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2015 Supreme(Ori) 65
IN THE HIGH COURT OF ORISSA, CUTTACK
VINOD PRASAD AND S.K. SAHOO, JJ.
Manas Kumar Behera - Appellant
Vs.
State of Orissa - Respondent
CRIMINAL APPEAL NO.308 OF 1998
Decided On : 24.02.2015
Advocate Appeared:
For Appellant : M/s. B.Mishra, R.Mishra, S.Mishra, D.Sahu, P.K. Sahoo, B.K. Mishra, O.P. Sahu, B.S. Mishra
For Respondent: Mr. Sk. Zafarulla, Addl. Standing Counsel
Headnote:1. PENAL CODE, 1860 - Secs, 302 and 323 - Conviction under - Appeal - Discussing the facts, contention and evidences held, in view of the evidence of P.W. 4 and the medical evidence brought on record by the prosecution coupled with prompt lodging of F.I.R. by P.W. 4.and other surrounding circumstances, High Court of the view that there is no infirmity or illegality in the appreciation of evidence by the learned trial Court in convicting the appellant - On other evidences discussed Court altered the conviction of the appellant from Sec. 323 I.P.C. to Section 325 I.P.C.
2. EVIDENCE ACT, 1873 - Sec. 6 - Res gestae of a crime includes the immediate area and all occurrences and statements immediately after the crime - Statements made within the res gestae of a crime are admissible on the basis that sponteneous statements in the circumstaces are reliable - It is an exception to the general rule of admissibility of hearsay evidence - Details stated.
The rationale of making certain statements or facts admissible under Section 6 of the Evidence Act was on account of spontaneity and immediacy of such statement or fact, in relation to the "fact in issue" and thereafter, such facts or statements are treated as a part of the same transaction. In other words, to be relevant under Section 6 of the Evidence Act, such statement must have been made contemporaneously with the fact in issue, or at least immediately thereupon, and in conjunction therewith. If there is an interval between the fact in issue and the fact sought to be proved, then such statement cannot be described as falling in the "res gestae" concept. The test to determine admissibility under the rule of "res gestae" is embodied in words "are so connected with a fact in issue as to form a part of the same transaction". It is therefore, that for describing the concept of "res gestae", one would need to examine, whether the fact is such as can be described by use of words/phrases such as, contemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. The illustration (a) under Section 6 of the Evidence Act, especially in conjunction with the words "are so connected with a fact in issue as to form a part of the same transaction" implies that it must be contemporaneous with the acts and there should not be interval which would allow fabrication. (Para - 8)
3. CRIMINAL TRIAL - Merely because there was civil dispute between the parties, the same by itself cannot be a ground to discard his evidence although while accepting the same, it is the solemn duty of the Court to make a deeper probe and scrutinise the evidence with more than ordinary care and caution.
Enemity is a double-edged weapon - It can be a ground for false implication - It can also be a ground for assault.
(Para - 8)
4. EVIDENCE ACT, 1873 - Sec. 134 - It is based on the maxim "evidence has to be weighed and not counted" - The Court is concerned with the quality and not the quantity of the evidence for proving a fact - There is no legal impediment in convicting a person on the testimony of solitary witness provided that the evidence is clear, cogent, trustworthy, unimpeachable and abaove board - If the evidence of the eye witness is wholly reliable the Court can have no difficulty in accepting such evidence and convicting an accused even without any corroboration. (Para - 8)
JUDGMENT
S.K. SAHOO, J.
The appellant was charged under section 302 Indian Penal Code in the Court of learned Additional Sessions Judge, Bhubaneswar in S.T. Case No.3/75 of 1996 for committing murder of his grandmother Nirupama Behera (hereafter “the deceased”) on 26.10.1995 at about 7 a.m. at Bapujinagar, Bhubaneswar. He was further charged under section 307 Indian Penal Code for attempting to commit murder of his grandfather Akulananda Behera (P.W.4) on the same day, time and place.
The learned trial court vide impugned judgment and order dated 26.9.1998 found the appellant guilty under sections 302 and 323 I.P.C. and accordingly convicted him of such offences and sentenced him to undergo imprisonment for life under section 302 I.P.C. No separate sentence was awarded for offence under section 323 I.P.C.
2. The prosecution case as per the F.I.R. lodged by Akulananda Behera (P.W.4) on 26.10.1995 at about 8 a.m. at Capital Police Station, Bhubaneswar, in short, is that the informant was staying in his house situated at Plot No.229, Bapujinagar, Bhubaneswar with his wife (deceased) who was aged about 74 years. His elder son Birendra was staying at his village Bairagipada with his family members and he was a cultivator. The younger son of the informant Rabindra Kumar Behera was staying in America with his family. Birendra tried to forcibly occupy the house of the informant at Bapujinagar and when the informant and the deceased protested, they were threatened with dire consequences. On 17.9.1995 and 17.10.1995 Birendra and his eldest son Manas Kumar Behera (appellant) came to the residential plot of the informant and tried to forcibly occupy the same. The informant protested for which Birendra attempted to kill him and the appellant also threatened to kill the informant by a vegetable cutter. At the instance of the local gentlemen namely Surendra Narayan Sarangi (P.W.2), Balaram Mohanty and others, the matter was pacified. Birendra took away his KVP Certificate as well as post office pass book on 19.10.1995 and assured not to create any disturbance in future and a written agreement to that effect was also executed.
It is the further prosecution case as per FIR that on 26.10.1995 at about 7 a.m. while the informant had been to latrine, he heard shout “Bopalo Mali” and coming out of the latrine, the informant saw the appellant was assaulting the deceased mercilessly by means of a Katha Falia (wooden plank) as a result of which the deceased had sustained bleeding injuries on her head and was in a senseless condition. When the informant challenged the appellant, he was pushed into the bath room and assaulted on his head with the said wooden plank by the appellant for which he also received some injuries and lost one tooth. As the appellant closed the bath room door from outside, the informant shouted for help through the window and some persons hearing his shout came and opened the door and brought him outside.
3. On receipt of such FIR from P.W.4, the Inspector-in-charge of Capital Police Station namely Manoranjan Mohanty (P.W.8) registered Capital P.S. Case No.715 of 1995 under section 307 IPC on 26.10.1995 and took up investigation. He issued requisition for the medical examination of P.W.4 and his wife (deceased) and proceeded to Capital hospital where he found the deceased lying in the Female Surgical Ward in serious condition. P.W.8 also issued requisition to the Medical Officer for recording the dying declaration of the deceased but it could not be recorded as she was unconscious. The deceased was shifted to S.C.B. Medical College and Hospital, Cuttack on the very day for better treatment. P.W.8 visited the spot at 8.30 a.m. on 26 10.1995 and prepared spot map Ext.9. On his requisition, the Scientific Officer visited the spot and collected blood stained earth, sample earth from the spot which were seized along with a piece of wooden bar and tooth of P.W.4 under seizure list Ext.4. On 26.10.1995 P.W.8 seized one agreement being pr
