Orissa High Court
Faku Alias Danardan Mahapatra & Anr vs State Of Orissa on 17 May, 2023
Author: Biswanath Rath
Bench: Biswanath Rath, M.S. Sahoo
ORISSA HIGH COURT : C U T T A C K
CRA No.221 of 2000
From the judgment of conviction and sentence passed by the First Addl.
Sessions Judge, Puri in Sessions Trial No.14/162 of 1999/1998 dated 16 th
August, 2000.
Faku alias Danardan Mahapatra & Anr. : Appellants
-Versus-
State of Orissa : Respondent
For Appellants : M/s. D. Panda, S. Panda,
J.P. Behera, A. Mehta,
D.K. Panda, Mr. R.K.
Sahoo, S.R. Mohapatra,
R.R. Mohapatra,
B.R. Mohanty,
M.R. Mohanty,
M. Sahoo,
Mr. S.C. Mohapatra,
G.P. Panda, A. Das,
N.K. Dash
For Respondent : Mr. Sonak Mishra,
Addl. Standing Counsel
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH JUSTICE M.S. SAHOO Date of hearing: 17.04.2023 :: Date of Judgment : 17.05.2023 Per Biswanath Rath, J.
1. This Criminal Appeal at the instance of accused persons involves a challenge to the judgment of conviction and sentence dated 16th August, Page 1 of 26 // 2 // 2000 passed by the 1st Addl. Sessions Judge, Puri in Sessions Trial No.14/162 of 1999/1998. Order dated 11.03.2004 makes it clear that both appellants have been enlarged on Bail on this date.
2. Prosecution story in a nutshell as revealed from the F.I.R. runs as follows :-
One Krushna Chandra Mohapatra (P.W.1) lodged an F.I.R. disclosing that on 19.12.1997 at about 9 P.M. while he was watching T.V., a resident of his area, namely, Babu @ Narasingha Pratihari S/o. Baban Pratihari came running to him in injured state and told that his father has been assaulted by means of sword and chapudi by Danardan Mohapatra of his area and one Balabhadra Mohapatra @ Belabali. Hearing from Narasingha, he along with the brother of his younger brother-in-law proceeded to the spot and found his father lying with pool of blood near Pathagar. Informant claimed, seeing them, both of the accused ran away towards Labanikhiya Chhak. Informant claims, on he asking his father, father stated that while both the deceased and Narasingh alias Babu Pratihari (P.W.11) reached at the end of Suar Sahi Lane, near Ramachandi Pathagar both the accused persons being armed with sword and Chapuri (katari) came from the backside and uttering filthy language, the accused Faku alias Danardan Mahapatra gave sword blow to the deceased Purna Chandra Mahapatra at that moment, Babu alias Narasingh Pratihari (P.W.11) turned back immediately and raised his hand to save Page 2 of 26 // 3 // the deceased, as a result the sword blow struck the right palm of P.W.1 and he sustained cut and bleeding injuries on his right thumb. P.W.11, Babu alias Narasingh Pratihari also sustained injuries on his left thumb while intercepting the assault on the deceased. His father further disclosed that on his falling down on the ground, Faku and Belabali went on assaulting him by means of both sword and chapudi at different part of his body. Informant found his father lying on ground with pool of blood and his right leg was completely severed from his foot. Finding his father in precarious condition, he and his friends who had reached there by the time, took his father by a rickshaw to the Government Hospital at Puri and his father was under treatment while he lodged the F.I.R. P.W.1 in his F.I.R. has also disclosed that accused persons assaulted his father as a result of previous enmity. He thus prayed the Police for appropriate legal action against the culprits.
3. On receipt of the F.I.R. the I.O., P.W.25, Madhaba Chandra Sahu proceeded to the District Headquarters Hospital, Puri and issued injury requisitions in favour of both the deceased Purna Chandra Mahapatra and injured Narasingh alias Babu Pratihari (P.W.11) and both of them were examined by the doctor on Police requisition. The I.O. also recorded the statement of Purna Chandra Mahapatra U/s.161 Cr.P.C. marked as Ext.24. The I.O. thereafter took up investigation and registered the case U/s.341/326/307/324/34 of I.P.C but the deceased later on died at Cuttack Page 3 of 26 // 4 // while he was undergoing treatment at a Nursing Home. After completion of investigation charge sheet was submitted against both the Appellants under Section 302/34 of I.P.C.
4. The plea of the defence is that of complete denial.
Both the accused persons in their 313 Cr.P.C. statement denied to have any common intention to murder Purna Chandra Mahapatra and claimed that they have been falsely implicated, only as an outcome of previous enmity involving the accused Faku alias Danardan Mahapatra for being falsely implicated in a theft case.
5. The trial judge recorded that the prosecution has examined as many as 25 witnesses and admitted Ext.-1 to Exts.25/2. Defence while examining none, however, has exhibited Exts.8A9 to 8C9. Prosecution also admitted the material objects vide M.O. 8I9 till M.O.8VIII9. Based on materials available on record it appears, the trial Judge has drawn conclusion that Faku alias Danardan Mahapatra and Belabali alias Balaram alias Balabhadra both are guilty of offences U/s.302/34 of I.P.C. and convicted and sentenced both of them to undergo imprisonment for life U/s.302/34 of I.P.C with setting off of the period of detention. The learned Trial Judge made the following observations :-
6. On the evidence of P.W.11 (eye witness) the learned trial judge has observed that his evidence remains consistent and cogent without any contradiction or omission. P.Ws.1 & 2 claimed to have reached the spot Page 4 of 26 // 5 // being called by P.W.11 and have made a clear statement of seeing the appellants running away with weapons and have identified the sword the M.O.I allegedly used by Appellant No.1 to assault the deceased. The learned trial Judge relied on the statement of P.Ws.1, 2, 3, 5 & 11 and on the premises that all these corroborated the version of the deceased about the details of the occurrence. The learned trial Judge has also relied on the statement of P.Ws.2, 3 & 5 claimed to have seen the appellants holding weapons and the deceased lying in a pool of blood with several bodily injuries. On the evidence P.Ws.6 & 7 the witnesses to seizure of Ext.4 proved as M.Os.II & V. The learned Trial Court has accepted the evidence of P.W.18, the Doctor who appears to have examined the deceased at Government Hospital at Puri and stated that while examining the deceased he disclosed the name of the accused persons as assailants.
7. On scanning through the evidence of P.Ws.20 & 21 it is observed, both these witnesses stated, the deceased have been brought to a nursing home at Cuttack, namely the <Cuttack Nursing Home= and in spite of serious attention and care and despite surgical intervention at the nursing home to attach the severed foot, bleeding could not be checked. Also in accepting the evidence of P.W.25 it is held, Ext.24 remains admissible U/s.32(1) of the Indian Evidence Act. The trial judge from the evidence of P.W.3 found the motive of prior enmity, for the reason of deceased suspecting appellant no.1 for stealing a gold chain of P.W.3. On the basis Page 5 of 26 // 6 // of the evidence taken note hereinabove the trial judge in paragraph no.6 of the judgment came to observe that evidence of P.W.11 is most vital and the P.W.11 being an eye witness and also was a worker under the deceased. The learned court strongly relied on the statement of the P.W. 11 in paragraph no.6. The learned trial judge has also given due weightage to the evidence of P.Ws.1, 3 & 5 and in paragraph-7 of the judgment the trial Judge came to observe that testimony of P.W.11 gets the corroboration from the other witnesses such as that of P.W. 1 son of the deceased. The trial judge also heavily relied on evidence of P.Ws.2 &
3. Finally relying on the evidences of P.Ws.20 & 21 both the doctors attending the deceased for his treatment at the Cuttack Nursing Home, who have clearly stated that the injured was taken to the Nursing Home and admitted there at 4.A.M. of 20.12.1997 and in spite of taking maximum care and further despite surgical intervention by the P.W.21, bleeding remained unchecked and the deceased succumbed to his injury. The learned court returned the judgment of conviction and sentence dated 16th August, 2000 in Sessions Trial No.14/162 of 1999/1998.
8. Mr. Panda, learned counsel for the Appellants, in challenge to the judgment of conviction and sentence, while attacking the observation of the trial court that the death of the deceased was homicidal, argued that the death occurred 28 hours from the time of the incident alleged by the prosecution and the injuries as noted by P.W.18 vide Ext.11 and indicated Page 6 of 26 // 7 // in the post-mortem report vide Ext.14, are not on vital parts of the body but are mostly on limbs and back. Second Limb of argument of Mr. Panda, learned counsel for the appellants appears to be; severance of right foot is not sufficient to cause death. Taking this Court to the disclosures through Ext.14 Mr. Panda, learned counsel for the appellants brought to the notice of this Court the reason of death being shock and haemorrhage, whereas Ext.16/2 shows the death has occurred due to cardiac arrest. Further taking this Court to the evidence of P.W.18, a doctor Mr. Panda, learned counsel for the Appellants claimed that there is clear disclosure by this witness that the deceased could have survived with better treatment. Mr.Panda also contended that there is no evidence at all on the treatment of the deceased by the doctors at Puri as to if, there is any attempt to check the bleeding before referring the injured to Cuttack.
9. Based on the above contentions, Mr. Panda, learned counsel for the appellants claimed that the case presented by the prosecution in the circumstances, that has been proved would never fall within the ingredients of Section 300 of I.P.C. so as to result conviction under Section 302 of I.P.C. On the evidence of P.W.19 the Assistant Professor of F.M.T, S.C.B. Medical College & Hospital, Cuttack who conducted the post-mortem examination, Mr. Panda, learned counsel for the appellants referring to the evidence of P.W.19 brought to the notice of this Court that the opinion of this doctor on the cause of death was due to Page 7 of 26 // 8 // shock and haemorrhage. The learned counsel for appellants, in the circumstance, further submitted that if the injured could have been given proper treatment, he could have survived and loss of blood on account of such injury could have been checked. Taking this Court through the cross-examination of P.W.21, Mr. Panda claimed that the said witness has clearly stated that after operation he found that there was still bleeding that increased, for which stiches had to be reopened to know the reason, but no reason could be found out. Taking this Court to the evidence of P.W.21 read together with Ext.16/2 Mr. Panda, learned counsel again submitted that the treating Doctor claimed the cause of death due to cardiac arrest and alleges that there is no serious consideration of this aspect by the trial judge. In the circumstance, Mr.Panda argued that the facts proven could not have attracted provisions of Section 302 of I.P.C. to the case at hand.
10. He further submitted that at the time of occurrence taking place at 9 P.M. on 19.12.1997 at Puri, the injured was first shifted to the Government Hospital at Puri then there is loss of substantial time and finding no improvement in the injured, the deceased in injured state was shifted to the S.C.B. Medical College & Hospital at Cuttack and then to a private Nursing Home at Cuttack and the death occurred at 12.45 A.M. on 21.12.1997. Mr. Panda, learned counsel for Appellants claims that death not only took place after 28 hours of the incident, but it was also Page 8 of 26 // 9 // due to cardiac arrest as has also been disclosed by the treating Doctors. Mr. Panda, learned counsel claims that in no circumstance, there could have been a conviction for offence U/s.300 of I.P.C. The learned defence counsel also pointed out the lapses in recording of statement of accused Under Section 313 of Cr.P.C. Placing reliance on some of the judgments, Mr. Panda, learned Advocate seeks indulgence of this Court in the interference in the impugned order of conviction and sentence and for setting aside of the same, while also giving an alternate request in the worst case the conviction and sentence should be altered to U/s.325/34 of I.P.C and prayed for suitable modification of the sentence at least keeping in view the period of custody of almost seven years already there.
11. Mr. S. Mishra, learned State Counsel for the prosecution, on the other hand, took this Court through the discussions of the learned Sessions Judge in the impugned judgment, involving each of the witnesses and reading through the same attempted to convince the Court that there has been reasonable consideration of the evidence to return a verdict of guilt. Mr.Mishra submitted that the findings of the trial Judge is clearly based on consideration of the evidence on record, as such the impugned order does not require to be interfered with. Mr. Mishra, learned State Counsel taking this Court to the F.I.R. story, evidence of P.Ws.1, 2, 3, 5, 6, 7, 11, 18, 20, 21 & 25 appearing in the paper book and Page 9 of 26 // 10 // reading through the same attempted to justify the order of conviction and sentence.
12. Mr.S.Mishra, learned Additional Standing Counsel further banking on the disclosures made by the deceased, while he was injured to independent witnesses as well made before the treating Doctor (P.W.18), while the deceased was under treatment in the Hospital at Puri submits, for clear corroboration of assault by the Appellants through the statement of P.Ws.1, 2, 3, 5, 18 & 25, there is clear proving of assault on the deceased by the Appellants and thus submitted justifying the order of conviction as well as sentence.
13. Mr.S.Mishra, learned Additional Standing Counsel referring to the disclosure of deceased while being injured to P.W.18 and the statement under Section 161 of the Cr.P.C. argues that such declaration falls in the category of dying declaration. Taking this Court through the decision of the Hon9ble Apex Court, in Sri Bhagwan v. State of Uttar Pradesh (2013) 12 SCC 137, attempted to justify his such contentions. Taking this Court through the evidence of P.W.1 and reading through the same, Mr.Mishra also submitted to justify the order of conviction and sentence involved herein.
14. On motive, mens rea and previous enmity, Mr.Mishra taking this Court to examination of accused under Section 313, Cr.P.C. contended, there is clear proof of all alleged acts connected by the accused- Page 10 of 26
// 11 // appellants. Taking this court through the evidence of P.Ws.1, 2, 3 & 11 attempted to satisfy that there is substance in the judgment and claims, there is no scope for interfering in the impugned judgment. In his last submission, Mr.Mishra also attempted to satisfy on the common intention in both the Appellants and thus requested this Court for dismissing the Appeal for not having any merit at all.
Mr. Mishra also cited number of decisions taken support in his written notes of submission and took this Court to each of the decisions in his attempt to justify the conviction and sentence.
15. It is, in the above background of the matter and for corroboration of the evidence of informant, the eye witness, the statement of the injured in the Hospital given before the Doctor, for recovery of utilized weapons already identified to be used in the occurrence on the pretext of eye witness to have seen utilization of weapon in the assault process, for there has been complete amputation of one leg and for there is loss of vital part of body resulting in heavy bleeding, Mr. Mishra, learned State Counsel contended that there is sufficient material to rely on and in the circumstance, there is no scope for either to interfere in the impugned order of conviction and sentence or even in the alteration and/or modification of the order of conviction and sentence and thereby requested this Court for dismissal of the Criminal Appeal thereby confirming the order of conviction and sentence.
Page 11 of 26
// 12 //
16. Scanning the evidence presented by prosecution before the learned Trial Court, this Court finds, P.Ws.1, 2, 3, 5, & 11 claimed to have witnessed the assault part. Undisputedly, majority of the witnesses came to witness after commencement of the assault, whereas one of the witnesses (P.W.11) was very much present on the spot, as he was also moving with the deceased at the relevant point of time and was also injured in the attack. There is also vital evidence through 161 statement of the deceased while he was in injured state. Informant, Krushna Chandra Mahapatra, P.W.1 and Uma Sankar Pratihari, P.W.2, a person closely known to the accused persons as well as to the deceased, P.W.2, who also appears to have moved to the spot being informed of the assault on Purna Chandra Mahapatra by Narasingh Pratihari. Before proceeding to the spot, he found bleeding injury on the right palm of Narasingh, on his moving to the spot along with Krushna Chandra Padhi and Kabuli Behera found Purna was lying on the ground and accused, Danardan Mohapatra had just given a blow by sword to the body of Purna. As per P.W.2 other accused, Balabhadra Mohapatra was also present there. This witness also disclosed, accused, Danardan Mohapatra was holding a sword whereas accused, Balabhadra was holding a <Chapudi=.
17. P.W.1, the informant in his deposition stated at the time of occurrence, he was watching T.V. in his house along with his brother, Umasankar Pratihari (P.W.2). Hearing hullah from outside, he came out Page 12 of 26 // 13 // and found Narasingh Pratihari was coming towards him running and told him that his father had been assaulted and further told that both the accused persons assaulted his father. He along with Babu (P.W.11) and Umasankar Pratihari (P.W.2) went to the spot immediately and there they saw the accused, Danardan Mohapatra holding a sword and accused, Balabhadra Mohapatra holding a Chapudi. This witness has even clearly stated to have seen the accused, Danardhan giving a sword blow to his father and ran away. This witness also categorically stated to have seen the occurrence in the Halogen streetlight light then available in the street. In the cross-examination on the identification of Material Objects, this witness stated, he could identify the Material Object (sword) for he has already seen the M.O.1 in the hand of the accused, Danardan Mohapatra.
In cross-examination, this witness has also a clearly stated to have stated before the I.O. that the accused, Danardan gave a sword blow while he reached the spot.
18. Similarly P.W.3, Krushna Chandra Padhi while coming with one Kabuli in a Hero Honda motor cycle near Ramachandi Pathagar, found the deceased lying on the road with bleeding injury on his person and his right leg was detached from the body. He has also stated to have found the accused persons not only there but accused, Danardan was holding a sword whereas accused, Balabhadra was holding a <Chapudi= <Katuri.= He even has stated to have seen the accused, Danardan giving a sword Page 13 of 26 // 14 // blow on the leg of the deceased and thereafter both the accused persons left the spot. This witness also stated to have seen P.W.1 taking his father to the Hospital in one rickshaw whereas the detached foot was carried to the Government Hospital at Puri by another rickshaw by Babu. He also went to the Hospital.
19. Similarly, from the evidence of P.W.5, this Court finds, this witness to have stated that he was moving in a Hero Hondo Motor Cycle. He found P.Ws.1 & 2 and Babu were running towards Pathagar. He also claimed to have seen the accused, Danardan @ Faku holding a sword and accused Belabali with a Chapudi. He also witnessed Faku giving a sword blow on the leg of the deceased and before reaching, he has also learnt from Babu that the deceased has been assaulted by the accused persons for some time past. This witness has also seen the deceased was moving to Hospital in critical condition and a detached foot was also carried to the Hospital by a rickshaw. He also accompanied P.W.3 to the Hospital. P.W.5 has made a clear statement in the cross-examination that he has stated before the I.O., seeing the accused persons assaulting by sword on the leg of the deceased and ran away.
20. From the evidence of Narasingha @ Babu Pratihari (P.W.11), this Court finds, Babu appears to have stated to be working as a Salesman in a shop and on the date of occurrence, after closure of the shop at 8.45 P.M., Page 14 of 26 // 15 // he was coming to the house of P.W.1 to watch T.V. also to give the days accounts. On his way he found deceased Purna Chandra Mohapatra was sitting in the shop near Pathagar in the Marchikota Lane. Deceased Purna joined him and both were coming to the house of P.W.1. It is stated, while both of them were coming together, the accused, came from the backside and uttering filthy language gave blows to Purna, the deceased and Purna on their turning back, both of them found both the accused persons. He could identify the accused persons for the availability of street light. In the process, he has seen the accused Faku alias Danardan holding a sword and accused Belabali was holding a Chapudi. It is claimed, when accused Faku wanted to give a sword blow to the deceased, Purna, the P.W.11 raised his right hand, the sword struck his right palm. As a consequence, this witness sustained cut injuries just below the right thumb. This witness also stated to have heard the accused, Faku thereafter giving direction to accused Belabali to pierce the weapon he was holding, to the witness, P.W.11. Out of fear he ran towards the house of P.W.1. On his turning back, he again found the accused persons assaulting Purna Chandra and Purna Chandra was raising hullah. It is at this point of time, hearing hullah, both Krushna Chandra Mohapatra and Umasankar Pratihari had come down to the balcony of the house and thereafter all the three moved to the spot and found accused, Faku giving blow to the deceased, Purna Chandra by sword and Belabali was also Page 15 of 26 // 16 // holding a Chapudi. Finding them the accused persons ran towards the Labanikhia Chhak. On the spot they found the deceased (Purna) lying in a pool of blood and the right foot of the deceased was lying detached from the body. After some time, P.W.1 moved the deceased in a rickshaw whereas P.W.11, the present witness took the detached foot of the deceased with shoe to the Hospital in another rickshaw. This witness also has made a clear statement that on their reaching Puri Hospital, after Police requisition was made, he was examined in the Hospital but however keeping in view the serious condition of the injured, the doctor referred the deceased to Cuttack. This witness accompanied the injured to Cuttack along with the detached leg in an Ice Box. Finding late night and keeping in view the serious condition of the patient, on advice, they admitted the injured in a Nursing Home, namely, Cuttack Nursing Home at Cuttack and the injured died in the Nursing Home at Cuttack at 12.45 A.M. on 20.12.1997.
21. Now coming to scan the evidence of P.W.18, the Assistant Surgeon of Puri District Headquarters Hospital, who has stated to be on duty in Causality, has stated that in the first instance, he had examined Narasingh Pratihari and on second requisition, he examined other injured, Purna Chandra Mohapatra. This doctor has given the injury report regarding the injured, who subsequently died as follows :-
Page 16 of 26
// 17 // <(1) Right foot is severed from the leg by an incised wound through the thickness of the left at one plain looking raw and red and bleeding profusely at a level of 1 C.M. above the medial eminence of ankle.
(2) Incised wound 5 C.M. X 1.5 C.M. X 1.5 C.M. triangular in shape continuous with the injury No.1.
(3) Incised wound 8 C.M. X 1/2 C.M. X muscle deep raw red and bleeding obliquely situated on the left knee. (4) Incised wound 3 C.M. X 1/2 C.M. X muscle deep. Raw red and bleeding situated traversely on left tibial tuberosity. (5) Incised wound 24 C.M. X 1/2 C.M. X muscle deep. From the middle of the lateral boarder of left leg. Obliquely upwards. (6) Incised wound 15 C.M. X 1 C.M. X muscle deep raw and red on right leg extending from tibia and tubergity upwards. (7) Incised wound raw and red 10 C.M. linear muscle deep situated obliquely on the middle of the back of right arm. (8) Incised wound 8 C.M. X 1/4 C.M. X muscle deep raw and red situated 4 C.M. below injury No.7 extending upwards; (9) Incised wound 9 C.M. X 1/2 C.M. X muscle deep raw and red situated 1 C.M. below injury No.8. extending obliquely upwards.
(10) Incised wound 8 C.M. linear muscle deep raw and red on the middle of the right Blank of the abdomen.
(11) Incised wound 7 C.M. X 1/4 C.M. X muscle deep raw and red. On the mid plain of that extending from sixth survical vertebral eminence to down wards.= This doctor on the query of the Police on 26.12.1997 has stated regarding the seized sword opining the injury present in the body of the injured, Purna Chandra Mohapatra and Narasingh Pratihari is possible by the sword produced. He has also made a categorical statement to have seen both the patients and the detached foot of the injured, Purna Chandra Mohapatra. This doctor has also categorically stated in course of treatment to Purna Chandra Mohapatra, he told him to have been assaulted by two persons, Faku and Belabati of Suar Sahi.Page 17 of 26
// 18 //
22. This Court finds from the statement of P.W.18, doctor, in cross- examination at Paragraph-6 that injury no.1 of Ext.11 cannot be possible in standing position of both injured and the assailants and one of them must be in another portion. In further cross-examination at Pargraph-6 while suggesting severance of feet in ordinary course of nature is sufficient to cause death, but for difficulty in providing proper treatment at his end referred the patient to the O.T. for surgical operation. He has also come to disclose looking to the critical condition of injured their attempt in the Puri Hospital was limited to achieving arrest of the bleeding. The doctor, P.W.18 also appears to have claimed better treatment at the relevant time could have saved the life of the deceased.
23. It is at this stage, examining the evidence of P.W.20, Dr.Syed Mustak Alli, Proprietor of Cuttack Nursing Home, Mangalabag where the injured died while undergoing treatment, came to depose that the injured, Purna Chandra Mohapatra took admission on the advice of Dr.S.K.Jena, a Plastic Surgeon on 20.12.1997 at about 4 A.M. and he was duly treated as per the advice of Dr.Jena in his Nursing Home. Purna died at 12.45 A.M. on 21.12.1997.
24. The other Doctor on whose advice, the injured was admitted in Cuttack Nursing Home, has been examined as P.W.21, Dr.Subrat Kumar Jena, stating to be the Surgical Specialist in Plastic Surgery, claimed to have been called to Cuttack Nursing Home at Mangalabag on the request Page 18 of 26 // 19 // of P.W.20. He conducted plastic surgery on the injured, Purna. In cross- examination, he has stated to have conducted the operation for about ten hours and even after operation, it was found that there was still bleeding continued and the bleeding increased. This doctor while deposing that there was quite a bit of delay by the time he conducted the operation, suggested that the patient had cardiac arrest at the time of operation though revived from the same but ultimately died due to cardiac arrest. Ext.16/2 indicates that Purna died of cardiac arrest.
25. The autopsy doctor, has been examined as P.W.19 being the Assistant Professor of FMT, SCB Medical College, Cuttack, who had conducted the post-mortem examination of Purna Chandra Mohapatra at 11.30 A.M. on 21.10.1997. He on the injuries suffered by the deceased has opined (at Page-158) as follows :-
<(1) External injury - Right foot were separated from the leg, completely. One C.M. above the medical malleolus it has been surgically united point to point and till contains 12 black silk stiches and the stitched wound round the leg is 22 C.M. long. (2) Triangular incised wound contused from the above wound from medical malleolus and the base of the triangle sits on the stitched wound and temporing and extends downwards. It measures 3 C.M. X 1.5 C.M. (3) Obliquely placed stitched wound of 8 C.M. long with silk stitched wound of 8 C.M. long with silk stitched on the left nee. (4) Transversely placed stitched wound on the left tibial tibersity of 33 C.M. long and contains 3 black silk stitches. (5) Stitched wound of 24 C.M. long contains 18 black silk stitches extending below upwards from the middle of lateral boarder of left leg. Towards laternal boarder. (6) Stitched wound of 14 C.M. long contains 5 silk stitches on the right side leg. Extending from severed tube sity upwards.Page 19 of 26
// 20 // (7) Linear incised wound of 20 C.M. long obliquely placed on the posterior aspect of right arm.
(8) Incise wound of 8 C.M. long X 11/4 C.M. breadth 4 C.M. blow injury No.7 and extends upwards.
(9) Incise stitched wound of 9 C.M. long contains 8 lylon stitches. 1 C.M. below no.8 and extends obliquely upwards. (10) Linear incised wound on the middle of right flank. of 8 C.M. long.
(11) Incised wound of size 9 C.M. X 1/4 C.M. on the back in the midline extending from six survival vertibra to downwards. On dissection I found the following injuries:-
(1) All the internal organs looked pale scealpeal tissues looked pale miled cerebral odima present. Separated foot is surgical united from point to point.= In cross-examination the doctor has made a categorical statement that except separation of right foot from the leg, there was no other external injury on the body of the deceased. He also in cross-examination stated that vital parts of the body of the deceased were intact. Thus, it has to be concluded that there was no other injury on the body of the deceased except the foot having been severed from the right leg.
26. It may be pointed out that ordinarily the value of medical evidence only corroborates inasmuch as it proves that injuries could have caused in the manner alleged and nothing more. More so in the case at hand there is no conclusive medical evidence that the injury caused to the deceased resulted in death of the deceased. The doctor at Puri Hospital does not say if he has attended to treat the injured and as per their statement their attempt was only to arrest bleeding. Doctor who operated upon the deceased says all care was taken during operation but bleeding could not Page 20 of 26 // 21 // be checked. Another Doctor says prior treatment could have checked the loss of blood thereby could have saved the life of the injured.
27. This Court here takes into account the decision rendered by the Hon9ble Supreme Court in the case of Solanki Chimanbhali Ukabhai vrs. State of Gujarat, : AIR 1983 SC 484 and Bejoy Singh vrs. State of West Bengal : AIR 1990 SC 814 wherein conviction was set aside as because there was difference between medical evidence and prosecution story. In State of U.P. vrs.Krishna Gopal & anr. : AIR 1988 SC 2154, it is held in a criminal trial, the eye-witness if found trustworthy cannot be demolished by medical evidence pointing out to alternative probability.
28. On the evidentiary value of disclosure of names of accused in 161 statement and corroboration of the same by the Doctor (P.W.18) in his evidence, this Court finds through Sub-Section (1), the statement recorded by Police under Section 161, Cr.P.C. falls within the provision of Sub-Section (1) of Section 32 of the Indian Evidence Act. This Court here takes into consideration the view of the Hon9ble apex Court in the decision in Sri Bhagwan vrs. State of U.P. reported in (2013) 12 SCC
137. Hon9ble apex Court at Paragraphs-23 & 24 of the said decision came to observe as follows :-
"23. Going by Section 32(1) of the Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement falling under Page 21 of 26 // 22 // Section 32(1) of the Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.
24. As far as the implication of Section 162(2) CrPC is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 CrPC statement could be relied upon, as rightly contended by the learned Senior Counsel for the respondent, once the said statement though recorded under Section 161 CrPC assumes the character of dying declaration falling within the four corners of Section 32(1) of the Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 CrPC. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.=
29. From the decisions of the Hon9ble apex Court in Harbeer Singh vrs. Sheeshpal & ors along with State of Rajasthan vrs. Sheeshpal & ors : (2016) 16 SCC 418 and keeping in view the contention of the learned counsel for the Appellants that the witnesses examined here are interested/ Parties either being related or close to the deceased should not be received, this Court finds through Paragraphs-18 to 21, Hon9ble apex Court came to observe as follows :-
"18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony was not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.
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// 23 //
19. In Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said: (AIR p. 331, para 6) <6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. ... But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. ... If the criminal court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised.=
20. However, we do not wish to emphasise that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly interested witnesses. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.
21. Further, in Raghubir Singh v. State of U.P. [Raghubir Singh v. State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it has been held that: (SCC p. 84, para 10) <10. ... the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redundant multiplication of witnesses. ... In this connection general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when spirits on both sides are running high has to be borne in mind.=
30. In Shama v. State of Haryana, (2017) 11 SCC 535 - On the evidentiary value of dying declaration, Hon9ble apex Court, vide Paragraphs-30 & 31 observed as follows :-
Page 23 of 26
// 24 // "30. Dying declaration made by the deceased is admissible in evidence under Section 32(1) of the Evidence Act, 1872. In the absence of any kind of infirmity or/and suspicious circumstances surrounding its execution, once it is proved in evidence in accordance with law, it can be relied on for convicting an accused even in the absence of corroborative evidence but with a rule of prudence that it should be so done with extreme care and caution. (See Panchdeo Singh v. State of Bihar [Panchdeo Singh v. State of Bihar, (2002) 1 SCC 577 : 2002 SCC (Cri) 211] .)
31. One of the principles which is always kept in mind while examining the dying declaration of the deceased is that <a man will not meet his Maker with a lie in his mouth=. As aptly said by Mathew Arnold in a very old English case (see Lyre LCR in R. v. Woodcock [R. v. Woodcock, (1789) 1 Leach 500 : 168 ER 352] ) <Truth sits on the lips of a dying man=. This principle is deduced from a well-known Latin legal maxim <nemo moriturus praesumitur mentire=.
31. Thus, after scanning through the entire evidence, this Court has no hesitation to observe that there is eye-witness to the whole occurrence. There are other two witnesses, who have clearly stated to have seen the assault by accused person. This Court again finds here, the evidence of these witnesses again corroborates with the Doctor (P.W.18), who in clear tone deposed to have been told by the deceased brought in injured stage, assault on him by the Appellants here. The deceased when brought injured, disclosed before the treating Doctor in first hand even though does not fall strictly in the trappings of dying declaration, but for clear corroboration, the Doctor9s (P.W.18) evidence cannot be ignored. This apart, there is clear evidence on existence of prior enmity between both parties, the deceased and the appellants. Further, the 161 Cr.P.C. Page 24 of 26
// 25 // statement (Ext.24) by the deceased during injured state also is very vital for the prosecution case.
32. This Court going back to the evidence of the Doctors, read together with evidence from the seizure of material object and one of the Appellants found to be assaulting with the material object so seized arrives at a finding that the present case is undoubtedly a case where the death had occurred about 28 hours after the occurrence, that too the injured was taken from Hospitals after Hospital and getting operated on the 3rd Hospital, during which period he was definitely surviving. Doctor9s opinion suggesting better treatment could have saved the life, Doctor, (P.W.21) again saying there was death on account of cardiac arrest, particularly none of the Doctors clearly suggesting severing of foot could have caused death, we find strength in the submission of Mr.Panda, learned counsel for the Appellant that the ingredients have not been satisfied to bring the offence under Section 300 of the I.P.C. so as to result conviction under Section 302 of the I.P.C. But keeping in view the weapon used, eye-witnesses clearly stating seeing the accused assaulting the deceased and the injured subsequently dying on account of such injuries, the accused-Appellants are found to be guilty under Section 304 Part 1 of the I.P.C. For this offence we are satisfied sentence of R.I. for seven years would meet the end of justice and we, therefore, award the same.
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// 26 //
33. In the result, the Appeal is allowed to the extent that the conviction under Section 302 of the I.P.C. is altered to one under Section 304 Part 1 of the I.P.C., for which offence, each of the Appellants is sentenced to undergo R.I. for seven years. From the sentence so awarded, the period of imprisonment already undergone shall be set off. Since both the accused persons have not served seven years imprisonment and if not surrender to serve the balance period of sentence, Police is directed to take both of them to custody forthwith and produce both the accused before the learned trial court to send the accused persons for serving rest of the sentence.
27. The Criminal Appeal succeeds in part. No cost.
(Biswanath Rath) Judge M.S.Sahoo, J. I agree.
(M.S.Sahoo) Judge Orissa High Court, Cuttack.
The 17th May, 2023/ M.K.Rout, A.R.-cum-Sr.Secy. Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Designation: Astt.Registrar-cum-Sr.Secretary Reason: Authentication Location: High Court of Orissa Date: 17-May-2023 12:38:11 Page 26 of 26