The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.55 of 2021 In the matter of an Appeal under section 383 of Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 29th September, 2021 passed by the learned Additional Sessions Judge, Talcher, in C.T. (S) No. 14 of 2016. Mutu @ Ishwar Naik …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.A.K. Sarangi (Advocate) For Respondent - Mr.S.S.Kanungo Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 17.01.2023 : Date of Judgment:10.02.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the Jail, has assailed the judgment of conviction and order of sentence dated 29th September, 2021 passed by the learned Additional Sessions Judge, Talcher, in C.T. (S) No. 14 of 2016 arising out of G.R. Case No.144 of 2015 corresponding to Pallahara P.S. Case No.69 of 2015 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Pallahara. JCRLA No.55 of 2021 Page 1 of 11 {{ 2 }} The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.50,000/- (Rupees Fifty Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the offence under section 302 IPC. 2. Prosecution Case:- On 11.09.2015, around 08.30 a.m., the informant (Rajani Naik) lodged a written report with the Inspector-in-Charge (IIC) of Pallahara Police Station that on that day around 6.00 a.m. when she was sleeping on the Verandah of her house, hearing the cry of her mother, namely, Kandiri (deceased), her attention was drawn and she then saw the accused, who happens to be her cousin brother, pressing the neck of her mother, who was then asking the reason for the same. Seeing the informant, the accused tying the ‘Gamuchha’ on the neck of her mother, dragged her towards his house. Since the informant was ill, she could not raise shout but followed them when accused threatened her to kill if she would go near him. The informant then saw the accused causing the death of her by pressing her neck by that ‘Gamuchha’ and left for his house throwing the deceased. Thereafter, the informant told about the incident to other villagers and when the informant along with others arrived the spot, they saw the dead body of the deceased on the verandah of the house of the accused. Basing on the aforesaid report submitted by the daughter of the deceased (Informant), the IIC registered Pallahara P.S. Case No.69 of 2015 and took up the investigation. JCRLA No.55 of 2021 Page 2 of 11 {{ 3 }} During investigation, the Investigating Officer (I.O.-P.W.13) examined the Informant (P.W.7) and recorded her statement under section 161 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.’) and visited the spot, prepared the spot map (Ext.8), held inquest over the dead body of the deceased and prepared inquest report (Ext.1). He then sent the dead body for post mortem examination by issuing requisition, seized the ‘Gamuchha’, one navy blue full pant, one white stripped half shirt from the possession of the accused and prepared the seizure list (Ext.2). He also made a query to the Doctor as to if the death of the deceased could be possible by the seized ‘Gamuchha’. On completion of the investigation, the Final Form was submitted placing the accused to face the trial for commission of offence under section 302 IPC. 3. The plea of the defence is that of complete denial. 4. The prosecution, in course of trial, has examined in total thirteen (13) witnesses. Out of them, as already stated, P.W.7 is the Informant, who happens to be the daughter of the deceased. P.W.1 is another cousin brother of the Informant and P.Ws.2 & 3 are relatives of the accused and the Informant. P.W.4, the computer operator then attached to the P.S is a witness to the seizure. P.W.5 is the Doctor, who held the autopsy over the dead body of the deceased. P.Ws.6& 10 are co-villagers of the
Facts
deceased, informant and the accused. P.W.6 is also the scribe of the FIR and a post occurrence witness. P.Ws.8 & 12 are two seizure witnesses. The Investigating Officer of the case has come to the witness box at the end as P.W.13. JCRLA No.55 of 2021 Page 3 of 11 {{ 4 }} The defence, in support of its case, has examined none. Besides leading the evidence by examining the above witnesses, the prosecution has also proved the documents, which have been admitted in evidence and marked Exts.1 to 15. Out of those, importants are the FIR (Ext.6/4), the inquest report (Ext.1) and the post mortem report (Ext.4). The seizure lists have been proved and marked Ext.2, Ext.3 and Ext.7. The spot map prepared by P.W.13 has been admitted in evidence and marked Ext.8. 5. The Trial Court on going through the evidence of the Doctor who had conducted the post mortem examination over the dead body of the deceased Kandiri examined as P.W.5 and the post mortem examination report (Ext.4) as well as the subsequent opinion given separately under Ext.5 and taking all those into account with the other evidence on record such as the evidence of the witness (P.W.7) has concluded that the death of Kandiri was homicidal in nature. Having said as above, proceeding to examine the evidence of other witnesses as well as the documents admitted in evidence from the side of the prosecution upon their appreciation at its level has held the prosecution to have established the charge against the accused beyond reasonable doubt and accordingly, the accused has been held guilty for intentionally causing the death of Kandiri and he has been sentenced as afore-stated. 6. First of all, We find that even during the trial there was no such challenge from the side of the defence as to the homicidal nature of death of Kandiri as per the case of the prosecution. That is also the situation before us. JCRLA No.55 of 2021 Page 4 of 11 {{ 5 }} Evidence of P.W.5, the Doctor who had conducted the post mortem examination over the dead body of the deceased is very specific that the face of the deceased was congested, tongue protruding out, eyes closed and there was abrasion and bruise on the back side of the left ankle as well as multiple pressure abrasion in front of the neck extending to both the sides with multiple irregular nail marks on both side of neck. It is the evidence of P.W.5 that on dissection he has noticed that underneath neck muscles, there was extensive contusion of neck muscle with extra extravasation of blood in soft tissue. He also noticed the brain matter congested and there was multiple petechial haemorrhage in brain. All these injuries are said to be ante mortem in nature. The opinion of the Doctor, as has been deposed to, have also been noted in the post mortem report (Ext.4) further indicating that compression injury being ante mortem in nature is consistent with strangulation, which is also the prosecution case that the deceased was strangulated to death with the help of a ‘gamuchha’. That ‘gamuchha’ (M.O.II) being produced before P..W.5, his evidence in support of the opinion given under Ext.5 is that said ‘gamuchha’ was sufficient to cause death by strangulation by causing suffocation. In view of the evidence as afore-discussed, We find absolutely no difficulty to concur with the finding of the Trial Court that the death of Kandiri was homicidal in nature. 7. Learned counsel for the Appellant submitted that the entire prosecution case here is based on the evidence of P.W.7 who happens to be the daughter of the deceased. He further submitted that when as per the evidence of P.W.7, there was no such prior dispute between them JCRLA No.55 of 2021 Page 5 of 11 {{ 6 }} and the accused nor they any litigation, the Trial Court ought not to have believed P.W.7 to have seen the incident which she has deposed describing the role of the accused therein. He further submitted that P.W.7 when has stated before one Muni (P.W.6) that she heard her mother shouting “Mote Kanhiki Maruchu” and as P.W.6 has stated completely different that P.W.7 had gone in a crying condition and told that accused has committed the murder of her mother by pressing her neck by the ‘gamucha’ and at that time one Jaitri Naik was present with P.W.6, the evidence of P.W.7 ought not to have been held to be
Legal Reasoning
committing the offence of murder of Kandiri. Thus, We are of the view JCRLA No.55 of 2021 Page 10 of 11 {{ 11 }} that the judgment of conviction and order of sentence must receive the seal of confirmation. 14. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 29.09.2021 passed by the learned Additional Sessions Judge, Talcher in C.T.(S) No.14 of 2016 are hereby confirmed. Dr. S.K. Panigrahi I agree. (D. Dash) Judge. (Dr. S.K. Panigrahi) Judge. Basu JCRLA No.55 of 2021 Page 11 of 11
Arguments
surrounded with suspicion. It was submitted that such evidence of P.W.6 in implicating the accused is a super addition at the time of trial and P.W.6 being the elected Ward Member, since he was bearing grudge against the accused, has promoted P.W.7 to falsely depose in implicating this accused, which P.W.7 had obeyed. He submitted that non-examination of that Jaitri Naik in the facts and circumstances of the case is fatal and according to him, prosecution has purposely withheld her from the witness box as her evidence would have gone against the case of the prosecution as she would not have supported the version of P.W.6 that P.W.7 had told in attributing the accused in causing the death of her mother. In view of all these, he contended that the solitary testimony of P.W.7 upon which the conviction of the accused has been based ought not to have ben relied upon. It was submitted that except the evidence of P.W.7, there being no other evidence on record and when evidence of P.Ws.6 & 7 greatly differs on material particulars, in the absence of any other strong corroborative evidence, the finding of guilt against the accused that it is he who has killed Kandiri cannot be sustained. JCRLA No.55 of 2021 Page 6 of 11 {{ 7 }} 8. Learned counsel for the State from the beginning did not dispute that P.W.7 is the sole eye-witness to the occurrence. He submitted that merely because P.W.7 is the daughter of the deceased; she should not be termed to be an interested witness and rather, she should be taken to be the witness interested to bring the real culprit to book. It was further submitted that the circumstances which have been narrated by P.W.7 establishe her presence and her evidence was very natural when no such contradiction surfaces therein nor any such suspicious features have been brought out to throw any doubt on her testimony to say as not of starling quality. According to him, the evidence of P.W.7 also receives corroboration from the evidence of P.W.6, who has stated to have been told by P.W.7 immediately after the occurrence. Inviting the attention of the Court to the evidence of P.W.7 and placing further that the F.I.R. in the particular case (Ext.6) having been lodged within a period of two and half hours from the time of occurrence, he submitted that the chance of false implication is completely ruled out. He submitted that the evidence of P.W.7 even though is put to strict scrutiny from every angle and appreciated in the touch stone of the surrounding circumstances, the same is wholly reliable and, therefore, the Trial Court did commit no mistake in safely relying upon the testimony of P.W.7 to hold the accused guilty of committing the murder of Kandiri. 9. Keeping in view the submissions made, We have carefully read the impugned judgment of conviction passed by the Trial Court. We have also travelled through depositions of witnesses examined from the side of the prosecution P.Ws.1 to 13 and have perused the documents admitted in evidence and marked Exts.1 to 15. JCRLA No.55 of 2021 Page 7 of 11 {{ 8 }} 10. The principle is well settled that evidence of solitary witness can from the basis of conviction even if the witness is related to the deceased and simply, for that reason corroboration is not a must. The court can act on the solitary testimony of a witness though uncorroborated provided said witness is wholly reliable and trustworthy and her evidence is of sterling quality, impeachable in nature and above board. 11. Bearing the aforesaid principle as to appreciation of evidence of solitary witness in mind, let us now proceed to discuss the evidence of P.W.7. The deceased is the mother of the witness, P.W.7 and accused is the son of her paternal uncle. It has been stated by P.W.7 that the occurrence took place two years before she deposed, on one morning around 6 a.m. in her parental house at village Karadapala. It is her evidence that at the relevant time, her mother was sweeping the front side courtyard of their house when accused reached there and compressed her neck by means of a ‘gamuchha’ and having committed her murder dragged the dead body towards his house. Regarding her presence at the relevant time in seeing the incident, it has been stated by her on oath that she was then sleeping on the outer varandah of the house and hearing the shout of her mother when she opened her eyes, she saw accused compressing the neck of her mother by that ‘gamuccha’. The natural reaction of this witness is also revealed when he has stated that seeing that then he questioned the accused as to why he had committed the murder of her mother, the accused also threatened her to murder, in case she would go near him and so inform in the village that he had committed the murder of mother of P.W.7. The JCRLA No.55 of 2021 Page 8 of 11 {{ 9 }} defence during cross-examination although has grilled this P.W.7 to create doubt in the mind as to her presence at the spot at the relevant time, that endeavor appears to have been wholly unsuccessful. This P.W.7 during cross-examination has stated that there was no rain on the date of occurrence and she was then sleeping on the varandah of the house as she was suffering from tuberculosis. Thus, the evidence of P.W.7 as to sleeping on the outer varandah of the house and opening the eyes hearing the shout of her mother when she states to have seen the accused compressing the neck of her mother by means of a ‘gamuchha’ in the absence of any such suspicious feature emerging from her evidence and when she is found to have been stated everything in a very natural manner and her conduct too appears to be not at all abnormal and with regard to the absence of any other member in the family, she being asked, she has stated that her husband then had gone to work as a daily labourer at Bhubaneswar, is wholly acceptable. This P.W.7 on being questioned during cross-examination has also stated as under:- “Accused Iswar Put the napkin around the neck of my mother and hold the napkin rightly by both his hand and committed her murder and dragged her.” 12. The Trial Court has noted the demonour of the witnesses in answering such question. It has been noted that the witness showed by putting her saree around her neck and holding her saree near her throat by her own hands. Some discrepancies of course have been brought out when he has stated during cross-examination that her mother shouted “Kana Paini Maruchhu” whereas, it has been mentioned in the F.I.R. as “Kira Paini Maruchhu”. But that has been stated by the Trial Court that “Kira” JCRLA No.55 of 2021 Page 9 of 11 {{ 10 }} means “Kana Paini”, which clarifies the matter. When this P.W.7 has stated to have informed Jaitri Naik, Muni, Chandra and others about the incident, P.w.6 Muni has also so stated that P.W.7 had been to him in a crying condition and stated that accused had committed murder of her mother by pressing her neck by one napkin. Even though Jaitri has not been examined when P.W.6 has stated that she was also present, yet in the absence of any such evidence to disbelieve that part of evidence of P.W.7 standing fully corroborated by P.W.6, said non-examination of Jatri is of no fatal consequence for drawing adverse inference that had she been examined, her evidence would have gone against the prosecution case. 13. Furthermore, it is seen that the F.I.R. in the case (Ext.6) has been promptly lodged, i.e., as against the occurrence taking place at 6 a.m. in the morning, F.I.R. has been received at 8.30 a.m. The Trial Court has noted in course of recording the evidence of P.W.7 that she is a rustic lady of a remote area and a member of the Scheduled Tribe Community and was appearing to be very innocent and deposed naturally. The Doctor has already stated (P.W.5) has in his evidence stated that the ‘gamuchha’ in question (M.O.II) can cause such strangulation leading to the death of the deceased. Thus finding no such infirmity in the evidence of P.W.7 which too receive corroboration from the evidence of P.W.6 and the evidence of the Doctor who had conducted the post mortem examination over the dead body and examined that ‘gamuchha’; We find that the Trial Court has rightly held the accused guilty of