Paban Nayak vs State of Orissa

P.K. Tripathy, J.—This Jail Criminal Appeal has been filed by Appellant-Paban Naik challenging to order of conviction for the offence u/s 302, Indian Penal Code and sentence of imprisonment for life imposed on him by learned Session Judge, Dhenkanal-Angul, Dhenkanal in S.T. Case No. 107-D of 1994.

Accused faced that trial on the charge u/s 302, Indian Penal Code on the allegation that on 5.5.1994 evening at about 7.30 P.M. he attacked and assaulted Jahaj Naik, an old lady aged about 65 years when she was returning to her house from nearby kendu leaf go down accompanied by her grand son Okila Naik (P.W. No. 2). It is further alleged that accused assaulted the deceased by means of the axe, Mos. II and I, (out of the same M.O. II is the iron portion and M.O. 1 is the broken handle portion of the axe). To substantiate the charge, prosecution examined six witnesses. Out of them P.W. No. 2, grandson of the deceased was an eye witness to the occurrence. His mother, P.W. No. 1 being the daughter-in-law of the deceased though did not see any part of the assault by axe, but being called by his son he came on the spot and saw the accused standing on the chest of the deceased holding the weapon of offence. Prosecution has accepted them as eye witnesses to the occurrence. P.W. No. 3, Paraja Naik being son of the deceased also came to the spot along with P.W. Nos. 1 &2 and found the dead body was missing from the spot of occurrence. Thereafter he reported the incident to the villagers and on their intervention, accused disclosed that he had thrown the dead body to a cultivable land of some persons. D.W. No. 3 searched for the dead body, traced it and thereafter, reported the incident to the Police. That FIR has been marked as Ext. 1. P.W. No. 6 is the Doctor who conducted post mortem examination on the dead body of the decease and proved the post mortem report, Est. 8 and opinion report, Ext. 9 relating to the axe being the weapon of offence. In course of investigation, accused while in Police custody gave discovery of the M. Os. I & II and that was seized under seizure list, Ext. 2. P.W. No. 4, Brahmananda Mohanty was examined as an independent witness to prove recovery of the seizure of the weapon of offence. P.W. No. 5 was the Investigating Officer of the case. Accused took the plea of complete denial but adduced no evidence in his defense.

On assessment of such evidence on record and particularly the evidence of P.W. No. 6 and Ext. 8, Learned Sessions Judge recorded that deceased suffered a homicidal death due to the lacerated injuries on the left side of forehead including left parietal are, midline and middle portion of head and a bruise on right eyebrow including the right eye. Learned Session Judge on appreciation of evidence on record found that evidence of P.W. Nos. 1 & 2 to be reliable and accordingly accepting their evidence, he determined the Appellant as the author of the crime. He also referred to the evidence of other witness as the corroborating factor and accordingly found the Appellant guilty of the offence u/s 302, Indian Penal Code and sentenced him in the manner indicated above.

Learned Counsel for the Appellant argues that prosecution case is based on surmises and presumption and the evidence of P.W. Nos. 1 &2 are contradictory and not credible relating to the manner of occurrence. He however argues that presence of P.W. No. 2 at the spot of occurrence was improbable. He further argues that the real FIR was not brought on record and Ext. 1 id not the real FIR, and that the seizure of axe in this case under Ext. 2 is not a case of leading to discovery u/s 27 of the Evidence Act. Accordingly he argues to grant benefit of doubt to accused and to acquit him.

Learned Standing Counsel on the other hand, supports the impugned judgment and the findings recorded therein in letter and spirit and repels to the aforesaid argument of the Appellant.

On reference to the evidence of P.W. No. 6 and the post mortem report, Ext. 8 it is apparent that death of the deceased was homicidal and the ante mortem injuries were sufficient in ordinary course of nature to cause her death. We also notice from the evidence of P.W. No. 6 and Exhibit. 9 that two head injuries, which were bone deep and count are possible by the seized axe.

So far as the eye-witnesses are concerned, indeed, P.W. No. 2 is the only eye witness to the occurrence who witnessed the actual assault part on the head of the a deceased and went to call his mother after being threatened by the accused with dire consequence where he tried to intervene. It emerges from the evidence of P.W. No. 2 that the house was at a distance of 100 cubits from the spot of assault. Evidence of this witness, though there was cross-examination, has not been shaken relating to the assault part. Appellant argues that P.W. No. 2 being a boy aged about 14 years, if he was present at the spot of occurrence, then after dealing blows to the deceased, accused could not have left him unhurt and, therefore that circumstance is sufficient to presume that P.W. No. 2 was not present at the spot. We are unable to accept this argument inasmuch as such circumstance is made out on record during the examination or cross-examination of P.W. No. 2. If accused had no intention to kill, P.W. No. 2, but had only intention to kill the deceased, then even if P.W. No. 2 was present at the spot of occurrence, it was not necessary for the accused to kill P.W. No. 2. Thus present of P.W. No. 2 as an eye witness to the occurrence is not importable because he was not killed by the accused. The evidence of P.W. No. 1 is that he arrived at the spot being called by her son and saw the accused standing on the chest of the deceased being holding the axe. He has no stated anything regarding assault made by the axe on the deceased after her arrival at the spot. Therefore, the evidence of P.W. No. 1 is found corroborative to the evidence of P.W. No. 2 that accused was the author of the injury which the deceased sustained to suffer homicidal death. In course of cross-examination evidence of P.W. No. 1 in the above context also could not be shattered in any manner and her evidence has remained credible and acceptable.

P.W. No. 3 is admittedly a post occurrence witness. He searched and discovered the dead body and lodged the information before the Police and participated in the investigation. According to P.W. No. 3, when he reached at the Police Station, no Police Officer including the Officer-in-Charge was present in the Police Station was present and only a constable was present in the Police Station. Basing on that statement, Appellant argues that in the absence of the Officer-in-Charge of a Police Station, if no other Police Officers were present, then the Police Constable should have assumed the charge of the Officer-in-Charge of the Police Station. Definition of the term "Officer-in-Charge of a Police Station" in Clause (o) of Section 2 of the Code of Criminal Procedure, 1973 (in short ''the Code'') provides that Officer-in-Charge of a Police Station includes any Police Officer who is next in rank to the Officer-in-Charge available at the Police Station during absence of the Officer-in-Charge but such Police Officer must be above the rank of the Constable. Therefore, the aforesaid definition does not state that a Constable being lone person present at the Police Station can remain in the charge of the Officer-in-Charge of the Police Station. Be that as it may, P.W. No. 3 has not stated in his evidence that on his arrival at Police Station, he lodged a written report before that Police Constable. On the other hand he has clearly stated that he waited and when the Police Officer came, he narrated the incident verbally and that was reduced into writing in the shape of Ext. 1. That being the position, the argument of the Appellant that the earliest report as FIR has been suppressed of that Ext. 1 is not the FIR is not acceptable.

So far as the evidence of P.W. Nos. 4 & 5 on the seizure list, Exts.2 and 3 the report from the State Forensic Science Laboratory relating to the detection of human blood in the blood stained earth, wearing apparels of the deceased and the weapon of offence are concerned, they are all complementary and supplementary to the evidence of P.W. Nos. 1 & 2 and P.W. No. 6 relating to the homicidal death of the deceased and the Appellant being author of the same. On perusal of such evidence on record, we find that the Trial Court on proper appreciation of the evidence has recorded the guilt of the accused to convict him u/s 302, Indian Penal Code. We find no reason to interfere with the impugned order of conviction. Accordingly, we do not find any merit in this appeal and the same is dismissed.

Pradip Mohanty, J.

10.I agree.

Appeal dismissed.