Orissa High Court
Chaitu Naik 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.
JCRLA NO. 57 OF 2006
From an order dated 12.6.2006 passed by the 1st Adhoc Addl.
Sessions Judge, Sundargarh in S.T. No.4/2 of 2006.
--------------------
Chaitu Naik ........ Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. J. Katikia, A Mohanty,
P. Mohanty, S.Swain
and D.Jena.
For Respondent: - Mr. Sk. Zafarulla,
Addl. Standing Counsel
-------------
P R E S E N T :-
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
------------------------------------------------------------------------------------
Date of hearing-12.02.2015 : Date of Judgment-24.02.2015
------------------------------------------------------------------------------------
S.K.SAHOO, J.It is a case of patricide. The appellant faced trial in the Court of learned 1st Adhoc Addl. Sessions Judge, Sundargarh in Sessions Trial No.4/2 of 2006 for offence punishable under Section 302 Indian Penal Code for committing murder of his father Prem Say Naik (hereafter the "deceased") on 12.4.2005 at about 9 p.m. in village Pandridhipa. The learned trial Court vide 2 impugned judgment and order dated 12.6.2006 held the appellant guilty under section 302 I.P.C. and accordingly convicted him of such offence and sentenced him to undergo imprisonment for life.
2. The prosecution case, as per the F.I.R. lodged by Bainu Naik (P.W.1) on 13.4.2005 before Inspector-in-charge, Town Police Station, Sundargarh was that he was staying with his family in village Pandridhipa. The appellant is the elder brother of the informant and they were remaining separately and both of them were also having two sisters. The appellant was working as a labourer and maintaining his family. The deceased was also working as a labourer and staying with his wife separately. The appellant used to quarrel with the deceased and the informant was trying to settle the dispute between them. On 12.4.2005 night at about 9 p.m. the informant had been to attend call of nature to the nearby tank embankment with his brother-in-law Narayan (P.W.3). While returning home, on the way, the informant found the appellant holding an axe and shouting to kill everybody who so ever dares to interfere him and so shouting he left from the side of the house of the deceased towards his house. At that time the mother of the appellant cried aloud saying repeatedly that the appellant had killed the deceased. The informant rushed back to the house and found the deceased lying 3 dead in the courtyard with bleeding injuries. The mother of the appellant was telling that the appellant had killed the deceased by means of an axe. The informant noticed injury on the forehead of the deceased and at that time the deceased was making no response. The deceased was lifted from the ground and was placed on a cot and since he did not respond to the call, the informant became sure that the deceased was no more. The informant ran towards the nearby square of the village and informed Town police station over phone regarding the commission of murder of the deceased by the appellant and returned back home. It is further stated in the F.I.R. that on the date of occurrence some persons had come to see the daughter of the appellant for the purpose of marriage. After their departure, the deceased asked the appellant in the evening hours as to why he was not called when the parties had come to see his (appellant's) daughter. Over this issue, a quarrel ensued between the appellant and the deceased which aggravated the hostile feeling and the appellant killed the deceased by an axe.
3. P.W.1 orally reported the matter which was reduced to writing by P.W.11 Sujit Kumar Sahoo, S.I. of Police, Town Police Station, Sundergarh at the spot. The report was sent to Town Police Station. On receipt of such FIR, P.W.10 Bishnu Charan 4 Mishra, Inspector-in-Charge, Town Police Station, Sundargarh registered Town P.S. Case No.35 of 2005 dated 13.04.2005 under section 302 I.P.C. and took up investigation.
During course of investigation, P.W.10 visited the spot and prepared spot map Ext.13, examined the informant and other witnesses, seized blood stained earth, sample earth and one lamp at the spot under seizure list Ext.5. P.W.10 held inquest over the dead body vide inquest report Ext.3. He arrested the appellant and while in police custody, on the information of the appellant, the weapon of offence i.e., axe (M.O.I) was recovered from the house of the appellant under seizure list Ext.4, the blood stained dhoti of the appellant was also seized under seizure list Ext.6. The dead body was sent for post mortem examination to District Head Quarters Hospital, Sundargarh where P.W.12 Dr. Sarat Chandra Naik conducted post mortem examination and submitted his report vide Ext.21. The wearing apparels of the deceased were also seized after post mortem examination. The appellant was then forwarded to Court after collection of his nail clippings and sample blood. P.W.10 sent the weapon of offence to the autopsy surgeon for his opinion. On the prayer of the I.O., the statements of the witnesses were recorded by the learned S.D.J.M., Sundargarh under section 164 Cr.P.C.. The incriminating articles 5 were sent for chemical examination and after completion of investigation, charge sheet was submitted against the appellant.
4. The defence plea is one of denial.
5. In order to prove its case, the prosecution examined 12 witnesses.
P.W.1 Bainu Naik is the younger brother of the appellant and he is the informant in the case and he stated about the quarrel between the appellant and the deceased on the date of occurrence. He did not support the prosecution case for which he was declared hostile by the prosecution.
P.W.2 Phulamani Naik is the wife of the deceased and mother of the appellant and she stated about the quarrel between the appellant and the deceased and further stated to have seen the appellant leaving her house with an axe. She also did not support the prosecution case for which she was also declared hostile by the prosecution.
P.W.3 Narayan Kalo stated to have seen the appellant going away from the house of the deceased with an axe on the date of occurrence. He too was also declared hostile by the prosecution.
P.W.4 Arjuna Pruseth is a witness to the inquest report Ext.3, seizure of axe under seizure list Ext.4, blood stained earth 6 and sample earth under seizure list Ext.5 and blood stained dhoti of appellant under seizure list Ext.6.
P.W.5 Hrudanand Pandab is a witness to the inquest. P.W.6 Sarita Naik is the daughter of the appellant and she is a post occurrence witness who stated to have noticed bleeding injuries on the neck and forehead of the deceased.
P.W.7 Susama Naik is the sister-in-law (younger brother's wife) of the appellant but she also did not support the prosecution case and was declared hostile.
P.W.8 Guru Charan Patra was the constable attached to Town Police Station, Sundargarh who took the appellant to the District Head Quarters Hospital, Sundergarh for his medical examination and collection of nail clippings.
P.W.9 Mangalu Munda was the Constable who took the dead body for post mortem examination and collected wearing apparels of the deceased after post mortem examination.
P.W.10 Bishnu Chanaran Mishra was the investigating officer.
P.W.11 Sujit Kumar Sahoo was the S.I. of police who reduced the oral report of the informant into writing. 7
P.W.12 Dr. Sarat Chandra Nayak conducted post mortem examination over the dead body and proved his report vide Ext.12.
The prosecution exhibited 21 documents and also marked the seized axe as M.O.I. Ext.1 is the statement of P.W.2 before Magistrate, Ext.2 is the statement of P.W.3 before Magistrate, Ext.3 is the inquest report, Exts.4, 5 and 6 are the seizure lists, Ext.7 is the statement of P.W.6 before Magistrate, Ext.8 is the requisition of I.O., Ext.9 is the report of Asst. Surgeon of District Head Quarters Hospital, Sundargarh, Ext.10 is the Command Certificate, Ext.11 is the dead body challan, Ext.12 is the First Information Report, Ext.13 is the Spot Map, Ext.14 is the confessional statement, Ext.15 is the seizure list of wearing apparels, Ext.16 is the seizure list, Exts.17 and 18 are requisitions, Ext.19 is the forwarding letter of S.D.J.M., Sundargarh, Ext.20 is the chemical examination report and Ext.21 is the post mortem examination report.
No witness was examined on behalf of the defence.
6. The learned counsel for the appellant Mr. J. Katikia submitted that since the case is based on circumstantial evidence and the circumstances brought on record by the prosecution are not clinching and the chain of circumstances is not complete, the 8 appellant is entitled to get benefit of doubt. He further contended that the learned trial court has committed illegality in relying upon the 161 and 164 Cr.P.C. statements of P.W.2 when those are not substantive evidence. He further contended that there was inordinate delay in sending the axe and dhoti seized during investigation from the appellant for chemical examination and therefore no implicit reliance can be placed on the chemical examination report.
The learned Additional Standing Counsel Mr. Sk. Zafarulla on the other hand while supporting the impugned judgment contended that the circumstances established by the prosecution do not leave any reasonable doubt to come to an irresistible conclusion that it is the appellant and appellant alone who has committed the crime.
7. Considering the submissions from the respective parties and after going through the evidence on record, we find that there is no direct evidence in this case as to who committed the murder of the deceased. The case rests upon circumstantial evidence. Keeping in view the five golden principles laid down by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda -v-State of Maharashtra reported in AIR 1984 SC 1622 which their Lordships termed as "panchsheel'' in the proof 9 of a case based on circumstantial evidence, we have to see as to how far the circumstances from which the conclusion of guilt is to be drawn have been fully established by the prosecution and how far the facts established are consistent only with the hypothesis of the guilt of the appellant and not explainable on any other hypothesis. We have also to see whether the circumstances are of a conclusive nature and tendency and the chain of evidence is so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant and to come to an irresistible conclusion that the act must have been done by the appellant. Since in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion taking the place of legal proof, we have to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. It is said that the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely is it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. 10
8. First of all let us see how far the prosecution has established that the deceased met with a homicidal death. Apart from the inquest report Ext.3, P.W.12 Dr. Sarat Chandra Naik who conducted post-mortem over the dead body of the deceased on 13.4.2005 at District Headquarters Hospital, Sundargarh noticed the following external and internal injuries:-
External Injuries
(i) Abrasion of size 3" X 2" on the middle portion of left fore arm laterally;
(ii) Abrasion of size 1' X 1" on the left chest in midclavicular line;
(iii) Lacerated wound of size 4" X 4" X ¼" on the sternal area 2" below the sternal notch;
(iv) Incised wound of size 3" X ½" X ½" on left front scalp vertically 2" away from midline;
Internal Injuries Cranium- The membranes and brain matter of left frontal lobe was lacerated and vault was filled with non-clotted blood;
11
(i) Thorax- The right pleura was torn out and there was lacerated wound of size 2" X ½" X 1" over upper lobe of right lung laterally. The anterior part of pericardium was lacerated. There was lacerated wound of size 1" X ½" X ½"
over upper part of right chamber of heart. The anterior lobe of liver was lacerated of size 2" X 1" X 1".
(ii) There was complete fracture of left frontal bone vertically, right 3rd, 4th, 5th, 6th ribs in midclavicular line, left 2nd, 3rd, 4th rib in midclavicular line.
The doctor gave his opinion that all the injuries were ante mortem in nature and internal injuries in brain, lung, liver and heart and external injuries on scalp, chest were sufficient in ordinary course of nature to cause death and the cause of death was due to hemorrhagic shock on account of injuries to the vital organs like brain, lung, liver and heart. The post-mortem report has been marked as Ext.21. The learned counsel for the appellant has not challenged the evidence of P.W.12 or the findings in post- mortem examination report. After going through the evidence on record particularly the evidence of P.W.12 and Ext.21, we hold that the prosecution has conclusively established that the death of 12 the deceased was homicidal in nature and it was due to hemorrhagic shock.
9. P.W.1 has stated that before he proceeded to the tank to attend call of nature, he found the appellant and the deceased were quarreling and when he returned, he found the appellant going with an axe and on his arrival in the courtyard, he found the deceased lying dead with injury on his forehead. He has further stated that he was told by his mother about the assault on the deceased by the appellant. The mother of P.W.1 has been examined as P.W.2 but she has neither stated to have seen the assault on her deceased husband nor to have intimated P.W.1 regarding any assault made by the appellant on the deceased. Thus the evidence of P.W.1 that his mother told him about the assault to the deceased by the appellant is not admissible in law being hearsay in nature.
Both P.W.1 and P.W.2 have categorically stated that they have not seen the assault. After being declared hostile by the prosecution, P.W.2 was confronted with her previous statements recorded under section 161 Cr.P.C. and section 164 Cr.P.C. and she has stated as follows:-
13
"4.I was examined by police. It is a fact that I have stated before the police that Chaitu (appellant) came to my house with an axe and dealt 2 or 3 Tangia blows on the forehead, chest of the deceased and I shouted saying not to assault the deceased. The deceased fell down on the ground with bleeding injuries.
xx xx xx
8.I was examined by the Magistrate after the occurrence. I have stated before the Magistrate that about one month back, my accused son assaulted my husband by means of an axe as a result of which my husband succumbed to the injuries....."
The learned Addl. Standing Counsel submitted that since P.W.2 has admitted in her evidence to have stated not only before police in her statement recorded under section 161 Cr.P.C. but also before the Magistrate recorded under section 164 Cr.P.C., the evidence should be accepted and on basing on such statements, the order of conviction can be sustained.
We are not at all impressed with the argument advanced by the learned Addl. Standing Counsel. P.W. 2 has specifically stated that on the night of occurrence, he was not in her house and had gone to bring water and she has not seen the assault. A statement recorded under section 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of section 162 Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner 14 laid down in the said proviso. Such a statement cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. Similarly statement of a witness recorded under section 164 Cr.P.C. is not substantive evidence. Substantive evidence is one which is given by witness in Court on oath in presence of the accused. Statement of a witness under section 164 of the Code is recorded in absence of accused and as such it is not substantive evidence. The statement of a witness under section 164 Cr.P.C. is recorded being sponsored by the investigating agency. During course of trial, if the witness does not support the prosecution case and declared hostile by the prosecution then the prosecution with the permission of the Court can confront his previous statement made before the Magistrate to him. A statement recorded under section 164 Cr.P.C. can be used either for corroboration of the testimony of a witness under section 157 of the Evidence Act or for contradiction thereof under section 145 of the Evidence Act.
In case of State of Delhi -v- Shri Ram reported in AIR 1960 SC 490, it is held that the statements recorded under section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was 15 recorded under section 164 of the Code and that what he had stated there was true would not make the entire statement admissible, much less could any part of it be used as substantive evidence. In case of Baij Nath Sah -v- State of Bihar reported in (2010) 46 Orissa Criminal Reports 669, the Hon'ble Supreme Court held that a statement under section 164 of the Code is not substantive evidence and can be utilized only to corroborate or contradict the witness vis-à-vis statements made in Court. In other words, it can be only utilized as a previous statement and nothing more.
In view of the settled principle of law, we cannot use the admission of P.W.2 to have stated before the police as well as before the Magistrate as an eye witness to the occurrence as substantive evidence particularly when she has specifically stated that she has not seen the assault and she was not present in the house. The learned trial Court was not justified in treating P.W.2 as an eye witness to the occurrence. We therefore cannot accept the contentions raised by the learned Addl. Standing Counsel that P.W.2 is an eye witness to the occurrence.
10. P.W.3 has stated that at the time of occurrence, he was in his house and hearing hullah when he came outside, he found the 16 appellant going with an axe from the house of the appellant and then he went to the house of the deceased and found him lying with bleeding injuries on his head and neck. Though he has admitted to have stated before police that when he arrived at the spot, he saw P.W.2 was shouting saying that the appellant had killed her husband but in absence of corroboration from P.W.2 to that effect, we are not inclined to accept that part of evidence of P.W.3. P.W.2 has stated that she did not raise hullah. P.W.3 has categorically stated in his cross examination that he has not seen the assault and other persons of his village were also not present at that time. If P.W.2 has not raised any hullah, the statement of P.W.3 that hearing hullah, he came outside and saw the appellant going away with an axe is also not acceptable.
Even though P.Ws. 1, 2 and 3 have stated to have seen the appellant going with an axe but none of them have stated that they noticed any blood on the axe or any dribbling of blood from the axe. P.W. 6 who is the daughter of the appellant though stated in the chief examination that she found the appellant holding a blood stained Tangia but in the cross-examination she has stated that she has not seen the appellant holding any axe. Even if we accept the prosecution case to the extent that the 17 appellant was moving with an axe but that circumstance alone is not sufficient to hold the appellant guilty.
11. The evidence of recovery of an axe at the instance of the appellant and recovery of the dhoti of the appellant are also not sufficient to hold the appellant guilty of the offence. The seizures of these articles were made on 13.4.2005 but those were produced before the S.D.J.M., Sadar, Sundargarh on 6.6.2005 and accordingly dispatched to Regional Forensic Science Laboratory for necessary examination and opinion. There is no evidence on record as to in what conditions and where all these articles were kept in the interregnum period. In absence of any clinching evidence relating to safe custody of these articles before its production in the Court, the chance of tampering with the same cannot be ruled out and as such the findings of the chemical examination report cannot be given much importance.
12. In view of the evidence available on record, it is difficult to accept that the prosecution has established the case against the appellant beyond all reasonable doubt. The conclusion arrived at by the learned trial court in convicting the appellant and the reasoning assigned for arriving at such conclusion are not at all acceptable and convincing and it seems that the learned trial 18 Court has proceeded on the basis of conjectures and suspicion and has relied upon inadmissible evidence. There is a long distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. Law is well settled that the suspicion howsoever strong cannot take the place of proof.
Thus we hold that the case against the appellant has not been established by the prosecution beyond all reasonable doubt and therefore he is acquitted from the charge under Section 302 I.P.C.
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 sections 302 I.P.C. The appellant is in jail custody since the date of his arrest. He should be released forthwith if he is not required in any other case.
..............................
S.K. Sahoo, J.
VINOD PRASAD, J. I agree.
...............................
Vinod Prasad, J.
Orissa High Court, Cuttack
The 24th February,2015/Nayak
19