Criminal Appeal No. 24 of 2017 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JAIL CRIMINAL APPEAL No.24 of 2017 (From the judgment dated 25th November, 2016 passed by the learned Additional Sessions Judge, Jharsuguda in Sessions Trial No.53 of 2013) Manglu Khadia …. Appellant -versus- State of Orissa …. Respondent Advocate(s) appeared in this case:- For Appellant : Mr. S.N. Mishra-4, Advocate For Respondent
Legal Reasoning
: Mr. D.K. Mishra, Additional Government Advocate CORAM: JUSTICE B.P. ROUTRAY JUSTICE CHITTARANJAN DASH JUDGMENT 14th September, 2023 B.P. Routray, J. 1. Heard Mr. S.N. Mishra-4, learned counsel for the Appellant and Mr. D.K. Mishra, learned Additional Government Advocate for the State-Respondent. 2. The sole Appellant, namely, Manglu Khadia has been convicted for commission of offence under Section 302 of the Indian Penal Code and sentenced for life imprisonment along with fine of Rs.10,000/- by the learned Additional Sessions Judge, Jharsuguda in Sessions Trial No.53 of 2013. JCRLA No24 of 2017 Page 1 of 7 3. The prosecution case in brief is that, informant-Kedar Sahu (PW-2) is the father of the deceased -- Gokul Sahu. On 17.06.213 at around 8:00 PM, while the informant was at Bhikampali Chowk, he received a telephonic message regarding injury to his younger son, the deceased, that he is lying on the road near Pujharipali U.P. School with bleeding injuries. Immediately, the informant along with P.W.1 and 3 proceeded to the spot and found the deceased lying there on the road with severe bleeding condition. There was a bleeding wound on the left thigh of the deceased. Being asked, the deceased narrated that while he had been to the house of the Appellant to call labourers for their tractor, the Appellant shot an arrow being concealed him behind a tree, which pierced in his thigh resulting the injuries. The informant and other witnesses immediately brought the deceased to their house and arranged to shift him to medical. But the deceased succumbed before being shifted to the hospital. The FIR (Ext.1) was lodged by P.W.2. The investigation commenced. The I.O. (P.W.19) arrested the Appellant and recovered the bow and arrow, seized them under Ext.11, the seizure list. The charge-sheet was submitted ultimately. 4. 5. The Appellant pleaded innocence and false implication. Prosecution examined 20 witnesses to support their case, while defence did not adduce any evidence. P.W.1, 2 and 3 are the post occurrence witnesses before whom the deceased made his oral dying declaration. P.W.2 is the father of the deceased and P.W.3 is the brother of the deceased. Similarly, P.W.12 is the mother of the deceased before whom the deceased also narrated about his cause of death. P.W.13 is the cousin brother, who was also stated that the JCRLA No24 of 2017 Page 2 of 7 deceased made his statement stating that the Appellant shot the arrow to kill him. P.W.4, 5, 7, 9 & 15 are the seizure witnesses and P.W.19 and 20 are the Investigating Officers. P.W.19 has done major part of investigation and P.W.20 submitted the charge-sheet. 6. Besides oral evidence, prosecution adduced 17 documents marked as Exts.1 to 17. 7. The point falls for determination is, whether the Appellant committed murder of the deceased by shooting the arrow on 17.06.2013 ? 8. The homicidal nature of death of the deceased is well stated by the post-mortem examination doctor, P.W.6. According to P.W.6, the deceased sustained one stab wound of size 8 mm x 2 mm x 4 mm present on the anterior part of groin, 13 cm below and 4 cm medial from anterior superior iliac of left thigh. There was large blood clot haematoma in the whole of the anterior medial and lateral aspect of upper 2/3rd of the left thigh, large vessels and femural artery was cut without any muscle injury. In the opinion of P.W.6, the cause of death is homicidal resulting from shock following severe hemorrhage and bleeding from cutting of large vessel. It is further opined by P.W.6 that the injury was ante mortem in nature and has been caused by sharp piercing object. The post-mortem report was proved in Ext.6. No substantial answer could be elicited in cross-examination of P.W.6 to disbelieve his opinion on the cause of death and nature of death. The evidence of P.W.6 coupled with evidence of other witnesses and circumstances thus definitely suggest his homicidal nature of death. JCRLA No24 of 2017 Page 3 of 7 9. So far as the complicity of the Appellant is concerned, it is true that no one has seen the incident. The circumstance that appears against the Appellant is the oral dying declaration made by deceased before the witnesses. It is the consistent evidence of P.W.1, 2, 3, 11, 12 and 13 that, the deceased being asked has stated that while he had been to the house of the Appellant, he was assaulted by the Appellant by shooting the arrow. This part of evidence of these witnesses are not rebutted in any manner. The statements of witnesses regarding the same are also finding corroborating each other. The law on acceptance of oral dying declaration is no more res integra. It is settled that the sanctity of presumption attached to the dying declaration is justified in two folds, first, it is ethically presumed that a person while at the brink of his death will not lie and secondly, from the prospective public policy, it is to tackle a situation where the only witnesses to the crime is not available. 10. In Laxman vs. State of Maharastra, (2002) 6 SCC 710, it is observed that; “The juristic theory regarding the acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, should always be on guard to see that the statement of the JCRLA No24 of 2017 Page 4 of 7 deceased was not as a result of either tutoring or prompting or a product of imagination.” 11. Further, the question on credibility of such declaration depends on its degree to which it is entitled to be accepted in circumstances of the case. In the instant case, what is seen that it is natural on the part of the father, brother and other relatives of the deceased to reach at the deceased at the first instance. P.W.1, 2, 3 and others when reached near the deceased upon receipt of information over phone regarding his bleeding condition, the deceased narrated the incident before them how the Appellant shot the arrow to him. It is not that, the injury was inflicted on such comparatively vital organ that could have disabled him from speaking anything instantly. The circumstances reveal that he was lying on the road in bleeding condition and rescued by his relatives to his house, and while arranging to shift him to medical, he succumbed to the injuries. Thus upon close analysis of the circumstances, nothing remains suspicious to disbelieve or doubt on the statement made by the deceased before the witnesses. Therefore, what is narrated by all such witnesses regarding the oral statement of the deceased narrated towards his cause of death is found completely believable. In Prakash and another vrs. State of Madhya Pradesh, (1992) 4 SCC 225, the Supreme Court has observed as follows:- “In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody’s case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case, the High JCRLA No24 of 2017 Page 5 of 7 Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with.” 12. It is not a case that substantial time was elapsed or the deceased was in such state of bodily injury that did make him unable to speak or he was not in a fit state of mind. The categorical statement made by the witnesses, these P.W.1, 2, 3, 11, 12 and 13 that, upon their inquiry, the deceased told about the assailant and the manner of assault. Such evidence of witnesses, also supported by the recovery of bow and arrow as per the seizure list under Ext.11, is found unassailable from defence’s point of view. The Post-mortem examination report also corroborating the nature of injury resulting from arrow shot. Therefore, nothing is found to doubt the credibility of statements of those witnesses about the oral dying declaration made by the deceased and as such, safe reliance can be very well be reposed on them to implicate the Appellant as the assailant of the deceased causing such bodily injury on him resulting his death. Thus, upon analysis of the evidences on its entirety, the conclusion of the trial court is confirmed to the effect that the Appellant was the assailant who inflicted the injury on the deceased causing his death. The next question comes that, whether the Appellant had the intention to kill the deceased and had he such knowledge to cause death of the deceased ? Here in the instant case, there is one single arrow shot injury which is on the left thigh of the deceased. It is not that the arrow shot at the chest or any vital organ in the upper limb of the body. Taking into account the circumstances where one injury was inflicted by shot of arrow on a lesser important organ of the body, and the circumstances of the occurrence in entirety, in our opinion, the JCRLA No24 of 2017 Page 6 of 7 assault can be turned as an offence of culpable homicide not amounting to murder. Accordingly, turning the offence punishable under Part-I of Section 304 of IPC and keeping in view the period of custody of the Appellant since 18.06.2013, he is sentenced for the period already
Decision
undergone. As such, the Appeal is allowed in part and it is directed to release the Appellant from custody forthwith, in the event his detention is not required in any other case. The seized articles shall be destroyed. 13. The appeal is disposed of. (B.P. Routray) Judge (Chittaranjan Dash) Judge AKPradhan/BKSahoo Signature Not Verified Digitally Signed Signed by: ANANTA KUMAR PRADHAN Designation: SR. STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA Date: 18-Sep-2023 19:00:06 JCRLA No24 of 2017 Page 7 of 7