testimony of P.W.1, it is revealed that the accused was brought to his house at around 7:00 P.M. by the deceased and P.Ws.2, 4 and 6 for treatment of fever, madness or possibly malaria. P.W.1 deemed it fit to observe the accused's condition overnight before prescribing any medication and thus did not give any medication at that time. The deceased along with P.Ws.2, 4 and 6 then decided to spend the night there itself. His testimony also reveals that the deceased slept in his room while P.Ws.2, 4 and 6 were outside cooking food. He makes a statement about how the accused kept moving around and acted jittery. He states that he wasn't getting sleep that night, and so upon hearing some noise around midnight saw that the accused had brought out a Barisi and assaulted the deceased. He makes a statement about how the accused kept moving around and acted jittery. He states that he wasn't getting sleep that night, and so upon hearing some noise around midnight saw that the accused had brought out a Barisi and assaulted the deceased. He further clarified that he saw three blows dealt by the accused using the Barisi on the head region, i.e., on the left side ear region, left side scapula region and on the neck region of the deceased. When the accused started to move towards the people outside the room, P.W.1 raised alarm and that is how P.Ws.2, 4 and 6 caught hold of the accused. P.W.1 assisted them in attempting to restrain him. The deceased was struggling for his life due to the severe injuries borne by him. P.W.1 along with one Jagannath Lohar went to Badampahad P.S. and lodged an oral report which was reduced into writing by the police immediately after the incident occurred. He is also a signatory to the inquest report. During cross examination his testimony has not been discredited. 5. The Medical Officer who conducted the post mortem examination on 27.08.2001 was P.W.3 and found the following injuries; i. One incised wound of size 3' x bone deep situated over left tempo-parietal region placed obliquely about 2' above left ear. The brain matter emerging out of the wound on pressure. ii. Another incised wound of size 3' length situated at the left side of the nape of the neck about 3' depth involving the deeper structure. iii. An incised wound over the left shoulder blade (scapula) placed obliquely of size 3 % 'x 1/3' x 1/3'. All the injuries were ante mortem in nature and were determined to have been caused by a sharp weapon. The Injury No.i extended deep into the brain, piercing the bone thereby causing a haematoma in the brain tissue. The cause of death was determined to be due to the injury to the vital organs. P.W.3 was also asked to examine the weapon of offence, i.e., the iron Barisi marked as M.O.I on 04.09.2001 and opined that the injuries present on the body of the deceased could have been caused by that weapon. 6. P.W.2, the son of the deceased and cousin brother of the accused had accompanied the deceased, accused and others to the house of P.W.1. 6. P.W.2, the son of the deceased and cousin brother of the accused had accompanied the deceased, accused and others to the house of P.W.1. P.W.2, however, did not support the prosecution case and has even denied his presence at the spot and has thus been declared hostile by the prosecution. P.W.4 and P.W.6 have also been declared hostile by the prosecution as they were also close relatives of the accused and the deceased and have made attempts to shield the accused. P.W.4 admitted that he had accompanied the deceased and the accused to the house of P.W.1. When P.W.4 had entered the room after the commotion of P.W.1, he had found the deceased lying with bleeding injuries and struggling for his life, but he had not seen the deceased being assaulted. The evidence of P.W.6 is similar with P.W.4 and according to him he had not seen the accused being armed with Barisi. P.W.4 and P.W.6 also admitted that P.W.2 was present at the spot. 7. P.W.5 reveals in his testimony that in the night of 26/27.08.2001 he was on duty at Badampahad P.S. and had received the oral report from P.W.1 after which he immediately took up the investigation. He had visited the spot of the incident on same night and found the dead body of the deceased lying in P.W.1's room. He found the accused tied up at the spot and arrested him around 5 A.M. After conducting inquest, he had proceeded to seize the Barisi, the Kantha where the deceased was lying, sample blood stained earth from the spot of the incident, one Dibiri from the spot and one blood stained lungi from the accused at the spot. He immediately despatched the dead body for post-mortem examination. As P.W.6 had also received injuries, he had sent him for medical examination. He had sent all seized articles including the blood samples of the deceased, accused and P.W.6, to the S.F.S.L., Rasulgarh through the learned S.D.J.M., Rairangpur for examination. The chemical examination report revealed that the blood sample of the deceased, the accused and P.W.6 all belonged to 'B Group'. Human blood belonging to 'B Group' has been detected on the Barisi and the Kantha, on which the deceased was sleeping, a napkin of P.W. 6 and the shirt of the deceased. 8. Learned Counsel for the appellant Mr. The chemical examination report revealed that the blood sample of the deceased, the accused and P.W.6 all belonged to 'B Group'. Human blood belonging to 'B Group' has been detected on the Barisi and the Kantha, on which the deceased was sleeping, a napkin of P.W. 6 and the shirt of the deceased. 8. Learned Counsel for the appellant Mr. Suryakanta Dwibedi (Amicus Curiae) submits that the judgment and order of the learned court below is contrary to the evidence on record. He submits that the uncorroborated testimony of P.W.1 ought not to have been relied upon as no other eye witnesses have corroborated the same. Furthermore, it was argued that P.W.2 is none other but the son of the deceased, hence, the finding that P.W.2 has suppressed the truth to save his cousin is imaginary and unbelievable. The learned Counsel for the appellant also submits that failure to mark the injury report of P.W.6 and bring the same on record as well as the failure to include Jagannath Lohar, who accompanied P.W.1 to the Police Station, as a prosecution witness, amounts to material irregularities and are bad in law as well as in fact. 9. Learned Counsel for the State Mr. Zafrulla submitted that P.W.1 was an independent eye witness to the incident who had no vested interest in deposing against the accused. However, P.W.2, P.W.4 and P.W.6 have attempted to suppress the truth as they are related to the accused. Furthermore, the allegations of the accused that P.W.1 killed the deceased has not been even mentioned by any of the other witnesses who would have said something to the effect if it was true considering that the deceased is P.W.2's father. In such circumstances, the testimony of P.W.1 is trustworthy and credible. The medical evidence of P.W.3 corroborates the ocular evidence as deposed by P.W.1. Besides this, from the testimony of P.Ws.4 and 6 also some corroboration can be found out to the extent that they have admitted that the accused was nearby the spot at the time of the incident and the accused had been taken to the house of P.W.1 for the purpose of treatment. 10. Heard learned Counsel for the parties. Besides this, from the testimony of P.Ws.4 and 6 also some corroboration can be found out to the extent that they have admitted that the accused was nearby the spot at the time of the incident and the accused had been taken to the house of P.W.1 for the purpose of treatment. 10. Heard learned Counsel for the parties. In the case of Rabari Ghela Jadav v. State of Bombay, (1960) 3 SCR 130 , the Hon'ble Supreme Court held that, even if the real cause for the assault may be obscure, if the evidence is clear that the appellant assaulted the deceased, it matters very little if the Court has not before it a very clear motive for the assault. Similarly, in Shamsher Singh v. State of Haryana, (2002) 7 SCC 536 it has been held by the Hon'ble Apex Court that even if there is absence of motive, it would not benefit the accused when there is a reliable and acceptable version of the eyewitnesses, which is supported by the medical evidence, pointing against him. 11. In the present case, the accused has used a sharp weapon, which he is said to have retrieved from the premises of P.W.1 and aimed multiple blows at vital parts of the deceased's body. From the testimony of P.W.1 which was supported by the testimony of P.W.3, three blows were dealt to the deceased, one of which punctured the skull and caused a haematoma. The motive behind the accused's action is of little consequence as it often happens that only the culprit himself knows what moved him to a certain course of action. 12. It is a well settled position of law that a conviction can also be based on the evidence of sole eye witness to an occurrence provided it is unimpeachable, credible and inherently believable and in order to accept such evidence some amount of independent corroboration is required for coming to a conclusion holding the accused guilty. The same was held in the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the Hon'ble Supreme Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent honest man, although as a rule of prudence courts call for corroboration. It has been famously held therein that; 'It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.' The same was also reiterated in Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32 and Jayaram Shiva Tagore v. State of Maharashtra, 1991 Supp (2) SCC 677. The medical evidence of P.W.3 corroborates the evidence as deposed by P.W.1 as both the testimonies indicate that three injuries to the left side of the head, neck and shoulder were caused by the accused using the Barisi. When there is no discrepancy between medical and ocular evidence, the same is deemed to be corroborating the direct evidence proffered by P.W.1. 13. A perusal of the records of the case depicts that there is no doubt that P.W.2, P.W.4 and P.W.6 were present at the spot. However, their unwillingness to depose against the accused can be chalked up to an attempt to suppress the truth as the accused was their cousin brother. On perusing the evidence of these witnesses, it is obvious that they have turned hostile and they do not want to support the prosecution. All three of them are close relatives of the accused. From their evidence and their statements given to the police, which are brought on record, it is difficult to place reliance on any part of their evidence. 14. As per the testimony of the I.O. (P.W.5) and a perusal of the F.I.R., it is observed that while P.Ws.2, 4 and 6 tried to catch hold of, the accused had assaulted P.W.6 with the Barisi and P.W.6 had sustained injuries. Testimony of P.W.5 reveals that he had sent P.W.6 for medical examination and had obtained the injury report. The injury report of P.W.6 has not been marked as an exhibit in this case, as the present whereabouts of the Medical Officer, who had examined the injuries, could not be known as he has retired from Government service. But nevertheless, from these facts it transpires that P.W.6 has also tried to shield the accused from the alleged crime by not deposing about the nature of his injuries or insisting that the same be brought on record. 15. But nevertheless, from these facts it transpires that P.W.6 has also tried to shield the accused from the alleged crime by not deposing about the nature of his injuries or insisting that the same be brought on record. 15. Furthermore, non-production of one Jagannath Lohar, who accompanied P.W.6, cannot vitiate the trial or render the proceeding unfair or illegal as he was not a witness, who was essential to the unfolding of the narrative on which the prosecution was based. Therefore, the same cannot be termed to be a material irregularity as he was not a material witness. No adverse inference can be drawn for such non-examination. It cannot be a ground to discard the entire prosecution case by itself. As opined by the Hon'ble Supreme Court in Malkhan Singh v. State of U.P., 1995 Supp (4) SCC 650, it is not the quantity but the quality of the evidence that is determinative. If the prosecution's case is proven beyond reasonable doubt by other cogent, reliable evidence, then no infirmity to the trial occurs. As Jagannath Lohar was not an eye witness to the actual attack, nor was any inference drawn about his presence at the scene of the incident, whether during or after investigation, the absence of his testimony is not fatal/of little consequence to the trial of the accused. 16. As far as the statement of hostile witness P.W.4 goes regarding the tying up of the accused on the cot outside, the same has not been corroborated by the other two witnesses, i.e., P.W.2 and P.W.6 and as such is of little or no consequence. P.W.1 has in fact stated that the accused was moving hither and thither. It is nowhere disputed that the accused was apprehended by P.W.1, P.W.2, P.W.4 and P.W.6, while he was running out of the room, and hence the question of whether or not the accused was tied up becomes redundant. In the State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 , the Hon'ble Supreme Court held: '10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. In the State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 , the Hon'ble Supreme Court held: '10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ...' 17. With respect to the plea of alibi taken by the accused, it is to be noted that it is well settled in law that when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. The Hon'ble Supreme Court in Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 has held - '23. The Latin word alibi means 'elsewhere' and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. ...' There is no doubt in the instant case that the accused was not present at the scene of the crime. The fact that he was found frantically running out of the room where the deceased was killed is corroborated by the statements of P.W.1, P.W.4 and P.W.6. In this scenario where the prosecution has proven the role of the accused in the deceased's death beyond reasonable doubt relying on both ocular and medical evidence, the accused has not shown any evidence supporting his plea of alibi, therefore, the same ought to be rejected. 18. With the above backdrop and discussion, this Court comes to the conclusion that the prosecution has been successful in bringing home the charges against the accused and that the learned court below has rightly dealt with the evidence in the present case. 19. 18. With the above backdrop and discussion, this Court comes to the conclusion that the prosecution has been successful in bringing home the charges against the accused and that the learned court below has rightly dealt with the evidence in the present case. 19. After examining every evidence and material on record meticulously and in the light of the judgments cited above, we are of the considered opinion that the finding arrived at by the court below is in conformity with the law and therefore no scope for interference in the same has been made out by the appellant. 20. Resultantly, this appeal must fail and the same stands dismissed. This Court confirms the conviction and maintains the sentence passed by the court below. 21. It is brought to the notice that the appellant is on bail by order of this Court dated 17.01.2011. In such view of the matter, the bail bonds stand cancelled and the trial court is directed to issue warrant of arrest against the appellant to suffer remaining part of the sentence. The L.C.R. be returned forthwith to the court from which it was received.