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Prosecution witness standing as a mute spectator and not restraining accused in carrying out his act ,cannot be a ground to question the happening of such act: Odisha High Court

Since there was no time gap in the happening of the series of events, and the witness remained non-responsive for taking an adverse view cannot be a ground to question the entire series of happening of the events. A single-bench comprising of  Justice D. Dash adjudicating the matter of Dev Dirda v. the State of Orissa (JCRLA No.25 of 2010 ) dealt with the issue of whether to allow the present appeal or not.

In the present case, the Appellant has filed an appeal from jail questioning the judgment of conviction and order of sentence dated 3rd May 2010 passed by the Session’s Court. The Appellant as the sole accused having faced the Trial for the commission of the offence under section 302 of the IPC, has been found guilty of the offence under section 304-II of the IPC, and accordingly, he has been sentenced to rigorous imprisonment for a period of seven years with the usual benefit of set-off as provided under section 428 of the Cr.P.C.

According to the prosecution on the morning of 28th Nov. 2006, Nanga Madhi and the accused went to Malkangiri to sell firewood Anda Madhi who has been examined in P.W.1 in the trial, had accompanied them. In the afternoon, on their way back home from Malkangiri, there ensued a quarrel concerning cockfighting on the foot of the hillock. The accused all of a sudden became got annoyed and assaulted the deceased by lathi on his hand and head which resulted in his fall on the ground. The accused then also assaulted the deceased on his chest with a piece of stone. The deceased died at the spot itself. The prosecution witness was threatened by the accused not to disclose it to anybody in the village. The next day the accused absconded the village. Later the brother of the deceased on receiving information about the incident reported it to the Malkangiri Police station.

The Trial court after analyzing the evidence on record found that happening of the incident also to the role of the accused in assaulting the deceased by means of that lathi on his head and stone on his chest as acceptable. However, relying on the evidence of the doctor, who conducted the post mortem examination and opined that the said injury on the head resulting subdural hematoma leading to coma, to be the cause of death and further taking into account the circumstances leading to the incident as also the role played by the accused as emanating from the evidence of the eye witness, the solitary eye witness, the Trial Court has held the accused guilty of offence under section304-II of the IPC and thus has been sentenced.

The petitioner submitted that conduct of PW-1 is highly suspicious that he having seen the incident has chosen to remain silent at home and informed the villagers only on the next morning that to without assigning any good reason. He further submits that this P.W.1 has not stated as to what was he doing at the time when the accused was assaulting the deceased. Also, it was stated that when the accused caused the next injury on his chest, said the silence of this P.W.1 in remaining there all through as a mute spectator runs against normal human conduct as ordinarily in that situation, everyone would be showing the response in his own way to save the injured in restraining the accused at least in dealing the subsequent blow on the chest. Lastly, it was submitted that h injury on the head which has caused the death is possible by means of a fall from a height.

The Opposite Party stated that the incident took place all of a sudden and in course of quarrel for a silly reason and keeping in view the nature and behavior of the members of the community in the area, the Trial Court finding no plausible reason for P.W.1 to falsely implicate the accused has committed no mistake in holding the accused guilty for the offence under section 304-II of the IPC.

The court held that” The tenor of the evidence of this witness when taken into account goes to show that there was no such time gap between the first and the second blow. In such a situation, the witness (P.W.1) to remain non-responsive as commented upon by the learned Amicus Curie urging for taking an adverse view as to its acceptance is of no significance.”  Also, the court submitted that” P.W.1 getting a threat from the accused has remained silent in the night and coming to disclose the matter in the morning before the villagers has very little to do in adversely affecting his version which otherwise firmly stands. The evidence of this ocular witness (P.W.1), who is not said to be having any such animosity with the accused in my considered view, is wholly believable”.

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