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2021 DIGILAW 434 (ORI)

Arjun Pangi v. State Of Odisha

2021-10-25

B.P.ROUTRAY, S.MURALIDHAR

body2021
JUDGMENT B.P. Routray, J. The Appellant has been convicted and sentenced to life imprisonment for committing murder of his neighbour, by the learned Additional Sessions Judge (FTC), Malkangiri in Criminal Trial No.21 of 2010. 2. Prosecution case in brief is that, both Appellant and deceased were residents of village Haripur under Chitrakonda P.S. in the district of Malkangiri. On 29th November, 2009 in the morning at around 8 am when the Appellant in an angry mood was standing in front of the house of his sister-in-law Kamala Khilla holding a wooden mortar (Musala), the deceased who is a neighbour to the house of both Kamala Khilla and the Appellant, tried to persuade the Appellant to cool down, but he dealt blows on the head of the deceased by that wooden mortar causing bleeding injuries. The deceased died subsequently in the hospital. 3. The wife of the deceased namely, Gasu Sahu (P.W.1) lodged the F.I.R. (Ext.6). P.W.12, the then Sub-Inspector of Police, registered the F.I.R. as Chitrakonda P.S. Case No.22 dated 29th November, 2009 and took up investigation. He seized the mortar (M.O.I) from the spot on the same day and also arrested the Appellant. On the next day, he held inquest over the dead body and sent it for post mortem examination. P.W.11, the Surgeon of District Headquarters Hospital, Malkangiri conducted the autopsy and submitted his report under Ext. 4. The charge-sheet was submitted on 27th March, 2010 for the offence under Section 302 of the Indian Penal Code (IPC). 4. The Appellant denied the charge and stated that he has been falsely implicated in this case. 5. Prosecution examined 13 witnesses in total and marked several documents as Exhibit-1 to Exhibit-12. The prosecution also produced 4 material objects as M.O. I to IV including the weapon of offence. On the other hand three witnesses have been examined by the defense, who are the Appellant himself (D.W.1), Kamala Khilla (D.W.2) and Chaitan Pangi (D.W.3). No documentary evidence has been adduced from the side of defense. 6. As per the medical evidence adduced through P.W.11 Dr. Sashi Bhusan Mohapatra, an Assistant Surgeon who conducted autopsy of the dead body on 1st December, 2009 found two lacerated wounds on the head of the deceased. The first one was of size 3' X 0.25' X 0.5' placed over the left temporal bone at 2.5' above the left ear. 6. As per the medical evidence adduced through P.W.11 Dr. Sashi Bhusan Mohapatra, an Assistant Surgeon who conducted autopsy of the dead body on 1st December, 2009 found two lacerated wounds on the head of the deceased. The first one was of size 3' X 0.25' X 0.5' placed over the left temporal bone at 2.5' above the left ear. The second wound was of size 2.5' X 0.25' X 0.5' placed at 2' above the first injury on the left side on the head. On dissection he further found corresponding internal injuries of fracture of temporal skull and intracranial subdural hemorrhage of the brain. The cause of death is due to intracranial hemorrhage leading to cardio respiratory failure resulting shock and death. P.W.11 further opined that both the injuries are possible by the wooden mortar (M.O.I) produced before him for examination. Though the defense in cross examination has elicited from the mouth of P.W.11 that such injuries could be possible due to fall from the roof of a pucca house on a hard and rough surface, but he could not be successful to falsify the evidence of P.W.11. The reason being that, P.W.11 has explained that in case of fall there would be additional injuries and in the present case no other injuries are there and secondly, there is no mention of any pucca house or rough and hard surface by any of the witnesses. Thus the medical evidence adduced by the prosecution through P.W.11 cannot be doubted at all and as such it can safely be concluded that the deceased died homicidal nature of death. 7. Prosecution has presented several eye witnesses to the occurrence. As per prosecution P.W.1, the wife of the deceased and P.Ws.2, 3, 4, 5, 6, 8 and 10 all co-villagers, are the eye witnesses to the assault on the deceased. Amongst them P.Ws.4, 5 and 8 have turned hostile and did not support the prosecution case. P.W.1 admitted in her cross that by the time of her arrival at the spot the deceased had already fallen on the ground sustaining injuries. Similarly, P.W.3 has admitted that he has not witnessed the assault on the deceased. So the remaining witnesses, viz., P.Ws.2, 6 and 10 are seemed to be the vital witnesses. 8. It is submitted by Mrs. Similarly, P.W.3 has admitted that he has not witnessed the assault on the deceased. So the remaining witnesses, viz., P.Ws.2, 6 and 10 are seemed to be the vital witnesses. 8. It is submitted by Mrs. C. Kasturi, learned counsel for the Appellant that the evidence of P.Ws.2, 6 and 10 cannot be relied upon as eye witnesses to the occurrence. As per her submission, P.W.2 is a close relative of the deceased and therefore cannot be relied upon; P.W.6 has admitted to have witnessed the occurrence from a distance of 60 cubits and as such his statement should be viewed with suspicion; and for P.W.10 it is submitted that he was not a charge-sheeted witness and admittedly not examined by police in course of investigation and therefore his evidence is inadmissible in the eye of law. 9. First coming to examine the evidence of P.W.6, it is seen that he has given a detailed account of the occurrence as an eye witness. It is true that he has admitted in his cross that he saw the assault standing near the tamarind tree at a distance of 60 cubits from the spot. Here it is relevant to refer the spot map (Ext.7). Defense has not brought any statement from the mouth of P.W.12 the Investigating Officer or any other witness, to suggest presence of any visual barrier if was there between the tamarind tree and the spot. No such material could be elicited from the mouth of any prosecution witness suggesting any obstruction of vision from the tamarind tree. The spot is an open courtyard in front of the house of Kamala Khilla (D.W.2). Even said Kamala Khilla in her evidence as a defense witness has not whispered anything about the same. The occurrence took place in a bright wintery morning at about 8 am. The sun was shining in the sky as is evident from the statement of P.Ws.2. P.W.6 has further clarified in his cross-examination that there was no house in between the spot and the tamarind tree where he was standing. So, there cannot be any sort of doubt for P.W.6 in witnessing the occurrence from a distance of 60 cubits. A thorough examination of the testimony of P.W.6 inspires confidence to believe him as a truthful and trustworthy witness. So, there cannot be any sort of doubt for P.W.6 in witnessing the occurrence from a distance of 60 cubits. A thorough examination of the testimony of P.W.6 inspires confidence to believe him as a truthful and trustworthy witness. His evidence as a direct eye-witness to the assault on the deceased by the Appellant through M.O.I is clear and cogent. 10. P.W.2 in his evidence is fully corroborating the statement of P.W.6. He has explained that seeing the assault by the Appellant on the deceased, he and P.W.10 ran near him and snatched the mortar from the Appellant and thereafter shifted the deceased to the Hospital with the help of others. As submitted on behalf of the Appellant, his statement cannot be disbelieved for the mere reason that he is a close relative of the deceased. Of course, he has admitted that the deceased is the son of his elder brother, but the same cannot be the sole reason to disbelieve him. He has given a clear and detailed account of the occurrence. No enmity is there between P.W.2 and the Appellant which could tempt him to give false evidence against the Appellant. Otherwise also a close relative is hardly interested to implicate an innocent person leaving the real culprit. In some cases the relatives of the victim are interested to exaggerate in their statement, but here in this case if the statement of P.W.2 is compared with evidence of other witnesses, no such ambiguity or inflation in giving account of the occurrence is noticed. Therefore, the evidence of P.W.2 cannot be distrusted which is otherwise clinching and unimpeaching against the Appellant as the author of the crime. 11. As regards the evidence of P.W.10, admittedly he has not been examined by P.W.12 in course of investigation nor has his statement under Section 161 Cr.P.C. been recorded. This is admitted by both P.Ws.10 and 12. So the question arises here that, whether in the given circumstances the evidence of P.W. 10 would be admissible? 12. Section 231 of the Cr.P.C. mandates the Judge to take all such evidence as may be produced in support of the prosecution. Similar provision has been mentioned under Section 240(3) for warrant cases. So the question arises here that, whether in the given circumstances the evidence of P.W. 10 would be admissible? 12. Section 231 of the Cr.P.C. mandates the Judge to take all such evidence as may be produced in support of the prosecution. Similar provision has been mentioned under Section 240(3) for warrant cases. Further Section 311 of the Cr.P.C. empowers the Court to summon any person as a witness and examine him at any stage of any inquiry, trial or other proceeding, if his evidence appears to be essential for just decision of the case. So nothing is there to bar the trial court to summon and examine P.W. 10 as a witness for prosecution. But at the same time section 207 confers right on the accused to get copy of the previous statement of an witness recorded under Section 161 of the Cr.P.C. It is for the purpose that the accused should not be taken in surprise, as a part of fair trial that, such an unknown witness is there to depose against him. Thus a balance to be maintained here to safe-guard the interest of the accused also. What is to be seen here that the accused should not be prejudiced by any action of the prosecution or the court. Here if the argument of defence is accepted that no such evidence of a witness not earlier examined by the police at the stage of investigation would be admissible on record, it will render a disastrous consequence because everything cannot be left to the hands of the investigating officer. It cannot be the absolute choice of the investigating authority to add, exclude or overlook available evidence, albeit its relevancy. 13. In the instant case, as seen from the trial court record, the Court summoned P.W.10 to be examined as a witness on the application of the prosecution. Seemingly the power was exercised under section 311 of the Cr.P.C. In the decision reported in Mohanlal Shamji Soni v. Union of India and another, 1991 Suppl (1) SCC 271, the Supreme Court while highlighting the importance of the power to be exercised under Section 311 of the Cr.P.C. has observed that, '10. Seemingly the power was exercised under section 311 of the Cr.P.C. In the decision reported in Mohanlal Shamji Soni v. Union of India and another, 1991 Suppl (1) SCC 271, the Supreme Court while highlighting the importance of the power to be exercised under Section 311 of the Cr.P.C. has observed that, '10. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.' 14. So far as relevancy of this witness to the occurrence is concerned, he is definitely a vital witness being a direct eye-witness to the assault, whose name has been stated as such in the recitals of the F.I.R. as well as in the statements of the wife of the deceased and other witnesses. It is very strange and unfortunate on the part of the investigating officer that how he completely ignored this eye-witness despite his name is reflected in the F.I.R. and he had been with the deceased constantly from the time of assault till his death in the hospital. Therefore the learned trial court has rightly exercised his power under Section 311 to summon and examine this witness. Undoubtedly, the appellant was given ample opportunity to cross-examine this witness and in fact he has comprehensively cross-examined this witness. So no prejudice is seen to have caused to the appellant on this aspect and the evidence of P.W.10 is accepted as admissible. 15. Now coming to the merits of the evidence of P.W.10, it is found that he has clearly stated to have seen the appellant dealing the blow on the head of the deceased by means of M.O.I. His evidence is fully corroborative to the evidence of other eye-witness viz. 15. Now coming to the merits of the evidence of P.W.10, it is found that he has clearly stated to have seen the appellant dealing the blow on the head of the deceased by means of M.O.I. His evidence is fully corroborative to the evidence of other eye-witness viz. P.Ws.2 & 6, so also to the evidence of P.W.1. No exaggeration or material discrepancy is noticed in his statement to discard his evidence as untrustworthy. P.W.2 has said in his evidence that he and P.W.10 rushed together to the deceased seeing the assault on him. As such, no more doubt remains there about truthfulness of the version of this witness and can safely be acted upon to sustain the conviction. The contention of the defense to discard his evidence as inadmissible is thus rejected. 16. The weapon of offence, i.e. mortar (M.O.I) was seized from the spot on the same day by P.W.12 immediately after lodging of the F.I.R. The seizure list has been prepared under Ext.1. The witnesses of seizure are Madhab Padua and Udhaba Khilla. Udhaba Khilla has not been examined as a witness. Madhab Padua who has been examined as P.W.7, has stated in his evidence that M.O.I was seized in his presence by police. P.W.12, the investigating officer has stated in his evidence that he seized M.O.I from the spot on the same day of occurrence. The statement of P.W.12 coupled with the evidence of P.W.7 in this regard does not cast any doubt regarding seizure of the weapon of offence. As stated earlier, P.W.11 by examining M.O.I has opined that both the lacerated wounds noticed on the head of the deceased are very much possible by the same. Thus, keeping in view the ocular evidence of the eye witnesses as well as the post occurrence witnesses, ample material is seen against the Appellant as the author of the assault on the deceased causing his death. 17. An alternative argument is advanced on behalf of Appellant that the assault made by him may be treated as culpable homicide not amounting to murder. This submission is not found convincing to us. It is for the reason that the circumstances do not reveal any provocation on the part of the deceased. Neither any action in the heat of passion or exercise of self defense is there for the benefit of the Appellant. This submission is not found convincing to us. It is for the reason that the circumstances do not reveal any provocation on the part of the deceased. Neither any action in the heat of passion or exercise of self defense is there for the benefit of the Appellant. The circumstances reveal that when the deceased was trying to cool down the anger of the Appellant he assaulted in return. It is not the case that the Appellant gave one blow, but he dealt repeated blows as apparent from two injuries sustained by the deceased on his head. Therefore, this is not a true case to fall under any of the exceptions of Section 300 of I.P.C. As such, the contention of the Appellant in this regard is rejected. 18. In the result, we do not see any infirmity in the impugned judgment of conviction and sentence to warrant any interference. The appeal is dismissed. 19. The seized material objects be destroyed after four months from today. 20. The LCR be returned forthwith.