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2021 DIGILAW 326 (ORI)

Subash Chandra Swain v. State Of Orissa

2021-07-23

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K. Mishra, J. - The sole appellant-Subash Chandra Swain assails his conviction for commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'the I.P.C.' for brevity) and sentence to undergo imprisonment for life, recorded by the learned Sessions Judge, Puri in S.T. Case No.265 of 2001, vide., judgment of conviction and order of sentence dated 13.05.2002. 2. Bereft of unnecessary details, the case of the prosecution in brief is as follows: On the written report containing allegation that on 17.05.2000 at about 11.30 near Erbung High School accused inflicted injuries on the head and shoulder of deceased Pravakar, brother of the informant, by means of spade (Kodal), Gop P.S. Case No.58 dated 17.05.2000 was registered under Sections 324, 326 and 307 of the Penal Code and the matter was investigated into. The informant and witnesses were examined and blood stained grass and sample grass were seized from the spot. On succumbing to his injuries by the deceased at S.C.B. Medical College and Hospital, Cuttack, Mangalabag P.S. U.D. Case No.397 dated 17.05.2000 was registered, matter was enquired into, inquest over the dead body of the deceased was held whereafter the dead body of the deceased was subjected to post-mortem examination, wearing lungi and two envelopes were seized after post-mortem examination and on completion of enquiry, the C.D. was sent to Gop Police Station on the point of jurisdiction. On receipt of information of death of the deceased, Gop P.S. Case was turned to a case under Section 302 of the Penal Code. From a nearby pond of one Bhramarbar Muduli, spade, the weapon of offence was seized and on the production of seized spade opinion of the doctor who conducted post-mortem examination regarding possibility of injury by that weapon of the offence was obtained, and the seized articles were subjected to chemical examination and on completion of investigation, the accused was charge-sheeted under Section 302 of the Penal Code. 3. The defence plea is a denial one. 4. The prosecution, in order to prove its case, examined 14 witnesses and relied upon documents marked as Exts. 1 to 15 and also material objects marked as M.Os.I and II. 3. The defence plea is a denial one. 4. The prosecution, in order to prove its case, examined 14 witnesses and relied upon documents marked as Exts. 1 to 15 and also material objects marked as M.Os.I and II. P.Ws.5- Sudipta Kumar Swain, the brother of the deceased, is the informant; P.W.1- Rajesh Kumar Pradhan, nephew of the deceased and P.W.2-Kumarmani Mati, a co-villager of the deceased and a Peon of Erbung High School, are eye-witnesses to the occurrence; P.W.3- Bijaya Ku. Swain, the brother of the deceased, P.W.4- Manas Ranjan Baral, another co-villager of the deceased and P.W.6-Syama Sundar Sagadia, the brother-in-law of the deceased and a Teacher of Erbung High School are post-occurrence witnesses. P.Ws.3 and 4 are also witnesses to extra-judicial confession. P.W.7- Pramod Kumar Prusty is the Auto-driver in whose Auto the deceased was shifted from the spot. P.W.8-Kalandi Biswal, a co-villager of the deceased is a witness to seizure, P.W.12-Dr. Subodh Ch. Mohanty is the medical Officer, P.W.9-Dr. Nirupama Samantray is the Associate Professor of S.C.B. Medical College and Hospital, Cuttack who had conducted post-mortem examination. P.W.10-Madhab Chandra Sethi is the Havildar of Gop Police Station who made S.D. Entry on receipt of F.I.R., P.W.11-Ramakanta Sahu is the Police Constable of Mangalabag Police Station, Cuttack who accompanied the dead body for post- mortem examination, P.W.13-Jitendranath Pani is the A.S.I. of Police, Mangalabag Police Station, Cuttack who enquired into U.D. Case and P.W.14-Prahallad Gouda, the then Officer-In-Charge of Gop Police Station, Gop is the Investigating Officer. No defence evidence was adduced. 5. Taking into consideration the narrations of eye-witnesses P.Ws.1 and 2 as corroborated by the evidence of P.W.9, the Doctor who conducted post-mortem examination together with the contents of the post-mortem examination report, inquest report and casualty memo, learned Sessions Judge, Puri has came to the conclusion that prosecution has proved its case beyond all reasonable doubt. He also relied upon the extra-judicial confession made by the Accused/ Appellant before the witnesses like P.Ws.3 and 4 and the objective determination of the spot by the P.W.14, the Investigation Officer as per the contents of the spot map (Ext.13). He also relied upon the extra-judicial confession made by the Accused/ Appellant before the witnesses like P.Ws.3 and 4 and the objective determination of the spot by the P.W.14, the Investigation Officer as per the contents of the spot map (Ext.13). The contradictions which have been relied upon by the learned counsel for the Appellants were not given weightage by the learned Sessions Judge, Puri as it was trivial in nature and the alleged contradiction regarding the seats of injuries stated by the two eye-witnesses with reference to their respective statements before the Investigating Officer under Section 161 of the Code, were not given much importance by the learned Sessions Judge on the ground that it was not proved through the Investigating Officer. 6. In course of hearing of the Appeal, learned counsel for the Appellant submitted that the evidences of the eye-witnesses cannot be believed as they have not given the exact seats of injuries with respect to their statements recorded under Section 161 of the Code and that it was alternatively submitted that this is not a case of culpable homicide amounting to murder, rather, it is a case of culpable homicide not amounting to murder. 7. Learned Additional Standing Counsel appearing on behalf of the State, on the other hand, argued that the evidences of P.Ws.1 and 2, the two eye-witnesses, were duly corroborated by other evidences like the evidence of P.W.9, the Doctor, who conducted post-mortem examination of the dead body of the deceased, extra judicial confession and the objective determination of the spot by the Investigating Officer. He also argued that this is not a case of simple homicide not amounting to murder because of the fact that the accused followed the deceased from the Tea Stall of the village to near the gate of vegetable garden of the deceased and took out the weapon of offence, the Spade (M.O.I), and dealt several blows on the person of the deceased leading to his death. It was, therefore, argued by the learned Additional Standing Counsel that by no stretch of imagination it can be held as an offence of culpable homicide not amounting to murder. He, therefore, prayed that the Appeal may be dismissed confirming the conviction and sentence recorded by the learned Sessions Judge, Puri against the Appellant. 8. It was, therefore, argued by the learned Additional Standing Counsel that by no stretch of imagination it can be held as an offence of culpable homicide not amounting to murder. He, therefore, prayed that the Appeal may be dismissed confirming the conviction and sentence recorded by the learned Sessions Judge, Puri against the Appellant. 8. Since the learned counsel for the Appellant had based his arguments regarding the injuries sustained by the deceased and the exact seats of such injuries, it is appropriate for us to examine the evidence of the Doctor. P.W.9, the Doctor, had conducted post- mortem examination over the dead body of the deceased and found as follows: 'Average body built, body length 170 cm., the cloths were blood stained, there was surgical bandage over head soaked with blood, I.B. marked left wrist joint, rigormortis was present on all limbs, postmortem lividity on the back, eyes closed, mouth closed, cornea was hazy and pupils diolated External injuries:- (i) Incised chop wound over the left side face starting from the zygoma and going upwards over the left forehead and frontal region region of the scalp of size 16 cm. long and cutting the corresponding muscles and bone. (ii) Another incised chop would just medial to the above wound of size 7 cm. long and merged to the above wound starting from the medial part of the eye-brow of left side and then merged with injury no.(i) and cutting the corresponding bone, the size of the wound was 16 cm. x 4 cm. cutting the corresponding bone. (iii) Surgically stitched wound with four stitches over left shoulder joint 4 cm. long. (iv) Surgically stitched wound over the left arm of size 5 cm. x 2 cm. x bone deep. (v) Chop incised wound on back of the scalp just below the occipital region 9 cm. long horizontally placed.' On dissection, she also found the following internal injuries:- '(i) Corresponding to external injury nos. (i) and (ii) the muscles and bone were correspondingly cut i.e. maxilla bone and frontal bone. (ii) Corresponding to external injury no.(v) the scalp tissue and occipital bone was cut. (iii) the membrame was cut corresponding to external injury Nos.(i) and (ii). (iv) Subdural blood clot covering the left side parieto frontal region. (i) and (ii) the muscles and bone were correspondingly cut i.e. maxilla bone and frontal bone. (ii) Corresponding to external injury no.(v) the scalp tissue and occipital bone was cut. (iii) the membrame was cut corresponding to external injury Nos.(i) and (ii). (iv) Subdural blood clot covering the left side parieto frontal region. Correspondingly there was surface contusion of the brain tissues on the fronto parietal region.' It is apparent that all the injuries found by the Doctor on the person of the deceased can be caused by sharp cutting weapon like a Spade. In fact, she has examined the weapon of offence i.e. the Spade (M.O.I) and rendered her opinion vide Ext.6 that the injuries found on the person of the deceased can be caused by such weapon of offence. 9. It is further seen from the records that P.Ws.1 and 2 have given a detailed description of the assault made by the Appellant on the deceased by means of a Spade. We have carefully examined the alleged contradiction made by the two eye-witnesses. We have also carefully examined the evidences of P.W.14, the Investigating Officer of this case and found that some questions have been put to P.W.1 and the Investigating Officer has admitted that he had not stated before him that the Appellant assaulted the deceased on the left side face and left shoulder. Similarly, P.W.2 had not stated before the Investigating Officer that near the garden of the deceased the occurrence was taken place, when he was going to get betel from the shop and that left side face, left side shoulder and left side chest of the deceased were assaulted. P.W.6-Syama Sundar Sagadia is the brother-in-law of the deceased. The accused happens to be the son of sister of his father thereby he is a cousin. He is post occurrence witness. He was proceeding to the village from High School Chhak. He heard a shout HANI PAKEILA HANI PAKEILA DOUDI ASA. He came running and heard that the accused assaulted the deceased inflicting cut injuries. He found the deceased lying near one Aswastha tree close to the gate of his garden. Then he was not in sense. By an Auto, he shifted the deceased to Gop Hospital and from there to Capital Hospital. He came running and heard that the accused assaulted the deceased inflicting cut injuries. He found the deceased lying near one Aswastha tree close to the gate of his garden. Then he was not in sense. By an Auto, he shifted the deceased to Gop Hospital and from there to Capital Hospital. He corroborated the narrations given by the eye-witnesses in the sense that he saw the deceased lying at the spot which is near to the gate of the vegetable garden of the deceased. Similarly, P.W.4 had seen the accused running away with the Spade and when this witness chased the accused/ Appellant, he threatened to assault this witness also. However, on examination of the evidence of P.W.9-Dr. Nirupama Samantray, as discussed earlier, reveals that external injuries could be found over the left side face starting from the zygoma and going upwards over the left forehead. Another incised chop injury could be found just medial to the above injury which merged to the injury no.(i) starting from the medial part of the eye- brow of left side , one surgically stitched wound with four stitches over left shoulder joint, surgically stitched wound over the left arm and chop incised wound on back of the scalp just below the occipital region. Thus, it is clear from the records that though P.Ws.1 and 2 have not given the specific seats of injuries sustained by the deceased, in their statements to the Investigating Officer, but it is apparent from the medical evidence that in fact the deceased had sustained injuries on the left side face, shoulder and arm. So, we are of the considered opinion that for such superficial and marginal contradictions, the evidences of the two eye-witnesses cannot be disbelieved. It is more so because when a gruesome offence has been committed in the presence of the persons who were acquainted with both the accused and the deceased in rapid succession, it is impossible to remember each and every details of such assault and report the same before the Investigating Officer. It is not disputed that the Investigating Officer has examined these two eye-witnesses after a short time gap and by the time both the witnesses must be recovering from the shock of witnessing the gruesome murder of a co-villager. 10. In this case, the Investigating Officer has objectively determined the spot by preparing Ext.13 (spot map). It is not disputed that the Investigating Officer has examined these two eye-witnesses after a short time gap and by the time both the witnesses must be recovering from the shock of witnessing the gruesome murder of a co-villager. 10. In this case, the Investigating Officer has objectively determined the spot by preparing Ext.13 (spot map). Chemical Examination Report further shows that Grass Leaves, Straw, Bamboo Kani, Torn Cloth seized from the spot were stained with human blood. This aspect, in fact, corroborates the version of the eye-witnesses, post-occurrence witnesses and the Investigating Officer regarding the spot of occurrence. 11. So, keeping in view the narrations of the eye-witnesses, medical evidence available in this case and the chemical examination report regarding finding of blood at the spot, we are of the opinion that the prosecution has proved its case beyond all reasonable doubt and the learned Sessions Judge, Puri has not committed any error on record requiring interference by this Appellate Court in this Appeal against the judgment of conviction. 12. The alternative submission made by the learned counsel for the Appellant is that it is not a case of murder but a case of culpable homicide not amounting to murder is also no substance, as it is borne out from the evidence of P.W.1 that on his return from field he found the accused was sitting at a Tea Stall near Erbung School close to the road. The accused then proceeded towards the garden of the deceased being followed by him few cubits away. While the deceased was closing the gate of his garden, the accused bought out a Spade from a bush and assaulted on the backside of his head. The deceased fell flat facing upwards with profuse bleeding. Then the accused again dealt blows on the face, left shoulder and left chest of the deceased by that weapon. So, no suggestion has been given to this witness that the occurrence took place in the spur of the moment as a result of a sudden fight between the Appellant and the deceased. Rather, it is apparent from the records that the accused took out a weapon that was concealed inside a bush and without any kind of provocation he assaulted the deceased by means of a Spade. 13. Rather, it is apparent from the records that the accused took out a weapon that was concealed inside a bush and without any kind of provocation he assaulted the deceased by means of a Spade. 13. So, we are of the considered opinion that this is not a case where we should conclude that the death of the deceased was culpable homicide not amounting to murder. Rather, this is a case of murder and it has been proved beyond all reasonable doubt by the prosecution and that has been accepted by the learned Sessions Judge, Puri in the aforesaid case. We do not find any plausible grounds to come to a different conclusion. 14. In the result, the appeal is dismissed. The impugned judgment and order is confirmed. 15. The T.C.Rs. be sent back to the court below forthwith. 16. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the JUDGMENT available in the High Courts website, at par with certified copy, subject to attestation by the concerned Advocate, in the manner prescribed vide Courts Notice No.4587, dated 25th March, 2020 as modified by Courts Notice No.4798, dated 15th April, 2021.