HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL No.72 of 2000 From the judgment dated 22.01.2000 passed by Sri Sk. Jan Hossain, Sessions Judge, Koraput in S.C. No.148 of 1997. ---------- Hikoka Someya ………… Appellant -versus- State of Orissa .………… Respondent For Appellant : Miss. D.R. Nanda For Respondent : Mr. P.K. Pattnaik, Addl. Govt. Advocate P R E S E N T: THE HON’BLE MR. JUSTICE PRADIP KUMAR MOHANTY & THE HON’BLE MR. JUSTICE B.P.RAY ----------------------------------------------------------------------------------------------- Date of Judgment: 11.03.2010 ----------------------------------------------------------------------------------------------- PRADIP MOHANTY, J. This Jail Criminal Appeal is directed against the judgment and order dated 22.01.2000 passed by the learned Sessions Judge, Koraput at Jeypore in Sessions Case No.148 of 1997 convicting the appellant under Section 302/201, IPC and sentencing him to undergo imprisonment for life for the offence under Section 302, IPC and rigorous imprisonment for seven years for the offence under Section 201, IPC, the sentences to run concurrently. 2. The prosecution case is that on 06.02.1997 at 3.00 P.M. the informant along with his wife (deceased) had been to Bikrampur to borrow money. At 4 P.M. on that day while returning to their 2 village, they met the appellant and his wife on the way. The deceased went to the hut of the appellant and asked him to return Rs.15/- which he had borrowed from her since last Pausa Festival. On account of that, there was a quarrel between the two. The appellant gave a blow to the deceased by means of a Paddy Husking Pound which landed on her chest. When the informant (P.W.1) protested, the accused also chased him to assault by holding a Suli Dango. The informant went away to the field of Hikoka Lati and concealed there. But the appellant rushed there and assaulted him by means of a Suli Dango. Out of fear, the informant fled away from there and took shelter in the house of his father-in-law. On the next day, getting information about the death of his wife the informant went and saw his wife lying dead on the road which was two furlongs away from the hut of the appellant. Thereafter, the informant went to Narayanpatna Police Station and reported the incident orally. Police reduced his report to writing, registered the case, sent the informant for medical examination and proceeded with the investigation. After closure of investigation, charge sheet was submitted against the appellant under Sections 302/201, IPC. 3. Plea of the appellant was of complete denial and false implication. 4. In order to bring home the charge against the appellant, prosecution examined as many as eight witnesses including the doctors and the I.O. and placed reliance on several documents marked Exts.1 to 15. The defence examined none. 5. The trial court after conclusion of the trial found the appellant guilty and convicted and sentenced him, as already mentioned hereinabove, mainly relying on the evidence of P.Ws.1, 5, 6 and the doctor (P.W.4). 3 6. P.W.1, the husband of the deceased, is the informant and a witness to the occurrence. He stated that on the date of occurrence he and his wife (deceased) were returning from Bikrampur. On the way, the hut of the appellant fell and the deceased went there to collect Rs.15/- from the appellant which she had given to him on loan basis. When the deceased asked the appellant to pay the money, a quarrel ensued between them. P.W.1 went there and saw the appellant giving blow to the deceased with a ‘Musala’ (Paddy-husking pound). The blow landed on her chest. When P.W.1 protested, the appellant assaulted him by a Suli Dango (Bamboo Lathi). He further stated that on receiving ‘Musala’ blow, the deceased fell down there and the appellant chased him. P.W.1 concealed himself by the side of a ridge, but the appellant came to him and again dealt a blow by the bamboo lathi. Then P.W.1 ran away and took shelter in his mother- in-law’s house. He also stated that he sustained injuries on his right knee and right hand. On the next day, on receiving information about the death of his wife, he went to the spot and saw the dead body of the deceased lying on the road which is about two furlongs away from the hut of the appellant. Thereafter, he went to the Police Station along with some villagers and reported the incident orally. Police reduced his oral report to writing and after knowing the contents to be true, P.W.1 put his thumb mark on the FIR. P.W.1 also identified M.O.I to be the ‘Musala’ by which the deceased was assaulted and M.O.II to be the bamboo lathi by which he was assaulted. He also deposed that he was sent to the doctor for medical examination on police requisition. In cross-examination, P.W.1 admitted that while returning on the way near village Bikarampur, he and his deceased- wife met the appellant and his wife and took liquor there. On the way, they crossed a river and while crossing it the saree of the deceased got drenched. The appellant called the deceased to his hut to take back the money. The deceased changed the wet cloth and put 4 it in a heap of black-gram and put on a small saree given by the wife of the appellant. After changing the saree, the deceased asked the appellant to return the money. When the deceased insisted for return of the money, the appellant lifted M.O.I and gave a blow on the chest of the deceased. He also admitted that when he tried to intervene in the matter, the appellant attempted to assault him by means of M.O.II throwing M.O.I. Nothing substantial has been elicited from the cross-examination of this witness. In the cross-examination, although he somewhat changed his version but his evidence with regard to assault remained same. P.W.2 is a post-occurrence witness. He stated that on receiving information that a dead body was lying on the road leading to Narayanapatna, he went to that place and identified the dead body of the deceased to be of Kendruka Sambari. By that time, other villagers gathered at the spot. Thereafter, they inquired about the husband of the deceased. P.W.1, the husband of the deceased, came to the spot and disclosed that the deceased had been assaulted by the accused. P.W.1 requested them to accompany him to the Police Station. Accordingly, P.W.2 and others accompanied him to the Police Station. P.W.1 orally reported the incident and police reduced the oral report of P.W.1 to writing and after the same was read over P.W.1 gave his thumb impression. Ext.1 is the report and Ext.1/1 is the signature of the P.W.2. P.W.1 showed the weapons of offence (M.Os.I and II) to the police and the accused confessed to have assaulted the deceased and P.W.1. Police seized M.Os.I and II in presence of P.W.2 vide Exts.3 and 4 and he put his signature thereon marked Exts.3/1 and 4/1. Police also seized some broken bangles, which were lying near the hut of the accused, vide Ext.5 and sample earth from the place of assault vide Ext.6. In cross-examination, nothing has been elicited to demolish his evidence. P.W.3 is the police constable who stated that inquest was conducted in his presence. P.W.4 is the 5 doctor who conducted autopsy over the dead body of the deceased and found the following injuries: “(1) Lacerated wound on the left elbow, size 2” x 1” x 1”. (2) Fracture of left lower end of humerus. (3) Three bruises on right axillary region each of the size of 3” x 2”. (4) Subcutaneous haemorrhage below the bruises (injury no.3 above) (5) Three bruises on the right lateral aspect of the abdomen, each of size 3” x 2” with sub-cutaneous haemorrhage.” He opined that all the injuries were ante mortem in nature. External Injury Nos.3 and 4 and the internal injuries are on the vital part of the body and are sufficient to cause death in ordinary course of nature. To the query made by the I.O., he had opined that the injuries found on the dead body of the deceased were possible by M.O.I. In cross-examination, he admitted that there were nine injuries on the dead body and all the nine injuries were not possible by a single blow. P.W.5 is a co-villager and an occular witness who specifically deposed that at the time of occurrence he had gone near the hut of the accused in search of his cow and saw the accused assaulting the deceased by means of a plank. He had not marked if the husband of the deceased was present there at the relevant time. He was at a distance of 100 meters from the spot and out of fear he left the spot. He also stated that he narrated this fact before the Magistrate. In cross-examination, he admitted that one Budu was grazing cattle by the side of the hut of the accused. He did not try to separate the accused being frightened. Said Budu also did not go to 6 the accused. They also did not try to raise any shout. Out of fear he went away to the village and narrated the incident to his inmates and other villagers. He also admitted that he suo motu had gone to the court 18 to 20 days after the occurrence and given a statement in the court. He further admitted that when the deceased fell down, the accused gave several blows. Nothing has been elicited by way of cross-examination to demolish the evidence of this witness. P.W.6 is also a witness to the occurrence. His presence was admitted by P.W.5. He specifically stated that when he was tending cattle near the hut of the accused, he saw the accused assaulting the deceased with a Pound (Musala). As a result of the assault, the deceased fell down and accused continued to give blows to the deceased by a “Suli Dongo”. The accused also assaulted the husband of the deceased who was present there. But in cross- examination he admitted that he had not seen P.W.5 at the time of assault. The husband of the deceased ran away out of fear after the assault. He vividly described as to how the blows were given by the accused by Mo.I. ‘Musala’ and M.O.II “Suli Dongo”. He also admitted that he did not raise any hullah out of fear and did not disclose the fact to any villager. None else was present near him at the time of incident. The husband of the deceased did not raise any hullah. Nothing has been brought out by the defence through cross- examination to discredit his testimony. P.W.7 is the Investigating Officer who registered the case, seized M.Os.I and II as well as the ‘lungi’ of the accused, arrested the accused, sent the dead body for postmortem examination and submitted charge sheet. He also proved the chemical examination report. He admitted in cross-examination that except the informant, there was no eye witness to the occurrence. Except the house of the accused, no other house is situated near the place of occurrence. 7 P.W.8 is the doctor who examined the informant and found the following injuries: “(1) Bruise 4 x 2 cms over middle part of right thigh. (2) Bruise 2 x 1 cms over right side chest, third and fourth rib area on the front part.” He opined that injuries were possible by M.O.II. He also stated to have collected the nail clippings of the accused. He admitted in cross- examination that the injuries were possible by fall on a hard surface from a height. He also admitted that the injuries are possible by a single blow and also by two blows. Ext.15, the chemical examination report, reveals that human blood were detected from the ‘saree’ of the deceased and ‘lungi’ of the accused with blood group AB. 7. Miss Nanda, learned counsel for the appellant assails the impugned judgment on the following grounds: (i) P.W.1, the informant, had not seen the occurrence and fled away from the spot. (ii) P.Ws.5 and 6 are got up witnesses and were not examined by the police. (iii) Prosecution suppressed the true state of affairs and shifted the place of occurrence from the road near to the hut of the accused. (iv) There is no material to establish that the accused had committed murder and attempted to cause disappearance of evidence to screen himself from the punishment. (v) She alternatively argued that if the accused is found guilty his act may come within the ambit of Section 304 8 Part-II, IPC but not under Section 302, IPC because the occurrence took place due to a sudden quarrel and both accused and the deceased were intoxicated. 8. Mr. Pattnaik, learned Addl. Government Advocate vehemently contends that evidence of P.W.1 is clear, cogent and consistent. P.Ws.5 and 6 are independent occular witnesses. They voluntarily appeared before the Magistrate and their statement was recorded under Section 164, Cr.P.C. There is nothing on record to disbelieve the evidence of P.Ws.5 and 6. The evidence of P.W.1 with regard to assault on him has been proved by the doctor P.W.8 which is corroborated by P.W.6. It is clearly established by the prosecution that the occurrence took place near the hut of the accused and he shifted the dead body of the deceased to the road two furlongs away from his hut. The broken bangles of the deceased were seized from near the hut of the accused. From this, it is evident that the accused had tried to cause disappearance of evidence. Therefore, no illegality has been committed by the trial court in convicting the accused under Sections 302/201, IPC. 9. On careful scrutiny of the evidence, this Court finds that there is no material on record to disbelieve the evidence of the informant P.W.1 that the deceased demanded money from the accused over which there was a quarrel between them and the accused assaulted her. When he protested, the accused assaulted him for which he fled away from the spot. Due to such assault, the informant sustained some injuries and was medically examined. His evidence gets corroboration from the FIR lodged by him. P.W.6, who is a co-villager and not related to either the deceased or the accused, has specifically stated to have seen the appellant assaulting the deceased and P.W.1 by means of M.Os.I and II. This witness was not examined by the police but, however, he voluntarily appeared before 9 the Magistrate and his statement was recorded under Section 164, Cr.P.C. From the conduct of this witness, it can be safely inferred that he is a truthful witness. There is nothing on record to discard the evidence of this witness, even if he was not examined by the police. P.W.5 admitted the presence of P.W.6 and substantially corroborated his version. It is the settled principle of law that the Court has the power to examine the witnesses even if their names do not appear in the charge-sheet. From the evidence of these witnesses, it is crystal clear that the appellant was the assailant of the deceased and P.W.1. P.W.4, the Medical Officer, who conducted autopsy over the dead body of the deceased, and P.W.8, the doctor who examined the injured P.W.1, also corroborated the evidence of P.Ws.1, 5 and 6. Chemical examination report reveals that human blood of AB group was detected from the ‘lungi’ of the accused and no explanation was given by him in regard to that. 10. The only question that remains for consideration is, whether the act committed by the accused will come within the ambit of Section 302, IPC or Section 304 Part-I or Part-II, IPC. There is no doubt that the accused caused injury on the vital organ of the deceased by M.O.I (Musala). It also transpires from the evidence of P.W.1 that just before the occurrence all of them (including accused and deceased) had taken liquor and when the deceased demanded money there was an altercation between them and all on a sudden the accused assaulted the deceased. There is no material on record to establish that the accused had the intention or knowledge to kill the deceased. Therefore, this Court is of the considered view that the act committed by the appellant falls within the ambit of Section 304 Part- I, IPC. Accordingly, this Court converts the conviction of the accused from Section 302, IPC to Section 304 Part-I, IPC. 10 11. So far as offence under Section 201, IPC is concerned, from the evidence of P.Ws.1, 5 and 6 it is abundantly clear that the occurrence took place near the hut of the accused. It is also evident from the evidence of the I.O. that the broken bangles of the deceased were seized from near the hut of the accused. But the dead body of the deceased was found two furlongs away from the hut of the accused. Therefore, it can be safely concluded that the accused after committing murder of the deceased had tried to screen evidence to save himself from punishment. As such, his conviction under Section 201, IPC is confirmed. 12. In the result, the appeal is allowed in part. The conviction of the appellant under Section 302, IPC is converted to one under Section 304 Part-I, IPC and he is sentenced to undergo rigorous imprisonment for ten years. His conviction under Section 201, IPC is upheld but no separate sentence is imposed for the same. It is stated at the Bar that by now the appellant has already remained in custody for more than ten years. If that be so, the appellant Hikoka Someya be set at liberty forthwith, unless his detention is required otherwise. …………………………….. PRADIP MOHANTY,J. B.P. RAY, J. I agree. …………………………… B.P. RAY, J. Orissa High Court, Cuttack The 11th March, 2010/G.D.Samal & B.K. Barik