The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRLA No.159 of 2016 An appeal under section 374 Cr.P.C. from the judgment and order dated 29.02.2016 passed by the Sessions Judge, Mayurbhanj, Baripada in Sessions Case No.168 of 2011. ------------------------- Nabakishore Naik ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - For Respondent: - Mr. Lalitendu Bhuyan Advocate Mr. Arupananda Das Addl. Govt. Advocate ------------------------- 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: 13.08.2024 --------------------------------------------------------------------------------------- -------------------------------- By the Bench: The appellant Nabakishore Naik faced trial in the Court of learned Sessions Judge, Mayurbhanj, Baripada in Sessions Case No.168 of 2011 for commission of offence punishable under section 302 of the Indian Penal Code CRLA No.159 of 2016 Page 1 of 28 (hereinafter „I.P.C.‟) on the accusation that on 27.04.2011 at about 8.00 p.m. at village Halpur, he committed murder of one Kunu Naik (hereinafter „the deceased‟) by intentionally causing his death. The learned trial Court vide impugned judgment and order dated 29.02.2016 found the appellant guilty under the offence charged and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- (rupees ten thousand), in default of payment of fine, to suffer further R.I. for a period of six months. Prosecution Case: 2. The prosecution case, as per the first information report (hereinafter „F.I.R.‟) (Ext.1) lodged by Biswambar Naik (P.W.1) before P.W.13 Sachidananda Giri, the A.S.I. of police, Chadheibhol outpost on 27.04.2011, in short, is that in the evening hours on that day at about 8 o‟ clock, while he was engaged in kirtan in the prayer hall of the village, at that point of time, the appellant came there with an amputated hand of someone. Seeing the appellant in such condition, all the persons present there became panic and asked the appellant as to what he had done, to which he replied that since the deceased was quarrelling with him, he had cut his hand and was going to the CRLA No.159 of 2016 Page 2 of 28 outpost. He showed them the cut hand with the focus of torch light. Then the informant (P.W.1) along with Harihar Naik (P.W.2) rushed to the house of the deceased and found that the deceased was lying with bleeding injuries. P.W.1 gave some water to the deceased to drink but after some time, he died. On the basis of such written report presented by P.W.1, P.W.13 made station diary entry no.384 dated 27.04.2011 in the outpost and took up preliminary investigation of the case after sending the written report to the I.I.C., Karanjia police station for registration and accordingly, Karanjia P.S. Case No.72 dated 27.04.2011 was registered under section 302 of the I.P.C. against the appellant. P.W.13 visited the spot and found the deceased lying on the verandah of his house with the left hand cut from the elbow portion. While at spot, a constable from the outpost informed P.W.13 over phone that one person had come to the outpost with a cut hand and Parsuram tangia. P.W.14 Ramesh Chandra Parida, the Inspector in- charge of Karanjia police station after registering the F.I.R. on the basis of written report of P.W.1 sent by P.W.13, took up investigation of the case. He examined the informant (P.W.1), visited the spot on that night and directed the staff to guard the dead body and he also reached at Chadheibhol outpost where he CRLA No.159 of 2016 Page 3 of 28 examined the appellant and seized one Parsuram tangia having blood stains on being produced by the appellant as per the seizure list Ext.2. He asked the staff to guard the cut hand of the deceased, which was kept by the appellant at the outpost till the inquest. The wearing apparels of the appellant were seized under seizure list Ext.11. The I.O. (P.W.14) again visited the spot in the early morning at 6.30 a.m. and prepared the spot map vide Ext.12, took the photograph of the dead body of the deceased without cut hand, prepared the inquest report vide Ext.6. Then he held inquest over the cut hand of the deceased at Chadheibhol outpost and prepared the inquest report vide Ext.4. Then he again came to the spot with the cut hand and held inquest over the dead body of the deceased along with the cut hand and prepared the inquest report vide Ext.7. The dead body was sent for post mortem examination. Sample earth and blood stained earth were collected from the spot and the I.O. seized the same as per the seizure list vide Ext.3. The appellant was sent for medical examination to S.D.H., Karanjia and then he was forwarded to Court. The constable produced the blood sample of the appellant taken during the course of his medical examination which was seized as per seizure list Ext.15 and the wearing apparels of the deceased with blood sample were also CRLA No.159 of 2016 Page 4 of 28 seized as per seizure list Ext.16. The I.O. received the post mortem examination report and seized the station diary of Chadheibhol outpost as per the seizure list Ext.9. On 23.06.2011, he sent the exhibits to R.F.S.L., Balasore through S.D.J.M., Karanjia for chemical analysis and received the Chemical Examination Report vide Ext.18. On completion of investigation, he submitted charge sheet on 22.08.2011 under section 302 of the I.P.C. against the appellant. Framing of Charge: 3. After submission of charge sheet, the case was committed to the Court of Session after complying due formalities. The learned trial Court framed charge against the appellant as aforesaid and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Prosecution Witnesses, Exhibits and Material Objects: 4. During the course of trial, in order to prove its case, the prosecution has examined as many as fourteen witnesses. P.W.1 Biswambar Naik is the informant in this case. He stated that at about 08.30 p.m. on the date of occurrence, the appellant came to „Kirtan Ghara‟ with the amputated hand of CRLA No.159 of 2016 Page 5 of 28 the deceased and informed that he was proceeding to the police station. Upon hearing the same, he along with others went to the house of the deceased where they found the deceased lying dead at the entrance of his house with cut injury on his person and one of his hands was amputated. P.W.2 Harihar Naik stated that upon being called by P.W.1, he went to the house of the deceased where he found the deceased lying dead in front of his house and his left hand was amputated. P.W.3 Sashikanta Karua was working as the Grama Rakhi under Chadheibhol outpost. He is a witness to the seizure of one blood stained tangia (M.O.I) as per seizure list Ext.2 from the possession of the appellant. P.W.4 Sushil Chandra Naik stated that at about 07.30 p.m. on the date of occurrence, the appellant came with a cut hand and a torch light to the „kirtan mandap‟. He further stated that the appellant confessed to have killed the deceased and he also informed them that he was proceeding to Chadheibhol outpost with the cut hand of the deceased. P.W.5 Jharana Naik is the daughter-in-law of the deceased. She stated that she was not present at the spot of occurrence when the incident took place and she came to know CRLA No.159 of 2016 Page 6 of 28 that the appellant had killed the deceased. She is a witness to the seizure of blood stained earth and sample earth as per seizure list Ext.3. P.W.6 Anil Kumar Sethi was working as a constable in the Chadheibhol outpost. He stated that on the date of occurrence, the appellant came to the outpost with cut hand and tangia. He further stated that the appellant confessed to have killed the deceased as he chastised him as “bahurakha, bahuchoda”. He is also a witness to the preparation of the inquest report vide Ext.4. P.W.7 Dr. Manjurani Singh was working as the Assistant Surgeon at the Sub-Divisional Hospital, Karanjia. On police requisition, she medically examined the appellant and prepared her report vide Ext.5. P.W.8 Kathia Naik did not support the prosecution case and was declared hostile. P.W.9 Laxmi Giri is the daughter of the deceased. She stated that upon getting information that the appellant had killed the deceased, she came to the spot of occurrence and saw that the deceased had sustained injury on his hand for which she became senseless. She is also a witness to the preparation of the CRLA No.159 of 2016 Page 7 of 28 inquest reports vide Exts.6 and 7 and seizure of sample earth and blood stained earth as per seizure list Ext.3. P.W.10 Sapana Naik is the daughter of the deceased. She stated that the appellant was having relationship with P.W.5 and as the deceased protested to the same, the appellant committed murder of the deceased. P.W.11 Dr. Manas Ranjan Dandapat was working as the Gynecology Specialist at Sub-Divisional Hospital, Karanjia. On police requisition, he conducted post mortem examination over the dead body of the deceased and proved his report vide Ext.8. P.W.12 Arun Kumar Parida was working as a constable at Chadheibhol outpost. He is a witness to the seizure of one station diary entry of the outpost as per seizure list Ext.9. P.W.13 Sachidananda Giri was working as the Assistant Sub-Inspector of police at Chadheibhol outpost and he was the preliminary investigating officer of the case. P.W.14 Ramesh Chandra Parida is the Inspector-in- Charge of Karanjia police station and he is the investigating officer of this case who upon completion of investigation, submitted charge sheet against the appellant. CRLA No.159 of 2016 Page 8 of 28 The prosecution exhibited eighteen documents. Ext.1 is the F.I.R., Exts.2, 3, 9, 11, 15 and 16 are the seizure lists, Exts.4, 6 and 7 are the inquest reports, Ext.5 is the injury report of the appellant, Ext.8 is the post mortem report, Ext.10 is the zimanama, Ext.12 is the spot map, Ext.13 is photograph of the deceased, Ext.14 is the dead body challan, Ext.17 is office copy of the forwarding report of exhibits and Ext.18 is the chemical examination report. The prosecution also produced one Parsuram tangia as M.O.I. Defence Plea: 5. The defence plea of the appellant was one of denial and it was further pleaded that on account of conspiracy, he has been falsely implicated in the case. He was the ward member of the village and whatever works he received for execution, he was asked to handover those works to others but since he did not hand over, out of anger and animosity, he has been falsely implicated the case.
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 there is no dispute regarding the cause of death of the deceased, i.e. CRLA No.159 of 2016 Page 9 of 28 due to haemorrhage and shock due to bleeding, which is homicidal. The learned trial Court assessed the extra judicial confession of the appellant before P.W.4 and constable of Chadheibhol police outpost (P.W.6) and though it did not accept the confession made before the police constable (P.W.6) on the ground that it is not admissible in view of the bar under section 25 of the Evidence Act, the confession made before P.W.4, who is an independent witness was accepted and the appellant was found guilty under section 302 of the I.P.C. Contentions of the Parties: 7.
Legal Reasoning
extra judicial confession before him. Therefore, we find that the evidence of P.W.4 is believable and the learned trial Court has rightly placed reliance on the evidence of P.W.4. The evidence of P.W.6, so far as the confessional part of the appellant is concerned, has rightly not been believed by the learned trial Court in view of the bar under section 25 of the Evidence Act, however the conduct of the appellant in producing the cut hand CRLA No.159 of 2016 Page 16 of 28 with a blood stained tangia before P.W.6 is a fact which corroborates the evidence of P.W.1 and P.W.4, who had seen the appellant going with a cut hand to the outpost. Section 8 of the Evidence Act makes the conduct of an accused relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. It could be either previous or subsequent conduct. The conduct, in order to be admissible, must be such that it has close nexus with a fact in issue or relevant fact. The conduct of the appellant in producing the amputated hand of the deceased along with Parsuram tangia in Chadheibhol outpost before P.W.6 is not only relevant under section 8 of the Evidence Act but is also one of the major circumstances to arrive at a conclusion about his guilt. The appellant has not given any explanation on this aspect in the accused statement. Moreover, the evidence of the doctor (P.W.11) also corroborates the evidence relating to the extra judicial confession and it has also been proved through the evidence of the doctor that the cut hand which the appellant was holding when he was seen by P.W.1 and P.W.4 and also produced before the constable (P.W.6) was that of the deceased. The weapon which was produced before the doctor after its seizure by the I.O. from the appellant was also examined and the doctor has CRLA No.159 of 2016 Page 17 of 28 specifically stated that the injury found on the body of the deceased could be caused by the weapon (M.O.I) which also corroborates the extra judicial confession made by the appellant before P.W.4 that he had killed the deceased. Therefore, the learned trial Court has rightly placed reliance on the extra judicial confession evidence. Motive: 10. The evidence of P.W.10, who is the daughter of the deceased indicates the motive behind the commission of crime inasmuch as P.W.10 has stated that the appellant was having illicit relationship with the wife of his (P.W.10‟s) brother who was dead and when her father (the deceased) protested, the appellant killed the deceased. Learned counsel for the appellant drew our attention to the contradiction, which has been proved through the I.O. (P.W.14) by confronting the previous statement that P.W.10 has not stated before him that her sister-in-law was having illicit relationship with the appellant. P.W.5 is the sister- in-law of P.W.10 and she has stated that after death of her husband, she was staying in her parental home and she used to visit the house of the appellant when she was coming to Chitraposi Panchayat Office. The deceased perhaps was suspecting the illicit relationship between the appellant and CRLA No.159 of 2016 Page 18 of 28 P.W.5, her deceased son‟s wife and according to the prosecution case, when he protested, the occurrence in question took place. Thus, motive behind the commission of crime has been established. On the basis of extra judicial confession, the conduct of the appellant in producing the cut hand with the tangia (M.O.I) in the outpost, which is relevant under section 8 of the Evidence Act and the findings arrived by P.W.11 in the post mortem report (Ext.8), we are of the humble view that the appellant is the author of the crime and he has caused the injury to the hand of the deceased which ultimately resulted in the death of the deceased. Whether the appellant is guilty for commission of murder or culpable homicide not amounting to murder?: 11. Now the question crops up for consideration as to whether the act of the appellant would come within the ambit of section 302 or 304 of the I.P.C. In this connection, the decision cited by the learned counsel for the appellant in the case of Ganesan(supra) is relevant. In the said case, the first accused cut the right hand of the deceased with aruval and that right hand was severed at the level of lower 1/3rd and then the first accused cut the deceased CRLA No.159 of 2016 Page 19 of 28 with aruval on his left hand. The second accused thereafter assaulted the deceased with an iron pipe which resulted in fracture injury on the left thigh. The doctor, who conducted post mortem examination, noticed that the right upper limb was amputated at the level of lower 1/3rd of arm and amputated upper limb was seen separately with cut injury and the doctor opined that the death was due to shock on account of blood loss due to injury on the right upper limb. After considering the ratio laid down by the Hon‟ble Supreme Court in the case of Jai Prakash -Vrs.- State of Delhi Administration reported in (1991) 2 Supreme Court Cases 32, the Division Bench of the Madras High Court, while holding the appellant to be guilty under section 304 part-II of the I.P.C., observed as follows: “37. The learned Additional Public Prosecutor would, however, contend that the injury to the right hand, severing the forearm, is sufficient, in the ordinary course of nature, to cause the death. We are unable to agree with the said argument advanced by the learned Additional Public Prosecutor. In our considered view, the said injuries on the deceased were neither sufficient to cause death in terms of the third limb of section 300 I.P.C. nor was it likely to cause death in terms of the second limb of section 299 I.P.C. Our reasons are as follows: CRLA No.159 of 2016 Page 20 of 28 here, “sufficient to cause death” means more than a mere likelihood of the death being caused. In other words, it is almost a certainty. Likely to cause the death means, not a mere possibility. The word, „likely‟ conveys the sense of „probability‟. Probable means, something more than mere possibility. When chances of death are more than that of survival, one may say that the death is a probability. Where chances of death and survival are equally possible, one may say that the death is a possibility, but not a probability. In this regard, we may say that it is possible that the death may result when the forearm is amputated. But, chances for survival are more than the chance for death. Thus, the death is neither certain, nor probable, but only possible. In the instant case, P.W.5, the Doctor Ayyanar, who conducted autopsy on the body of the deceased, has not opined that the injuries found on the deceased were either sufficient to cause the death or likely to cause death of the deceased. Therefore, we are forced to hold that the injuries found on the deceased are neither sufficient to cause the death in the ordinary course of nature nor likely to cause death. xxx xxx xxx 42. A close reading of these two provisions would make it manifestly clear that - CRLA No.159 of 2016 Page 21 of 28 (i) if the act of the accused is a culpable homicide, not amounting to murder, falling within the first or second limb of section 299 of the Code, then, the offender is punishable under section 304 (I) of the Code. (ii) If the act of the accused is culpable homicide, not amounting to murder, falling within the third limb of section 299 of the Code, then, the offender is punishable under section 304 (II) of the Code. (iii) Similarly, if the act of the accused falls within the ambit of first, second or third limb of section 300 of the Code, and if the same falls under any one of the special Exceptions to section 300 of the Code, the act of the accused is only a culpable homicide not amounting to murder punishable under section 304 (I) of the Code. (iv) If the act of the accused falls within the fourth limb of section 300 of the Code and if any one of the special Exceptions to section 300 of the Code is attracted, the said act is only a culpable homicide, not amounting to murder, which is punishable under section 304 (II) of the Code. 43. In the instant case, we have already concluded that the act of the accused falls within the ambit of third limb of section 299 of the CRLA No.159 of 2016 Page 22 of 28 Code, and therefore, he is liable to be punished under section 304 (II) of the Code.” In the case of Chandrika and another -Vrs.- State of Uttar Pradesh reported in (1954) 2 Supreme Court Cases 334, the assailant chopped off the left forearm and not the main upper arm of the deceased and the question came up for consideration as to whether it would attract the ingredients of the offence under section 302 of the I.P.C. or any other offence. The Hon‟ble Supreme Court placed reliance in the case of Kra Chan U -Vrs.- King Emperor reported in A.I.R. 1923 Rang 247 and Public Prosecutor -Vrs.- Ramaswami Nadar reported in A.I.R. 1940 Mad 745 and came to hold as follows: “10. Relying upon these cases, it was urged before us that in the present case also Chandrika when he chopped off the left forearm of the deceased must have known that he would be causing arterial bleeding and the injury which he was inflicting was an injury which in the ordinary course of nature was sufficient to cause death thus bringing the offence committed by him within Section 302 of the Penal Code. In order to bring the offence committed by the appellants within Section 302 of the Penal Code, it is necessary to establish that the injury was inflicted with the intention of causing bodily CRLA No.159 of 2016 Page 23 of 28 injury sufficient in the ordinary course of nature to cause death and unless and until that intention is brought home to the accused, the case would not fall under Section 300 (thirdly) of the Penal Code. The requisite knowledge also would be essential in order to arrive at the conclusion in regard to the intention of the person inflicting the injury. Every chopping off of a limb would not necessarily result in arterial bleeding and the ultimate death of the deceased. It all depends on the circumstances of each case and no general proposition can be enunciated that every chopping off of a limb even though it may not be a vital part of the body would necessarily result in death or would be sufficient in the ordinary course of nature to cause death. The doctor who performed the post-mortem examination of the dead body was examined and no question was put to him as to whether the injury inflicted by the appellants on the deceased by chopping off of his left forearm in the manner in which it was done was sufficient in the ordinary course of nature to cause death. The only relevant answer in this connection which is to be found in the evidence of the doctor was that two medium sized arteries of the forearm were cut and it was a case of arterial bleeding which is a dangerous bleeding. It is difficult from this evidence to come to the conclusion that the injury inflicted by reason of CRLA No.159 of 2016 Page 24 of 28 the amputation of the left forearm of the deceased was an injury sufficient in the ordinary course of nature to cause death. It might as well have been an injury which was likely to cause the death of the deceased thus bringing the offence committed by the appellants within Section 304 (I) of the Penal Code. 11. We are therefore of the opinion that under the circumstances of this case, the conviction of the appellants under Section 302 read with Section 34 of the Penal Code cannot be sustained. The appellants were guilty of the offence under Section 304 Part I read with Section 34 of the Penal Code and they should have been convicted of that offence.” (Emphasis supplied) In the case in hand, though on the basis of available materials on record, we have already held that the appellant caused the injury to the hand of the deceased as a result of which the hand was amputated and the doctor (P.W.11) has also opined that the cause of death of the deceased was due to haemorrhage and shock due to bleeding, but since there is no opinion that the bodily injury caused to the deceased was sufficient in the ordinary course of nature to cause death, we are of the view that the act has been done with the intention of causing such bodily injury as he knew to be likely to cause the CRLA No.159 of 2016 Page 25 of 28 death of the deceased which comes under clause secondly of section 300 of I.P.C., however it appears that the deceased caused provocation to the appellant in suspecting the illicit relationship between his daughter-in-law (P.W.5) with the appellant since she was staying in the house of the appellant whenever she was coming to Chitraposi Panchayat and the deceased protested to the appellant, which might have been the reason on the part of the appellant to have been deprived of the power of self-control by such provocation, cutting the hand of the deceased which ultimately resulted in his death, therefore, it would attract Exception I to section 300 of I.P.C. To decide the question of provocation, an objective test has to be applied as to whether in the opinion of the Court, the provocation would have made a reasonable man lose his self-control, whether he would have retaliated in the same way as the accused in fact did, which requires affirmative answers. Whether the provocation was such as to deprive the accused of his self-control, the condition of the mind of the accused at the time of provocation is required to be taken into consideration. A reasonable man is likely to lose his self-control when he is suspected of having illicit relationship with a lady and aspersions are casted on him. It is said, “weak people revenge. Strong people forgive. Intelligent people CRLA No.159 of 2016 Page 26 of 28 ignore.” Keeping in view the background of the case, the apparent reason for which the occurrence seems to have taken place, the weapon used by the appellant and the part of the body on which the assault was made and further taking into account the opinion given by the doctor (P.W.11), we are of the view that the case would not come with the purview of section 302 of the I.P.C. and it would come within the ambit of culpable homicide not amounting to murder and fall within the first part of section 304 of the I.P.C. Conclusion: 12. In view of the foregoing discussions, the conviction of the appellant under section 302 of the Indian Penal Code cannot be sustained. The conviction of the appellant is altered from section 302 of the I.P.C. to one under section 304 Part-I of the I.P.C. and the appellant is sentenced to undergo R.I. for ten years for such offence. It appears from the record that the appellant was taken into judicial custody in connection with this case on 28.04.2011. He was neither released on bail in the trial Court nor he was granted bail by this Court during pendency of the Criminal Appeal and thus, he has already undergone the substantive sentence which has been imposed by us. Therefore, CRLA No.159 of 2016 Page 27 of 28 the appellant be set at liberty forthwith, if his detention is not required in any other case.
Arguments
Mr. Lalitendu Bhuyan, learned counsel appearing for the appellant argued that there are no eye witnesses to the occurrence and the case is based on circumstantial evidence. The main circumstance against the appellant is the extra judicial confession stated to have been made before P.W.4, which is a very weak piece of evidence and when there is no corroboration to the same even though it was made to P.W.4 in presence of others, therefore, the learned trial Court should not have placed reliance on such evidence. The learned counsel further argued that the hand of the deceased is stated to have been amputated due to the assault by the tangia (M.O.I) but since the doctor (P.W.11) has not opined that the injury was sufficient in ordinary CRLA No.159 of 2016 Page 10 of 28 course of nature to cause death, hence the ingredients of the offence under section 302 of the I.P.C. would not be attracted. To substantiate his arguments, he placed reliance on the Division Bench decision of Madras High Court in the case of Ganesan -Vrs.- State reported in 2012 SCC OnLine Mad 4502. Mr. Arupananda Das, learned Additional Government Advocate, on the other hand, supported the impugned judgment and submitted that the evidence of P.W.4 is very clear and he has stated the manner in which the appellant came with a cut hand and confessed before him to have killed the deceased and he also stated about the appellant going to Chadheibhol outpost with the cut hand of the deceased. It is argued that the appellant produced the cut hand with the Parsuram tangia before P.W.6, the constable at the outpost and even though the learned trial Court has not placed reliance on the extra-judicial confession made before P.W.6 but the evidence of P.W.4 coupled with the evidence of the doctor (P.W.11) would indicate that the cut hand was that of the deceased and the doctor has specifically stated that the cause of death was due to haemorrhage and shock and the weapon of offence which was seized from the possession of the appellant was produced before the doctor (P.W.11), who on examining the same opined that the injury found on the body of CRLA No.159 of 2016 Page 11 of 28 the deceased could have been caused by such weapon and therefore, the learned trial Court is quite justified in holding the appellant guilty under section 302 of the I.P.C. He further argued that P.W.10 Sapana Naik, who is the daughter of the deceased, has stated that the appellant was having illicit relationship with her sister-in-law and it was protested by the deceased and thus being enraged by such opposition, he committed murder of the deceased. According to the learned counsel for the State, the motive behind the commission of the crime is apparent. Whether the deceased met with a homicidal death?: 8. Adverting to the contentions raised by the learned counsel for the respective parties, let us first examine as to whether the prosecution has successfully established the case to be homicidal death or not. P.W.11 conducted the post mortem examination over the dead body of the deceased on 28.04.2011 and noticed the following injuries: (i) Rigor mortis was present. Left hand was cut 1” below the elbow. In the cut area, the humerus bone was exposed both epicondyle and avulsion upper end of radius and ulna and muscle of upper limb. CRLA No.159 of 2016 Page 12 of 28 (ii) Upper circumference of left upper limb 10 inch length 14 inch, the age of injury was within 24 hours from the time of his examination i.e. 1.00 p.m. on 28.04.2011. The injury was ante mortem in nature. P.W.11 has opined the cause of death of the deceased to be haemorrhage and shock due to bleeding. In the cross-examination, the learned defence counsel has brought that the circumference of the cut hand was same as the circumference of the cut end of the hand attached to the dead body and the weapon of offence was not sealed when it was produced for his examination. Thus, nothing has been brought out in the cross-examination to demolish the evidence of the doctor and we are of the view that the learned trial Court has rightly placed reliance on the evidence of the doctor. Considering the three inquest reports under Exts.4, Ext.6 and Ext.7 so also the post mortem report (Ext.8) findings and the evidence of the doctor, we are of the view that the learned trial Court has rightly held that the deceased met with a homicidal death. The learned counsel for the appellant has also not challenged the finding of the learned trial Court in that respect. CRLA No.159 of 2016 Page 13 of 28 Whether the extra judicial confession by the appellant before P.W.4 can be acted upon?: 9. P.W.4 has stated that on the date of occurrence at about 7.30 p.m., the appellant came with a cut hand near the „kirtan mandap‟ and told them that he had killed the deceased and was going with the cut hand of the deceased to Chadheibhol outpost. In the cross-examination, it is stated that twenty persons were present in the kirtan mandap at that point of time. He has specifically stated that no other person was with the appellant when he confessed regarding killing of the deceased and that he was going to Chadheibhol outpost. It is further brought that they saw the appellant through electric light though it was a dark night. He has further stated that the appellant was his nephew by village courtesy. Nothing has been brought out in the cross-examination to disbelieve the evidence relating to the extra judicial confession made by the appellant before P.W.4. P.W.1, the informant has stated that the appellant arrived there with a cut hand of the deceased and told them that he was going to the police station and thereafter, they went to the house of the deceased and saw the deceased was lying on the entrance of the house with cut injury on his person i.e. one CRLA No.159 of 2016 Page 14 of 28 of his hands was cut and removed and he was dead. The extra judicial confession part is also mentioned in the F.I.R. P.W.2 has stated that seeing the cut hand of the deceased, P.W.1 called him for which he along with P.W.1 went to the house of the deceased and saw that the dead body of the deceased was lying in front of the house and the left hand was missing from the body. Nothing has been brought out in the cross-examination of P.W.2 which could potentially harm the prosecution case. It is of course true that others present in the kirtan mandap were not examined, but law is well settled that in the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence which is important. There is no requirement in the law of evidence that a particular number of witnesses must be examined in order to prove/disprove a fact. The evidence has to be weighed and not counted. The legal system is opposed to the multiplicity or plurality of witnesses. It is thus, the quality and not quantity, which determines the adequacy of evidence, as has been provided by section 134 of the Evidence Act. If the evidence of a solitary witness is cogent, credible and trustworthy, the same can be acted upon. CRLA No.159 of 2016 Page 15 of 28 The Court should not start with the presumption that extra judicial confession is a weak piece of evidence. It would depend on the nature of the circumstances, time when the confession was made and credibility of the witness who speaks about such confession. In the case of Maghar Singh -Vrs.- State of Punjab reported in A.I.R. 1975 Supreme Court 1320, it has been held that an extra judicial confession, if satisfactorily proved to have been voluntarily made, may form the basis of conviction even in the absence of corroboration. In the case of State of Orissa -Vrs.- Khagapati Majhi reported in 1973 Criminal Law Journal 1699, a Division Bench of this Court held that voluntarily extra judicial confession can be acted upon even though the accused resiles there from during the trial. Nothing has been brought on record as to why P.W.4 would depose falsehood against the appellant to have made
Decision
In the result, the CRLA is allowed in part. The trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. ............................ S.K. Sahoo, J. ................................ Chittaranjan Dash, J. Orissa High Court, Cuttack The 13th August 2024/RKMishra Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Aug-2024 17:09:37 CRLA No.159 of 2016 Page 28 of 28