Orissa High Court
Akhaya Naik vs State Of Orissa on 20 June, 2000
Equivalent citations: 2000(II)OLR300
Author: P.K. Patra
Bench: P.K. Patra
JUDGMENT P.K. Patra, J.
1. The appellant has challenged the judgment dated 9.7.1993 passed by Shri H. Mohapatra, Sessions Judge, Dhenkanal in Sessions Trial No. 70-D of 1989 convicting him Under Section 302 of the Indian Penal Code (for short 'IPC') and sentencing him to undergo rigorous imprisonment for life.
2. Prosecution case in brief may be stated as follows :
The appellant is the nephew, of the deceased (son of his younger brother), aged about sixty years and both of them were residing in adjoining houses in village Kumarsingha under Balimi Police Station in the district of Dhenkanal. The father of the appellant died three years prior to the occurrence and it was suspected that he died due to practice of witchcraft by the deceased. One day prior to the date of occurrence, i.e., 1.2.1989, somebody had thrown vermilion in the house of the appellant and suspecting that Haguru, son of the deceased, was the miscreant, the appellant went to the deceased at about 1 p.m. on the date of occurrence on 9.2.1989 and challenged him. The deceased was sitting on a charpoy and rolling jute rope near the cowshed in front of his house. The brother and mother of the appellant joined him in challenging the deceased. When the deceased denied the allegation of the appellant and asked him to go to his house and shout at the actual culprit, the appellant was infuriated and attempted a blow by means of a Tangi (a sharp cutting weapon like axe with wider blade), but that blow struck against the pole of the cowshed and the handle of the axe broke from the root. It is alleged by the prosecution that thereafter while the brother and mother of the appellant pressed the deceased on the charpoy, the appellant dealt several blows on the chest, forehead and right ear of the deceased who succumbed to the injuries. P.W.3, the eldest daughter of the deceased was present near the place of occurrence and she proceeded towards Balimi Police Station for reporting the occurrence, but on the way she met P.W.2, the Gramrakshi of the village, and orally reported the occurrence to him. P.W.2 went to the spot for verification and found the deceased lying on a charpoy in a pool of blood. P.W.2 proceeded to Balimi P.S. and orally reported the occurrence to the A.S.I., of the Police Station (P.W. 11) who was in charge of the O.I.C. of the P.S. who reduced the report to writing (Ext. 2), registered the case and took up investigation as it revealed a cognizable case. During investigation P.W.11 examined witnesses, held inquest over the dead-body of the deceased and sent the dead-body for post mortem examination. At 6.15 p.m. on the same day, P. W.13, the Circle Inspector of Police, Sadar, Dhenkanal took overcharge of investigation from P.W. 11. He (P.W. 13) visited the spot, examined witnesses, arrested the appellant's brother (co-accused of the appellant) and seized the blood-stained and sample earth from the spot, the charpoy, some jute and jute ropes and a broken Tangi under different seizure-lists. He also seized the wearing apparels of the deceased, viz.. a Dhoti (M.O. II) and a banian (M.O. III) on production by the Constable after the post mortem examination. On the date of his arrest, the co-accused of the appellant was forwarded to Court in custody. On 13.2.1989 the appellant was arrested at Hindol Town where he was revealed and his Lungi (M.O. IV) which he stated to have put on at the time of the occurrence, was seized suspecting that there were blood-stains on it. It is further alleged by the prosecution that the appellant while in police custody led the investigating officer and the witnesses on the next day at 7 a.m. to Jharbeda jungle and gave recovery of the weapon of offence, i.e. the knife (M.O.I) stating that he used that knife to stab the deceased and had concerted the same inside a bamboo bush. P.W.13 sent M.O.I to the medical officer for his examination and report as to whether the injuries found on the deceased could have been caused by the said weapon and the medical officer opined in affirmative. Then the seized material objects were sent for chemical examination to the S.F.S.L., Rasulgarh. The third accused (mother of the appellant) was arrested on 23.3.1989 and forwarded to Court in custody. After completion of investigation, P.W.13 submitted charge-sheet against the three accused persons who stood their trial. While the appellant was found guilty and convicted of the charge, the other two accused persons were found not guilty and acquitted.
3. The plea of defence is one of denial.
4. In order to bring home the charge against the accused persons, prosecution examined thirteen witnesses of whom P.W.2 is the Gramrakshi who lodged the FIR (Ext. 2), P.W.I is a witness to the inquest, P.W.3 is the daughter of the deceased who is an eye-witness to the occurrence. P.Ws. 4, 8 and 9 were examined as eye-witnesses to the occurrence but P.Ws. 8 and 9 turned hostile and did not support the prosecution case. P.W.5 is a witness to the seizure. P.W. 6 is the medical officer who conducted the post mortem examination over the dead-body of the deceased and submitted the report (Ext. 4). P.W.7 is a witness to the seizure of the wearing apparels of the deceased. P.W. 10 is a witness to the seizure of the weapon of offence, i.e., the knife (M.O.I) on the information given by the appellant. P.W. 11 is the A.S.I. of the Police Station who registered the case. P.W. 12 is the Havildar of the Police Station who carried the dead-body to the hospital for post mortem examination, and P.W. 13 is the investigating officer. The defence has examined none.
5. Shri S. K. Das, learned counsel for the appellant, and the learned Additional Govt. Advocate for the State were heard at length. Shri Das challenged the judgment of the learned Sessions Judge contending that he has failed to appreciate the evidence on record properly and has come to the erroneous conclusion that appellant was the author of the crime while disbelieving the prosecution case against the co-accused persons of the appellant. The learned Additional Government Advocate supported the impugned judgment as unassailable. The rival contentions require careful consideration.
6. The learned Sessions Judge placed reliance on the statements of two eye-witnesses (P.Ws. 3 and 4) notwithstanding discrepancy in their statements regarding the weapon of offence used by the appellant in inflicting the injuries on the deceased holding that the mis-description of the weapon of offence by P.W.3 was accountable to her failure to recapitulate the incident that took place more than four years prior to her statement in Court and that such lapse was liable to be ignored in view of the fact that P.W.3 is a rustic female. The learned Sessions Judge has relied upon the statements of P.Ws. 8 and 9 so far as they related to the circumstances leading to the occurrence. He also found corroboration from the medical evidence on record and recovery of the weapon of offence on information given by the appellant and reached the conclusion that the appellant was the author of the crime in this case and convicted him, while he held that there was no sufficient material on record to implicate the two co-accused persons of the appellant and acquitted them.
7. The medical officer (P.W.6) who conducted the post mortem examination over the dead-body of the deceased on 10.2.1989 and submitted his report - Ext. 4, found the following injuries :
(i) Incised wound of size 2" x ½ x 3½" on right side of chest, one inch medial to mid-clavicular line and below level of lower border of 7th rib: and
(ii) Incised wound on left forehead, above the eye-brow of size 3/4" x 3/4" x 1/4".
In his opinion, death was due to haemorrhage and shock from injury to vital organs. On 17.2.1989 he also examined the knife (M.O.I) and opined that the injuries found on the deceased as per his report could have been caused by the said weapon. Though the medical officer found two injuries on the chest and forehead of the deceased, P.W.4 stated to have seen that appellant inflicting injuries on the deceased with a knife on his chest, near his eye-brow and near the root of his ear. P.W.3 cannot be believed to be truthful, inasmuch as she has stated that the appellant dealt stab blows by means of an axe on the forehead, back of the right ear and right side chest of the deceased. Hence, the statement of P.W.3 and that of P.W.4 are not consistent with each other and with the medical evidence on record and hence their presence at the spot at the time of occurrence is found to be doubtful.
8. The investigating officer (P.W. 13) has stated that he seized the charpoy, jute and jute rope, broken handle of the Tangi and the Tangi under the seizure-list Ext. 3/1 at the spot. But the seized Tangi and its broken handle have not been produced in Court and it is not known what prevented the prosecution to produce the same in Court. The same should have been produced in Court in view of the prosecution allegation that the appellant first attempted a blow by means of that Tangi at the deceased which did not materialise and struck against a bamboo pole of the cowshed. The bamboo pole of the cowshed against which Tangi struck has also not been seized nor produced in Court. Prosecution has alleged that the appellant had carried a Tangi as well as the knife (M.O.I) with him while he went to challenge the deceased, which appears to be incredible, inasmuch as the appellant could not have thought that in case he failed to strike the deceased with the Tangi he would wield the knife against him. Though P.W.3 stated that the appellant dealt stabbing blows by means of an axe on the forehead, back of right ear and right side chest of the deceased, P.W.4 has stated that the appellant attempted an axe blow on the deceased which did not materialise and thereafter he assaulted the deceased with the knife on his chest, near his eyebrow and near the root of the ear, while the two co-accused persons of the appellant were holding the deceased. P.Ws.3 and 4 were not shown either the Tangi or the knife (M.O.I.) in Court to state that the same had been used as the weapon of offence to inflict the injuries on the deceased. The serologist's report (Ext. 12) reveals that the blood group found on the knife (M.O.I) could not be determined due to deterioration. Therefore, the prosecution story that the appellant inflicted the injuries on the deceased by means of the knife (M.O.I) cannot be said to have been established beyond reasonable doubt.
9. In the case of Salveraj v. State of Tamil Nadu, reported in AIR 1976 SC 1970, it has been held that when the evidence led on behalf of the prosecution is wholly unsatisfactory and it cannot be regarded as sufficient to found the conviction of the appellant for the murder of the deceased, the appellant was entitled to an acquittal. Also in the case of State of Punjab v. Sucha Singh and Ors., reported in 1973 Criminal Appeals Reporter (SC) 393, it has been held that when there are infirmities in the prosecution evidence and the witnesses examined by the prosecution are interested and their evidence was such upon which implicit reliance could not be placed, interference was not called for in the acquittal of the accused. In the case of Madan Naik v. State, 1983 CLR 189, it has been held by this Court that in order to base a conviction on the testimony of a solitary witness, his evidence must be clear, cogent and consistent and should be of unimpeachable character. It has been further held that the doctrine falsus in uno and falsus in omnibus; is not followed by the Courts in India and if a part of the evidence of a witness is found to be false, Court may accept the residue of the evidence if it is found to be true and reliable. But in that case, since the witness had made deliberately false statements to rope in a person and to make his evidence of identification acceptable it was held such conduct of the witness would affect the entire evidence and hence it would not be safe or prudent to accept any part of his testimony. In a murder case, the Court has to be satisfied not of the probabilities, but of the certainty beyond any reasonable doubt that the accused is guilty.
10. Keeping in view the principles enunciated in the decisions referred to above and on an analysis of the evidence on record, it is found that the prosecution has not been able to establish by clear, cogent and convincing evidence that the appellant and appellant alone was the author of the crime. Hence, the conclusion of guilt of the appellant arrived at by the learned Sessions Judge basing on evidence which cannot be said to be unimpeachable, cannot be sustained, the appellant cannot be held guilty and convicted of the charge and his conviction is liable to be set aside. Consequently, the impugned judgment cannot be sustained and is liable to be set aside.
11. In the result, the Jail Criminal Appeal is allowed. The conviction of the appellant Under Section 302, IPC and the sentence passed thereunder by the impugned judgment dated 9.7.1993 of the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal in Sessions Trial No. 70-D of 1993 are set aside. The appellant is found not guilty and is acquitted of the charge. He be set at liberty forthwith if his detention is not required in any other case.
R.K. Patra, J.
12. I agree.