Orissa High Court
Bisikesan Pujari vs The State Of Orissa on 1 September, 2004
Equivalent citations: 98(2004)CLT537
Author: P.K. Tripathy
Bench: P.K. Tripathy, N. Prusty
JUDGMENT P.K. Tripathy, J.
1. Appellant has preferred this appeal as against the order of conviction under Section 302 of the Indian Penal Code (in short, 'IPC') passed on 2.5.1998 by learned Additional Sessions Judge, Rayagada in Sessions Case No. 5 of 1997 (Original S.C. No. 375 of 1995 of the Sessions Judge, Koraput, Jeypore). It appears from the impugned judgment that learned Additional Sessions Judge found the appellant guilty under Section 302, IPC and sentenced him to undergo imprisonment for life.
2. Before dealing with the contentions of the parties, we may put in short the fact involved in the case. Muka Naik, the deceased, was found dead on the PWD Road on 20.8.1995 due to some bleeding injury on his head, P.W. 1 Suresh (a son of the deceased) and P.W. 2, Mani Khora (a co-villager) while returning from a neighbouring village, viz. Sankarda, saw the dead body and intimated the fact to the wife and other family members of the deceased. Not only the inmates of the house but also son-in-law of the deceased (P.W. 6) and other villagers, like P.Ws. 7 and 8 came to the spot. P.W. 6 lodged the FIR, Ext. 1 and P.W. 15, the Officer-in-Charge undertook the investigation. By the time of spot visit and inquest, there was no clue before the Investigating Officer as to who was the culprit. It is noted in the Case Diary that help of police dog was taken and the police dog led the Investigating Team to the house of the appellant wherefrom the accused was taken to the Police custody for interrogation and one axe was seized from his house. While in police custody, appellant made a confessional statement and gave discovery of another axe, i.e. M.O.I, which was seized under seizure list, Ext. 4 and the appellant's statement was recorded, vide Ext. 5. On the basis of that evidence, further investigation was taken up. On completion of investigation, a charge sheet was placed and on the basis of that, accused was committed to the Court of Session being charged with the offence under Section 302, IPC and was asked to face the trial in the Court of learned Additional Sessions Judge, Rayagada.
3. Prosecution relied on the evidence of 15 witnesses. Out of. them, except P.W. 3 the rest of the witnesses are post-occurrence witnesses. Out of them P.Ws. 1 and 5 being the sons and P.W. 4 being the wife of the deceased, only stated about the previous land dispute between the deceased and the appellant. P.W. 6, as noted above, was the informant. P.Ws. 7, 8 and 9 were witnesses to the Inquest. P.W. 8 was witness to recovery of the axe, M.O.I., P.Ws. 10 to 13 were witnesses to other seizure list, P.W. 14 was the Doctor who conducted post-mortem examination on the dead body of the deceased on 28.1.1995 and proved the Post Mortem Report, Ext. 10, He also examined M.O.I. and gave his report, Ext. 11. As noted above, P.W. 15 was the Investigating Officer. Some of the seized articles were sent to RFSL, Berhampur for chemical analysis and serological test. Ext. 15 is that report and Ext. 16 is the spot map.
4. Mr. B. Pujari, learned counsel for the appellant argues that, trial Court has passed a whimsical Judgment without determining as to whether the death of the deceased was homicidal or not. He argues that, on assessment of evidence if this Court records a finding on homicidal death then the appellant has no objection to that out he argues in the aforesaid manner to indicate that the trial Court was not diligent in properly appreciating the evidence on record while warranting a conviction against the appellant for a serious offence like the offence under Section 302, IPC. He also argues that evidence of the sole eye-witness i.e. P.W. 3 is wholly unreliable and therefore excluding that evidence there is no evidence on record to connect the appellant with the crime. He also argues that Exts. 4 and 5 do not prove of any confession or seizure of material evidence. Accordingly, he argues to set aside the conviction order and to acquit the appellant.
5. Mr. A. K. Mishra, learned Standing Counsel without disputing to deficiency in recording the essential finding by the trial Court on the issue of homicidal death, however, argues that keeping in view the nature and character of the tribal people, evidence of P.W. 3 as the eye-witness to the occurrence cannot be rejected merely because he did not disclose about the occurrence'at an early point of time. He also argues that even if the confessional part in Ext. 5 is eliminated then also the factum of recovery of the weapon of offence, M.O.I, at the instance of the appellant and the opinion report of the Doctor who conducted the post-mortem examination, are sufficient proof to find the appellant guilty for the homicidal death. He refers to the evidence of P.W. 14 the Inquest Report, Ext. 2, post-mortem Report, Ext. 10 and states that a case of homicidal death is squarely made out.
6. On a reference to the impugned judgment, we find substance in the criticism to the said judgment by the appellant relating to non-making a decision on the issue as to whether the deceased suffered a homicidal death. After stating the case of the prosecution and the defence plea, in the impugned Judgment at paragraph 5 learned Addl. Sessions Judge formulated the points for determination in the following manner:
"5. The following are the points for determination in this case :
(i) Whether the accused committed murder intentionally with a strong motive to get back the possession of the land from the deceased ?
(ii) Whether the recovery of axe and ocular account as available in the evidence of the case are enough to bring home the guilt of the accused for the charge of murder ?"
7. Section 302, IPC provides punishment for the offence of murder. Section 300, IPC defines the offence 'Murder' and a bare reading of that provision makes it clear that unless there is a case of homicidal death due to ante-mortem injuries, there cannot be a conviction under Section 302, IPC. Therefore, it was necessary for the trial Court to formulate an issue and to record a finding if the ingredients of the offence of murder, as defined in Section 300 is made out. In other words he was to record a finding from the evidence on record if the deceased suffered a homicidal death and the injuries inflicted were sufficient in ordinary course of nature to cause the death of the deceased. That aspect is completely lacking in the impugned judgment and that is apparent from the above quoted paragraph. The Court of Sessions in this case being presided by an Additional Sessions Judge, he was not expected to commit such silly mistake.
8. Be that as it may, as the appellate Court, we are to see from the evidence on record whether a case of homicidal death is made out in this case. In that respect, evidence of P.W. 14 and Ext. 10 are of utter importance. In his evidence, P.W. 14 and Ext. 10 are of utter importance. In his evidence, P.W. 14 (the Doctor, who conducted the post-mortem examination) has stated that he found some lacerated injuries on the head of the deceased, each of 6 cm. length. According to P.W. 14 two such lacerated injuries were on the centre of the skull with a distance of 4cm. apart. The third lacerated injury was on the back of the skull and the fourth lacerated injury, which in,fact, should have been regarded as two injuries, was on the parietal area on both the sides. On dissection, P.W. 14 found the corresponding internal injuries. According to that finding, there was depressed fractures of the skull bones, on the back of the skull, on the occipital area on the middle of the skull and the right side of the parietal area. He also found internal hemorrhage of the brain substance below the fractured side. According to the opinion of P.W. 14 all the injuries were ante-mortem in nature and the death was due to hypovolumic shock due to severe bleeding from the injuries and also due to trauma to brain substance. According to the further opinion of P.W. 14 each of such injuries individually was sufficient to cause the death of the deceased and that the death would have been instantaneous. His further opinion is that morethan one blow was necessary by a weapon like M.O.I. to cause -the said injuries. As rightly argued by learned Standing Counsel, evidence of P.W. 14 read with the post-mortem Report clearly makes out a case of homicidal death of the deceased. We have also already noted in a preceding paragraph that appellant does not dispute to the homicidal death of the deceased, but only complains of lack of categoric finding by the trial Court. This, we record the finding that the deceased suffered a homicidal death due to the injuries found on his body by P.W. 14.
9. Be that as it may, coming to the merit of the case, we find that if the case is to be decided on direct evidence, then the whole case of the prosecution rests on the credibility of P.W. 3 and in that event except circumstantial evidence, i.e. Exts. 4 and 5 which are complementary evidence, rest of the evidence are supplementary in nature.
10. So far as P.W. 3 is concerned, he has admitted in his evidence that though he witnessed the occurrence,'but did not disclose it to anybody either in the village or in his house but quietly went to his sister's house and remained there for two days and that, from that place he was taken to Police Station and detained there for seven days and thereafter, he made the statement implicating the accused as the author of the crime. We find nothing on record as to how P.W, 3 could be spotted by the Investigating Officer to be cited as the eye-witness to the occurrence. In that respect the evidence of P.W, 15 is that on 23.8.1995 P.W. 3 Gobinda Gouda voluntarily appeared before him and therefore, he recorded his statement and also got his statement recorded before the Magistrate under Section 164, Cr.P.C. The statement under Section 161, Cr.P.C. of P.W. 3 appears to have been prepared by P.W. 15 on 23.8.1995. That was the day when the work of the investigation was done relating to arrest of the accused, examination of P.W. 3 and seizure of the M.O.I. There is nothing indicated in the case diary that P.W. 3 was brought from hi's sister's village and was detained in Police custody for days before recording his statement. When P.W. 3 was examined in the Court much before examination 6f P.W. 15 and P.W. 3 while not turning hostile to the prosecution deposed in the Court that after the occurrence he did not disclose the incidents to anybody including his wife and sister and that he went to his sister's village Champajodi and stayed there for two days and that he was taken to the Police Station on Wednesday (23.8.1995) and detained there for seven days and thereafter his statement was recorded, under such circumstance, it was necessary for the prosecution to bring necessary evidence from the mouth of P.W. 15 so as to find credibility in the evidence of P.W. 3. On the other hand, on a perusal of the order sheet No. 3 dated 26.8.1995 of the Court of JMFC. Kashipur, it is seen that P.W. 3 was produced before the Magistrate on that date for recording his statement under Section 164. Cr.p.C. Therefore, P.W, 3 is not untruthful when he stated that his statement was recorded seven days after the occurrence and before that he was detained in the Police Station.
11. (sic.) P.W. 3 remaining in the Police Station for several days whether amounts to his detention for the purpose to compel him to be an eye-witness or for the purpose of his security or because of voluntariness of the said witness to remain there out of fear is a relevant factor to consider his credibility. In that respect, as noted above, prosecution has remained absolutely slack and casual in adducing relevant evidence and therefore evidence of P.W. 3 does not inspire confidence. In furtherence thereof, we also notice that P.W. 3 in course of cross-examination has stated that while returning from Punjigumma, from a distance of hundred yards he saw the deceased giving three axe blows to the head of the deceased. Thus he is found to be a chance witness. Evidence of such a witness, before acceptance, must stand the test of proper scrutiny. According to him "That was the rainy season and there was rain on that day. There was no street light at that place. I saw the incident at a distance of hundred yards. There are bushes between me and the places of occurrence." For the reasons already indicated and on a close scrutiny of the evidence of P.W. 3 along with the evidence of P.W. 15 we do not find the evidence of P.W. 3 to be free from doubt to accept him as the eye-witness to the occurrence. It is the settled principle of criminal jurisprudence that prosecution is to prove its case by clear and cogent evidence and not by means of doubtful evidence. Therefore, in this case, prosecution cannot succeed to prove the charge on the basis of the evidence of P.W. 3 to fasten the accusation of murder on the accused.
12. Notwithstanding the above, prosecution relies on the evidence under Section' 27 Evidence Act, vide Exts. 4 and 5 and evidence of P.Ws. 8 and 15. In view of the provisions in Section 26 of the Evidence Act, confession by accused while in custody of the Police is not admissible unless it is made in the immediate presence of a Magistrate. None the less Section 27 of the Evidence Act makes an exception of the said provision and provide that while in Police custody if the accused gives any information and discovery of any article connected with the crime, then that part of said informant/statement whether amounts to confession or not being distictly related to the fact discovered thereby, is admissible in evidence. In this case, M.O.I, was discovered and seized under seizure-tist Ext.. 4 on the statement of the appellant, Ext. 5 said to have been made in presence of P.Ws. 8 and 15 after being arrested by P.W. 15. Therefore, it that axe marked M.O.I, is found to be connected with the alleged crime, then, the statement made by the appellant in Ext. 5 attributing the said seized weapon to be the weapon of offence and being used by the appellant is admissible in evidence. On a reference to Ext. 11 the opinion report, given by the Doctor (P.W. 14) we see that he has stated that the injury found on the dead body of the deceased is possible by that weapon. P.W. 14 neither in Ext. 11 nor in his deposition stated anything as to which side of the axe was capable of producing such injuries. It is the common sense that an axe has a sharp side as well as blunt end. If the sharp side is blunt enough, then even if it is hit, then also it may not cause clear incised wound and may cause incised looking lacerated wound. On the other hand, if the blunt side is used then it may cause only lacerated wound. Therefore, while examining M.O.I., P.W. 14 should have been specific in his opinion as to by which side of the weapon the injury on the dead body of the deceased was possible. In his evidence, P.W. 3 also did not state as to by use of which side (sharp or blunt) of the axe, the injuries were inflicted. Above all the report from the Regional Forensic Science Laboratory (RFSL), Berhampur, indicates that the weapon of offence was not sent for chemical analysis or Serological Test.'P.W. 15 is absolutely silent as to why he did not send the weapon of offence for such scientific examination though the seized articles were sent to RFSL after the discovery and seizure of M.O.I. Apart from that there is no evidence worth the name available on record that the axe M.O.I, belongs to the appellant. In that respect P.W. 8 has only stated that there was discovery and seizure of the said axe at the instance of the appellant. The Investigating Officer did not bother to ascertain as to who was the owner of that axe. If the appellant is the owner of that axe then necessary evidence should have been brought on record. If any other person is the owner of that axe, then, such evidence should also have been brought on record so as to bring better evidence against the appellant. Therefore, mere recording the statement and making seizure of M.O.I, in this case, ipso facto does not prove that axe to be the weapon of offence for sustaining the conviction against the appellant on the basis of the said evidence under Exts. 4 and 5.
13. Except the above two items of evidence, prosecution has no other evidence to connect the accused with the crime inasmuch as a land dispute between the accused and the deceased may constitute a strong motive for the accused to commit the murder but that circumstance alone is not sufficient to warrant a conviction against the appellant.
For the reasons indicated above, we find the impugned order of conviction and sentence is not sustainable in the eye of law. Accordingly, we set aside the order of conviction of the appellant and the sentence of imprisonment for life and grant him the benefit of doubt and acquit him from the charge under Section 302, (PC. We, thus, allow the appeal in the manner indicated above and direct to set the accused at liberty forthwith.
N. PURSTY, J.
14. I agree.