Orissa High Court
Kalia Singh & Others vs State Of Orissa on 14 July, 2015
Author: S.K.Sahoo
Bench: Vinod Prasad, S.K.Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
Criminal Appeal No. 273 OF 1996
From the judgment and order dated 12.08.1996 passed by the
Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.42 of 1994.
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Kalia Singh & others ........ Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Miss Aditi Hota
For Respondent: - Mr. Janmejaya Katikia
Addl. Govt. Advocate
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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
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Date of Argument- 10.07.2015 Date of Judgment- 14.07.2015
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S.K.SAHOO, J.The appellants faced trial in the Court of learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.42 of 1994 for offence punishable under section 302/34 Indian Penal Code for committing murder of one Jaga Singh (hereafter 'the deceased') by means of a Katari in furtherance of their common intention on 4.8.1993 at about 6.00 a.m. at village Badkhiripada under Baisinga Police Station in the district of Mayurbhanj.
2The learned trial Court vide impugned judgment and order dated 12.08.1996 held the appellants guilty under section 302/34 IPC and accordingly convicted them of such offence and sentenced them to undergo rigorous imprisonment for life.
2. On 04.08.1993 one Smt. Sambari Dei (P.W.1), wife of the deceased appeared at Baisingha Police Station and submitted oral report before Officer-in-charge of the said Police Station namely Sri Ranjit Kumar Bhoi (P.W.7), which was reduced to writing by P.W.7 and accordingly Baisingha P.S. Case No.84 of 1993 was registered under section 302/34 IPC against the three appellants.
As per the First Information Report (Ext.7), it is the prosecution case that prior to the Raja Festival of the year 1993, the minor son of one Ram Singh who was suffering from fever expired. A meeting was convened in the village where accusation was leveled against the deceased to be responsible for such death. Appellant no.1 Kalia Singh and his sons assaulted the deceased in the meeting. Out of fear, the deceased and his wife (P.W.1) left their village Badkhiripada and started staying in their daughter's house in village Hatijhuri. After Raja Festival, when the sons of the deceased went back to Cuttack to their place of work, the deceased and P.W.1 returned to reside in their village Badkhiripada. At this, the appellant no.1 and his family members were very much aggrieved on the deceased.
3
It is the further case of the prosecution as per FIR that on the previous day of the occurrence during the evening hours, the deceased and P.W.1 had been to the house of a co-villager namely Hari Singh where the appellants arrived and threatened to kill them. The matter was pacified by one Patara Singh and the deceased and P.W.1 came back to their house. After taking dinner, the couple went to sleep.
It is the further case of the prosecution as per FIR that on the next day morning i.e. on 04.08.1993 at about 6.00 a.m., while P.W.1 was sitting on the verandah and the deceased was urinating in the front courtyard, at that time the appellants came there and appellant no.1 caught hold of the hands of the deceased and appellants no.2 and 3 assaulted the deceased by means of Katari. When P.W.1 requested the appellants not to assault the deceased, she was threatened with dire consequence by the appellants. P.W.1 became senseless looking at the bleeding condition of her husband. After regaining sense, she narrated about the incident before co- villager Hari Singh and then informed her son-in-law Bhima Singh who was staying in village Hatijhuri and then came to Baisingha Police Station to submit the report.
3. P.W.7 took up investigation of the case, examined the informant (P.W.1) at the police station and sent a constable to the spot to guard the dead body. The I.O. then proceeded to the spot 4 where he conducted inquest over the dead body in presence of witnesses and prepared inquest report Ext.8. Some more witnesses were examined by the I.O. and he sent the cadaver of the deceased to Government Hospital, Balasore for post-mortem examination. Dr. Bhabani Shankar Mishra (P.W.3) who was attached to the said hospital as Assistant Surgeon conducted post-mortem examination and prepared his report Ext.1.
The I.O. then seized blood-stained earth and sample earth from the courtyard of the deceased in presence of witnesses and prepared seizure list Ext.9. He also prepared the spot map Ext.10. He seized a Katari (M.O.II) from the house of the appellant no.2 Netra Singh under seizure list Ext.2/1 and another Karari (M.O.I) from the house of appellant no.3 Babu Singh under seizure list Ext.3/1. The I.O. arrested the appellants no.1 and 2 namely, Kalia Singh and Netra Singh and sent them to the doctor for collection of their nail clippings and subsequently seized their nail clippings under seizure lists Ext.11 and Ext.12. He also received the post-mortem report. Appellant no.3 surrendered in Court. On 12.10.1993, the I.O. sent query to the Medical Officer of Government Hospital, Balasore seeking opinion regarding possibilities of injuries on the deceased by M.O.I and M.O.II. On 27.10.1993, the I.O. sent all the incriminating articles to S.F.S.L., Bhubaneswar for chemical examination through 5 S.D.J.M., Baripada. On 30.10.1993, the I.O. submitted charge sheet against the appellants under section 302/34 IPC.
4. After observing due committal formalities, the case of the appellants was committed to the Court of Session for trial where the learned Sessions Judge, Mayurbhanj, Baripada framed charge against the appellants under section 302/34 IPC on 2.1.1996 and since the appellants denied the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.
5. During course of trial, in order to prove its case, the prosecution examined seven witnesses.
P.W.1 Sambari Dei is the widow of the deceased who is an eye witness to the occurrence.
P.W.2 Bhima Singh is the son-in-law of the deceased who stated that P.W.1 intimated him about the occurrence and after hearing the incident from P.W.1, he went to Cuttack to inform the sons of the deceased.
P.W.3 Dr. Bhabani Shankar Mishra was the Assistant Surgeon, Government Hospital, Balasore who on 4.8.1993 conducted post-mortem examination over the cadaver of the deceased and proved his report Ext.1.
P.W.4 Bhanumati Singh stated about the quarrel between the appellants on the one hand and deceased and P.W.1 on the other 6 on the previous day of the occurrence. She further stated that on the date of occurrence, P.W.1 came crying to her house and talked with her husband.
P.W.5 Umakanta Pradhan also stated about the quarrel between the appellants on the one hand and the deceased and P.W.1 on the other on the previous day of the occurrence. He further stated that on the date of occurrence in the morning hours, P.W.1 told him that the appellants killed her husband and further told that she was going to inform her son-in-law.
P.W.6 Budhiram Singh did not support the prosecution case for which he was declared hostile.
P.W.7 Ranjit Kumar Bhoi was the Officer-in-charge of Baisinga Police Station who was the Investigating Officer.
The prosecution exhibited sixteen documents. Ext.1 is the post-mortem report. Exts.2/1, 3/1, 9, 11, 12 and 13 are the seizure lists. Exts.4, 5 and 6 are the requisitions by the I.O. to the Medical Officer Baisinga Government Hospital for collection of the nail clippings of the appellants which were accordingly collected, Ext.7 is the First Information Report, Ext.8 is the inquest report, Ext.10 is the spot map, Ext.14 is the forwarding report of the S.D.J.M., Baripada to SFSL, Bhubaneswar, Ext.15 is the chemical examination report and Ext.16 is the serologist report.
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The prosecution also proved two material objects. M.O.I is a Katari having wooden handle and M.O.II is another Katari having iron handle.
6. The defence plea is one of denial. It is pleaded that P.W.1 had not seen any part of the occurrence and the deceased was dead by the time she woke up.
7. The learned trial Court after assessing the evidence on record held the evidence of P.W.1 to be quite cogent and trustworthy to base an order of conviction and accordingly found all the appellants guilty under section 302/34 IPC and convicted them of such offence.
8. On 16.2.2015 on receiving information from Inspector-in- charge, Baisinga Police Station, it was submitted at the Bar by the learned counsel for the State that appellant no.1 Kalia Singh had expired and accordingly on the very day we passed an order regarding abatement of appeal so far as appellant no.1 is concerned.
9. Miss Aditi Hota was appointed by us as amicus curiae on 16.2.2015 to argue the appeal on behalf of appellants no.2 and 3.
The learned amicus curiae challenging the impugned judgment and order of conviction submitted that the learned trial Court has committed gross illegality in relying upon the evidence of a solitary eye witness like P.W.1, who is none else than the wife of the deceased and accordingly a highly interested witness. She further 8 submitted that the ocular evidence of P.W.1 is contradictory to the medical evidence and therefore implicit reliance cannot be placed on P.W.1. She further contended that the presence of P.W.1 at the time of occurrence which is stated to have taken place in the early morning hours is highly doubtful and in all probability it appears that the deceased was assaulted while P.W.1 was sleeping in the house and when she got up and found her husband dead lying in the courtyard, out of suspicion she has foisted the case against the appellants due to previous rivalry. The learned counsel further submitted that the conduct of P.W.1 at the time of occurrence is a very doubtful feature and therefore it would be risky to base an order of conviction against the appellants relying on such statement and accordingly urged that the appeal be allowed and the appellants be set at liberty.
Mr. Janmejaya Katikia, learned Additional Government Advocate, on the other hand submitted that the evidence of P.W.1 is clear, cogent, trustworthy and absolutely reliable and therefore the learned trial Court has rightly placed reliance on her testimony. He further submitted that the presence of P.W.1 who is none else than the widow of the deceased in her house in the early hours of the morning is quite natural and since the assault occurred all on a sudden and the appellants fled away from the spot after committing the crime and P.W.1 was threatened by the appellants who were 9 armed with weapons when she protested and the appellants did not pay any heed to her protest, it cannot be said that there is any abnormality in her conduct to discard her version. The learned counsel further urged that the prosecution has also proved the motive behind the crime and the autopsy doctor's evidence corroborates the ocular evidence of P.W.1 and accordingly submitted that there is no merit in the appeal and the same should be dismissed.
10. We have given our thoughtful consideration to the rival submissions. Before deliberating over the rival contentions and scanning the submission raised, it would be appropriate to mention here that there cannot be any dispute regarding the deceased having been met with a homicidal death.
According to P.W.3 Dr. Bhabani Shankar Mishra, who was the Assistant Surgeon of Government Hospital, Balasore that he had conducted autopsy examination on the corpse of the deceased on 4.8.1993 and noticed following external injuries:-
(i) Lacerated injury of size 8" x 3 ½" x 3" on the right side of the chest extending from 2" below anterior fold of axilla directing laterally upward and back.
(ii) Lacerated injury of size 6" x 2" x 2" over right upper portion of neck and mandible extending from 2 ½" 10
below the angle of mandible and directing upward medially.
On dissection of injury no.1, the doctor had found laceration of intercostal muscles of third, fourth and fifth with compound fracture of third, fourth and fifth ribs with fracture of scapula about 2" above interior angle with underlying laceration of pleura 3" x 2" x total thickness of pleura. There was laceration of right lung 3" x 2" x 1" below injury no.1. On dissection of injury no.2, the doctor had found that there was laceration of the vessels of the neck of right side like carotid artery, jugular vein with laceration of the muscles of the neck like sternomastoid. There was compound fracture of mandible of right side 1/2" anterior to the angle of mandible. The mucous membrane of the mouth, pharynx, oesophagus and larynx had been smothered with blood of dark colour.
The autopsy doctor opined that the cause of death of the deceased was due to haemorrhage on account of the injuries to the vital organs. He further opined that all the ante-mortem injuries were sufficient in ordinary course of nature to cause death.
During trial, there was practically no challenge to the evidence of the autopsy doctor. The learned amicus curiae Miss Aditi Hota also did not challenge the findings in the post-mortem report regarding the opinion of the doctor that the deceased met with a homicidal death.11
In view of the inquest report Ext.8, post-mortem report Ext.1 and the evidence of the autopsy doctor P.W.3, we are of the view that the prosecution has established that the deceased met with a homicidal death on account of injuries to the vital organs like chest and neck.
11. Now adverting to the contentions regarding truthfulness or otherwise of the evidence of P.W.1, we found that she has stated that on the date of occurrence in the morning, while she was sitting in her verandah and the deceased was urinating in the courtyard, at that time appellant no.1 Kalia Singh came and caught hold of the hands of her husband and thereafter appellants no.2 and 3 dealt Katari blows on the back and right side of the face. She has further stated that when she protested, the appellants threatened her to kill and when the deceased fell down receiving bleeding injuries, she lost her senses but after a while when she regained her senses, she found her husband dead.
So far as motive part is concerned, P.W.1 has stated that prior to the occurrence, the son of Rama Singh had died due to illness for which the appellants were accusing her deceased husband to be a witch. A meeting was organized in the village alleging practice of witchcraft by the deceased and in the meeting, the appellants assaulted the deceased for which she and her deceased husband left the village and they were staying in a different village 12 with their son-in-law and after some days, they came back to their house. She also stated about the occurrence which had occurred on the previous day in which the appellants had threatened her husband to kill.
Nothing has been elicited in the cross-examination to discard the version of P.W.1. She has stated in the cross-examination that when the appellants reached at her house, her husband was urinating in a sitting position and in that posture, he was caught and assaulted. She further stated that the appellants came from the front side of the deceased and assaulted from the front side.
12. The learned counsel for the appellants submitted that the solitary evidence of P.W.1 who was closely related to the deceased and thus a highly interested witness is not sufficient to convict the appellants.
We are not inclined to accept the contentions raised by the learned amicus curiae. A bare reference to section 134 of the Evidence Act, 1872 (in short 'the Evidence Act') would indicate that no particular numbers of witnesses are required to establish a case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone, conviction can be 13 maintained. The testimony of the witness must be one, which inspires confidence and leaves no doubt in the mind of the Court about the truthfulness of the depositions. It is settled law that corroboration is not a rule of law, but one of caution as an assurance. The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness after the incident, the nearness of the witness to the victim, his pre-disposition towards the accused, are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness. It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the Court for acceptance. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes.
Similarly, mere relationship of the witness with deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot 14 be ruled out and, therefore, as a matter of prudence, Court should look for some independent corroboration of his testimony to decide about the involvement of the other accused in the crime.
13. The learned counsel for the appellants further contended that though it is the prosecution case that Katari blows were inflicted on the deceased but the doctor had noticed lacerated injuries and therefore the assault by Katari cannot be accepted.
P.W.3, the autopsy doctor has specifically stated that he received query from the Investigating Officer on 13.10.1993 along with the weapons M.O.I and M.O.II seeking his opinion regarding the possibility of the injuries by the said weapons and he answered in the affirmative. P.W.3 proved the query of the I.O. as well as his answer. The autopsy doctor has further stated that both the lacerated injuries can be caused by more than one blows placed on the same seat.
P.W.1 has stated that the appellant nos. 2 and 3 used sharp side of M.O.I and M.O.II. P.W.3 has clarified in the cross examination that a sharp cutting weapon having irregular blunt edge shall cause lacerated wound on saggy skin and he further clarified that M.O.I and M.O.II are such weapons. He clearly negatived the suggestion put forth by the learned defence counsel that the injuries on the deceased can be possible by the blunt side of M.O.I and M.O.II. The doctor has further stated that the injuries are possible by irregular 15 sharp side and the reason being that the depth of injury no.1 is 1" on the lung on dissection.
Thus the contentions raised by the learned counsel for the appellants to the evidence of P.W.1 that the injuries on the deceased as noticed by the autopsy doctor are not possible with M.O.I and M.O.II, cannot be accepted in view of the clear cut clinching evidence of the doctor.
In view of section 45 of Evidence Act, opinion of an expert is a relevant fact. The Court may take the expert's opinion into consideration. However, appreciation of evidence is the Court's job. It is for the Court to arrive at an opinion as to which part of contradictory expert opinion should be accepted or whether in a given situation ocular evidence should be believed in preference to medical evidence or vice versa. Law is well settled that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. In some cases, medical evidence may corroborate the prosecution witnesses; in some it may not. The Court, however, cannot apply any universal rule whether ocular evidence would be relied upon or the medical evidence, as the same will depend upon the facts and circumstances of each case. No hard and fast rule can be laid down therefore. It is axiomatic, however, that when some discrepancies are found in the ocular evidence vis-a-vis medical 16 evidence, the defence should seek for an explanation from the doctor. He should be confronted with the charge that he has committed a mistake. Instances are not unknown where the doctor has rectified the mistake committed by him while writing the post- mortem report. The purpose of an expert opinion is primarily to assist the Court in arriving at a final conclusion. Such report is not binding upon the Court. The Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. It is a settled legal proposition that the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. More so, the ocular testimony of a witness has a greater evidentiary value vis-a-vis medical evidence. When the medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. Where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence, the ocular evidence may be disbelieved.
14. Miss Aditi Hota further pointing out a line from the cross- examination of P.W.1 wherein she has stated that the appellants no.2 and 3 dealt four to five blows each to the deceased submitted that since the doctor has noticed only two injuries, i.e. one on the chest 17 and the other on the neck and mandible region of the deceased, the evidence of P.W.1 is falsified.
P.W.1 is a rustic lady and she deposed in the Court practically after three years of the occurrence. It is not expected on her part to mathematically calculate how many blows exactly inflicted by the appellant on her husband at the time of occurrence. We should not forget about her state of mind when she saw the assault on her husband and fainted also and therefore she can commit mistake in counting blows. The doctor has of course clarified that the lacerated injuries as noticed by him on the deceased are possible by more than one blows placed on the same seat. Thus even if we take that P.W.1 has exaggerated a little regarding the number of blows inflicted on the deceased by the appellants but that would not falsify her entire evidence.
The maxim falsus in uno falsus in omnibus is not applicable in India. It is the duty of the Court to appraise the evidence to see as to what extent it is worthy of acceptance. Merely because in one respect the Court considers it insufficient to rely on the testimony of a witness, it does not necessarily follow that it must be discarded in all respects. There is tendency on the part of witnesses to exaggerate the guilt of the accused. The Court has to sift the evidence with care in each case and on full consideration of all relevant material circumstances to come to a decision, which part of the testimony of 18 the witnesses is to be accepted and which is to be rejected. The witnesses cannot be branded as liars in toto and their testimonies cannot be rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The Court has to separate the grain of acceptable truth from the chaff of exaggerations and improbabilities. The dictum 'falsus in uno falsus in omnibus' is not a sound rule as one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments.
15. The learned counsel for the appellants for the appellants further contended that the behavior of P.W.1 is highly abnormal. Had she been present at the spot, she would have shouted and tried to rescue her husband. She further contended that the appellants would not have spared P.W.1 had she been present at the spot just to be a witness against them.
The behavior of witnesses and their reactions would differ from situation to situation and individual to individual. Expectation of uniformity in the reaction of witnesses would be unrealistic but the Court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction, whether in the circumstances of the case, the behaviour is acceptably natural allowing the variations. If the 19 behavior is absolutely unnatural, the testimony of the witness may not deserve credence and acceptance.
Analysing the evidence regarding the conduct of P.W.1, we found it to be natural. She protested when the appellants assaulted her husband. The appellants threatened her to kill. When the deceased fell down receiving bleeding injuries, she lost her senses and then after a while she regained her senses.
16. Coming to the materials available on record, we find that the evidence of P.W.1 gets corroboration from the evidence of P.W.5 before whom the deceased narrated about the incident immediately after the occurrence implicating the three appellants to be the assailants of the deceased. The conduct of P.W.1 in making such disclosure is admissible under section 6 of the Evidence Act as res gestae. In this case the spot of occurrence is not disputed. The I.O. has seized blood stained earth and sample earth from the courtyard of the deceased and on chemical examination, the earth was found to contain blood. The dead body was found in the courtyard of the deceased and accordingly the inquest was held and the inquest report Ext.8 was prepared.
17. A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and 20 is the product of interplay of different human emotions. The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth.
18. In view of the analysis of the evidence of P.W.1 which gets corroboration from the medical evidence as well as other surrounding circumstances, there remains little or no doubt that it was the appellants, who had committed the murder. The motive behind the commission of the crime and the conduct of the appellants prior to the occurrence are also very clinching and therefore we accept P.W.1 to be a reliable, truthful and trustworthy witness, who had narrated 21 the entire episode without any fabrication, concoction or embellishment.
19. On an overall analysis, we are of the opinion that the prosecution has been able to conclusively establish that because of the assault given by the appellants that the deceased had sustained injuries on his person and the assault was inflicted with an intention to cause his death and therefore, we are of the view that learned trial Judge has rightly held the appellants nos. 2 and 3 guilty under section 302/34 IPC and accordingly the impugned judgment of conviction and order of sentence of the appellants nos. 2 and 3 as was recorded by the learned trial Judge does not call for any interference.
20. In the result, we do not find any merit in the appeal and accordingly we hereby dismiss the same and confirm the conviction and sentence of the appellants as recorded in the impugned judgment and order of the learned trial Court.
The appellants nos. 2 and 3 are in jail. They shall remain in Jail to serve out the remaining part of the sentence.
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S.K.Sahoo, J.
VINOD PRASAD, J. I agree.
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Vinod Prasad, J.
Orissa High Court, Cuttack The 14th of July 2015/Sisir