Orissa High Court
Kuna@ Chhabindra@ Ramesh Palaru And ... vs State Of Orissa on 18 August, 2014
Equivalent citations: 2015 CRI. L. J. 337, (2014) 144 ALLINDCAS 455 (ORI), (2014) 2 ORISSA LR 781, (2014) 59 OCR 247, 2015 (88) ACC (SOC) 25 (ORI)
Author: S.K. Sahoo
Bench: Vinod Prasad, S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK.
CRIMINAL APPEAL NO. 229 OF 1996
From an order dated 3.8.1996 passed by the Additional Sessions
Judge, Khurda in S.T. Case No.2/419 of 1996/95.
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Kuna @ Chhabindra @ Ramesh
Palaru and another ........ Appellants
-Versus-
State of Orissa ......... Respondent
For Appellants: - M/s. Janmejaya Katikia,
S.K. Patnaik,
A.Mohanty, B.Mishra,
P.Mohanty,S.Swain
and D.Jena.
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
.............................................................................................................
Date of Argument.11.8.2014 Date of Judgment-18.08.2014
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S.K.SAHOO, J.The appellant Kuna @ Chhabindra @ Ramesh Palaru along with Balia @ Balabhadra Behera (appellant no.2 in this Criminal Appeal in respect of whom the appeal has abated on account of his death as per order dated 11.8.2014) were charged under section 302 read with section 34 I.P.C. by learned Additional Sessions Judge, Khurda in S.T. Case No.2/419 of 1996/95 for committing 2 murder of Laxmidhar Palaru @ Patnaik (hereafter referred to as "the deceased") on 22.4.1995 during the evening hours at village Baghamari. Both of them were found guilty under section 302 read with section 34 I.P.C. by the learned trial court vide impugned judgment and order dated 3.8.1996 and sentenced to undergo imprisonment for life.
2. The prosecution case, in short, as per the F.I.R. lodged by one Trinath Patnaik (P.W.2) on 24.4.1995 at about 1.30 P.M. at Khurda Police Station is that there was boundary dispute between the family of the informant with his neighbour Benga Bewa since last two years, for which civil litigation is pending in Court. The informant happens to be the brother of the deceased. The civil case was turning in favour of the informant and as the deceased was looking after the litigation, the other side was very much inimically disposed of towards him. It is the further prosecution case as per the F.I.R. that on 22.4.1995 during evening hours when the deceased had been to attend call of nature to a nearby pond in the village locally known as "Sana Pokhari", P.W.2 who had also gone towards the pond side marked one Rabindra Palaru (not an accused), Balabhadra Behera (appeal abated) and two others came from the backyard side of house of co-villager Narayan Mohapatra and entered inside the house of the appellant and at that time they 3 were armed with iron rods and sword. P.W.2 proceeded towards the pond side and focused his torch and found that the deceased was lying with bleeding injuries on the way towards the pond. P.W.2 cried aloud seeing the condition of his brother (deceased) and hearing his cry, Prasanta Kumar Behera (P.W.1), Dasarathi Sahu (P.W.3) and some others rushed to the spot. At the spot, when P.W.3 asked the deceased about the cause of his injuries, the deceased told that the appellant and his brother-in-law Balia had inflicted cut injuries and they had also fractured his left hand by means of iron rod. When P.W.3 was intending to make further query to the deceased about the assault, the deceased became unconscious. The deceased was shifted in an auto rickshaw to Government hospital, Khurda. As the condition of the deceased became more and more serious, he was shifted to S.C.B. Medical College & Hospital, Cuttack, where he succumbed to the injuries on 23.4.1995 at 8.00 a.m. Manglabag P.S. U.D. Case No.181 of 1995 dated 23.4.1995 was instituted after the death of the deceased and inquest was held in the casualty of S.C.B. Medical College & Hospital on 23.4.1995 at 10.00 a.m. in presence of P.W.2 vide inquest report Ext.3 by the police officials of Mangalabag P.S. The dead body was sent for post- mortem examination. P.W.8 Dr. Suniti Achahrya who was working 4 as Associate Professor, Department of F.M.T., S.C.B. Medical College & Hospital, Cuttack conducted the post-mortem examination and he noticed some stitched wounds on the left eyebrow, right eyebrow, left ear and swelling with parallel contusion on the left upper arm and parallel contusion on the left mid axillary line. The doctor found fracture of left humerus bone and opined the injuries to be ante- mortem in nature and caused by heavy blunt weapon. The cause of death was opined to be coma as a result of the cranio cerebral injuries, which was due to combined effect of the injuries noticed on the person of the deceased.
P.W.2 brought the dead body of the deceased from Cuttack on 23.4.1995 at 5.00 p.m., cremated the dead body during evening hours and on the next day i.e. 24.4.1995, he lodged the F.I.R. by way of an oral report which was reduced to writing by P.W.10 B.K. Raju, I.I.C., Khurda P.S. who directed P.W.9 Bansidhar Das, S.I. of Police, Khurda P.S. to take up the investigation of the case.
P.W.9 took up the investigation of the case on 24.4.1995 on the direction of the I.I.C., Khurda P.S. He proceeded to the spot, prepared spot map (Ext.2), seized blood stained earth and sample earth from the spot under seizure list, examined witnesses, sent injury requisition to Dr. A.K. Pani, (P.W.5), Orthopedic Specialist, Government Hospital, Khurda who treated the deceased for some 5 time before he was shifted to S.C.B. Medical College & Hospital, Cuttack. The appellant was taken into custody and volunteered to give discovery of the weapon of offence and accordingly his statement was recorded in presence of witnesses, but no weapon of offence was seized. The I.O. also seized the Lungi of the deceased which was stained with blood vide seizure list (Ext.13) and after completion of investigation submitted charge sheet.
3. The defence plea is of denial and it is pleaded that due to previous litigation between the parties, the appellant has been entangled in the case.
4. In order to prove its case, the prosecution examined 10 witnesses.
P.W.1 Prasanta Kumar Behera, P.W.3 Dasarathi Sahu and P.W.6 Narayan Palaru are the witnesses to the dying declaration made by the deceased at the spot. P.W.2, who is the brother of the deceased and informant in the case, posed himself as an eye witness to the occurrence so also a witness to the dying declaration. P.W.4 Krupasindhu Behera is a witness to the seizure of blood stained earth and sample earth from the spot under seizure list (Ext.7). P.W.5 Dr. Ashok Kumar Pani who was the Orthopedic Specialist in the Government Hospital, Khurda proved the injury report of the deceased. P.W.7 Balabhadra Sethi found the appellant 6 and the other accused passing by the side of mango tope during evening hours on the date of occurrence. P.W.8 Dr. Suniti Acharya conducted the post-mortem examination over the dead body on 23.4.1995, P.W.9 is the I.O. and P.W.10 B.K. Raju was the I.I.C., Khurda P.S. who reduced the oral information of P.W.2 into writing and directed P.W.9 to investigate the case.
On behalf of the defence, one witness namely Surendra Kumar Rana, A.S.I. of Police, Khurda P.S. was examined to prove a Station Diary Entry of the Police Station.
5. Let us first discuss whether the prosecution has proved that the deceased died a homicidal death or not?
The statement of P.W.8 Dr. Suniti Acharya and the post- mortem report (Ext.11) clearly indicate that the injuries sustained by the deceased are ante-mortem in nature and caused by heavy blunt weapon. The external injuries nos.(ii),(iii) and (iv) i.e. the stitched wounds on the left eye brow, right ear and left ear respectively and its corresponding internal injuries were individually fatal in ordinary course of nature and sufficient to cause death. P.W.8 further opined that death was due to coma as a result of the cranio cerebral injuries with combined effect of other injuries mentioned in Ext.11. The learned counsel for the appellant does not challenge the finding of P.W.8 in the post-mortem report. Thus, in 7 view of the statement of the P.W.8 coupled with the post-mortem report (Ext.11), we are of the view, that the deceased died a homicidal death.
6. The prosecution case is that due to civil litigation between the parties, the deceased was assaulted as he was looking after the litigation from their side. P.W.2 states that civil litigation was going on between them and the appellant and his mother since last 2 to 3 years. The learned counsel for the appellant also did not challenge the pendency of the litigation between the parties, but it is the contention of the learned counsel that due to such previous litigation, the case has been foisted.
7. P.W.2 posed himself as an eye-witness to the occurrence and he has stated that when he had gone to attend call of nature to Sana Pokhari carrying a torch, he found the deceased being assaulted by the accused persons including the appellant on the village path close to the Bari of Narayan Mohapatra. It has been confronted to P.W.2 that he has neither mentioned in the F.I.R. nor stated before the Police to have seen the appellant and the other accused assaulting his deceased brother by means of iron rod. This contradiction has been proved through the I.O. (P.W.9) and in fact, the F.I.R. (Ext.1) also does not indicate that P.W.2 has seen the actual assault on his deceased brother.
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P.W.2 has also not disclosed before P.W.1, P.W.3 and P.W.6 who arrived at the spot hearing his hue and cry to have seen the actual assault on his deceased brother.
The conduct of P.W.2 in not disclosing about the incident of assault is relevant under Section 6 of the Evidence Act as Res gestae. The essence of doctrine of res gestae in evidence is that the facts which though not in issue are so connected with the fact in issue as to form part of the same transaction and thereby become relevant like fact in issue. In the illustration (a) to Section 6 of Indian Evidence Act, it is stated as follows:-
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to from part of the transaction, is a relevant fact.
The Hon'ble Supreme Court in case of Krishan Kumar Malik Vs. State of Haryana in AIR 2011 Supreme Court 2877 held as follows:-
"Section 6 of the Act has an exception to the general rule where-under, hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to 9 be admitted as forming a part of re gestae must have been made contemporaneously with the act or immediately thereafter."
Thus, the evidence laid by P.W.2 that he is an eye-witness to the occurrence and saw the appellant and the other co-accused assaulting the deceased on the date of occurrence on the village path close to the Bari of Narayan Mohapatra cannot be accepted as the same was deposed by him for the first time in Court.
In the case of Ram Kumar Pande v. The State of Madhya Pradesh reported in AIR 1975 SC 1026, it is held as follows :-
"No doubt, an F.I.R is a previous statement which can, strictly speaking be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."
F.I.R. in criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at trial. F.I.R. is not the encyclopaedia or be all and end all of the prosecution case. It is not a verbatim summery of the prosecution case. Whether non-mentioning of some material facts would be fatal or not depend on the facts and circumstances of each case.
If, P.W.2 had seen the appellant and the other co-accused assaulting his deceased brother, he would certainly have mentioned 10 it in the F.I.R., particularly when he has given all the details in the F.I.R. which runs to three pages and in absence of his disclosure before P.W.1,P.W.3 and P.W.6 who immediately arrived at the spot, we are not inclined to accept that P.W.2 was an eye-witness to the actual assault on his deceased brother.
8. The prosecution relies upon the testimony of P.Ws.1, 2, 3 and 6 to substantiate that the deceased being confronted by P.W.3 at the spot about the cause of his injuries told that he was assaulted by the appellant and another.
In this connection, in the F.I.R., it has been mentioned that the deceased told before P.W.3 that he was given cut blows by the appellant and his younger brother-in-law Balia and that he was also assaulted by rod, for which his left hand got fractured.
P.W.1 has stated that when P.W.3 asked the deceased as to how he sustained injuries on his person, the deceased told that he was assaulted by both the accused persons and he further told that he was assaulted by means of iron rod and some other weapon of offence by the accused persons.
P.W.2 has stated that when P.W.3 asked his injured brother shaking his body as to how he sustained the injuries, his injured brother told that he was assaulted by means of iron rod and that 11 the appellant had assaulted him by means of an iron rod and accused Balabhadra gave him cut injury.
P.W.3 has also stated that when he asked the deceased as to how he sustained injuries on his person, though he replied but it was not audible because he stammered and again he shook his body a little more violently, for which the deceased told that the appellant and his brother-in-law Balia had assaulted him by means of iron implements causing injuries on his head and left hand.
P.W.6 has stated that when P.W.3 asked the deceased as to how he sustained the injuries and who were his assailants, the deceased stated that the appellant and Balia assaulted him by means of iron rod and also inflicted cut injury.
The analysis of the evidence relating to oral dying declaration would indicate that in the F.I.R. as well as in the evidence of P.W.6, it is mentioned that cut injury was inflicted on the deceased by the appellant and accused Balia whereas as per the evidence of P.W.2, accused Balia inflicted cut injury. The doctor conducting the post- mortem examination has categorically stated that he has not detected any injury on the deceased which can be caused by sharp cutting weapon.
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There are discrepancies between the evidence of P.W.1, P.W.2, P.W.3 and P.W.6 as to what the deceased disclosed before them. When it is the prosecution case that only once the deceased made the dying declaration at the spot, the discrepancies appearing in the evidence of these four witnesses to the dying declaration cannot be brushed aside.
As it appears from the evidence of the witnesses to the dying declaration particularly P.W.3 that when they arrived at the spot and it was asked to the deceased as to how he sustained injuries, his reply was not audible and he stammered. P.W.3 shook the body of the deceased a little more violently, for which he made the dying declaration but immediately became unconscious. So, it appears that the deceased got back his sense for a few seconds just to tell the names of his assailants and after telling the same, he became unconscious. This aspect creates doubt in our mind as to whether the deceased had actually made any such dying declaration.
The incident is alleged to have taken place during evening hours near the village pond. P.W.2 stated to have used his torch (mentioned in the F.I.R.) to locate his brother (deceased) lying in an injured condition on the approaching road to the village pond. While considering the dying declaration it is the duty of the Court to see as to whether the deceased had sufficient opportunity to mark his 13 assailant particularly when the incident is alleged to have taken place in the night where there was paucity of light. That apart, it is also the duty of the court to see that the dying man was in a fit state of mind while making the declaration.
In the case at hand, when the voice of the deceased was not audible at the first instance and he was stammering and when his body was shaken violently by P.W.3, he told the names of his assailants and immediately lost his sense, we are unable to hold that the deceased was in a fit state of mind at the time of making declaration. Similarly, the insufficiency of light aspect at the spot can also not be overlooked. The Investigating Officer during his spot visit has not made any endeavour to verify as to whether at such point of time there was possibility of identifying anybody without the help of any light. The torch used by P.W.2 has also not been seized.
The doctor (P.W.5), who examined the deceased at Government Hospital, Khurda, has stated that the patient was brought in moribund condition for management of his injuries. According to him the deceased had sustained three lacerated wounds on the occipital region apart from a swelling over the left arm. The doctor (P.W.8), who conducted post mortem examination noticed, on dissection, a comminuted fracture in an area of 6 cm. x 9 cm. with fissure extension posterior to the base of the skull and 14 anteriorly the fissure fractures crossing over the parietal eminence. He also noticed extradural hematoma of 1 cm. thickness covering both cerebral hemispheres and intracerebral hemorrhage over the posterior aspect of both hemispheres and the brain matter was found to be grossly oedematous.
In view of such extensive grievous injuries sustained by the deceased, the possibility of the deceased not being physically and mentally fit to make the dying declaration cannot be ruled out and as such the alleged oral dying declaration of the deceased is a very suspicious piece of evidence and it will be very dicey to act upon it.
Admissibility of dying declaration is based on the principle that when a man dies, he never lies. The reason is that when a man is dying and when every hope of this world is gone, when every motive to falsehood is silent and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so sacrosanct is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.
There are certain other features in the case which creates doubt about the authenticity of the oral dying declaration. P.W.5 Dr. Ashok Kumar Pani who was attached to Government Hospital, Khurda as Orthopedic Specialist examined the deceased on 15 22.04.1995 at 8.30 p.m. and he has stated that the patient was brought to the hospital in a moribund condition and when he came to know that it was a medico legal case, he not only issued the injury certificate but also a casualty memo to the I.I.C., Khurda P.S. for necessary action. Ext.10, which is the casualty memo does not indicate the names of the assailants. Similarly, P.W.2 has stated that Khurda Police had come to the Khurda Hospital, but he has not reported in writing or orally to police at Khurda on the date of occurrence, thus, neither before the doctor nor before the police at Khurda, there was any disclosure made by P.W.2 or anybody else to have been acquainted with the names of the assailants of the deceased. The dying declaration aspect was also not intimated to anybody including the doctors while the deceased was undergoing treatment at S.C.B. Medical College and Hospital, Cuttack or to Mangalabag Police who conducted inquest over the dead body and sent the dead body for post-mortem examination.
It is the evidence of P.W.1 that when P.W. 2 raised hue and cry the wife and children of the deceased came to the spot and the wife of the deceased had also heard about the oral dying declaration. The wife of the deceased has not been examined. Thus, the evidence relating to dying declaration alleged to have been made 16 before P.Ws.1, 2, 3 and 6 at the spot on 22.04.1995 during evening hours cannot be accepted.
9. The learned counsel for the appellant Mr. J. Katakia highlighted certain other features to doubt the prosecution case.
The learned counsel submitted that there was inordinate delay in lodging the F.I.R. According to the learned counsel for the appellant, the incident is alleged to have taken place during evening hours on 22.04.1995 but the F.I.R. was lodged by P.W.2 on 24.04.1995 at about 1.30 p.m. at Khurda Police Station. According to the learned counsel inordinate delay was caused deliberately by P.W.2 in making a report to Police to give himself ample scope/ opportunity to concoct a case against the appellant. The learned counsel further submits that even though P.W.2 had accompanied the deceased first to the Government Hospital, Khurda and then to S.C.B. Medical College and Hospital, Cuttack but there were other family members who could have reported the crime to the police particularly when P.Ws.1, 3 and 6, who are the co-villagers of the deceased claim to be aware of the incident due to the alleged dying declaration.
It is seen that nobody disclosed before the Police at Khurda Hospital during the treatment of the deceased even though Police officials of Khurda Police Station had arrived there on getting 17 intimation from the doctor. Similarly, P.W.2 after bringing the dead body of the deceased from Cuttack cremated the same in the village by evening time on 23.4.1995 and so there was at least more than 12 hours between cremation of the dead body and lodging of the F.I.R.
In case of Thulia Kali -v- State of Tamil Nadu reported in AIR 1973 SC 501, it is held as follows :-
"First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as result of deliberation and consultation. It is 18 therefore essential that the delay in lodging the First Information Report should be satisfactorily explained".
In view of the materials available on record, we are constrained to hold that delay in lodging the F.I.R. has not been satisfactorily explained by the prosecution which in all probability has given opportunity to the prosecution party to concoct a case.
10. The learned counsel for the appellant further submits that even though, it is alleged that the F.I.R. was lodged on 24.04.1995 at about 1.30 p.m. and shown to have been dispatched from the Police Station on 25.04.1995, but the very fact that it was received by the learned S.D.J.M., Khurda on 01.05.1995 indicates that the F.I.R. was lodged subsequently, but it has been made ante-dated and it was also not dispatched by the Police Station on the date as shown on the formal F.I.R.
The Investigating Officer (P.W.9) has stated that the court premises is situated nearer to the Thana premises and one can walk down that distance within five minutes. He further states that the police station is separated from the hospital by a road.
In view of such closed proximity between the Police station and the Court, the delay in receipt of the F.I.R. in Court about six 19 days renders the lodging of F.I.R. to be a suspicious feature in absence of any explanation.
In case of Radhakrishnan Nair -v- State of Kerala reported in 1995 Supreme Court Cases (Criminal) 345 it is held as follows:-
"According to P.W.1, he gave the report Ex.P/1 at 4 a.m. on 10.11.1981 and admittedly it reached the Magistrate only on 12.11.1981 and the trial court rightly pointed out that this delay renders Ex.P/1 suspicious in the absence of any explanation."
In case of Nityananda Nayak -v- State of Orissa reported in (1997) 12 Orissa Criminal Reports 7 it is held as follows:-
"The F.I.R. though allegedly lodged at 10.45 p.m. on 22.4.1991, was received by the S.D.J.M. on 24.4.1991.......The Investigating Officer has stated that the F.I.R was sent on 23.4.1991 through a special messenger. If that be so, there is no earthly reason as to why it reached the court of the S.D.J.M., on 24.4.1991. The Special Messenger, who allegedly carried the F.I.R. to the court of S.D.J.M. having not been examined, it is difficult to accept the statement of the Investigating Officer that in fact the F.I.R. was dispatched on 23.4.1991. As has been held in a decision reported in AIR 1980 SC 638 Marudamal Augusti -v- State of Kerala, the delayed dispatch of the F.I.R. to the Court of S.D.J.M. creates some doubt regarding the authenticity of the F.I.R."
As in this case the F.I.R. is stated to have been lodged on 24.4.1995 at 1.30 p.m. at Khurda Police Station and shown to have been dispatched from the police station on 25.4.1995 but reaching before the court of learned S.D.J.M., Khurda on 1.5.1995 even 20 though the court premises is situated at a five minutes walking distance from the police station, we doubt the authenticity of F.I.R. rather it probablises that the F.I.R. was not dispatched from the police station on 25.4.1995 and it was there in the police station till 1.5.1995.
11. It is also noticed that the F.I.R. contains a story that P.W.2 saw Rabindra Palaru, who is neighbor of P.W.2, accused Balabhadra Behera and other two persons came from the side of the backyard of Narayan Mohapatra and entered inside the house of the appellant and they were armed with iron rod and sword. This story which was there in the F.I.R. has been given a complete go-bye in the evidence of P.W.2. It has been confronted to P.W.2 and proved through the I.O. that similar statement was made before police in the 161 statement. Thus, P.W.2 after giving a go-bye to the story narrated in the F.I.R. as well as what he stated before police in his 161 statement that he was a post occurrence witness has brought a nascent version during trial claiming himself to be an eye-witness to the occurrence.
12. The learned trial court has relied upon the oral dying declaration part mainly to convict the appellant. We have already discussed as to how and why the oral dying declaration stated to have been made before P.W.1, 2, 3 and 6 is not acceptable. In view 21 of our discussion and in view of the facts and circumstances discussed above, we are not able to agree with the findings of the trial court. We hold that the prosecution has not established the case against the appellant beyond all reasonable doubt.
In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence is set aside and the appellant is acquitted of the charge under section 302/34 I.P.C. The appellant is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled.
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S.K. Sahoo,J.
VINOD PRASAD, J. I agree
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Vinod Prasad, J.
Orissa High Court, Cuttac
The 18th August,2014/DNP/Pravakar
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