Judgment:
HIGH COURT OF ORISSA: CUTTACK JAIL CRIMINAL APPEAL No.1 of 2004 From the judgment and order dated 18.11.2003 passed by Sri J.N.Panda, Additional Sessions Judge, Bhanjanagar in S.C. Case No.22 of 2000/S.C. No.272 of 2000-G.D.C. ---------Rabi Kumar Sahu ………… Appellant -versusState of Orissa For Appellant ………… Respondent : Mr. Gopal Krishna Nayak, Mr.B.N.Bhol and Miss.S. Patra For Respondent : Mr. Sk. Zafarullha Addl. Standing Counsel P R E S E N T: THE HON’BLE MR. JUSTICE PRADIP MOHANTY AND THE HON’BLE MR. JUSTICE B.K.MISRA --------------------------------------------------------------------------------Date of Judgment:
11. 09.2012 --------------------------------------------------------------------------------B.K. Misra, J.The appellant being aggrieved with the order of conviction and sentence imposed on him by the Additional Sessions Judge, Bhanjanagar under Section 302 of the Indian Penal Code (for short the ‘I.P.C.’) in S.C. Case No.22-272 of the year 2000 has preferred this appeal”
2. The appellant faced his trial for having committed murder of one Patra Naik on the morning of 20.2.1999. As per the case of the prosecution, the deceased Patra Naik, who happens to be son of the informant Kartika Naik (P.W.3), trading on cattle, had proceeded to village Biluamara on 20.2.1999 morning. It is alleged that on the same day around 11.00 A.M. one Sankar Naik of Biluamara and two girls who had gone to Biluamara School, came and reported P.W.3 in his house that the appellant along with another had picked up quarrel with the deceased and dealt blows with an wooden “Meddha”. (wooden lathi) to the head of the deceased for which the deceased fell down becoming unconscious having bleeding from his mouth and nose. On getting the aforesaid news, P.W.3 along with some covillagers proceeded to village Biluamara and found some persons nourishing the deceased on the verandah of one Sudarsan Sahu. The deceased was removed to the house of P.W.3, but when he could not regain his sense was shifted to Tarasingi hospital. Information was lodged by P.W.3 in writing before the O.I.C. Tarasingi Police Station on 21.2.1999 (Ext.1). Police on receipt of the said information 3 registered Tarasingi P.S. Case No.9 of 1999 and investigation was taken up. Since the deceased succumbed to the injuries the case turned to be a case of murder, which was initially registered under Section 307 of the I.P.C. read with Section 34 of the I.P.C. After completion of investigation getting prima facie case against the present appellant charge sheet was placed against him to stand his trial.
3. The plea of the appellant was that of a complete denial of the alleged occurrence and it was his further plea that he has been falsely implicated in this case.
4. The prosecution in order to establish its case against the appellant had examined 17 witnesses in all and of them, P.W.3 is the informant. P.Ws.2, 6 and 11 were the three eye witnesses to the occurrence. P.W.12 the wife of the deceased is admittedly a post occurrence witness. P.W.13 is the doctor who held post mortem over the dead body of the deceased on 22.2.1999. P.W.16 was the Medical Officer of Addl. P.H.C. of Tarasingi, who had examined the deceased on 21.2.1999 initially and referred the patient to Sub-divisional hospital, Bhanjanagar as he had head 4 injury. P.Ws.14, 15 and 17 were the three I.Os. P.W.1 was an independent witness for the prosecution. P.Ws.4, 5 and 8 to 10 were the four seizure witnesses. P.W.7 is another witness for the prosecution to the occurrence. The appellant declined to examine any witness in his defence.
5. Learned Additional Sessions Judge, Bhanjanagar formulated two points for determination, namely:i) If the accused has committed the murder of the deceased by giving a fatal blow to his head by means of Kerua Medha at 11 A.M. on 20.2.1999 as a result he died on 21.2.1999 ?. ii) If the accused has humiliated the deceased, a member of scheduled caste ?.
6. On examining the evidence on record the learned Additional Sessions Judge found ample materials against the appellant under Section 302 of the I.P.C. and accordingly recorded the order of conviction and passed the impugned sentence directing the appellant to undergo imprisonment for life. Since no material was available to sustain the charge under Section 3(1) (ii) of the Scheduled 5 Castes and Scheduled Tribes (Prevention of Atrocities) Act he was acquitted of the said charge.
7. Learned counsel appearing for the appellant while assailing the order of conviction and sentence argued with vehemence that the evidence on record are very shaky in nature and do not at all inspire any confidence so as to warrant a conviction against the appellant. Besides it was urged that when the evidence of so-called eye witnesses, namely, P.Ws.2, 6 and 11 suffers from many contradictions and especially when P.W.6 is a child witness the learned Additional Sessions Judge committed gross illegality in accepting such evidence and found the appellant guilty. Accordingly, it was urged by the learned counsel for the appellant that the appeal be allowed and appellant be set at liberty and be acquitted of the offence under Section 302 of the I.P.C.
8. Learned Additional Standing Counsel appearing for the State on the other hand supported the order of conviction and sentence by stating that the Court did not commit any illegality at all in accepting the evidence of P.Ws.2, 6 and 11 who have vividly described the incident 6 which they had seen and there is no material on record to disbelieve the evidence of P.Ws.2, 6 and 11 which also gets overwhelming corroboration from the evidence of the two doctors, namely, P.Ws.13 and 16 who found serious head injuries on the person of the deceased for which the deceased succumbed to the injuries.
9. Upon hearing the learned counsel for the respective parties, we have very critically and carefully went through the entire case record including the evidence which was tendered by the prosecution. In the instant case, the death of deceased Patra Naik is an admitted fact. It is also equally not disputed that the deceased had sustained ante mortem injuries on the vital part of his body. P.W.13, the doctor who conducted post mortem over the dead body of the deceased categorically opined that the external injuries which he found cannot be caused by fall over a stone. Similarly, P.W.16 who was the Medical Officer, Addl. P.H.C., Tarsingi on 21.2.1999 on examining the injured Patra Naik found one contusion over the right temporal region measuring ½”.x1”. and another contusion over the neck below right ear lobule. According to P.W.16 the 7 injuries could have been caused by hard weapon. P.W.16 further deposed that he after treatment referred the injured to Sub-divisional Hospital, Bhanjanagar as he had head injury. P.W.16 has proved his injury report as Exhibit-9/2. P.W.13 deposed that on 22.2.1999 he conducted post mortem over the dead body of Patra Naik and found fracture and swelling of right temporal bone and parietal bone measuring 8”.x 4”.x 2”.. The deceased had also one swelling on the left side of temporal bone and forehead of the size 6”.x 4”.x2”.. P.W.13 further deposed that he found one contusion present on the right temporal and parietal bone of the size 8”.x 4”.x2”.. There was contusion of Dura and Pia matter and blood clottings were found. According to P.W.13 the deceased died due to haemorrhage in the brain substance and shock and that too within 24 to 48 hours of his conducting the post mortem examination. It is also the evidence of P.W.13 that on 8.6.1999 the O.I.C., Tarasingi Police Station sent the weapon of offence, namely, the ‘stick’ for his opinion and after examining the said weapon of offence he opined that the death of the deceased could have been caused by the said weapon. P.W.13 has 8 proved the post mortem report prepared by him as Exhibit6 and the further opinion on the query of the O.I.C. Tarasingi Police Station as Exhibit-7. Thus, the medical evidence clearly establishes that the death of the deceased was a homicidal one.
10. P.W.3 the informant who is the father of the deceased is admittedly a post occurrence witness. It is the evidence of P.W.3 that on the date of occurrence around 11 A.M. one Sankar Naik of Biluamara village came and informed him about the moribund condition of his son who had been assaulted by the appellant. P.W.3 also deposed that he proceeded to village Biluamara and found his son in a coma stage and he with the help of others removed him to the house and on the next day morning he removed his son to Tarasingi Hospital, who had bleeding injury on the back side of his head. It is also his evidence that on the advice of the doctor of Tarasingi while the injured was brought to Bhanjanagar Hospital, he died on the way. P.W.3 deposed that he lodged an F.I.R. Ext.1 which was scribed by one Panda at Tarsingi and he has also proved the inquest report as Ext.2. P.W.1 deposed that he does No.9 knot anything about the case. Similarly, P.W.8 also did not support the case of the prosecution. P.W.2 who is an eye witness to the occurrence very specifically deposed that on the date of occurrence during morning hours on hearing hullah when he proceeded to the spot found accused Rabi dealing three blows by means of a “Erua Medha”. on the head and shoulder of Patra Naik for which Patra Naik fell down near the well and on seeing that he informed the wife of Patra Naik. P.W.2 also deposed that the wife of the deceased and other villagers came and rescued Patra Naik and Patra Naik was removed to the hospital on the next day where he succumbed to the injuries. Though P.W.2 has been cross-examined at length but his evidence that accused Rabi dealt blows with the ‘Thenga’ to the head of Patra Naik could not be demolished and there is nothing on record to disbelieve the evidence of P.W.2. P.W.6 who was a child witness deposed that she had been to Biluamara school and while she was going along with one Adara Naik found Patra Naik proceeding to assault the accused, but the accused took away the ‘Badi’ (Lathi) from the hand of Patra Naik and assaulted him for which Patra Naik fell 10 down on the ground and on seeing that he proceeded to inform the wife of Patra Naik. P.W.6 deposed that at the time of occurrence she was about five years old and she knew accused Rabi. Even if P.W.6 was a child witness when she was examined in Court, but hardly there is anything on record to disbelieve her evidence. Therefore, merely because she is a child witness it would not be proper to discard her evidence which is a trite law especially when there is nothing on record to show that P.W.6 was tutored. A careful evaluation of the evidence of P.W.6 in the back ground and context of other evidence on record i.e. of P.Ws.2 and 11 shows that P.W.6 is a truthful witness and her evidence was rightly accepted by the court below. P.W.11 another eye witness to the occurrence has specifically deposed that about four years back around 11 A.M. he found accused Rabi assaulting Patra Naik by means of ‘Thenga’ for which Patra Naik fell down becoming senseless and blood was coming out from his nose and Patra died an instantaneous death at the spot. P.W.11 also categorically deposed that after assaulting Patra Naik, accused Rabi ran away from the spot. Though P.W.11 has 11 been cross-examined at length, but his evidence about the assault on the deceased by the accused with a lathi for which the deceased fell down becoming unconscious could not be demolished. P.W.12 deposed that around 9 A.M. on the date of occurrence she learnt from Jhunu her niece that accused Rabi Gudia had assaulted her husband to death and on hearing that she ran to the spot and found the mother and sister of accused Rabi giving water to her husband who was completely unconscious. P.W.12 thinking her husband alive removed him to Tarasingi P.H.C. but the doctor declared him dead. P.W.14 one of the I.O. deposed that he apprehended the accused on 22.2.1999 and recorded his disclosure statement which he has proved as Ext.12. P.W.14 also deposed that pursuant to the disclosure statement, the accused led him and produced the weapon of offence i.e. “Kerua Medha”. from the Banana plantations of his ‘Bari’. The seizure list in respect of the weapon of offence has been proved by P.W.14 as Ext.5. Even if the independent witness, namely P.Ws.8 and 9 have not supported such recovery of weapon of offence at the instance of the accused but there is hardly 12 any reason to disbelieve the evidence of P.W.14, the I.O. about the seizure of weapon of offence pursuant to the disclosure statement of accused Rabi especially when the I.O. a senior Police Officer had no axe to grind against the appellant. While assessing the evidence on record it is to be remembered that in the present day scenario hardly any independent witness comes forward to depose about an occurrence even if he or she had witnessed that. The Court is always concerned with the quality of evidence and when evidence of the witnesses appear to be believable, cogent and consistent with the case of the prosecution the same is to be relied upon and minot contradictions cannot be a ground to throw the entire evidence on record. In the instant case, it was argued that P.Ws.2 and 11 during their examination in the Special Court at Berhampur had not stated about the incident and therefore the evidence of P.Ws.2 and 11 should not be relied upon. P.W.11 had given an explanation that when he deposed in the court of the Special Court, Berhampur he was terrorized. I am to mention here that after examination of nine witnesses in the instant case it could come to notice of the Sessions 13 Court on 14.7.2000 that the said Court had no jurisdiction to take cognizance of an offence under the S.C. and S.T. (Prevention of Atrocities) Act and therefore the Court recalled its earlier order taking cognizance of the offence and also observed that the action taken by the Court after taking cognizance including framing of charge and recording evidence were without jurisdiction. The record was accordingly sent back to the S.D.J.M., Bhanjanagar to follow the procedure in view of the decision of the Apex Court reported in (2000) 18 OCR (SC) 364, Gangula Ashok and another –v- State of Andhra Pradesh and instructions of this Court vide Order No.10 dated 24.3.2000 in C.M.C. No.1211 of 1999. There was a denove trial after the case was committed to the court of the Additional Sessions Judge, Bhanjanagar by the S.D.J.M., Bhanjanagar where evidence was recorded afresh. Accordingly, the contentions raised by the learned counsel appearing for the appellant for disbelieving the evidence of P.Ws.2 & 11 cannot be accepted. P.W.7 deposed that about three years and eight months back around 11 A.M. accused Rabi had quarreled with Patra Naik and during that 14 accused Rabi challenged Patra Naik to face him and on hearing that when they arrived at the spot found Patra Naik lying with bleeding injuries. This evidence of P.W.7 also throws some light on the occurrence and involvement of the appellant in the alleged assault on Patra Naik.
11. Learned Additional Sessions Judge has discussed the evidence in detail in the judgment and we are in complete agreement with the findings recorded by the learned Additional Sessions Judge, Bhanjanagar and we do not find any compelling reason or materials on record to take a different view.
12. Accordingly, in view of the evidence of P.Ws.2, 6 and 11 the direct eye witness to the occurrence who have categorically stated that it was accused Rabi, namely the present appellant had assaulted the deceased Patra Naik with a lathi for which the deceased sustained severe head injury and ultimately succumbed to that, the sentence which has been awarded to the appellant appears to be quite just and proper and therefore also calls for no interference”
13. In the result, the appeal being devoid of merit stands dismissed. The sentence passed on the appellant is hereby confirmed. ………………………. (B.K. MISRA, J.) Pradip Mohanty,J.I agree. ……………………..……….. (PRADIP MOHANTY, J.) Orissa High Court, Cuttack The 11th September, 2012/RNS