Orissa High Court
Nimai Samal vs State Of Orissa on 14 April, 1988
Equivalent citations: 1989CRILJ420
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. Accused Nimai stood charged under Sections 302, 324 and 326, Penal Code, for having committed the murder of his son in law, Prafulla Prasad and for causing grievous hurt by means of a sword to his "Samudhi", Jhulan Prasad and for causing simple hurt to his daughter Pramila. The learned Sessions Judge by the impugned judgment acquitted the accused of the charge under Section 302, Penal Code, as well as of the charge under Section 326, Penal Code, in respect of the alleged grievous injury caused to Jhulan Prasad. He was, however, convicted under Section 326, Penal Code, for assaulting the deceased and has been sentenced to undergo rigorous imprisonment for seven years. He has also been convicted under Section 324, Penal Code, for having caused hurt to Jhulan Prasad as well as to Pramila by means of dangerous weapon and has been sentenced to rigorous imprisonment for two years on each count. The Sessions Judge had further directed that the sentences shall run concurrently. The appellant in the Jail Criminal Appeal assails the conviction and sentence passed against him. The State has preferred the Government Appeal against the order of acquittal of the appellant of the charge under Section 302, Penal Code, as well as of the order of acquittal of the charge under Section 326, Penal Code.
2. The prosecution case, briefly stated, is that the deceased was the son-in-law of the accused-appellant. The daughter of the appellant, P.W. 3, had married the deceased against the will of her father which the accused did not relish. On the date of occurrence, i.e. 30-11-1980 at 8.00 p.m. the deceased entered into the house of his father-in-law. The accused and his son then closed the doors from inside and assaulted the deceased, the accused having assaulted the deceased with a sword and his son having assaulted with a Tangi as a result of which the deceased fell down in a pool of blood inside the house of the accused-appellant and died at the spot, P.W. 1 is the sister of the deceased. She saw the incident of assault by peeping through a hole of the entrance door and then went and informed her father. When the father came to the house of the accused, he saw the accused-appellant in front of his house. When P.W. 3 who is the daughter of the appellant and wife of the deceased came running in search of her husband having learnt that her husband was being assaulted, the appellant assaulted her. The appellant also assaulted Jhulan Prasad (P.W. 10), the father of the deceased, and both P. Ws. 3 and 10 sustained injuries on receiving the blows from the appellant. Thereupon, P.W. 10 along with some others tied up the appellant to a wooden pole after overpowering him and then lodged the F.I.R. in Colliery Police Station. The Investigating Officer (P.W. 16) registered a case and directed the constable (P.W. 15) to go to the spot and guard the dead body. Thereafter the Investigating Officer himself rushed to the spot and found the deceased lying dead inside the quarters of the accused- appellant and the sword (M.O.I.) was lying near the dead body stained with blood. He then arrested the appellant, but could not find any trace of his son Basanta who had absconded. The blood-stained shirt of the appellant, M.O.II, was seized in presence of the seizure witness (P.W. 14). The Investigating Officer thereafter proceeded with the investigation, examined several witnesses, sent the dead body for post-mortem examination and took several steps to apprehend the absconding accused who is the son of the appellant. On 1-12-1980, he also forwarded the accused-appellant to the Court of the Magistrate with a prayer to record his confessional statement as the accused- appellant wanted to confess his guilt. Thereupon, the Magistrate recorded the confessional statement of the accused-appellant. On completion of the investigation as the absconding accused could not be traced, the charge-sheet was filed against the appellant showing the other accused as an absconder. The accused-appellant being committed to the Court of Session by the learned Sub-Divisional Judicial Magistrate, stood his trial for the charges already mentioned.
3. To bring home the charge against the accused-appellant, the prosecution examined as many as 16 witnesses. On behalf of the defence one witness has been examined. P. Ws. 1 and 11 deposed to have seen a part of the occurrence, namely the assault by the accused-appellant on the deceased; P.Ws. 2 and 6 are the sister and brother of the deceased respectively and are post-occurrence witnesses. P.Ws. 3 and 10 are the wife and father of the deceased respectively who on approaching the house of the accused were assaulted by the accused-appellant; P.Ws. 4 and 5 are two neighbours of the accused- appellant; P.W. 7 is a witness to the inquest; P.W. 8 is the doctor who conducted the post mortem examination on the dead body of the deceased; P.W. 9 is the doctor who examined the injured RWs. 3 and 10; P.W. 12 is the Magistrate who recorded the confessional statement of the accused-appellant, the confessional statement having been marked as fixt. 1; P.Ws. 13 and 14 are two witnesses to seizure of different articles; P.W. 15 is the constable who had accompanied the dead body for post-mortem examination and P.W. 16 is the Investigating Officer.
4. Out of the two eye-witnesses to the occurrence, the learned Sessions Judge believed the evidence of P.W. 1 but discarded the evidence of P.W. 11. So far as the confessional statement is concerned, the learned Sessions Judge believed a part of the confessional statement namely that the accused dealt a sword blow on the deceased, but since there was other evidence that both accused Nimai, the appellant as well as his son Basanta had assaulted the deceased and it was not possible to find out as to which injury was caused by the accused-appellant, the Sessions Judge came to the conclusion that it was not possible to hold conclusively that the sword-blow dealt by accused Nimai was solely responsible for the death of the accused and accordingly acquitted the accused-appellant of the charge under Section 302, but as the accused-appellant was found to have given blows on the deceased by means of the sword (M.O.I.) he was convicted under Section 326, Penal Code. So far as the injuries on P.Ws. 3 and 10 are concerned, the learned Sessions Judge relying upon the statement of the injured persons together with the evidence of the doctor (P.W. 9) convicted the accused appellant under Section 324, Penal Code.
5. Mr. Nayak, the learned Counsel for the accused-appellant in the Jail Criminal Appeal contends that the confession which has been the sole basis of conviction being a retracted one and there being no corroboration to the same, the conviction of the appellant under Section 326, Penal Code, is wholly illegal. So far as the conviction of the appellant under Section 324, Penal Code, for having caused injuries on P.Ws. 3 and 10 is concerned, however, the learned Counsel does not seriously assail the same. The learned Additional Standing Counsel appearing for the State in the Government Appeal, on the other hand, contends that in view of the evidence on record, the acquittal of the accused-appellant of the charge under Section 302, Penal Code, is bad in law and cannot be sustained. In order to appreciate the correctness of the rival submissions, it is necessary to examine the evidence on record.
6. P. W. 8 is the doctor who had conducted the post-mortem examination over the head body of deceased Prafulla. He found three incised wounds on the body of the deceased and then also found the posterior aspect of the scalp had been injured with brain matter coming out. According to the doctor the death is due to massive haemorrhage as well as brain injury caused by sharp-cutting weapon and all the injuries are ante mortem in nature and they are sufficient in the ordinary course of nature to cause death. With reference to the sword (M.O.I.), he had deposed that the injuries on the dead body of the deceased could be caused by the said M.O.I. In view of the aforesaid medical evidence, it can be safely concluded that the prosecution has been able to establish the fact that the death is homicidal in nature.
7. Coming to the question as to how far accused Nimai is the assailant or not, we have the evidence of P. W. 1. She is the sister of the deceased and according to her evidence while she was passing by the house of accused Nimai, who heard some sound of assault and when she peeped through the hole of the entrance door, she found accused Nimai having a sword and accused Basanta having a Tangi and further she saw accused Niami pushing the sword on the left side of the head of the deceased and accused Basanta was standing near the deceased. She could also notice that blood was flowing. Thereafter she came running to her house and woke up her father Jhulan Prasad and informed him about the assault committed by the accused persons. When she saw the assault being committed, she of course could not know that it was her brother Prafull who was being assaulted. The comment of the defence so far as the evidence of P.W. 1 is concerned is that the witness had not stated in her earlier version under Section 161, Criminal P. C. to the police that Nimai was pushing a sword at the head of the deceased though she had said that Nimai was holding a sword. She has been confronted with that part of her earlier version and from the evidence of the Investigating Officer also that omission has been elicited. But in our opinion, the said omission would not be a material omission amounting to contradiction within the meaning of the decision of the Supreme Court in the case of Tahsildar Singh v. State of U.P. and, therefore, such an omission will not justify a finding by a Court that the witness is a self-contained liar. In the case of Matadin v. State of U.P. , the Supreme Court considered the effect of omission in statements recorded under Section 161, Criminal P. C. and observed:
The statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the court. Where the omissions are vital, they merit consideration, but mere small omission will not justify a finding by a Court that the witnesses concerned are self-contained liars.
With regard to the appreciation of evidence of a witness, in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat , it was observed by their Lordships:
Overmuch importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance, more so when the all importance 'probabilities factor' echoes in favour of the version narrated by the witnesses.
Applying the principles laid down in the aforesaid cases, we are not in a position to discard the evidence of P.W. 1 on account of the alleged omission from her earlier version to the Investigating Officer under Section 161, Criminal P. C. The next ground of attack so far as the evidence of P.W. 1 is concerned is that she is a relation of the deceased being his sister and, therefore, her evidence should be discarded outright. In this connection reliance was placed on the decision of the Supreme Court in the case of Ramratan v. State of Rajasthan as well as on two decisions of this Court, short-notes of which have been reported in (1986) 62 Cut LT (Short Notes) 84 (Kangali Swain v. State)'and (1987) 63 Cut LT (Short Notes) 39 : 1986 Cri LJ 1917 (Kuntala Misra v. State of Orissa). We are not prepared to lay down the law as contended by the learned Counsel for the accused-appellant. In the case of State of U. P. v. Hari Ram , dealing with the matter of appreciation of evidence of an interested witness, the Supreme Court has held that interestedness by itself is no ground to discard the testimony of the witness. In another case of State of U. P. v. Ballabh Das , the Supreme Court observed:
There is no law which says that in the absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest of or should not be relied upon for convicting an accused. What the law requires is that where the witnesses are interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. The evidence of interested witnesses is not like that of an approver which is presumed to be tainted and requires corroboration but the said evidence is as good as any other evidence...
In some cases, the Supreme Court has also held that from the fact the witness is a relation of the deceased, it would normally be presumed that he would not implicate falsely any other person as the assailant except the real assailant. In this connection, the observations of the Supreme Court in the case of Barati v. State of U.P. , may be aptly extracted:
....Close relatives of the deceased would normally be most reluctant to spare the real assailants and falsely mention the name of another person as the one responsible for causing injuries to the deceased...
The Supreme Court in the said case had held that the trial court was wholly in error in rejecting the evidence of the witnesses on the ground that they were related to the deceased. This being the position of law and after perusing the evidence of P.W. 1, we do not find anything that has been brought out in the cross-examinations as to impeach the trustworthiness of her evidence.
8. The next item of evidence is the confessional statement of accused Nimai. P.W. 12 is the Magistrate who recorded the confessional statement of the said accused and the confessional statement has been exhibited as Ext.1. His evidence discloses that he had taken the necessary precautions and also gave the necessary warning to the accused before recording the confessional statement. In the confessional statement, the accused clearly admitted the fact that he brought the sword which was there near the wall and gave four or five blows on Prafulla whereafter he fell down and dies. In the confession he had also stated the fact that shortly after the occurrence, P.W. 10, the father of the deceased along with one Kedar reached the spot and overpowering him tied him up with a rope after snatching away the sword from his hand. Mr. Nayak, the learned Counsel appearing for the accused-appellant, attacks the confessional statement on the ground that the same is exculpatory in nature and that it does not reflect the true story of the prosecution. There is no substance in the aforesaid submission of the learned Counsel. A bare reading of the confessional statement would indicate that the accused clearly confessed his guilt to the effect that he assaulted the deceased with the sword and gave 3 or 4 blows and there is no exculpatory part in the same. So far as the argument that the confessional statement does not reflect the true story is concerned, the learned Counsel contends that though according to the prosecution case, the son of accused Nimai was also present and assaulted, yet there has been a complete go-by to that part of the prosecution case in the confessional statement and, therefore, this does not reflect the true story. It is no doubt true that some prosecution witnesses had stated the presence of the other accused who is still absconding as well as giving of blows by him on the deceased by means of a Tangi. But non-mention of that by the accused-appellant will not make his confessional statement untrue. So far as accused Nimai is concerned, the statement recorded under Ext. 1 gets full corroboration from the evidence of P.W. 1 as well as other evidence to be discussed hereafter. In this view of the matter, there is no substance in the contention that the confessional statement does not reflect the true story of the prosecution and the said contention must be rejected.
9. The learned Counsel for the accused-appellant then urges that since the confessional statement has been retracted, it must be corroborated by other evidence before it can be accepted. So far as the retraction is concerned, the accused in his examination under Section 313, Criminal P.C. in answer to question No. 13 stated that he admitted the guilt not voluntarily but at the behest of the police. In the case of Hem Raj Devilal v. State of Ajmer , it was held by their Lordships:
The mere bald assertion by the prisoner that he was threatened, tutored or that inducement was offered to him, cannot be accepted as true without more...
The aforesaid observation applies fully to the facts and circumstances of the present case, inasmuch as apart from the answer to question No. 13 by the accused in his examination under Section 313, Criminal P. C, there is no material whatsoever to hold that accused Nimai was threatened or beaten or induced by the police to make the confessional statement.
Then again, the law requiring corroboration to a retracted confession no longer remains res Integra. In the case of Subramania Goundan v. State of Madras , it has been held:
....A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction is believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being In re Kesava Pillai ILR 53 Mad 160 : AIR 1929 Mad 837 : 1930 (31) Cri LJ 768 that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this Court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated one. Of the latest cases being 'Balbir Singh v. State of Punjab , but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. In this connection it would be profitable to contrast a retracted confession with the evidence of an approver or an accomplice. Though under Section 133 of the Evidence Act a conviction is not illegal merely because it proceeds on the uncorroborated testimony of witnesses, illustration (b) to Section 114 lays down that a court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. In the case of such a person on his own showing he is a depraved and debased individual who having taken part in the crime tries to exculpate himself and wants to fasten the liability on another. In such circumstances it is absolutely necessary that what he has deposed must be corroborated in material particulars. In contrasting this with the statement of a person making a confession who stands on a better footing, one need only find out when there is a retraction whether the statement, which was the result of remorse, repentance and contrition, was voluntary and true or not and it is with that object that corroboration is sought for. Not infrequently one is opt to fall in error in equating a retracted confession with the evidence of an accomplice and therefore, it is advisable to clearly understand the distinction between the two. The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, general corroboration is sufficient while an accomplice's evidence should be corroborated in material particulars....
This being the position of law, even if the confession of the accused can be said to be a retracted one, we find sufficient materials to substantiate the general trend of the confession and accordingly, it must be held that the confession is voluntary and true and the general corroboration received from other materials is sufficient to act upon the confession.
Apart from the evidence of P.W. 1 who is an eye-witness and who fully corroborates the confessional statement of accused Nimai that Nimai pierced the sword into the body of the deceased, we find that the dead body of the deceased was recovered from the house of accused Nimai. Further, immediately after the occurrence when the wife and father of the deceased, P.Ws. 3 and 10 respectively, approached the house of accused Nimai, accused Nimai was found standing with a sword in his hand and also prevented them from going into the house and assaulted them. The medical evidence of the doctor who had conducted the post-mortem examination on the dead body of the deceased also clearly indicates that M.O.I. the sword, could cause the injuries on the deceased. In this view of the matter, in our opinion, the confessional statement of accused Nimai as recorded under Ext. 1 can be safely acted upon.
It is not necessary for us to discuss the other evidence on record since the aforesaid materials would be sufficient to bring home the charge of murder against the accused-appellant, namely, the evidence of P.W. 1, the confessional statement of accused Nimai (Ext. 1), the presence of the dead body of the deceased in the house of accused Nimai, accused Nimai obstructing the path of P.Ws. 3 and 10 with a sword in his hand and assaulting them with the sword, and the opinion of the doctor that the injuries on the deceased could be caused by means of the sword. In our opinion, therefore, the learned Sessions Judge committed an error in acquitting accused Nimai of the charge of murder and on the facts found, it must be held that the prosecution has been able to bring home the charge against accused Nimai beyond reasonable doubt. Accordingly, the order of acquittal of accused Nimai under Section 302, Penal Code, must be .set aside and he is convicted under Section 302, Penal Code, and sentenced thereunder to undergo rigorous imprisonment for life.
We are quite conscious of the fact that the Sessions Judge has recorded an order of acquittal so far as the charge under Section 302, Penal Code, is concerned and we are also quite alive to the principles laid down by the Supreme Court with regard to the power of the High Court in interfering with an order of acquittal. But in our opinion, the reasons given by the learned Sessions Judge for recording an order of acquittal are wholly unsustainable. It has been laid down by the Supreme Court in no uncertain terms that there is no difference between the ambit of an appeal from a conviction and that of an appeal against acquittal and the procedure for dealing with the two kinds of appeals is identical and the powers of the appellate court in disposing of the appeals are in essence the same. (See Rajeswar Prasad Misra v. State of West Bengal AIR 1965 SC 1887 : 1965 (2) Cri LJ 817 and Ram Anjore v. State of U.P. , But the evidence in the present case is such that two views on the evidence are not reasonably possible. On the other hand, the prosecution evidence unerringly proves the guilt of the accused and establishes the fact that accused Nimai assaulted the deceased by means of a sword and the deceased succumbed to the injuries. Consequently, the order of acquittal of the charge under Section 302, Penal Code, must be set aside.
10. So far as the conviction under Section 324, Penal Code, for assaulting P.Ws. 3 and 10 is concerned, practically no argument has been advanced by the learned Counsel for the accused-appellant. The learned Sessions Judge relying upon the evidence of P.Ws. 3 and 10 as well as the medical evidence of P.W. 9 who examined them on police requisition has come to hold that accused Nimai is guilty of the charge under Section 324, Penal Code. After examining the materials on record, we do not find any infirmity in the same and, therefore, the conviction of accused Nimai under Section 324, Penal Code, and the sentence passed thereunder must be sustained.
11. In the result, therefore, the order of acquittal of accused Nimai of the charge under Section 302, Penal Code, is set aside and he is convicted thereunder and is sentenced to undergo rigorous imprisonment for life. The conviction of accused Nimai under Section 324, Penal Code, and the sentence passed thereunder by the learned Sessions Judge are sustained. The sentence would, however, run concurrently. The Jail Criminal Appeal is accordingly dismissed and the Government Appeal is allowed.
L. Rath, J.
12. I agree.