The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRLA No.456 of 2022 An appeal under section 374 Cr.P.C. from the judgment and order dated 12.11.2021 passed by the 1st Addl. Sessions Judge, Baripada in S.T. Case No.68 of 2014. ------------------------- Harish Chandra Rout ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Abhishek Dash For Respondent: - 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 S.K. MISHRA ----------------------------------------------------------------------------------------------------------------------- Date of Hearing: 05.01.2024 Date of Judgment: 19.01.2024 ----------------------------------------------------------------------------------------------------------------------- S.K. Sahoo, J. The appellant Harish Chandra Rout faced trial in the Court of learned 1st Addl. Sessions Judge, Baripada in S.T. Case No.68 of 2014 for commission of offence under section 302 of the Indian Penal Code (hereinafter ‘I.P.C.’) // 2 // on the accusation that on 09.12.2013 at about 7.00 p.m. at village Daundia (Ambasole), he assaulted Laxmidhara Rout, (hereafter ‘the deceased’) by means of a thenga on his head, who succumbed to the injuries on 13.12.2013 at S.C.B. Medical College and Hospital, Cuttack while undergoing treatment and thereby he committed murder by intentionally causing death of the deceased. The learned trial Court vide impugned judgment and order dated 12.11.2021 found the appellant guilty under section 302 of the I.P.C. and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo rigorous imprisonment for four months. Prosecution Case: 2. The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) (Ext.1), lodged by Gananath Rout (P.W.1), the father of both the appellant as well as the deceased before the Officer in-charge of Khunta police station on 12.12.2013 is that his younger son, the appellant herein, owing to previous grudge had assaulted the CRLA No.456 of 2022 Page 2 of 43 // 3 // deceased by means of a ‘thenga’ on his head coming from backside on 09.12.2013 at about 7.00 p.m. causing bleeding injuries on his head and blood was oozing from his nose and ear. When the wife and the son of the deceased shouted, their neighbours as well as P.W.1 rushed to the spot immediately and on seeing them, the appellant fled away from the spot. The co-villagers, namely, Jagannath Nayak (P.W.11) and Jayanta Rout, who arrived at the scene of occurrence, shifted the deceased to Manatri Hospital and then to Badasahi hospital. Then the deceased was taken to D.H.H., Baripada and from there, he was referred to S.C.B. Medical College and Hospital, Cuttack for treatment. On 12.12.2013 P.W.1 reported the matter before P.W.17, the Officer in-charge of Khunta police station, basing on which Khunta P.S. Case No. 134 dated 12.12.2013 was registered under sections 341/323/307/325 of I.P.C. against the appellant. On that day, P.W.17 who took up investigation of the case, examined the informant (P.W.1), prepared the spot map (Ext.8), examined other witnesses. The sample earth, blood stained earth, one lathi and one towel were seized from the CRLA No.456 of 2022 Page 3 of 43 // 4 // spot as per seizure list Ext.3. During the course of treatment in S.C.B. Medical College and Hospital, Cuttack, the deceased succumbed to the injuries on 13.12.2013. On 15.12.2013 P.W.1 appeared before P.W.18 and intimated about the death of the deceased. Thereafter, P.W.18 made a prayer to the learned S.D.J.M., Udala to turn the case to one under section 302 of I.P.C. vide letter dated 1547 dated 15.12.2013. On 17.12.2013, P.W.18 received V.H.F. message from the Inspector in-charge of Mangalabag police
Legal Reasoning
station regarding the confirmation of death of the deceased and drawing up of U.D. Case No.1736 dated 13.12.2013 of Mangalabag police station, Cuttack. During course of investigation, on 16.12.2013 the appellant was apprehended by the I.O. (P.W.17) from his house at 4.00 a.m. He seized the wearing apparels of the appellant as per seizure list Ext.9, examined the seizure witnesses, sent the appellant for medical examination, seized the biological samples of the appellant as per seizure list marked as Ext.10, forwarded the appellant to the Court of learned S.D.J.M., Udala on 16.12.2013 and also made a prayer to the learned S.D.J.M. for recording the statement CRLA No.456 of 2022 Page 4 of 43 // 5 // of the witness Bhaskar Jena (P.W.13) under section 164 of Cr.P.C. On 01.02.2014 around 4.00 p.m. on production by the A.S.I. C.R. Balabantaray, he seized the original case diary, original inquest report, dead body chalan, post mortem report and other documents in U.D. Case No.1736 dated 13.12.2013 of Mangalabag police station, Cuttack as per seizure list Ext.5. P.W.18 made a query to P.W.9, the Medical Officer of Badasahi C.H.C. regarding the possibility of injury by the weapon of offence as per the query report Ext.4/4. P.W.18 sent the exhibits to R.F.S.L., Balasore for chemical examination as per the forwarding report Ext.11. On completion of investigation, P.W.18 submitted the charge sheet on 12.03.2014 under section 302 of I.P.C. against the appellant. Framing of Charge: 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure, where the learned trial Court framed the charge against the appellant on 22.01.2016 as aforesaid and since the appellant refuted the charge, CRLA No.456 of 2022 Page 5 of 43 // 6 // 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 eighteen witnesses. P.W.1 Gananath Rout is the father of the deceased and also the informant in this case. He stated that on the date of occurrence, upon hearing a sound, he came outside of his house and saw that the appellant was assaulting the deceased by means of a stick to his head, as a result of which blood was oozing out of his head. He is also a witness to the preparation of the inquest report vide Ext.2. P.W.2 Haimabati Rout is the widow of the deceased and the daughter-in-law of the informant. She stated that on the fateful day, when the deceased was sitting near the verandah of their house, the appellant assaulted the deceased on his head by means of a ‘thenga’ CRLA No.456 of 2022 Page 6 of 43 // 7 // and thereafter, he fled away from the spot. She further stated that there was a dispute between the appellant and the deceased six months prior to the incident and she suspected that the appellant might have committed the murder of the deceased because of such dispute. P.W.3 Raghunath Nayak is the brother-in-law of the informant (P.W.1). He stated that upon hearing the hulla raised by the informant, he went to the spot and saw the deceased lying on the ground having sustained bleeding injury on his head. P.W.4 Braja Kishore Rout is the son of the deceased who stated that the appellant being armed with an ‘Akasia’ stick assaulted to the back of the head of the deceased. He further stated that hearing the hulla raised by him, his mother (P.W.2) came to the spot and upon her arrival, the appellant fled away from the spot. P.W.5 Kartik Chandra Rout stated that on hearing hulla raised by P.W.4, he came to the spot and found the deceased lying on the ground having sustained bleeding injury on the back side of his head. CRLA No.456 of 2022 Page 7 of 43 // 8 // P.W.6 Ashamani Muduli stated that upon hearing hulla raised by P.W.1, she went to the spot and found the deceased lying on the ground with bleeding injury on his head. She further stated that the wife (P.W.2) and son (P.W.4) of the deceased were crying at the spot. She also stated that P.W.1 disclosed that the appellant assaulted the deceased. P.W.7 Pradeep Kumar Sahu stated that upon hearing cry, he went to the spot and found the deceased lying on the ground with bleeding injury on his head. He further stated that the wife (P.W.2) and son (P.W.4) of the deceased were crying at the spot. He also stated that P.W.1 disclosed that the appellant assaulted the deceased. He along with others took the deceased to the hospital. P.W.8 Ganeswar Singh is a witness to the seizure of one long lathi, one broken piece of lathi, blood stained earth, sample earth and blood stained napkin as per seizure list Ext.3. P.W.9 Dr. Harish Chandra Sahu was working as the Medical Officer in-charge, Badasahi C.H.C. He examined CRLA No.456 of 2022 Page 8 of 43 // 9 // the weapon of offence which was produced by the police before him for his examination and opinion. He opined that the lacerated wound on the left temporal region of the deceased might have been caused by the said weapon. He proved his report vide Ext.4. P.W.10 Ramhari Singh is a witness to the seizure of two broken pieces of one lathi, blood stained earth, sample earth and blood stained napkin as per seizure list Ext.3. P.W.11 Jagannath Nayak stated that upon being informed about the assault on the deceased by the appellant, he immediately rushed to the spot and found that there was profuse bleeding from the back side of the head and ears of the deceased. He along with others took the deceased to hospital. P.W.12 Subash Chandra Sahu was working as police constable in the Khunta Police Station. He is a witness to the seizure of wearing apparels of the deceased as well as other biological samples as per seizure list Ext.5. CRLA No.456 of 2022 Page 9 of 43 // 10 // P.W.13 Bhaskar Chandra Jena stated that the police intimated him about the murder of the deceased by the appellant. He further stated that the police sought his assistance to apprehend the appellant and upon such request, he took 3 to 4 days and got the appellant apprehended. P.W.14 Dhunda Charan Singh was working as police constable in the Khunta Police Station. He is a witness to the seizure of wearing apparels of the deceased as per seizure list Ext.5. P.W.15 Dr. Jyotish Chandra Choudhury was working as Assistant Professor in F.M.T., S.C.B. Medical College, Cuttack. He conducted post-mortem over the dead body of the deceased on police requisition and proved his report vide Ext.6. P.W.16 Shireen Akhtar was posted as the Sub- Inspector of Police at Mangalabag Police Station who was directed to make an enquiry upon the death of the deceased at the S.C.B. Medical College and Hospital, Cuttack. During the course of his enquiry, he prepared the CRLA No.456 of 2022 Page 10 of 43 // 11 // inquest report vide Ext.2 and sent the dead body of the deceased for post-mortem examination. He also seized the wearing apparels and biological samples of the deceased and handed over the seizure list to the I.O. (P.W.17). P.W.17 Prasanna Kumar Singh Samanta was posted as the Officer-in-Charge of Khunta Police Station. He is the Investigating Officer of the case. P.W.18 Rakesh Kumar Mukharjee was working as the Scientific Officer, R.F.S.L., Balasore who stated that the R.F.S.L., Balasore had submitted the M.O.s and the original chemical examination report to the D.F.S.L., Mayurbhanj for submission of the same in the concerned Court and to this effect, he proved a letter vide Ext.12. He proved the attested photocopy of the C.E. report and serological report vide Ext.13 and Ext.14. The prosecution exhibited fourteen documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Exts.3, 5, 9 and 10 are the seizure lists, Ext.4 is the examination report of weapon of offence, Ext.6 is the post mortem report, Ext.7 is the dead body chalan, Ext.8 is the spot map, CRLA No.456 of 2022 Page 11 of 43 // 12 // Ext.4/3 is the query made by P.W.17, Ext.11 is the forwarding report, Ext.12 is the letter, Ext.13 is the attested photo copy of C.E. report and Ext.14 is the attested copy of serological report. Defence plea: 5. The defence plea of the appellant is that since his childhood, he as well as the deceased were studying and staying at Balashram and his mental condition was not good so also that of his deceased brother. His further plea is that four months of his detention in jail in this case, he for the first time realized that he had been implicated as an accused in the case and that his father was bringing medicines for him which was prescribed by the doctor for his use in the jail and after taking medicine, there was no mental problem and he was able to understand the proceeding going on in the Court and that he did not remember the cause of murder of the deceased with whom he had good relationship and there was no reason on his part to commit such murder. CRLA No.456 of 2022 Page 12 of 43 // 13 // Two witnesses were examined on behalf of the defence. D.W.1 Harish Chandra Rout is the appellant herein. He stated about the defence plea. D.W.2 Kanaklata Rout is the elder sister of the appellant as well as the deceased. She stated that both the appellant as well as the deceased were mad and they were staying in Balashram and in the said Balashram, she was taking care of the two brothers. She further stated that the mental condition of both the appellant as well as the deceased were not good and both of them were undergoing treatment. The defence exhibited the 164 Cr.P.C. statement of P.W.13 as Ext.A. Finding of the trial Court 6. Learned trial Court after assessing the evidence on record, came to hold that from the ocular as well as medical evidence, it was found that the death of the deceased was homicidal in nature and not natural, suicidal or accidental in nature. It was further held that though the CRLA No.456 of 2022 Page 13 of 43 // 14 // informant (P.W.1) supported the prosecution case in the chief examination, but in his cross-examination, his statement was that he was not present in the village of occurrence on the relevant day of incident and had not witnessed the occurrence is not believable as P.W.2 and P.W.4 have categorically stated that P.W.1 was residing in the occurrence village and he was very much present there on the date of occurrence. It was further held that the explanation given by the prosecution for the delay in lodging the F.I.R. appears to be convincing one and there is no cross-examination made to the informant (P.W.1) in that respect and as such, delay in lodging the F.I.R. has become inconsequential. Learned trial Court accepted the evidence of the eye witnesses to the occurrence so also the witnesses who arrived at the scene of occurrence immediately after the assault and disbelieved the defence plea of insanity at the time of commission of the act taken by the appellant and it was held that the appellant was well aware of the consequences of his act and as such, he is not entitled to get any relief under section 84 of the I.P.C.. While concluding, learned trial Court held that on cumulative CRLA No.456 of 2022 Page 14 of 43 // 15 // reading of the evidence of P.W.1 to P.W.7, it is proved that the appellant assaulted and dealt blows by means of a ‘thenga’ on the head of the deceased for which the deceased sustained severe bleeding injuries and fell down on the ground and then he was shifted to the hospital for treatment and died on 13.12.2013 while undergoing treatment at S.C.B. Medical College and Hospital, Cuttack and that the appellant made such assault with the intention to cause the death of the deceased and accordingly, held the appellant guilty under the offence charged. Submissions by the parties: 7.
Legal Reasoning
Mr. Abhishek Dash, learned counsel appearing for the appellant challenging the impugned judgment argued that the learned trial Court erred in placing reliance on the evidence of P.W.1, the informant in the case, as an eye witness to the occurrence since in the cross- examination, he has specifically stated not to have seen the occurrence and that he was not present in the village Dhaundia on the date of occurrence. Learned counsel further argued that P.W.2 is the widow of the deceased and P.W.4 is the son of the deceased, who are interested CRLA No.456 of 2022 Page 15 of 43 // 16 // witnesses and their evidence should not have been believed by the learned trial Court as there was every chance of false implication of the appellant on account of previous dispute. Learned counsel further argued that P.W.4 has stated that the appellant dealt only one blow on the head of the deceased with ‘Akasia’ stick whereas the doctor (P.W.15), who conducted post mortem examination noticed several injuries on different parts of the body of the deceased and therefore, the ocular version of P.W.4 is contradicted by medical evidence. Learned counsel further submitted that since P.W.4 is a child witness, there is every possibility of tutoring and therefore, this Court should assess the evidence of such witness with utmost care and caution. It was further argued that even though the I.O. seized one lathi from the spot during his spot visit on 12.12.2013 and prepared the seizure list (Ext.3), but the same was not sent to the doctor (P.W.15) who conducted post-mortem for examination and opinion regarding possibility of the injuries caused to the deceased with such weapon, which is a lacuna in the prosecution case. Learned counsel further argued that the occurrence took place on 09.12.2013 and the CRLA No.456 of 2022 Page 16 of 43 // 17 // learned trial Court erroneously held that the prosecution has satisfactorily explained the delay in lodging the F.I.R. which was lodged on 12.12.2013. It was further argued that the plea of insanity taken by the appellant being examined as D.W.1 is getting support from the evidence of D.W.2 so also P.W.1, the informant and therefore, it was not proper on the part of the learned trial Court to discard such plea on flimsy ground. Placing reliance in the ratio laid down by the Hon’ble Supreme Court in the cases of Panchhi and others -Vrs.- State of U.P. reported in (1998) 7 Supreme Court Cases 177 and Yogesh Singh -Vrs.- Mahabeer Singh and others reported in (2017) 11 Supreme Court Cases 195, it was urged that benefit of doubt should be extended in favour of the appellant. Mr. Arupananda Das, learned Additional Government Advocate appearing for the State of Odisha, on the other hand, supported the impugned judgment and argued that the occurrence has no doubt taken place on 09.12.2013, but the evidence on record indicates that first the deceased was taken to Manitri hospital, then to CRLA No.456 of 2022 Page 17 of 43 // 18 // Badasahi hospital and from there to D.H.H., Baripada and thereafter to S.C.B. Medical College and Hospital, Cuttack for treatment where he succumbed to the injuries on 13.12.2013. The informant and his family members were trying their level best to save the life of the deceased and in such a state, few days delay in lodging the F.I.R. cannot be a ground to disbelieve the prosecution case and the learned trial Court has rightly held that the prosecution has satisfactorily explained the delay in lodging the F.I.R. Learned counsel further argued that P.W.1 has supported the prosecution case in chief examination and he has specifically stated that he was present in the house and on hearing a sound, he came outside of his house and found the appellant assaulting the deceased by means of a stick on the head of the deceased, but he changed his version in the cross-examination and most peculiarly he stated that he had not seen the occurrence and not present in the village of occurrence and the same may be on account of the fact that he was the father of the appellant and therefore, he was trying to save the life of the appellant. Learned counsel further argued that the child witness like P.W.4, P.W.6 and CRLA No.456 of 2022 Page 18 of 43 // 19 // P.W.7 have stated about the presence of P.W.1 at the spot on the date of occurrence. Therefore, learned trial Court has not committed any illegality in placing reliance on the evidence of P.W.1. Learned counsel further argued that P.W.2 being the widow and P.W.4 being the minor son of the deceased cannot be said to be interested witnesses though they are related witnesses and they are not likely to spare the real culprit and implicate the appellant falsely more particularly when the appellant is also related to them. It is argued that P.W.4 though is a child witness, but in order to test his competence, learned trial Court had put some questions to him and got the answers and the learned trial Court noted down the questions and answers and after such preliminary examination, gave his opinion that P.W.4 was able to give rational answers to the questions and therefore, found him to be a competent witness to depose. Learned counsel further argued that nothing has been brought on record that P.W.4 has been tutored by anybody to tell falsehood against the appellant in connection with the murder of the deceased. Therefore, the learned trial Court rightly placed reliance on the evidence of these two eye CRLA No.456 of 2022 Page 19 of 43 // 20 // witnesses i.e. P.W.2 and P.W.4. It is further argued that even though the weapon of offence was not produced before the doctor (P.W.15), who conducted post mortem examination, however, the said weapon was produced before P.W.9, the doctor of Badasahi C.H.C., who examined the same and gave his opinion and as per his report (Ext.4), lacerated wound found on the temporal region of the deceased might be caused by such weapon. Learned counsel for the State further argued that the manner in which the assault has been made to the deceased on the vital parts of the body clearly indicates that the appellant intended to commit murder of the deceased and the act of the appellant does not fall within any of the exceptions as enumerated under section 300 of the I.P.C.. It was further argued that though the defence plea has been taken that the appellant was suffering from mental ailment for which medicine was prescribed by the doctor and he was taking the same while in jail custody, but neither any medical documents have been proved in the case nor any doctor has been examined who was treating the appellant such ailment and there is no material on record that at the time CRLA No.456 of 2022 Page 20 of 43 // 21 // of commission of the crime, the appellant was of unsound mind and by reason of such unsoundness, he was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law and since the burden of proving the existence of circumstances bringing the case within the purview of section 84 of the I.P.C. lies upon the appellant under section 105 of the Evidence Act, the same having not been done, learned trial Court is quite justified in rejecting such defence plea and therefore, there is no infirmity or illegality in the judgment and the criminal appeal should be dismissed. Whether the deceased met with a homicidal death?: 8. The deceased was examined by P.W.9 at Badasahi C.H.C. and he found one lacerated wound on left temporal region and the doctor stated that the deceased was admitted on 09.12.2013 at 8.30 p.m. vide registration no. 4891 and he was referred to D.H.H., Baripada. P.W.15 the Assistant Professor of F.M.T. Department of S.C.B. Medical College and Hospital, Cuttack conducted post mortem examination over the dead body of the deceased CRLA No.456 of 2022 Page 21 of 43 // 22 // on 13.12.2013 and he noticed the following external injuries on the person of the deceased. (i) Lacerated wound over the left parietal region 4 c.m. in length and stitched with three individual stitches placed longitudinally in the sagittal place 10 c.m. above of the upper lobe of left ear; (ii) Stitched laceration wound over the vertex of head placed obliquely more towards the right, measuring 4 cm in length and bearing three stitches; (iii) Abrasion of size 4 c.m. x 3 c.m. with brownish scab noticed on the right side of back just above the spine of scapula; (iv) Abrasion of size 3 c.m. x 3 c.m. with brownish scab noticed on the right side of the back 4 cm below the spinal scapula; (v) Contusion bruise black in colour over an area of 12 c.m. x 10 c.m. at the back of the right shoulder area; (vi) Contusion, purplish in colour of size 11 c.m. x 4.5 c.m. was found obliquely present on the posterior lateral aspect of right deltoid area; CRLA No.456 of 2022 Page 22 of 43 // 23 // (vii) Small abrasions with brownish scab seen over the right knee, dorsum of right foot, front of left leg, just above the ankle region; P.W.15 opined that the external injuries and the resultant internal injuries could have been caused by hard and blunt trauma and nothing has been brought out in the cross-examination to discredit such medical evidence. Learned counsel for the appellant has also not disputed that the deceased met with a homicidal death. In view of the materials available on record, particularly, the inquest report (Ext.2), the post mortem report (Ext.6) and the evidence of the doctor (P.W.15), I am of the view that the learned trial Court is quite justified in holding that the deceased met with a homicidal death. Delay in lodging the F.I.R.: 9. Adverting to the contentions raised by the learned counsel for the respective parties, let us first deal with the contention raised by the learned counsel for the appellant regarding delay in lodging the F.I.R. CRLA No.456 of 2022 Page 23 of 43 // 24 // The F.I.R. (Ext.1) was lodged by P.W.1, who is none else than the father of the appellant so also the deceased. The occurrence took place on 09.12.2013 at 7.00 p.m. and in the F.I.R. itself, P.W.1 has mentioned that the deceased was shifted in a vehicle to the nearby Manitri hospital, then to Badasahi C.H.C. and as his condition did not improve, he was admitted in D.H.H., Baripada and since his condition became critical, the doctor referred him to S.C.B. Medical College and Hospital, Cuttack. In the case of State of Madhya Pradesh and Ors. -Vrs.- Chhaakki Lal and Ors. reported in (2019) 12 Supreme Court Cases 326, it has been held as follows: “26. Delay in setting the law in motion by lodging the complaint or registration of F.I.R. is normally viewed by courts with suspicion because there is possibility of concoction of the case against the accused. But when there is proper explanation for the delay, the prosecution case cannot be doubted on the ground that there was delay in registration of F.I.R.” CRLA No.456 of 2022 Page 24 of 43 // 25 // In the case of Ravinder Kumar and Ors. -Vrs.- State of Punjab reported in (2001) 7 Supreme Court Cases 690, it has been held as follows : “13. The attack on the prosecution cases on the ground of delay in lodging F.I.R. has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the F.I.R. Hence, a delayed FIR is not illegal. Of course, a prompt and immediate lodging of the F.I.R. is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged F.I.R., the demerits of the delayed F.I.R. cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged F.I.R. is not an unreserved guarantee CRLA No.456 of 2022 Page 25 of 43 // 26 // for the genuineness of the version incorporated therein.” In view of the ratio laid down in the aforesaid two decisions and in the factual scenario, when the informant (P.W.1) and his family members have given priority to the treatment of the deceased who was in a critical condition by taking him from one hospital to another to save his life, which was nothing but natural on their part and that might have caused few days’ delay in the lodging of F.I.R., I am of the view that the prosecution has satisfactorily explained the delay in lodging the F.I.R., which has been rightly held by the learned trial Court and therefore, the same cannot be a ground to disbelieve the prosecution case. Acceptability of the evidence of the informant (P.W.1): 10. Law is well settled that there has to be clear evidence of the guilt of the accused and in absence of that, it is not possible to record a finding of his guilt. Wrongful conviction of an innocent person shakes the confidence of the people in the judicial system. If an innocent person is CRLA No.456 of 2022 Page 26 of 43 // 27 // sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. P.W.1 is the father of the deceased so also of the appellant and he is the informant in the case, who stated in his examination in chief that the occurrence took place on 09.12.2013 at about 7.00 p.m. and at that time, he was in his house and on hearing a sound, he came out of his house and saw the appellant assaulting the deceased by means of a stick on the head of the deceased as a result of which blood was oozing out from the head of the deceased and the deceased was immediately taken to the hospital. However, in the cross- examination, he stated that he used to live in village Arpata, which is at a distance of about 3 kms. away from village Dhaunria and that he was not present in village Dhaunria on the date of occurrence and had not seen the occurrence. Therefore, the version of this witness in the cross-examination is completely contradictory to what he has stated in his examination-in-chief. No doubt, P.W.2, the widow of the deceased and the child witness P.W.4, the son of the deceased have stated that P.W.1 was residing with CRLA No.456 of 2022 Page 27 of 43 // 28 // the appellant in village Dhaunria and he was present in the village on the date of incident and even P.W.6 and P.W.7 have also stated about presence of P.W.1 on the date of occurrence in village Dhaunria, however, since the version of P.W.1 in the examination-in-chief as well as his version in cross-examination cannot stand together and there is inconsistency between the two and the learned Addl. Public Prosecutor who was conducting the case has not taken recourse to re-examination of P.W.1 for explaining the same, it would not be safe to act upon such version as it is difficult to judge which version is a correct one. Acceptability of the evidence of P.W.2 & P.W.4: 11. Let me first discuss the evidence of the child witness (P.W.4), the son of the deceased who is the eye- witness to the occurrence. Learned counsel for the appellant has placed reliance on the decision in Yogesh Singh (supra), wherein the Hon’ble Supreme Court has held as follows: “22. It is well settled that the evidence of a child witness must find adequate corroboration, before it is relied upon as the CRLA No.456 of 2022 Page 28 of 43 // 29 // rule of corroboration is of practical wisdom than of law. 23. However, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.” He has also placed reliance on the decision in Panchhi (supra) for further elucidation of the above point of law. The following observations were made by the Hon’ble Supreme Court therein: “11….But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized.” 12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is mere a rule of practical wisdom than of law.” P.W.4 was twelve years of age when he deposed in Court. Learned trial Court put some questions to P.W.4 CRLA No.456 of 2022 Page 29 of 43 // 30 // and found that he was able to give rational answers and declared him to be competent to give evidence. Law is well settled that in absence of oath, the evidence of a child witness can be considered under section 118 of the Evidence Act. The Court should bear in mind while assessing the evidence of a child witness that the witness must be a reliable one and he/her demeanour must be like any other competent witness and there is no likelihood of being tutored. As a rule of prudence, the Court always finds it desirable to have corroboration to such evidence from other dependable evidence on record. P.W.4 has stated that the deceased was his father and the appellant was his uncle and at the time of incident, the deceased was making bamboo ‘tati‘ and he was with the deceased and suddenly the appellant being armed with Akasia stick, assaulted to the back head of the deceased. He raised hullah by calling his mother (P.W.2) and P.W.2 immediately came to the spot and at the time when P.W.2 arrived at the spot, the appellant fled away. He further stated that due to the assault, the deceased fell down on CRLA No.456 of 2022 Page 30 of 43 // 31 // the ground and blood was oozing from his head. He specifically stated that his mother (P.W.2), he himself and P.W.1 had seen the assault made by the appellant to the deceased. He denied the suggestion given by the learned defence counsel that he was not present in his house at the time of the incident and being tutored by his mother, he was deposing in Court. The contention of the learned counsel for the appellant that P.W.4 being a child witness must have been tutored to depose against the appellant, is not acceptable inasmuch as nothing has been brought out in cross-examination in that respect. The evidence of P.W.4 is getting corroboration from the evidence of his mother (P.W.2), who has stated that she was in the house at the time of incident and the deceased was making bamboo tati near the verandah of the house along with P.W.4 and suddenly P.W.4 called her by saying, ‘BOULO MARI PAKAELA’ and on hearing this, she immediately came to the spot and saw the appellant assaulting the deceased on the head of the deceased with a thenga and then fled away from the spot. She further stated that the deceased fell down on the ground due to the CRLA No.456 of 2022 Page 31 of 43 // 32 // assault having sustained bleeding injuries on the head. In the cross-examination, no question has been put to P.W.2 relating to the assault and whatever questions have been put, no way discredit her version. Since number of injuries were noticed on the person of the deceased as per the post mortem report proved by the doctor (P.W.15) and the distance from the spot to where P.W.2 was there at the time of occurrence, the contention of the learned counsel for the appellant that by the time P.W.2 arrived at the scene of occurrence after hearing the shout of P.W.4, the appellant must have left the spot, is not acceptable. Number of blows given indicates that the appellant was present for sometime at the scene of occurrence. Thus, I find no infirmity in the evidence of P.W.2 and P.W.4. Further, the contention of the learned counsel for the appellant that P.W.2 and P.W.4 being related to the deceased, are likely to give false evidence against the appellant, is not acceptable. Related witnesses are not necessarily false witnesses. Unless their evidence suffers from serious infirmity or raises considerable doubt in the mind of the Court, it would not be proper to discard their CRLA No.456 of 2022 Page 32 of 43 // 33 // evidence straight away. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefits from the result of litigation. Close relatives of the deceased are most reluctant to spare the real assailants and falsely mention the names of other persons. Therefore, close relationship of a witness to the deceased is no ground for not acting upon his testimony, if the evidence is otherwise found to be reliable after close scrutiny. The Hon’ble Supreme Court in the case of Laltu Ghosh -Vrs- State of W.B. reported in (2019) 15 Supreme Court Cases 344 has clearly held that there are differences between ‘related witnesses’ and ‘interested witnesses’ and has observed as follows: “12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between “interested” and “related” witnesses in a plethora of cases, stating that a witness may be called interested only when he or she CRLA No.456 of 2022 Page 33 of 43 // 34 // derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki [State of Rajasthan v. Kalki, (1981) 2 SCC 752 : 1981 SCC (Cri) 593] ; Amit v. State of U.P. [Amit v. State of U.P., (2012) 4 SCC 107 : (2012) 2 SCC (Cri) 590] and Gangabhavani v. Rayapati Venkat Reddy [Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182]).” After careful analysis of the evidence of P.W.2 and P.W.4, I find that even though they are closely related to the deceased being the widow and son of the deceased respectively, but since their versions appear to be truthful, consistent and are getting corroboration from the medical evidence, I am of the view that the learned trial Court has rightly placed reliance on versions of these two witnesses. CRLA No.456 of 2022 Page 34 of 43 // 35 // Non-sending of the weapon of offence to the doctor (P.W.15): 12. The I.O. (P.W.17) seized the lathi from the spot during his spot visit on 12.12.2013 as per the seizure list (Ext.3) and he stated that on 10.02.2014, he made a query to the doctor (P.W.9) with regard to the possibility of injury by such weapon. P.W.9 who examined the deceased at Badasahi C.H.C. has opined as per his report marked as Ext.4. that the injuries sustained by the deceased were possible by non-sal stick. Even though such stick has not been sent again to the doctor (P.W.15), who conducted post mortem examination, the same cannot be a ground to disbelieve the prosecution case. Whether the appellant suffered from unsoundness of mind at the time of commission of the offence?: 13. Section 84 of the I.P.C. provides that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. In a case where the CRLA No.456 of 2022 Page 35 of 43 // 36 // exception under section 84 of the I.P.C. is claimed, the Court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law. The Court must consider whether the accused suffered from legal insanity at the time when the offence was committed. In reaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant consideration. Abnormality of mind is not by itself sufficient to show that the accused must have acted while of unsound mind. The mere fct that on former occasions the accused had been occasionally subject to insane delusions or had suffered from derangement of the mind or that subsequently he had at times behaved like a mentally deficient person is per se insufficient to bring his case within the exemption. The principle embodied in the chapter is based upon the maxim 'actus non facit reum, nisi mens sit rea’, i.e., an act is not criminal unless there is criminal intent. The entire conduct of the accused, from the time of the commission of the offence up to the time the Sessions CRLA No.456 of 2022 Page 36 of 43 // 37 // proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bonafide or an after-thought one. (Ref: T.N. Lakshmaiah -Vrs.- State of Karnataka : (2002) 1 Supreme Court Cases 219). In the case of Sudhakaran -Vrs.- State of Kerala reported in (2010) 10 Supreme Court Cases 582, it has been held that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of section 84 is the time when the offence is committed. The prosecution has to prove beyond reasonable doubt that at the time of commission of the offence, the accused had the requisite mens rea, however rebuttable presumption can be advanced by the accused by way of oral, documentary or circumstantial evidence but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or CRLA No.456 of 2022 Page 37 of 43 // 38 // more of the ingredients of the offence, including mens rea of the accused and in that case, the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. In the case of Surendera Mishra -Vrs.- State of Jharkhand reported in (2011) 48 Orissa Criminal Reports (SC) 495, the Hon’ble Supreme Court, while denying protection of section 84 of the I.P.C. to the accused, held as follows:- “9. In our opinion, an accused who seeks exoneration from liability of an act under section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the CRLA No.456 of 2022 Page 38 of 43 // 39 // physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of section 84 of the Indian Penal Code.” To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntas est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior. A person alleged to be suffering from any mental disorder cannot be exempted from criminal CRLA No.456 of 2022 Page 39 of 43 // 40 // liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such a mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability. (Ref: State of Rajasthan -Vrs.- Shera Ram : (2012) 1 Supreme Court Cases 602) In the case in hand, neither any medical evidence has been adduced by the appellant in support of legal unsoundness of mind nor has any clinching oral evidence been adduced in that respect. P.W.1 has stated that the appellant was mentally retarded. The appellant being examined himself as D.W.1 has stated that his mental condition was not good from his childhood and while he was in jail, his father was bringing medicines which he was CRLA No.456 of 2022 Page 40 of 43 // 41 // taking in jail and after the course of medicine was over, he was advised not to take any such medicine until again he had mental problem. He further stated that after taking medicines, there was no relapse of the mental problem. P.W.1 has not stated to be providing any medicine to the appellant in jail nor any doctor has been examined who had prescribed medicines for the appellant. D.W.2, the sister of the deceased as well as the appellant has also stated that the appellant was mad and at the time of occurrence, the mental condition of the appellant was not good and he was undergoing treatment. She further stated that the documents with regard to mental condition of the appellant were submitted before Advocate Banabihari Mishra, who was conducting the case and the said advocate died and the medical documents were not returned to them. In cross- examination, D.W.2 has stated that when P.W.1 was examined in the case, at that time, Advocate Banabihari Mishra was alive and she had accompanied P.W.1 on the relevant day when he tendered his evidence in the Court. She further admitted that they did not produce any prescription or any documents in the Court or before the CRLA No.456 of 2022 Page 41 of 43 // 42 // police in support of the madness or mental health of the appellant. Therefore, the evidence adduced by the three witnesses, i.e. P.W.1, D.W.1 and D.W.2 are not sufficient to hold that the appellant by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. P.W.2 has stated that there was dispute between the appellant and deceased relating to landed properties. Both P.W.2 and P.W.4 have stated that the appellant fled away from the spot after assaulting the deceased. Therefore, the conduct of the appellant preceding the assault, at the time of assault and after the assault, which are of relevant consideration do not in any way show that he was in such a state of mind which would come within legal insanity, No such plea has also been taken in the accused statement. Therefore, I am of view that that learned trial Court was quite justified in observing that the appellant was not insane at the time of commission of the act and was well aware of the consequences of his act and as such he is not entitled to get any relief under section 84 of the I.P.C. CRLA No.456 of 2022 Page 42 of 43 // 43 // Conclusion: 14. In view of the foregoing discussions, I am of the view that even though the evidence of P.W.1 as an eye witness to the occurrence, is not acceptable, but in view of the evidence of P.W.2 and P.W.4 coupled with the medical evidence and the manner in which the assault has been made and repeated blows were given by the appellant to the deceased and the impact of such blows as appears from the post-mortem report findings as per Ext.6, the learned trial Court has rightly come to the conclusion that the prosecution has successfully able to bring home the charge under section 302 of the I.P.C. against the appellant beyond all reasonable doubt. Accordingly, the appeal being devoid of merit, stands dismissed. S.K. Mishra, J. I agree. Orissa High Court, The 19th January 2024/PKSahoo .......................... S.K. Sahoo, J. .......................... S.K. Mishra, J. CRLA No.456 of 2022 Page 43 of 43 Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 19-Jan-2024 10:50:37