Govinda Naik vs The State

This Jail Criminal Appeal has been filed by the Appellant challenging to the order of conviction u/s 323, I.P.C. for casing simple hurt to Chanchala Naik (P.W. No. 2) and u/s 302, I.P.C. for causing homicidal death of Baidhar Naik (the deceased). For the said conviction, Appellant was sentenced to undergo rigorous imprisonment for one month for the offence u/s 323, I.P.C. and imprisonment for life for the offence u/s 302, I.P.C. Learned Sessions Judge, Koraput, Jeypore has directed to run both the sentences concurrently.

The case projected by the prosecution before the trial Court was that Khiramani Naik (P.W. No. 3) is the brother of Smt. Chanchala Naik (P.W. No. 2). Deceased was the husband of P.W. No. 2. One Jagan is the brother of the Appellant. P.W. No. 3 and Jagan were jointly doing cattle business. Once they had gone on such a business to outside but only P.W. No. 3 returned to the village. On getting no information about his brother, Appellant alleged that P.W. No. 3 had sold his brother. On 13.05.1994, i.e., on the date of occurrence, Appellant chased P.W. No. 3 to take him into task for missing of Jagan. Out of fear P.W. No. 3, in the process of escaping, entered into the house of his sister, i.e., P.W. No. 2. P.W. No. 2 prevented the Appellant when the latter entered into her house. At this, the Appellant assaulted and injured P.W. No. 2 on her head, for which she sustained bleeding injury. Thereafter Appellant returned to his house. By the time of the above occurrence deceased was not present in the house, but sometimes thereafter he returned to his house. P.W. No. 2 reported the incident about assault on her by the Appellant. Thus, the deceased immediately rushed to the house of the Appellant. First, he challenged the Appellant by standing in front of his house and thereafter he also entered into the house of the Appellant. Some times thereafter the deceased came out running from the house of the Appellant being followed by the Appellant holding an axe. Appellant then dealt blow by the axe on the chest of the deceased and when the deceased fell down he dealt successive blows by that axe. Immediately thereafter, deceased was taken to hospital at Shenger. In the absence of the Doctor, the Compounder of the hospital attended to the patient and gave first aid treatment and advised for shifting of the injured to a hospital at Kashipur. Thereafter the deceased was brought back to the village and on the way he died.

To substantiate the charge, prosecution examined as many as 12 (twelve) witnesses. As noted in the impugned judgment, out of them P.W. Nos. 2, 4, 5, 6, 8 and 9 were the eye-witnesses to the occurrences. Out of them P.W. Nos. 2, 5 and 9 were the eye-witnesses to the occurrence of assault on P.W. No. 2, and P.W. No. 2, 4, 6, 8 and 9 were the eye-witnesses to the occurrence of assault on the deceased. P.W. No. 1 was the informant and a post occurrence witness. P.W. No. 3 though was present inside the house of P.W. No. 2 at the time of assault on P.W. No. 2 but he did not witness the occurrence of assault either on P.W. No. 2 or the deceased. P.W. No. 7 was a witness to the Inquest and seizure of the weapon of offence, blood-stained earth, etc. P.W. No. 10 was the Police Constable who accompanied the dead body for post-mortem examination. P.W. No. 11 was the Doctor of Kashipur hospital who conducted post-mortem examination on the dead body of the deceased and also granted injury certificate to P.W. No. 2 on police requisition. P.W. No. 12 was the Investigating Officer. Post-mortem report and the opinion report of P.W. No. 11 were marked as Exts. 6 and 7, Injury Report issued in favour of P.W. No. 2 was marked Ext. 8 and Inquest Report was marked Ext. 1. They are the relevant documents for consideration out of the fourteen exhibited documents. M.O.-V was the iron portion of the axe and M.O.-VI was the broken handle of the axe. The other M.Os. were the wearing apparels of the accused and the deceased.

Accused denied to the allegations of assault on the deceased and also took the plea that the deceased came to his house and after hitting stone on his body the deceased ran away and he does not know the cause of the death. Accused did not adduce any evidence in support of his defence save and except cross-examining the prosecution witnesses.

Learned Sessions Judge, on perusal and appreciation of the evidence on record, found the evidence of P.W. No. 2 unacceptable with respect to the charge u/s 307, I.P.C. keeping in view the nature of the injury noted in Ext. 8 and the evidence of P.W. No. 11 relating to the bruises and lacerated wound on her right arm and right side of the head. He held that, by that evidence prosecution could not prove the charge u/s 307, I.P.C. and such evidence on record being acceptable, proves a case u/s 323, I.P.C. against the Appellant. In course of argument before us, learned Counsel appearing for the Appellant does not challenge to such finding and order of conviction. Therefore, we do not interfere with that order of conviction for the offence u/s 323, I.P.C.

Learned Sessions Judge, on appreciation of the oral and documentary evidence on record, recorded the findings that evidence of P.W. No. 9 that deceased entered into the house of the Appellant being armed with two pieces of stone is not acceptable, because she is an interested witness for the Appellant being his mother. Accordingly, learned Sessions Judge discarded that evidence from the zone of appreciation. He also found discrepancy in the evidence of P.Ws. 4, 6 and 8 and did not accept them as credible eye-witnesses on the ground that, according to their own statement, they were not examined by the Investigating Officer nor they made any statement before the Investigating Officer about the occurrence and there exists contradiction in their evidence in the context of assault on the deceased. Learned Sessions Judge also recorded the finding that report of the Chemical Examiner and the Serologist, Ext.14, was of no relevance to prove the case of the prosecution. After eliminating such evidence in the above-indicated manner, the trial Court on appreciation of the evidence of P.W. No. 11 held that the deceased suffered a homicidal death because of ante-mortem injuries and the evidence of P.W. No. 2 alone is sufficient to prove that Appellant is the author of that crime. Accordingly, he recorded the conviction against the Appellant for the offence u/s 302, I.P.C.

Learned Counsel for the Appellant that aforesaid approach of the trial Court is not only unreasonable and partial but also does not run in conformity with the principle of law on appreciation of evidence. He thus argues that, according to the allegations by the prosecution the deceased was the aggressor who entered into the house of the Appellant being armed with two pieces of stone. That part of the evidence stated by P.W. No. 9 was not challenged by the prosecution either by proving any contradiction in her previous statement before police or by getting anything on record that she falsely made such a statement to support the defence. In the absence of any such circumstances, evidence of P.W. No. 9 could not have been ignored. He further argues that what happened inside the house of the Appellant was not stated by any witness and P.W. No. 2 also did not state in her evidence that there was any injury on his body when the deceased came out from the house of the Appellant empty-handed. Learned Counsel for the Appellant argues that purpose of advancing such an argument is to fortify the contention of the defence that asemblance of right of private defence was available to the Appellant when the deceased as the aggressor is proved on record through the evidence of P.Ws. 2 and 9. He further argued that P.W. No. 2 saw dealing of only one blow by the Appellant. Thereafter the Appellant was taken to the hospital and first-aid was given to him by the Compounder of the hospital. That Compounder was neither examined by the Investigating Officer nor he was summoned by the prosecution to prove as to what were the injuries he found while giving first-aid treatment. Apart from that, it appears from the Inquest Report-Ext. 1 that there is no indication that there was presence of bandage or any medicine applied to the injured portions of the body. According to P.W. No. 2 and also P.W. No. 11, there was head injuries with bleeding, the Compounder who gave the first-aid treatment was supposed to put a bandage but the Inquest Report does not indicate about that. Accordingly he argues that if all the facts and circumstances are to be properly visualized, then some doubtful circumstance surface to indicate that the Appellant could not be the author of all the injuries. He further argues that, according to P.W. No. 11, when any single injury was not sufficient in ordinary course of nature to cause death of the deceased and if at all the blow to the chest was given by the Appellant, then it was in self-defence and therefore, evidence on record should have been appreciated in that manner. Learned Counsel for the Appellant further argues that learned Court below lost sight of the fact that Appellant and the deceased are the first cousin and that is apparent on the face of the evidence of P.W. Nos. 1, 9 and Ors. . Accordingly he argues that the unqualified evidence on record entitles the Appellant to the benefit of doubt and an acquittal from the charge u/s 302, I.P.C.

Learned Standing Counsel while supporting the impugned order of conviction, both for the offence u/s 323, I.P.C. and 302, I.P.C., however, could not reply to the aforesaid lacunas which the Appellant points out. He submits that P.W. No. 2 being the widow of the deceased, her evidence is above reproach in as much as she cannot rope in a wrong person and allow the real assailant to go unpunished. In other words, he argues that interestedness of P.W. No. 2 cannot be the ground to reject her evidence in this case.

It is the settled position of law that interestedness of a witness is no ground to reject such evidence on that ground alone. But once the witness is found to be an interested one, then such evidence should be scrutinized carefully so as to find out if the witness has the temperament and/or tendency to make false allegations or exaggeration with a motive to fasten the accusation on the accused. Therefore, it is the rule of caution that puts the Court on its guard to scrutinize and appreciate such evidence with due reference to the context in which it is considered to gather with other evidence, be it direct or circumstantial. In other words, interestedness of a witness is not a sine-qua-non either to blindly accept the evidence or to outright reject the same.

We find on record that, for the reasons already indicated, evidence of P.Ws. 4, 6 and 8 as the eye-witnesses to the occurrence was discarded by the trial Court. While defending the impugned judgment learned Standing Counsel also does not press in to service evidence of the above-noted three eye-witnesses. We find no reason to further analyse that evidence after a bare perusal. Now, therefore, we are to find out credibility of P.W. No. 2 and also to record a finding if evidence of P.W. No. 9 is to be considered in the context of sustainability of the charge u/s 302, I.P.C. against the Appellant.

Before dealing with that we refer to the evidence of P.W. No. 11 and the Post-mortem Report- Ext.6. It emerges from that evidence that deceased had sustained as many as seven external injuries. Out of the same, three were lacerated wounds and four were bruises. Out of the lacerated wounds the first one was on the forehead having the size of 1 1/2" x 1/2" x 1/3" in line with the left eye-brow laterally. The second one was on the middle of the head being of the same dimension as the previous one. The third one was on the right cheek of the size of 1/2" x 1/3" x 1/3". The bruises were:

(i) On the right side of the forehead just above the right eye-brow, of the size of 1 1/2" x 1"x superficial skin-deep.

(ii) On the middle of the chest three inches below the sternal notch of the size of 2" x 1 1/2" superficial skin-deep.

(iii) On the right back against 8th and 9th rib 4" above the vertebral column of the size of 2" x 1 1/2" x superficial skin-deep.

(iv) On the left side of the chest in the mid axillary line over 7th and 8th ribs being of the size of 1" x 1/2" x superficial skin-deep.

On dissection of the dead body, P.W. No. 11 found several internal injuries. Out of them internal injury Nos. 2 and 5 were taken note of. Those are lacerations on the outer surface of the spleen, corresponding to external injury No. 7 on the chest over 7th and 8th ribs and lungs were compressed at the hilum oozing blood through trachea and larynx. P.W. No. 11 opined that those injuries were ante-mortem in nature and death was due to the injury to the spleen, liver and lungs. In paragraph-4 of his deposition, he opined that all the injuries were possible by the blunt side of the axe and in paragraph-5 he opined that the head injury was possible by the sharp edge of the axe. In course of cross-examination, P.W. No. 11 opined that some of the injuries (found on the dead body of the deceased) were possible by fall on hard and rough surface and all the injuries were possible by hitting with stone. That evidence clinches the issue that deceased suffered death due to the injuries, which were involuntary.

It is to be found whether Appellant is the author of those injuries, which resulted in the death of the deceased. According to P.W. No. 2,

My husband at that time while returning home heard on his way that the accused assaulted me. So he rushed to our house, saw the bleeding injury and without telling anything to me went to the house of the accused and asked him ''as to what for he assaulted my wife and what was her fault''. My husband told this in a raised voice standing in front of the house of the accused. At that time the accused was inside the house. The wife of the accused was standing outside. My husband asked her about the whereabouts of the accused and she replied that he was not at home. Then my husband entered into the house of the accused. After few moments he came out followed by the accused. The accused gave a blow by a Tangia by its blunt side on his chest. My husband fell down on the Danda....

In the cross-examination, she stated that:

Seeing my blood-stained injury my husband became angry. So he went to the house of the accused to confront him as to why he assaulted me. He left home empty-handed. I did not enter into the house of the accused. So I cannot say what happened inside. The inside of our house was not fully lighted due to low height of the roof. Similar is the house of the accused....

P.W. No. 9, in paragraph-5 of her evidence, stated that:

I saw Baidhar (deceased) picked up two stones in his both hands and holding them ran to the house of the accused. Baidhar was shouting to finish Govinda.

Trial Court discarded the above noted evidence of P.W. No. 9 on the ground that shedeposed so in favour of her son being an interested witness. On perusal of her evidence, we do not subscribe to that view in as much as P.W. No. 9 remained truthful in describing the occurrence of assault on P.W. No. 2 by the accused. She did not protect her son in that respect. Therefore, the finding of the trial Court suffers from perversity by attributing interestedness to P.W. No. 9 when she deposed about the manner in which the occurrence progressed. In the above context,, if the trial Court had any doubt, then it should have permitted the prosecution to put any further question or even the Presiding Officer could have put any clarificatory question so as to ascertain the character of this witness and to ascertain if the witness was deposing falsehood. Approach of learned Sessions Judge is peculiar in as much as he accepted the version of P.W. No. 9 when she made statement against her own son regarding assault on P.W. No. 2, but under the same breath when she narrated the rest part of the occurrence, that was rejected because it was going in favour of her son, i.e., Appellant. Such an approach would have been reasonable if there would have been some evidence on record to support such an inference. In outer words, we find that for no good reason the trial Court unreasonably rejected the evidence of P.W. No. 9, which we have quoted in the preceding paragraphs. On the other hand we find the said evidence of P.W. No. 9 acceptable on the context of the quarrel between the deceased and the accused.

In addition to the plea that he did not assault the deceased, Appellant also took the plea of right of private defence. Such a plea once taken has to be proved on record. For that it is not essential for the accused to examine witnesses from his side if such factum is proved from prosecution evidence itself. The above quoted evidence of P.W. No. 2 read with evidence of P.W. No. 9 is suggestive of the fact situation that the deceased, a cousin of the accused, being annoyed for assault on his wife forcibly entered into the house of the accused armed with two stones and thereafter he came out and fell down when the accused said to have dealt one axe blow. At this juncture, if we recollect the opinion of the Medical Officer that all the injuries are possible by hitting of stones then the injuries found on the dead body of the deceased could have been possible in a scuffle inside the house and the deceased being the carrier of that weapon (stones) a motive for assault for murder cannot be attributed to the Appellant. If the accused would have been armed with an axe inside the house and had he the intention to assault or kill the deceased, then the deceased would not have been found to come out without having incised wounds, which is possible on the sharp edge of the axe. Evidence of P.W. No. 2 that she saw the accused dealing only one blow is also suggestive of the aforesaid circumstance, which we surmise in the absence of any evidence to the contrary.

In addition to that, as rightly argued by learned Counsel for the Appellant, prosecution evidence is incomplete in as much as a very important evidence, which could have subscribed as circumstantial evidence, was not at all obtained on record in course of the investigation or the trial. Inquest Report does not indicate that there was any sign of any treatment or the first-aid having been applied to the wounds of the deceased. The Investigating Officer or the supervising Police Authority did not take any step to examine the Compounder to know about the injuries he found when he granted the first-aid treatment. That lacuna in the prosecution evidence aids to the surrounding doubts and minimizes the accusation to a negligible extent. Therefore, from all such evidence on record we find the external injury No. 7 given on the chest was never intended to be dangerous enough so as to ultimately cause the death of the deceased due to want of treatment. For dealing that the lacerated wound an offence u/s 324, I.P.C. is only made out, but we feel that when the circumstances demanded him (Appellant) to resist the attack of the deceased, therefore, he should not be convicted for that offence also. Be that as it may, Appellant has already suffered imprisonment for near about a decade and, therefore, regarding his guilt u/s 324, I.P.C. imposing a sentence is redundant especially in the present case.

Under the given facts and circumstances, while upholding the conviction of the Appellant u/s 323, I.P.C. we grant the benefit of doubt in favour of the accused-Appellant and acquit him from the charge u/s 302, I.P.C. If his detention in jail custody is not required in connection with any other criminal case, then he be set at liberty forthwith in as much as he has already served the sentence imposed u/s 323, I.P.C.

The Jail Criminal Appeal is accordingly allowed in part.