Orissa High Court
Gauri Shankar Padhi And 3 Ors. vs State Of Orissa on 24 September, 2002
Equivalent citations: 2002(II)OLR640
Author: B. Panigrahi
Bench: B. Panigrahi, P.K. Misra
JUDGMENT B. Panigrahi, J.
1. This appeal is directed against the judgment and order dated 15.5.1996 passed by the learned Sessions Judge, Sambalpur in Sessions Trial No. 66/22 of 1994, convicting the appellants under Section 302/34, IPC and sentencing them to undergo R.I. for life.
2. The prosecution case, as unfolded in course of trial, is as follows :
P.W. 1, Sanatan Behera being informed by his son, Kailash Behera (P.W. 5) that some culprits of village Dumerpali were assaulting his brother Minaketan, who was having a betel shop in front of the M.E. School of the village, immediately rushed towards the spot. Standing at a little distance from the betel shop, he saw that a power tiller, belonging to the appellants was parked in front of the said betel shop. The appellants however challenged the informant by using intemporate language asking him not to proceed further. At that time, Minaketan was lying by the side of the road in a pool of blood. After the appellant left the spot P.W. 1 went near Minaketan, took him in lap and noticed him alive. Therefore, P.W.1 asked the injured Minaketan as to who were his assailants, to which he replied in presence of P.Ws. 3, 4, and 10 that the appellants had caused those injuries. Immediately thereafter, he collapsed. P.W. 1 went to the house of the village Gramarakhi and informed about the incident. Thereafter, he proceeded towards the town police station. The O.I.C. Sasan Police Station (P.W.26) under whose Jurisdiction the incident had occurred came incidentally to the Town Police Station, before whom P.W. 1 lodged the report. The O.I.C. Sasan Police Station on the verbal information of P.W.1 recorded the report, which he treated as FIR. The informant has proved the FIR which has been marked as Ext. 1. In the night a constable was deputed to guard the dead body. On the following morning, P.W.26, proceeded to the scene of occurrence, held inquest over the dead body, despatched the same for post mortem examination, seized blood stained earth and sample earth, examined the witnesses, and arrested the appellants. The appellants while in custody made a discovery statement, on the basis of which the sword (M.O.I) and the Bhujalis (M.Os. II and III) were seized. The blood stained earth, sample earth, weapons of offence and other incriminating materials were, sent to the Chemical Analyst for scientific examination. On closure of investigation, charge-sheet was submitted against the appellants under Sections 302/34, IPC and 506/34, IPC for causing the murder of Minaketan and criminal intimidation to P.W. 1.
3. The trial Court on careful consideration of the evidence was, however, inclined to convict the appellants under Section 302/34. IPC and acquit them of the charge under Section 506/34, IPC. Being aggrieved by the judgment of conviction and sentence, the appellants have filed this appeal.
4. Mr. B. P. Ray, learned counsel appearing for the appellants by criticising the judgment of the trial Court strongly urged that the trial Court should not have laid undue emphasis on the testimony of P.W.1. Apart from the fact that P.W. 1 is a close relation of the deceased, there are other inconsistencies and contradictions between the F.I.R, story and his evidence. Thus in the aforesaid situation, the testimony of P.W. 1 does not inspire belief.
5. A strong contention has been raised by the appellants regarding the improbability of the evidence of P.W. 1 to depose that immediately after the assault he reached at the spot being Informed by P.W.5 and there the deceased made dying declaration uttering the names of the appellants to be his assailants in presence of P.Ws. 3 and 4. It has been further highlighted that the prosecution has not led any evidence whatsoever as to how the dead body of Minaketan was lying at the point C indicated in the sketch map (Ext. 32) though P.W. 5 has stated to have seen the assault on the deceased in front of his betel shop. The distance between the betel shop and the place where the dead body lying was 100 yards as indicated in the spot map whereas the distance from the house of the deceased to that of the place where the dead body lying was 350 yards. It is impossible and imaginary to conceive that the appellants would have stood static near the betel shop after they had assaulted Minaketan. There has been no evidence from the side of the prosecution that after the assault near the betel shop the appellants had chased Minaketan up to a distance of 100 yards. There has been no streak of blood from the betel shop to that of the place where the dead body was found.
6. From the submission of the appellants it is noticed that P.W.5 having seen the assault on the deceased by some miscreants of village Dumerpali, went and informed his father (P.W.1) that his uncle was being assaulted by those persons. Such fact has also been mentioned in the F.I.R. If that be so, how could P.W.5 not utter the names of the appellants ? It is the case of the prosecution that the incident had taken place around 4.00 P.M. on 12.10.1993 and immediately thereafter. P.W, 1 proceeded to the Sambalpur Town Police Station. But the O.I.C., Town Police Station assured P.W. 1 that P.W.26, the O.I.C. Sasan P.S. would reach there. Within hours of O.I.C., Sasan P.S. (P.W.26) reached at Town P.S. around 5.30, P.M. If that be so, how was the F.I.R. recorded at 8.30 P.M. The above aspects raise a serious doubt about the credibility of the prosecution story for which the appellants are entitled to be acquitted under the benefit of doubt.
7. Mr. Mohapatra learned Additional Government Advocate while supporting the judgment of the trial Court has strongly Urged that P.Ws. 1, 5 and 11 are closely related to the deceased. There might be some incident prior to the occurrence. But it cannot be said that due to the other prior incident a false case would be initiated against the appellants implicating them in a heinous crime like murder. A relation of the deceased will never make any attempt to see the real culprits escape and implicate innocent persons as perpetrators of the crime. The discrepancies and inconsistencies in the statement of the prosecution witnesses are minor and they do not affect the substratum of the prosecution story. Merely because there are some inconsistencies if such inconsistencies do not shake the credibility of the prosecution story, it should not be viewed with suspicion. There was recovery of weapons of offence under Section 27 of the Evidence Act as the appellants led the I.O. (P.W.26) to the place of discovery and gave recovery of the said weapons. The trial Court had the opportunity to mark the demeanour of the witnesses, believed their version and convicted the appellants for commission of murder of Minaketan, Accordingly, the appeal having no merit, should be dismissed.
8. Upon hearing the rival contentions raised by both parties, we have examined mainly the evidence of P.Ws. 1, 5, 11 and 26. P.W.1 is the brother of the deceased. His statement embodied in the case record discloses that on 12.10.1993 at 4.00 P.M. his son Kailash Behera (P.W.5) came and told him that some persons of village Dumerpali were assaulting the deceased Minaketan. He then proceeded to the place of occurrence which was in front of the betel shop of the deceased and also opposite to the M.E. School of his village. His brother was lying in a pool of blood at some distance from his shop and was struggling for his life. When P.W. 1 intended to raise an outcry seeking help of others, appellant Gaurishankar threatened him to do away with his life, if he came to the rescue of his brother and raised a sword to assault him. He, out of fear, returned to his house and informed the Gramarakhi and the Ward Member. We are at a loss to understand, though P.W. 1 claimed to have informed the Gramarakhi and the ward member, how they had been withheld from being examined as witnesses ? His statement further reveals that he went to the Sambalpur Town Police Station, but the O.I.C. of that P.S. advised him to go to Sasan Police Station. P.W. 1 explained that if he dared to proceed to Sasan P.S., the appellants might attack him. Thus, the O.I.C. Town P.S. advised him to stay back inasmuch as the O.I.C. Sasan P.S. was expected to reach Town P.S. A few moments thereafter, the O.I.C. Sasan P.S. reached at the Town P.S. to whom P.W. 1 narrated the incident. But the Police Officer asked him to proceed to the spot and necessary inquiry had taken place in the same night. After inquiry by P.W.26, his statement was recorded which was treated as FIR, marked as Ext. 1. But on the subsequent day inquest over the dead body was held. From the examination-in-chief, it has however, not been disclosed that P.W.1 had seen all the appellants assaulting the deceased. Nor had he seen the other appellants except Gaurishankar, who hurled threats at P.W. 1 if he dared to come to the rescue of Minaketan. From this, we cannot assume that he (Gaurishankar) had assaulted the deceased.
9. From the evidence it has been established that P.W.2 was present in Town P.S. around 5.30 P.M. In the F.I.R. there has been an endorsement by him that he received the same at 8.30 P.M. on these same day. If the testimony of P.W.1 is carefully considered, it would suggest that the F.I.R. was lodged after P.W.26 visited the spot and made preliminary enquiry. Thus, it cannot be said that the F.I.R. was handed over to P.W. 26 in Sambalpur Town P.S. From the cross-examination of P.W.1, it has been elicited that till the date of hearing, he never cared to read the contents of the F.I.R., Ext. 1.
10. Be it noted here that the version of P.W. 1 suggested that he learnt the names of the appellants from the deceased. Minaketan. On a combined reading of the statement of P.Ws. 1 and 5, it could be gathered that after P.W. 1 learnt about the incident from P.W.5, he rushed to the spot. In the examination-in-chief, he described the spot to be in front of the betel shop of his deceased brother. P.W.5 after seeing the assault went to his house and informed his father P.W. 1 by covering a distance of half a kilometre from the place of occurrence and P.W. 1 after knowing the incident reached near the betel shop. In the process, it must have taken more than 20-30 minutes. It is normally not expected that the appellants would be still present after committing the offence, to give a chance to others to identify them.
11. From the evidence of P.W. 20, Lecturer, F.M.T. Department of Burla Medical College and Hospital, it is revealed that the injured had received 26 injuries. All the injuries were suggested to have been caused by sharp cutting weapon resulting in incised wounds. Blood must have oozed out from all the injuries and one can normally expect that a person having such type of injuries would not survive for a long time. According to the doctor's opinion the death was due to shock resulting from haemorrhage, from which a reasonable inference can be drawn that within few minutes, he could have died.
12. Keeping the condition of the injured in mind, now we shall have to examine whether the dying declaration alleged to have been made by the deceased uttering the names of the appellants could be believable. P.W.1 had claimed that the deceased made such dying declaration in presence of P.Ws. 3 and 4. "The situation in which a man is on death bed is so solemn and serene", is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Court insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of Imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailants. Keeping the aforesaid principle in mind, let us now advert to the statement of P.W.1. From his testimony, it has transpired that immediately after he arrived at the scene of occurrence, he took the deceased to his lap and asked him the names of his assailants, to which Minaketan uttered the names of the appellants and immediately collapsed. Thus, it can be very well presumed that he must not be in a fit state of mind as he was at a collapsing state. The dying declaration made by the deceased, as claimed by P.W. 1, is not credible inasmuch as only after uttering the names of the appellants he collapsed. How can it be expected that he survived only to utter the names of the appellants and thereafter to collapse ? From the evidence it has also transpired that he was struggling for his life at the time when P.W.1 went to the place of occurrence.
13. Even assuming the statement of P.W. 1 to be true, it is found from the spot map that the dead body was lying 100 yards away from the betel shop of Minaketan. But the evidence is silent as to at which place the deceased made such dying declaration, that is, whether in front of the betel shop or at the point 'C' noted in the spot map (Ext. 32). According to P.W.1. P.Ws. 3 and 4 were present at the time of such dying declaration. But P.W.3 even disowned his earlier statement and stated that he did not know the appellants or anything regarding the occurrence. In cross-examination by the defence, it was brought out that one month after the death of Minaketan, P.W.3 was called to the police station and was examined. It is no doubt true that his statement was recorded under Section 164, Cr.P.C. but P.W.3 having resiled from his statement while being examined in Court, the statement so recorded under Section 164. Cr.P.C. does not come to the rescue of the prosecution in order to fasten the guilt against the appellants. Similarly, the evidence of P.W.4 does not establish about the dying declaration said to have been made by Minaketan. In the above background, the dying declaration before P. W. 1 as claimed by the prosecution does not deserve any credibility.
14. P.W.5 was a child witness. He was closely related to the deceased. From the F.I.R. it is gathered that he claimed to have seen some persons of Dumerpali assaulting his uncle. The Court should be on guard while examining a child witness. At least it should ascertain the mental capacity of such witness before recording his statement. It is found that no such test was adopted before recording the statement of P.W.5. It is quite likely that there is every chance of a child witness being tutored by the prosecution. In this case, P.W.5 is none other than the nephew of the deceased. Therefore, such possibility cannot be ruled out. Since in the F.I.R. there was a narration that some people of Dumerpali had assaulted his uncle, how in his evidence, the name of these appellants could be described. Therefore, this being a subsequent development, it would be hazardous and dangerous to rely on the version of P.W.5, that he informed his father narrating participation of the appellants in assaulting his uncle.
15. The testimony of an eye-witness cannot be relied upon like a ritualistic observance even such statement is incredulous. The witness being a relation of the deceased and having strained relationship with the accused persons before the incident can persuade the Court of facts to be on its guard and cautious while evaluating the worth of his testimony. Thus, the evidence of P.W.5 also does not repose any confidence while determining the culpability of the appellants.
16. P.Ws. 6 and 10 did not support the prosecution case. P.W.11 the father of the deceased had claimed to have learnt about the participation of the appellants from P.W.5. As the evidence of P.W.5 has already been discarded on account of exaggeration and subsequent improvement, we feel it unsafe to rely on the evidence of P.W.11. In addition to that he has not claimed to have gone to the spot immediately after the occurrence. The evidence of P.W. 12 has been pressed into service for proving the seizure of the alleged weapons of offence from the possession of the appellants while in custody. From his statement, it has transpired that the weapons of offence like M.Os. I, II and III were recovered from the possession of the appellants Gaurishankar, Tarachand and Surya Padhi. After seizure of such weapons of offence those were sent to Serologist for scientific examination, but no incriminating materials could be noticed on such weapons of offence. Therefore, even assuming that such recovery had been made from the possession of the appellants; since no incriminating material was noticed on the weapons seized, it cannot throw any light while determining the participation of the appellants.
17. Turning to the evidence of P.W.20, it seems that he conducted autopsy over the dead body of Minaketan, son of Trinath Behera and found the following injuries:
(i) Stab wound upper eye lid medical aspect.
(ii) Incised wound right side of nose.
(iii) Incised wound 1 cm. to injury No. 2.
(iv) Chopped wound left elbow.
(v) Chopped wound on left fore arm.
(vi) Incised wound on left fore finger distel phalanx with fracture.
(vii) Incised wound lateral aspect left thigh.
(viii) Incised wound on front of left leg 6 cm above left ankle, (ix) Incised wound 5 cm above injury No. 8.
(x) Incised wound medical aspect of 19 ft. knee.
(xi) Abrasion medical aspect left knee.
(xii) Stab wound medical aspect of right leg.
(xiii) Chopped wound on the front of right leg with fracture bone.
(xiv) Chopped wound lateral aspect of right knee with fracture bone.
(xv) Chopped wound 4 cm. above incised wound No. 14.
(xvi) Chopped wound right wrist medical aspect with fracture ulna. Cut of ulnar artery 2.5 cm. deep.
(xvii) Incised wound on right forearm.
(xviii) Incised wound on right side of chest.
(xix) Chopped wound on right deltoid.
(xx) Chopped 1 cm. below to injury No. 19.
(xxi) Incised wound 2 cm. below injury No. 20.
(xxii) Incised wound on right axila.
(xxiii) Incised wound right side back of lumbar region.
(xxiv) Abrasion middle of back.
(xxv) Stab wound left side of chest 6th space 1 cm.
(xxvi) Incised wound scalp bone deep.
(xxvii) Subdural clot left pariatal region.
18. According to P.W.20, the death of Minaketan was due to shock resulting from haemorrhage as a combined effect of the aforesaid injuries.
19. P.W.23 was the constable who proceeded to the spot on 12.10.1993 and guarded the dead body. P.W.26, is the I.O. in this case, who claimed to have received the F.I.R. on 12.10.1993 at 5.30 P.M., which is rather contradicted by the evidence of P.W. 1, who claimed to have given the F.I.R. after P.W.26 went to the village.
20. On a combined reading of the evidence of P.Ws. 1, 5, 11, 20 and 26 we find that although Minaketan met a homicidal death, but the prosecution was unable to connect the appellants with the crime. Accordingly, in the above conspectus of the case, we, therefore, disagree with the observation of the trial Court, and acquit the appellants of the charge under Section 302/34, IPC under the benefit of doubt.
21. In the result, the appeal is allowed and the impugned order is set aside. Since the appellant No. 2 is on bail, his bail bond is discharged. The appellant Nos. 1. 3 and 4 be set at liberty forthwith.
P.K. Misra, J.
22. I agree.