Orissa High Court
Manas Kumar Behera vs State Of Orissa on 24 February, 2015
Author: S.K. Sahoo
Bench: Vinod Prasad, S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL APPEAL NO. 308 OF 1998
From judgment and order dated 26.9.1998 passed by the
Additional Sessions Judge, Bhubaneswar in S.T. Case No.3/75
of 1996.
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Manas Kumar Behera ........ Appellant
-Versus-
State of Orissa ....... Respondent
For Appellant: - M/s. B.Mishra, R.Mishra,
S.Mishra, D.Sahu,
P.K.Sahoo,B.K.Mishra,
O.P.Sahu,B.S. Mishra
For Respondent: - Mr. Sk. Zafarulla,
Addl. Standing Counsel
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument.16.2.2015 Date of Judgment-24.02.2015
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S.K.SAHOO, J.The appellant was charged under section 302 Indian Penal Code in the Court of learned Additional Sessions Judge, 2 Bhubaneswar in S.T. Case No.3/75 of 1996 for committing murder of his grandmother Nirupama Behera (hereafter "the deceased") on 26.10.1995 at about 7 a.m. at Bapujinagar, Bhubaneswar. He was further charged under section 307 Indian Penal Code for attempting to commit murder of his grandfather Akulananda Behera (P.W.4) on the same day, time and place.
The learned trial court vide impugned judgment and order dated 26.9.1998 found the appellant guilty under sections 302 and 323 I.P.C. and accordingly convicted him of such offences and sentenced him to undergo imprisonment for life under section 302 I.P.C. No separate sentence was awarded for offence under section 323 I.P.C.
2. The prosecution case as per the F.I.R. lodged by Akulananda Behera (P.W.4) on 26.10.1995 at about 8 a.m. at Capital Police Station, Bhubaneswar, in short, is that the informant was staying in his house situated at Plot No.229, Bapujinagar, Bhubaneswar with his wife (deceased) who was aged about 74 years. His elder son Birendra was staying at his village Bairagipada with his family members and he was a cultivator. The younger son of the informant Rabindra Kumar Behera was staying in America with his family. Birendra tried to forcibly occupy the house of the informant at Bapujinagar and 3 when the informant and the deceased protested, they were threatened with dire consequences. On 17.9.1995 and 17.10.1995 Birendra and his eldest son Manas Kumar Behera (appellant) came to the residential plot of the informant and tried to forcibly occupy the same. The informant protested for which Birendra attempted to kill him and the appellant also threatened to kill the informant by a vegetable cutter. At the instance of the local gentlemen namely Surendra Narayan Sarangi (P.W.2), Balaram Mohanty and others, the matter was pacified. Birendra took away his KVP Certificate as well as post office pass book on 19.10.1995 and assured not to create any disturbance in future and a written agreement to that effect was also executed.
It is the further prosecution case as per FIR that on 26.10.1995 at about 7 a.m. while the informant had been to latrine, he heard shout "Bopalo Mali" and coming out of the latrine, the informant saw the appellant was assaulting the deceased mercilessly by means of a Katha Falia (wooden plank) as a result of which the deceased had sustained bleeding injuries on her head and was in a senseless condition. When the informant challenged the appellant, he was pushed into the bath room and assaulted on his head with the said wooden plank by the appellant for which he also received some injuries and lost one tooth. As 4 the appellant closed the bath room door from outside, the informant shouted for help through the window and some persons hearing his shout came and opened the door and brought him outside.
3. On receipt of such FIR from P.W.4, the Inspector-in-charge of Capital Police Station namely Manoranjan Mohanty (P.W.8) registered Capital P.S. Case No.715 of 1995 under section 307 IPC on 26.10.1995 and took up investigation. He issued requisition for the medical examination of P.W.4 and his wife (deceased) and proceeded to Capital hospital where he found the deceased lying in the Female Surgical Ward in serious condition. P.W.8 also issued requisition to the Medical Officer for recording the dying declaration of the deceased but it could not be recorded as she was unconscious. The deceased was shifted to S.C.B. Medical College and Hospital, Cuttack on the very day for better treatment. P.W.8 visited the spot at 8.30 a.m. on 26 10.1995 and prepared spot map Ext.9. On his requisition, the Scientific Officer visited the spot and collected blood stained earth, sample earth from the spot which were seized along with a piece of wooden bar and tooth of P.W.4 under seizure list Ext.4. On 26.10.1995 P.W.8 seized one agreement being produced by P.W.4 under seizure list Ext.3. P.W.8 received information that the deceased expired at 5 S.C.B. Medical College and Hospital on 26.10.1995 at about 9 a.m. and accordingly the case was converted to one under section 302 I.P.C. The appellant was arrested and forwarded to the Court. Prayer was made by the I.O. before learned S.D.J.M., Bhubaneswar to send blood stained wooden plank, blood stains collected in a filter paper, sample filter paper, blood stained scrapping collected from bath room and sample scrapings to Forensic Science Laboratory, Rasulgarh for chemical examination in sealed packet. After completion of investigation, charge sheet was submitted against the appellant.
4. The defence plea is one of denial. It is pleaded by the appellant that due to land dispute, he has been falsely implicated in the case.
5. In order to prove its case, the prosecution examined nine witnesses.
P.W.1 Dr. Ashok Kumar Patnaik was the Asst. surgeon attached to Capital Hospital who first treated the deceased Nirupama Behera and noticed some injuries vide injury report Ext.1. He opined that the injuries are possible by split firewood (Katha Falia).
P.Ws.2 Surendra Narayan Sarangi stated about the previous dispute between the informant on the one hand and the appellant 6 and his father on the other. He further stated that on the date of occurrence when he arrived at the spot hearing hullah, the informant disclosed before him regarding the assault made by the appellant on the deceased as well as on him by means of a wooden plank and putting him inside the latrine. He is a witness to the seizure of wooden plank, cotton pieces stained with blood and one tooth of the informant under different seizure lists.
P.W.3 Biraja Prasad Roy is a post-occurrence witness who stated regarding the disclosure made by the informant before him regarding assault on the deceased as well as on him by the appellant.
P.W.4 Akulananda Behera is the informant in the case and he is an eye witness to the occurrence and also an injured in this case. He is also a witness to the seizure of agreement vide Ext.2 and different articles.
P.W.5 Debraj Bhuyan was the A.S.I. of Police, Mangalabag Police Station who stated about the registration of Mangalabag P.S. U.D. Case No.575 of 1995 on receipt of causality memo from the Neurosurgery Dept., S.C.B. Medical College and Hospital, Cuttack. He conducted inquest over the dead body of the deceased and proved inquest report Ext.7. He also sent the dead 7 body for post mortem examination and subsequently received the post mortem report.
P.W.6 Nabakishore Mahalik is the son-in-law of the deceased who took the deceased first to Capital Hospital, Bhubaneswar and then to S.C.B. Medical College & Hospital, Cuttack for treatment.
P.W.7 was the Asst. Surgeon of Capital Hospital who examined the informant on police requisition on 26.10.1995 and proved his report Ext.6/1.
P.W.8 Manoranjan Mohanty was Inspector-in-charge, Capital Police Station who is the Investigating Officer in the case.
P.W.9 Dr. Nayan Kishore Mohanty was the Asst. Professor, FMT, S.C.B. Medical College and Hospital, Cuttack who conducted post mortem examination over the dead body of Nirupama Behera and proved his report vide Ext.11.
No witness was examined on behalf of the defence. The prosecution exhibited 11 documents and also marked one material object i.e., Katha Falia (wooden plank) as M.O-I. Ext.1 is the injury report, Ext. 2 is the agreement, Exts.3 and 4 are the seizure lists, Ext.5 is the written FIR, Ext. 6/1 is the injury report of P.W.4, Ext.7 is the inquest report, Ext.8 is the dead body challan, Ext.9 is the spot map with index, Ext.10 is the 8 forwarding letter of S.D.J.M., Bhubaneswar for chemical examination, Ext.11 is the post mortem report and Ext.12 is the chemical examination report.
6. The learned counsel for the appellant contended that the learned trial court should not have relied upon the solitary testimony of P.W.4 to convict the appellant more particularly in view of hostile relationship between the parties. He further contended that if the prosecution case is that due to civil dispute and to forcibly occupy the house of the informant at Bapujinagar, the appellant killed the deceased, he would not have spared the informant to become a witness against him.
The learned Additional Standing Counsel Sk. Zafarulla on the other hand submitted that the evidence of P.W. 4 is clinching and trustworthy which is corroborated by P.W.2 and P.W.3 and therefore the learned trial court has not committed any illegality in convicting the appellant.
7. Let us first discuss how far the prosecution has proved that the deceased met with a homicidal death.
Apart from the inquest report Ext.7, the prosecution relies upon the evidence of P.W.9 Dr. Nayan Kishore Mohanty who 9 conducted autopsy over the dead body of the deceased and found the following external injuries:-
(i) A scalp haematoma with swelling of size 7 c.m. x 7 c.m. X 2 c.m. situated on left parietal eminence 5 c.m.
above the root of left ear;
(ii) Two lacerated wounds of size 5 c.m. X 0.5. c.m. X bone deep and 4 c.m. X 0.5 c.m. X bone deep situated in a 'Y' shape manner on the left side of occipito- mastoid region of the head where the surrounding scalp tissue looking contused with haematoma and swelling formation of size 12 c.m. X 10 c.m. X 2 c.m;
(iii) Abraded contusion where the abrasion was 2 c.m.X 1.5. c.m. situated over the contused scalp haematoma of size 10 c.m. X 10 c.m. placed on the right posterior parietal region 8 c.m. above the mastoid prominence.
(iv) Contusion looking bluish black of size 3 c.m. X 3 c.m.
situate just behind the right ear on mastoid region.
(v) Contusion of 5 c.m. X 3 c.m. looking bluish black situated on the nape of the neck on the left side of the midline transversely placed;
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(vi) Abraded contusion 10 c.m. X 2 c.m. with an incised looking lacerated wound on its proximal and of size 1 c.m. X 0.4. c.m. X skin deep extending on the dorsal aspect of right hand from the ulnar tuberosity diagonally to reach up to the knuckle of right index finger where the dorsam of right hand was swollen diffusely;
(vii) Contusion of scalp bluish black colour with haematoma formation of size 4 c.m. X 2 c.m. situated along the sagittal line on left side vertex adjacent to the midline;
(viii) Abraded contusion 3.5 c.m. X 2 c.m. looking bluish black situated vertically on the dorsum of left hand along the first inter metacarpal space where the dorsum of left hand was diffusely swollen;
(ix) Parallel contusion 4 c.m. x 1 c.m. with intervening normal skin of 1 c.m. situated on the back in between the two medial angles of scapula:
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(x) Parallel abraded contusion 4 c.m. X 1 c.m. each being intervened with a normal skin of 1 c.m. broad situated over the left scapula.
Internal Injuries
(i) The under surface of the scalp was contused corresponding to external scalp injuries and associated with sub-scalpal haematoma involving left parietal left occipitomastoid right posterior parietal and right mastoid region;
(ii) The left temporalis muscle shows infiltration of extra vassated blood and the muscle was contused;
(iii) Fissure fracture extending from left side external occipital protuberance runs onwards to the vertex from where it runs laterally and interiorly crossing the left coronal suture and runs downwards to involve the lateral aspect of left frontal bone where it involved the roof of left orbit in left anterior cranial fossa through the retro orbital pad of fat was protruding and from its posterior and it extends to the right side to involve the 12 occipital crest and ends at right interior external occipital proturbance and involves the occipital fossa;
(iv) Contusion of left frontal lobe of brain with surface laceration and its inferior surface;
(v) Contusion of right frontal lobe on its tip of size 4.5 c.m. X 3 c.m. and on its lateral aspect for 4.5. c.m. X 4.5. c.m.
(vi) Contusion of left temporal lobe of brain on outer surface of size 4.5. c.m. X 4 c.m. and on its tip for 2 c.m. X 2 c.m.
(vii) The posterior inferior surface of the left cerebrum was contused;
(viii) There was gross oedema of brain tissue;
(ix) There was fracture of 3rd and 4th metacarpal of right hand with extravasation into the subcutaneous tissue of dorsum of right hand.
P.W.9 opined all the injuries both internal and external to be ante mortem in nature and caused by hard and blunt force impact to the head. Death was opined to be cranio-cerebral 13 injuries. All the injuries found on the dead body of the deceased were opined to be sufficient to cause death in ordinary course of nature. The post mortem report has been marked as Ext.11. There is no cross examination to P.W.9. The learned counsel for the appellant also did not challenge the findings of P.W.9 in the post-mortem report. After going through the evidence on record particularly the evidence of P.W.9 and post mortem report Ext.11, we hold that the prosecution has conclusively established that the death of the deceased was homicidal in nature and it was due to cranio-cerebral injuries.
8. The star witness on behalf of the prosecution is none else than P.W.4 who is not only an injured eye witness but also the grandfather of the appellant.
Being an injured, the presence of P.W.4 at the spot cannot be doubted. The learned counsel for the appellant contended that due to civil dispute, the appellant has been falsely entangled in the crime. It is difficult to accept that P.W.4 being the grandfather would implicate his grandson (appellant) falsely in a case of murder. Merely because there was civil dispute between the parties, the same by itself cannot be a ground to discard his evidence although while accepting the same, it is the solemn duty 14 of the Court to make a deeper probe and scrutinize the evidence with more than ordinary care and caution. It is well settled principle of law that enmity is a double-edged weapon. It can be a ground for false implication. It can also be a ground for assault. P.W.4 has stated as to how he was assaulted by the appellant inside the latrine. The injury report of P.W.4 proved by P.W.7 corroborates the evidence of P.W.4.
The evidence of P.W. 4 that the appellant dealt blows after blows on the deceased including her head is corroborated by the post mortem report Ext.11.
The immediate disclosure made by P.W.4 before P.W.2 and P.W.3 who arrived at the spot hearing hullah is admissible as res gestae under section 6 of the Evidence Act. Res gestae of a crime includes the immediate area and all occurrences and statements immediately after the crime. Statements made within the res gestae of a crime are admissible on the basis that spontaneous statements in the circumstances are reliable. It is an exception to the general rule of admissibility of hearsay evidence. The rationale of making certain statements or facts admissible under Section 6 of the Evidence Act was on account of spontaneity and immediacy of such statement or fact, in relation to the "fact in 15 issue" and thereafter, such facts or statements are treated as a part of the same transaction. In other words, to be relevant under Section 6 of the Evidence Act, such statement must have been made contemporaneously with the fact in issue, or at least immediately thereupon, and in conjunction therewith. If there is an interval between the fact in issue and the fact sought to be proved, then such statement cannot be described as falling in the "res gestae" concept. The test to determine admissibility under the rule of "res gestae" is embodied in words "are so connected with a fact in issue as to form a part of the same transaction". It is therefore, that for describing the concept of "res gestae", one would need to examine, whether the fact is such as can be described by use of words/phrases such as, contemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. The illustration (a) under Section 6 of the Evidence Act, especially in conjunction with the words "are so connected with a fact in issue as to form a part of the same transaction" implies that it must be contemporaneous with the acts and there should not be interval which would allow fabrication.
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Section 134 of Indian Evidence Act is based on the maxim that "evidence has to be weighed and not counted". The Court is concerned with the quality and not the quantity of the evidence for proving a fact. There is no legal impediment in convicting a person on the testimony of solitary witness provided that the evidence is clear, cogent, trustworthy, unimpeachable and above board. If the evidence of the eye witness is wholly reliable, the Court can have no difficulty in accepting such evidence and convicting an accused even without any corroboration.
The testimony of P.W.4 clearly indicates the motive on the part of the appellant to commit the crime. Being an injured, his presence at the spot cannot be doubted. His evidence is corroborated by the medical evidence. His conduct in disclosing the occurrence immediately before P.W. 2 and P.W.3 naming the appellant as the assailant puts stamp of truthfulness on his version. Though he was subjected to lengthy cross examination by the defence but nothing substantial has been elicited to discredit his version. P.W.9 has categorically stated that the external injuries on the head and hand of the deceased can be caused by the weapon like M.O. I. The wooden bar which was the weapon of offence was sent for chemical examination and human blood was found on the same.
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In view of the evidence of P.W.4 and the medical evidence brought on record by the prosecution coupled with prompt lodging of First Information Report by P.W.4 and other surrounding circumstances, we are of the view that there is no infirmity or illegality in the appreciation of evidence by the learned trial Court in convicting the appellant.
9. The learned counsel for the appellant submitted that the appellant was an young boy of 21 years of age at the time of occurrence and he was a student and perhaps being misguided by his father on the spur of moment, he might have assaulted the deceased due to previous civil dispute and therefore the case may at best come under section 304 Part-I IPC. We are not at all impressed with the argument in as much as the manner in which the appellant has mercilessly assaulted the deceased who was an aged lady causing number of external and internal injuries clearly indicates that the action is nothing but culpable homicide amounting to murder. Though there was some previous dispute but on the date of occurrence there was no quarrel or any kind of grave and sudden provocation. The appellant who was staying in a different village in a different district came prepared and assaulted the deceased as well as P.W.4. The intention of the appellant to commit the murder is clear not only from the nature 18 of injuries, part of the body where the injuries were caused but also the weapon used for causing such injuries.
10. In view of the discussions and independent analysis of the evidence on record, we find that the learned trial Court has rightly convicted the appellant under section 302 IPC and sentenced him to undergo imprisonment for life. The learned trial Court though framed charge against the appellant also under section 307 IPC for assaulting P.W.4 but held that such offence is not attracted as P.W.4 has sustained simple injuries as stated by the doctor P.W.7 and there is also no evidence if any attempt was made to do away with the life of P.W.4 even after he was confined in the attached bath room (latrine). The learned trial Court held that the evidence led in the case cannot be considered sufficient to establish with certainty the existence of requisite intention or knowledge to make the appellant liable under section 307 IPC and accordingly held the appellant guilty under section 323 IPC but awarded no separate sentence. We are of the view that the finding of the learned trial Court in convicting the appellant under section 323 IPC is contrary to the evidence on record. P.W.4 has not only stated about the assault on him by the appellant with the Katha Falia but also stated that the police also seized his tooth, which was uprooted being assaulted by the appellant in the latrine 19 where he was confined. The seizure list Ext.4 dated 26.10.1995 also indicates about the seizure of one tooth of P.W.4. P.W.2 also states about the seizure of one tooth of P.W.4. Section 320 IPC defines "grievous hurt". Dislocation of tooth which comes under clause "seventhly" under section 320 IPC is "grievous hurt". Therefore we find that the proper section attracted will be section 325 IPC and not 323 IPC. Since, we find that the conviction of the appellant under section 323 IPC is unsustainable, we set aside the same and instead, convict the appellant under section 325 IPC, and sentence him to undergo rigorous imprisonment for six months for that offence. Both the sentences awarded to the appellant shall run concurrently.
In the net result, we alter the conviction of the appellant from section 323 IPC to section 325 IPC and sentence him to undergo six months' Rigorous Imprisonment for that offence. We, however, find no reason to set aside the conviction of the appellant under section 302 IPC and sentence of life imprisonment, as imposed by the impugned judgment and order.
With the aforesaid alteration, the appeal stands dismissed. The appellant is on bail as per the order of this Court dated 17.11.2005 passed in Misc. Case No.20 of 2005. He is 20 directed to surrender forthwith before the trial Court to serve out the sentence awarded by the trial Court failing which the learned trial Court shall proceed against the appellant in accordance with law.
Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.
Accordingly the criminal appeal is dismissed.
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S.K. Sahoo, J.
VINOD PRASAD, J. I agree.
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Vinod Prasad, J.
Orissa High Court, Cuttack
The 24th February 2015/ Pravakar