The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.42 of 2008 An appeal under section 374 Cr.P.C. from the judgment and order dated 30.01.2008 passed by the Adhoc Additional Sessions Judge (F.T.C.), Malkangiri in Criminal Trial No.30 of 2007. --------------------- Rama Chandra Nali ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Sanjit Kumar Das Amicus Curiae For Respondent: - Mr. Priyabrata Tripathy Addl. Standing Counsel --------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH --------------------------------------------------------------------------------------- -------------------------------- Date of Hearing and Judgment: 31.10.2023 --------------------------------------------------------------------------------------- -------------------------------- By the Bench: The appellant Rama Chandra Nali along with co- accused Dhana Nali faced trial in the Court of learned Adhoc Additional Sessions Judge (F.T.C.), Malkangiri in Criminal Trial // 2 // No.30 of 2007 for commission of offence under section 302/34 of the Indian Penal Code (hereinafter >I.P.C.?) on the accusation that on 24.02.2007 at about 7.00 p.m., in furtherance of their common intention, they committed murder of one Tulasi Nali (hereinafter the >deceased?) and the co-accused Dhana Nali was additionally charged under section 302 read with section 109 of the I.P.C. on the accusation that he abetted the appellant Rama Chandra Nali for commission of the offence. The learned trial Court vide impugned judgment and order dated 30.01.2008 though acquitted the co-accused Dhana Nali of all the charges, but found the appellant guilty under section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo further R.I. for six months. Prosecution Case: 2. The prosecution case, as per the first information report (hereinafter >F.I.R.?) lodged by Kusuma Nali (P.W.5), the widow of the deceased, on 25.02.2007 before the Inspector in- charge of Mathili police station, is that on 24.02.2007 in the evening hours at about 7 O? Clock, while the deceased along with his son Sahadev Nali (P.W.6) was proceeding to their tomato field, which is situated near the river passing by the side of the Page 2 of 44 // 3 // village, the appellant and the co-accused Dhana Nali were waiting for the arrival of the deceased on the way and at the very moment, the deceased reached near the tamato field, the appellant assaulted him by means of an axe as a result of which the deceased died at the spot. On the basis of the written report presented by P.W.5, Mathili P.S. Case No.13 dated 25.02.2007 was registered under section 302/34 of the I.P.C. and P.W.9 Anirudha Routray, S.I. of Police attached to the said police station took up investigation of the case. During the course of investigation, P.W.9 examined the informant (P.W.5) and other witnesses, visited the spot and prepared the spot map (Ext.11) and on the same day, i.e. on 25.02.2007, he seized sample earth and blood stained earth and prepared the seizure list (Ext.6) in presence of the witnesses and at about 10.30 a.m., he seized one axe near the spot as per seizure list (Ext.9), held inquest over the dead body and prepared the inquest report (Ext.1) and despatched the dead body for autopsy and on the same day, he also arrested the appellant at about 3.30 p.m. and on the basis of the statement of the appellant recorded under section 27 of the Evidence Act, one axe was recovered. The wearing apparels of the appellant Page 3 of 44 // 4 // were seized as per seizure list (Ext.7) and the co-accused Dhana Nali was also arrested and his wearing apparels were seized as per seizure list Ext.8 and both the appellant and the co-accused were sent to the Medical Officer, C.H.C., Mathili for collection of nail clippings and saliva and after collection of the same, those were seized and the accused persons were forwarded to the Court of learned S.D.J.M., Malkangiri on 26.02.2007. The post mortem was conducted by the Assistant Surgeon, C.H.C., Mathili, Malkangiri on 26.02.2007 and the wearing apparels of the deceased after post mortem examination were produced by the constable, who escorted the dead body for the said purpose which were seized as per seizure list Ext.5 and the Investigating Officer received the post mortem report on 27.02.2007 and he made a query to the concerned Medical Officer sending the weapon of offence for his examination and opinion and received the report in affirmative. The material objects were produced before the learned S.D.J.M., Malkangiri on 05.03.2007 by the Investigating Officer with a prayer to send the same to R.F.S.L., Berhampur and on completion of investigation, charge sheet was submitted against the appellant as well as co-accused Dhana Nali under sections 302/109/34 of the I.P.C. Page 4 of 44 // 5 // Framing of Charges: 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court framed the charges as aforesaid against the appellant and the co-accused on 29.10.2007 and since the appellant and the co-accused refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. Prosecution Witnesses & Documents Exhibited By Prosecution: 4. During the course of trial, in order to prove its case, the prosecution has examined as many as nine witnesses. P.W.1 Laxman Naik is a co-villager and also a post occurrence witness. He stated that he was informed about the occurrence by P.W.7 and after being informed, he proceeded to the place of occurrence and saw the dead body lying on the spot. P.W.2 Pati Nali is a co-villager and also a witness to the inquest. P.W.3 Sita Nali is a co-villager and she is a post- occurrence witness. Page 5 of 44 // 6 // P.W.4 Sanjukta Dash was the lady constable attached to Mathili police station and she is a witness to the seizure of nail clippings and saliva of the appellant and the co- accused Dhana Nali as per seizure list Ext.2. P.W.5 Kusuma Nali is the widow of the deceased and also the informant in the case. She stated that after the occurrence, her son (P.W.6) came to her and disclosed about the appellant assaulting the deceased on his neck with a tangia. P.W.6 Sahadev Nali is the son of the deceased and he is the sole eye witness to the occurrence who supported the prosecution case. P.W.7 Jagannath Naik and P.W.8 Bala Naik are co- villagers and also witnesses to the inquest and seizure. P.W.9 Anirudha Routray was the S.I. of Police attached to Mathili police station, who is the Investigating Officer of the case. The prosecution exhibited nineteen documents. Ext.1 is the inquest report, Ext.2, Ext.3, Ext.5, Ext.6, Ext.7, Ext.8 and Ext.9 are the seizure lists, Ext.4 is the disclosure statement, Ext.10 is the F.I.R., Ext.11 is the spot map, Ext.12 is the dead body challan, Ext.13 is the requisition in respect of the co- Page 6 of 44 // 7 // accused Dhana Nali, Ext.14 is the requisition in respect of the appellant, Ext.15 is the command certificate, Ext.16 is the query, Ext.17 is the forwarding report to R.F.S.L., Ext.18 is the post mortem report and Ext.19 is the opinion of the doctor. Defence Plea: 5. The defence plea of the appellant is one of denial. The defence has neither examined any witness nor exhibited any document.
Facts
Findings of the Trial Court: 6. The learned trial Court, after assessing the oral as well as documentary evidence on record, came to hold that as per the post mortem report, the deceased died a homicidal death on account of a >tangia? blow. The learned trial Court relied on the evidence of P.W.6 and found his version to be trustworthy and to be inspiring confidence. The Court also relied upon the evidence regarding leading to discovery of the weapon of offence at the instance of the appellant under section 27 of the Evidence Act and after going through the opinion given by the Medical Officer examining the weapon of offence, came to hold that the appellant is the author of the crime and it was he who killed the deceased by means of a >tangia/axe?. The learned trial Court, however, held that though the prosecution evidence is that co- Page 7 of 44 // 8 // accused Dhana Nali was present at the spot unarmed, but he did not take part in the assault in any way and there is nothing on record to show that there was a premeditation or meeting of minds between the appellant and the co-accused prior to the occurrence and accordingly, acquitted the co-accused Dhana Nali of all the charges, but found the appellant guilty under section 302 of the I.P.C. Contentions of the Parties: 7.
Legal Reasoning
by the Division Bench of this Court in the case of Anjinappa v. State of Karnataka reported in MANU/KA/0349/2000 and hence it stands overruled. 13-A. For the foregoing reasons, we answer the question referred to us for decision that the P.M. report filed by the prosecution under sub-section (1) of Section 294 Cr. P.C. whose genuineness is not disputed by the accused may be read as substantive evidence under sub-section (3) of section 294 of Cr. P.C.= The aforesaid decision of Full Bench of Karnataka High Court was relied upon by the Division Bench of our High Page 28 of 44 // 29 // Court in the case of Lambodar Munda -Vrs.- State of Orissa reported in MANU/OR/0813/2017 and it was held that the post mortem examination admitted by the defence under sub- section (3) of section 294 Cr.P.C. is admissible. Another Division Bench of our High Court in the case of Raghunath Samal -Vrs.- State of Odisha reported in MANU/OR/0522/2019 relying upon the aforesaid decision of Full Bench of Karnataka High Court held that the accused cannot be said to be prejudiced when the State Defence Counsel admitted the P.M. report without examination of doctor. The said report (Ext.12) can be read as a piece of substantive evidence. Once the post mortem examination report is accepted, the death of deceased is found to be homicidal in nature. In the case of State of U.P. -Vrs.- Lakhmi reported in (1998) 4 Supreme Court Cases 336, it is held that no doubt it is the duty of the prosecution to prove post mortem finding in murder case, if they are available. Absence of such proof in the prosecution evidence in a murder case is a drawback for prosecution. However, the case is not to be visited with fatal consequences on account of such a lapse because the accused has admitted that death of the deceased was a case of homicide. Page 29 of 44 // 30 // In the case of Mukul Mahto and others -Vrs.- State of Jharkhand reported in (2008) 15 Supreme Court Cases 648, it is held that when homicidal death is not disputed, non-examination of doctor who conducted post-mortem is not fatal. We also find that the defence has never disputed that the deceased has met with a homicidal death. Therefore, the P.M. report (Ext.18) which is marked on admission and its genuineness is not disputed can be read in evidence. The evidence on record clearly indicates that after holding the inquest over the dead body, where the details of the injuries have been noticed in the presence of the witnesses, the dead body was sent for post mortem examination and the post mortem report marked as Ext.18 indicates the following external and internal injuries. External Injuries Generalised swelling of body, rigor mortis absent, a cut injury just behind the back side right ear of size 5= x 3= x 2=, cut injury over the left shoulder, cut injury of size 8= x 4= x 5= extending from below right ear to left side of nose, cut injury of size 4= x 2= x 2= left arm. No ligature mark was present. Page 30 of 44 // 31 // Internal Injuries: On dissection, the post-mortem doctor found clotted blood over the scalp, skull along with scalp ruptured, vertebras are intact, membranes of the brain ruptured, membranes of spinal cord intact, brain matter coming out from skull, brain matter on the verge of purification, internal organs were intact, vessels of the neck and head ruptured, abdominal organs were intact but congested, there was swelling on the external genetalia. There was a rupture injury to the neck muscles from the backside, muscles of the face left side over the affected area and fracture of skull bone. The cause of death has been opined to be coma due to hypovolemic shock arising out of the injury to the large vessels of the neck and the nature of death has been opined to be homicidal. When the evidence regarding homicidal nature of death has not been controverted by the defence, in view of the inquest report and the post mortem report findings, we are of the humble view that the learned trial Court has rightly came to the conclusion that the prosecution has successfully established that the deceased met with homicidal death. Analysis of evidence of P.W.6: 9. The evidence of P.W.6, who is none else than the son of the deceased as well as of the informant, has been relied upon Page 31 of 44 // 32 // by the learned trial Court for finding the appellant guilty for commission of the offence charged. P.W.6 has stated that on the date of occurrence, while he along with his deceased father were proceeding to their vegetable garden situated on the banks of the stream, on the way, he found both the accused persons standing. He stated that the appellant Rama Chandra Nali was the elder brother of his deceased father and the co-accused Dhana Nali was his grandfather and while they were crossing the place where the accused persons were standing, the appellant attacked his father with a >tangia? and gave blows on the head, back side of the neck and right side shoulder as a result of which his father fell down on the ground. He further stated that seeing this assault, when he asked the appellant as to why he killed his father, the appellant threatened him with dire consequences and out of fear, he ran away from the spot and the appellant also chased him for about one kilometre and then he reached near his mother (P.W.5) and narrated the incident before her. He has further stated that when he and his mother rushed to the village and intimated the villagers about the incident, the villagers came to the spot. In the cross-examination, the witness has stated that when they set out for the vegetable garden, it was around 6 O? Page 32 of 44 // 33 // Clock in the evening. He further stated that he never had any quarrel with co-accused Dhana Nali, the grandfather and also stated that the ancestral property has been divided and Narasingh Nali, who is the son of the elder brother of his grandfather, was aggrieved because his deceased father had sold away his portion of land and there was dispute between them. Nothing has been brought out in the cross-examination to disbelieve the evidence of P.W.6 and it has almost remained unchallenged. No doubt, P.W.6 is the son of the deceased but merely because he is related to the deceased, he cannot be labelled as an >interested witness? or on that score, his evidence cannot be discarded. He appears to be reliable and his version inspires confidence of the Court. A close relative of a deceased person would be utterly hesitant to let the real culprit escape from the grip of the law by falsely implicating a person who has nothing to do with the crime. This stance of judicial logic has been elucidated and reiterated by the Hon?ble Supreme Court in a number of matters including in the case of Laltu Ghosh -Vrs.- State of W.B. reported in (2019) 15 Supreme Court Cases 344, wherein it was held as follows: Page 33 of 44 // 34 // <12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well settled that a related witness cannot be said to be an <interested= witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between <interested= and <related= witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused. xx xx xx xx xx 14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, 1954 SCR 145 : AIR 1953 SC 364 : 1953 Cri LJ 1465] , wherein this Court observed : (AIR p. 366, para 26) Page 34 of 44 // 35 // <26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.= Apart from the above, the evidence adduced by P.W.6 regarding the parts of the body where the assault was made by the appellant with a >tangia? is getting corroboration not only from the post mortem report (Ext.18) but also when the weapon of offence was examined by the doctor as per the query made by the Investigating Officer, the doctor has also rendered his view that the injuries caused to the deceased were possible by the weapon. Neither the spot where the occurrence has taken place is challenged nor has the nature of death been disputed. Therefore, we find that the evidence of P.W.6 is clear, cogent, trustworthy and absolutely reliable. It is clarified at the cost of repetition that it is the quality of evidence which matters the most in a criminal trial and not the number of witnesses who adorn the witness box to prove a case. Law is well settled that in order to base conviction on the evidence of the solitary witness, the same must be clear, cogent Page 35 of 44 // 36 // and trustworthy and reliable. This Court can subscribe to the following eternal observation of interminable pellucidity made by the Hon?ble Apex Court in the famous case of Vadivelu Thevar -Vrs.- The State of Madras reported in A.I.R. 1957 SC 614 <There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied Page 36 of 44 // 37 // that the testimony of a single witness is entirely reliable.= In consonance with the above-mentioned position of law, this Court is hardly hesitant to give weightage to the testimony of the solitary eye-witness, i.e. P.W.6. Further, it is an admitted fact that P.W.6 rushed to his mother (P.W.5) immediately after the occurrence and narrated the incident and P.W.5 has also corroborated the version of P.W.6. This conduct of P.W.6 in immediately reporting the incident before his mother (P.W.5) is admissible as res gestae under section 6 of the Evidence Act. The witness like P.W.7 has stated that when it was reported to him by P.W.6 that the deceased was killed by the appellant by means of a >tangia?, he along with the other villagers came to the spot, which is a place called as >Jirumunda?, adjacent to stream and on reaching at the spot, he found the deceased had cut injuries on the right side back of the neck. P.W.8 has also stated that on the date of occurrence, P.W.6 reported to him that the appellant had killed the deceased with a >tangia?. Therefore, there is sufficient corroboration to the evidence of P.W.6 not only from the post mortem report findings but also from the evidences of P.W.5, P.W.7 and P.W.8 before Page 37 of 44 // 38 // whom he disclosed about the occurrence immediately after the occurrence. Whether leading to discovery of weapon of offence by the appellant can be acted upon?: 10. The Investigating Officer (P.W.9) has stated that he visited the spot and prepared the spot map (Ext.11). The spot map clearly indicates that the axe was lying nearer to the dead body in an open place. The I.O. also held inquest over the dead body at the spot and prepared the inquest report (Ext.1) on 25.02.2007. When the co-villagers as well as P.W.5 and P.W.6 came to the spot after the occurrence and on the next day, the I.O. also visited the spot, it seems improbable that the weapon of offence which was lying near to the dead body went unnoticed by everybody. Therefore, the statement of the Investigating Officer that after he arrested the appellant, he led to the recovery of the weapon of offence is not acceptable and therefore, we are of the considered view that the learned trial Court was not justified in using this piece of evidence against the appellant. Weapon of offence and C.E. Report not produced: 11. The weapon was seized from the spot and it was sent to the doctor for his opinion regarding possibility of injuries Page 38 of 44 // 39 // caused to the deceased with such weapon and thereafter, it was sent for chemical examination, which is evident from the forwarding report marked as Ext.17. However, for the best reason known to the prosecution, the chemical examination report was not obtained and proved during trial and even the prosecution did not bother to prove the weapon of offence as a material object during trial. It was the duty of the prosecution in a case where the accused is facing trial under section 302 of the I.P.C. to produce the chemical examination report so also the material objects and prove it in accordance with law through the competent witnesses. In the case of Harendra Rai -Vrs.- The State of Bihar & Ors. reported in (2023) Supreme Court Case OnLine SC 1023, the Hon?ble Supreme Court elaborated the role of a Public Prosecutor succinctly in the following words: <110. Insofar as the Public Prosecutors are concerned, a lot of comments have been made, not only by this Court but also by the Law Commission, highlighting the role and importance of a Public Prosecutor. We may quote with profit the role of the Prosecutors as stated in the 197th Law Commission of India Report on Public Prosecutors’ Appointments (2006): Page 39 of 44 // 40 // <The Prosecutor has a duty to the state, to the accused and the Court. The Prosecutor is all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, not should any prosecutor even feel pride or satisfaction in the mere fact of success.= 111. In 154th Law Commission of India Report it was reported as follows: Prosecutors are the ministers of Justice whose job is none other than assisting the State in the administration of Justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. They are also not there to see the culprits escape conviction.= Stressing upon the unparalleled roles played by the Public Prosecutors in criminal trials, this Court has reminded them to be dutiful in discharge of their vital functions in the recent case of Sukumar Gouda -Vrs.- The State of Odisha reported in (2023) Supreme Court Cases OnLine Ori 5523 in the following words: <A Public Prosecutor has a wider set of duties than to merely ensure that the accused is punished. The duties include ensuring fair play in the proceedings, to see all relevant facts are Page 40 of 44 // 41 // brought before the Court to have an effective determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused. The Court must ensure that the Prosecutor is doing his duties with utmost level of efficiency and fair play. In a criminal trial, the investigating officer, the Prosecutor and the Court play a very important role. The Court’s prime duty is to find out the truth. The investigating officer, the Prosecutor and the Court must work in sync and ensure that the guilty are punished by bringing on record adequate credible legal evidence. The criminal Court must be alert and it must watch the actions of the Public Prosecutor carefully.= The Public Prosecutors prosecuting the accused of serious charges must ensure that all the relevant documents are duly exhibited and the material objects are produced and proved through competent witnesses so as to enable the Court to come to a just and logical outcome in a criminal case. Any default on the part of the Public Prosecutor may sometimes render the Court handicapped to let the justice prevail and to ensure that the truth is disinterred. However, it is made clear that only because there is some lacunae on the part of Public Prosecutor, Page 41 of 44 // 42 // it would not automatically lead to acquittal of an accused. The trial Court is duty bound to assess all the evidence on record and to see whether a cogent case of conclusive nature is made out despite the fault of the prosecuting agency. Absence of motive: 12. Though the learned counsel for the appellant laid emphasis on the absence of motive on the part of the appellant to commit the crime, but it is settled legal position that the absence of motive is of no consequence and pales into insignificance when direct evidence establishes the crime. In a case, where there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence cannot be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. [Ref: Hart Shankar v. State of U.P. : (1996) 9 SCC 40; Bikau Pandey and Ors. v. State of Bihar : (2003) 12 SCC 616; Abu Thakir and Ors. v. State of Tamil Nadu : (2010) 5 SCC 91; State of U.P. v. Kishanpal and Ors. : (2008) 16 SCC 73; Bipin Kumar Mondal v. State of West Bengal : (2010) 12 SCC 91]. Page 42 of 44 // 43 // Conclusion: 13. In the present case, the prosecution has established that the appellant was waiting with a tangia on the way for the arrival of the deceased and the moment the deceased arrived at the scene of occurrence, he was assaulted and as many as four injuries were caused including on the vital parts of the body like neck which resulted in causing coma and hypovolemic shock due to the injury to the large vessels of neck. Even if the C.E. report is not exhibited, material objects are not proved, but in view of the clinching evidence adduced by the solitary eye witness (P.W.6), the post mortem report finding, the opinion report and the fact that as per the opinion given by the doctor, the injuries are sufficient in ordinary course of nature to cause death and there is nothing on record to bring the case within the purview of any of the exceptions enumerated under section 300 of I.P.C., we are of the considered view that the learned trial Court has rightly found the appellant guilty under section 302 of the I.P.C. Accordingly, the impugned judgment and order of conviction passed by the learned trial Court and the sentence passed thereunder stands confirmed. The Jail Criminal Appeal stands dismissed. Page 43 of 44 // 44 // Before parting with the case, we would like to put on record our appreciation to Mr. Sanjit Kumar Das, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Priyabrata Tripathy, learned Additional Standing Counsel. The trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. .......................... S.K. Sahoo, J. Orissa High Court, Cuttack The 31st October 2023/RKMishra ................................. Chittaranjan Dash, J. Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 14:45:41 Page 44 of 44
Arguments
Mr. Sanjit Kumar Das, learned Amicus Curiae appearing for the appellant contended that the evidence of the solitary eye witness P.W.6, who is the son of the deceased, is not trustworthy and therefore, the learned trial Court has committed illegality in placing reliance on his evidence particularly when he is an interested witnesses. It is argued that no motive behind commission of the crime has been proved by the prosecution and the spot map indicates that the weapon of offence i.e. axe was lying near the dead body in an open place accessible to all and by the time, the police reached at the spot, the witnesses had already arrived at the scene of occurrence and therefore, the prosecution evidence that the axe was recovered at the instance of the appellant basing upon his statement is not acceptable. Learned counsel further argued that though in the exhibit list of Page 8 of 44 // 9 // the learned trial Court, it is mentioned that the post mortem report has been marked as Ext.18 on admission on 24.01.2008, but the order sheet dated 24.01.2008 would indicate that the learned State Defence Counsel filed a memo stating that the accused persons would be prejudiced if the post mortem report is marked as an exhibit. Learned counsel further argued that the material object i.e. the weapon of offence was not produced at the time of trial to be proved in accordance with law and though the exhibits were sent for chemical examination but the chemical examination report has also not been obtained and proved, which has resulted in causing serious prejudice to the appellant and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. Priyabrata Tripathy, learned Additional Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and submitted that the learned trial Court has rightly placed reliance on the evidence of the son of the deceased, who was examined as P.W.6 and narrated how the deceased was assaulted by the appellant by means of a >tangia? repeatedly on different vital parts of the body which resulted in his instantaneous death and nothing has been brought out in the cross-examination to demolish the evidence of Page 9 of 44 // 10 // P.W.6. It is further argued that the defence has not disputed that the deceased died a homicidal death and the post mortem report indicates the nature of injuries sustained by the deceased and the cause of death has been specifically mentioned to be due to coma on account of hypovolemic shock arising out of injury to the large vessels of the neck and it was homicidal in nature and the weapon seized was also produced before the Medical Officer, who on examination of the same, gave his opinion that the injuries were possible by the weapon produced. The learned counsel further argued that in a case where the evidence of eye witness is clinching and trustworthy, merely because the prosecution has not proved the motive behind the commission of the crime, the same cannot be a ground to disbelieve the prosecution case and therefore, the appeal should be dismissed. Whether the deceased met with a homicidal death?: 8. Adverting to the contentions raised by the learned counsel for the respective parties, before proceeding to analyse the evidence of solitary eye witness P.W.6, it is necessary to find out whether the prosecution has successfully established that the deceased has met a homicidal death or not. The doctor, who conducted the post mortem examination and submitted his report vide Ext.18, was not Page 10 of 44 // 11 // examined during trial. The exhibit list of the trial Court reveals that Ext.18 was marked on admission on 24.01.2008, but the order sheet dated 24.01.2008 indicates that the learned State Defence Counsel filed a memo stating that the accused persons would be prejudiced if the post mortem report is marked as an exhibit and the Court marked the P.M. Report as Ext.18. To know the correct state of affairs, we verified the memo dated 24.01.2008 filed by the learned State Defence Counsel, which reads as follows:- Memo <The defence will not be prejudiced if the medical report will be marked as exhibit in the case.= On account of such memo filed by the learned State Defence Counsel, the learned Additional Public Prosecutor filed a memo to decline Dr. A.K. Malik who conducted the post mortem examination and prepared Ext.18 as Ext.18 was marked on admission by the learned defence counsel. Therefore, in the order sheet dated 24.01.2008, inadvertently the word >not? has been omitted and in place of >the accused persons would not be prejudiced?, it is written as >the accused persons would be prejudiced?. Page 11 of 44 // 12 // The question that now crops up for consideration is whether the post mortem report (Ext.18) which is marked by consent and its genuineness is not disputed, would be admissible in evidence notwithstanding the fact that the author of the post mortem report is not called to the Court to give evidence. The Full Bench of Karnataka High Court in the case of Boraiah alias Shekar Vs. State reported in 2003 Criminal Law Journal 1031, while adjudicating this point held as follows:- <10. The object of Section 294 of Cr. P.C. is to accelerate the pace of trial by avoiding the time being wasted in examining the signatory to the document filed by either of the parties to prove his signature and correctness of its documents; if its genuineness is not disputed. This section is intended to dispense with the formal proof of certain documents. It is obviously intended to slim the proceedings by dispensing with elaborate and sometimes long drawn procedure of examining the concerned person when the genuineness of document is not in dispute. Sub- section (3) providing for such dispensation is the main provision, sub-sections (1) and (2) being merely procedural. Such dispensing of proof is restricted only to such documents of which genuineness is not disputed when called upon to do so under sub-section (1) of section 294 of Cr. P.C. The refrain from such procedure is not Page 12 of 44 // 13 // invariable and the Court is empowered to examine depending upon the circumstances and expediency. This is also in consonance with the provisions of Section 58 of the Evidence Act …… 11. The proviso to Section 58 of the Evidence Act specifically gives a discretion to the Court to require the facts admitted to be proved otherwise than by such admission. The proviso corresponds to the proviso to Section 294 of Cr. P.C. In view of this, it is quite clear that the Court at no stage can act blindly or mechanically. Section 294 of Cr. P.C. if examined in its correct perspective would show that such document whose genuineness is not disputed may be led in evidence in enquiry, trial or other proceedings under the provisions of Cr. P.C. without proof of signature of the person by whom it purports to be signed. The intention of the Legislature in introducing this provision under section 294 of Cr. P.C. is to eliminate the formal procedure of proving the mere signature on such documents in trial, enquiry or any other proceedings which used to take sufficient time previously as there was no such provision in the earlier Cr. P.C. It has to be pointed out that this provision dispenses with the formal proof of a document when the genuineness of which is not disputed by the other side. Section 294 dispenses proof of every document when it Page 13 of 44 // 14 // becomes formal on its genuineness not being disputed. A Post Mortem report or any other document of which genuineness is not disputed by accused can be read as substantive evidence without formal proof. Even if the genuineness of the P.M. report is not disputed and the report is read as substantive evidence, it may still be necessary to examine the doctor concerned to clarify his opinion in the reports or to obtain his opinion on medical questions. This section dispenses with proof of every document when it becomes formal on its genuineness not being disputed. Sub-section (3) of section 294 of Cr. P.C. covers post mortem reports and every other document of which genuineness is not disputed. Thus such documents can be read in evidence as genuine without the formal proof. Section 294 does not control or regulate section 293. Section 293 deals with certain category of documents which can be received in evidence without proof whereas section 294 of Cr. P.C. deals with every document of which the genuineness is not disputed and such document may be read in evidence without proof of the signature of the person to whom it purports to be signed. It would however be pertinent to note that the party seeking to avail the benefit of section 294 of Cr.P.C. should file a list containing the particulars of every such document and shall call upon the other side to admit or deny the Page 14 of 44 // 15 // genuineness of each such document. Only where the genuineness of any document is not disputed, such document may be read in evidence in any enquiry or trial without the proof of the signature of the person to whom it purports to be signed. That is to say there must be something on record to show that either the prosecution or the defence was called upon to admit or deny the genuineness of certain document and it is only where the genuineness of the document is not disputed, such document may be read in evidence without the proof of the signature of the person to whom it purports to be signed. Section 294 of Cr. P.C. dispense with only the proof of the signature of the person to whom it purports to be signed. That being so, there must be enough indication in the record to show that the party against whom a document is sought to be put was called upon to admit or deny the genuineness of such document. If there is no such indication and if the document is simply marked without being objected to by the other side, then it cannot be read in evidence as it does not fulfil the requirements of Section 294 of Cr. P.C. But when once the requirements of Section 294 are fulfilled, there could be no difficulty in treating such document as substantive evidence in the case. Section 294 of Cr.P.C. requires the Prosecutor or the accused as the case may be, to admit or deny the Page 15 of 44 // 16 // genuineness of the document sought to be relied against him at the outset in writing and on his admitting or indicating no dispute as to the genuineness of such document, the Court is authorized to dispense with its formal proof thereof. In fact after indication of no dispute as to the genuineness of a document, proof of document is reduced to a sheer empty formality. Section 294 of Cr.P.C. makes dispensation of formal proof dependent on the accused or the Prosecutor not disputing the genuineness of the documents sought to be used against them. Such contemplated dispensation is not restricted to any particular category of documents as under section 293, in which ordinarily authenticity is dependent more on the mechanical process involved than on the knowledge, observation or the skill of the author rendering oral evidence just formal. Nor it is made dependent on the relative importance of the document or probative value thereof. The documents being primary or secondary or substantive or corroborative, is not relevant for attracting section 294 of Cr. P.C. Not disputing its genuineness is the only solitary test for dispensing with the formal proof of a document. Even the P.M. report is also a document as any other document. Primary evidence of such a document is the report itself. Section 294 of Cr. P.C. enables the accused to waive the mode of Page 16 of 44 // 17 // proof in respect of such documents also by admitting it or raising no dispute as to its genuineness when called upon to do so under sub-section (1) of Section 294, sub-section (3) of section 294 enables the Court to read it in evidence without requiring the same to be proved in accordance with the Evidence Act. There is nothing in section 294 to justify exclusion of the P.M. report from the purview of documents covered thereby. The mode of proof of it also is liable to be waived as of any other document. It is clear to us that the words, reading, using, receiving, giving or admitting in evidence cannot but have the same meaning and import and the words can only mean that a document can be used at the trial for the disposal of the case in the same manner as any other document, proof of which is not dispensed with and is proved in accordance with the provisions of the Evidence Act. No document with all its probative value can be received in evidence unless its genuineness is first established by the mode of proof prescribed under the Evidence Act. The mode of proof however is liable to be waived by virtue of section 294 of Cr. P.C. In the situation therefore, the P.M. report also is receivable in evidence without the evidence of the doctor and can still furnish corroborative evidence to support other evidence in the case. But this cannot be true of Page 17 of 44 // 18 // each and every case. Whether the doctor’s evidence is necessary or not depends on the facts and circumstances of each case. raising no dispute to the genuineness of any document implies the considered decision on the part of the person against whom the said document is sought to be used. The Court has ordinarily to accept this decision and refrain from entering into the arena itself unless miscarriage of justice is apprehended. This Section also invests the Court with a discretion to examine the doctor or any such witness in that case. Therefore, section 294 of Cr.P.C. itself furnishes an in built protection to the defence or to the prosecutor against all possible lapses. It is open to the Court in its such discretion to examine the doctor or any other witness when it apprehends miscarriage of justice. As we have already stated section 294 of Cr.P.C dispenses with proof of every document when it becomes formal on its genuineness not being disputed. It does not contemplate existence of any class of documents as such, requiring formal proof. It is section 293, however, which deal with a certain category of documents which can be received in evidence without proof. The language of the two sections viz., sections 293 and 294 is distinct enough to admit of any mistake. Every document is required to be proved by its author unless he cannot be made available for evidence due to Page 18 of 44 // 19 // unavoidable reasons. The genuineness of any document is a condition precedent to its relevancy and it is difficult to conceive of any relevant document which can be relied on even if not genuine. In our opinion, if the prosecution or the accused does not dispute the genuineness of a document filed by the opposite party under sub-section (1) of section 294, it amounts to an admission that the entire document is true or correct. It means that the document has been signed by the person by whom it purports to be signed and its contents are correct. It does not only amount to the admission of it being signed by the person by whom it purports to be signed but also implies the admission of the correctness of its contents. Such a document may be read in evidence under sub-section (3) of section 294. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory as it is admitted to be true or correct. The phrase ’read in evidence’ means read as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to corroborate his testimony. It is open to the prosecution or the accused to dispute the genuineness of a document filed by the opposite party under sub- section (1) of Section 294 of Cr. P.C. In such a case the signatory of the document must be Page 19 of 44 // 20 // examined by the party filing the document to prove his signature and also the correctness of its contents and the evidence of the signatory will be the substantive evidence and the document may be used to corroborate or discredit his testimony. But where the genuineness of a document filed by the prosecution or the accused under sub-section (1) of Section 294, Cr. P.C. is not disputed by the opposite party, sub-section (3) of section 294 Cr.P.C. is applicable and such a document may be read as substantive evidence. It is based on the rule of evidence that facts admitted need not be proved contained in section 58 of the Evidence Act. Section 58 of the Evidence Act lays down that proof need not be given of facts which the parties or their agents, which of course include advocates, agree to admit at the hearing or which they agree to admit before the hearing by writing under their hands or which by any of the provisions of law (section 294 of Cr.P.C.) are deemed to have been admitted. The proviso to section 58 of the Evidence Act, however, gives power to the Court to require a fact to be proved otherwise even though admitted. There might be feigned and collusive case or an admission might be fictitious or colourless. So, the Court cannot be compelled to accept an admission and it may require any fact to be proved by evidence in the ordinary way as Page 20 of 44 // 21 // laid down in the proviso to section 58 of the Evidence Act. Hence there should be no absolute rule on the subject and the trial Court’s discretion should determine whether a particular admission is so plenary as to render the party’s evidence wholly needless under the circumstances. Section 58 of the Evidence Act just like section 294 of Cr. P.C. relates to agreed statements of facts made between the parties to save time and expense at a trial. Admissions by agreement are those which for the sake of saving expense or preventing delay, the parties or their advocates agree upon between themselves. They ought, in general, to be in writing, and signed either by the parties or their advocates. They should be clear and distinct and a party intending to rely upon such admissions should be careful not to leave any fact to be merely inferred from them, for if he does, he will not, on appeal, be allowed to adduce evidence as to such fact. When once the genuineness of the document is thus not disputed, no question of proof arises as it is dispensed with by section 58 of the Evidence Act which is almost analogous to section 294 of Cr. P.C. It has to be pointed out that documents are either proved by witnesses or marked on admission. When they are marked on admission without reservation, the contents are not only evidence but are taken as admitted and cannot be challenged by cross- Page 21 of 44 // 22 // examination or otherwise. In case of documents marked on admission dispensing with formal proof, the contents are evidence, although the party admitting does not thereby accept the truth of the contents which can be challenged by cross-examination or otherwise. Admissions dispensing with proof can be allowed in criminal cases in order to see that the trial of a criminal case may be shortened by admissions of many formal facts. Waiver or formal proof of documents in a criminal trial cannot be regarded as violation of rules of evidence. In fact when a counsel of a party or the party himself admits a fact, it need not be proved under section 58 of the Evidence Act. It is true that in the trial of capital offences, the Court should exercise care and discretion in regard to admissions made by the accused or by his advocate in open Court, and that every conviction should be supported by some evidence produced in Court, and so even a plea of guilty will not ordinarily be accepted. But it is not true that an accused cannot either by himself or his counsel, in his own interest, admit some fact which though necessary for the State to establish, may be consistent with his innocence and the defence he maintains. Subject to the reasonable discretion of the Court in the protection of the accused against improvidence or mistake, admissions during trial by the accused or his counsel as to Page 22 of 44 // 23 // the genuineness of a document; admissions as to the testimony of a witness not produced would give if present, or the fact his testimony would establish, voluntarily made for the purpose of preventing a postponement of the trial; and admission in the interest of the accused limiting the issue to the material facts upon which alone his successful defence depends, have long been permitted under the Criminal Rules of Practice and we think their lawfulness and propriety rest upon sound reason. It would be of some relevance to note here itself that section 58 of the Evidence Act makes no exception of criminal trial, but under the proviso the practice is to insist of proof of all really essential fact. Section 58 of the Evidence Act as we have already stated exactly corresponds to Section 294 of Cr. P.C. An admission by an accused or his counsel for the purpose of dispensing with the further proof of disputed facts is binding on the party unless of course circumstances are shown which would justify the Court in requiring proof under the proviso. Both under section 58 of the Evidence Act and section 294 of Cr. P.C. the Court has a discretion to require proof of such signature. The object underlying the provisions contained in section 294 of Cr. P.C. is to avoid the time of the Court being wasted by examining the signatory of the document filed by the prosecution or the Page 23 of 44 // 24 // accused under sub-section (1) of section 294 Cr.P.C. to prove his signature when the correctness of its contents and the genuineness thereof is not disputed by the opposite party. If the signature and the correctness of the contents of a document filed by the prosecution or the accused under sub-section (1) of section 294 Cr.P.C. whose genuineness is not disputed by the opposite party are still required to be proved by examining the signatory of the document, the very object of enacting section 294 Cr. P.C. will be defeated. We are therefore of the opinion that all documents filed by the prosecution or the accused under sub-section (1) of Section 294 Cr.P.C. whose genuineness is not disputed by the opposite party may be read as substantive evidence under sub-section (3) of section 294 Cr.P.C. The P.M. report filed by the prosecution is obviously a document as defined in section 29 of I.P.C. as well as in section 3 of the Evidence Act. Under sub-section (3) of section 294 Cr.P.C., the post mortem report filed by the prosecution under sub-section (1) of section 294, Cr. P.C. may be read as substantive evidence in place of or in substitution of the testimony of the doctor who prepared or issued it, if its genuineness is not disputed by the accused. If the genuineness of the P.M. report prepared by the doctor is disputed by the accused, then the doctor who conducted the Page 24 of 44 // 25 // P.M. examination and issued the P.M. report must appear in the witness box to speak to the contents thereof and also to prove the P.M. report and in such a case, the statement of the doctor or the testimony of the doctor in Court would be the substantive evidence and the P.M. report may be used to corroborate or contradict his testimony in Court. We are therefore unable to accept the contention that it is not permissible to exhibit the P.M. report under section 294 of Cr.P.C. and even if it was done, the report cannot be used as substantive evidence until and unless the doctor concerned is examined in Court. As already stated there is no restriction placed on document in sub-section (1) of Section 294 Cr.P.C. and it applies to all documents filed by the prosecution or the accused. If the genuineness of any document filed by the prosecution or the accused under sub-section (1) of section 294 Cr.P.C. is not disputed by the opposite party, sub-section (3) of section 294 Cr.P.C. comes into play and such document may be read as substantive evidence. We are of the considered view that the P.M. report can be read as substantive evidence under sub-section (3) of section 294 Cr.P.C. if its genuineness is not disputed by the accused. The very object of section 294 of the Cr. P.C. would be defeated if the signature and the correctness of the contents of the P.M. report are still Page 25 of 44 // 26 // required to be proved by the doctor concerned even if its genuineness is not disputed by the accused. Section 294 Cr.P.C. is clear and unambiguous and it leaves no doubt that when once the genuineness of the document is not disputed, it could be read in evidence. It is only when the genuineness of the P.M. report filed by the prosecution is not disputed by the accused that sub-section (3) of section 294 of Cr.P.C. will come into play and the P.M. report may be read as substantive evidence and the signature and the correctness of its contents need not be proved by the doctor concerned. We are therefore very clear in our view that if the genuineness of the P.M. report filed by the prosecution under sub-section (1) of section 294 Cr.P.C. is not disputed by the accused, it may be read as substantive evidence under sub-section (3) of Section 294 Cr.P.C. The proviso to section 294 of Cr.P.C, specifically gives a discretion to the Court to require such signature to be proved notwithstanding the fact that the genuineness of such document is not disputed by the prosecution or the accused. It is thus clear that the Court at no stage can act blindly or mechanically. Thus there is an inbuilt safeguard both for the accused and the defence. The proviso to Section 294 of Cr.P.C. makes it very clear that even if the genuineness of a document filed by the prosecution or the accused under Page 26 of 44 // 27 // sub-section (1) of Section 294 Cr.P.C. is not disputed by the opposite party, the Court may require the proof of the signature of the person by whom it purports to be signed. In such a case, the signatory of the document must appear in Court and prove his signature and the document will thereafter be read as substantive evidence. We may however add a word of caution that the medical evidence in a criminal case is of utmost importance as the correctness of both ocular and circumstantial evidence produced by the prosecution is tested on the touchstone of the medical evidence. Therefore, even if the genuineness of the post mortem report is not disputed by the accused and the report is read as substantive evidence in the case, it may still be necessary to examine the doctor concerned to clarify his opinion mentioned in the P.M. report or to obtain his opinion on questions of medical nature if the Court feels it absolutely necessary to clarify the questions of a medical nature which may be involved in the case by calling the doctor who has issued the P.M. report in order to arrive at a correct decision in the case. This may be done by the trial Court by examining him under section 311 Cr.P.C. 12. We accordingly hold that sub-section (3) of section 294 of Cr. P.C. covers the P.M. report Page 27 of 44 // 28 // and every other document of which genuineness is not disputed and all such documents can be read in evidence as genuine without the formal proof of such documents by examining the author thereof. 13. Consequently, we respectfully agree with the view taken by the Full Bench of the Bombay High Court and the Allahabad High Court in the decisions reported in 1983 Cri LJ 487 (Shaikh Farid Hussinsab v. State of Maharashtra) and MANU/UP/0388/1980 (Saddiq v. State) respectively and approve the view expressed by the Division Bench of this Court in the decision reported in ILR 2001 Kar 2660 (Sanne Gowda alias Gopala v. State by Sakaleshpur Rural Police) and disapprove the observations made