Orissa High Court
Mohan Sabar & Others vs State Of Orissa on 11 June, 2021
Author: S.K.Mishra
Bench: S.K.Mishra
HIGH COURT OF ORISSA; CUTTACK
CRLA NO.49 0F 2002
From the judgment and order of conviction dated 15.7.2002
passed by the learned Additional District and Sessions Judge,
Nuapada in S.C. Case No.41/14 of 2001.
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Mohan Sabar & others ... Appellants
Versus
State of Orissa ... Respondent
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For Appellant : Mr. Trilochan Nanda
(Amicus Curiae)
For Respondent : Mrs. Saswata Pattnaik,
Addl. Government Advocate
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PRESENT:
MR. JUSTICE S.K.MISHRA
AND
MISS JUSTICE SAVITRI RATHO
Date of Hearing:24.2.2021& 11.6.2021 and
Date of Judgment: 11.6.2021
S.K.Mishra,J. The appellants have assailed their conviction and
order of sentence for the offence under Section 302/34 of
the Indian Penal Code (hereinafter referred to as the "Penal
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Code" for brevity) by the learned Addl. Sessions Judge,
Bhanjanagar in S.C. Case No.41/14 of 2001. The learned
Addl. Sessions Judge has convicted them on 15.7.2002 and
sentenced them to undergo imprisonment for life.
2. The gravamen of the charges against the appellants is
that on 3/ 4.10.2000 in the night the deceased Brajasundar
Sabar after taking his dinner went to sleep on a cot in front
of his house on the Varandah. He had no foreboding that it
was his last night. His wife and children were sleeping
inside the room by keeping the doors open. At the dead of
the night his wife heard an unusual sound and noticed that
the appellants were assaulting her husband by means of an
axe (Tabal). At that time his wife could not come outside
out of fear. Sometimes thereafter the appellants causing
the death of her husband fled away. After this incident the
informant called some of the villagers to the spot and
lodged an F.I.R. on the next day at 7.15 A.M. at Khariar
P.S. Police registered P.S. Case No.112 dated 4.10.2000
for the offence under Section 302/34 of the Penal Code and
took up investigation.
3. In course of investigation the Investigating Officer,
P.W.14, examined the informant in this case, examined
other witnesses, visited the spot, held inquest on the dead
body of the deceased, dispatched the dead body for post
mortem and arrested the accused. After completion of
investigation, the I.O. submitted charge sheet against the
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accused for the offence under Section 302/34 of the Penal
Code.
4. The defence took the plea of complete denial.
5. In order to prove its case, the prosecution has
examined fourteen witnesses. P.W.1 is the informant and
P.W.2 is the daughter of the deceased. P.W.9 is the scribe
of the F.I.R. P.Ws.3,4 and 5 are the post occurrence
witnesses. P.W.6 is the autopsy doctor. P.Ws.7,8 and 13
are the seizure witnesses. P.W.10 is one Kundugutu Sabar
who had seen the appellant-Mohan Sabar with an axe prior
to the occurrence, P.Ws.11 and 12, the police constables
assisted P.W.14 the Investigating Officer of the case.
The prosecution has also relied upon twenty three
documents as exhibits and nine material objects. The
defence, on the other hand, neither examined any witness
nor relied on any documents to prove its case.
6. Mr. Trilochan Nanda, learned Amicus, submits that
the learned Addl. District and Sessions Judge, Nuapada has
recorded the order of conviction relying upon the sole
testimony of P.W.1, the wife of the deceased. He would
further submit that there is grave doubt as regards the
identification of the accused persons by P.W.1.
Admittedly, there was no electricity in the house of the
deceased and it was a dark night. P.W.1 has clearly
testified in her evidence that it was a dark night. Learned
Amicus for the appellants submits that non-mention of the
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names of the accused persons in the inquest report casts a
serious doubt on the prosecution case. Terming the
testimony of P.W.1 being highly unreliable and
untrustworthy and the evidence of P.W.2 being highly
inconsistent and contrary to the evidence of P.W.1, the
learned Amicus would submit that the evidences are
discrepant with regard to the exact place of occurrence
inasmuch as as per the evidence of P.Ws.1 and 2 that the
deceased was sleeping in the Parchi it is not known how
the dead body could be detected on the open verandah. It is
submitted that the prosecution has not established the exact
place of occurrence by cogent and reliable evidence.
Learned Amicus would submit that P.W.1 never stated that
axe was the weapon of offence. Learned Amicus would
submit that the findings of the learned trial court are
wholly unreasonable and not plausible both on facts and in
law. He would further submit that the order of conviction is
highly illegal and improper.
7. Learned Amicus has filed his written note of
submission on 23.3.2021. He has stated in his note of
argument that F.I.R. was scribed by the Police Officer in
the Police Station and the informant, P.W.1, put her L.T.I.
on it. The said F.I.R. which was reduced into writing by the
Police Officer and P.W.1 had put her L.T.I. has not been
brought to records by the prosecution. The F.I.R. which is
on record is scribed by P.W.9, Parabu Sabar, which is
marked as Ext.15. Learned Amicus has further mentioned
in his notes of argument that P.W.9 says in his deposition
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that at the time of scribing the F.I.R. on 06.10.2000, P.W.1
was not present in the Police Station. P.W.9 stated that the
contents of the F.I.R. was not read over to P.W.1.
8. Learned Amicus has further mentioned that on
perusal of the F.I.R. it was seen that the F.I.R. had been
lodged on 04.10.2000 and, therefore, on close scrutiny of
the evidence it is crystal clear that the F.I.R. lodged at the
earlier point of time has been suppressed and the
discrepancies in the F.I.R. strike at the root of the
prosecution case. Learned Amicus has mentioned in his
notes of submission that as per the prosecution P.Ws.1 and
2 are the two eye witnesses to the occurrence. The learned
trial court has discarded the evidence of P.W.2 stating that
her evidence does not inspire confidence that she was the
eye witness to the occurrence.
9. Learned Amicus has further stated in his notes of
submission that there has been serious inconsistency
between the oral evidence of P.W.1 and the Medical
evidence. Learned Amicus would submit that the P.W.1
has developed a new story during the trial. P.W.1 had
stated in her deposition that accused Mohan, Durja,
Prahalad were assaulting her husband by axe(Tangi) which
each of them were holding by their own hands. Accused
Durje assaulted her husband on his neck by his axe and her
husband fell down.
P.W.14, the Investigating Officer, has stated in his
deposition that P.W.1 did not state in her statement that
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each of accused persons were armed and accused Durje
cut the throat of her husband and other accused persons
assaulted by their axe and her husband and fell down on
the ground and accused Durje cut the throat. P.W. 2 has
also not stated before the I.O. that her father was assaulted
and the accused persons ran away from the spot. Learned
Amicus has stated that the I.O. said in his deposition that
at the time of inquest, no witnesses stated the name of the
accused persons to be involved in the crime. Learned
Amicus further mentioned that in the recitals of the FIR,
the weapon of offence has been described as "Tabil", but in
the evidence the weapon of offence has been stated by
P.W.1 as Tangi (axe). The prosecution had led no evidence
in order to prove that "Tabil" and "Tangi" are the one and
same weapon. Therefore, it creates great doubt regarding
the weapon of offence. Learned Amicus would submit that
the judgment of the trial court is based surmises and
conjectures. He would submit that the prosecution has
utterly failed to bring home the charges against the present
appellants and, therefore, the judgment, order of conviction
and sentence passed by the trial court should be aside.
10. The learned Addl. District and Sessions Judge,
Nuapada came to the conclusion that the testimony of
P.W.1 is so clear, cogent, consistent and reliable that it
leaves no room for any doubt about the complicity of the
appellants in the crime. The appellants have intentionally
caused the grievous injuries on the body of the deceased as
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per Ext.3 with their common intention to cause the death
of the deceased and those injuries are sufficient in the
ordinary course of nature to cause the death of a human
being.
11. Learned Amicus in this case has basically
assailed the appreciation of evidence by the learned Trial
Judge. He also relies heavily on the fact described in the
previous paragraphs regarding the suppression of an earlier
F.I.R. It is, therefore, appropriate on our part to examine
the law relating to appreciation of evidence. It is settled
by the catena of decisions as a long judicial practice
adopted by the higher Courts that the appreciation of
evidence by a Trial Judge, who has the opportunity of
observing the demeanor of witnesses while recording their
evidence in the Court in presence of the accused and
counsel, should not be lightly interfered with by the
appellate court who do not have that advantage of
observing the demeanor of witnesses.
12. In the case of Bharwada Bhoginibhai Hirjibhai
v. State of Gujarat; reported in AIR 1983 SC 753, the
Hon'ble Supreme Court held that over much importance
cannot be attached to minor discrepancies. The reasons are
obvious. By and large a witness cannot be expected to
possess a photographic memory and to recall the details of
an incident. It is not as if a video tape is replayed on the
mental screen. Ordinarily it so happens that a witness is
over burdened by the events. The witness could not have
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anticipated the occurrence so often has an element of
surprise. The mental facilities therefore cannot be expected
to be attended to absorb the details. The power of
observation differs from person to person. What one may
notice, another may not. An object or movement might
emboss its image on one persons mind, whereas it may go
unnoticed on the part of another. Ordinarily a witness
cannot be expected to recall accurately the sequence of
events which takes place in rapid succession or in a short
time span. A witness is liable to get confused, or mixed up
when interrogated later on.
A witness, though wholly truthful, is liable to be
overawed by the Court atmosphere and the piercing cross
examination made by the counsel and out of nervousness
mix up facts, get confused, regarding sequence of events,
or fill up details from imagination on the spur of the
moment. The sub-conscious mind of the witness
sometimes so operate an account of fear of looking foolish
or being disbelieved though the witness is giving a truthful
and honest account of the occurrence witnessed by him.
Perhaps it is a sort of defence mechanism activated on the
spur of the moment.
13. While examining and appreciating of evidence of
P.W.1, who happens to be the widow of the deceased, the
fact cannot be ignored that she is not found to have any axe
to grind against the appellant. She being the widow of the
deceased shall also not implicate some innocent persons in
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commission of the crime and thereby letting real culprits
go scot free.
14. In the case of State of U.P. v. M.K. Anthony;
reported in AIR 1985 SC 48, the Hon'ble Supreme Court
held that while appreciating the evidence of a witness, the
approach must be whether the evidence of the witness read
as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
Court to scrutinize the evidence more particularly keeping
in view the deficiencies drawbacks and infirmities pointed
out in the evidence as a whole and evaluate them to find
out whether it is against the general tenor of evidence
given by the witnesses and whether the earlier evaluation
of the evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching the
core of the case, hyper technical approach by taking
sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by the investigating officer not going to the root
of the matter would not permit rejection of the evidence as
a whole. If the Court before whom the witnesses, the
appellate court which had not the benefit will have to
attach due weight to the appreciation of evidence by the
trial court and unless there are reasons weighty and
formidable it would not be proper to reject the evidence on
the ground of minor variations or infirmities in the matter
of trivial details. Even honest and truthful witnesses may
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differ in some details unrelated to the main incident
because power of observations retention and reproduction
differ with individuals.
15. In the case of Leela Ram v. State of Haryana
and another; reported in (2000) 18 OCR (SC)34, the
Hon'ble Supreme Court held that it is indeed necessary to
note that hardly one comes across a witness whose
evidence does not contain some exaggeration or
embellishment and sometimes in the over anxiety they
may give slightly exaggerated account. The Court can
shift the chaff from the corn and find out the truth from
the testimony of witnesses. Total repulsion of evidence is
unnecessary. The evidence is to be considered from the
point view of trustworthiness. If this element is satisfied,
they ought to inspire confidence in the mind of the court to
accept the stated evidence though not, however, in the
absence of the same.
16. In the case of Appabhai and another v. State of
Gujurat; reported in AIR 19988 SC 696, the Hon'ble
Supreme Court held that the Court while appreciating the
evidence must not attach undue importance to minor
discrepancies. The discrepancies which do not shake the
basic version of the prosecution case may not be discarded.
The discrepancies which are due to normal errors of
perception or observation should not be given importance.
The errors due to lapse of memory may be given due
allowance. The Court by calling into aid its vast experience
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of men and matters in different cases must evaluate the
entire material on record by excluding the exaggerated
version given by any witnesses. When a doubt arises in
respect of certain facts alleged by such witnesses the
proper course is to ignore that fact only, unless it goes into
the root of the matter so as to demolish the entire
prosecution story. The witnesses go on adding
embellishments to their version perhaps for the fear of their
testimony being rejected by the Court. The Courts,
however, should not disbelieve the evidence of such
witnesses if they are otherwise trustworthy.
17. In the case of State of U.P. v. Ballabh Das;
reported in AIR 1985 SC 1384, the Hon'ble Supreme
Court has examined the law relating to appreciation of
evidence of a related witness or interested witness, it has
observed that there is no law which says that in the absence
of any independent witness, the evidence of interested
witnesses should be thrown out at the behest of or should
not be relied upon for convicting an accused. What the law
requires is that where the witnesses are interested, the
Court should approach their evidence with care and caution
in order to exclude the possibility of false implication. The
evidence of interested witness is not like that of an
approver which is presumed to be tainted and requires
corroboration but the said evidence is as good as any other
evidence.
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18. In the case of State of Rajasthan v. Teja Ram
and other; reported in AIR 1999 SC 1776, the Hon'ble
Supreme Court has held that over insistence on witnesses
having no relation with the victims often results in criminal
justice going awry. When any incident happens in a
dwelling house the most natural witnesses would be
inmates of the house. It is unpragmatic to ignore such
natural witnesses and insist on outsiders who would not
have seen the occurrence.
19. In applying the aforesaid principles of law in
appreciation of evidence, this Court keeps in mind that
criminal trial cannot be equated to a mock scene of a stunt
film. It is about the real people witnessing the gruesome
being committed offences in their presence.
20 Learned Amicus, in this case, has emphasized
upon the so called discrepancy between the evidence of
P.W.1, P.W.9 and P.W.14-the Investigating Officer
regarding the place where the F.I.R. which was prepared
and affixed with L.T.I. So there appears to be some
confusion regarding this aspect. But from the recorded
materials available on record, that is, the F.I.R. itself and
the case diary, which was referred by the I.O. at the time of
his deposition in the Court, nothing substantially could be
brought out to show that actually the F.I.R. was written in
the Police Station at first was not registered and suppressed
and a second F.I.R. was prepared in village Bijayapur. So
only on the basis of some statements during the course of
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cross examination of P.W.9 that the F.I.R. was not read
over to P.W.1 and in P.W.1's statement that she put her
L.T.I. in village Bijayapur, the evidence regarding lodging
of the F.I.R. cannot be doubted and cannot be held that the
original F.I.R. has been suppressed in this case.
21. The second issue is relating to the spot. The
Investigating Officer-P.W.9 in cross examination at
paragraph-10 stated that the deceased was sleeping on the
open verandah of the case house and the informant was
sleeping in 'the parchi' which is adjacent to the verandah
and covered up by a roof and the dead body of the
deceased was found in the open verandah of a house and
there appears to be no discrepancy regarding the same.
Moreover, the I.O. has collected the blood stained earth,
sample earth, blood stained bed sheet and napkin as per the
seizure list Ext.10. It was sent for post mortem examination
and it was found that the sample blood stained earth
collected from the spot was stained with human blood of
Group 'A'. Similarly the bed sheet and napkin seized from
the spot were moderately stained with human blood of
Group 'A" origin. The said blood group i.e. found on the
lungi of the deceased as in the Axes i.e produced in this
case on being seized by the I.O. as well as Dhoti and
Napkin of two accused persons, which have been seized in
this case. So there appears to be no plausible reason to
come to a conclusion that there is a discrepancy regarding
the spot as put forth by the prosecution in this case.
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22. The learned Amicus would further argue that
though the prosecution alleges that the appellants gave
blows by means of Tabli or Tabal, the prosecution
produced two Axes. He argued that Axe and Tabli are two
different kind of weapons. We are unable to agree with the
same because 'Tabil' is a variety of Axe and the distinction
between the two is very minor. Both Tabli and axe have an
iron portion with a sharp cutting edge and on the back of it,
a handle is appended. The only difference between Tabli
and Axe which is known as 'Tangia' in western parts of
Odisha is the length of the cutting edge. 'Tabli' generally
has wider cutting edge and axe has a smaller cutting edge.
But this aspect can be reconciled by the fact that the
accused Mohan gave a discovery statement that lead to the
discovery and seizure of one of the Axes. The other Axe
was seized on production by the accused. Both the axes
were found to be stained with deep spurs of human blood
of group 'A' human blood was found on the wearing
apparels of the deceased. Thus, we are of the opinion that
the learned Amicus though advanced his argument in a
very attractive manner, there is hardly any reason to accept
the same.
23. On the final analysis, we find the evidence of
P.W.1 is quite trustworthy having ring of truth. Her
evidence is duly corroborated by the objective
determination of the spot, which is verandah of their house
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where from the I.O. seized blood stained earth etc. Her
evidence also gets corroboration from the evidence of
P.W.6, the Doctor. The Doctor found incised injury on the
dead body of the deceased, in course of post mortem
examination, which could have been caused by the axes
seized in this case. The recovery of one of the weapon of
offence at the instance of the appellant, Mohan Sabar,
admissible under Section 27 of the Indian Evidence Act,
lends further corroboration by principle of confirmation
that the appellants did the deceased to death. The final
stand in the case of the prosecution is the result of the
chemical examination which supports the case of the
prosecution.
24. Thus, in the ultimate analysis we find that the
learned Addl. District and Sessions Judge, Nuapada had a
clear and perspicacious view of the evidences available on
record, he noticing the demeanor of the witnesses while
recording their evidence held that the prosecution has
proved its case beyond reasonable doubt. There is no
plausible or reasonable basis for disturbing such finding of
fact which in our opinion are in the line of the various
pronouncements of the Hon'ble Supreme Court on this
aspect of appreciation of evidence of witnesses in a
criminal trial.
25. In the result, the appeal is dismissed. The
judgment of conviction and order of sentence passed by the
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learned Addl. District and Sessions Judge, Nuapada in S.C.
No.41/14 of 2001 are hereby confirmed.
.....................
S.K.Mishra, J
Savitri Ratho,J.
I agree.
...................... Savitri Ratho, J Orissa High Court, Cuttack Dated 11th June, 2021/A.K.Behera.
17..................... S.K.Mishra, J Savitri Ratho,J.
I agree.
...................... Savitri Ratho, J Orissa High Court, Cuttack Dated 11th June, 2021/A.K.Behera.
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