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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.538 of 2015 (An appeal U/S. 374(2) of the Code of Criminal judgment dated 25.07.2014 Procedure against the passed by Shri K.D.R.Dora, Sessions Judge, Nabarangpur in C.T. No.09 of 2012 corresponding to G.R. Case No. 484 of 2011, arising out of Umerkote PS Case No. 166 of 2011 of the Court of learned JMFC, Umerkote) Rabi Gond State of Orissa … -versus- … Appellant Respondent For Appellant : For Respondent: Mr. N. Panda, Advocate Mrs. S. Pattanaik, AGA. CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :12.02.2024 DATE OF JUDGMENT:13.05.2024 G. Satapathy, J. 1. The appeal seeks to assail the judgment of conviction and order of sentence dated 25.07.2014 passed by the learned Sessions Judge, Nabarangpur in Criminal Trial No. 09 of 2012 convicting the appellant for commission of offence punishable U/Ss. 302/449 of Indian Penal Code, 1960 (in short the “IPC”), while acquitting him of the charge for the offences U/Ss. CRLA No.538 of 2015 Page 1 of 16 294/427 of the IPC. By the aforesaid judgment, the convict was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default whereof, to further undergo Rigorous Imprisonment (RI) for two years for offence U/S. 302 of IPC and to undergo RI for ten years with fine of Rs.5,000/- in default whereof, to undergo further RI for a period of one year for offence U/S. 449 of IPC with stipulation of both he sentences to run concurrently. 2. The prosecution case in brief is, the deceased Durjan Gond of village Padiaguda was the cousin of convict Rabi Gond, who had been constantly threatening to stab the deceased by quarrelling with him without any reason. Accordingly, on 10.08.2011 at about 10 PM in the evening, while the deceased was sleeping in his house, the convict being armed with a knife came there and by abusing him in filthy language as well as saying to kill him in life, he pulled the deceased out of his house after forcibly breaking the door by pelting brick and stone to the house and dealt slaps, fist blows and stabbed the left chest, belly and left hand of the deceased with the knife brought by CRLA No.538 of 2015 Page 2 of 16 him. As a result, the deceased sustained bleeding injuries on his chest, belly and hand and on hearing the commotion raised by the deceased, when his fellow strict people namely Jagannath Gond, Padu Gond, Trinath Gond, Mangulu Gond and others arrived there, the convict fled away from the spot. 2.1. On this incident, the deceased on his way to hospital at about 2 A.M. on the intervening night of
Legal Reasoning
10/11.08.2011 lodged an FIR being scribed by PW4 Surya Prakash Pattanaik under Ext.5 against the convict before the IIC, Umerkote PW18-Tapan Narayan Rath, who registered Umerkote P.S. Case No. 166 of 2011 for commission of offences U/Ss. 458/294/ 307/323/324 of IPC and entrusted the investigation of the case to SI of Police PW17-Dhiresh Kumar Das, who examined the injured-informant and other witnesses, issued injury requisitions for medical examination of the injured-deceased, visited the spot, seized the weapon of offence-knife under Ext.4, arrested the convict, seized the blood stained wearing apparels of the injured-deceased and forwarded the convict to the Court. CRLA No.538 of 2015 Page 3 of 16 2.2. On 13.08.2011 unfortunately the deceased succumbed to the injuries at Zonal Hospital, Umerkote and thereafter, PW17 handed over the charge of investigation to the IIC,Umerkote-PW18, who conducted inquest over the dead body of the deceased and prepared the inquest report under Ext.3. In addition, PW 18 also sent the dead body of the deceased for PM examination, seized bed head ticket in respect of the deceased under Ext.12 and also made query to the Doctor conducting PM examination of the deceased by sending the weapon offence-knife soliciting his opinion as to the possibility of the injuries to the deceased by said knife and consequent upon his transfer, he handed over the charge of the investigation to IIC, P.K. Patra, who further handed over the charge of investigation to SI of Police PW15 Sukanti Kerai. 2.3. In the process, on completion of the investigation, PW15 placed charge sheet against the convict for offences U/Ss. 294/427/459/302 of IPC under which cognizance was taken resulting in trial in the present case after denial of the convict to plead CRLA No.538 of 2015 Page 4 of 16 guilty to the charge to the aforesaid offences. This is how, the trial commenced in this case. 3. In support of its charge, the prosecution examined altogether 18 witnesses and relied upon the documents under Exts. 1 to 14 as against no evidence whatsoever by the defence. Of the witnesses examined by the prosecution, PWs. 1 to 3, 5, 6, 8 & 10 are the post occurrence witnesses, who came to the spot immediate after the occurrence and saw the deceased lying with bleeding injuries. P.W.4 is the scribe of Ext.5; P.W.11-Dr.S.C.Satapathy is the Doctor, who conducted autopsy over the dead body of the deceased, whereas PW12-Dr.S.K.Panda is the Doctor, who had examined the deceased on police requisition while he was alive and furnished injury report of the deceased; PWs. 15, 17 & 18 are the investigating officers; P.W.13-Siba Gond is an independent witness, who had spoken about the apprehension of the convict by the villagers; PWs. 14 & 16 are two independent witnesses; PW7-Aganabati Gond is the wife of the deceased, who had been projected as eye witness to the occurrence by the prosecution; PW9-Jaisingh Gond is a co-villager, CRLA No.538 of 2015 Page 5 of 16 who had seen the quarrel between the convict and the deceased prior to the occurrence. 4. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellant for offences U/Ss. 302/449 of the IPC while acquitting him for the offence U/Ss. 294/427 of the IPC and accordingly, sentenced him to the punishment indicated supra. 5. In assailing the impugned judgment of
Legal Reasoning
conviction, Mr. N. Panda, learned counsel for the appellant submits that the learned trial Court has convicted the appellant on erroneous appreciation of evidence, since neither the names of the eye witnesses have been stated in the FIR nor have they disclosed about the occurrence and no witness has ever spoken about the enmity between the appellant and the deceased, but during trial, the witnesses brought a new theory of land dispute between the Appellant and deceased. It is further submitted for the appellant that the witnesses deposing against the Appellant are interested witnesses and their evidence cannot be accepted as believable one and none of the witnesses CRLA No.538 of 2015 Page 6 of 16 are eye witnesses to the occurrence, no matter they have deposed evidence as if they were eye witnesses to the occurrence and, therefore, the evidence of so called eye witnesses cannot be taken into consideration to hold the Appellant guilty of the offence, but notwithstanding to the above circumstance, the learned trial Court has erroneously relied upon the evidence of PWs.1 to 3 and 5 to 8 to base conviction against the Appellant which cannot stand to the legal scrutiny and, therefore, conviction of the Appellant being unsustainable in the eye of law is liable to be set aside. Mr. Panda has, accordingly, submitted to allow the appeal to acquit the Appellant by setting aside the impugned judgment of conviction and order of sentence as recorded by the learned trial Court. 6. On the contrary, Mrs. S. Pattanaik, learned Additional Government Advocate, while repelling the submission of the Appellant has submitted that there is ample evidence available against the Appellant to hold him guilty for the offence of murder beyond all reasonable doubt inasmuch as not only the wife and son of the deceased have deposed against the CRLA No.538 of 2015 Page 7 of 16 Appellant, but also the independent witnesses have also minutely described the act of the Appellant in killing the deceased and, thereby, the conviction of the Appellant being well founded cannot be criticized. In summing up her argument, learned Additional Government Advocate has prayed to dismiss the appeal. 7. In order to examine the sustainability of the conviction and sentence of the Appellant, this Court has carefully considered the impugned judgment by extensively going through the evidence on record keeping in view the rival submissions. In moving to re- appreciate the evidence on record to examine the sustainability of the impugned judgment, there appears no dispute about the homicidal death of the deceased which is found from the unchallenged evidence of PW11 -Dr.S.C.Satapathy who was not cross-examined and his evidence unambiguously transpires that all the injuries detected on the person of the deceased were ante mortem in nature and cause of death of deceased was on account of shock and haemorrhage due to peritoneum perforation and the mode of death was homicidal in nature. Hence, the prosecution is found to CRLA No.538 of 2015 Page 8 of 16 have established the homicidal death of the deceased beyond all reasonable doubt through legally admissible evidence. 8. In order to check the finding of the learned trial Court with regard to guilt of the Appellant, it appears that the deceased himself had lodged the FIR stating therein about convict attacking him by means of an axe after trespassing into his house and it was stated in the FIR by the deceased himself that the convict had stabbed on his left chest, abdomen and left hand. It also appears from the evidence on record that the deceased was immediately shifted to Zonal Hospital, Umerkote where he was given treatment as indoor patient till his death on 13.08.2011 and the doctor who examined him on the relevant day was PW12-Dr.S.K.Panda who had testified in the Court that on examination of the deceased, he found three incised wounds on shoulder region, abdomen and left forearm. According to PW 12, the injury No.2 to the deceased was a incised wound of size 2.5cm. x 1cm. x muscle deep outer aspect of abdominal wall on left side omentum protruded out and such injury was grievous CRLA No.538 of 2015 Page 9 of 16 in nature. PW12 had also testified in the Court that the injured died in the hospital on 13.08.2011 while undergoing treatment and, therefore, the deceased had received treatment from 11.08.2011 to 13.08.2011. The defence could not decimate the evidence of PW.12 except unsuccessfully giving one suggestion to the effect that the injuries noted on the deceased could have been possible due to fall. On the other hand, P.W.11-Dr.S.C.Satapathy who conducted post mortem examination over the cadaver of the deceased had also found these three incised wounds. It is, therefore, clear that the FIR which was lodged by the deceased can be well treated as a dying declaration of the deceased inasmuch as undoubtedly it is the statement of the deceased written by scribe PW4 indicating the circumstance of transactions of death of the deceased, which has been corroborated by the evidence of PW4 who in his evidence has clarified that he scribed the FIR under Ext.5 as per the direction of the deceased who was brought to him by some persons, however, the defence could not demolish such evidence of PW4 except unsuccessfully suggesting him to have not CRLA No.538 of 2015 Page 10 of 16 written Ext.5 on the direction of the deceased, but on the direction of the police. Hence, the FIR is clearly admissible U/S. 32(1) of the Indian Evidence Act, 1872 as dying declaration of the deceased. 9. It is no doubt true that even if a document is admissible in evidence, but its acceptability needs further scrutiny by way of appreciation of such documentary evidence. The prosecution, however, has relied upon the evidence of PW7 (wife of the deceased) as a eye witness to the occurrence. Accordingly, PW7 has testified in the Court that the accused (convict) who is cousin of the deceased pierced knife on the chest, belly and left hand of her husband and accused fled away with the knife and she called Nilam-PW8, Sobarai-PW1 and Ghasi-PW2. PW7 also says that her husband died after three days of the occurrence and PWs. 1, 2 & 8 had brought the convict from Kusumguda. The defence cross-examined PW7 to debilitate her evidence, but only came out strengthening the evidence of PW7 by eliciting from her lips that Sobrai, Nilam, Ghasiram, Butu and Rabi have their houses near her house. It is of course elicited CRLA No.538 of 2015 Page 11 of 16 from her mouth that there was darkness in the night, but nothing substantial was elicited from her mouth to dispute the identity of the convict. In cross checking the evidence of PW7 by comparing with the evidence of PWs. 1 & 2, it appears that both PWs. 1 & 2 reached to the spot hearing hullah (commotion) and found the deceased lying with bleeding injuries on his abdomen, chest, left arm and deceased stating before them that the convict assaulted him giving rise to such injuries. The aforesaid evidence of PWs. 1 & 2 corroborates the evidence of PW7 and also strengthens the evidence of prosecution, since this part of evidence of PWs. 1 & 2 discloses the oral dying declaration of the deceased implicating the convict for the injuries sustained by him. The evidence of PWs. 3, 5, 6 & 8 reiterates only the oral dying declaration made by the deceased before them, which remain un-assailed in the cross- examination. Besides, PWs 5 & 8 reveal in their evidence about the extrajudicial confession made by the convict before them. Simultaneously, it is the evidence of PW8 that he along with PWs. 2, 3 and Debi went to Kusumguda and apprehended the convict who CRLA No.538 of 2015 Page 12 of 16 was in the house of Siba Gond (PW13) and he(PW8) snatched away the knife from the hands of the convict which of course is not believable in the circumstance, however, the apprehension of the convict by these people is found acceptable from their evidence. 10. Further, the evidence of PW1 squarely discloses about the motive behind the crime because often there was quarrel taking place between the deceased and the convict as stated by PW1 and the other evidence also discloses prior enmity between the convict and deceased due to land dispute. It is also not in dispute that the deceased was cousin of the convict. PW9 in his evidence says that in one evening, both the deceased and the accused quarreled in the street of village in front of his house and the convict threatened to kill the deceased and also chased him to kill and he intervened there and pacified the occurrence and on the next day, he heard that accused stabbed the deceased. In cross- examination of PW9, it was brought out that in the evening, both the accused and injured abused each other. It is also found from the evidence of PW13 that the accused-convict had come to his house in CRLA No.538 of 2015 Page 13 of 16 Kusumuguda and PW8 had categorically revealed in his evidence that after the occurrence, he and others had brought the convict from the house of PW13 in Kusumuguda. 11. Learned counsel for the appellant, however, has attacked the evidence of PW7 on the ground that she is not the eye witness to the occurrence because PW6 who is the son of the deceased has testified in the Court that at the relevant time of assault, he had been to the house of his paternal uncle being accompanied by his mother(PW7) which is also elicited from the mouth of PW6 that himself as well as his mother were sleeping in the house of his paternal uncle at the relevant time of occurrence and by the time of his arrival at the place, his father was lying with injuries. On one hand PW7 says that she is the eye witness of occurrence, but it appears from the evidence of PW6 that PW7 is not the eye witness to the occurrence. Be that as it may, there is ample evidence on record to indicate about the oral dying declaration of the deceased not only before PWs. 6 & 7, but also before PWs. 1 to 3 & 5 to 8 which is also strengthened by the CRLA No.538 of 2015 Page 14 of 16 FIR being treated as dying declaration of the deceased in view of the fact that the FIR was lodged being written at the instruction of the deceased and the said FIR contained the thumb impression of the deceased which was never disputed by the defence in the evidence. Even otherwise, if the evidence of PW7 is sieved, still then there is ample evidence against the convict in the form of dying declaration and that apart there is evidence to indicate about prior enmity between the deceased and the convict and some of the witnesses had also seen the deceased leaving the house of the deceased. In such situation, the evidence led by the prosecution otherwise has established the guilt of the accused beyond all reasonable doubt for committing murder of the deceased by trespassing into his house. 12. On a careful analysis and conspectus of evidence on record; this Court finds that the learned trial Court has rightly appreciated the evidence on record to arrive at a conclusion that the prosecution has established the guilt of the accused for the offences beyond reasonable doubt. Consequently, no ground is CRLA No.538 of 2015 Page 15 of 16 made out to interfere with the impugned judgment of conviction and order of sentence. 13. In the result, the appeal stands dismissed. Consequently, the judgment of conviction and order of sentence passed by learned Sessions Judge, Nabarangpur in Criminal Trial No. 09 of 2012 are hereby confirmed. (G. Satapathy) Judge D.Dash, J. I Agree (D.Dash) Judge Orissa High Court, Cuttack, Dated the 13th day of May, 2024/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 15-May-2024 20:56:40 CRLA No.538 of 2015 Page 16 of 16