G. Satapathy, J.
1. This appeal is directed against the judgment dated 22.12.1993 passed by the leaned Additional Sessions Judge, Rourkela in ST Case No.49/15 of 1993 convicting the appellant for offence punishable U/S. 304 Part-I of IPC and sentencing him to undergo Rigorous Imprisonment (RI) for seven years.
2. The appellant in fact stood trial for offence Under Section 302 of IPC for having committed murder of one Gulla @ Suresh Kumar Yadav(hereinafter referred to as the “deceased”). The allegation against him in brief is that on 07.08.1992 at about 4 PM in the evening, there was a quarrel between the convict and the deceased at Malgodown, Rourkela and in such quarrel, the convict attacked the deceased by means of deadly weapons like lathi and bhujali and committed the murder of the deceased.
On this incident, the police was given information and pursuant to such information, the SI of Uditnagar PS (PW17) entered such fact in Station Diary vide SDE No.145 dated 07.08.1992 and proceeded to the spot along with his staff. On reaching at the spot, PW17 found the deceased lying dead near the house of the convict with profuse bleeding from his nose and mouth. At that time, PW1-Suresh Dutta appeared before PW17 at the spot and orally reported about the incident which was reduced into writing by PW17 who read-over and explained the contents to him and PW1 finding the same to be correct put his LTI on the written report and thereafter, PW17 took up the investigation of this case at the spot by sending such report for registration as FIR which was eventually culminated in registration of Plantsite PS Case No.252 of 1992. Soon after completion of investigation, charge-sheet was placed against the convict for commission of offence punishable Under Section 302 of IPC.
3. On receipt of the charge-sheet, cognizance was taken for offence Under Section 302 of IPC and the case record was committed to the Court of learned Sessions Judge, Sundargarh after observing necessary formalities by the learned SDJM, Panposh, Rourkela, but the learned Addl. Sessions Judge, Rourkela on receipt of record on transfer proceeded to try the same. This is how the convict was sent up for trial resulting in trial in the present case when the convict pleaded not guilty to the charge for offence Under Section 302 of IPC.
4. In support of its case, the prosecution examined altogether 19 witnesses vide PWs.1 to 19, proved 17 documents vide Ext.1 to 17 and identified 7 material objects under MOI-VII as against no evidence whatsoever by the defence. Of the witnesses examined by the prosecution, PW1 is the informant, PW5 is the wife of the convict, PW12 is the doctor, who collected blood samples of the convict and his wife, whereas PW18 is the doctor, who conducted autopsy over the dead body of the deceased and PW19 is another doctor who had examined the convict and his wife for the injuries sustained by them. PW17 is the IO; PWs.13 and 14 are the two seizure witnesses of lathi and PWs.15 and 16 are the witnesses to the disclosure statement and recovery of bhujali (MOV) at the instance of the convict and rest of the witnesses being the post occurrence witnesses and somehow associated with the case had become hostile to the prosecution case. Further, neither the seizure witnesses nor the witnesses to the disclosure of the weapon of offence supported the prosecution case and they were also declared hostile in the trial.
5. The plea of the convict in the course of trial was one of complete denial and false implication. In addition, the convict also took the plea in his statement U/S. 313 CrPC by stating interalia that he had accidentally sustained injuries falling from the roof while working over it and his wife had sustained injuries by coming into contact with tin pieces while working as usual and for these injuries, police referred both of them to the hospital. It is also the plea of the convict that he had been to police to inform about the deceased lying dead in the Basti, but the police detained him and booked in this case.
6. After appreciating the evidence on record upon hearing the learned counsel for the parties, the learned trial Court convicted the appellant for offence Under Section 304 Part-I of IPC by finding him not guilty to the charge Under Section 302 of IPC and sentencing him to the punishment indicated in the first paragraph. The Court while convicting the accused had mainly relied upon the evidence of PW8, a child eye witness and PW7, who reached to the spot immediate after the occurrence after knowing it from his son-cum-PW8.
7. In assailing the impugned judgment of conviction and sentence of the appellant, Mr. B.C. Parija, learned counsel engaged by the Orissa High Court Legal Services Committee (OHCLSC) to conduct the appeal has not only filed a written notes of submission, but also has argued in vehemence drawing attention of the evidence of PWs.7 and 8 by contending inter alia that PW8 being a child witness, his testimony being tampered with tutoring cannot be relied upon and PW7 being the father of the child witness had of course business rivalry with the convict and, thereby, his testimony cannot be relied upon in convicting the appellant. Further, it is also submitted by learned counsel for the appellant that since the conviction of the appellant is wholly based on the sole testimony of the child eye witness, who appears to be not free from tutoring and his evidence being not of such character, it would be improper to confirm the conviction of the appellant and since the prosecution has not been able to establish the guilt of the convict in the scale of standard of proof of beyond all reasonable doubt, the appellant deserves to be acquitted in this case.
7.1. In repelling the submission of the learned counsel for the appellant, Mr. T.K. Praharaj, learned Standing Counsel has submitted that not only the evidence of child witness was true, but also the evidence of PW7, who is his father appears to be corroborating in nature and their evidence in tandem would go to disclose that the convict is the perpetrator of the crime and the learned trial Court has not committed any illegality in convicting the appellant for offence under Section 304 Part-I of IPC. Mr. Praharaj has also submitted that the learned trial Court before taking the evidence of PW8, the sole eye witness to the occurrence had put certain questions and being satisfied with the answers to the questions given by the child witness had appended a certificate in the deposition of the PW8 and, thereafter, the evidence of PW8 had been recorded and the evidence of PW8 has not at all been demolished in cross-examination. Mr. Praharaj, however, has criticized the submission made on behalf of the appellant that the child witness had been contradicted on material point of assault on the deceased, but the IO having explained on such point by volunteering that PW8 had stated before him that the deceased was lying on the ground while the convict-accused was assaulting the deceased by means of a bhujali, the testimony of PW8 suffers from no infirmity or contradiction. In summing up his argument, learned Standing Counsel has prayed to dismiss the appeal.
8. After having considered the rival submissions upon perusal of record, there appears no dispute about PW8 being the sole eye witness to the occurrence and the death of the deceased having been not disputed by the defence, in the circumstance, it would be proper to re-evaluate/re-appreciate the evidence of PW8 at the inception. PW8 in his evidence had testified in the Court that he knows the deceased as well as the convict and on the day of occurrence while he was playing outside, he came towards the spot, which was near to the house of the convict and found the convict assaulting the deceased by means of a weapon like knife on his hand, chest and belly and after that, the convict further assaulted the deceased by means of a lathi and went away. The testimony of PW8 further transpires that due to assault, the deceased fell down at the spot with bleeding from his body and seeing that, he came back and informed his father. In the cross examination, PW8 has stood firm to the main substratum of allegation of convict assaulting the deceased by means of a lathi and weapon like knife, no matter the defence had tried to demolish his
evidence by eliciting from his mouth that he was examined by the police after one week of the incident, but that does not decimate his evidence. PW8 has, however, refused to admit to the suggestion of the defence to have not stated before the IO that he saw the convict assaulting the deceased on his hand, chest and belly by means of a weapon like knife. No doubt, the defence had sought to contradict PW8 by unsuccessfully confronting his previous statement as indicated above and putting it to the IO-PW17 who had clearly explained by volunteering that PW8 had stated before him that he saw the deceased lying on the ground while the convict was assaulting the deceased by means of a bhujali. In such situation, the evidence of PW8, no doubt being a little bit at variance with his previous statement, but it is quite expected from a child witness who had seen a horrible incident in front of him and he is also not expected to precisely state what the convict had done to the deceased.
9. Of course, the main substratum of the evidence of PW8 that the convict had assaulted the deceased by means of a sharp cutting weapon like knife, which can be well considered as bhujali(MOV) remained unshaken, no matter the witness had not been able to state precisely the exact seat of assault on the deceased, but that would not render his evidence totally unreliable. Besides, the testimony of PW8 also discloses that he after seeing the incident had immediately came back to his house and informed his father, who is PW7, whose evidence clearly goes to corroborate the evidence of PW8 that on that day of occurrence at about 3.30 to 4 PM, while he was working in his house, his son (PW8) came from outside and informed him that the convict had assaulted a man who is lying and hearing that, he went to the spot and found the deceased lying there with profuse bleeding from his mouth. It is his further evidence that he had seen a lathi lying near the spot. True it is that PW7 is not an eye witness to the occurrence, but his testimony is quite relevant in view of the doctrine of res-gestae as contemplated under Section 6 of the Indian Evidence Act, 1872 which provides that facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. The doctrine of res-gestae is an exception to the general rule of admissibility of hearsay evidence which normally is inadmissible, but the illustration as appended to Section 6 of Indian Evidence Act gives an example of the relevancy of the evidence under res gestae which reads as under:-
Illustration(a):
“ A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.”
Thus, the evidence of PW7 is quite relevant in the circumstance. However, the defence had sought to discredit the evidence of PW7 on the ground that he had got business rivalry with the convict, but such evidence being not brought on record from PW7, this Court does not consider it proper to accept such explanation/plea of the convict by way of eliciting from the evidence of PWs.2, 4 and other witnesses who were declared hostile and thereby, their evidence cannot be considered to be inspiring confidence to accept such a plea. Further, PW7 had volunteered in his evidence that he had closed down his grocery shop prior to the opening of grocery shop by the convict due to domestic problem and some financial trouble. In this situation, the reason given/plea taken by the convict about PW7 deposing against him is far from truth, since the sole child witness PW8 had clearly implicated the convict for causing death to the deceased.
10. It is, however, canvassed by the learned counsel for the appellant that since the informant had become hostile, the prosecution case cannot be taken as true, but such statement is hardly acceptable since the informant in this case is a private independent witness, who although had orally reported the matter to PW17 at the spot, but subsequently disowned it, however, FIR is not a substantive piece of evidence and at best, it can be used either to corroborate or contradict the evidence of informant. Besides, the convict had taken different plea in his statement Under Section 313 of CrPC inasmuch as in answer to question No.6, he had stated that he himself went to the police and inform the fact, but he was detained and booked in the case and his answer to the question No.9 is quite contrary to the aforesaid answer as he had stated therein that he had accidentally sustained injuries falling from the roof while working over it and his wife had also sustained injuries by coming into contact with the tin pieces while working as usual and for that injuries, the police referred both of them to RGH. It is not understood why the police would refer both of them when they had sustained injuries voluntarily and how the convict would go to the police station, instead of going directly to the hospital when he and his wife had sustained injuries on their person.
11. The evidence of PW19 clearly transpires that the convict had sustained one incised wound and one abrasion on his person, whereas his wife had sustained three incised wound on her person, but the testimony of PW5, the wife of the convict discloses her explanation as to the injuries sustained by her that she had sustained injuries on her right hand fingers by means of a piece of tin at her work site and she was treated by a doctor through her employer-Jatadish Babu, but subsequently she was sent to the Government Hospital, Rourkela for examination and treatment of the same injury, whereas PW19 who had treated PW5 had testified in the Court that had any first aid been given to either of these two injured, he would have certainly noted that facts in the injury report and since there is no such mention in the injury report, he can say that no first aid was given to those two patients till they were brought before him for examination. Besides, the convict had also denied the seizure of his wearing lungi and baniyan under MOVI and VII from him in his statement Under Section 313 of CrPC, but the evidence of PW17, the IO clearly indicates that he had seized MOVI and VII from the convict and the Chemical Examination Report under Ext.16 clearly reveals about presence of human blood on MOVI and VII. In the circumstance, when the convict and his wife had also sustained injuries on their persons, it is not unnatural that the blood stain found on MOVI and VII could have been the blood of the convict himself. However, the convict had denied MOVI and VII to be his wearing apparels. The aforesaid blunt denial to the question put in Sec. 313 CrPC only lends assurance to the prosecution case, of course, it is strictly not an evidence within the ambit of Section 3 of Indian Evidence Act, but it can certainly be used against the convict since the convict himself disowned the same which was in fact seized from him and no gainful cross examination of PW17 was made to discredit his evidence with regard to seizure of MOVI and VII. Mere suggestion given to PW17 with regard to MOVI and VII were not the wearing apparels of the convict would not cast a doubt on the testimony of PW17 with regard to seizure of aforesaid material objects, which was not substantiated by way of any valid cross examination.
12. On coming back to the evidence of PW18, the autopsy conducting doctor, it goes without saying that the deceased had suffered homicidal death, but the prosecution case is that the occurrence took place in a scuffle between the convict and the deceased, when the deceased had come to the spot by holding a lathi and abused PW5. The prosecution case further unfolds that during occurrence, the wife of the convict (PW5) had tried to snatch away the MOV (bhujali) from the hand of the convict which probably reveals as to how PW5 had sustained injuries on her fingers. The admitted injuries on the convict and the deceased as well as to the wife of the convict goes a long way to say that the circumstance of transaction discloses a grave and sudden provocation by the deceased to the convict as a result of which, the convict whilst deprived of the power of self-control had assaulted the deceased and caused his death and the aforesaid incident occurred in a spur of moment and was committed without pre-mediation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner. The evidence on record also transpires that the deceased was having criminal antecedent and he was considered as a goon in the locality which factor also contributes to the occurrence because when a criminal would come and abused the wife of a person, he would definitely be enraged and when a goon had come to the spot with a lathi and picked up quarrel with the offender, it would be quite natural that the offender may also retaliate to protect his wife. However, in view of the direct evidence of PW8 coupled with corroborative evidence of PW7 together with medical evidence of PWs.18 and 19 as well as the evidence of IO, this Court is quite convinced that it was the convict who assaulted the deceased for the reason stated hereinabove, but the convict caused death of the deceased which in the circumstance falling under the exception to Section 300 of IPC and, therefore, the conviction of the appellant for offence Under Section 304 Part-I of the IPC being perfectly justified calls for no interference.
13. The convict of course had been sentenced to undergo RI for seven years, but indisputably he was sentenced to undergo this punishment way back in the year 1993 when he was aged about more than 50 years and right now we are in the year 2024 and, therefore, the convict must be an octogenarian. Further, the learned counsel for the appellant on instruction has submitted by filing a written note of argument that the appellant is now bedridden and fighting for his survival. It is also not disputed that the appellant had remained in custody for some time during trial and post conviction stage. In this situation, when the appellant is on the fag end of his life and bedridden, this Court does not want to burden the jail authority by sending the convict to the prison again, when he must be aged about more than 80 years. In the circumstance, this Court considers that the interest of justice would be best served if the sentence of the appellant is reduced to the period already undergone and accordingly, modify the sentence of convict to this extent.
14. In the result, the appeal sans merit stands dismissed on contest, but no order as to costs, however, the sentence of the appellant is modified to the extent indicated above.
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