Orissa High Court
Dijabar Moharana vs State Of Orissa on 14 October, 2017
Author: S. K. Sahoo
Bench: B.K. Nayak, S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No. 147 Of 2004
An appeal under section 374 of the Code of Criminal Procedure
from the judgment and order dated 02.09.2004 passed by the 1st
Additional Sessions Judge, Puri in S.T. Case No.18/303 of 2003.
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Dijabar Moharana ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Gyanendra Ch. Swain
For Respondent: - Mrs. Saswata Patnaik
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE B.K. NAYAK
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 14.10.2017
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S. K. SAHOO, J.The appellant Dijabar Moharana faced trial in the Court of learned 1st Additional Sessions, Judge, Puri in S.T. Case No. 18/2013 of 2003 for offence punishable under section 302 of the Indian Penal Code on the accusation of committing patricide by killing his father Dinabandhu Moharana (hereinafter 'the 2 deceased') on 04.11.2002 at about 7.45 p.m. in the village Bharagola under the jurisdiction of Gop police station in the district of Puri.
The learned trial Court vide impugned judgment and order dated 02.09.2004 found the appellant guilty of the offence charged and accordingly convicted him of such offence and sentenced him to undergo rigorous imprisonment for life.
2. The prosecution case, as per the first information report (Ext.1) lodged by one Rajeswar Moharana (P.W.1), the elder brother of the appellant is that on 04.11.2002 at about 8.00 p.m. while he was at Bhubaneswar, he received a telephonic message from the village that the appellant had assaulted the deceased by means of a bamboo lathi on his head and killed him. The informant immediately rushed to his house and found his father lying dead on sustaining head injury. He ascertained from his family members and other co-villagers that on that day in the evening hours at about 7.45 p.m. due to family quarrel, the appellant assaulted the deceased to death by bamboo lathi.
3. P.W.11 Nityananda Jena, who was the officer in charge of Gop police station on receipt of the telephonic message about the murder, made a Station Diary entry and proceeded to 3 the spot. At the spot, P.W.1 presented the written first information report before him, on the basis of which Gop P.S. Case No.177 of 2002 was registered on 04.11.2002 under section 302 of the Indian Penal Code.
P.W.11 took up investigation of the case, examined the informant and other witnesses, visited the spot and prepared the spot map (Ext.8). He also seized the weapon of offence i.e. bamboo (M.O.I) and the wearing apparels of the deceased and also that of the appellant. The inquest over the cadaver of the deceased was conducted under inquest report (Ext.9) and it was sent for post mortem examination. P.W.12 Dr. Sarbeswar Acharya who was the Asst. Surgeon, District Headquarters Hospital, Puri conducted post mortem examination and submitted his report vide Ext.14. The Investigating Officer seized some of the incriminating articles and sought clarification from the Medical Officer who conducted post mortem examination regarding the possibility of injury by the weapon of offence seized and received the report. He made a prayer to the Court to send the material objects to the State F.S.L., Rasulgarh, Bhubaneswar for examination and opinion. After completion of investigation, on 24.02.2003 P.W.11 submitted charge sheet 4 under section 302 of the Indian Penal Code against the appellant.
4. After submission of charge sheet, the case was committed to the Court of Session after observing due committal procedure and the case was made over to the learned Trial Court for disposal in accordance with law where the learned trial Judge charged the appellant under section 302 of the Indian Penal Code on 05.06.2003 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.
5. The defence plea of the appellant is that as the deceased did not give cake to him, he assaulted the deceased on his head but he was not aware that the deceased would die.
6. In order to prove its case, the prosecution examined twelve witnesses.
P.W.1 Rajeswar Moharana is the elder brother of the appellant and he is the informant in the case. He is a witness to the seizure of utensils under seizure list Ext.2 and took the zima of those utensils under zimanama Ext.3.
P.W.2 Baidhar Muduli stated that on hearing the shout of the wife of the deceased, he rushed to the spot and found the deceased in a bleeding condition and he also stated 5 about the presence of the appellant at the spot. The wife of the deceased disclosed about the occurrence and the appellant also confessed his guilt and stated that since the deceased did not give him cake, he assaulted him with bamboo.
P.W.3 Sukanta Kumar Patra is a post occurrence witness.
P.W.4 Smt. Chhabirani Moharana stated to have come to the spot hearing hue and cry and found the deceased lying dead with bleeding injury on the head.
P.W.5 Gandhi Moharana is the mother of the appellant and she is an eye witness to the occurrence. She stated that it was the Deepavali day and she and the deceased were preparing cakes and the appellant came and asked for the cake from the deceased but the deceased told him that since Puja had not yet been performed, the cake would not be given. She further stated that the appellant all on a sudden gave a blow on the head of the deceased with a heavy bamboo and the deceased fell down. Since she did not support the further prosecution case, she was declared hostile.
P.W.6 Bhramar Rout and P.W.7 Bishnu Charan Rout are the post occurrence witnesses who found the deceased lying dead at the spot with bleeding injury on the head. 6
P.W.8 Kishore Patra is a witness to the seizure of the wearing apparels of the appellant and also the material objects from the spot.
P.W.9 Prasanna Kumar Malik was the Gramarakshi attached to the Gop police station and he is a witness to the seizure of lungi of the deceased and command certificate under seizure list Ext.6.
P.W.10 Brajabandhu Maharana is the elder brother of the appellant and he is a post occurrence witness who found the deceased lying dead at the spot with bleeding injury on the head.
P.W.11 Nityananda Jena was the officer in charge of Gop police station who is the investigating officer.
P.W.12 Dr. Sarbeswar Acharya conducted post mortem examination and proved his report Ext.14.
The prosecution exhibited sixteen documents. Ext.1 is the first information report, Exts.2, 4, 5 and 6 are the seizure lists. Ext.3 is the zimanama, Ext.7 is the endorsement of P.W.11, Ext.8 is the spot map, Ext.9 is the inquest report, Ext.10 is the dead body challan, Ext.11 is the requisition, Ext.12 is the report of D.F.S.L., Puri, Ext.13 is the forwarding letter of the material 7 objects, Ext.14 is the post mortem report, Ext.15 is the chemical examination report and Ext.16 is the serological test report.
The prosecution proved eight material objects. M.O.I is the bamboo, M.O.II is the khurda gamuchha, M.O.III is the pant, M.O.IV is the shirt, M.O.V is the packet containing blood stained earth, M.O.VI is the packet containing sample earth, M.O.VII is the packet containing blood stained filter paper and M.O.VIII is the sample filter paper.
7. The learned Trial Court after assessing the evidence on record came to the finding that the death of the deceased is homicidal in nature. It is further held that P.W.5 Gandhi Moharana has clearly and cogently stated that it was the appellant who is the author of the fatal injuries caused to the deceased. It is further held that the evidence of P.Ws.2, 6 and 7 considered together with the evidence of P.W.5 lead to the irresistible conclusion that the appellant assaulted the deceased with bamboo stump (M.O.I) in a heat of anger when the deceased refused to give him cake. It is further held that there is no contradiction in the evidence of the prosecution witnesses regarding the occurrence, the manner of assault and the author of the crime. It is further held that considering the evidence of the mother of the appellant, the post occurrence witnesses, the 8 extra judicial confession of the appellant, his own admission made before the Court as well as other attending circumstances, it is concluded that the appellant assaulted his father on his head with bamboo stump (M.O.I) which caused his death. It is further held that there is no evidence available to arrive at the conclusion that at the crucial time of occurrence, the appellant was suffering from mental illness or insanity so as to get the benefit under section 84 of the Indian Penal Code. It is further held that the act by which the death was caused was done with the intention of causing such bodily injury as the offender knew it to be likely to cause the death of the deceased and therefore, the offence squarely attracts the provision of section 300 of the Indian Penal Code punishable under section 302 of the Indian Penal Code.
8. Mr. Gyanendra Ch. Swain, learned counsel appearing for the appellant contended that the evidence of the solitary eye witness (P.W.5) is not clinching and trustworthy and therefore, the learned trial Court should not have relied upon such evidence. It is further contended that the occurrence happened in a spur of moment when the deceased refused to give cake to the appellant and keeping in view the relationship between the parties and the surrounding circumstances under which the 9 offence is alleged to have committed, it cannot be said that the ingredients of the offence under section 302 of the Indian Penal Code are attracted and the offence would fall within exception 4 to section 300 of the Indian Penal Code which would attract the offence under section 304 Part-I of the Indian Penal Code. He further contended that the appellant is in custody since 05.11.2002 and he has neither been granted bail during trial nor during pendency of the appeal and therefore, he should be released forthwith from jail custody.
Mrs. Saswata Patnaik, learned Addl. Govt. Advocate on the other hand contended that the ocular testimony of P.W.5 gets corroboration from the medical evidence of P.W.12 and the manner in which for a petty thing, the appellant assaulted the deceased on the vital part of the body like head with bamboo lathi and the fact that the doctor has opined that the injury to head is sufficient to cause death, the learned trial Court is quite justified in convicting the appellant under section 302 of the Indian Penal Code.
9. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.9, the prosecution has also relied upon the evidence of P.W.12 Dr. Sarbeswar Acharya who stated that on 05.11.2002 he conducted 10 post mortem examination over the cadaver of the deceased and noticed deep ecchymosis with accumulation of blood on right front and inner quadrum of brain and further found that the left half of skull bone was broken to pieces and the brain matter had come out underneath the intact of scalp. He also noticed that the right forearm bones are broken and kept bent forward. According to his opinion, the injuries were ante mortem in nature and appeared to have been caused by hard and blunt object and injury to the head was sufficient to cause death. He proved the post mortem report Ext.14 and further stated that the injuries found on the deceased were possible by M.O.I. The learned trial Court has held that the death of the deceased was homicidal in nature.
The learned counsel for the appellant did not challenge the findings of the post mortem examination report.
After perusing the evidence on record, the inquest report Ext.9, post-mortem examination report Ext.14 and the statement of P.W.12 Dr. Sarbeswar Acharya, we are of the view that the findings of the learned Trial Court regarding the nature of death of the deceased to be homicidal is based on clinching materials and therefore, we concur with such findings and we are 11 also of the view that prosecution has established that the cause of death of the deceased was homicidal in nature.
10. According to the prosecution case, the star witness on behalf of the prosecution is none other than the mother of the appellant who is also the wife of the deceased and she has been examined as P.W.5. She has described the occurrence in a cryptic manner but stated clearly as to how the she and the deceased were preparing the cake on the Deepavali day and the appellant came and asked for the cake and the deceased refused to give as Puja had not been performed and how the appellant all on a sudden gave a blow with a heavy bamboo on the head of the deceased for which the deceased fell down.
P.W.5 was declared hostile by the prosecution as she did not support the prosecution case regarding the extra judicial confession made by the appellant before the villagers. However, so far as the assault part on the deceased is concerned, her evidence has remained unshaken and unblemished. Nothing has been elicited in her cross-examination to discard the evidence or to doubt the veracity of her evidence. It cannot be lost sight of the fact that P.W.5 is related to both the deceased as well as the appellant. Therefore, it is not expected on her part to leave the real culprit and falsely entangle the appellant who is her son. The 12 law is well settled that multiplicity or plurality of examination of witnesses is not required to establish the guilt of an accused and it is the quality of evidence and not the quantity, which matters and the conviction of an accused can be sustained even on the testimony of a solitary witness provided that his/her evidence is found to be clear, cogent, credible, trustworthy and above board.
On careful analysis of the evidence of P.W.5, we find that not only in her evidence she has clearly implicated the appellant but her evidence gets corroboration from the medical evidence. The weapon of offence i.e. bamboo which was seized at the spot, was examined by the doctor and he stated that the injuries nos. 1 and 2 are possible by M.O.I. The evidence of the other witnesses regarding finding the dead body with bleeding injury at the spot also corroborates the evidence of P.W.5. The wearing apparels of the appellant which were seized and on chemical analysis found to be contained blood stains also lend corroboration to the evidence of P.W.5. Therefore, we are of the view that the learned trial Court has committed no illegality in relying upon the evidence of the eye witness (P.W.5).
The evidence of P.W.2 indicates that in his presence, the appellant stated before him as well as the other villagers that since the deceased did not give him cake, he assaulted him with 13 bamboo. This extra judicial confession of the appellant is voluntary and free from any infirmity and lends assurance to the eye witness account.
The appellant has also admitted his guilt in the statement recorded under section 313 of Cr.P.C. He has candidly stated that his father (deceased) refused to give cake to him for which he assaulted on the head of his father but he was not aware that his father would die. The answers given by the accused in response to his examination under section 313 of Cr.P.C. can be taken into consideration in trial which is clear on a plain reading of the sub-section (4). Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the trial. (Ref:- A.I.R. 1992 S.C. 2100, State of Maharashtra -Vrs.- Sukhdeo Singh) Therefore, the cumulative effect of the eye witness account, medical evidence, extra judicial confession, seizure of material objects and the chemical analysis report is that it is the appellant who assaulted the deceased by means of bamboo lathi which ultimately led to his death. The finding on this score by the learned trial Court is quite justified.
11. Now the question remains to be decided as to what offence, the appellant committed by assaulting the deceased. It 14 appears that there was no previous enmity between the appellant and the deceased. They were father and son. It further appears that on the fateful day, the appellant came to his house and found his parents preparing cakes and he asked for the cake. When the deceased refused to give cake as the Puja had not been performed by then, the appellant who was probably hungry and could not control his hunger, suddenly got provoked and on the spur of the moment, out of anger and in the heat of passion, he dealt a blow on the head of the deceased by means of a bamboo lathi. The possibility of the other injury on the right forearm due to the same blow cannot be ruled out. The blow which was given though proved to be fatal, but it cannot be said that the appellant had taken any undue advantage or acted in a cruel or unusual manner. The surrounding circumstances under which the offence has been committed indicates that it amounts to culpable homicide not amounting to murder which would come within the purview of Part-I of Section 304 of the Indian Penal Code.
Accordingly, the conviction of the appellant under section 302 of the Indian Penal Code is not sustainable in the eye of law. We, therefore, set aside the conviction of the appellant under section 302 of the Indian Penal Code and 15 sentence passed thereunder, instead we convict him under section 304 Part-I of the Indian Penal Code and sentence him to undergone rigorous imprisonment for ten years. We find that the appellant was taken into custody in connection with the case on 05.11.2002 and since then he is in jail custody. He has neither been granted bail by the trial Court nor by this Court during pendency of the appeal. Therefore, the appellant has already undergone the sentence which has been imposed by us and accordingly, he should be released forthwith unless his detention is required in connection with any other case.
In the result, the appeal is allowed in part.
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S. K. Sahoo, J.
B. K. Nayak, J. I agree.
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B. K. Nayak, J.
Orissa High Court, Cuttack
The 14th October, 2017/PKS