Orissa High Court
Kangu Jani vs State Of Odisha on 24 July, 2023
Bench: D.Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA NO.47 OF 2016
In the matter of an Appeal under section-383 of the Code of Criminal
Procedure and from the judgment of conviction and order of sentence
dated 10.06.2016 and 13.06.2016 respectively passed by the learned
Additional Sessions Judge, Koraput in Criminal Trial No.171 of 2013.
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Kangu Jani ..... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
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For Appellant - Ms. Sonita Biswal,
Advocate,
For Respondent - Mr. D.K. Mishra,
Additional Govt. Advocate.
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING :12.07.2023 : DATE OF JUDGMENT: 24.07.2023 D.Dash, J. The Appellant from inside the jail has assailed the judgment of conviction and order of sentence dated 10.06.2016 and dated 13.06.2016 respectively passed by the learned Additional Sessions Judge, Koraput in Criminal Trial Case No. 171 of 2013 arising out of Damonjodi P.S. Case No. 20 of 2013 corresponding to G.R. Case No.188 of 2013 of the Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Koraput. Page 1 of 9 JCRLA NO.47 OF 2016 {{ 2 }} The Appellant (accused) has been convicted for commission of offence under section- 302 of the Indian Penal Code, 1860 (for short 'the IPC'). Accordingly, he has been sentenced to imprisonment for life and pay fine of Rs.20,000/- in default to undergo simple imprisonment for a period of two years.
2. Prosecution case is that on 10.04.2013, Gopi Jani, father of Kailash Jani was sleeping in his house. Hearing hue and cry of the villagers; when he came out of the house, he heard that when his son Kailash was sleeping under the Jack fruit tree, accused-Kangu having inflicted injuries over his neck by means of a Tangia had escaped. Gopi Jani with his wife and daughter-in-law (P.W.10), then went near the Jack fruit tree; they found Kailash lying dead with bleeding injuries at his neck.
Gopi Jani, the father of the deceased submitted a written report with the Inspector-In-Charge (IIC), Damanjodi Police Station. The IIC (P.W.17) having received the said written report treated the same as F.I.R. and after registration of the case, directed Assistant Sub-Inspector of Police (A.S.I.) to take up investigation.
3. In course of investigation, the Investigating Officer (I.O.-P.W.17) examined the Informant (now dead) and the witnesses. He visited the spot and prepared the spot map, Ext.7. He then held inquest over the dead body of the deceased-Kailash and prepared inquest report, Ext.2 in Page 2 of 9 JCRLA NO. 47 OF 2016 {{ 3 }} presence of the witnesses. The Accused being arrested, it is said that he gave a statement that he had kept the axe in a particular place known to him and expressed that if he would be taken, he would recovery of same. The statement of the accused being recorded by the I.O. (P.W.17) vide Ext.9, the recovery of the axe was given by the accused and the same was seized. The dead body of the deceased was sent for postmortem examination. The incriminating articles seized by the I.O. (P.W.17) were sent for chemical examination through Court. Subsequently, the investigation was taken up by the IIC and he on completion of investigation, Final Form submitted, placing the accused to face the Trial for commission of offence under section-302 of the IPC.
4. Learned S.D.J.M., Koraput having received the Final Form as above, took cognizance of the said offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offence against the accused.
5. In the Trial, the prosecution examined in total sixteen (17) witnesses. Of those, importants are P.Ws. 4, 5, 6, 7 and 8, who are the co- villagers of the accused and the deceased. The daughter-in-law and wife of the Gopi Jani (Informant) have been examined P.W. 10 and P.W.11 respectively whereas P.W.14 is the minor daughter of the deceased. The Page 3 of 9 JCRLA NO. 47 OF 2016 {{ 4 }} Doctor who had held autopsy over the dead body of the deceased has been examined as P.W.9. and the I.O. has come to the witness box as P.W.17.
The prosecution besides leading evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 12. Out of those, the important are the F.I.R. (Ext.4), inquest report Ext.2, the spot map, Ext.7, the disclosure statement of the accused, Ext.9 and the report of the Doctor who had conducted autopsy over the dead body of the deceased-Kailash i.e. Ext.10.
6. The Trial Court having gone through the evidence of the Doctor (P.W.9) and the postmortem report, Ext.3 has arrived at a conclusion that Kailash met a homicidal death. In fact this aspect of the case was not under challenge before the Trial Court and that is also the situation before us.
The Doctor (P.W.9), who had conducted postmortem examination of the Kailash has noted one deep laceration of the size of 20!! X 8!! X 5!! around the front neck, 5!! below the chin making the centre of the wound. He too noticed fracture of left first rib, the trachea open and the vent of size of 4!! X 3!! with mucous and blood plugged in. Fracture of Page 4 of 9 JCRLA NO. 47 OF 2016 {{ 5 }} rib was confirmed and the left lung was found to have collapsed. All these injuries have been stated to be antemortem in nature.
The defence has even not made any attempt to question his evidence in any manner. This P.W.9 in his report, Ext.3 has noted all such details. As per his evidence, the death was homicidal in nature. The I.O. ((P.W.17) having held inquest over the dead body of the deceased had noticed such injuries on his neck and so noted in his report (Ext.2) in his own language. With such evidence on record, we find absolutely no difficulty in concurring with the finding of the Trial Court that Kailash met homicidal death.
6. Learned Counsel for the Appellant(accused) submitted that the solitary testimony of P.W.11, who has been projected by the eye witness from the side of the prosecution is not at all credible. According to him, the Trial Court ought not to have placed implicit reliance upon the same in fastening the guilt upon the accused. He further submitted that the evidence of the post occurrence witnesses such as P.Ws. 3, 4, 5 and 6 have been given unnecessary importance and when the evidence of P.W.11 is not reliable, the evidence of the other witnesses as above noted cannot form the basis of conviction. He further submitted that the evidence as to the recovery of the axe at the instance of the accused, on Page 5 of 9 JCRLA NO. 47 OF 2016 {{ 6 }} proper analysis of the deposition of P.Ws. 13 and 17 is liable to be rejected and it has to be held to be of no aid to the prosecution case.
7. Learned Counsel for the State-Respondent submitted all in favour of the finding of guilt as has been returned by the Trial Court holding the accused guilty of committing the murder of Kailash. He further submitted that the evidence of P.W.11 is certainly of starling quality and the Trial Court has rightly placed implicit reliance upon the same in holding that with such solitary testimony of P.W.1, which is above board, the charge against accused stands established. He also submitted that the evidence of other co-villages who have stated to have seen the accused coming back to his house with blood stained axe, shortly after the incident, when also provide further corroboration to the evidence of P.W.11. So, he contended that the conviction returned by the Trial Court is not liable to be tinkered with.
8. Keeping in view the submissions made; we have carefully gone through the judgment passed by the Trial Court and we have also extensively travelled through the depositions of the prosecution witnesses i.e. P.Ws. 1 to 17 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 12.
9. In order to judge the sustainability of the finding of guilt as against the accused as has been returned by the Trial Court by addressing rival Page 6 of 9 JCRLA NO. 47 OF 2016 {{ 7 }} submission, we would start with the examination of the evidence of P.W.11.
Before that, it be stated that there is no bar in the eye of law to base a conviction upon the testimony of a solitary witness. The rider however remains that said evidence of the solitary witness must be wholly credible and trustworthy and it should be above board. This is on the anvil of the principle of law that it is always the quality of evidence which matter but not the quantity.
Bearing these principles in mind now we are called upon to examine the evidence of P.W.11 so as to ascertain its quality and say as to how far his evidence is reliable to the finding as to the role of the accused and the act committed by him in the incident for being held liable for the charge.
10. It has been stated by P.W.11 that it was on the Chaitra festival during mid day and after taking food, he was sleeping with P.W.3 and the deceased-Kailash under a Jack fruit tree. As per his evidence, the deceased was sleeping at a little distance from them and suddenly, he heard the sound "Dhak, Dhak". So, when he woke up, he saw accused assaulting the deceased by means of axe. As regards his reaction, it appears to be quite natural when he has stated that having seen the horrible incident, he ran towards the village stream and it was only when Page 7 of 9 JCRLA NO. 47 OF 2016 {{ 8 }} the villagers came, he returned to that place and disclosed before them to have seen the incident and what happened. As it appears that no such material has been elicited from this P.W.11, during cross-examination, to create any doubt in mind with regard to his presence near the place where the deceased was sleeping. Simply because, it has been stated by P.W.11 that he had taken drink that in our view is not enough to say that he having not seen the incident taken place before him is falsely stating so as nothing has been established as to the degree of such intoxication to be then getting expressed through the action and conduct of P.W.11. The immediate response of P.W.11 is also quite natural that in a panic stricken state, he rushed towards village stream and only having mastered courage, on arrival of the villagers, he came there and disclosed about the happenings before them. On careful scrutiny of the evidence of P.W.11, we find absolutely no material to view his evidence through the spectrum of suspicion.
In addition to the above evidence, we find the evidence of P.W.6 to the effect when he was returning from the house of P.W.7, when he saw the accused coming towards village holding blood stained axe and that has also not been shaken. The evidence of P.W.8 further stands on the score that he had also seen the accused passing in front of his house with the axe. It is also stated that by P.W.4 that he had seen accused coming Page 8 of 9 JCRLA NO. 47 OF 2016 {{ 9 }} from the spot towards his house by raising shout as 'Aau Kie Achhare Aasa' (Come if any other may come). It is also stated that he then had noticed the blood stain on the wearing apparels of the deceased and also on the Tangia and soon thereafter, he saw Kailash lying dead with bleeding injuries on his neck.
The evidence of the Doctor (P.W.9) then provide full corroboration to the version of P.W.11 when he has stated that such injuries noticed upon the dead body were possible by that axe that he had examined.
With the above, evidence on record, we are led to hold that the accused has been rightly convicted by the Trial Court for committing the murder of Kailash in intentionally causing his death. The judgment of conviction and order of sentence dated 10.06.2016 and 13.06.2016 respectively passed by the learned Additional Sessions Judge, Koraput in Criminal Trial No.171 of 2013 are hereby confirmed.
11. In the result, the Appeal stands dismissed.
(D. Dash), Judge.
Dr.S.K. Panigrahi, J. I Agree. Signature Not Verified Digitally Signed Signed by: NARAYAN HO (Dr.S.K.Panigrahi), Designation: Peresonal Assistant Reason: Authentication Judge. Location: OHC Date: 25-Jul-2023 11:14:44 Narayan Page 9 of 9 JCRLA NO. 47 OF 2016