1. Appellant Garbapu Venkatiramana and two others (Garbapu Prasad and Garbapu Ramulu) were facing trial in the court of learned Additional Sessions Judge, Rayagada in Sessions Case No.51 of 1997 (Original S.C. No. 158 of 1997 of the Sessions Judge, Koraput, Jeypore) being charged under Sections 302/324/34, IPC. By the judgment and order dated 11.06.1998, the learned trial Judge while acquitting Garbapu Prasad and Garbapu Ramulu of the charge, convicted the appellant under Sections 302/324, IPC and sentenced him to undergo imprisonment for life for the offence under Section 302, IPC, but did not impose any separate sentence for the offence under section 324, IPC.
2. Case of the prosecution is that on 10.3.1997 at about 8.00 P.M. Garabapu Elemma, the daughter of Garabapu Ramulu (co-accused since acquitted) was shaking the supporting wire of the electric pole situated in the locality. In course of shaking, there was sparking in the live wire of the electric line. P.W.2, the informant (wife of P.W.1) told her not to do that as there were chances of causing damage to the houses of the locality. But she continued to repeat the same. At that time, P.W.1 came and protested, but she did not listen and started rebuking P.W.1. When P.W.1 confronted Elemma as to why she was rebuking, the three accused persons appeared and started abusing P.Ws.1 & 2 instead of cautioning Elamma. Then the present appellant went to his house, came with a knife and dealt a knife blow to the left arm of P.W.1. As a result, P.W.1 sustained bleeding injury on his arm. At that juncture, Dharmani Krishna (deceased), younger brother of P.W.1, arrived at the spot. When he challenged the appellant, the appellant on being instigated by the co-accused persons (since acquitted) stabbed to the left side chest of the deceased. As a result of such stabbing, the deceased died at the spot sustaining bleeding injury. The informant with the help of her husband's younger brothers shifted P.W.1 to the hospital and lodged FIR in the Rayagada Police Station, consequent upon which, police registered the case, investigated into the matter and submitted charge sheet under sections 302/324/34, IPC against the three accused persons including the present appellant.
3. The accused persons took the plea of complete denial. Their specific plea was that co-accused Garbapu Ramulu (since acquitted) was admitted in the hospital as he had sustained injury on his left thigh on being assaulted by P.W.1 and others. For that, a counter case was instituted against P.W.1 and others. Their further plea was that one Adinarayan, the brother of P.W.1 used the knife against co-accused Garbapu Ramulu. As the deceased was standing very close behind his brother (P.W.1), while dealing knife blows against co-accused Garbapu Ramulu, the injury was caused by Adinarayan on the left arm of P.W.1. The knife slipped from the left arm and entered into the left side chest of the deceased who sustained injury on the chest and died instantaneously.
4. In order to prove its case, prosecution examined as many as fifteen witnesses and exhibited seventeen documents. Defence examined two witnesses.
5. The trial court after conclusion of the trial acquitted the co- accused persons (Garbapu Prasad and Garbapu Ramulu) of the charge, but convicted and sentenced the appellant as stated hereinbefore.
6. Mr. Acharya, learned counsel for the appellant assails the judgment on the following grounds:
(i) Conviction having been based relying on the tainted testimony of interested and partisan witnesses who have tried to develop the case in Court, cannot be sustained.
(ii) No explanation was given by the prosecution with regard to the injury on the person of the co-accused Garbapu Ramulu and thereby prosecution has suppressed the true state of affairs.
(iii) The investigation was biased, perfunctory and suffers from serious infirmity, as the I.O. suppressing the defence story has recorded the statements of the witnesses.
iv) Leading to discovery has not been proved by the prosecution.
7. Mr. Pattnaik, learned Additional Government Advocate, on the other hand, supports the impugned judgment and vehemently contends that the evidence of the eye witnesses is very clear, cogent and convincing. There is no contradiction with regard to assault on the deceased. The injury sustained by co-accused Garbapu Ramulu is superficial and the counter case has been falsely initiated against the informant group. The evidence of P.W.2, the informant, and other eye witnesses corroborates the F.I.R. The evidence of P.Ws.1, 4, 5, 10, 11 and 13 with regard to seizure of M.O.I is supported by the version of P.W.2. Perfunctory investigation is not a ground to disbelieve the evidence of the eye witnesses. Leading to discovery has been proved by independent witness P.W.4.
8. Learned counsel appearing for both the parties rely upon the decisions in Tahasildar Singh & anr. v. State of U.P., AIR 1959 SC 1012, Nageshwar Sh. Krishna Ghobe v. State of Maharastra, AIR1973 SC 165, Bhagaban Panda & 6 ors. v. State of Orissa, 2001 (1) OLR 352, Tusar Kanti Swain v. State of Orissa, (1994) 7 OCR 243, Narasingha Gopal v. State of Orissa, 1998 (II) OLR 114, Khetramohan Das v. State of Orissa, (1997) 13 OCR 408, Mohan Rai & anr. v. State of Bihar, AIR 1968 SC 1281, Lakshmi Singh & ors. v. State of Bihar, AIR 1976 SC 2263, Premananda Sahoo & Ors. v. State of Orissa, (2008) 41 OCR 558 and Baladin & Ors. v. State of Uttar Pradesh, AIR 1956 SC 181.
9. Perused the LCR and the decisions cited by the parties. P.W.1 is an injured and a witness to the occurrence. P.W.2 is the informant and wife of P.W.1 as well as sister-in-law of the deceased. She specifically stated that Elemma, daughter of co-accused Garbapu Ramulu, was shaking the supporting wire of the electric pole situated in her locality. In course of shaking, there was sparking in the live wire of the electric line. She advised Elamma not to do that, as there were chances of sparking and damages to the houses of the locality. But she continued the same act. At that time, her husband P.W.1 came and protested, but Elamma did not listen. Rather she started rebuking P.W.1 to which he protested. At that time, all the three accused persons appeared at the spot. They did not say anything to Elamma but started abusing them. The appellant went to his house, came with a knife in his hand to the spot and dealt knife blow to the left arm of P.W.1 and thereby P.W.1 sustained bleeding injury on his arm. At that juncture, the deceased, brother of P.W.1, arrived there and when he tried to shift P.W.1 to the hospital, co-accused Ramulu and Prasad came to the spot and instigated the appellant to stab the deceased. The appellant stabbed on the left side chest of the deceased causing profuse bleeding. Then the deceased came up to the electric pole and fell down there. When she tried to give some water to the deceased, he could not take and died at the spot. P.W.1 was shifted to the hospital and admitted there. He lost his sense while he was taken to hospital. Thereafter, P.W.2 went to the police station and orally reported the mater. She identified M.O.I as the weapon of offence. In cross-examination, she admitted that a case was instituted against her husband P.W.1 and his two brothers by the accused persons. She also admitted that she narrated the incident to the police in Telgu language. She further admitted about the admission of Ramulu in the hospital. Nothing has been elicited from her cross-examination to disbelieve her testimony. P.W.1 is the injured and the husband of P.W.2. He corroborated the statement of P.W.2. P.W.1 in cross-examination stated that he regained his sense three days after the occurrence and he had lost his sense after seeing the death of the deceased. P.W.3 is a witness to the seizure of the shirt of P.W.1, the injured. P.W.4 is a witness to the inquest as well as seizure of blood stained cemented plaster. He is also a witness to the leading to discovery of M.O.I. He proved Exts.3, 4, 5 and 6. He also specifically stated that the appellant voluntarily gave the disclosure statement in his presence before the I.O. and led them to the place where he had concealed the weapon. In cross-examination, he admitted that he signed on all the papers in the night of occurrence. P.W.5 is an independent witness. He corroborated the statement of P.W.2 with regard to assault to the injured (P.W.1) and the deceased. Nothing has been elicited from his cross-examination to discredit his evidence. P.W.6 is another independent witness. He also corroborated the evidence of P.Ws.2 and 5. P.W.10 is also an independent witness who corroborated the evidence of P.Ws.2 and 5. In the examination-in-chief, he specifically stated that when deceased challenged the accused persons why they caused injury to his brother (P.W.1), co-accused Ramulu and Prasad instigated the appellant to deal knife blow to the deceased. Then appellant dealt knife blow to the chest of the deceased. Nothing has been elicited by way of cross-examination from his mouth to belie his testimony. P.W.11 is also an independent eye witness. He corroborated the version of PW.2 with regard to assault on P.W.1. P.W.13 is another eye witness. She corroborated the evidence of P.W.2 and specifically deposed that when Krishna (deceased) arrived at the spot and objected, co-accused Ramulu and Prasad directed the appellant to stab the deceased. Then the appellant dealt knife blow to the left side chest of the deceased, as a result of which he sustained profuse bleeding on his chest. Nothing has been elicited from her cross-examination to disbelieve her testimony. P.W.7 is the doctor, who conducted autopsy over the dead body of the deceased. He opined that the injury was caused to the vital organs like heart and lungs which had given rise to a lot of bleeding leading to shock and death. The injury was ante mortem in nature and sufficient in ordinary course of nature to cause death. He also opined that M.O.I can cause such injury. P.W.8 is the doctor, who examined P.W.1. He opined that the injury sustained by P.W.1 was caused by M.O.I. P.W.9 is a police constable and a witness to the inquest. P.W.14 is the I.O. who investigated into the matter and submitted charge sheet against the appellant and two other co-accused persons under Sections 302/324/34 IPC. But in cross-examination he admitted that on 11.03.1997 at about 2.30 PM the M.O.I was recovered and seizure list was prepared. He also admitted that he recorded the statement of P.W.1 on the next day of the occurrence, i.e., on 11.03.1997. He also admitted that he had issued medical requisition to co-accused Garbapu Ramulu on 11.03.1997. The requisition and the medical certificate were not available on record.
10. From the above analysis of the evidence, there is no dispute that P.Ws.2, 5, 6, 10, 11 and 13 are witness to the occurrence and there is nothing on record to disbelieve their evidence. P.W.1, the injured witness, specifically stated in his evidence that he lost his sense immediately after seeing the assault on his deceased brother and regained his sense after two days and police recorded his statement three days after the occurrence. But the I.O., P.W.14 specifically stated that he recorded the statement of P.W.1 on 11.03.1997, i.e. the next day of the occurrence. In this view of the matter, this Court is not inclined to accept the version of P.W.1. However, the evidence of P.Ws.2, 5, 6, 10, 11 and 13 which gained sufficient corroboration from the medical evidence is found to be reliable. Therefore, taking into account the oral evidence of these witnesses and the medical evidence, it can be safely deduced that it is the appellant who assaulted the deceased and P.W.1.
11. Let us now examine whether leading to discovery has been proved by the prosecution or not. The apex Court has ruled that for application of Section 27 of the Evidence Act, the following requirements are necessary to be fulfilled by the prosecution:
i) The fact of which evidence sought to be given must be relevant to the issue;
ii) The fact must have been discovered in consequence of same information received from the accused;
iii) The person giving information must be accused of the offence; and
iv) he must be in custody of police.
From the aforesaid, it emanates that discovery of a fact in consequence of information from accused in custody must be proved. Only that portion of the information which relates distinctly to the fact discovered can be proved and rest is inadmissible. In this case, police arrested the accused on 11.03.1997 at about 12 noon. Thereafter, it is alleged, the accused-appellant gave the disclosure statement to the police in presence of P.W.4 vide Ext.5, led them to the half constructed house of one Babu Rao and brought out M.O.I from the heap of bricks and the same was seized vide Ext.6. P.W.4 is said to be the witness to the leading to discovery. But he admitted that he signed the police paper on the night of occurrence, i.e., 10.03.1997 and that the accused disclosed the fact, led the police and M.O.I was recovered at 2.30 P.M. Since there is discrepancy with regard to date of seizure and arrest of the appellant, this Court is not inclined to place reliance upon Exts.5 and 6.
In the instant case, although there are some material omissions, such omissions have not been confronted either to the concerned witnesses or to the investigating officer. Therefore, the accused cannot get any benefit out of that.
As regards the so-called perfunctory investigation, the apex Court in Baladin & Ors. v. State of Uttar Pradesh, AIR 1956 SC 181 has held that the record by the investigating officer, shall be considered by the Court only with a view to weighing the evidence actually adduced in Court. If the police record becomes suspect or unreliable, as in the present case, on the ground that it was deliberately perfunctory or dishonest, it loses much of its value. So, the Court while judging the case of a particular accused has to weigh the evidence given against him in Court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record. This ratio has been followed by this Court in Premananda Saoo & Ors. v. State of Orissa, (2008) 41 OCR 558. Conjoint reading of evidence of P.Ws.2, 5, 6, 10, 11 and 13 clearly establishes that the appellant assaulted the deceased and P.W.1. As such, the so-called perfunctory investigation will not affect the prosecution case, particularly when the evidence of the investigating officer is very clear and cogent and nothing has been elicited from his mouth by way of cross-examination and nothing has been confronted to him.
12. Now, it is to be seen whether the act committed by the appellant comes within the ambit of Section 302, IPC or Section 304 Part-I, IPC.
It is in the evidence that assault took place due to sudden provocation given by the deceased and apparently a single blow was dealt to the chest of the deceased. Therefore, taking into consideration the attending circumstances, this Court converts the conviction of the appellant from Section 302, IPC to Section 304 Part-I, IPC and sentences him to undergo rigorous imprisonment for ten years. His conviction under Section 324 IPC is confirmed without imposing any separate sentence.
It is stated by Mr. Acharya that appellant Garbapu Venkatiramana by now has remained in custody for more than ten years. If that be so, the appellant be set at liberty forthwith, unless his detention is required otherwise.
13. The Jail Criminal Appeal is partly allowed.