The High Court
Case Details
A.F.R. IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA NO. 34 of 2005 From the judgment and order dated 03.04.2003 passed by Shri G.R.Purohit, Adhoc Addl. Sessions Judge, Jeypore in Criminal Trial No.44 of 2012. --------------------- Sangadi Sania …..… Appellant -Versus- State of Odisha …..… Respondent For Appellant : Mr. Ambika Prasad Mishra, Advocate For Respondent : Mr. Prem Pattanaik, AGA ------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE BISWANATH RATH THE HONOURABLE SHRI JUSTICE M.S. SAHOO A N D ---------------------------------------------------------------------------- Date of hearing: 11.05.2023 Date of judgment : 02.08.2023 ------------------------------------------------------------------------------------------ M.S.SAHOO, J The appellant, in the present Jail Criminal Appeal, Sangadi Sania, is aggrieved by the judgment dated 3.4.2003 passed by the learned Adhoc Addl. Sessions Judge, Jeypore for finding him guilty of committing offence punishable U/s.302 of the Indian Penal Code, 1860 (in short ‘IPC’), sentencing him to imprisonment for life and to pay a fine of Rs.1,000/- (Rupees One thousand) or in default of payment to undergo further rigorous // 2 // imprisonment for three months after completion of Criminal Trial No.44 of 2012, arising out of G.R. Case No.451/2000, corresponding to Pottangi P.S. Case No.32 of 2000 committed by the learned S.D.J.M., Koraput. Factual Matrix 2. The appellant was the sole accused facing trial before the learned Sessions Court. The incident alleged, occurred on 21.07.2000 at about 8.00 P.M. in village Sishaguda within the jurisdiction of Potttangi Police Station in the district of Koraput. The first information report (FIR for short) was lodged at about 9.00 P.M. on 21.07.2000 in the concerned Police Station after which the P.S. Case No. 32 of 2000 was registered by the Officer- in-charge.
Legal Reasoning
2.1. The FIR was orally stated before the Officer-in-charge of the Police Station who reduced the oral statement into writing in Oriya. The informant-Gumurabali Syama (P.W.4) put his thumb impression after the contents of the F.I.R. was explained and read over to him. Translated to English the F.I.R. narrates as follows : “I, Gumurabali Syama, son of late Gumurabali Mulia, aged about 27 years, resident of village Sishaguda, P.S. Pottangi. Dist.Koraput today on 21.07.2000, 9.00 P.M. along with my co-villager Majhi Balu having come to the Police Station, lodge the F.I.R. orally that younger brother of Songadi Sonia has married my younger sister. Earlier my brother Gumurabali Sukra had altercation (madagola) with Sonagadi Sania. Today i.e. 21.7.2000 Friday at about 8.00 P.M. in the evening my brother Sukra after having his food was at home. At that time Songadi Sania went and called my brother as “Samudhi”. Sukra listening to the call came out of house. After Sukra came out of house Sania without any further talk, stabbed Sukra with knife three to four times. My brother Sukra shouted Pesi Sania stabbed with knife. Me and Majhi Balu listening his call came out. While trying to hold Sukra, he felled down, intestine came out, he died at the said spot. Sania went away and hid him somewhere. Hearing the shout, persons Page 2 of 25 // 3 // from our Sahi came and saw that my brother in front of his house, where he was stabbed, was lying dead. He had bleeding injuries at chest and stomach. His intestines came out. The writing has been made as per my statement which was heard by me read by the Babu. The same being correct, I put my thumb impression.
Legal Reasoning
3. We heard the detailed arguments of Mr.Ambika Prasad Mishra, learned Legal Aid counsel for the appellant and Mr. Prem Pattanaik, then functioning as a learned Additional Government Advocate for the State. Learned counsel for the appellant as well as learned Additional Government Advocate for the State have filed their written argument after exchanging copies thereof. Prosecution Case 4. In the trial Prosecution alleged that the accused Sangadi Sania and deceased Gumuraballi Sukra had prior enmity. On 21.07.2000 at 8.00 P.M. in the night, while the deceased and his wife were in their house, the accused came there and called the deceased by saying “Samudhi- Samudhi” and when the deceased came out of the house being followed by his wife, the accused all on a sudden dealt stab blows by a knife on the chest and belly region of the deceased and fled away from the spot. The deceased cried/shouted, as a result of which, the neigbours P.Ws.3 and 4 rushed near him but the deceased immediately fell down on the ground and died at the spot. 4.1 As per the narrative of the prosecution P.Ws.3-Majhi Bulu and P.W.4-Gumurabali Syama (informant) were the neighbours who immediately came to the spot hearing cries of the deceased. P.W.5-Gumurabali Sashi is the son of the deceased. P.Ws.6 & 7 are independent witnesses. P.W.8 : a police constable is the Page 3 of 25 // 4 // seizure witness. P.W.9 is the Investigating Officer. P.W.1 is the Medical Officer who conducted post-mortem examination. 4.2 As per statement of P.W.9, Officer-in-charge, while working at Pottangi Police Station he received oral report from P.W.4, reduced it into writing. The I.O. had made inquest and sent the dead body for post-mortem examination, seized blood stained earth and sample earth from the spot and prepared the spot map. On the next day of the incident i.e. on 22.07.2000. The I.O. arrested the accused, seized the wearing apparels of the accused on 23.07.2000. According to the I.O., he had recovered the blood stained knife from a bush nearby the Anganabadi centre of the village. Subsequently he sent the knife, the wearing apparels of the accused, the wearing apparels of the deceased and the sample earth and blood stained earth for chemical examination. 5. Learned trial court has relied upon evidence of P.Ws.2 to 5 and P.W.1 to hold the appellant guilty. Wife of the deceased P.W.2 has been treated to be the eye witnesses to the occurrence. 6. The defence did not examine any witness. Appellant’s contentions 7. It is submitted by the learned counsel for the appellant that the evidence adduced by P.W.2 is contradictory to the statement made by P.Ws.3, 4 and 5. It is the specific statement of P.W.2 in her examination in chief that “My husband came out of the house, followed by me”. In her cross-examination, she has deposed to the suggestion “It is not a fact that I had not stated to the I.O. that I came to outside following my husband.” However, on confrontation to the I.O. (P.W.9), the I.O has clearly stated “P.W.2 did not state before me that she followed her husband-the deceased to outside.” Therefore, for the first time, P.W.2 has stated before the trial court about her presence at the spot. However, the learned trial court Page 4 of 25 // 5 // has placed much reliance on the said evidence. P.W.4 (Informant) has stated in his examination in chief that “The wife of the deceased told there that Sania stabbed her husband”. In his cross- examination, he has stated that he has informed the I.O. (P.W.9) while lodging report. However, the F.I.R. is silent about it. Nevertheless, the I.O.(P.W.9) in his cross-examination has stated that “In the F.I.R. the informant has not mentioned that he heard from the wife of the deceased that Sania stabbed her husband.” There is apparent contradiction in the deposition of P.W.3 and P.W.4, who were admittedly post occurrence witnesses. The statement of P.W.5, who is the son of the deceased also creates doubt in the veracity of the evidence adduced by P.W.2. P.W.5 has stated in his cross-examination that “My mother came and called me and thereafter I went to the spot.” Nevertheless, it was a dark night as stated by the informant (P.W.4) in his cross-examination and there was no electricity. Therefore, in face of so many contradictions in the statement of witnesses, a conclusion cannot be definitely arrived at that the appellant is the author of the crime. 7.1 It is further submitted by the learned counsel for the appellant that the I.O.(P.W.9) has recovered the alleged weapon of offence, which is a folding knife, 7” long in total, having 3” edge and 4” handle; (as reveals from the details of properties seized at Column-12 of the Final Report) from a bush nearby the Anganbadi centre on 23.07.2000. Accordingly, the I.O. had prepared seizure list (Ext.11) which was signed by two witnesses, i.e. Pujari Mukunda and Gajibali Uma Moheswar Rao. However, the above witnesses were not examined by the prosecution during trial to substantiate the recovery of the weapon of offence (M.O.1). The M.O.I was sent to the Regional Forensic Science Laboratory Page 5 of 25 // 6 // (R.F.S.L.), Berhampur for chemical examination. The chemical examination report (Ext.13) does not reveal presence of blood in the knife. Neither any procedure was followed during recovery of M.O.1 nor the witnesses to Exhibit-11 were examined by the prosecution, which casts doubt in the veracity of the prosecution allegation against the appellant. 7.2 It is further contended by the learned counsel for the appellant that the P.W.1 is the doctor, who had conducted post mortem on the deceased and found 5 numbers of the injures on his persons. In his deposition in chief, he has stated that injury No.4 and 5 can individually cause death in the ordinary course of nature. Although MO-1(knife) was produced before him, yet, in the cross-examination, he has deposed that “My report does not reveal blood stains in the knife”, which also casts doubt with regard to the weapon of offence, as alleged by the prosecution since in the chemical examination report (Ext.13) no opinion was given with regard to presence of blood. 7.3 It is further contended by the learned counsel that all the prosecution witnesses from P.W.2 to P.W.5 are the immediate relatives of the deceased and due to the fact that the deceased was taken to custody for assaulting the appellant some times before, he has been falsely implicated in this case by these interested witnesses. Submissions on behalf of State-Respondents 8. Per contra the learned Additional Government Advocate supported the judgment by submitting that learned trial court has taken relevant evidence on record into consideration and the prosecution has proved the case beyond all reasonable doubts. Page 6 of 25 // 7 // Analysis 9. The learned trial court has dealt with the requirement of proving charge under Section 302 IPC in paragraph-4 of the judgment which is quoted herein : “To substantiate the charge, the prosecution has examined nine witnesses, out of whom P.W.1 is the Medical Officer, who had conducted the post-mortem examination, P.W.2 is the wife of the deceased, P.Ws.3 & 4 are the neighbours, who immediately came to the spot, hearing the cry of the deceased, P.W.5 is the son of the deceased, .W.6 & 7 are independent seizure witnesses, P.W.8-a police constable is also a seizure witness, and P.W.9 is the I.O. The accused has not examined any defence witness. Brief Narration of important witnesses 10. The statement of P.W.2 that has been relied upon by the learned trial court is reproduced herein for reference : “The deceased is my husband. I know the accused. The occurrence took place about three years back on a Friday at about 8.00 P.M. in the night. I was inside my house along with my husband. At that time the accused came to our house and called my husband ‘Samundhi-Samundhi’. My husband came out of the house, followed by me. Then the accused stabbed my husband on his chest, belly, thigh etc. by means of a knife and fled away from the spot. My husband cried ‘Pessi Saia (P.W.4), Busi Dela-Bogi Asso’. Hearing the shout of my husband Syama and Bolu (P.W.3) came to the spot. My husband fell down at the spot and died. Due to the stab blow in the belly the intestine had came out M.O.I is the knife used by the accused to stab my husband.” P.W.2 in his cross-examination has stated there is only one room in our house. Houses of Patu Miluku, Batu Damana, Batu Jambada and Singudi Langu situate near our house. There is no electricity nearby the spot of occurrence. Ours is Sundhi Sahi. The houses of Syama and Bolu is at a distance of 25 to 30 ft from my Page 7 of 25 // 8 // house. It is not a fact that I had not stated to the I.O. that I came to outside following my husband. The version of P.W.2 has been treated to be eyewitness account by the learned trial court to convict the appellant. 10.1 The evidence of P.W.3 relied upon by the learned trial court is reproduced herein : “I know the accused. I also know the deceased. My house is very close to the house of the deceased having a common court-yard. The occurrence took place on a Friday about two years and 6 months back, at about 8.00 P.M. in the night. By then I was in my house. Hearing the cry of deceased Sukra ‘Pesi Sania Churire Busi Deba-Asore Bulu’. I came running to that spot. Syama also came running there. His house is also near my house. I caught hold of the injured but he fell down and died. There was heavy bleeding from the injures on his chest belly. The intestine had come out. Syama went in search of the accused. Thereafter myself and Syama went to Pottangi P.S. and orally reported the incident to the police officer, which was reduced to writing.” P.W.3 in his cross-examination has stated the earlier case against the accused for assaulting him had been compromised. He has stated : “It is a fact that I had not stated to the I.O. that before two months of the incident the accused had been released from jail. I am of Tala Sahi. The house of Sukra is in Sundhi Sahi. Due to demarcation by the road there is Tala Sahi and Gundhi Sahi. There was no electric light in the house of the deceased. The house of the accused is in a different Sahi. In our house, my parents and my three children are residing. My house adjoins the house of Syama. The house of Batu Milku, Batu Jhabada and Singuda Lengu are near the house of the deceased. There are two salap trees in front of the house of the deceased. In Syama’s house his wife and one child are residing. We saw the accused while he was fleeing away from a distance of 10’ from us. I cannot say the wearing apparels of the accused or myself or Shyama at the relevant time. Two police came to the spot in the very night after I lodged report. I cannot say the details of the F.I.R. scribed by the police. The deceased is the cousin elder brother of my Page 8 of 25 // 9 // father. The other neighbours did not come to the spot immediately. It is not a fact that by the time of my arrival Sukra had already died. I did not see the accused giving the actual stab blow. It is not a fact that Syama did not chase the accused to trace out him. It is not a fact that I have not stated to the I.O. that Syama chased the accused to catch him. It is not a fact that the accused did not stab the deceased. 10.2 The evidence of P.W.4 relied upon by the learned trial court is reproduced herein : “I know the accused and the deceased. About three years back on a Friday at about 8.00 PM. In the night, I was at my house. Sukra raised halla ‘Sania Busila-Sania Busila’. Then I rushed near his house. Balu had first arrived there and thereafter I arrived. The wife of the deceased told there that Saia stabbed her husband. I went in search of the accused but could not get him. Then myself and Bolu went to the police station to report. I put my L.T.I in the report scribed by the police.” P.W.4 in cross-examination has stated the following : “I cannot say after how much time of the arrival of Balu I arrived at the spot. By the time of my arrival Sukra was already dead. There is no electric connection to my house or Balu’s house. It was dark night. I have only heard the deceased crying ‘Mari Galli’.” 10.3 Statement of P.W.5 relied upon by the prosecution which is quoted herein : “I know the accused. Deceased is my father. The occurrence took place on a Friday at about 8.00 P.M. about three years back. I was in my house. I heard my father crying ‘Pesi Sania Busi Dela’. Hearing this I came to outside and found that the accused was going away from the spot. My mother was catching hold of my father. Bolu and Syama (P.Ws.3 and 4 also came there). My father had bleeding injuries and he died at the spot.” In cross-examination P.W.5 has stated the following : Page 9 of 25 // 10 // “My mother came and called me and thereafter I went to the spot. There is no electricity nearby our houses. The witness volunteers-There was moon light. After my arrival, Syama and Balu came there.” 11. The evidence of the Investigating Officer P.W.9 discloses that he was the officer in charge of the Pottangi Police Station when the matter was reported i.e. on 21.7.2000, he reduced the oral statement into writing, conducted investigation, registered the P.S. Case. He proved the contents of the following exhibits and his signature on these exhibits : F.I.R. (Ext.7), The Inquest Report (Ext.4), Deadbody Challan (Ext.8), Seizure list (Ext.9), Spot Map (Ext.10). He has stated to have arrested accused on 23.7.2000. Forwarded him to court. He has not specifically stated regarding when he seized the weapon of offence, but has stated that the weapon of offence, knife was sent to the Medical Officer with a query (Ext.3/2 containing his signature Ext.3/3). He has further stated that the seized articles were sent to the Regional Forensic Science Laboratory, Berhampur through the S.D.J.M., Koraput under his forwarding letter Ext.12. The I.O. also proved the Chemical Examination Report (Ext.13). The knife was marked as M.O.I. In his cross-examination the I.O. has stated that I have not sealed M.O.I at the time of sending it to the Medical Officer, for his opinion. P.W.2 did not state before me that she followed her husband-the deceased to outside. P.W.3 has not stated before me that he chased the accused but stated that he searched for the accused with a torch light. In the F.I.R. the informant has not mentioned that he heard from the wife of the deceased that Sania stabbed her husband. P.W.4 had not stated before me that her mother was holding her father. I.O. has stated he has not mentioned in the case diary whether it was moonlit night or dark night. Knife like M.O.I is commonly available in the market. Page 10 of 25 // 11 // 12. This Court notes that the autopsy surgeon, P.W.1 proved the post-mortem report regarding provision of the knife stated to be the weapon of offence and in his cross-examination he has stated as follows : “I have not mentioned in the report as to who produced the knife before me. In the P.M. report I have not mentioned that the injuries was sufficient to cause death in ordinary course of nature. I have not mentioned that injury no.4 and 5 or any of the injury were sufficient to cause death in the ordinary course of nature. I did not notice blood stained on the nail clippings of the accused. I have not taken the signature of the accused in Ext.2. My report does not reveal blood stains in the knife. The knife was examined in presence of L/C 118 B.N. Dhalasmanta, but I have not taken his signature in the report Ext.3. Regarding the further steps taken by the autopsy surgeon, he in his cross examination has stated thus : “I have not drawn the blood group of the accused. I have not mentioned in the post-mortem report about the nature of the injuries whether those were simple or grievous because incised wounds are grievous in nature” 13. The chemical-examination report, which has been marked as Ext.13 reveals that only on the wearing apparels of the deceased, human blood of ‘O’ group was detected, no blood stain could be detected in the knife as it had deteriorated and similarly in the full shirt of the accused, human blood was detected but no grouping could be made as it had deteriorated. Brief Narration of important M.O. produced 14. From the chemical examination report Ext.13 it is apparent that the wearing apparel of the accused Exts. D & F were found not to contain any blood stain. The knife marked as E by the Chemical Examiner. No opinion was expressed regarding origin, group marks and regarding stain on the knife. The nail clippings of the Page 11 of 25 // 12 // accused marked as F by the chemical examiner were found by the chemical examiner not to contain any blood. Case law relied upon by the learned State Counsel 15. Since the learned trial court has given no finding as to whether the recovered weapon was used for committing the crime though it was produced as M.O.I., the learned Counsel for the State has relied on the judgment rendered by the Hon’ble Supreme Court in State through the Inspector of Police v. Laly @ Manikandan & another Etc. : 2022 SCC OnLine 1424. Paragraph-7 of the said judgment is reproduced herein : “7. The submission on behalf of the accused that as the original informant – Mahendran has not been examined and that the other independent witnesses have not been examined and that the recovery of the weapon has not been proved and that there is a serious doubt about the timing and place of the incident, the accused are to be acquitted cannot be accepted. Merely because the original complainant is not examined cannot be a ground to discard the deposition of PW1. As observed hereinabove, PW1 is the eye witness to the occurrence at both 9 the places. Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eye witness.” [Emphasis supplied] In the said decision rendered by the Hon’ble Supreme Court it has to be noticed that the conviction was based on the evidence of the eye witness therein i.e. P.W.1. 16. Learned State Counsel has also relied on the decision of the Hon’ble Supreme Court in Criminal Appeal No. 739 of 2017 Page 12 of 25 // 13 // decided on July 14, 2022 in the case of Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra : 2022 SCC OnLine SC 883; regarding appreciation of the evidence of an eye witness. At para-27 the Hon’ble Apex Court held that “27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching technical importance error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. to some Page 13 of 25 // 14 // the same witness) two witnesses or as between V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between two the evidence of statements of is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. the moment at the spur of the fear of looking the Page 14 of 25 // 15 // XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.”