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IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.99 of 2012 (An appeal U/S. 383 of the Code of Criminal Procedure, 1973 against the judgment passed by Shri A.C.Behera, Addl. Sessions Judge (FTC), Sundergarh in S.T. No.45/09 of 2012 corresponding to G.R. Case No. 303 of 2011, arising out of Bargaon PS Case No. 69 of 2011 of the Court of JMFC, Rajgangpur) Prasanna Kishan … Appellant State of Orissa -versus- … Respondent For Appellant For Respondent : Mr.S.S. Ray,Advocate : Mr.S.K. Nayak, AGA CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :05.10.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This appeal is directed against the judgment of conviction and order of sentence passed on 23.04.2012 by learned Additional Sessions Judge, Fast Track Court (FTC), Sundergarh in S.T. Case No. 45/09 of 2012 JCRLA No.99 of 2012 Page 1 of 15 convicting the Appellant for commission of offence punishable U/S. 302 of IPC and sentencing him to undergo imprisonment for life with payment of fine of Rs. 1,000/- in default whereof, to undergo rigorous imprisonment for a further period of three months. 2. Tersely stated, the prosecution case is that on 24.09.2011 in the morning, one Baisakhu Kishan (hereinafter referred to as the “deceased”) of village Salepali had been to village Lakhpada, but as he did not return to his house, on the next morning, his son namely PW1 Krushna Chandra Kishan unsuccessfully searched for him. In the course of such search, PW1 ascertained/heard from some boys of his village namely Akash Naik, Nabin Kumar Sahu(PW2) and Raja Khadia that the convict- Appellant had assaulted the deceased by means of a Budia(axe) and killed the deceased on the previous day i.e. on 24.09.2011 at Madhyabahal paddy field.After receipt of this news, PW1 and others rushed to Madhyabahal paddy field of village Salepali, and found JCRLA No.99 of 2012 Page 2 of 15 the dead body of deceased lying there with multiple injuries on his head. On this incident, on the same day i.e. 25.09.2011 at about 8:30am, PW 1, accordingly, lodged
Legal Reasoning
an FIR against the convict under Ext.1 before the IIC, Bargaon PS who registered the same vide Bargaon PS FIR No. 69 of 2011 for offence U/S. 302 of IPC and directed SI of Police-PW 7 N.K. Sahu to investigate the case. Accordingly, PW 7 examined PW 1 and other witnesses including eye witnesses and recorded their statement, dispatched the dead body to the hospital for Post Mortem examination after conducting inquest over the dead body under Ext.2 and, accordingly, PW 6 conducted Post Mortem over the dead body of the deceased. PW7 also seized sample earth, blood stained earth, one napkin of the deceased stained with blood from the spot and arrested the convict on the same day. Further, the convict while in police custody gave recovery of the weapon of offence i.e. an axe from a wooden heap on the back side of his house pursuant to his disclosure JCRLA No.99 of 2012 Page 3 of 15 statement recorded by PW7 vide Ext.4 and PW7 also seized the weapon of offence vide Ext.5. The incriminating materials including the weapon of offence were sent to RFSL, Sambalpur for chemical examination. As usual on completion of investigation, charge-sheet was submitted against the convict for commission of offence U/S. 302 of IPC. 3. On receipt of charge-sheet, cognizance was taken and the case was committed to the Court of Sessions after due committal procedure and the case was transferred to the learned Additional Sessions Judge, Fast Track Court (FTC), Sundergarh who proceeded with the trial after denial of the convict to the charge. This is how the convict was sent up for trial. 4. In support of the charge, the prosecution had examined all total 8 witnesses and relied upon documents under Exts. 1 to 16 as against no evidence whatsoever by the defence. Of the witnesses examined, PW1 is the son of the deceased-cum-Informant, whereas PW2 is an independent child eye witness to the occurrence, PW6 is JCRLA No.99 of 2012 Page 4 of 15 the Doctor who had conducted the Post Mortem Examination over the dead body of the deceased, PW7 and 8 are the two IOs (Investigating Officers). PW Nos. 3 to 5 are the witnesses to seizure. 5. In the course of trial, the plea of the convict was denial simplicitor and false implication as well as ignorant of the incident. 6. After appreciating the evidence upon hearing the parties, the learned trial Court convicted the Appellant by mainly relying upon the evidence of child eye witness (PW2) and sentenced the convict to the punishment indicated supra. 7.
Legal Reasoning
In the course of hearing of the appeal, Mr. S.S. Ray, learned counsel for the Appellant has submitted that although the learned trial Court has based the conviction solely on the testimony of child eye witness, but such over reliance on the evidence of the child witness without any corroboration from other witnesses, it would not be safe to convict the Appellant, especially when the prosecution has not examined the so called other child JCRLA No.99 of 2012 Page 5 of 15 eye witnesses to the occurrence namely Akash Nayak and Raja Khadia. It is further argued that there is glaring variance between ocular evidence and medical evidence regarding the nature of injuries sustained by the deceased and, therefore, there is grave and serious infirmity in the prosecution evidence which creates a grave doubt in the prosecution case with regard to participation of the Appellant in the commission of crime. On the aforesaid submissions, learned counsel for the Appellant has prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence. 8. On the other hand, Mr. S.K. Nayak, learned AGA has, however, submitted that there is no hard and fast rule that the evidence of child witness requires corroboration and once the evidence of child witness is found to be reliable and free from any biases or tutoring, the same can be relied upon to base conviction. Learned AGA has also pointed out that the evidence of PW2 is free from any biases and tutoring and there is hardly any JCRLA No.99 of 2012 Page 6 of 15 variance between ocular and medical evidence and, therefore, the learned trial Court has not committed any illegality in convicting the Appellant since the prosecution has established its case against the convict beyond all reasonable doubt. 9. After having duly considered the rival submissions vis-à-vis the impugned judgment, this Court now proceeds to scrutinize the evidence available on record to find out the sustainability of the impugned judgment in the light of the rival submissions. There appears no dispute about the homicidal death of the deceased, especially when the defence had not challenged it, but it claims that the medical evidence is at variance with the ocular evidence and it is, therefore, necessary to examine the medical evidence and ocular evidence of PW2 meticulously. In this case, the medical evidence as deposed to by PW6 disclosed inter-alia the injuries to the deceased as under:- External Injuries (i) Lacerated injury over scalp over parietal region of size 3"x 1" x 1/2". JCRLA No.99 of 2012 Page 7 of 15 (ii) Lacerated injury over frontal region of size 2" x 1" x 2". (iii) Lacerated injury on right side of face near mouth cavity of size 3" x 2" x 1/2". (iv) Lacerated injury near left ankle joint of size 2” X 1” X 2”. (v) Lacerated injury in front of left tibia of size 2”X1”X1”. No mark of ligature found. PW 6 had testified in his evidence as to cause of death of the deceased as “due to haemorrhage from injury to vital structure of brain and all the above injuries can cause the death of a person in ordinary course of nature”. It was the further evidence of PW 6 that he had given opinion to the query of the IO as to the possibility of the injuries detected on the deceased as “the injuries decribed in the PM report vide Ext. 9 were possible by the said weapon of offence (tangia) and the injuries are sufficient to cause of death a person in ordinary course of nature”. PW 6 had also proved such query report vide Ext.10 and his signature vide Ext. 10/1. Although the defence had elicited from the mouth of PW6 that the injuries found on the dead body of the deceased could have been caused by the effect of blunt side of the JCRLA No.99 of 2012 Page 8 of 15 weapon and the injuries could also be possible by any type of weapon having blunt surface other than the weapon sent for examination, but the death of the deceased due to assault by means of the weapon of offence had never been disputed by the defence and, therefore, the learned trial Court has not committed any illegality or perversity in opining on analysis of testimony of PW 6 that the deceased had suffered a homicidal death. 10. On coming back to the ocular evidence as to the involvement of the convict, it appears that PW 2 was a child eye witness to the occurrence, but before allowing PW No. 2 to depose in this case, the learned trial Court had opted the due procedure by putting relevant questions to test his competency in terms of Sec. 118 of Evidence Act and the learned trial Court had also certified after taking into consideration the answers given by PW 2 to question put to him before his evidence by appending the necessary certificate that PW 2 was competent to testify. PW 2 had inter alia testified in the Court by JCRLA No.99 of 2012 Page 9 of 15 deposing “we saw that accused Prasanna(convict) assaulted Baisakhu(deceased) during his sleeping condition by giving successive blows through the said Budia(axe) which he was holding and then he dragged Baisakhu (deceased) from the place of his sleeping to a little distance and threw him there and thereafter, he (convict) went away to his house by holding that axe” which was the main substratum of the occurrence. PW2 further deposed after seeing the same, he along with Akash and Raj went to their respective houses and on that day, they did not disclose about the incident before anybody and on the next day, he disclosed about the incident before Krushna(PW1) and such evidence of PW 2 is corroborated by PW 1. 11. Although the defence had availed to cross- examine PW 2, but nothing substantial was elicited from his mouth, nonetheless it was elicited from him which lends assurance to the prosecution case is “the accused was assaulting Baisakhu through the sharp side of Budia (axe). It was also elicited by the defence from PW 2 that JCRLA No.99 of 2012 Page 10 of 15 today he came to the Court with PW 1 who had not instructed anything to him in connection with this case. 12. On scrutiny of ocular and medical evidence, this Court does not find anything to consider that the same were at variance, since the weapon of offence which was an axe (budia) in this case may or may not be so sharp, nevertheless it can, however, cause lacerated injuries even by assaulting on its sharp side. It is also found from the testimony of PW1 that he heard from PW2, Akash Naik and Raja Khadia of their village that on the previous day i.e. on 24.09.2011, they had seen the convict assaulting the deceased by means of an axe(budia) and he along with other rushed to the spot and found the dead body of the deceased which was duly corroborated by the evidence of PW 2 who in his evidence had made it clear that on the next date, he disclosed about the incident before PW 1 and the same was not at all denied by the defence by giving any suggestion to PW Nos. 1 or 2. Law is also well settled that evidence has to be weighed, but not to be counted and a conviction may lie JCRLA No.99 of 2012 Page 11 of 15 on the solitary testimony of a witness without any corroboration, provided the evidence of such witness is reliable and truthful. Section 134 of the Indian Evidence Act also mandates that no particular number of witnesses in any case be required for the proof of any fact and, therefore, non-examination of other witnesses who are available cannot automatically lead to any inference that the prosecution case is false or incorrect. Besides, corroboration is not the rule of law in each and every case, but where the evidence would be ambiguous or hazy, the Court may seek corroboration to such testimony. Even otherwise, if the evidence of a solitary witness is trustworthy, believable and reliable, conviction can be based on such evidence. In this case, although the defence had taken the plea of non-examination of other eye witnesses Akash and Raja to be fatal to the prosecution case, but the defence had not been able to show any prejudice caused to the Appellant for non- examination of Akash and Raja, especially when the evidence of PW 2 is beyond reproach, truthful and JCRLA No.99 of 2012 Page 12 of 15 unimpeachable. It is also the discretion of the prosecution either to examine any particular witness or to decline any witness cited in the charge-sheet by taking into consideration whether such witness is reliable or unreliable, but it has certainly a duty to present truth before the Court by examining reliable witnesses. 13. A careful and meticulous analysis as well as scrutiny of evidence makes it very clear that the deceased did not return to the house after going to village Lakhpada and on the next date in early morning, on being searched by his son PW 1, the deceased was not found and in the morning PW 1 heard from PW 2 and others about convict assaulting and killing the deceased by means of Budia(axe) and, therefore, PW 1 lodged an FIR vide Ext. 1 immediately at about 8:30 am. The evidence of PW 1 and 2 corroborates each other in material particulars and the same is well supported by the medical evidence with regard to nature of injuries sustained by the deceased and it is, therefore, rightly held by the learned trial Court that the prosecution has JCRLA No.99 of 2012 Page 13 of 15 been established its case against the convict beyond all reasonable doubt for committing the murder of the deceased and, therefore, the conviction of the Appellant cannot be questioned. Besides, the defence has not been able to bring the act of the convict within any of the exception of Section 300 of IPC so as to bring the case for an offence U/S. 304 of IPC inasmuch as the convict had brought the weapon of offence from his house and assaulted the deceased by giving successive blows with such weapon of offence axe, when the deceased was sleeping on the ridge at Madhyabahal paddy field and after assaulting the deceased, the convict dragged him to a little distance and threw him there. 14. In the ultimate appraisal of totality of evidence on record, this Court does not find the learned trial Court to have committed any illegality or perversity in convicting the appellant for committing the murder of the deceased and sentencing him to the punishment indicated supra which calls for no interference in this appeal. JCRLA No.99 of 2012 Page 14 of 15 15. In the result, the appeal stands dismissed. Consequently, the judgment of conviction and order of sentence passed on 23.04.2012 by learned Additional Sessions Judge, Fast Track Court (FTC), Sundergarh in S.T. Case No. 45/09 of 2012 are hereby confirmed. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 05-Dec-2023 18:02:11 JCRLA No.99 of 2012 Page 15 of 15