Tipu @ Saroja Kanta Behera vs State of Orissa

S.K. Sahoo, J. - The Appellant faced trial in the Court of Learned Adhoc Addl. Sessions Judge, F.T.C., Athagarh in Sessions Trial No.886 of 2004 for offences punishable under Sections 452/34, 302/34 & 307/34 Indian Penal Code for committing house trespass into the building of the informant Udhaba @ Pabitra Das (P.W.9) with bhujali on 09.08.2002 at about 11.00 p.m. having made preparation to assault Panchei Das (hereafter "the deceased"), wife of the informant & committed murder of the deceased & also assaulted Jagani @ Srikanta Das (P.W.8), son of the informant & the deceased with an attempt to commit his murder.

The Learned Trial Court vide impugned Judgment dated 30.01.2006 held the Appellant guilty under Section 452, 302, 307 read with Section 34 Indian Penal Code & accordingly convicted him of such offences & sentenced him vide Order Dated 31.01.2006 to undergo imprisonment for life for offence under Section 302 IPC, R.I. for seven years for the offence under Section 307 IPC & R.I. for three years for offence under Section 452 IPC & all the sentences were directed to run concurrently.

The prosecution case, as per the First Information Report lodged by P.W.9 Udhaba @ Pabitra Das on 10.08.2002 before Officer-in-charge of Baramba Police Station is that the informant was a worker in the tiffin stall of one Prafulla Sahu of village Nuapatna which is situated under Tigiria Police Station. Out of the four sons of the informant, the eldest & the second son were working outside. The deceased who was the wife of the informant & their two minor sons namely, Jiban @ Jaguni @ Srikanta Das (P.W.8) & Susanta Das were staying with the deceased. The informant used to come to his house in every ten to fifteen days. On 10.08.2002 morning at about 5.00 a.m., the brother-in-law of the informant namely Raj Sahu (P.W.4) & nephew Chhabi Sahu reached near the informant & informed him that the Appellant had committed murder of the deceased last night at about 11.00 p.m. They further informed him that two other persons were there with the Appellant & that the accused persons forcibly entered inside the house of the informant & assaulted on the back of the deceased by means of bhujali & that while two co-accused persons were catching hold of the deceased, the Appellant assaulted the deceased by bhujali. When the minor son Jagan (P.W.8) prevented the accused persons at the time of assault, he was also assaulted by means of bhujali on his abdomen & hands for which he had also received serious injuries. Another minor son of the deceased namely, Susanta Das escaped from the spot & informed the co-villagers. When the co-villagers arrived at the house of the informant, the accused persons had already left the spot.

On the basis of such F.I.R., Baramba P.S. Case No.95 of 2002 dated 10.08.2002 was registered under Section 452, 302, 307/34 IPC by P.W.11 Prasanta Kumar Bhuyan, A.S.I. of Police of Baramba Police Station in absence of the Officer-in-charge. The Officer-in-charge who could not be examined during trial on account of his death prepared the inquest report Ext.4/2, dead body challan Ext.6 so also injury requisition Ext.5/3 in respect of injured (P.W.8). The Officer-in-charge seized the wearing apparels of the deceased under seizure list Ext.7; nail clippings & sample blood of the Appellant under seizure list Ext.9; blood stained earth, sample earth, chappal & broken bangles from the spot under seizure list Ext.1. On the basis of the statement of the Appellant & on being led by him, a knife was seized under seizure list Ext.3. The dead body was sent for post-mortem examination & P.W.10 Dr. Bidyadhar Sahu who was attached to S.D. Hospital, Athgarh as Medicine Specialist conducted post-mortem examination over the cadaver of the deceased & submitted his report Ext.11. The I.O. also sent the knife to the doctor P.W.10 for examination & opinion regarding possibility of the injuries with such knife on the deceased who gave his opinion vide Ext.12. The seized articles were sent to S.F.S.L., Rasulgarh through J.M.F.C., Baramba for chemical examination & after completion of investigation, charge-sheet was submitted on 2.12.2002 under Sections 452, 302, 307/34 IPC against the Appellant as well as two co-accused persons namely, Tempo @ Prakash Pradhan & Laxmidhar Rout showing them as absconders.

The defence plea of the Appellant was that there was civil dispute between him & the informant & he had been falsely entangled in the case by the informant in order to grab his landed properties.

In order to prove its case, the prosecution examined 11 witnesses.

P.W.1 Ananda Behera stated about the intimation given to him by the two sons of the deceased on the date of occurrence about the incident. He is also a witness to the seizure of blood stained earth, sample earth & broken bangles from the spot so also a pair of chappal under seizure list Ext.1. He also stated about the recovery of a knife at the instance of the Appellant under seizure list Ext.3.

P.W.2 Duryodhan Behera also stated about intimation given by the two sons of the deceased about the incident on the date of occurrence.

P.W.3 Gurubari Sahu is the nephew of the deceased who is a witness to the inquest report.

P.W.4 Raj Kishore Sahu is the brother of the deceased & he stated about the disclosure made by the injured P.W.8 before him regarding the occurrence.

P.W.5 Dr. Dolagovinda Jena examined P.W.8 Jagani @ Srikanta Das at Area Hospital, Baramba on 10.08.2002 & proved injury report Ext.5.

P.W.6 Prasana Kumar Dalei was the Constable attached to Baramba Police Station who carried the dead body of the deceased for post-mortem examination to S.D. Hospital, Athagarh under dead body challan Ext.6. He is also a witness to the seizure of nail clippings of the accused under seizure list Ext.9. He stated to have received of the wearing apparels of the deceased after post-mortem examination which were handed over to the I.O. & seized under seizure list Ext.7.

P.W.7 Santosh Kumar Naik is the scribe of the F.I.R. P.W.8 Jagani @ Srikant Das is the son of the deceased & he is an eye witness to the occurrence so also an injured in the case.

P.W.9 Udaba @ Pabitra Das is the informant of the case who is also a witness to the inquest over the dead body.

P.W.10 Dr. Bidyadhar Sahu conducted post-mortem examination over the dead body of the deceased at S.D. Hospital, Athagarh & proved his report Ext.11. He also gave reply to the query of the I.O. vide Ext.12. He also collected the nail clippings & blood sample of the Appellant.

P.W.11 Prasanta Kumar Bhuyan who was the A.S.I. of Police, Baramba Police Station registered the FIR in absence of the O.I.C. The prosecution exhibited 18 documents & also marked five material objects. Ext.1 is the seizure list, Ext.2 is the statement of the Appellant, Ext.3 is the seizure list, Ext.4/2 is the inquest report, Ext.5 is the injury report of P.W.8, Ext.6 is the dead body challan, Ext.7 is the seizure list, Ext.8 is the command certificate, Ext.9 is the seizure list, Ext.10 is the F.I.R., Ext.11 is the post-mortem report, Ext.12 is the query report, Ext.13 is the blood grouping report of the Appellant, Ext.14 is the police requisition, Ext.15 is the spot map, Ext.16 is the forwarding report, Ext.17 is the S.F.S.L. report & Ext.18 is the police requisition. M.O.I is the chappal, M.O.II is the knife, M.O.III, M.O.IV & M.O.V are the saree, saya & blouse of the deceased respectively. The Appellant examined himself as D.W.1.

Now it is to be seen how far the prosecution has established that the death of the deceased Panchei Das was homicidal in nature. In order to establish such aspect, apart from the inquest report (Ext.4/2), the prosecution examined the doctor P.W.10 who conducted autopsy over the dead body on 10.8.2002 at S.D. Hospital, Athagarh & he found following injuries:-

External Injuries

(i) Incised injury 1�" X �" X 1�" ellipitcal shape, edge smooth & clean cut over the left side of the back near the mid line at the T2 level;

(ii) Incised wound 1�" X �" X 1�" elliptical shape, sharp edge over the left side of the back 2" from the mid line at T3 level;

(iii) Incised injury 1�" X �" X 2" elliptical shape sharp edge 1" below the injury No.2;

(iv) Incised injury 1�" X �" X 1" sharp edge over the left side of the back near to the injury No.3;

(v) Incised injury 1�" X �" X 2" over the left side of the back 1" from the midline at T5 level;

(vi) Incised injury 1�" X �" X 2�" sharp edged elliptical shape over the left side of the back 3" away from the mid line at T6 level;

(vii) Incised injury 1�" X �" X 2�" over the left side of the back below the injury No.6 sharp edge, elliptical shape;

(viii) Incised injury 1�" X �" X �" over the left side of the back 6" away from the mid line at T8 level;

(ix) Incised injury 1�" X �" X 2" over the right side of the back �" away from the mid line sharp edge at T4 level;

(x) Incised injury 1�" X �" X 1�" over the right side the back 1�" from the mid line at T.5 level;

(xi) Incised injury 1�" X �" X 1" over the right side of the back 3�" away from the mid line at T5 level;

The doctor opined that all the injuries have been caused by sharp cutting weapon & the cause of death was due to shock & haemorrhage & all the injuries can cause death in ordinary course of nature. The post-mortem report was proved as Ext.11. The Learned Counsel for the Appellant did not challenge the evidence of P.W.10 & the findings of the post mortem report (Ext.11). After perusing the evidence on record, the post mortem report (Ext.11) & the statement of P.W.10 Dr. Bidhyadhar Sahu, we are also of the view that the prosecution has proved the death of the deceased to be homicidal in nature.

The prosecution case is mainly based on the testimony of P.W.8 Jagani @ Srikanta Das who has stated that on the date of occurrence at about 8.00 to 9.00 p.m. after taking dinner when he, his brother Susanta & their mother (deceased) were going to bed, some persons came to their house & knocked at the door & when the deceased opened the door, the Appellant came inside the house & asked for a match box. All on sudden the Appellant assaulted the deceased on her back, chest & hand by means of a knife. When P.W.8 protested, the Appellant also assaulted him on his different parts of the body by knife causing bleeding injuries on his person. He further stated that his brother Sukanta escaped from the house to call the co-villagers & at that time the accused persons fled away from the house. He further stated that he was shifted to Barmba Hospital by his uncle for treatment. P.W.8 is an injured eye witness. He has received as many as nine cut injuries on different parts of the body which has been proved by doctor P.W.5. Being an injured, the presence of P.W.8 at the spot cannot be doubted. Moreover, he being the minor son of the deceased, his presence in the night with her mother (deceased) in the house is very natural. The Learned Counsel for the Appellant Miss Pramila Mohanty contended that P.W.8 is a tutored witness & at the instance of his father, he has falsely implicated the Appellant. We don''t find any substance in the contention raised by the Learned Counsel for the Appellant. Merely because P.W.8 stated that he was deposing as his father had told him, it cannot be inferred that he was tutored by his father. The informant on receipt of the summons might have told P.W.8 to depose in Court about the occurrence & accordingly the possibility of P.W.8 making a statement like that in the cross-examination cannot be ruled out but nothing has been elicited in the cross-examination to show that he had no knowledge about the occurrence but at the instance of his father he was deposing falsely against the Appellant in the Court. The dead body of the deceased was found on the verandah of the house with severe bleeding injury which has been noticed by the independent witnesses so also of the I.O. & in the spot map also, the I.O. has reflected where the dead body was found. The seizure of the blood stained earth & broken bangles from the spot is an additional factor which corroborate the evidence of P.W.8 that the occurrence had taken place inside the house of the deceased. P.W.8 narrated vividly about the commission of murder of his mother by the Appellant & also about assault on him by the Appellant before others. Thus we find no infirmity in the evidence of P.W.8 & accordingly we hold P.W.8 to be a truthful & reliable witness. Law is well settled that an order of conviction can also be sustained on the basis of the evidence of a solitary witness if his evidence is found to be truthful, reliable, cogent, trustworthy & above board. The evidence of P.W.8 is corroborated by his injury report so also the post-mortem report. There is absolutely no motive on the part of the P.W.8 to falsely implicate the Appellant in the crime. Therefore, we find that the Learned Trial Court has rightly relied upon the evidence of P.W.8. The Learned Counsel for the Appellant submitted that P.W.8 is a child witness & a child witness is always prone to tutoring & therefore his evidence can only be accepted after close scrutiny.

Law is well settled that in view of Section 118 of Evidence Act, there is no disqualification for a child to be witness in a case but it is the requirement that the Court must conduct some preliminary inquiry to be satisfied about the mental capability of a child before allowing him to be examined. The question whether a child witness has intelligence enough to understand the import or significance of questions or to give rational answers is not the same as the question of his competency to testify. The Court has discretion to form its own opinion whether a child witness has sufficient understanding to be qualified to be a witness. The possibility of a bias or the child being tutored should be taken care of while analysing his evidence. The Court should look for corroboration to the evidence of a child witness, the surrounding circumstances as well as the probabilities particularly when the evidence betrays traces of tutoring. If the Court is of opinion that by reason of tender years & immaturity of intellect, a child is not competent to understand the questions put or to give rational answers, he should not be allowed to be examined. If on careful scanning, no flaws or infirmity are found in his evidence, there is no impediment in accepting his evidence. We on close scrutiny found that the evidence of P.W.8, the child witness who was aged about 14 years & reading in Class-V at the time of deposition is credible & there is no exaggeration in his evidence & he has stuck to his statement made during investigation in all material particulars. The manner in which he withstood the long gruelling cross examination & gave minute details of the incident clearly indicates that he had attended a measure of mature understanding & there is no infirmity in his understanding of the facts perceived & his ability to narrate the same correctly.

The Learned Counsel for the Appellant contended that since the injuries have not been inflicted on any vital part of the body & even though the Appellant was armed with a knife, he had not caused any piercing injury to the deceased & while causing number of injuries, he seems to have taken all precaution not to assault on the front portion of the body of the deceased & there was no internal damage, it can be said that the offence would not attract ingredients of the offence under Section 302 IPC & at best the case would come within the purview of culpable homicide not amounting to murder punishable under Section 304 Part-I IPC. The Learned Counsel for the State on the other hand submitted that the Appellant has not only entered inside the house of the deceased by knocking the door & asking for a matchbox to the deceased in the night while she was in the company of her minor children but also assaulted her mercilessly causing as many as 11 incised injuries & therefore in absence of any exception as provided under Section 300 IPC, the Learned Trial Court was justified in convicting the Appellant under Section 302 IPC. While considering the rival contentions, it is required to take note of the injuries found on the deceased as per post-mortem report Ext.11. The doctor no doubt has noticed 11 incised injuries on the person of the deceased but all the injuries are either on the left side back or on the right side back & there are no penetrating injuries & the injuries appear to be slicing in nature. The Appellants could have caused penetrating wounds on the front portion of the body of the deceased with the knife but he had not done so. There is no internal damage to any organ even though a number of injures has been caused on the back side. Thus it appears that the Appellant had taken all precaution not to cause any injury on the front portion of the deceased even though he had opportunity to inflict such injuries. The doctor P.W.10 who conducted post-mortem examination has stated specifically in the cross-examination that the injuries found on the deceased are not located on the vital parts of the body & during his examination, he found the head, chest, spinal cord, lungs & abdomen were intact. Now the question that falls for consideration in this appeal is whether under the facts & circumstances of the case, the offence disclosed against the Appellant is murder or culpable homicide not amounting to murder.

In case of State of Andhra Pradesh v. Rayavarapu Punnayya reported in A.I.R. 1977 SC 45, it is held as follows:

"21. From the above conspectus, it emerges that whenever a Court is confronted with the question whether the offence ''murder'' or ''culpable homicidal not amounting to murder'' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused & the death leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ''murder'' contained in Section 300. If the answer to this question is in the negative the offence would be ''culpable homicide not amounting to murder'' punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be ''culpable homicide not amounting to murder'', punishable under the First Part of Section 304, Penal Code. Keeping in view of the ratio laid down by the Hon''ble Supreme Court & looking at the facts & circumstances of the case particularly post mortem report & the evidence of the doctor who conducted the post-mortem examination, we found that though the act of the Appellant amounts to "culpable homicide" as defined under Section 299 IPC, but while analysing the applicability of any of the four clauses of the definition of the murder as contained in Section 300 IPC, we found that the facts proved by the prosecution do not bring the case within the ambit of any of such four clauses. The intention is the state of mind which has to be inferred in the facts & circumstances of each case particularly from the nature of weapon & how it was used & the injuries inflicted. Even if the act of the Appellant does not come within any of the exceptions enumerated in Section 300 IPC but since it does not come within the ambit of any of the four clauses of definition of murder as enumerated in Section 300 IPC, therefore in our considered opinion, the offence would be culpable homicide not amounting to murder punishable under first part of Section 304 IPC. Thus the impugned Judgment & order of conviction of the Appellant under Section 302 IPC is set aside & he is convicted under Section 304 Part-I IPC.

The Appellant has been convicted under Section 307 IPC by the Learned Trial Court for inflicting injuries to P.W.8 Jaguni @ Srikanta Das. The medical report of P.W.8 who was examined by doctor P.W.5 indicates as follows:-

(i) Cut injury 1" X �" X �" directed above downward on the wrist joint of left lower hand on the posterior part;

(ii) Cut injury 2�" X �" X �" directed laterally on palm thenar to hypothenar area of left side;

(iii) Cut injury 1" X �" X �" directed upward & medially on thenar area of left palm;

(iv) Cut injury �" X �" X �" directed laterally on the left first finger on the tip point;

(v) Cut injury �" X �" X �" directed medially & dwnward on third metatarso-phalangeal joint anterior;

(vi) Cut injury 1" X 1" X �" directed downward & laterally anterior part on the left upper arm middle one third;

(vii) Cut injury �" X �" x �" directed laterally on elbow joint anterior laterally;

(viii) Cut injury �" x � "x �" directed above to downward on the upper border of right knee joint anteriorly;

(ix) Liner cut injury 4" X �" X �" directed laterally & downward from spinal line towards tenth the rib of posterior axillary of right side.

The injuries were opined to be simple in nature & possible by sharp cutting weapon. Looking at the nature of injuries sustained, the manner of assault, the parts of the body on which such injuries have been inflicted & lack of medical opinion that any of the injuries were cumulatively dangerous to life & absence of material that the death of P.W.8 was attempted to by the Appellant, we are of the view that the ingredients of the offence under Section 307 IPC is not made out & accordingly we alter the conviction from offence under Section 307 IPC to Section 324 IPC.

So far as the conviction under Section 452 IPC is concerned, we found from the evidence on record that the Appellant has committed house trespass having made preparation for causing hurt to the deceased & therefore he has been rightly been held guilty by the Learned Trial Court for offence under Section 452 IPC.

It appears from the evidence on record that two other co-accused persons had also participated in the crime but they absconded for which charge-sheet was also submitted against them showing them as absconders.

In the net result, the appeal succeeds in part. Conviction of the Appellant under Section 302/34 IPC is set aside & instead the Appellant is convicted under Section 304 Part-I/34 IPC & sentenced to undergo R.I. for ten years. Similarly the conviction of the Appellant under Section 307/34 IPC is set aside & the said conviction is altered to under Section 324/34 IPC & for the said conviction, the Appellant is sentenced to undergo R.I. for two years. The order of conviction of the Appellant under Section 452/34 IPC & the sentence of R.I. for three years as passed for such offence by the Learned Trial Court remains unaltered. All the sentences imposed under Sections 304 Part-I/34, 324/34 & 452/34 Indian Penal Code shall run concurrently. The Appellant is in jail custody since 12.08.2002. Thus he has already undergone sentence imposed by us & therefore he should be set at liberty forthwith if he is not required to be detained in any other case.

Accordingly, the Criminal Appeal is allowed in part.

Vinod Prasad, J. - I agree