Judgment:
M. Papanna, J.
1. This appeal by the sole appellant, is directed against an order of conviction in a charge Under Sections 302 and 323. I.P.C., passed by the learned Sessions Judge, Kalahandi (Bhawanipatna) in SC. No. 29 of 1992 for having caused the murder of one Sukru Jani (hereinafter referred to as 'the deceased') and simple hurl to one Laka Dei, wife of the deceased. The learned trial Judge sentenced him to suffer rigorous imprisonment for life and also rigorous imprisonment for six months with a direction to run the sentences concurrently.
2. Tersely put, the prosecution case against the appellant (hereinafter referred to as 'the accused') is as under ;
On 14.2.1992, informant Gangadhar Jani (since dead) was sleeping in his house after taking his dinner. It was about 9 P.M. At that time. Kandu Jani. son of the deceased called him. Gangadhar Jani came out of his house and asked him the reason. Kendu Jani told him that his father died. On query he said accused Prabhudaya Harijan of their village stabbed his father on his chest at about 9 P.M. in the village 'Dunda.' Gangadhar Jani and Ors. of his village went to the spot and found the deceased lying dead with bleeding injury on his left side chest. A village meeting was convened in this regard. Then Gangadhar Jani and others including Balsingh Majhi went to Jay Patna P.S. and reported the incident orally which was reduced into writing by the O.I.C. of the above Police Station. Accordingly, Jaypatna P.S. Case No. 9/92 was registered. During investigation, the I.O. having found prima facie evidence against the accused, submitted the charge sheet against him on completion of investigation.
3. The accused pleaded innocence. Prosecution's allegation in toto has been denied by the defence. False implication of the accused in the case is also the defence plea.
4. Evidence of altogether twelve witnesses is pressed into service by the prosecution to prove the charges. P.W.I is Balsingh Majhi who accompanied the informant to the Police Station for lodging information. P.W.2 is Kunda Jani son of the deceased, to whom his father made dying declaration. P.W.3 has not spoken anything about the case. P.W.4 is the injured Laka Dei, wife of the deceased. P.Ws. 5 and 6 are post occurrence witnesses. P.W.7 is a seizure witness. P.W.8 is the Havildar of Jaypatna Police Station, who accompanied the dead body for post mortem examination. P.W. 9 is the Doctor, who conducted the autopsy on the dead body. P.W. 10 is the Laboratory Assistant of D.F.S.L., Kalahandi. P.W. 11 is the S.I. of Police whereas P.W. 12 is the l.O.
5. The defence, on the other hand, examined no witness in support of the stand taken by it.
6. The learned trial Judge convicted the accused basing on the dying declaration made by the deceased to his son (P.W.2) as corroborated by the Doctor (P.W.9). He has also relied upon the circumstances relating to the seizure of knife on the information given by the appellant.
7. The learned counsel appearing on behalf of the appellant has assailed the judgment, mainly, on the following grounds :
(i) P.W.2 being the son of the deceased, his evidence cannot be relied upon as he is an interested witness for the prosecution:
(ii) That apart, the dying declaration made by the deceased is subject to the strict proof which is lacking in this case;
(iii) Seizure of knife cannot be relied upon, because the same is not credible nor admissible in evidence:
(iv) The learned trial Judge has committed error in relying on the evidence with regard to the presence of blood stain on the knife and the wearing apparels of the appellant, as the same is not admissible nor reliable for convicting the appellant.
8. On the other hand. Shri P.K. Mohanty, learned Addl. Govt. Advocate has supported the impugned judgment and the order of conviction of the learned trial Judge.
9. Admittedly, in this case the prosecution is lacking in direct evidence for which it relied on the circumstantial evidence consisting of medical evidence, dying declaration of the deceased made to his son (P.W.2) immediately after the incident, seizure of weapon of offence (M.O.I) on the information given by the accused etc.
10. So far as medical evidence is concerned, we have gone through the post mortem report (Ext.8) submitted by P.W.9 and found that the deceased had sustained one stab injury 4 em. x I'/acm. over the left praecodium 2 cm inner to left nipple Over the left 4th and 5th postal cartilages and fourth intercostal space, vertical direction, sharp margin. 4th and 5th costal cartilages cut along the stab injury and one injury over right vertical 1 cm. x 1/2 cm. present. The Doctor (P.W.9) who conducted autopsy over the dead body of the deceased has opined that the cause of death was due to injury to vital organ (heart), haemorrhage and shock. The post mortem examination report to the effect that the injury was ami. mortem in nature and the death of the deceased was homicidal have not been challenged by the defence either at trial before the learned trial Judge or before us by the learned counsel for the appellant in course of hearing of this appeal. In fact, the learned trial Judge relying on the oral evidence of the Doctor (P.W.9) corroborated by the post mortem examination report (Ext.8) has rightly held that the deceased died a homicidal death. That being so, we are satisfied that the stab injury sustained by the deceased could not have been possible either by fall due to intoxication as argued on behalf of the appellant or by the accident or by self infliction. As such the finding of the learned trial Judge that the injury as per Ext. 8 is anti mortem in nature and the deceased died a homicidal death is hereby affirmed.
11. The most crucial question raised by the learned counsel for the appellant is that the dying declaration is a very weak piece of evidence. According to him it cannot be relied upon, inasmuch as the same is deposed to by the son of the deceased. That apart, he has urged that in view of nature of the injury sustained by the deceased, he must have lost his consciousness before making any such declaration and died instantaneously. In this regard, the learned counsel for the State has drawn our attention to the evidence of the Doctor (P.W.9) as has been reflected during cross-examination in para-4 of his deposition. A perusal of the relevant portion of his evidence makes it crystal clear that in case of wound of this nature the injured can walk and talk. In view of the medical opinion, as stated above, we are bound to give due weight to it and hold that the evidence of the Doctor is conclusively proved to the above effect. In such a view of the matter, we cannot see an eye to eye with the learned counsel for the appellant in respect of his contention as aforesaid.
12. Let us now examine evidentiary value of dying declaration with reference to settled position of law. Relevant provision of Section 32 of the Indian Evidence Act, 1872 may be quoted as below :
'Statements, written or verbal, or relevant facts, made In a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable. are themselves relevant facts in the following cases :
When it relates to cause of death - (1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted m his death. in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of the death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.'
13. Dying declaration cannot always be treated as a weak piece of evidence. It can be relied upon for conviction in a charge of murder without even corroboration depending upon of course the facts and circumstances in each case. In a case reported in 12 (1995) 8 O.C.R. 299 (Nirua v. State) it is held as follows :
'Law on the question of dying declaration is well settled that a dying declaration can form the sole basis for conviction without any corroboration if the same is true and correct version of a dying man and is not stated to have been made under any doubtful circumstance. It is like any other prosecution evidence and subject to scrutiny. Corroboration is not sought for because it is a weak piece of evidence, but corroboration is sought for because it suffers from certain infirmity.'
14. The offence with which the appellant is charged being murder which visits him with minimum sentence of imprisonment for life, it is necessary to scan to evidence on record in an attempt to see if the same is unimpeachable and satisfies our judicial conscience to hold ultimately and irresistibly that he is the real assailant of the deceased. Before we proceed to take up the dying declaration made by the deceased to his son (P.W.2) and test it in the light of settled principle of law, it is necessary to see the question of reliability of evidence of P.W.2 being the son of the deceased as has been contended by the learned counsel for the appellant. In this regard, it can be said that his evidence cannot be lost sight of and thrown out of consideration in view of ruling of the Apex Court that interested witnesses are not necessarily false witnesses though they have personal interest in the matter. In such cases the Court must see that the evidence of such witnesses must be subject to close scrutiny. At the same time the Court must assess the testimony of such witnesses and indicate the reasons for acceptance or rejecting it. This view gets support from the decision reported in A.l.R. 1992 Supreme Court 891 (Chandramohan Tiwari and Anr. v. State of Madhya Pradesh). Therefore, keeping in mind the dictum that no evidence should at once be rejected simply because it comes from the interested .witness, we have scanned the evidence of P.W.2 and are satisfied that though he is the son of the deceased his evidence cannot be disregarded particularly when he has never been inimically disposed of towards the appellant who is no other than his co-villager and there is also no reason why he would implicate a co-villager falsely for the murder of his father. In this regard in a Division Bench decision of this Court in the case of Damodar v. State reported in (1998) 14 OCR 571 the view taken is that there is no law which requires that the evidence of the relative witnesses has to be viewed with suspicion. Where interestedness is pleaded it has to be established. The Court has to make an effort to find out whether there is an attempt to rope in an innocent person. Normally a relative would not rope in an innocent person and shield the actual culprit.
15. In the instant case at the material time the deceased and his wife (P.W.4) were quarrelling with each other in front of the house of accused. At that time the accused separated them. But while he was separating them the deceased told him as to why he separated for which he assaulted wife of the deceased by means of a bamboo lathi. As a result, she sustained a simple hurt. Evidence of P.W.4 corroborated by medical evidence as deposed to by P.W.9 supported the prosecution case as aforesaid- During the same night subsequent to the assault on P.W.-4 by the accused, the deceased challenged him for having assaulted his wife by going near his house. Therefore, while he was going back to his house the accused followed him and stabbed him on his left side chest near the house of one Ghirungu Jani. F.I.R. (Ext.1/1) lodged by one Gangadhar Jani (since dead) has been established. Balsingh Majhi (P.W.. 1) who went to the P.S. with Gangadhar for lodging the information proved his signature marked as Ext. 1 on the F.I.R. (Ext. 1/1). The I.O. (P.W. 12) who reduced the aforesaid oral report into writing proved his endorsement with signature (Ext. 1/2) to the said effect. The F.I.R. (Ext. 1/1) was lodged at 7 A.M. on the next day morning as the incident took place in the preceding night. Therefore, the F.I.R. having been lodged well in time and the fact that accused stabbed the deceased having been mentioned in the said F.I.R. it cannot be disbelieved.
16. The next point to be examined is whether the oral dying declaration made by the deceased to his son (P.W.2) can base a conviction of the accused-appellant. In (1997) 13 OCR 385 (Babaji Charan Sahoo and Pravashini alias Pravati Swain v. State of Orissa). this Court has ruled that where oral dying declaration suffers from no infirmity and suffers from no embelishment or distortion it is sufficient to sustain the conviction without insisting on corroboration. In the present case the evidence of P.W.2 to whom dying declaration was made by the deceased having been not rendered discredited during the searching cross-examination to which he was subjected to, we are of the firm view that his evidence with regard to dying declaration suffers from no infirmity and the same being truthful without there being any element of embelishment and distortion, is sufficient to sustain conviction without insisting for corroboration For reaching this conclusion we are fortified by the decisions of the Apex Court reported in A.I.R. 1972 S.C. 1176 (Lalubhai Devchand Saha v. State of Madhya Pradesh). That apart, reliance can be placed on the decision reported in 1996 (2) S.C. 194 (State of Orissa v. Banshidhar Singh). In the light of the well settled principle of law and also because of the fact of the deceased having made the dying declaration before his son (P.W.2) having found mentioned in the F.I.R. (Ext. 1/1) which has been lodged well in time, we are bound to rely and act upon the said dying declaration. Moreover, P.W.2 who had heard the declaration of the deceased has no reason to falsely implicate the accused. Though a suggestion was given to P.W.2 that he has land dispute with the accused but the same having been disproved, we are certain that he has never resorted to falsehood.
17. The learned counsel for the appellant has left no stone unturned in attacking the prosecution case on the ground that P.W.2 has not stated before the I.O. (P.W. 12) that his father told him that the accused stabbed him by means of a knife. In this regard having gone through the evidence of the I.O. (P.W. 12), we are quite satisfied that P.W.2 has stated in his previous statement Under Section 161, Cr.P.C. that his deceased father told him that the accused stabbed him though he has not used the words 'by means of knife'. The evidence of the I.O. (P.W. 12) shows that while the accused was in police custody he led him to the place of concealment of the weapon of offence, knife (M.O.I.) and the bamboo lathi (M.O.IV) which he seized under a seizure list (Ext.3). It is further revealed from the evidence of the I.O. that he made a querry (Ext.9/2) to the Doctor B.K. Sahoo with reference to M.O.I. for his opinion marked Ext. 9 which clearly goes to show that the stabbed wound found on the left side chest of the deceased is quite possible by M.O.I. That being so there is no escape from the conclusion that M.O.I. as per Ext.9 with regard to the injury caused on the person of the deceased confirmed by the Doctor (P.W.9) has been used in causing death of the deceased. So even if P.W.2 has not stated the words 'by means of knife', in his previous statement, we are not inclined to disbelieve his version because there is no justifiable reasons to disbelieve his assertion regarding the declaration of his deceased father.
18. It is further argued that seizure of knife (M.O.I.) cannot be acted upon basing on the evidence of the I.O. alone. According to him recovery statement of the accused has not been attested by independent seizure witnesses. So evidence of the Police Officer is not to be relied upon. Reliance can be placed on the decision of the Supreme Court reported in Supreme Today Part-7 at page 728 (State Government of N.C.T. of Delhi v. Sunit and Anr.). In the reported case it has been held that non-attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles seized consequent upon statement of the accused. It is held further that there is no requirement either Under Section 27 of the Evidence Act or Under Section 161, Cr PC. to obtain signature of independent witnesses. When recovery is effected pursuant to statement of accused, document prepared by the I.O. need not necessarily be attested by independent witnesses. In such a case Court has to believe version of the Police to be correct if it is not otherwise shown to be unreliable.
19. In the case at hand, the I.O. (P.W. 12) has stated to have recovered M.O.I, on the strength of the statement made by the accused Ext. 3. It is true that the accused appeared before the Police Station and his statement has been entered in the Station Diary as per the evidence of P.W. 11. In the case of the Apex Court referred to above their Lordships also observed as follows :
'It is fallacious impression that when recovery is effected pursuant to any statement made by the accused, the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses.'
In the present case evidence of the Police Officer (P.W. 12) regarding recovery of M.O.I, on the information of the accused cannot be discarded in view of the ruling of the Supreme Court quoted below :
'When a Police Officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is not a legally approvable procedure to presume the police action as unreliable to start with nor to jettison such action merely for the reason that police did not collect signature of independent persons in the documents made contemporaneous with such action.'
20. In the instant case,it is true that the seized knife (M.O.I.) contained no blood as per the report submitted by the serologist and though there was blood stains on the banion and lungi of the deceased no opinion was given by the chemical examiner as it was not sufficient. However, evidence is lacking as to what is the blood group of the appellant, but it is fundamental that in the serious cases like the present one, it is the duty of. the I.O. to get the blood group of the accused examined so that it can be ascertained whether the blood found on the seized materials was of the deceased or of the accused. In the present case the I.O (PAV.12) failed to look to this aspect of the case and take steps to get the blood group of the appellant examined. However, it is proved that the wearing apparels such as Lungi of the appellant contained human blood and there being no explanation as to how the blood could be found on his apparel, the same, in our opinion, is one of the circumstances pointing towards his guilt.
21. As we have already pointed out earlier that this case entirely hinges on circumstantial evidence. From our discussion made above, we are satisfied that the prosecution has been able to establish all the circumstances such as the quarrel between the deceased and his wife (P.W.4) haying taken place in front of the house of the accused who. while separating them, assaulted P.W.4 and that on being questioned subsequently by the deceased for causing simple hurt to his wife the accused stabbed him by means of a knife and that the deceased made declaration to his son that he was stabbed by the accused who appeared before the Police Station voluntarily thereafter and that at his instance the weapons of offence (M.O.I.) and (M.O. IV) were recovered all having chain of links pointing to the guilt of the accused. Therefore, it seems to us that the inference of guilt of the appellant as is drawn from the circumstantial evidence, which is of clinching nature., indicating that in all human probabilities accused Prabhu Daya Harijan killed the deceased for which he is liable to be convicted for the felony. The totality of the circumstances has unerringly led us to the conclusion that in all human probabilities the accused and non-else had committed the crime in question.
22. On the whole, on our re-appreciation of the evidence as above, we are of the considered view that the appellant having lost his balance of mind in the facts and circumstances of the case as discussed above, gave a blow to the deceased by means of a knife without intending to cause his death but with a knowledge that the bodily injury inflicted by him by means of a knife on the person of the deceased was likely to cause his death. Such offence committed by the appellant no doubt, is one of the culpable homicide not amounting to murder for which the conviction Under Section 302, I.P.C. being unsustainable is hereby set aside. Instead, in our opinion, it is a fit case for conviction Under Section 304. Part-1, I.P.C. At the same time we hold that the order of conviction of the appellant Under Section 323, I.P.C. having been well founded, we are not inclined to interfere with the same.
23. Therefore, for the reasons recorded above, we allow the appeal in part by converting the conviction from Section 302, I.P.C. to Section 304 , Part-I, I.P.C. and sentence him to undergo R.I. for ten years concurrently with R.I. for six months Under Section 323, I.P.C. The convict shall get the benefit of set off, out of the period of imprisonment already undergone.
B.P. Das, J.
24. I. agree.