Prasanna Kishan vs State Of Orissa
2023 Latest Caselaw 15491 Ori

Orissa High Court

Prasanna Kishan vs State Of Orissa on 4 December, 2023

Author: G. Satapathy

Bench: D. Dash, G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                       JCRLA No.99 of 2012

  (An appeal U/S. 383 of the Code of Criminal Procedure,
  1973 against the judgment passed by Shri A.C.Behera,
  Addl. Sessions Judge (FTC), Sundergarh in S.T.
  No.45/09 of 2012 corresponding to G.R. Case No. 303
  of 2011, arising out of Bargaon PS Case No. 69 of 2011
  of the Court of JMFC, Rajgangpur)


  Prasanna Kishan                  ...         Appellant
                              -versus-
  State of Orissa                   ...        Respondent

 For Appellant               :    Mr.S.S. Ray,Advocate
 For Respondent              :    Mr.S.K. Nayak, AGA

       CORAM:
          HON'BLE MR. JUSTICE D. DASH
          HON'BLE MR. JUSTICE G. SATAPATHY

                      DATE OF HEARING :05.10.2023
                      DATE OF JUDGMENT:04.12.2023

G. Satapathy, J.

1. This appeal is directed against the judgment of

conviction and order of sentence passed on 23.04.2012

by learned Additional Sessions Judge, Fast Track Court

(FTC), Sundergarh in S.T. Case No. 45/09 of 2012

convicting the Appellant for commission of offence

punishable U/S. 302 of IPC and sentencing him to

undergo imprisonment for life with payment of fine of Rs.

1,000/- in default whereof, to undergo rigorous

imprisonment for a further period of three months.

2. Tersely stated, the prosecution case is that on

24.09.2011 in the morning, one Baisakhu Kishan

(hereinafter referred to as the "deceased") of village

Salepali had been to village Lakhpada, but as he did not

return to his house, on the next morning, his son namely

PW1 Krushna Chandra Kishan unsuccessfully searched for

him. In the course of such search, PW1 ascertained/heard

from some boys of his village namely Akash Naik, Nabin

Kumar Sahu(PW2) and Raja Khadia that the convict-

Appellant had assaulted the deceased by means of a

Budia(axe) and killed the deceased on the previous day

i.e. on 24.09.2011 at Madhyabahal paddy field.After

receipt of this news, PW1 and others rushed to

Madhyabahal paddy field of village Salepali, and found

the dead body of deceased lying there with multiple

injuries on his head.

On this incident, on the same day i.e.

25.09.2011 at about 8:30am, PW 1, accordingly, lodged

an FIR against the convict under Ext.1 before the IIC,

Bargaon PS who registered the same vide Bargaon PS FIR

No. 69 of 2011 for offence U/S. 302 of IPC and directed

SI of Police-PW 7 N.K. Sahu to investigate the case.

Accordingly, PW 7 examined PW 1 and other witnesses

including eye witnesses and recorded their statement,

dispatched the dead body to the hospital for Post Mortem

examination after conducting inquest over the dead body

under Ext.2 and, accordingly, PW 6 conducted Post

Mortem over the dead body of the deceased. PW7 also

seized sample earth, blood stained earth, one napkin of

the deceased stained with blood from the spot and

arrested the convict on the same day. Further, the

convict while in police custody gave recovery of the

weapon of offence i.e. an axe from a wooden heap on the

back side of his house pursuant to his disclosure

statement recorded by PW7 vide Ext.4 and PW7 also

seized the weapon of offence vide Ext.5. The

incriminating materials including the weapon of offence

were sent to RFSL, Sambalpur for chemical examination.

As usual on completion of investigation, charge-sheet was

submitted against the convict for commission of offence

U/S. 302 of IPC.

3. On receipt of charge-sheet, cognizance was

taken and the case was committed to the Court of

Sessions after due committal procedure and the case was

transferred to the learned Additional Sessions Judge, Fast

Track Court (FTC), Sundergarh who proceeded with the

trial after denial of the convict to the charge. This is how

the convict was sent up for trial.

4. In support of the charge, the prosecution had

examined all total 8 witnesses and relied upon documents

under Exts. 1 to 16 as against no evidence whatsoever by

the defence. Of the witnesses examined, PW1 is the son

of the deceased-cum-Informant, whereas PW2 is an

independent child eye witness to the occurrence, PW6 is

the Doctor who had conducted the Post Mortem

Examination over the dead body of the deceased, PW7

and 8 are the two IOs (Investigating Officers). PW Nos. 3

to 5 are the witnesses to seizure.

5. In the course of trial, the plea of the convict

was denial simplicitor and false implication as well as

ignorant of the incident.

6. After appreciating the evidence upon hearing

the parties, the learned trial Court convicted the

Appellant by mainly relying upon the evidence of child

eye witness (PW2) and sentenced the convict to the

punishment indicated supra.

7. In the course of hearing of the appeal, Mr. S.S.

Ray, learned counsel for the Appellant has submitted that

although the learned trial Court has based the conviction

solely on the testimony of child eye witness, but such

over reliance on the evidence of the child witness without

any corroboration from other witnesses, it would not be

safe to convict the Appellant, especially when the

prosecution has not examined the so called other child

eye witnesses to the occurrence namely Akash Nayak and

Raja Khadia. It is further argued that there is glaring

variance between ocular evidence and medical evidence

regarding the nature of injuries sustained by the

deceased and, therefore, there is grave and serious

infirmity in the prosecution evidence which creates a

grave doubt in the prosecution case with regard to

participation of the Appellant in the commission of crime.

On the aforesaid submissions, learned counsel for the

Appellant has prayed to allow the appeal by setting aside

the impugned judgment of conviction and order of

sentence.

8. On the other hand, Mr. S.K. Nayak, learned

AGA has, however, submitted that there is no hard and

fast rule that the evidence of child witness requires

corroboration and once the evidence of child witness is

found to be reliable and free from any biases or tutoring,

the same can be relied upon to base conviction. Learned

AGA has also pointed out that the evidence of PW2 is free

from any biases and tutoring and there is hardly any

variance between ocular and medical evidence and,

therefore, the learned trial Court has not committed any

illegality in convicting the Appellant since the prosecution

has established its case against the convict beyond all

reasonable doubt.

9. After having duly considered the rival

submissions vis-à-vis the impugned judgment, this Court

now proceeds to scrutinize the evidence available on

record to find out the sustainability of the impugned

judgment in the light of the rival submissions. There

appears no dispute about the homicidal death of the

deceased, especially when the defence had not

challenged it, but it claims that the medical evidence is at

variance with the ocular evidence and it is, therefore,

necessary to examine the medical evidence and ocular

evidence of PW2 meticulously. In this case, the medical

evidence as deposed to by PW6 disclosed inter-alia the

injuries to the deceased as under:-

External Injuries

(i) Lacerated injury over scalp over parietal region of size 3"x 1" x 1/2".

(ii) Lacerated injury over frontal region of size 2" x 1" x 2".

(iii) Lacerated injury on right side of face near mouth cavity of size 3" x 2"

x 1/2".

(iv) Lacerated injury near left ankle joint of size 2" X 1" X 2".

(v) Lacerated injury in front of left tibia of size 2"X1"X1". No mark of ligature found.

PW 6 had testified in his evidence as to cause of death

of the deceased as "due to haemorrhage from injury to

vital structure of brain and all the above injuries can

cause the death of a person in ordinary course of nature".

It was the further evidence of PW 6 that he had given

opinion to the query of the IO as to the possibility of the

injuries detected on the deceased as "the injuries

decribed in the PM report vide Ext. 9 were possible by the

said weapon of offence (tangia) and the injuries are

sufficient to cause of death a person in ordinary course of

nature". PW 6 had also proved such query report vide

Ext.10 and his signature vide Ext. 10/1. Although the

defence had elicited from the mouth of PW6 that the

injuries found on the dead body of the deceased could

have been caused by the effect of blunt side of the

weapon and the injuries could also be possible by any

type of weapon having blunt surface other than the

weapon sent for examination, but the death of the

deceased due to assault by means of the weapon of

offence had never been disputed by the defence and,

therefore, the learned trial Court has not committed any

illegality or perversity in opining on analysis of testimony

of PW 6 that the deceased had suffered a homicidal

death.

10. On coming back to the ocular evidence as to

the involvement of the convict, it appears that PW 2 was

a child eye witness to the occurrence, but before allowing

PW No. 2 to depose in this case, the learned trial Court

had opted the due procedure by putting relevant

questions to test his competency in terms of Sec. 118 of

Evidence Act and the learned trial Court had also certified

after taking into consideration the answers given by PW 2

to question put to him before his evidence by appending

the necessary certificate that PW 2 was competent to

testify. PW 2 had inter alia testified in the Court by

deposing "we saw that accused Prasanna(convict)

assaulted Baisakhu(deceased) during his sleeping

condition by giving successive blows through the said

Budia(axe) which he was holding and then he dragged

Baisakhu (deceased) from the place of his sleeping to a

little distance and threw him there and thereafter, he

(convict) went away to his house by holding that axe"

which was the main substratum of the occurrence. PW2

further deposed after seeing the same, he along with

Akash and Raj went to their respective houses and on

that day, they did not disclose about the incident before

anybody and on the next day, he disclosed about the

incident before Krushna(PW1) and such evidence of PW 2

is corroborated by PW 1.

11. Although the defence had availed to cross-

examine PW 2, but nothing substantial was elicited from

his mouth, nonetheless it was elicited from him which

lends assurance to the prosecution case is "the accused

was assaulting Baisakhu through the sharp side of Budia

(axe). It was also elicited by the defence from PW 2 that

today he came to the Court with PW 1 who had not

instructed anything to him in connection with this case.

12. On scrutiny of ocular and medical evidence, this

Court does not find anything to consider that the same

were at variance, since the weapon of offence which was

an axe (budia) in this case may or may not be so sharp,

nevertheless it can, however, cause lacerated injuries

even by assaulting on its sharp side. It is also found from

the testimony of PW1 that he heard from PW2, Akash

Naik and Raja Khadia of their village that on the previous

day i.e. on 24.09.2011, they had seen the convict

assaulting the deceased by means of an axe(budia) and

he along with other rushed to the spot and found the

dead body of the deceased which was duly corroborated

by the evidence of PW 2 who in his evidence had made it

clear that on the next date, he disclosed about the

incident before PW 1 and the same was not at all denied

by the defence by giving any suggestion to PW Nos. 1 or

2. Law is also well settled that evidence has to be

weighed, but not to be counted and a conviction may lie

on the solitary testimony of a witness without any

corroboration, provided the evidence of such witness is

reliable and truthful. Section 134 of the Indian Evidence

Act also mandates that no particular number of witnesses

in any case be required for the proof of any fact and,

therefore, non-examination of other witnesses who are

available cannot automatically lead to any inference that

the prosecution case is false or incorrect. Besides,

corroboration is not the rule of law in each and every

case, but where the evidence would be ambiguous or

hazy, the Court may seek corroboration to such

testimony. Even otherwise, if the evidence of a solitary

witness is trustworthy, believable and reliable, conviction

can be based on such evidence. In this case, although the

defence had taken the plea of non-examination of other

eye witnesses Akash and Raja to be fatal to the

prosecution case, but the defence had not been able to

show any prejudice caused to the Appellant for non-

examination of Akash and Raja, especially when the

evidence of PW 2 is beyond reproach, truthful and

unimpeachable. It is also the discretion of the prosecution

either to examine any particular witness or to decline any

witness cited in the charge-sheet by taking into

consideration whether such witness is reliable or

unreliable, but it has certainly a duty to present truth

before the Court by examining reliable witnesses.

13. A careful and meticulous analysis as well as

scrutiny of evidence makes it very clear that the

deceased did not return to the house after going to

village Lakhpada and on the next date in early morning,

on being searched by his son PW 1, the deceased was not

found and in the morning PW 1 heard from PW 2 and

others about convict assaulting and killing the deceased

by means of Budia(axe) and, therefore, PW 1 lodged an

FIR vide Ext. 1 immediately at about 8:30 am. The

evidence of PW 1 and 2 corroborates each other in

material particulars and the same is well supported by

the medical evidence with regard to nature of injuries

sustained by the deceased and it is, therefore, rightly

held by the learned trial Court that the prosecution has

been established its case against the convict beyond all

reasonable doubt for committing the murder of the

deceased and, therefore, the conviction of the Appellant

cannot be questioned. Besides, the defence has not been

able to bring the act of the convict within any of the

exception of Section 300 of IPC so as to bring the case

for an offence U/S. 304 of IPC inasmuch as the convict

had brought the weapon of offence from his house and

assaulted the deceased by giving successive blows with

such weapon of offence axe, when the deceased was

sleeping on the ridge at Madhyabahal paddy field and

after assaulting the deceased, the convict dragged him to

a little distance and threw him there.

14. In the ultimate appraisal of totality of evidence

on record, this Court does not find the learned trial Court

to have committed any illegality or perversity in

convicting the appellant for committing the murder of the

deceased and sentencing him to the punishment

indicated supra which calls for no interference in this

appeal.

15. In the result, the appeal stands dismissed.

Consequently, the judgment of conviction and order of

sentence passed on 23.04.2012 by learned Additional

Sessions Judge, Fast Track Court (FTC), Sundergarh in

S.T. Case No. 45/09 of 2012 are hereby confirmed.

(G. Satapathy) Judge

I Agree

(D.Dash) Judge

Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Priyajit

Location: HIGH COURT OF ORISSA