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2021 DIGILAW 149 (ORI)

Teju Singh @ Kairu v. State Of Orissa

2021-03-25

S.K.PANIGRAHI, S.PANDA

body2021
JUDGMENT S.K. Panigrahi, J. - This appeal has been preferred by the present accused appellant against the judgment and order dated 28.01.2014 passed by the learned 2nd Additional Sessions Judge, Rourkela in Sessions Trial No.128/75/5 of 2012-13 whereby the accused who stood charged under Sections 457/307/302 of the Indian Penal Code has been convicted for the offence under Sections 452/307/302 of the Indian Penal Code and sentenced to undergo life imprisonment. 2. The concise facts of the case as set out by the prosecution is that on the night/early morning of 2nd October 2011 at around 12:10 A.M. while the sister of the informant was asleep with her mother, the accused trespassed into their house by scaling the wall and attacked their mother by means of a sharp knife on her lower abdomen and chest. The sister of the informant woke up to find the accused dealing blows to her mother. She tried to save her mother and in the process she sustained injury on her hand. The accused thereafter fled away from the spot. The informant lodged a written report before the IIC, Bondamunda Police Station who registered P.S. Case No.65 dated 2.10.2011 u/s. 452, 307 of the Indian Penal Code and investigation was taken up. The injured persons were sent for their medical examination, the I.O. visited the spot, examined the witnesses as well as the informant. During currency of the investigation, the mother of the informant died and a case was made out u/s.302 of IPC. The I.O. seized the weapon of offence, apparels etc. and issued a requisition for conducting Post Mortem Examination over the dead body of the deceased. The accused was arrested and after completion of investigation, the I.O. submitted the charge-sheet u/s.452, 307,302 of IPC vide charge-sheet No.39 dated 24.07.2012 against the accused. The trial was thereafter conducted by the learned SDJM, Panposh. 3. The trial court thereafter framed 3 issues. The prosecution has examined as many as 11 witnesses and no witnesses were produced from the defense side. Documents were admitted into evidence on behalf of the prosecution alone. P.W.1 & P.W.2 are the daughters of the deceased. P.W.2 is the informant. P.W.3 is a co-villager. P.W.4 is the Medical Officer who conducted the autopsy. P.W.5 is a post occurrence witness in whose presence the accused reportedly admitted his guilt. Documents were admitted into evidence on behalf of the prosecution alone. P.W.1 & P.W.2 are the daughters of the deceased. P.W.2 is the informant. P.W.3 is a co-villager. P.W.4 is the Medical Officer who conducted the autopsy. P.W.5 is a post occurrence witness in whose presence the accused reportedly admitted his guilt. P.W.6 is the Medical Officer who had examined P.W.1, the daughter of the deceased and the younger sister of the informant. P.W.7 was the ASI of police who initially investigated into the case. P.W.8 is a post occurrence witness to whom the informant had informed that her mother sustained knife injury inflicted by the accused and who had given ?200 for the medical aid. In his presence inquest was also conducted. P.W.9 who is the front door neighbor of the informant is a post occurrence witness. P.W.10 is the I.O. who took over charge of investigation from P.W.7 after the case was registered u/s.302 of IPC. P.W.11 is a co-villager of the informant and the accused. 4. According to the prosecution, P.W.1 sustained injury while she was trying to ward off blows on her mother. P.W.1 deposed that on the occurrence night while she along with the informant were asleep with their mother, at around 1 to 2 P.M., the accused propped up there having armed with a knife and stabbed the belly of the deceased in her abdomen due to which she raised a commotion. After hearing the cry, she and her sister (the informant) woke up and found the accused there. She further states that they saw that the accused was holding a knife and in their presence, the accused gave the second blow on the chest of their mother. P.W.1 deposed that in order to prevent the accused from inflicting further blows to her mother, she intervened and during course of such intervention, she herself sustained injury on the little finger of her right hand. According to P.W.1, the accused fled away with the knife, hurling threats at them. She states that they had taken their mother to the hospital for treatment, who died on the 8th day of her admission in the Ispat General Hospital, Rourkela. In her cross-examination she has stated that the deceased, i.e., their mother was a concubine of the accused and that is how they had prior acquaintance with the accused person. She states that they had taken their mother to the hospital for treatment, who died on the 8th day of her admission in the Ispat General Hospital, Rourkela. In her cross-examination she has stated that the deceased, i.e., their mother was a concubine of the accused and that is how they had prior acquaintance with the accused person. She has also categorically stated that the accused had inflicted three injuries, i.e., one on her abdomen and two on the sides of the chest who trespassed by scaling the fence of their house which was about 8 to 9 feet in height. With regard to all other material facts, this witness has remained unmoved standing by her examination in chief. 5. In the examination of P.W.2, the informant has, by and large supported the version of P.W.1. She deposed to have lodged the FIR marked as Exhibit-1 and reiterated her version as was disclosed by her originally. In the cross-examination this witness has categorically stated that after the incident no outsider had come to their house and that they, i.e., the two sisters had taken the injured mother to the Police Station by walking. P.W.3 who is a co-villager has deposed that he does not to have any knowledge about the incident in question. 6. P.W.4 is the Medical Officer who conducted autopsy. She found two numbers of ante mortem stitched wound, one over the upper anterior chest wall left side and the second inter coastal space, first lateral to meet clavicle line. She opined that the deceased died due to shock due to septicemia, following injury on the abdomen. It has been deposed by P.W.4 that on 16.07.2012, the police had made a query from her by sending the post mortem examination report (Ext.1) and she was asked to give opinion, if the seized knife could have caused the injury as found by her. She deposed to have answered in affirmative to the query and proved her report marked Ext.3. In the cross examination also she has stated that all the injuries found on the body of the deceased were possible by the weapon in question which was sent to her for examination by the police. 7. P.W.5 deposed about the inter-se relationship between the deceased and P.W.1 and P.W.2. She is aware about the accused. In the cross examination also she has stated that all the injuries found on the body of the deceased were possible by the weapon in question which was sent to her for examination by the police. 7. P.W.5 deposed about the inter-se relationship between the deceased and P.W.1 and P.W.2. She is aware about the accused. According to her after the deceased died the accused was detained in custody and she has heard the accused making statement to kill the deceased. According to P.W.5, the statement of the accused was reduced to writing vide Ext.4 on which she also put her signature. This witness therefore proves the Exhibit 4 which is the statement of the accused in the nature of a confession admitting to have killed the deceased. 8. P.W.6 is the Medical Officer on casualty duty, examined P.W.1 who had incised cut injury on her right thumb. It was stated to be simple in nature. P.W.6 proved his report marked Ext.5. The witness (Medical Officer) had also examined the deceased Suku Bankra as then she was alive. He had seen the injuries also narrated by P.W.4. P.W.6 thus proved the injury report of the deceased marked as Ext.6. In his crossexamination however the Medical Officer seems to have confused the deceased with some other person as he has referred to the deceased as a 'male adult'. Therefore, his opinion that the deceased would have survived had he been attended to properly promptly is of little consequence. 9. The Investigating Officer, i.e., P.W.7 ultimately took over the investigation of the case. He states that he has conducted the examination of the relevant witnesses and is also seized other articles which have been brought on record by way of Exhibit-7, i.e., the seizure list. He further states that the date of the offence/incident was dated 02.10.2011 where investigation was being carried out under Section 452/307 of the IPC, however, as on 8.10.2011 the injured succumbed to his injuries, the case was registered under Section 302 of the IPC and the investigation was accordingly carried out. 10. P.W.8 is a witness who had gone to meet the deceased incidentally. He states that the daughter of the deceased had borrowed Rs.200/-from him in order to carry out the treatment of the injured who had ultimately succumbed to injuries in the hospital. He also states that he knows the accused and has identified him. 10. P.W.8 is a witness who had gone to meet the deceased incidentally. He states that the daughter of the deceased had borrowed Rs.200/-from him in order to carry out the treatment of the injured who had ultimately succumbed to injuries in the hospital. He also states that he knows the accused and has identified him. He deposed further that the deceased died succumbing to the injuries and that he witnessed the conduct of inquest by police. He proved the report marked Ext. 9. He proved the report marked Ext.9. P.W.8 added further that in his presence the accused made statement vide Ext.4 and at that time, P.W.5 was also present. He proved Ext.4 and his signature vide Ext. 4/2. 11. P.W.9 has stated that the accused was residing with the injured and the informant and that he is aware about the said fact being their front door neighbor. His evidence discloses that he has got no direct knowledge about the case incident. Although his evidence is short nature, it discloses a lot about the relationship between the deceased and the accused. The same also assumes significance given the fact that this witness is a native villager was not interested witness and is the quintessential independent witness. 12. P.W.10 is the original Investigating Officer. He deposed that the accused while in custody made disclosure that the knife with which he inflicted would over the chest and abdomen of the deceased, he has concealed in the Sector-7 area, the earlier place of his stay. He led him to Jhumpudi basti and gave recovery of the knife and then he seized the same. The I.O. proved the seizure list Ext.11 and the shirt of the accused vide Ext.4. His evidence corroborated by P.W.6. The evidence of I.O. finds corroboration from the evidence of P.W.4, through Ext.3. It is also noted that the witness has stated that he could not examine any immediate neighbours as the spot of the house was such that it was not flanked by any immediate residents. He states that only a shop was found adjacent to it. He also states that he arrested the accused on 14.05.2012. This witness has also successfully withstood the cross examination. 13. The learned counsel for the accused-appellant Mrs. He states that only a shop was found adjacent to it. He also states that he arrested the accused on 14.05.2012. This witness has also successfully withstood the cross examination. 13. The learned counsel for the accused-appellant Mrs. Prabhasi Nayak has submitted that the evidence of the eye-witnesses, namely, P.W.1 & P.W.2 have inherent contradictions with respect to the number of blows dealt. Their evidence is found vulnerable on the face of it when read with the evidence of P.W.4 and P.W.6 who have found only two injuries during their examination of the deceased. He also submitted that the entry of the accused into the house of the informant is found to be doubtful, in as much as, both the eyewitnesses have deposed that they have bolted the house on all sides. Given the said fact, it casts a shadow of doubt as to the fact as to how the accused could enter into the house of the deceased. The autopsy has been conducted subsequent to the treatment while no document has been produced to show that the deceased was undergoing treatment. It is submitted that the witnesses have deposed un-acceptable evidence that the injured was taken to the hospital by walk. The learned counsel for the accusedappellant has also submitted that the investigation of the case is shoddy in so far as the statement of none of the neighbourers has been recorded. Lastly the counsel for the accused-appellant has submitted that at best the present case would fall within the parameters of Section 304 Part II of the IPC. The learned counsel for the accusedappellant highlighted the aforesaid defects and submitted that the claim advanced by the prosecution is vague, incoherent and as such it is liable to be rejected. 14. On the other hand, the learned counsel for the prosecution submitted that the case has proved through the witnesses establish beyond reasonable doubt that the accused has committed murder of the deceased and prayed to reject the contention of the learned counsel for the accused-appellant. The contentions raised needs careful consideration. 15. Heard learned Counsel for the parties. 14. On the other hand, the learned counsel for the prosecution submitted that the case has proved through the witnesses establish beyond reasonable doubt that the accused has committed murder of the deceased and prayed to reject the contention of the learned counsel for the accused-appellant. The contentions raised needs careful consideration. 15. Heard learned Counsel for the parties. A perusal of the records of the case depicts that the evidence of P.W.1 and P.W.2 (the daughters of the deceased) with regard to the number of blows suffered by the deceased is contradictory to the description of the injuries as borne out by the evidence of the doctors who have conducted the examination of the deceased. 16. It has been stated by P.W.1 and P.W.2 that while they were asleep, they heard their mother shouting and upon waking up, they found the accused was stabbing the deceased. Their evidence shows that they are eyewitnesses to the stabbing of at least one blow to the deceased by the accused. Although it is true that P.W.1 and P.W.2 are related to the deceased, however, the mere fact of relation with the deceased would not put them in the compartment of a related witness rather it lends credibility to their version as the deceased was their mother, therefore, they would foist the guilt of the dastardly act on anyone else but the perpetrator of the crime. The Honble Supreme Court in Bhargavan v. State of Kerala1 held that relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Furthermore, in Pulicherla Nagaraju v. State of A.P.2 it was held that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. 17. In the present case, the nature of the crimes as well as the circumstances are such that a photographic picturization or a precise/ pointed narration of the events is not expected from the eyewitnesses who would have been aghast by the assault by the very man their 1 (2004) 12 SCC 414 2 (2006) 11 SCC 444 mother used to co-habit with. It should not be lost sight of the fact that P.W.1 and P.W.2 must have been horrified by the scene. It is with this backdrop that it must be held that the infirmity as to the number of blows narrated by the P.W.1 and P.W.2 must be read in contradistinction with the evidence given by the Medical Officers were examined the deceased must be taken as a minor embellishment and not a major contradiction/to render their version and untrustworthy. 18. Another telling aspect of the instant case is that the inter-se relationship between the accused and the deceased has been divulged by P.W.1. According to P.W.1, the accused had kept the deceased as his concubine. An unrelated witness, who appears to be the front door neighbour of the accused, i.e., P.W.9 has categorically deposed that accused used to cohabit the deceased. 19. From the above discussion, it is clear that the presence of the accused in the house of the deceased and the fact that the accused had dealt fatal blows to the deceased in the house of the deceased in the presence of P.W.1 and P.W.2 stands established. The question as to how the accused entered into the house of the deceased is of little consequence in view of the aforesaid fact. In the State of U.P. v. M.K. Anthony3, the Honble Supreme Court has held that: '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 3 (1985) 1 SCC 505 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. ...' 20. 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. ...' 20. During the course of arguments a contention was raised by the learned counsel on behalf of the appellant that the instant case at best could have been said to be one under Part II of Section 304 of the IPC. The said submission has been made in the light of the fact that some of the witnesses have deposed that the injured/deceased had walk down to the hospital for receiving treatment despite having received the injuries in question. It has been submitted that had the nature of the injuries been severe in nature the deceased would not have been able to walk to the hospital and therefore it must be held that it was at best a case for it to be considered under Part II of Section 304 of the IPC. However, such a submission fails to find favour with us due to the fact that the evidence of the Medical Officers who have examined the deceased is unambiguous and the same unerringly the points towards the direction that the injuries in question have caused septicemia and shock which resulted in the death of the deceased. In any case, the nature of the injuries defined in the autopsy report show that they had been dealt to the vital organs/parts of the body, i.e., the chest and abdomen of the deceased. In view of the said fact the plea that the present case ought to be considered under Part II of Section 304 of IPC must fail as the intention of the accused is forthcoming from the very nature of the injuries as borne out from the medical record/autopsy report. 21. Another aspect of the matter is that P.W.1 is an injured eyewitness to the incident. The injury of P.W.1 has been examined by P.W.6 who was the Medical Officer on duty and has testified to the fact that there was an incision on the right-hand. 21. Another aspect of the matter is that P.W.1 is an injured eyewitness to the incident. The injury of P.W.1 has been examined by P.W.6 who was the Medical Officer on duty and has testified to the fact that there was an incision on the right-hand. The said injury has been explained by P.W.1 in her deposition where she states that she got injured during the process of attempting to stop the accused from inflicting blows on the deceased. This aspect therefore establishes the fact that P.W.1 was present at the scene of the occurrence of the event as narrated by her in her deposition and lends much credibility to her version of the incident. It is to be kept in mind that the evidentiary value of an injured witness carries great weight. In Mano Dutt v. State of Uttar Pradesh4 the Honble Supreme Court relied on an earlier judgement in the case of Abdul Sayeed v. State of M.P.5 where it held as under: '28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as 4 (2012) 4 SCC 79 5 (2010) 10 SCC 259 he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.' 22. In the case of State of U.P. v. Kishan Chand6 a similar view has been reiterated observing that the testimony of an injured witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should normally be relied upon. 23. The law on the point can be summarised to the effect that the testimony of the injured witness has a special place in law. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should normally be relied upon. 23. The law on the point can be summarised to the effect that the testimony of the injured witness has a special place in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime. Normally it is seen that such a witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. 24. With the above backdrop and discussion and the facts and circumstances of the case, this Court comes to the conclusion that the prosecution has been successful in bringing home the charges against 6 (2004) 7 SCC 629 the accused. The court below has rightly dealt with the evidence in the present case. The court below has convicted the appellant herein under Sections 452, 307 and 302 of the Indian Penal Code mostly by placing reliance on the evidence adduced by the prosecution witnesses and has sentenced the appellant to undergo imprisonment for life. After examining the evidence and materials on record meticulously and in the light of the judgments cited herein above, we are of the considered opinion that the finding arrived at by the court below is in conformity with the law. No scope for interference in the same has been made out by the appellant. 25. Resultantly, this appeal must fail and the same stands dismissed. This Court confirms the conviction and maintains the sentence passed by the court below. The LCR be returned forthwith to the court from which it was received.