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2014 Supreme(Ori) 226
IN THE HIGH COURT OF ORISSA, CUTTACK
VINOD PRASAD, S.K. SAHOO, JJ.
Kuna @ Chhabindra @ Ramesh Palaru and another – Appellants
Versus
State of Orissa – Respondent
CRIMINAL APPEAL NO. 229 OF 1996
Decided on: 18.08.2014
Advocate Appeared:
For Appellants: M/s. Janmejaya Katikia, S.K. Patnaik, A. Mohanty, B. Mishra, P. Mohanty, S. Swain and D. Jena
For Respondent: Mr. Sk. Zafarulla, Addl. Standing Counsel
Headnote:1. PENAL CODE, 1860 - Section 302 read with Section 34 - Conviction under - Appeal - Appreciation of evidence - Deceased died a homicidal death - Discrepancies between the evidence of P.W.1, P.W.2, P.W.3 and P.W.6 as to what the deceased disclosed before them - Deceased not in a fit state of mind at the time of making declaration - Delay in lodging the FIR has not been satisfactorily explained by the prosecution which in all probability has given opportunity to the prosecution party to concoct a case - Held, prosecution has not established the case against the appellant beyond all reasonable doubt - Order of conviction set aside.
(Paras 5 to 12)
2. F.I.R. - FIR in criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at trial - F.I.R. is not the encyclopaedia or be all and end all of the prosecution case - It is not a verbatim summary of the prosecution case - Whether non-mentioning of some material facts would be fatal or not depend on the facts and circumstances of each case.
(Para 7)
3. DYING DECLARATION - Duty of the Court to see that the dying man was in a fit state of mind while making the declaration.
(Para 8)
4. EVIDENCE ACT, 1872 - Section 6 - Res gestae - Essence of doctrine of res gestae in evidence is that the facts which though not in issue or so connected with the fact in issue as to form part of the same transaction and thereby become relevant like fact in issue.
(Para 7)
5. DYING DECLARATION - Oral - Extensive grievous injuries sustained by the deceased - Possibility of the deceased not being physically and mentally fit to make the dying declaration cannot be ruled out - Alleged oral dying declaration of the deceased is a very suspicious piece of evidence and it will be very dicey to act upon it.
Admissibility of dying declaration is based on the principle that when a man dies, he never lies. The reason is that when a man is dying and when every hope of this world is gone, when every motive to falsehood is silent and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so sacrosanct is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.
Judgment
S.K. Sahoo, J.
The appellant Kuna @ Chhabindra @ Ramesh Palaru along with Balia @ Balabhadra Behera (appellant no.2 in this Criminal Appeal in respect of whom the appeal has abated on account of his death as per order dated 11.8.2014) were charged under section 302 read with section 34 I.P.C. by learned Additional Sessions Judge, Khurda in S.T. Case No.2/419 of 1996/95 for committing murder of Laxmidhar Palaru @ Patnaik (hereafter referred to as “the deceased”) on 22.4.1995 during the evening hours at village Baghamari. Both of them were found guilty under section 302 read with section 34 I.P.C. by the learned trial court vide impugned judgment and order dated 3.8.1996 and sentenced to undergo imprisonment for life.
2. The prosecution case, in short, as per the F.I.R. lodged by one Trinath Patnaik (P.W.2) on 24.4.1995 at about 1.30 P.M. at Khurda Police Station is that there was boundary dispute between the family of the informant with his neighbour Benga Bewa since last two years, for which civil litigation is pending in Court. The informant happens to be the brother of the deceased. The civil case was turning in favour of the informant and as the deceased was looking after the litigation, the other side was very much inimically disposed of towards him. It is the further prosecution case as per the F.I.R. that on 22.4.1995 during evening hours when the deceased had been to attend call of nature to a nearby pond in the village locally known as “Sana Pokhari”, P.W.2 who had also gone towards the pond side marked one Rabindra Palaru (not an accused), Balabhadra Behera (appeal abated) and two others came from the backyard side of house of co-villager Narayan Mohapatra and entered inside the house of the appellant and at that time they were armed with iron rods and sword. P.W.2 proceeded towards the pond side and focused his torch and found that the deceased was lying with bleeding injuries on the way towards the pond. P.W.2 cried aloud seeing the condition of his brother (deceased) and hearing his cry, Prasanta Kumar Behera (P.W.1), Dasarathi Sahu (P.W.3) and some others rushed to the spot. At the spot, when P.W.3 asked the deceased about the cause of his injuries, the deceased told that the appellant and his brother-in-law Balia had inflicted cut injuries and they had also fractured his left hand by means of iron rod. When P.W.3 was intending to make further query to the deceased about the assault, the deceased became unconscious. The deceased was shifted in an auto rickshaw to Government hospital, Khurda. As the condition of the deceased became more and more serious, he was shifted to S.C.B. Medical College & Hospital, Cuttack, where he succumbed to the injuries on 23.4.1995 at 8.00 a.m. Manglabag P.S. U.D. Case No.181 of 1995 dated 23.4.1995 was instituted after the death of the deceased and inquest was held in the casualty of S.C.B. Medical College & Hospital on 23.4.1995 at 10.00 a.m. in presence of P.W.2 vide inquest report Ext.3 by the police officials of Mangalabag P.S. The dead body was sent for postmortem examination. P.W.8 Dr. Suniti Achahrya who was working as Associate Professor, Department of F.M.T., S.C.B. Medical College & Hospital, Cuttack conducted the post-mortem examination and he noticed some stitched wounds on the left eyebrow, right eyebrow, left ear and swelling with parallel contusion on the left upper arm and parallel contusion on the left mid axillary line. The doctor found fracture of left humerus bone and opined the injuries to be antemortem in nature and caused by heavy blunt weapon. The cause of death was opined to be coma as a result of the cranio cerebral injuries, which was due to combined effect of the injuries noticed on the person of the deceased. P.W.2 brought the dead body of the deceased from Cuttack on 23.4.1995 at 5.00 p.m., cremated the dead body during evening hours and on the next day i.e. 24.4.1995, he lodged the F.I.R. by way of an oral report which was reduced to writing by P.
