The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.34 Of 2020 From judgment and order dated 05.05.2020 passed by the Sessions Judge, Gajapati, Paralakhemundi in S.T. Case No.28 of 2018. ---------------------------- Sarathi Gomango ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Ms. Sasmita Nanda Amicus Curiae For Respondent: - Mr. Arupananda Das Addl. Govt. Advocate ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 08.02.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Sarathi Gomango faced trial in the Court of learned Sessions Judge, Gajapati, Paralakhemundi in S.T. Case No.28 of 2018 for commission of offence punishable under section 302 of the Indian Penal Code on the accusation // 2 // that on 04.12.2017 at about 11.00 p.m. in the night in village Badasada Sargisahi in front of the house of the deceased Dandapani Karji, he assaulted the deceased and committed his murder. The learned trial Court vide impugned judgment and order dated 05.05.2020 though acquitted the appellant of the charge under section 302 of the Indian Penal Code, but found him guilty under section 304 Part-II of the Indian Penal Code and sentenced him to undergo imprisonment for five years. 2. The prosecution case, in short, is that on 04.12.2017 in the night at about 11.00 p.m., while the informant Smt. Sarojini Karjee (P.W.3) and her husband (deceased) were sleeping in their house along with their two sons, at that time, the appellant knocked at the door and when the deceased opened the door, on account of previous hostility, the appellant quarrelled with the deceased, abused him in obscene language and when the deceased protested, the appellant assaulted him by kick and fist blows and picked up a lathi lying from the nearby spot and dealt a blow on the head of the deceased, as a result of which the deceased met instantaneous death at the spot. On the oral report of P.W.3, P.W.4 Bijay Kumar Nayak scribed the written report and the same was presented Page 2 of 19 // 3 // before P.W.16 Alok Ranjan Jagadala, the Officer in-charge of Ramgiri police station at the spot and accordingly, P.W.16 treated the report as F.I.R. and registered Ramgiri P.S. Case No.28 dated 05.12.2017 under section 302 of the Indian Penal Code against the appellant and himself took up investigation of the case. During course of investigation, P.W.16 examined the informant, other witnesses, recorded their statements, visited the spot, prepared the spot map (Ext.8), seized the weapon of offence i.e. lathi, blood stained earth and sample earth under seizure list (Ext.3), held inquest over the dead body of the deceased in presence of the witnesses and prepared the inquest report and then he sent the dead body for post mortem examination to District Headquarters Hospital, Gajapati where P.W.7 Dr. Rasmikanta Mishra conducted the post mortem examination on 06.12.2017 and he found swelling and bleeding injury on the left side head of the deceased and he opined that the cause of death was on account of head injury, haemorrhage and shock and he submitted his post mortem examination report vide Ext.4. P.W.16, the Investigating Officer arrested the appellant on 05.12.2017 and forwarded him to Court on 06.12.2017 after seizure of his wearing apparels as per seizure Page 3 of 19 // 4 // list Ext.5 and medical examination and collection of nail clipping and blood sample. The wearing apparels of the deceased were also seized after it was produced by the escorting police constable and the weapon of offence which was seized at the spot was also sent to the doctor (P.W.7) for examination and opinion and P.W.7 opined that the injury noticed on the head of the deceased was possible by the seized wooden lathi and submitted his report vide Ext.10/2. The biological samples and the seized articles were sent to R.F.S.L., Berhampur for chemical examination and the Investigating Officer after receipt of the post mortem examination report submitted charge sheet against the appellant under section 302 of the Indian Penal Code on 02.04.2018. 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 on 08.05.2018 framed charges against the appellant as already stated and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. During course of trial, in order to prove its case, the prosecution has examined as many as sixteen witnesses. Page 4 of 19 // 5 // P.W.1 Prafulla Bhuyan, P.W.2 Padma Mandal are the witnesses to the inquest but they did not support the prosecution case.
Legal Reasoning
There is no dispute that the star witness on behalf of the prosecution is none else than P.W.3 Sarojini Karjee, the widow of the deceased. She is the informant in the case and stated that on the date of occurrence, while she along with her husband were sleeping in their house in the night, the appellant knocked at the front door and when she opened the door, the appellant and her husband (deceased) quarrelled with each other and at the time of quarrel, the appellant by means of a wooden plank assaulted on the head of the deceased as a result of which he sustained bleeding injury and her husband died instantly at the spot due to such assault. Though she stated that her father- in-law Kabalu Karjee (P.W.5) and other witnesses had seen the occurrence, but no other witnesses supported the prosecution case relating to the assault by the appellant on the deceased. P.W.3 further stated that since it was night time, she could not go to the police station and on the next day, she requested Bijay Kumar Nayak (P.W.4), who is one of her co-villagers to write down the F.I.R. and accordingly, P.W.4 scribed the F.I.R. and she signed on the same and it was presented to the police. Page 11 of 19 // 12 // Though in the cross-examination of P.W.3, some confrontations have been made relating to the first information report as well as her statement recorded under section 161 Cr.P.C., but nothing has been proved through the I.O. Law is well settled that not only the attention of the witness is to be drawn to the previous statement in writing or reduced to writing for the purpose of giving reasonable opportunity to the witness to explain the contradiction, but also the same has to be proved through the Investigating Officer who has taken down the same in writing. If a witness for the prosecution admits his previous statement before police, such admission can be relied on by the accused as establishing the contradiction. If however, the witness denies having made such a statement before police or in the F.I.R. which is reduced into writing on the oral report of the informant by police, when the Investigating Officer comes to the witness box, he should be questioned as to whether that particular statement had been made during investigation by the said witness or at the time of lodging of F.I.R. and obviously the Investigating Officer after refreshing his memory from the case diary would answer. Such answer would prove the contradiction. If merely the attention of the witness has been drawn to the previous statement to prove the contradictions and she denies Page 12 of 19 // 13 // the same and it is not proved through the I.O., the same cannot be utilized for the purpose of proving contradictions in view of section 145 of the Evidence Act. Therefore, whatever confrontations have been made relating to the previous statement recorded under section 161 of Cr.P.C. or the F.I.R., that has not been proved in accordance with law, moreover on going through the F.I.R., 161 Cr.P.C. statement (though ordinarily it should not be looked into) and the evidence in Court, it appears that there are no such contradictions in the evidence of P.W.3 vis-à-vis her previous statement or in the F.I.R. When a confrontation is made to a witness relating to his previous statement made before the I.O. to prove contradictions, not only the Public Prosecutor but also the Judge is expected to remain alert to see in fact there are any such contradictions or not. Unless there is active participation, there is chance of wrong recording of evidence. The evidence of P.W.3 cannot be rejected on the ground that she is an interested witness as she is the only and most natural witness, who was present in her house with the deceased at the time of occurrence. ‘Related’ is not equivalent to be ‘interested’. A witness may be called interested only when he or she derives some benefit from for the result of litigation like in Page 13 of 19 // 14 // the decree in a civil case or in seeing an accused person punished. A witness who is natural one and is the only possible eye witness in the circumstance of the case cannot be said to be interested. Law is well settled that the Court can act upon the statement of a solitary witness if it is clear, cogent, trustworthy, believable and aboveboard and in criminal trial, number of witnesses does not matter but it is a quality of evidence which matters. In the case of Gobinda Raju -Vrs.- State reported in (2012) 4 Supreme Court Cases 722, the Hon’ble Supreme Court held that it is not the number of witnesses that matters but it is the substance. It is not necessary by the prosecution to examine a large number of witnesses, if the prosecution can bring home the guilt of the accused even through a limited number of witnesses. On careful analysis of the evidence of P.W.3, the solitary eye witness, it appears that nothing has been brought on record in her cross-examination to disbelieve her evidence and it has remained unshaken. Moreover, the other witnesses who arrived at the scene of occurrence also found the dead body of the deceased lying at the spot with bleeding injuries, which has been deposed to by P.W.5 and P.W.6. The inquest report also Page 14 of 19 // 15 // indicates that it was conducted in front of the house of the deceased where according to P.W.3 the occurrence took place. In my humble view, the learned trial Court has rightly placed reliance on the evidence of P.W.3. 9. The doctor (P.W.7), who conducted post mortem examination over the dead body of the deceased on 06.12.2017 at D.H.H., Paralakhemundi found the following injury:- (i) Swelling and bleeding from left side of head near parietal, occipital and temporal region of scalp. Stout body built, average colour, height 5’7”, rigor mortis was found over all four limbs, eyes closed, bleeding from both nostrils and left side of head. Swelling and bruise size 1” x 4” left side parietal and temporal region with blood coming on it. Membranes were ruptured with haemorrhage. Brain was congested on that side. The doctor opined that the cause of death was on account of head injury, haemorrhage and shock and time since death is within twenty four hours to thirty six hours prior to post mortem examination. The post mortem examination report has been marked as Ext.4. Page 15 of 19 // 16 // It is correct that the doctor has stated that the injury noticed on the dead body can be possible by coming in contact with hard surface with a force but that cannot be a factor to disbelieve the prosecution case more particularly the evidence of eye witness (P.W.3) and accept the defence plea that due to accidental fall being in a drunken condition, the deceased sustained the injury on the head. 10. The I.O. (P.W.16) has stated that on 11.12.2017, he issued requisition to Medical Officer, District Headquarters Hospital, Gajapati for examination of the weapon of offence and the query report vide Ext.10/2 was obtained and it indicates that the injuries sustained by the deceased are possible by such weapon. Though this part of query report where the opinion has been given should have been proved through the doctor (P.W.7) but inadvertently the Public Prosecutor failed to drew the attention of P.W.7 to the query report. However, the doctor (P.W.7) has denied the suggestion of the learned defence counsel that the weapon of offence was not produced before him. Therefore, the cumulative effect of the oral evidence of P.W.3 which is corroborated by the medical evidence adduced by P.W.7 clearly establishes that it is the appellant, who dealt a Page 16 of 19 // 17 // blow on the head of the deceased by wooden plank which resulted in his death. 11. Now, let me deal with the submission of the learned Amicus Curiae that the prosecution has failed to establish any motive behind the crime. Law is well settled that motive for doing a criminal act is generally a difficult area from the prosecution to prove since one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Even in absence of specific evidence as to motive, if the eye witness account is believable and trustworthy, the same can be relied upon. In other words, in case of direct evidence, motive falls into insignificance. Therefore, merely because in the case in hand, the prosecution has not proved any motive on the part of the appellant to assault the deceased, that cannot be a ground to discard the prosecution case. The contention of the learned Amicus Curiae that P.W.3 though claimed to be an eye witness to the occurrence, was closely related to the deceased, but she did not protest to the assault made by the appellant which makes evidence unreliable. Law is well settled that the post event conduct of a witness varies from person to person and it cannot be a cast-iron reaction to be followed as a model by everyone witnessing such Page 17 of 19 // 18 // event. Different persons would react differently on seeing any violence and their behaviour and conduct would be different. Therefore, having witnessed a ghastly murder of the husband, merely because P.W.3 did not resisted or protested, her testimony cannot be rejected on that score. 12. The learned trial Court has taken into account that it is a case of single blow during the scuffle and the appellant had not come with an intention or bringing any lethal weapon with him to the spot and therefore, it was held that he had no intention but knowledge can be attributed to the appellant to the overt act committed by him in assaulting the deceased on the head with the weapon and therefore, in my humble view, the learned trial Court has rightly acquitting the appellant of the charge under section 302 of the Indian Penal Code, found him guilty under section 304 Part-II of the Indian Penal Code. The sentence imposed by the learned trial Court under no stretch of imagination can be said to be excessive. Accordingly, the JCRLA being devoid of merit, stands dismissed. It appears that the appellant was taken into judicial custody in connection with this case on 06.12.2017 and neither he was on bail in the trial Court nor he was granted bail by this Page 18 of 19 // 19 // Court during pendency of the Jail Criminal Appeal and thus, he has already undergone substantive sentence which has been imposed by the learned trial Court and also confirmed by this Court for the offence under section 304 Part-II of the Indian Penal Code. Therefore, if the appellant has not yet been released from jail custody, he shall be set at liberty forthwith, if his detention is not required otherwise in any other case. Trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Ms. Sasmita Nanda, the learned Amicus Curiae for rendering her valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to her professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 8th February 2023/RKMishra Page 19 of 19
Arguments
P.W.3 Smt. Sarojini Karjee is the informant in the case and the widow of the deceased. She supported the prosecution case and stated about the incident. P.W.4 Bijay Kumar Nayak is the scribe of the F.I.R. (Ext.2). P.W.5 Kabalu Karjee is the father of the deceased and also father-in-law of the informant. He stated that on the date of occurrence he was sleeping in his house and hearing shout, he woke up and rushed to the spot and saw the deceased lying in dead condition with bleeding injury and he came to know from the villagers that the appellant assaulted his son and killed. P.W.6 Hari Mandal is a witness to the seizure of a wooden plank, blood stain earth and sample earth as per seizure list Ext.3. P.W.7 Dr. Rasmikanta Mishra, who was the E.N.T. Consultant at D.H.H., Parlakhemundi conducted post mortem examination over the dead body of the deceased on police requisition and proved the post mortem report vide Ext.4. Page 5 of 19 // 6 // P.W.8 Susanti Kumari Choudhury was the constable attached to Ramagiri police station and also a witness to the seizure of one light blue pant, a blue coloured shirt and merun coloured chadi as per seizure list Ext.5, two sample packets containing nail clippings and blood sample of the appellant as per seizure list Ext.6 and a black coloured shirt as per seizure list Ext.7. P.W.9 Surendra Bhuyan did not support the prosecution case. P.W.10 Rangu Mandal, P.W.11 Padma Karjee, P.W.12 Smt. Srimati Bhuyan and P.W.13 Pratap Karji did not support the prosecution case for which they were declared hostile by the prosecution. P.W.14 Bharat Kumar Raita was the homeguard attached to Ramagiri police station and also a witness to the seizure of nail clipping and blood sample of the appellant as per seizure list Ext.6. P.W.15 Abhimanyu Pradhan was the havildar attached to Ramagiri police station and also a witness to the seizure of one blood stained black coloured half pant of the deceased as per seizure list Ext.7. Page 6 of 19 // 7 // P.W.16 Alok Ranjan Jagdala was the Officer in- charge of Ramagiri police station, who is the Investigating Officer in the case. The prosecution exhibited twelve numbers of documents. Ext.1/2 is the inquest report, Ext.2 is the plain paper F.I.R., Ext.3 is the seizure list of wooden plank, blood stained earth and sample earth, Ext.4 is the post mortem report of the deceased, Ext.5 is the seizure list of one light blue pant, one blue coloured shirt and maroon coloured chadi, Ext.6 is the seizure list of two sample packets containing nail clippings and blood sample, Ext.7 is the seizure list of black coloured shirt, Ext.8 is the spot map, Ext.9 is the dead body challan, Ext.9/2 is the requisition for post mortem examination of the deceased, Ext.10 is the requisition to M.O., D.H.H., Gajapati for examination of the weapon of offence, Ext.10/2 is the query report, Ext.11 is the forwarding report to the R.F.S.L., Berhampur and Ext.12 is the C.E. Report. No witness was examined on behalf of the defence. 5. The defence plea of the appellant is one of denial. It is the further plea that on the date of occurrence, while returning home in a drunken condition, the deceased accidentally fell Page 7 of 19 // 8 // down, received injuries and died and a false case has been foisted. 6. The learned trial Court after analyzing the oral as well as documentary evidence on record came to hold that the delay in lodging the first information report by P.W.3 has been sufficiently explained by the informant (P.W.3) and the evidence of P.W.3 remains unaltered and unadultered regarding the assault by the appellant on the parietal region of the head which resulted in the death of the deceased which finds corroboration from the evidence of the doctor. It was further held that P.W.3, the wife of the deceased being the best witness of the occurrence can be solely trusted upon to place reliance upon the prosecution case. The learned trial Court further held that the assault by the appellant, the backdrop of the assault visibly apparent on the version of the wife of the deceased and the version of the ocular witness being coherent with the opinion evidence, the injury even though held to be unintentional to commit murder of the deceased, has led to the death of the deceased and as such the knowledge and hand of the appellant cannot be disbelieved. Accordingly, while acquitting the appellant of the charge under section 302 of the Indian Penal Code, it was Page 8 of 19 // 9 // held that the appellant was divorced with the intention but married to the knowledge and all the aforesaid facts reinforce the bonafide claim of the legal jurisprudence to bring the offensive of the appellant in the cabin of section 304(II) of the Indian Penal Code. 7. Ms. Sasmita Nanda, learned counsel, who was appointed as Amicus Curiae by this Court to assist the Court for the appellant contended that though the evidence of the witnesses indicate that the weapon of offence was seized at the spot but the same was not produced in Court during trial, which is a lacuna in the prosecution case. It is further submitted that the presence of the widow (P.W.3) of the deceased at the scene of occurrence is a doubtful feature as she did not protest even though the appellant quarrelled with the deceased and assaulted her by wooden plank. It is further argued that P.W.3 is a highly interested witness being the widow of the deceased and there was no motive behind the commission of crime and therefore, it is a fit case where 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 contended that the Page 9 of 19 // 10 // presence of P.W.3, the widow of the deceased at the scene of occurrence cannot be disputed as the spot is in front of the house of the deceased where the appellant had gone and called the deceased and the assault took place. It is further contended that the reaction of a particular person after seeing a ghastly murder of close relative would vary from person to person and merely because there is no evidence that P.W.3 did not protest cannot be a ground to disbelieve her evidence as in all probability, she might have been dump founded after seeing such crime before her eyes when the deceased was none else than her husband. It is further submitted that the weapon of offence was, in fact, sent by the I.O. to P.W.7 for his examination and the report to that effect has been proved through the I.O. as Ext.10/2 which clearly reveals that the injury sustained by the deceased was possible by infliction of blow with the weapon of offence i.e. wooden lathi. It is further argued that when the eye witness account of P.W.3 is believable and it is trustworthy, merely because the prosecution has failed to establish any motive behind the crime, that cannot be a ground to disbelieve the prosecution case and therefore, rightly the learned trial Court has convicted the appellant under section 304 Page 10 of 19 // 11 // Part-II of the Indian Penal Code and the appeal should be dismissed. 8.