Kisan Pradhan vs State Of Orissa

Sashikanta Mishra, J.

The appellant, Kisan Pradhan faced trial in Sessions Trial No. 78/2011 in the Court of the Sessions Judge, Phulbani, for committing the murder of Mali Pradhan and Suraj Pradhan. By judgment dated 22.11.2012, the trial Court convicted him under Sections 364 and 302 IPC and sentenced him to undergo RI for ten years and to pay a fine of Rs.10,000/-, in default to undergo RI for one year for the offence under Section 364 IPC. For the offence under Section 302 IPC, he was sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/-, in default to undergo RI for two years. Both the sentences were directed to run concurrently. The appellant was also held entitled to the benefit of set-off under Section 428 Cr.P.C.

Prosecution case, briefly stated, is as follows.

On 23.11.2010, at about 6.00 a.m., the informant Somanath Pradhan went to village Jrakesi to bring back his second wife Jugna Pradhan, who had gone to the house of her brother, Kisan Pradhan, following a quarrel with him. Kisan bore a grudge against the informant on account of the matrimonial dispute between them and had been threatening to kill him. When Kisan saw him at village Jrakesi, he threatened him and thereafter went inside the forest along with Jugna. It is stated that Kisan after returning to his house and being armed with a kuradhi (axe), went in search of the informant. As he could not find the informant, he proceeded to village Alimaha where the informant's first wife, deceased Mali Pradhan, and his son, deceased Suraj Pradhan, were residing. He took Mali and Suraj with him on the pretext that the informant had gone to see them after consuming liquor and dragged them towards his village. PW-3, Ananti Pradhan, daughter of the informant from his second wife, followed them. It is the prosecution case that when Mali and Suraj reached in front of the house of Kisan at about 12 noon, the appellant assaulted Mali with an axe by dealing several blows on her head and other parts of the body, as a result of which she fell down and died. Suraj, on seeing this, attempted to flee but fell down in a mustard field, whereupon Kisan assaulted him with the axe, causing his death. PW-3 witnessed the occurrence and returned to her village. At about 4.00 p.m., when the informant returned home along with Jugna, PW-3 narrated the occurrence to him. The informant thereafter informed his relatives and villagers and proceeded towards the place of occurrence. Finding Mali and Suraj lying dead, he went to Budaguda and thereafter to Balliguda, where he lodged FIR. On the basis of the FIR, Balliguda P.S. Case No.90 of 2010 was registered under Section 302 IPC. Upon completion of investigation, charge-sheet was submitted against him under Sections 364 and 302 IPC.

The defence of the accused person was one of complete denial and false implication.

To prove its case, prosecution examined fifteen witnesses and exhibited twenty-one documents. That apart, prosecution also proved seven material objects. Defence, on the other hand, did not adduce any evidence.

After analyzing the evidence on record, the trial Court held that the death of Mali and Suraj was homicidal in nature. Relying on the evidence of the autopsy doctor, the post-mortem reports and the inquest reports, it held that both the deceased had sustained ante-mortem injuries sufficient in the ordinary course to cause death and such injuries could have been caused by an axe. It treated the testimonies of PWs-3, 4 and 5 as ocular evidence and held that their evidence established the assault by the appellant on both the deceased with an axe. The evidence of PW-8 was also relied by the trial Court as corroborative evidence regarding the appellant taking Mali and Suraj towards his village while armed with an axe. It also took note of the seizure of the blood-stained axe from the possession of the appellant and the other materials collected during investigation. On the basis of above circumstances, the trial Court held that prosecution had proved the guilt of the appellant beyond reasonable doubt and accordingly, convicted the appellant and sentenced him as stated hereinbefore.

Heard Ms. Sonita Biswal, learned Amicus Curiae for the appellant and Mr. Partha Sarathi Nayak, learned Addl. Government Advocate for the State.

Ms. Biswal assails the impugned judgment of conviction on the following grounds:

ii) PW-3 claims to have witnessed the occurrence at about 12 noon but disclosed the incident to her father only at about 4.00 p.m. Her delayed disclosure and conduct cast doubt on her presence. Her presence is also not indicated in the spot map prepared by the IO.

iii) The version of PW-3 regarding the injuries inflicted upon the deceased does not tally with the medical evidence. The evidence of PWs-3, 4 and 5 also contains material variations regarding the manner and parts of the body upon which the blows were inflicted.

iv) Though the occurrence took place at a public place in the village, no independent person was examined. The presence of PWs-4 and 5 at the place of occurrence and their opportunity to witness the entire incident are also doubtful.

vi) Recovery of the blood-stained axe does not conclusively connect the appellant with the crime and the medical opinion that the injuries could have been caused by the axe only suggests a possibility.

Per contra, Mr. P.S Nayak would argue that PW-3 is a natural eye-witness to the occurrence and her testimony is duly corroborated by the evidence of PWs-4 and 5. The fact that she is a minor does not, by itself, render her evidence unreliable, particularly when her testimony is otherwise consistent. The delay in disclosing the occurrence to her father is also not sufficient to discard her evidence, as the occurrence had taken place in a different village and she had returned to her village after witnessing the incident. Answering the discrepancies pointed by Ms. Biswal regarding the injuries, he submits that these are minor and natural variations which do not affect the core of the ocular version. The medical evidence clearly establishes that both Mali and Suraj died homicidal deaths and the injuries sustained by them could have been caused by an axe. The evidence of PWs-3, 4 and 5 read with the medical evidence and the recovery of the blood-stained axe, establishes the involvement of the appellant beyond reasonable doubt. He also submits that the evidence regarding the appellant taking Mali and Suraj from their village towards Tembuli, coupled with the subsequent assault and murder, sufficiently establishes the charge under Section 364 IPC.

We have heard learned counsel for the parties and have taken note of the rival contentions. We have also perused the case record and the impugned judgment. The first question which arises for consideration is whether the deaths of deceased Mali and Suraj was homicidal in nature. The evidence of PW-15, the autopsy doctor, shows that deceased Suraj had sustained multiple abrasions, haematomas and a lacerated wound over the right temporal region above the ear, besides haematoma in the occipital region. On dissection, haematoma was found within the dura and pia matter, the brain matter was distorted in the right temporal area and there was fracture and separation of the right coronal sutures. The cause of death was cerebral haemorrhage due to multiple head injuries. In respect of deceased Mali, the doctor found lacerated wounds over the frontal and both parietal regions and a haematoma on the left chest, besides fracture of ribs and injuries to the skull and brain. Her death was opined to have been caused by cerebral haemorrhage and cerebral anoxia due to multiple head and chest injuries. The injuries in both cases were ante-mortem and sufficient in the ordinary course to cause death. The medical evidence, therefore, shows that both Mali and Suraj died unnatural and homicidal deaths and there is no material on record to take a contrary view.

Ms. Biswal, has seriously questioned the reliance placed on the evidence of P.W.3, Ananti Pradhan, who is the daughter of the informant and was about 16/15 years of age at the time of occurrence. She contends that she being a minor witness, her competency ought to have been tested by the trial Court before recording her evidence. We are unable to accept such contention. The test under Section 118 of the Evidence Act is not the age of the witness by itself, but whether the witness is incapable of understanding the questions put to her or of giving rational answers. PW-3 was about 16/15 years of age and her deposition and cross-examination disclose that she understood the questions put to her and gave rational answers. There is no material on record to suggest that she suffered from any intellectual or other incapacity rendering her incapable of giving evidence. The mere absence of a separately recorded finding or formal exercise in the nature of a voir dire, therefore, does not render her testimony inadmissible or legally incompetent.

At the same time, the fact that PW-3 was a young witness requires the Court to examine her evidence with due care and circumspection. In Panchhi v. State of U.P.^{11.(1998) 7 SCC 177}, the Supreme Court has held that the evidence of a child witness is not liable to be rejected merely because the witness is a child, but such evidence must be evaluated more carefully and with greater circumspection, as a child may be susceptible to tutoring. Similarly, in Suryanarayana v. State of Karnataka^{22.(2001) 9 SCC 129}, it has been held that the evidence of a child witness cannot be discarded merely on account of age and if such evidence withstands careful scrutiny and inspires confidence, conviction can be founded upon it. Corroboration is a rule of prudence and not an inflexible rule of law.

Keeping the above principles in view, we have carefully examined the testimony of PW-3. She stated that on the date of occurrence the appellant came to their house and asked about the whereabouts of her father. Thereafter, according to her, the appellant took deceased Mali and Suraj with him by representing to Mali that her husband had gone to see them after consuming liquor and was moving about in his village. She stated that she followed them and when they reached the village Danda of the appellant, she saw the appellant assaulting Mali with an axe, following which Suraj attempted to flee and was also assaulted by the appellant in the mustard field. She also stated that being frightened she returned to her village and disclosed the occurrence to her father when he returned at about 4.00 p.m.

Ms. Biswal has pointed out that PW-3 witnessed the occurrence at about 12 noon but did not disclose it to anyone till about 4.00 p.m. She also argued that her presence is not indicated in the spot map prepared by the IO. These are circumstances which require consideration. However, delay in disclosure by itself cannot be treated as a circumstance disbelieving the presence of a witness. PW-3 was a young girl of about 15 years of age. According to her own evidence, she had followed the deceased from her village to the village of the appellant, which was about four km away and a forested route. She stated that after witnessing the assault she returned frightened to her village. Her father returned home at about 4.00 p.m., whereafter she narrated the occurrence to him. The interval between the occurrence and disclosure, in the circumstances of the present case is not such as to render her entire testimony improbable.

As regards the spot map, it does not specifically indicate the position from which PW-3 witnessed the occurrence. However, an omission in the spot map cannot, by itself, conclusively establish that the witness was not present at the spot. A spot map is prepared by the IO to depict the relevant physical features of the place of occurrence and the omission to record the exact position of an eyewitness is essentially an investigative lapse unless the surrounding evidence establishes that such position was indispensable to the possibility of witnessing the occurrence. It would be profitable to refer to the principle laid down by the Supreme Court in the case of Inder Singh v. State (Delhi Administration)^{33.(1978) 4 SCC 161}, wherein it was observed that credibility of oral and circumstantial evidence depends upon a judicial evaluation of the totality of the circumstances and proof beyond reasonable doubt does not mean proof which is perfect in every respect. The Court cautioned against a hypersensitive approach whereby every omission or discrepancy in the investigative process is treated as fatal to the prosecution case. The Court observed as follows:

Applying the above principle, the omission of the presence of PW-3 from the spot map cannot by itself be treated as sufficient to discard her ocular account. Her evidence has to be examined along with the other ocular evidence.

It is also argued by Ms. Biswal that the description of the injuries given by PW-3 does not tally with the medical evidence. We have carefully considered the deposition in this regard. PW-3 has described the blows given on the parietal region. It is true that the medical evidence records injuries over the frontal, parietal and temporal regions, besides injuries to the chest and other parts. However, while examining the evidence of PWs-3,4 and 5, the Court cannot lose sight of the fact that they are rustic villagers and not persons trained in medical terminology. It would be unrealistic to expect such a witness to identify and name anatomical regions with the precision of a medical practitioner. The expression ‘parietal region’ appearing in the deposition may well be the manner in which the evidence came to be recorded by the Court and may not necessarily represent the precise terminology used or understood by the witness. A rustic witness may, in the ordinary course, indicate the place of injury by pointing towards the relevant part of the body rather than by naming the anatomical region. The deposition as recorded does not disclose the demeanour of the witness or whether she indicated the place of injury by gesture. Therefore, the use of the expression ‘parietal region’ cannot, in the facts of the present case, be elevated into a material contradiction with the medical evidence. We are also conscious that P.W.3 in her statement under Section 164 Cr.P.C. stated to have described the assault in somewhat different terms, including blows on the neck and chest, whereas in Court she referred to assault on the parietal region. Such variations have to be examined in the context of the occurrence as a whole. The fundamental part of her version remains that the appellant took Mali and Suraj towards his village and assaulted both of them with an axe, causing their deaths. The medical evidence establishes multiple injuries on the head and chest of Mali and multiple head injuries on Suraj. The variation regarding the precise part of the body struck or the number and location of blows is not, in our considered view, sufficient to demolish the core of her testimony. It is also necessary to remember that a witness seeing a assault cannot reasonably be expected to count each blow with precision or reproduce the occurrence with photographic accuracy. Minor variations in the description of the number, sequence or precise location of blows are natural and unless they affect the substratum of the prosecution case, cannot be treated as material contradictions. What is material is whether the evidence consistently establishes the identity of the assailant, the assault and the resulting death. On these essential aspects, the evidence of PW-3 remains consistent.

There is also material corroboration from the evidence of PWs-4 and 5. PW-4 stated that at about 12 noon he saw the appellant assaulting Mali and thereafter assaulting Suraj when the latter attempted to run away. PW-5 also stated that he saw the appellant assaulting Mali and when Suraj ran away and fell in the mustard field, the appellant assaulted him there. Both witnesses thus speak to the appellant assaulting both deceased at about the same time and place. Though there are variations between their testimony and PW-3 regarding the precise parts of the body and the manner in which the blows were delivered, such variations are natural. More importantly, both witnesses independently place the appellant at the scene with the deceased and attribute the assault to him.

The evidence of PW-4 that he was taking bath in the Chua (water hole) situated about 200 metres from the house of the appellant and that there were trees between the Chua and the house and the evidence of P.W.5 that the Chua was within the boundary of the appellant's village and villagers used to take bath there, also require consideration. Their exact opportunity of witnessing every detail of the assault may be a matter of scrutiny, nevertheless, the evidence cannot be rejected merely because there were trees or some distance between the place where they were and the place of occurrence. Their evidence, at the least, provides corroboration to the evidence of PW-3.

Ms. Biswal has further argued that though the occurrence took place in a public place, no independent witness was examined. The mere fact that other persons could have been present does not render the evidence of the witnesses examined by the prosecution unreliable. The law does not require a particular number or category of witnesses to prove an occurrence. What is required is that the evidence adduced must inspire confidence. In the present case, P.Ws-3, 4 and 5 have all spoken about the occurrence. The fact that no other villager was examined is, therefore, not by itself sufficient to create a reasonable doubt.

The medical evidence is also consistent with an assault by a heavy weapon such as an axe. PW-15 found lacerated wounds and extensive internal injuries to the skull and brain of both deceased and opined that such injuries could have been caused by the seized axe. She also examined the weapon produced by the IO and gave a specific opinion that the injuries found on the deceased could have been caused by that weapon. The medical evidence thus provides corroboration to the ocular account.

The recovery of the axe is another incriminating circumstance. P.W.14 has stated that the appellant was apprehended while proceeding towards Harijan Sahi of village Budaguda holding the blood-stained axe and the axe was seized from his possession. P.W.12 has also supported the seizure.

Ms. Biswal has also sought to question the evidence of PW-1 on the ground of false implication arising out of the matrimonial dispute between him and his second wife Jugna, who happened to be the sister of the appellant. PW-1 admitted the matrimonial discord. However, the existence of such dispute does not furnish a satisfactory explanation as to why PWs-4 and 5, who were present at the spot and whose evidence substantially corroborates the occurrence, would falsely implicate the appellant. Motive for false implication must be established by circumstances and cannot be presumed merely because there existed some prior dispute. It is well settled that motive is not indispensable where there is convincing direct evidence. At the same time, in a case resting substantially upon circumstances, motive assumes greater relevance. In the present case, however, the prosecution has adduced ocular evidence of the occurrence itself. The absence of a clear or strong motive, therefore, does not materially affect the prosecution case.

We now turn to the conviction under Section 364 IPC. Section 364 IPC applies where a person kidnaps or abducts another in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered. The essential ingredients of the offence under sec. 364 are as follows:

In the case of Badshah v. State of U.P.^{44.(2008) 3 SCC 681}, the Supreme Court held that the ingredients of Section 364 IPC require proof of kidnapping and that the kidnapping was for the purpose that the person may be murdered or may be put in danger of being murdered. The intention for which the person was kidnapped is to be gathered from the circumstances attending the offence before, at the time of and subsequent to the commission of the offence. A mere kidnapping may not by itself disclose the purpose for which it was committed, but such purpose can be inferred from the surrounding circumstances.

In the present case, PW-3 stated that the appellant came to their house, enquired about her father and thereafter represented to Mali that her husband had gone after consuming liquor and had come to see her. Acting upon such representation, Mali and Suraj went with the appellant. P.W.8, who is an independent witness, stated that the appellant came to village Alimaha carrying an axe and took Mali and Suraj towards his village by giving them pushes. Thus, the evidence shows that the deceased was taken away by the appellant by means of deceit and force.

The illustration attached to Section 364 IPC itself recognises the concept of enticing a person away from his home for the purpose of murder. Therefore, even assuming the absence of proof of forcible physical removal cannot, by itself, defeat the charge where the prosecution establishes that the deceased were induced to accompany the accused and the taking was connected with the murderous design. In the present case, the circumstances preceding the taking, the fact that the appellant was armed with an axe, the manner in which the deceased were taken towards his village and the immediate subsequent murderous assault constitute a continuous chain pointing towards the purpose for which they were taken away.

There is yet another circumstance which supports the above conclusion. The prosecution evidence shows that after the deceased were taken away by the appellant, they were found dead soon thereafter at or near the village of the appellant. The appellant has not offered any explanation as to how the deceased came to be in his village or as to the circumstances in which they sustained such injuries. Section 106 of the Evidence Act does not relieve the prosecution of its primary burden of proving the foundational facts. However, once such foundational facts are established, facts particularly within the knowledge of the accused acquire significance. The absence of a plausible explanation from the accused may then furnish an additional link in the chain of circumstances.

In the present case, the circumstance of the appellant taking the deceased towards his village, followed by their homicidal deaths there cannot be considered in isolation. It has to be read along with the ocular evidence, the recovery of the blood-stained axe and the medical evidence. The subsequent conduct of the appellant is thus not merely a circumstance of suspicion but forms part of the chain of circumstances from which the purpose behind the taking can reasonably be inferred. We are, therefore, satisfied that the prosecution has established the ingredients of Section 364 IPC.

Thus, from a conspectus of the analysis of the evidence, reasoning of the trial Court and its findings, the contentions raised and the discussions made, we are left with no doubt that the accused was rightly convicted for the offence of murder and kidnapping for murder. We, therefore, find no reason to interfere with the impugned order.

In the result, the appeal fails and is therefore, dismissed. The appellant being on bail, his bail bond be cancelled and he be taken into custody forthwith to serve the remaining part of his sentence.

We place on record our appreciation for Ms. Sonita Biswal, learned advocate for her able assistance to the Court as Amicus Curiae. We direct the Odisha State Legal Services Authority to pay Ms. Biswal Rupees Fifteen Thousand towards her professional fee.

Manash Ranjan Pathak, J. I agree.