Orissa High Court
Suryanarayana Muni @ Kuna Muni vs State Of Orissa on 15 November, 2023
Author: Chittaranjan Dash
Bench: S. K. Sahoo, Chittaranjan Dash
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK.
JCRLA No.92 of 2005
(An Appeal challenging the judgment and order of conviction dated 11.04.2005
passed by Shri S.R. Bohidar, Adhoc Addl. Sessions Judge, Fast Track, Aska in
Sessions Case No.21 of 2004 / Sessions Case No.53 of 2003 GDC, for the offence
under Section 302, I.P.C.)
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Suryanarayana Muni @ Kuna Muni ... Appellant
Mr. Pulakesh Mohanty, Advocate
Versus
State of Orissa ... Respondents
Mr. Sonak Mishra, Addl. Standing Counsel
CORAM :
JUSTICE S. K. SAHOO
JUSTICE CHITTARANJAN DASH
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Date of Judgment : 15.11.2023
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Chittaranjan Dash, J.
1. This Appeal is directed against the judgment and order dated 11.04.2005 passed by the Ad-hoc Additional Sessions Judge, FTC, Aska in Sessions Case No.21 of 2004 / Sessions Case No.53 of 2003 GDC arising out of Aska P.S. Case No.204 of 2002 corresponding to G.R. Case No.321 of 2002, wherein the Appellant who faced trial on the charge under Section 302, Indian Penal Code (herein after in short called the 'IPC'), having found guilty, has been sentenced to undergo imprisonment for life and to pay fine of Rs.5000/- (five thousand), in default to pay the fine, to undergo R.I. for three years more.
JCRLA No.92 of 2005 Page 1 of 18 22. The prosecution case, as reveals from the F.I.R. and the case record, is that on 29.08.2022 at about 9.30 AM the deceased Prakash Chandra Muni, who was engaged as a priest in Tribideswar Temple, Aska, was preparing 'Prasad' in that temple's kitchen to offer the same to the deity. The Appellant Suryanarayana Muni @ Kuna Muni, who belongs to Sana Munisahi and also a priest in the said temple, appeared there and abused the deceased in filthy languages. On being challenged by the deceased forbidding use of such abusive language in the temple premises, the Appellant assaulted the deceased by means of a knife in front of the inner sanctum near the Bull Statue, causing grievous bleeding injuries on both side of his abdomen as well as on the rib of the chest so also on the left shoulder. After assaulting the deceased, the Appellant fled away from the spot. The informant along with others shifted the deceased to the nearby hospital, wherefrom the doctors referred the deceased to the MKCG Medical College & Hospital, Berhampur for better treatment, finding the condition of the deceased to be critical. It further reveals that in connection with the alleged incident, F.I.R. was lodged with the Aska Police, which having registered, the investigation commenced. At the time of lodging of F.I.R., since the deceased was alive and was undergoing treatment, the case was registered under Section 307, IPC along with other allied offences. Subsequently, as the deceased succumbed to the injuries, the case turned to one under Section 302, IPC.
3. In course of the investigation, the initial I.O. examined the complainant / informant and other witnesses on the very same day at about 12.20 PM, issued the Injury Requisition in respect of the injured JCRLA No.92 of 2005 Page 2 of 18 3 (deceased) Prakash Chandra Muni addressing the Medical Officer, Govt. Hospital, Aska, wherefrom the injured was immediately referred to MKCG Medical College & Hospital, Berhampur. The I.O. arrested the Appellant Suryanarayana Muni @ Kuna Muni at 2.00 PM on the same day and forwarded him to Court. He visited the hospital and examined the injured at MKCG Medical College & Hospital, Berhampur, seized one gray colour towel on production by Subash Ch. Muni., which was stained with blood of the deceased, under Ext.6. He sent the requisition to the Medical Officer, MKCG Medical College & Hospital in respect to the injuries of Prakash Chandra Muni. On 03.09.2002 the I.O. received information from the Medical Authority to the effect that the injured Prakash Ch. Muni succumbed to the injuries and also received intimation slip to that effect. On receipt of the intimation, the I.O. proceeded to the hospital, held inquest over the dead body in presence of the witnesses under Ext.1. He sent the dead body of the deceased for post-mortem examination to the FMT, Department, MKCG Medical College & Hospital, Berhampur under requisition vide Ext.2 and the dead body challan under Ext.2/2. On the same day he seized the wearing apparels, a cotton sacred-thread and one Command Certificate produced by the constable after the P.M. examination. He also visited the spot and prepared the spot map under Ext.7. On 15.10.2002 he handed over the charge of the investigation to the I.I.C. on his transfer. The I.I.C. having taken over the investigation verified the Case Diary and finally submitted Charge-sheet on 24.10.2002 against the Appellant to stand trial under Section 302, I.P.C.
JCRLA No.92 of 2005 Page 3 of 18 44. The plea of the defence is one of complete denial and false implications.
5. Upon denial of the prosecution gravamen, the learned trial court framed charge against the Appellant under Section 302, IPC and proceeded with the trial.
6. In order to prove the culpability of the Appellant, the prosecution examined 11 witnesses in all and proved documents vide Exts. 1 to 11. The defence examined none in support of its case either oral or documentary.
7. P.W.1 - Manoranjan Panda is an eye-witness to the occurrence. In his evidence on oath he stated that in the intervening night of 2/3.09.2002 the deceased Prakash Kumar Muni died while was under treatment in the MKCG Medical College & Hospital, Berhampur. According to this witness, the occurrence took place on 29.08.2002. On that day at about 9.30 AM he had been to Tribideswar Temple to worship. River Rushikulya flows by the side of the temple towards South. He went to river Rushikulya to wash his legs and while coming to the temple, he heard exchange of words between the Appellant and the deceased and saw the accused Suryanarayan Muni stabbed the deceased on the belly, on both sides on left arm towards upper end and on the left shoulder by means of a knife, as a result the deceased sustained bleeding injury. Seeing the incident, he ran towards the Appellant, but he fled away towards Jagannath Temple carrying the knife with him. He, thereafter, along with others shifted the injured Prakash Muni to Aska Hospital. The JCRLA No.92 of 2005 Page 4 of 18 5 doctor at Aska Hospital referred the injured to the MKCG Medical College & Hospital, Berhampur for further treatment. According to this witness, the injured was shifted to Berhampur Medical, where he died while undergoing treatment. The witness further stated that on 03.09.2002 at about 9.30 to 10 AM the police held the inquest over the dead body of the deceased at MKCG Medical in his presence and prepared the inquest report, which was marked Ext.1 and he proved his signature in the inquest report marked as Ext.1/1. During his cross- examination, the defence elicited that the kitchen room of Tribideswar Temple situates at a distance of about 15 to 20 feet away from the main temple. At the time of incident, besides him, one or two other devotees were present in the temple. Subash Chandra Muni, Kalia Muni and 2 to 3 other Pujakas were also present at the time of occurrence. While he entered in the temple from South entrance and Kalia Muni entered from North entrance, at the relevant time he saw Subas Ch. Muni was inside the Garbha Gruha. He further replied during the cross-examination that the deceased was standing facing towards the East at the time of occurrence and the accused was standing facing towards West. He saw the accused inflicting a knife blow on the left upper arm of the deceased and prior to that he had already inflicted other three blows which he had not seen. It is also elicited in the cross-examination to the effect that, after the incident, for the first time he met Aska Police on 03.09.2002 and he cannot say the date of his examination by the Aska Police, but by approximation he stated that he may have been examined after a week or a fortnight. He reiterated his statements during the cross-examination to JCRLA No.92 of 2005 Page 5 of 18 6 have seen the Appellant stabbing the deceased by a knife and to have fled away towards Jagannath temple.
8. P.W.2 - Deepak Raj Muni is the son of the deceased. He is a post- occurrence witness, who stated to have proceeded to the MKCG Medical College & Hospital, Berhampur on being informed that his father to have been received injuries out of the assault and who expired in the medical in the intervening night of 2/3.09.2002. He also stated that the police held inquest over the dead body of the deceased, wherein he gave his opinion that the injuries could be by means of sharp-cutting knife. He also put his signature on the inquest report, marked Ext.1/2.
9. P.W.3 - Subash Chandra Muni is another eye-witness to the occurrence. According to him, on the date of occurrence when he came to the temple, deceased Prakash Muni was performing his Pujaseva (Pali). The devotees used to worship and take Darshan of the deity standing in the adjacent hall of the main temple. There is a Bull statue made of stone installed in the Darsan Hall. He was inside the Garbha Gruha (sanctum sanctorum) of the temple. At that time he heard a hulla from the Darshan Hall, came out and saw that the Appellant was stabbing Prakash Muni on his backside shoulder and thereafter on the front side belly. Seeing the incident, he raised hullah; the Appellant threw away the knife in the river and fled away crossing the river. According to this witness, Sana Kalia, Bada Kalia and he chased the Appellant but could not catch hold of him. Thereafter, they shifted the injured Prakash Muni to Aska Hospital where he was given first aid and then was referred to JCRLA No.92 of 2005 Page 6 of 18 7 MKCG Medical at Berhampur. The witness further stated that the deceased died at Berhampur Hospital while undergoing treatment. This witness is a Pujaka of Tridebeswar Temple, since the time of his father. For the last 40 years, he is doing Seba Puja of the deity at Tridebeswar Temple. In the cross-examination, this witness stated that, after the death of his father, his three brothers are doing Seva Puja of the deity in rotation and about 12 family used to worship in the temple as Priest. There are 18 to 20 Pujaka in Tridebeswar Temple and they perform Seva Puja on rotation basis. This witness though admitted that some devotees were present at the time of the alleged occurrence, he could not name them. According to the witness, at the time of occurrence the deceased was standing near the Brushava statue facing towards South. The Appellant came from Northern side. Since he came out of the Garbha Gruha, he saw both the Appellant and the deceased were exchanging words. He intervened in the quarrel and separated both of them from the quarrel. At the time of occurrence the deceased was wearing a 'Matha' and holding a towel and the accused inflicted knife blows twice on the back of the neck of the deceased. His attempt to separate the accused at the time of assault, along with 3 others could not be successful. He noticed four injuries on the person of the deceased, i.e. two injuries on the belly and two on the back just below the neck and there was profuse bleeding from the injuries. Blood was sprinkled in the Darsana Gruha. The wall of Darsana Gruha was not stained with blood. He chased the Appellant up to Bada Munisahi and thereafter came back to the temple. He, however, did not accompany the deceased to Aska Hospital.
JCRLA No.92 of 2005 Page 7 of 18 810. P.W.4 - Pratap Chandra Biswal is an official witness.
11. P.W.5 - Bighnaraj Mohapatra is the maternal uncle of the deceased. He stated the deceased to have received stabbed injuries on 29.08.2002 by Appellant Suryanarayan Muni. P.W.5 too is a witness to the inquest held by the police on the dead body of the deceased and signed on the inquest report.
12. P.W.6 - Kalicharan Muni is another eye-witness to the occurrence. According to him, the Appellant and the deceased both were performing Sebapuja of the deity Tribedeswar Mahaprabhu and Chandrasekhar Mahaprabhu of Aska. Both the deities are installed in one boundary in two different temples. He also deposed that he himself is a Pujari. According to him, the occurrence took place on 29.08.2002. On that day, the deceased was performing Seba Puja by offering Bhogo (Prasad) to the deity. The Appellant came to the temple and standing near the Brusava, abused the deceased. By that time the deceased was inside the kitchen, which is situated at a distance of about 7 cubits from the Hall where the statue of Brusabha is installed. The deceased came out of the kitchen and forbade the Appellant not to abuse him. There was exchange of hot words between the Appellant and the deceased, and at that time the Appellant stabbed the deceased by means of a knife on his belly, shoulders (both sides) and on the back causing bleeding injury on the persons of the deceased. The occurrence took place where the Brushabha is installed in the main hall of the temple, which is also the Darsan Hall. He caught hold of the deceased. The Appellant after assaulting the deceased, fled away from the spot. Some persons chased him, but could JCRLA No.92 of 2005 Page 8 of 18 9 not catch him. Thereafter, he shifted the deceased to Aska Hospital, from where he was shifted to the MKCG Medical College & Hospital at Berhampur, as he was serious after giving first aid. Thereafter, he came back to the Police Station and lodged F.I.R. vide Ext.4.
13. Nothing material could be elicited from this witness shaking the testimony, rather the facts confronted to the witness further emboldened his version.
14. P.W.7 - Tarini Charan Muni is also an eye-witness to the occurrence. He stated that on the relevant date, the occurrence took place at about 9 AM. At that time he was present in the temple. On his arrival at the temple, he saw the Appellant Suryanarayan abusing the deceased Prakash Ch. Muni. The deceased Prakash came out from the kitchen and asked the Appellant as to why he is abusing him. During exchange of hot words, Appellant Suryanarayan whipped out a knife which was kept by him covering a towel and stabbed on the belly of the deceased Prakash Muni from his front side and thereafter he stabbed 2 to 3 times successively, causing bleeding injury on the person of the deceased. He along with others tried to catch the Appellant, but the Appellant managed to escape. Thereafter P.W.6 took the deceased to the Hospital and subsequently the deceased died at Berhampur Hospital. This witness was subjected to incisive cross examination but nothing material could be elicited by the defence to shake his credibility.
15. P.W.8 is the doctor, who conducted post-mortem examination over the dead body of the deceased and P.W.9 is the younger brother of the JCRLA No.92 of 2005 Page 9 of 18 10 deceased. He is a post-occurrence witness as well as a witness to the inquest. P.Ws.10 and 11 respectively are the Investigating Officers.
16. The learned trial court having believed the ocular evidence brought through the eye witness account, found the case of the prosecution credible and sufficient to bring home the charges against the Appellant beyond reasonable doubt and found the Appellant guilty of the offence charged and accordingly convicted him and sentenced as above stated.
17. Mr. Mohanty, learned counsel representing the Appellant assailed the impugned judgment, inter alia, on the ground that the testimony of the witnesses suffers from contradictions and are not worthy of credence to sustain conviction there under. It is further contended by the learned counsel that the incident having taken place at the spur of the moment in a fit of anger followed by a sudden provocation, it could not have been brought with the ambit of section 300 IPC. According to learned counsel the death being not one instantaneous, is sufficient to deduce that the Appellant had no intention but knowledge that the injuries is likely to cause death of the deceased and at best could be brought one under section 304 Part II of the IPC. Mr. Mohanty also submitted that the prosecution has utterly failed to bring the motive behind the assault, which is a vital element and the impugned judgment having not assessed in consonance with law and fact, is liable to be set aside.
18. Learned State Counsel Mr. Mishra, on the contrary submitted that the evidence brought by the prosecution through P.Ws.2, 3, 6 and 7 is not only consistent to each other but also coherent to themselves and JCRLA No.92 of 2005 Page 10 of 18 11 corroborates the medical evidence as the nature of and place of injuries and they being natural witnesses, whose presence at the scene of occurrence is beyond doubt, has rightly been relied upon by the learned trial court. Further, Mr. Mishra pointed out that the injuries inflicted being so cruel that despite the immediate medical intervention and treatment of best kind, the injured succumbed to the injuries, which speak of not only the intention but knowledge of the Appellant in inflicting the injuries to the vital part of the body that resulted fatal. Mr. Mishra also submitted that there is evidence to the effect that the Appellant had premeditation in inflicting the assault by means of dangerous weapon having brought inside the temple with him, which, a person with prudence cannot conceive of while coming to the temple normally and giving successive blows without any kind of provocation but by inciting himself bring a clear case of murder within the meaning of section 300 IPC and as such the impugned order does not suffer from any illegality that requires interference.
19. At the outset, before delving into the merit of the case, it is imperative to examine the conclusion arrived at by the learned trial court holding the death of the deceased to be homicidal. In this context, besides the ocular versions, the evidence brought through P.W.8 (the doctor) who conducted the post-mortem examination, assumes importance. In his evidence on oath, P.W.8 stated to have conducted the post-mortem examination of the dead body of the deceased on 03.09.2002 and found as follows :-
JCRLA No.92 of 2005 Page 11 of 18 12(i) Two drainage tube stitched by silk sutures present on either side of flank, 12 cm and 18 cm from umbilicus on right and left side respectively. So also another drainage tube on left lower chest along with anterior axillary line could be detected.
(ii) Stitched wound present over the midline of abdomen, starting 3 cm below the xiphisternum extending downwards with intact black silk sutures of length 14 cm.
(iii) Stitched wound obliquely placed over the right upper abdomen with intact two silk sutures measuring 2.5 cm, present 7 cm above and 2cm right lateral tube umbilicus.
(iv) Stitched would obliquely present over the left lateral side of chest with intact stitches in mid-auxiliary line 29 cm below the armpit measuring 2.5cm.
(v) Spindle shaped cut would of size 2cm x 1 cm muscle deep present over the tip of left shoulder with tailing downwards along with anterior auxiliary line.
(vi) Spindle shape cut wound of 4cm x 1cm present over posterior aspect of left shoulder 4 cm below and 3 cm posterior to external injury no.(v).
On dissection, I found the following injuries :-
(vii) On exploration of external injury No.1 and 2, it was found that both the injuries were surgically maneuvered injuries and on removal of the stitches of other injuries, the following injuries detected:
(viii) External injury No.(iii) causes stab wound measuring 2.5 cm x 0.5 x abdomen cavity. On further exploration and removal of stitches of stitched transverse colon, it was ascertained that the stab injury on its JCRLA No.92 of 2005 Page 12 of 18 13 way it has penetrated to transverse colon up to its lumen which was found stitched with adhesion of omentun, the direction being downwards and medially.
(ix) External injury No.(iv) was a stab wound measuring 2.5 cm x 0.7 cm x abdominal cavity . On further exploration and removal of stitches of the stitched splenic flexure it was ascertained that the stab injury on its way has pierced the splenic flexure which was found stitched with adhesion of omentum. The stitched size will look inflame oxidative material found stitching to it.
Opinion :-
(i) Above mentioned injuries were anti-mortem in nature.
(ii) External injury No.(i) and ii including the corresponding injury were surgically maneuvered injuries while rests of the injuries were caused by cutting pointed weapon.
(iii) The deceased died of complication arising out of above mentioned injuries (Injury No.iii & iv).
(iv) The time since death at the time of P.M. examination was around 12 hours.
(v) Dried blood stained gauge was preserved.
20. In his cross-examination, the doctor stated that no weapon of offence was produced before him. Nothing material could be brought from the doctor disputing his opinion as to the homicidal nature of death of the deceased. The inquest report proved vide Ext.4 reveals the immediate cause of death to be the injuries sustained by the deceased and goes unchallenged. Having regard to the aforesaid evidence that substantiates JCRLA No.92 of 2005 Page 13 of 18 14 the cause of death to be the complications of the injuries sustained by the deceased and homicidal in nature coupled with the ocular evidence of P.Ws.1, 3, 6 & 7 who witnessed the incident and gave narration of the manner of assault, the weapon used in the assault receives well deserved conclusion by the learned trial court holding the deceased to have died of homicidal death.
21. The next question comes is whether the Appellant is the perpetrator of the act alleged. Admittedly, the prosecution case is based on the direct evidence of the eye-witnesses account. All the four witnesses claimed to have seen the occurrence being present closely to the scene of occurrence and vividly narrated the manner in which the incident took place right from the beginning till they shifted the injured to the hospital. The very fact that the place of occurrence is a temple and the witnesses being the devotees and servitors, their presence being natural cannot be doubted, more particularly at the time when the occurrence took place, which is the time normally for the devotees to come to the temple to offer prayer and the priests remain engaged in offering Puja Seva to the deities. The presence of none of these eye-witnesses can otherwise be doubted, as the witnesses (P.Ws. 3, 6 and 7) have very clearly and categorically stated that they too offer Seva Puja on rotation basis in spell. Nothing in the evidence has been brought to dispute that these eye-witnesses who got engaged in the Seva Puja of the deity on the relevant day were not in their usual turn. Further, the presence of the witness, i.e. P.W.1 as devotee at the place of occurrence is also natural. Hence, presence of these witnesses at the scene of occurrence is so close that nothing can be JCRLA No.92 of 2005 Page 14 of 18 15 doubted on the version of the witnesses as to the tenor and the manner of assault narrated by them exhorted by the Appellant on the deceased. The Appellant himself being one of the Pujakas, his identity is also not in dispute. The consistent evidence of the witness that substantially corroborates their earlier statement recorded U/s. 161 Cr.P.C inspires confidence to accept their versions as truthful and above board. The witnesses have given a true account of what transpired on the day of occurrence and there was nothing to bring out in the cross examination to reject their testimony which is free from embellishment. They are credible and natural witnesses on whom the court was inclined to place reliance for further reason that the ocular version finds well corroborated to the medical evidence. There being ample of credible evidence that the Appellant used a dangerous weapon like knife and gave successive blows to the stomach of the deceased, which, according to the opinion of the doctor is fatal in nature resulting the death of the deceased later, can reasonably be gathered that the Appellant had intention to murder.
22. The argument of the learned counsel for the Appellant that the assault is the result of a sudden provocation finds no support in the evidence. To invoke this exception, four requirements must be satisfied namely (i) it was a sudden fight, (ii) there was no premeditation, (iii) the act done was in heat of passion, and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. To sum up in a sudden fight in order to apply the Exception 4 to Section 300, IPC, the Appellant must be shown to have not taken undue advantage or that he did not act in a cruel or unusual manner inflicting the injury (Suresh Kumar v. State of H.P., JCRLA No.92 of 2005 Page 15 of 18 16 2008 Cri. LJ, SC). Taking the overall view in the instant case, when the evidence is seen, it emerges that the Appellant having appeared at the scene started abusing the deceased in filthy language inciting himself voluntarily being armed with knife obviously that has not been picked up anywhere from or nearby the spot and immediately stabbed the deceased when he challenged forbidding him from using such abusive language in the temple premises, fully establishes the factum of premeditation and further the successive blows given by the Appellant not only to the vital part of the body but indiscriminately to other portion too giving no opportunity to the deceased to escape. As discussed in the evidence, the intensity and gravity of the injuries are such that despite a timely medical intervention by providing best medical treatment, he succumbed to it. Consequently, none of the elements found present to deduce the act of the Appellant to be one within any of the exceptions of Section 300 IPC to consider the same as culpable homicide not amounting to murder receives a probability and the act squarely comes within the ambit of Section 300 IPC.
23. As far as the argument of Mr. Mohanty as to the absence of a motive having proved in the case, the Prosecution probabilises a short of cogent material to implicate the Appellant belies by the well settled principles of law that when the case of the Prosecution is based on evidence of eye witnesses, the existence or non-existence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence, since the case of the JCRLA No.92 of 2005 Page 16 of 18 17 Prosecution has to be decided on the basis of merit of the evidence of such witnesses.
24. In the result, therefore, we are of the considered view that the learned trial court is justified in holding the Appellant to be the author of the murder and has rightly convicted and sentenced him therewith. The impugned Judgment requires no interference. The same stands confirmed. The JCRLA is dismissed. Since the Appellant is on bail, he shall surrender forthwith before the learned trial court within a period of fifteen days from the date of this order to serve the sentence.
Before parting with the case, we feel it necessary to observe that this Court while in seisin of the Appeals come across the evidence recorded by the courts during trial. It is invariably seen that the courts while recording evidence are remaining oblivious to the compliance of some procedural part that receives weight of evidence in the circumstance of the case, absence whereof preclude the court to assess its evidential value, particularly cases based on circumstantial evidence. As observed in this case too, the I.O. in his evidence although states that in course of the investigation he examined the injured and recorded his statement U/s 161 Cr.P.C with utmost promptitude, clearly disclosing the cause of injury is not taken to the evidence on record by the trial court. Needless to say that such statement becomes a dying declaration upon the death of the injured and receives great importance in the realm of the circumstantial evidence, the evidential value of such statement though is matter of evaluation but absence of taking the said statement to the JCRLA No.92 of 2005 Page 17 of 18 18 evidence on record precludes the court to read the same in evidence. We are, therefore, of the view that the trial courts must remain alive to this aspect scrupulously while recording evidence.
(Chittaranjan Dash)
Judge
S.K. Sahoo, J. I agree.
( S.K. Sahoo )
Judge
S. K. Parida, ADR-cum-APS
Dated the 15th November, 2023.
Signature Not Verified
Digitally Signed
Signed by: SAMIR KUMAR PARIDA
Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY
Reason: Authentic Copy
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Nov-2023 18:32:30
JCRLA No.92 of 2005 Page 18 of 18