Orissa High Court
Gagan Jani vs State Of Orissa on 20 June, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 120 Of 2004
From the judgment and order dated 27.07.2004 passed by the
learned Additional Sessions Judge, Boudh in Sessions Trial No.
14 of 2008 (S.T. No. 45 of 2003-D.C).
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Gagan Jani ........ Appellant
-Versus-
State of Orissa ........ Respondent
For Appellant: - Shri Arunendra Mohanty
For Respondent: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
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P R E S E N T:-
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing- 27.05.2016 Date of Judgment- 20.06.2016
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S. K. SAHOO, J.The appellant Gagan Jani faced trial in the Court of learned Additional Sessions Judge, Boudh in Sessions Trial No. 14 of 2008 (S.T. No.45 of 2003-D.C.) for offences punishable under sections 452 and 302 of the Indian Penal Code for 2 committing house trespass by entering into the house of Prahallad Behera (hereafter 'the deceased') on 28/29th day of November 2002 in the night at about 3.00 a.m. situated in village Badala under Purunakatak Police Station in the district of Boudh having made preparation for causing hurt to the deceased and also committed murder of the deceased. The wife of the appellant namely, Ambika Jani and their daughter namely, Pratima Jani also faced trial along with the appellant under sections 452/302/109 of the Indian Penal Code for abetting the commission of crime by appellant Gagan Jani.
The learned Trial Court vide impugned judgment and order dated 27.07.2004 found the co-accused persons Ambika Jani and Pratima Jani not guilty of the charges leveled against them and accordingly acquitted them of all the charges. However, the appellant Gagan Jani was found guilty under sections 452 and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years for the offence under section 452 of the Indian Penal Code and to undergo imprisonment for life for the offence under section 302 of the Indian Penal Code.
2. The prosecution case, as unraveled from the First Information Report lodged by Prasant Kumar Sahoo (P.W.2), the 3 brother-in-law (wife's brother) of the deceased is that both the informant and the deceased were residing in nearby houses in village Badala with their respective families. The informant was maintaining his family from out of the earnings of his tiffin shop situated near Badla Chhak. On 28/29.11.2002 in the night at about 3.00 a.m., the son of the deceased namely, Muna @ Nirakar Behera came to the house of the informant and told him that the appellant was creating disturbance in their house and shouting to kill. The informant along with others rushed to the house of the deceased and tried to convince the appellant not to create disturbance but the appellant challenged them and told that his son had died and if they would not be able to give life to his son then he would kill all of them.
It is the further prosecution case that the son of the appellant was suffering from jaundice and his wife had taken him to the hospital at Phulbani for treatment but during treatment, the son of the appellant died. When the appellant challenged the informant and others, out of fear they came back in order to give message to the village Sarpanch, ward member and others and accordingly they were informed and when all of them came near the house of the deceased, they were told that the appellant after severing the head of the deceased had fled away 4 somewhere with the severed head. The informant marked the trunk of the body of the deceased was lying and he further ascertained from his sister (wife of the deceased) that the appellant was suspecting the deceased to have practised witchcraft on his son and was responsible for the death of his son and basing on such suspicion, the appellant entered inside the house of the deceased on the fateful night and killed him and fled away holding the severed head.
3. P.W.9 Promod Kumar Dehury, Assistant Sub Inspector of Police attached to Adenigarh Police outpost reduced the oral information presented on 29.11.2002 by P.W.2 Prasant Kumar Sahoo at the outpost into writing which was treated as First Information Report and it was sent to Purunakatak Police Station by P.W.10 Ram Chandra Swain, the Officer in Charge of Purunakatak Police Station through a grama rakshi for registration and accordingly Purunakatak P.S. Case No.62 of 2002 was registered under sections 452 and 302 of the Indian Penal Code on the very day against the appellant.
P.W.10 took up investigation of the case, examined the informant (P.W.2) and the scribe of the First Information Report. On 29.11.2002 at about 8.10 a.m., the appellant arrived at Adenigarh Police outpost holding the severed head and a 5 tangia. The I.O. examined the appellant and seized the tangia, blood stained lungi and baniyan of the appellant in presence of the witnesses and prepared seizure list Ext.2 and conducted inquest over the severed head in presence of the witnesses and prepared inquest report Ext.1. The appellant was arrested and was sent to the Medical Officer, Adenigarh PHC for collection of nail clippings. On 29.11.2002 at about 2.30 p.m., the I.O. visited the spot and prepared spot map Ext.16 and at the spot, he conducted inquest over the trunk of the dead body of the deceased and prepared inquest report Ext.4. Then the I.O. joined the severed head with the trunk of the deceased and prepared another inquest report Ext.5. He also seized the blood stained earth and sample earth from the spot under seizure list Ext.6 and sent the dead body along with the cut head for post mortem examination to District Headquarters Hospital, Boudh where P.W.5 Dr. Susanta Kumar Garnaik conducted post mortem examination and opined that the cause of death was due to massive hemorrhage and shock as a result of decapitation of head with transection of spinal cord and cut of internal and external carotid arteries.
The Investigating Officer sent requisition to the medical officer (P.W.5) along with the seized tangia making a 6 query if the cutting of the head from the trunk of the deceased was possible by the weapon of offence. P.W.5 opined that the injury detected on the neck of the dead body of the deceased would be possible by the weapon of offence produced before him and accordingly submitted his opinion vide Ext.8. The Investigating Officer received information that the appellant who was in Adenigarh Police outpost lock up cleverly escaped. On 30.11.2002, the I.O. seized wearing apparels of the deceased, command certificate and prepared seizure list Ext.12. The I.O. also seized the nail clippings of the appellant which were collected by the medical officer under seizure list Ext.18. He received the post mortem report. The appellant was arrested on 31.12.2002 and forwarded to Court on 01.01.2003. The two female co-accused persons were also arrested by the Investigating Officer and forwarded to Court on 17.01.2003. The I.O. sent the seized incriminating articles to SFSL, Rasulgarh, Bhubaneswar on 20.01.2003 through S.D.J.M., Boudh for chemical analysis and also received the chemical examination report Ext.20.
After completion of investigation, the Investigating Officer submitted charge sheet on 4.2.2003 under sections 452 and 302 of Indian Penal Code against the appellant and 302/109 7 of the Indian Penal Code against the co-accused persons Ambika Jani and Pratima Jani.
4. After observing due committal formalities, the case of the appellant was committed to the Court of Session for trial along with the co-accused persons where the learned Addl. Sessions Judge, Boudh framed charges against the appellant under sections 452/302 of the Indian Penal Code and under section 452, 302 read with section 109 of the Indian Penal Code against the co-accused persons Ambika Jani and Pratima Jani on 21.01.2004 and since the appellant and the co-accused persons denied the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and to establish their guilt.
5. In order to prove its case, the prosecution examined ten witnesses.
P.W.1 Madhaba Chandra Behera is a witness to the inquest over the severed head of the deceased under inquest report Ext.1 at Adenigarh Police outpost. He is also a witness to the seizure of blood stained tangia and blood stained wearing apparels of the appellant under seizure list Ext.2.
P.W.2 Prasanat Kumar Sahoo is the informant in the case who was the brother-in-law of the deceased and he 8 supported the prosecution case as narrated in the First Information Report. He is also a witness to the inquest over the trunk of the body of the deceased as well as severed head joined with the trunk and proved the inquest reports Exts. 4 and 5.
P.W.3 Satyabhama Behera is the widow of the deceased and she is an eye witness to the occurrence. She is also an inquest witness.
P.W.4 Abani Kumar Majhi stated to have proceeded to the spot being called by the informant along with others and found the trunk of the dead body was lying in a pool of blood. He is also a witness to the seizure of blood stained earth and sample earth under seizure list Ext.6.
P.W.5 Dr. Susanta Kumar Garnaik was the Pediatric Specialist attached to District Headquarters Hospital, Boudh who conducted post mortem examination over the dead body of the deceased as well as severed head and proved his report Ext.7. He also answered to query made by the Investigating Officer regarding possibility of the injury on the neck of the deceased by the weapon of offence and proved his query report Ext.8.
P.W.6 Harihar Pradhan stated to have seen the appellant proceeding to Adenigarh Police outpost holding a 9 tangia in his right hand and some object in a covered condition holding it in his left hand.
P.W.7 Kishore Chandra Patnaik was the Asst.
Surgeon at Adenigarh PHC and he collected the nail clippings of the appellant on police requisition and proved his report Ext.9.
P.W.8 Narayan Pradhan was the constable attached to Adenigarh Police outpost who carried the dead body for post mortem examination. He is also a witness to the seizure of the wearing apparels of the deceased and a command certificate under seizure list Ext.12.
P.W.9 Promod Kumar Dehury was the ASI of Police attached to Adenigarh Police outpost who was the scribe of the First Information Report.
P.W.10 Rama Chandra Swain was the officer in charge of the Purunakatak Police Station who is the Investigating Officer in this case.
The Prosecution exhibited as many as twenty documents. Exts.1, 4 and 5 are the inquest reports, Ext.2 is the seizure list, Ext.3 is the FIR, Ext.6 is the seizure list, Ext.7 is the post-mortem report, Ext.8 is the opinion given by P.W.5, Ext.9 is the report of P.W.7, Ext.10 is the command certificate, Ext.11 is the dead body challan, Ext.12 is the seizure list, Exts. 13 to 13/5 10 are the negatives of the photographs, Exts.14 to 14/5 are the positives of the photographs, Ext.15 is the requisition for collection of the nail clippings, Ext.16 is the spot map, Ext.17 is the requisition, Ext.18 is the seizure list, Ext.19 is the office copy of the forwarding reports and Ext.20 is the chemical examination report.
The prosecution also proved five materials objects. M.O.I is the blood stained tangia, M.O.II is the blood stained check lungi, M.O.III is the blood stained baniyan, M.O.IV is the sweater and M.O.V is the lungi.
6. The defence plea of the appellant was one of denial and it was pleaded that the son of the appellant died and due to deep sorrow, the appellant was staying inside the house and he has been falsely implicated in the case out of suspicion.
One witness, namely Prabina Kumar Pradhan was examined as D.W.1 and he simply stated that no such incident had taken place in the village.
No document was exhibited on behalf of the defence.
7. The learned Trial Court in the impugned judgment has been pleased to disbelieve the abetment part played by the female co-accused persons and observed that there was no clear, cogent and definite evidence against them. So far as the 11 appellant is concerned, the learned Trial Court held that the oral testimony of eye witness P.W.3 gets adequate support from P.W.4 and P.W.6. The learned Trial Court also accepted the medical evidence and taking note of the findings of the chemical analysis report found the appellant guilty under sections 452 and 302 of the Indian Penal Code.
8. Mr. Arunendra Mohanty, learned counsel for the appellant contended that the petitioner has been falsely implicated in the case basing on suspicion and the evidence of the solitary eye witness to the occurrence who is none else than the wife of the deceased is not at all convincing and everything has been stage managed to falsely implicate the appellant in the case and therefore, benefit of doubt should be extended in favour of the appellant.
Mr. Prem Kumar Patnaik, learned Additional Government Advocate on the other hand contended that apart from ocular testimony of the eye witness, the medical evidence, the conduct of the appellant prior to the occurrence as well as after the occurrence, the recovery of the severed head and tangia from the possession of the appellant, the seizure of blood stained wearing apparels of the appellant and above all strong 12 motive behind the commission of the crime clearly establishes the charges and therefore, the appeal should be dismissed.
9. Adverting over the nature and the cause of death of the deceased, we find that apart from the three inquest reports Exts. 1, 4 and 5, the prosecution has also relied upon the evidence of P.W.5 Dr. Susant Kumar Garnaik who conducted the post mortem examination over the cadaver of the deceased on 30.11.2002 and found that there was decapitation of head from the trunk. The sharp cutting injury on the neck was opined to be ante mortem in nature. Another sharp cutting incised looking wound of size 2.5 c.m. x 0.5 c.m. x 0.3 c.m. was detected on the left forearm which was also opined to be ante mortem in nature. There was surrounding bruise to the injury on the left forearm. The cause of death of the deceased was opined to be massive hemorrhage and shock as a result of decapitation of head with transection of spinal cord and cut of internal and external carotid arteries and all the injuries were opined to be ante mortem in nature. The doctor proved the post mortem report as Ext.7.
The learned Trial Court has accepted the medical evidence. The learned counsel for the appellant did not challenge the findings of the post mortem report.
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After perusing the evidence on record, the post mortem examination report Ext.7 and the evidence of the doctor (P.W.5) who conducted post mortem examination, we are of the view that there was no dispute regarding the cause of death of the deceased due to massive hemorrhage and shock as a result of decapitation of head with transection of spinal cord and cut of internal and external carotid arteries.
10. The star witness of the prosecution is none else than P.W.3 Satyabhama Behera, widow of the deceased who deposed as an eye witness to the occurrence.
She stated that the son of the appellant who was suffering from jaundice expired due to lack of appropriate treatment but during the night of occurrence at about 2.00 a.m., the appellant brought the dead body of his son to the courtyard of the deceased and challenged the deceased that it was due to practice of black magic by the deceased that his son died. He also asked the deceased to give life to his son or else he would kill the deceased. The appellant along with co-accused persons tried to set fire to the house of the deceased but P.W.3 extinguished the fire by pouring water. She further stated that the appellant shot an arrow at the deceased which came in contact with the left arm of the deceased. She further stated that 14 even though her brother (P.W.2) and others tried to pacify the matter but the appellant threatened them with dire consequence. She further stated that when the deceased was inside the house and she was standing at the front door blocking the way, the appellant pushed her and entered inside the house and cut the head of the deceased brutally by means of a tangia and thereafter, left the spot with the severed head of the deceased.
P.W.3 identified the weapon of offence in Court as well as the wearing apparels of the deceased. She has further stated that a lantern was burning inside the house.
The evidence of P.W.3 was not at all shaken during cross-examination to dispel doubt about her presence during the course of commission of the crime. The contentions raised by the learned counsel for the appellant that P.W.3 being closely related to the deceased is a highly interested witness and therefore, her evidence should be discarded, cannot be accepted.
Close relationship of a witness with the deceased is not a ground for disbelieving his testimony and he cannot be branded as a highly interested witness. Ordinarily, a close relative does not screen/spare the real offender. If on an overall careful examination of the statement of the witness, it is found that his testimony is trustworthy, it can be relied upon and the 15 Court should not unnecessarily doubt the credibility and worthiness of such witness.
In the case of Dalip Singh and Ors. -Vrs.- The State of Punjab reported in (1954) 1 SCR 145, it has been held as follows:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
The evidence of P.W.3 gets ample corroboration from the medical evidence. P.W.2 has not only stated about the presence of the appellant at the spot and his conduct in challenging them being armed with weapons but also stated that 16 P.W.3 narrated the incident to him and accordingly, he lodged the First Information Report. The immediate conduct of P.W.3 in disclosing about the incident before P.W.2 and naming the appellant to be the assailant of the deceased is admissible as res gestae under section 6 of the Evidence Act. The rationale of making certain statements or facts admissible under Section 6 of the Evidence Act was on account of spontaneity and immediacy of such statement or fact, in relation to the "fact in issue" and thereafter, such facts or statements are treated as a part of the same transaction. The evidence of P.W.3 that the appellant carried the severed head of the deceased and left the spot with tangia is also corroborated by the recovery of the same from the possession of the appellant at Adenigarh Police outpost which has been stated by the Investigating Officer. P.W.6 also stated to have seen the appellant proceeding towards Adenigarh Police outpost holding a tangia in his right hand and some object in a concealed condition in his left hand from where blood was coming out. The tangia which was seized from the possession of the appellant was sent for chemical analysis and found to have contained human blood of group 'B'. Similarly the check lungi and baniyan of the appellant were also found to have contained human blood of group 'B'. The same human blood group was 17 detected in the wearing apparels of the deceased. This is a very weighty circumstance against the appellant and there is absolutely no explanation offered by the appellant of this highly incriminating circumstance. All these factors lend support to the testimony of P.W.3.
Thus we are of the view that the evidence of P.W.3 is clear, cogent, trustworthy and above board and therefore, we have no hesitation at all to place implicit reliance on such evidence.
11. The prosecution has also proved a strong motive on the part of the appellant to commit the crime. Even though the son of the appellant died on account of jaundice, the appellant was suspecting that the deceased had practised black magic which led to the death of his son. Proof of motive recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. If the Court upon a proper appraisal of the deposition of the eyewitness comes to the conclusion that the version given by him is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitness is found unreliable or unworthy of 18 credit, existence of a motive does not by itself provide a safe basis for convicting the accused. Proof of motive in a case which rests on an eyewitness account lends strength to the prosecution case and fortifies the Court in its ultimate conclusion.
12. The manner in which under the grasp of patent misconception, the appellant thought that the deceased had practised black magic on his son which brought his untimely tragic end, challenged the deceased and did not pay any attention to the advices of others to pacify the matter and during midnight, in spite of the protest of the wife of the deceased, entered inside the house of the deceased and mercilessly assaulted the deceased by tangia and severed his head and left the spot with the severed head and tangia clearly proves the intention of the appellant to commit the murder of the deceased. Even though the murder appears to have been the result of an extreme emotional and psychological disturbance but it does not mollify the felonious propensity of offence and squarely brings the act within the purview of section 302 of the Indian Penal Code.
13. Thus on critical examination of record, the irresistible conclusion surfaces is that the prosecution has established the guilt of the appellant to the hilt beyond all reasonable doubt and 19 therefore, we are of the view that the impugned judgment and order of conviction which has been imposed by the learned Trial Court and the sentence passed there under does not suffer from any infirmity to warrant interference and therefore, the Jail Criminal Appeal being devoid of merits, stands dismissed.
Accordingly, the Jail Criminal Appeal is dismissed.
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S. K. Sahoo, J.
Kumari Sanju Panda, J. I agree.
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Sanju Panda, J.
Orissa High Court, Cuttack
The 20 th June, 2016/Sisir