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2021 DIGILAW 16 (ORI)

Jagabandhu Juanga v. State Of Odisha

2021-01-08

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K. Mishra, J.- The sole appellant-Jagabandhu Juanga called in question his conviction under Sections 302 and 323 of the Indian Penal Code, 1860, hereinafter referred to as the 'Penal Code' for brevity, for committing murder of his elder brother on 13.12.2003 and causing simple hurt to Narad Juanga, by the learned Adhoc Addl. Sessions Judge (FT), Keonjhar in S.T. Case No.48/39 of 2004 (G.R. Case No.1007 of 2003, arising out of Telkoi P.S. Case No.97 of 2003). He has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Penal Code and further sentenced to undergo rigorous imprisonment for six months for the offence under Section 323 of the Penal Code. 2. The case of the prosecution in short is that at about 9.30 a.m. on 13.12.2003, the appellant assaulted his brother Bhima Juanga by means of a wooden plank, 'Sal Baton', on his head and hand. Due to such assault, the deceased fell losing his consciousness. Narad Juanga tried to intervene in the matter. The appellant further assaulted Narad Juanga by the said Baton and thereafter, fled from the spot. Narad Juanga noticed that blood was oozing out of the ear of the deceased. He had sustained injury due to such assault. He raised alarm. Then, he informed Sukadev Juanga, son of the deceased, who has lodged F.I.R. in the case. Thereafter, Sukadev Juanga (P.W.1) lodged an FIR, which was scribed by Prasanna Kumar Juanga before the OIC, Telkoi Police Station, who registered the criminal case and took up investigation. The Investigating Officer took all necessary steps like examination of witnesses, dispatching the dead body for post-mortem examination after conducting inquest over the same, seizure of material objects etc. and then upon completion of investigation submitted charge-sheet against the appellant. 3. The defence took the plea of complete denial and false implication by Narad Juanga because of some land dispute. 4. The prosecution, in order to establish its case, examined as many as seven witnesses. P.W. 2-Narad Juanga is the solitary eye-witness examined on behalfof the prosecution to prove the case. P.W.1-Sukadev Juanga happens to be the son of the deceased, nephew of the appellant and informant of the case. P.W.3-Nilambar Juanga, P.W.4-Sujan Juanga, P.W.5-Desa Juanga, the witnesses who arrived at the spot after hue and cry of P.W.2 and they found the deceased struggling for his life having sustained injuries. P.W.1-Sukadev Juanga happens to be the son of the deceased, nephew of the appellant and informant of the case. P.W.3-Nilambar Juanga, P.W.4-Sujan Juanga, P.W.5-Desa Juanga, the witnesses who arrived at the spot after hue and cry of P.W.2 and they found the deceased struggling for his life having sustained injuries. P.W.6-constable no.176 of Telkoi Police Station escorted the dead body of the deceased to Telkoi Community Health Centre for post mortem examination. After post mortem examination, he produced the wearing apparels and command certificate before the OIC, Telkoi Police Station, who seized the same under Ext. 5. Basing on such material available on record, the learned Amicus Curiae Miss. Satabdi Samantaray argued that the case of murder cannot be established in this case as the Dr. C. R. Nayak, Assistant Surgeon of Telkoi CHC was not examined on behalf of the prosecution and the post mortem examination report has not been exhibited. She also drew attention of the Court to the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973, hereinafter referred to as the 'Code' for brevity, and contended that not a single question has been asked to the appellant-convict about the homicidal nature of the death of the deceased or the injury sustained by the P.W.2. Mr. G.N. Rout, learned Addl. Standing Counsel, on the other hand, supported the findings recorded by the learned trial Judge and submitted that the contents of the post mortem examination report, even though not exhibited, by examining the doctor are admissible under Section 32 of the Indian Evidence Act, 1972, hereinafter referred to as the 'Evidence Act' for brevity. Therefore, the learned Addl. Standing Counsel submitted that the appeal should be dismissed. 5. An examination of the impugned judgment reveals that the learnedAdhoc Addl. Sessions Judge, at paragraph-4 of the judgment, mentioned that whether the death of the deceased, in case is homicidal in nature is the first point to be determined by the Court in this case. 6. Undisputedly, the doctor conducting post mortem examination was not examined in this case. There is also no dispute that the post mortem examination report though available on record has not been exhibited on behalf of the prosecution. No question has been asked to the appellant-convict on this aspect of the contents of the post mortem examination report. The learned Adhoc Addl. There is also no dispute that the post mortem examination report though available on record has not been exhibited on behalf of the prosecution. No question has been asked to the appellant-convict on this aspect of the contents of the post mortem examination report. The learned Adhoc Addl. Sessions Judge has examined the post mortem examination report and has taken into consideration the post mortem examination report in his judgment and has come to the conclusion, relying upon the evidence of P.W.2 and other circumstances that it is a case of homicide. 7. A careful examination of the record of the court of first instance reveals that summons were issued to Dr. C. R. Nayak, Assistant Surgeon of Telkoi CHC and the case was posted to 07.12.2004. On that day, the learned Adhoc Addl. Sessions Judge noted that service of summons is back without service. Therefore, he issued the summons through the Director of Health Services and the case was posted to 18.12.2004. But, the doctor was found absent on that day also. A V.H.F. message was also sent to the Director of Health Service and the case was then posted to 07.01.2004. On that day, the doctor was absent despite of V.H.F. message. The case was then posted to 24.01.2005. On that day, the doctor also remained absent and no report was received from the Director of Health Services, Orissa. The learned Adhoc Addl. Sessions Judge observed in his judgment as follows:- ' The most unfortunate aspect of this exercise is that the Director of Health Services who happens to be a very responsible and controlling officer in the State did not respond to the V.H.F. message sent to him by this court. It was expected that being the controlling officer in the State he will assist the Court in a responsible manner by giving necessary instructions to the doctor who was to attend the Court in a murder trial.' On 24.01.2005, the learned Addl. Public Prosecutor filed a petition declining to examine the said doctor. Then, the learned Adhoc Addl. Sessions Judge has taking recourse of Section 32 of the Evidence Act perused the post mortem report and took note of the injuries mentioned therein and come to the conclusion regarding guilt of the appellant. The first and foremost approach adopted by the learned Adhoc Addl. Sessions Judge in this case is erroneous. Then, the learned Adhoc Addl. Sessions Judge has taking recourse of Section 32 of the Evidence Act perused the post mortem report and took note of the injuries mentioned therein and come to the conclusion regarding guilt of the appellant. The first and foremost approach adopted by the learned Adhoc Addl. Sessions Judge in this case is erroneous. He has come to a conclusion that when a person is dead or not found, the report prepared by him can be held to be admissible and relevant within the scope of Section 32 of the Indian Evidence Act. The relevant portion of Section 32 of the Indian Evidence Act reads as follows:- ' 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) xxx (2) or is made in course of business. -When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. (3) xxx ' 8. An Assistant Surgeon attached to a Government establishment like the Community Health Centre is definitely a professional and any statement made by him while conducting a post mortem examination thereby recording his opinion as to the injuries sustained by the deceased and the cause of death of deceased are definitely statements. Such statements are relevant and admissible. But, in order to bring such statement into record, the learned trial Judge has to give an observation to that effect. Such statements are relevant and admissible. But, in order to bring such statement into record, the learned trial Judge has to give an observation to that effect. A factual finding that the professional, who has conducted post mortem examination is either dead or he cannot be found or his attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the trial Judge unreasonable, is to be recorded. Then, the learned trial Judge should proceed to examine any witness, who is acquainted with the hand writing and signature of the doctor. He should have ensured that the document like the post mortem examination or injury report was put to such witness. Once the document is proved, then the statement made by the doctor either immediately after post mortem examination or in the course of it shall be relevant and admissible. In this case, such a course of action has not been adopted by the learned Adhoc Addl. Sessions Judge. Hence, the document has to be held that have not been proved in this case. 9. Another aspect is that in the examination of the deceased under Section 313 of the Code, the learned trial Judge has not put any question to the accused about the contents of the post mortem report. Such evidence therefore cannot be taken into consideration. In this case, the post mortem examination report and the injury report prepared by Dr. C.R. Nayak, the then Assistant Surgeon, Telkoi Community Health Centre, having not been proved, it cannot be relied upon by the prosecution to come to a conclusion that the prosecution has established the homicidal nature of death of the deceased. 10. In this case, this Court is constrained to note that the court of first instance did not act in a proactive manner to secure the attendance of the doctor. It is not clear from the record that doctor, who has conducted post mortem examination, has died by the time of trial. In such situation, where the doctor upon service of summons does not appear or the summons of service are not served upon him, then the proper course of action should have been a request letter sent to the Chief Medical Officer. Very frequently, the trial of sessions case is being adjourned unnecessarily due to non-appearance of the Medical Officer. In such situation, where the doctor upon service of summons does not appear or the summons of service are not served upon him, then the proper course of action should have been a request letter sent to the Chief Medical Officer. Very frequently, the trial of sessions case is being adjourned unnecessarily due to non-appearance of the Medical Officer. The most common reason for the same is that the doctors are transferred from the places of their posting when they have conducted post mortem examination or conducted examination of the injured, to a different place. In such case, the summons are returned without service. It is common knowledge that the administrative office of the Hospital, which is headed by the Chief Medical Officer, keeps records of the transfer of Medical Officer to different stations or different districts. In such case, the court can request the Chief District Medical Officer to provide information regarding the transfer of the doctor, so that the subsequent summons can be sent to the concerned doctor in the address of his new posting. A slight bit of application of mind and a proactive role could solve this problem. 11. Another matter of concern has been noticed by this Court in this case is that on 24.01.2005, the Additional Public Prosecutor filed a petition declining to examine the doctor and on such petition, the case of the prosecution is closed. The Public Prosecutor can decline a witness, who is in attendance in the court. The Public Prosecutor or the Addl. Public Prosecutor does not have the discretion to decline to examine a witness, who is not present in the court. In such case, the court has jurisdiction to dispense with the attendance of the witness, if it thinks that it will not cause prejudice either to the defence or to the prosecution. 12. So, in this case, as there are so many glaring errors not only in relation to procedure but also in relation to substance of the case, this Court comes to the conclusion that there is no admissible and relevant evidence on record to come to a conclusion that the prosecution has established that the death of the deceased was homicidal. Hence, the appellant is entitled to an acquittal. Hence, the appellant is entitled to an acquittal. There is also no evidence on record that P.W.2 did sustain injury in course of such an incident, as a result of the assault made by the appellant on him. Mr. G. N. Rout, learned Addl. Standing Counsel has very emphatically submitted that in this case the defect in prosecution evidence can be removed by remanding the matter to the trial court. However, this Court is of the opinion that as the appellant has already undergone incarceration for more than 10 years i.e. from 13.12.2003 to 24.07.2013, no useful purpose will be served by remanding the matter to the trial court. Moreover, from the very nature of the allegation in the case, it appears that in ultimate analysis, this case may end in a conviction under Section 304 Part-I or Part-II of the Penal Code. Hence, as the appellant has already undergone incarceration for more than 10 years, it shall not be expedient or in the interest of justice to remand the matter to the court of first instance. Hence, the Jail Criminal Appeal is allowed. The judgment of conviction and order of sentence passed against the appellant under Sections 302 and 323 of the Penal Code are hereby quashed. He is acquitted of the aforesaid offences. He is on bail. He be set at liberty forthwith by cancelling the bail bond executed at the time of his bail, if his detention is not required in any other criminal case. As restrictions are continuing for COVID-19, learned counsel for the parties may utilize the soft copy of this judgment available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.