HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL No.335 of 1998 From the judgment and order dated 30.11.1998 passed by Shri N.K. Rajguru Mohapatra, Sessions Judge, Sundargarh in Sessions Trial No. 243 of 1996. Sundhu Naik ……… Appellant Versus State of Orissa ……… Respondent For Appellant - Mr. K. Sahoo. For Respondent - Mr. J.P. Pattnaik Addl. Govt. Advocate. PRESENT THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.P.RAY ------------------------------------------------------------------------------------------- Date of hearing & judgment : 05.03.2010 PRADIP MOHANTY,J. This Jail Criminal Appeal is directed against the judgment and order dated 30.11.1998 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No. 243 of 1996 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that on 29.08.1996 at about 7.30 P.M., the informant(P.W.1) while returning from his in-law’s house saw his father lying injured on the road leading to the house of the accused-appellant. His mother, sister and other persons, who had gathered there, as well as his injured father informed him that the appellant called him on the pretext of taking liquor and caused injuries on his person by means of a ‘Dauli’. Thereafter, he with the help of others shifted his injured father to his house, but in the same night his father succumbed to the injuries. On the next morning, P.W.1 along with the Choukidar went to Mahulapada Police Station and orally reported the matter before the police (P.W.16) who reduced the same to writing, registered a case and took up investigation. Subsequently, the Circle Inspector of Police (P.W.15) took charge of the investigation from P.W.16 and after its completion submitted charge sheet against the appellant for commission of offence under Section, 302 IPC. 3. The plea of the appellant is one of complete denial. 4. In order to prove its case, prosecution examined as many as sixteen witnesses including the doctor and the I.O. and exhibited seventeen documents. Defence examined none. 5. The learned Sessions Judge on conclusion of the trial convicted the present appellant under Section 302, IPC and sentenced him to undergo imprisonment for life basing upon the evidence of the eye witness (P.W.3) and the dying declaration made by the deceased before P.Ws.1, 2 and 3. 6. Mr. Sahoo, learned counsel for the appellant assails the judgment of the trial court mainly on the following grounds: (i) There was delay in lodging the F.I.R.; (ii) the prosecution developed the story in Court and introduced P.W.3 as an eye witness; (iii) the dying declaration said to have been made by the deceased before his death cannot be believed; and (iv) there is no independent corroboration to the prosecution case. 7. Mr. Pattnaik, learned Additional Government Advocate vehemently contends that P.W.3 is no doubt a witness to the occurrence. His presence at the time of occurrence is very natural, since the occurrence took place in front of his house. His evidence is very clear and cogent that it is the appellant who assaulted the deceased by means of a ‘Dauli’. It is also there in the evidence of P.Ws.1, 2 and 3 that before his death the deceased had disclosed 2 before them that the appellant on the pretext of taking liquor called him from his house and assaulted him with a ‘Dauli’. Therefore, there is no illegality or irregularity committed by the trial court in convicting the appellant under Section 302, IPC. 8. Perused the LCR. P.W.1 is the informant and son of the deceased. He deposed in Court that when he was returning from his father-in- law’s house he found his father lying on the road in front of their house and his father disclosed before him that the accused caused the injuries on his person and fled away. His father had sustained injury on the left side of his head near the left ear. He further stated that his mother P.W.2 and Lal Mohan P.W.3 were present when his father disclosed the name of the assailant. They shifted his father to their house. On the same night at the crock crow time, his father succumbed to the injuries. On the next morning, he along with the Choukidar went to Mahulpada Police Station, orally reported the incident which was reduced to writing by the police. He put his L.T.I. in the F.I.R. In cross-examination, he admitted that P.W.3 came to the spot after his arrival. He did not take his father to any doctor for his treatment. He also did not inform the police about the incident on the same night. He also admitted that they have constructed their house on the land of the accused. P.W.2 is the widow of the deceased and mother of P.W.1. She specifically deposed that the accused called her husband to accompany him for taking liquor and her husband accompanied him. On hearing the shout of her husband (deceased) that he was being assaulted by the accused, she went to the place of occurrence and found the accused assaulting her husband on the left side of his head by means of a ‘Dauli’. After causing injuries on the person of the deceased, the appellant fled away from the spot. In cross-examination, she was confronted with her previous statement before police, but she denied the suggestion not to have stated before the police that she had seen the accused assaulting her husband. She also denied the suggestion given by the defence that for the first time she was stating in the court that the accused assaulted her husband. She also stated in her cross-examination that there was moon light by the time the occurrence took place. P.W.3, who is an eye witness, stated that in front of his house the accused assaulted the deceased by means of a ‘Dauli’ causing injury on the left side of his head. After receiving the injuries, the deceased fell down on the road. He was present at the place of occurrence. 3 Thereafter, P.W.2, the widow of the deceased, and P.W.6, the daughter of the deceased, came to the spot. Subsequently, P.W.1 arrived there. In cross- examination, he has been confronted with the previous statement, and to the suggestion of the defence he stated that it is not a fact that he had not seen the accused causing injury on the head of the deceased and that he was deposing falsehood. P.W.4 is a witness to the inquest and also seizure of sample earth and blood stained earth vide Ext.2. He proved the inquest report (Ext.1) and the seizure list (Ext.2). P.W.5 is the wife of the accused, who has been declared hostile by the prosecution. To the leading question put by the prosecution she has however admitted that her husband (accused) had confessed before her to have caused the death of the deceased. P.W.6 is the daughter of the deceased who turned hostile. In cross-examination she admitted that by the time she along with her mother arrived at the spot, her father was already dead. P.W.7 is the father-in-law of P.W.1 who accompanied the informant to the Police Station. He proved the F.I.R (Ext.3) and his signature thereon as Ext.3/1. P.W.8 is a witness to the inquest. P.W.9 is a witness to the seizure of the weapon of offence, i.e., ‘Dauli’. P.W.10 is the elder brother of the deceased. He stated that in his presence inquest was held and inquest report was prepared. P.W.11 is the doctor, who conducted autopsy over the dead body of the deceased. He opined that the injury was ante mortem in nature and the same was sufficient in ordinary course of nature to cause death. He further opined that the cause of death was due to shock and haemorrhage. Although in cross-examination, this witness has admitted that the injury can be possible by other sharp cutting weapon, but to the query made by the I.O. he had specifically opined that the injury found on the deceased could be caused by the weapon of offence, i.e., Dauli. In cross- examination he denied the suggestion that if proper steps would have been taken after the assault, the deceased would have survived. P.W.12 is a police constable. He is a witness to the seizure of the Dauli (M.O.I) and the blood stained earth vide Ext.7 and he proved the same. P.W.13 is another constable then attached to Mahulpada Police Station. He is a witness to the seizure of the wearing apparels of the deceased vide Ext.8 and he proved the same. P.W.14 is a police constable, who carried the dead body of the deceased for postmortem examination and also brought the wearing apparels of the deceased and produced the same before the I.O. which were seized vide Ext.7/1. P.W.16 is the A.S.I. of police who on the relevant date was deputed by the S.D.P.O., Bonai to 4 Mahulpada Police Station. He stated that Ext.3 was written by him on the oral report of P.W.1 and also stated that he registered the case and proceeded with the investigation and on 11.09.1996 handed over its charge to the Circle Inspector of Police, Bonai. P.W.15 is the Circle Inspector of Police, Bonai who took charge of the investigation from P.W.16 and submitted charge sheet against the accused. He also seized the Station Diary of Mahulpada Police Station containing S.D. Entry No.9. 9. This Court carefully scanned the evidence adduced on behalf of the prosecution. P.W.2 specifically stated in her examination-in-chief that on hearing the shout of her husband that he was being assaulted by the accused, she rushed to the spot. The I.O. (P.W.16) on being confronted has also admitted in cross-examination that P.W.2 had not stated before him that she had seen the accused assaulting her husband. P.W.3 in cross-examination has admitted that he was stating for the first time before the Court that he was present at the spot when the occurrence took place and that he had not made such statement before the police. Therefore, it is crystal clear that P.Ws.2 and 3 are not ocular witnesses and they have developed the story in Court as if they had seen the assault on the deceased. But, however, from the evidence of these two witnesses it is apparent that the deceased had accompanied the appellant being called by him and by the time they arrived at the spot the assault on the deceased was already over. P.W.1 in his evidence stated that when he arrived at the spot, his mother (P.W.2) and P.W.3 were already present there and before them the deceased disclosed to have been assaulted by the appellant. From the evidence of P.Ws.1, 2 and 3 it is established that soon before the death, the deceased on being called by the appellant accompanied him and that the deceased disclosed before them that he had been assaulted by the appellant. It is not the case of the defence that anybody else other than the appellant was present along with the deceased. That apart, according to the evidence of P.W.16, the wearing Lungi of the appellant was seized by him and sent for chemical examination. The report of the Chemical Examiner indicates that the said Lungi had contained blood of human origin but no explanation was given by the appellant as to how human blood could appear on his Lungi. Taking all these aspects into consideration this Court arrives at the conclusion that the appellant is the assailant of the deceased. From the evidence of the doctor (P.W.11) and other attending circumstances it is 5 clear that a single blow was dealt by the appellant to the head of the deceased, but he had no intention to kill the deceased. Therefore, the act committed by the appellant would come within the ambit of Section 304 Part-I, IPC. 10. In view of the above, this Court converts the conviction of the appellant from section 302 IPC to Section 304 Part-I, IPC and sentences him to undergo rigorous imprisonment for ten years. It is stated at the Bar that the appellant has already remained in custody for more than thirteen years by now. If that be so, the appellant Sundhu Naik be set at liberty forthwith, unless his detention is required otherwise. 11. The Jail Criminal Appeal is partly allowed to the extent indicated above. ……………………………. PRADIP MOHANTY,J. B.P. RAY, J. I agree. ……………………….. B.P.RAY, J. Orissa High Court, Cuttack The 5th March.,2010/Routray 6