Orissa High Court
Kapileswar Sahu vs State Of Orissa on 10 January, 2012
L.MOHAPATRA, J & B.K.MISRA, J.
JCRA NO.29 OF 2002 (Decided on 10.01.2012)
KAPILESWAR SAHU ... ...Appellant.
.Vrs.
STATE OF ORISSA .......Respondent.
EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) - S.118.
For Appellant - Mr. Ashok Das, Advocate
For Respondent - Mr. Sangram Dash, Addl. Standing Counsel
B.K.MISRA, J.The present appellant was convicted by the learned Addl. Sessions Judge, Boudh in S.T. Case No. 9-46 of the year 2001. The learned Addl. Sessions Judge while convicting the present appellant under Section 302 of the Indian Penal Code (in short, 'IPC') directed him to undergo Rigorous Imprisonment for life.
2. The case of the prosecution is that the appellant was in the habit of assaulting the deceased Soudamini Sahu, who is his wife and their relationship was strained since two years prior to the occurrence. It is alleged that on 29.6.2000 around 6 P.M., the informant Bhagabat Sahu (P.W.1), who is the brother of the deceased on returning to his house received information from one Rajendra Sahu that the appellant had murdered the deceased Soudamani and the appellant, the deceased as well as their children to have been closeted in their house from the morning and the doors of the said house to have been bolted from inside. On getting this information, P.W.1 proceeded to the village of the appellant and found the house of the appellant to have been closed from both the sides and many persons to have assembled there. It is alleged that P.W.1 from the terrace of a neighbouring house of the appellant namely, Siba Sahu with the light of a torch found the deceased lying with bleeding injuries on the verandah of the back side courtyard. Information regarding the occurrence was lodged by P.W.1 at Kantamal Police Station vide Ext.1. Police on receipt of the said information registered a case and took up investigation. On completion of investigation, charge sheet was placed against the appellant to stand his trial.
3. The plea of the appellant was that of a complete denial of the occurrence. It is his further plea that he does not pull on well with the villagers and the informant (P.W.1) only to grab his properties has foisted this case.
4. The prosecution in order to bring home the guilt of the appellant examined ten witnesses in all and of them, P.W.1 is the informant. P.W.2 is an eye witness to the occurrence. P.Ws. 3 to 5 are the three independent witnesses for the prosecution. P.W.6 is the doctor who held post mortem over the dead body of the deceased. P.W.7 is the seizure witness and P.W.8 is the Police Constable who had accompanied the dead body of the deceased to hospital for post mortem examination. P.Ws. 9 and 10 are the two I.Os.
2The appellant examined one witness in his defence.
The learned Addl. Sessions Judge, Boudh formulated three points for determination namely :-
(i) That the death of a human being has actually taken place.
(ii) That such death has been caused by or in consequence of the act of
the accused.
(iii) That such act was done with the intention of causing death.
After discussing the evidence on record, the learned Addl. Sessions Judge believed the evidence of P.W.2, who is the son of the appellant and is an eye witness to the occurrence and basing upon his solitary statement convicted the appellant and passed the impugned sentence.
5. The learned counsel appearing for the appellant in course of his argument assailed the order of conviction and sentence on the ground that the learned Addl. Sessions Judge should not have placed reliance on the solitary testimony of P.W.2., who is a child witness and the learned Addl. Sessions Judge did not follow the mandate of law as to how to appreciate the evidence of a child witness and thus, there has been miscarriage of justice which needs to be interfered with by this Court.
6. The learned Addl. Standing counsel Sri S.Dash appearing for the State very forcefully submitted that the learned Addl. Sessions Judge committed no illegality or impropriety in believing the evidence of the solitary eye witness and therefore, the order of conviction needs no interference at all.
7. P.W.6 is the doctor who conducted post mortem over the dead body of the deceased which was identified to him by Constables Magusira Majhi and D.D.Konhar and he found seven external injuries namely:-
(i) Bruise of 7 x 7 cm. over left temporal region and in the middle there was a lacerated cut size 1"x 1"x 1" each.
(ii) Lacerated cut 2" x ½" x 1" left mandibular area near angle of mouth.
(iii) Bruise 4" x 4" over right parieto occipital area and in the middle there was lacerated cut 2" x ½" x 1".
(iv) Lacerated cut 2" x ½" x 1" over front of right forearm.
(v) Lacerated cut 1" x ½" x 1" back of right arm.
(vi) Contusion 4" x 4" over the dorsam of right arm with under lying fracture of 3 rd and
4th metacarpal bones.
(vii) Contusion front of chest 6" x 6".
3
On internal examination, P.W.6 found fracture of left temporal bone, laceration of left side dura with underlying haematoma. P.W.6 also found the left facial artery, right occipital artery and arteries of forearm to have been completely cut. In the opinion of P.W.6 the death of the deceased was because of head injuries which might have been inflicted by semi sharp cutting weapon like "Tangia" i.e. M.O.I. He has proved the Post Mortem report prepared by him as Ext.3 and also he has proved his opinion report Ext.4 after examining the weapon of offence M.O.I. In view of such medical evidence and the post mortem report Ext.3 it is clearly established by the prosecution that the death of the deceased was a homicidal one because of the injuries which were found on the person of the deceased. Ext.3 also shows that the injuries which were found on the person of the deceased to be ante mortem in nature.
8. In view of such medical evidence now let us proceed to examine the evidence on record to determine as to how far the prosecution has been able to establish its case against the appellant as the perpetrator of the crime.
9. Admittedly, in this case P.W.1 is the informant. He has no direct knowledge about the occurrence and the evidence of P.W.1 shows that he heard from one Rajendra Sahu that the accused had killed the deceased. P.W.1 deposed that when on getting the information from Rajendra Sahu of village Rundimahul, he proceeded to that village found the front and back door of the house of the accused locked and accordingly, presented the F.I.R. Ext.1. P.W.1 deposed that prior to the occurrence there was quarrel between the accused and the deceased as the accused was selling away the lands without any necessity to which the deceased was objecting. P.Ws. 3, 4 and 5 all of them belong to village Rundimahul i.e. the village of the appellant. P.Ws. 4 and 5 have categorically deposed on oath before the court that the accused was assaulting his wife frequently. P.W.3 who is another witness for the prosecution deposed that on hearing a rumour that the accused had killed his wife, he proceeded to the house of the accused and found some villagers to have gathered outside that house and when he along with Police Officers entered inside the house of the accused, the accused got annoyed and chased to assault with the tangia. It is also the evidence of P.W.3 that the accused dealt a tangia blow on his left side forehead for which he fell down senseless. Thus, the evidence of P.W.3 shows that he is a post occurrence witness but at the same time his evidence has relevancy to this case as he deposed that he has seen the accused in his house with an axe.
10. The most vital witness and the star witness for the prosecution is P.W.2, who is the son of the appellant as well as the deceased. It is the evidence of P.W.2 that after giving him food around 9 A.M. about a year and three months back prior to his deposing in court on 3rd October, 2001, his mother proceeded to the bed room (Dhaba Ghara) and his father followed her and after sometime his mother came out with bleeding from her head and his father also came out of the said "Dhaba Ghara" with an tangia (axe) in his hand. It is the further evidence of P.W.2 that his father gave blows on the blunt side of the tangia on the head of his mother for which his mother fell down crying and when he immediately rushed to his mother found her dead. P.W.2 also deposed that he was advised by his father not to cry as his mother has died and at that time his elder brother namely, Ashok and Jayakumar were not there in the house. P.W.2 has been cross- examined at length from the side of the appellant but his evidence that when after giving him food his mother proceeded inside the bed room she was followed by the present 4 appellant to that room and some times thereafter his mother came out of the room with bleeding from her head and his father (the present appellant) also came out of that room with a tangia in his hand and also the present appellant dealt blows with that tangia to the head of his mother for which his mother fell down crying, has remained totally unshaken.
11. How to appreciate the evidence of a child witness, law is very clear on the point. In the words of the Apex Court in Dattu Ramrao Sakhare V. State of Maharashtra (1997) 5 SCC 341:-
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored".
The aforesaid decision of the Apex Court has been followed in another decision of the Apex Court as reported in (2009) 43 OCR (SC) 374 i.e in the case of State of Karnataka V. Shantappa Madivalappa Galapuji and Others. The position of law relating to the evidence of a child witness has been dealt with also by the Apex Court in a judgment as reported in (2010) 47 OCR (SC) 263 in the case of State of Utter Pradesh V. Krishna Master and Others and also in Nivrutti Pandurang Kokate and others V. State of Maharashtra, (2008 (12) SCC 565) and Golla Yelugu Govindu V. State of Andhra Pradesh (2008 (4) SCALE 569).
12. Similarly the position of law about appreciation of the evidence of a child witness and the duty of the trial court in relying on the evidence of such witness has been succinctly stated by this Court in a decision as reported in (2008) 40 OCR 529 in the case of State of Orissa V. Purna Chandra Kusal.
13. Section 118 of the Indian Evidence Act, 1872 speaks that all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, because of tender years, extreme old age, disease whether of mind or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. Thus, it is the trite law that evidence of a child witness is not required to be rejected per se but the Court as a rule of prudence considers such evidence with close scrutiny and on being convinced about the quality thereof and reliability can record conviction. The Hon'ble Apex Court also has gone a step ahead in the case of State of U.P. V. Krishna Master & Others (supra) in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory 5 when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence. In the words of their Lordships of the Apex Court a child of tender age is always receptive to abnormal event which takes place in its life and would never forget those events for the rest of the life. In the aforesaid touchstone and golden principles with regard to appreciation of the evidence of a child witness, now coming to the evidence of P.W.2, it is seen that the learned Addl. Sessions Judge has put questions to P.W.2 who was then twelve years old to test his power of understanding and intelligence and on being satisfied that he was capable of understanding questions and give rational answers proceeded to record his evidence. As I have already discussed above there is hardly anything in the evidence of P.W.2 and on record to disbelieve his evidence when he has depicted before the court what happened in his presence and how his mother was killed by his father in his presence.
14. The learned defence counsel tried to demolish the evidence of P.W.2 by drawing our attention to the evidence of P.W.2 in his cross-examination in Para-3, where he has stated that he was examined by police three days after the occurrence and they were in the Police Station for those three days. The Apex Court have very categorically deprecated the practice of rejecting the evidence of a witness where there appear minor discrepancies here and there and adopt a hyper technical approach. In the words of the Apex Court, it is the duty of the Court to find out whether there is a ring of truth in the evidence of the witness when read as a whole. Similarly, in the words of the Apex Court for the defective investigation and for the lapses on the part of the Investigating Officer the evidence of a witness and for that matter the entire case of the prosecution should not be thrown out. The Court is not helpless in such matter and the Court shall not sit in despair and no premium should be allowed to be given to the defence for the defective investigation. Learned Addl. Sessions Judge has assigned reasons when he accepted the evidence of P.W.2 and we do not find any illegality to have been committed by the said court in accepting the evidence of P.W.2. Thus, the contention of the learned counsel for the defence for ignoring the evidence of P.W.2 who is a child witness cannot be sustained. Even if on the point of occurrence the evidence of P.W.2 cannot be thrown out because of non-availability of independent witnesses. It is to be remembered that when an incident takes place inside the house, it is not expected that the people would be there to see that and it is but natural that the inmates of the house and the near relations would be the best persons to speak of the same.
15. The evidence of P.Ws. 7 and 8 is of no relevance on the point of occurrence as P.W.7 is a seizure witness i.e. with regard to the seizure of the blood stained earth and sample earth from the spot by the police and also about the seizure of the broken handle of the tangia. P.W.8 is the Police Constable who deposed that he escorted the dead body of the deceased to Boudh hospital for post mortem and he proved the Command Certificate issued to him as Ext.7. P.Ws.9 and 10 are the two I.Os. and admittedly they are post occurrence witnesses. The evidence of the defence witness namely, D.Ws.1 i.e. the evidence of the appellant who got himself examined that his wife fell down by wrong stepping inside the house and sustained injury on her head and that he was absent at that time cannot at all be believed as no such suggestion has been given to the witnesses namely, P.Ws. 1 to 5. The appellant also did not resort to such pleas also in his examination under Section 313 Cr.P.C. On the other hand he has taken a specific plea in his under Section 313 of the Cr.P.C. examination that only to grab his property the case has been foisted by P.W.1.
6There is nothing on record as to why P.W.2, the son of the appellant would be deposing falsehood especially when D.W.1 deposed that his sons were obedient to him.
16. Thus, in view of the aforesaid discussion of the evidence and position of law, we do not find anything wrong in the judgment of the learned trial court.
In the circumstances, while upholding the order of conviction and sentence awarded by the learned Addl. Sessions Judge, Boudh to the appellant, the present appeal having no merit and stands dismissed.
Appeal dismissed.