Dodo Majhi v. State — 1983 DIGILAW 275 (CAL)

JUDGMENT 1. THIS appeal arises from Sessions Trial no. 11 of 1979 decided by the Additional sessions Judge, Purulia convicting the appellant under Sec. 302 of the Indian penal Cede and sentencing him to imprisonment for life. 2. THE appellant was charged along with one Chandu Majhi (who was acquitted in a separate trial before the framing of this charge) under Sec. 302/34 I. P. C. for murdering one Nakul Majhi on or about 9th May, 1975 at Mallick bazar. The prosecution case, in brief, is that on 9.5.75 (25th Baisakh 1382 B.S. 4 ladies including the widow of the deceased, viz., P. Ws. 1, 2, 3 and 14 were returning from Akhduara after selling kendu leaves to their village home at cholabera shortly before sunset. The deceased was also returning with them but was a little behind the ladies. Then tragedy struck. Near Mallick Bazar the appellant with an axe, along with the said Chandu Majhi suddenly attacked the deceased. The appellant assaulted him with an axe and the said Chandu used a knife. Nakul began to shout as also did the 4 ladies. As a result of the assault Nakul fell to the ground and died there and then. 3. ATTRACTED by the shouts of the ladies P. Ws. 6 and 7 arrived and were informed by the ladies of the part played by the appellant and the other assailant. They saw the appellant and Chandu fleeing away at a distance and they found Nakul lying dead with bleeding injuries on the road. Thereafter the ladies went to the nearly village and reported the incident to the villagers including P. Ws. 4, 8 and 9 naming the present appellant as an assailant who had struck Nakul with an axe and caused his death. 4. THE villagers kept watch over the dead body during the night and in the morning P. W. 1 along with P. W. 4 went to the police station which was at a distance of 14 kms. and P. W. 1 lodged the F. I. R. which has been marked as Ext. 1. In the said F. I. R. the appellant is named as having assaulted the deceased with an axe. Thereafter investigation started and all the important witnesses were examined by P. W. 18 (the first investigating officer in this case) on 10.5.75. and P. W. 1 lodged the F. I. R. which has been marked as Ext. 1. In the said F. I. R. the appellant is named as having assaulted the deceased with an axe. Thereafter investigation started and all the important witnesses were examined by P. W. 18 (the first investigating officer in this case) on 10.5.75. An inquest was held over the dead body as well as a post-mortem examination. Prosecution also alleged that there was ill-feeling between the deceased Nakul en the one hand and the appellant and the said Chandu on the other, owing to the fact that the price of fish recovered by the appellant and Chandu had not been handed over to Nakul, to which nakul was entitled. The appellant absconded and remained absconding even when the charge-sheet was filed in this case on 18.9.75. Chandu was subsequentby arrested and acquitted in Sessions trial No. 6 of 1977 at a time when the appellant was still absconding. The appellant was produced under arrest on 16.7.78 and thereafter his case was committed to the court of Sessions by the learned S. D. J. M., Purulia on 29.9.78. 5. THE defence was a total denial of the presence of the appellant at the place of incidence. The defence case was one of false implication. 6. MR. Mukherjee on behalf of the appellant inter. alia has urged that the framing of the charge under Sec 302/34 I. P. C. with a person who had already been acquitted had prejudiced the appellant, that the eye-witnesses were not worthy of belief, that there was delay in lodging the F. I. R. and that the other villagers who had deposed as having heard the name of the appellant from the eye-witnesses were unreliable. After discussing the prosecution evidence we will take up the question as to whether any prejudice has been caused by the framing of the charge on which the appellant was tried. P. Ws 1, 2, 3 and 14 are the 4 alleged eye-witnesses to the occurrence. They are all ladies, P. W. 1 being the widow of the deceased. P. W. 2 is the niece of the deceased but P. Ws 3 and 114 are not related to the deceased. P. Ws. 6 and 7 are witnesses who have deposed that they arrived on the scene in time to see the appellant and Chandu running away. They are all ladies, P. W. 1 being the widow of the deceased. P. W. 2 is the niece of the deceased but P. Ws 3 and 114 are not related to the deceased. P. Ws. 6 and 7 are witnesses who have deposed that they arrived on the scene in time to see the appellant and Chandu running away. P. W. s 4 and 8 are villagers who corroborate that shortly after the incident these 4 ladies rushed to the village and described the incident to them naming the appellant and the said chandu as the assailant of Nakul, the appellant being armed with an axe and chandu with a knife. P. W. 13 along with P. W. 1 have deposed as to the illfeeling between Nakul on the one hand and the appellant and Chandu on the other. In short, P. W. s 1 and 13 have deposed as to the motive for the crime. P. W. 5 is a formal witness to a seizure by the police and his cross-examination was declined. P. Ws. 9 and 10 have been virtually tendered and they were not cross-examined. 7. P. W. 12, the father of the deceased, also was not cross-examined and he deposed that the deceased was his son. P. Ws. 15, 16, 17 and 18 are police witnesses. P. W. 15 recorded the F. I. R. (Ext. 1) and drew up the formal F. I. R. on which investigation was taken up by P. W. 18. P. W. 16 identified the dead-body of Nakul before the doctor holding the post-mortem examination. P. W. 19 is the first investigating officer in this case who made over the investigation on 23. 6. 75 to P. W. 17 who submitted the charge sheet against the present appellant and the said Chandu. 8. P. Ws. 1, 2, 3 and 14 all deposed that they had gone together to Akhduara for selling Kendu leaves and that there p. W. 1 met her husband Nakul who was returning from his sister's house. Together they all returned to the village with Nakul a little behind these 4 ladies. It was before sunset. The appellant and the said Chandu had been following them at some distance from behind and ultimately when the witnesses came to mallick Bazar the appellant and Chandu suddenly swooped down on Nakul who shouted "moralo moralo". Together they all returned to the village with Nakul a little behind these 4 ladies. It was before sunset. The appellant and the said Chandu had been following them at some distance from behind and ultimately when the witnesses came to mallick Bazar the appellant and Chandu suddenly swooped down on Nakul who shouted "moralo moralo". This attracted the attention of all the witnesses and they saw the incident in which the appellant assaulted Nakul on the neck and face with an axe while the said Chandu was wielding a knife. Nakul bleeding profusely fell down dead and the appellant and Chandu fled with their weapons. The witnesses on their way to the village met P. Ws. 6 and 7 and narrated to them as to what had happened. The ladies thereafter reached the village and narrated the incident to the other villagers including P. Ws 4, 8 and 9. In cross-examination it was suggested to all these ladies that they never saw the incident and that the appellant did not assault Nakul. No reason was suggested to any of these witnesses for any false implication of the appellant. So far as the incident of the appellant attacking nakul with an axe no discrepancy or contradiction or omission - minor or major-was brought out by the defence. The attention of P. W. 1 was not drawn to anything material in the F. I. R. discrediting her testimony in court. The only tiling that was brought out was that in the F. I. R. P. W. 1 did not state that the appellant arid Chandu came from the backside. P. W. 1 deposed that the quarrel over the price of fish sold between Nakul on the one hand and the appellant and Chandu on the other was reported to her by Nakul 3 or 4 days prior to the occurrence. Both the appellant and Chandu were known persons of the village and were known by name and face by the witnesses. To P. W. 14 for the first time it was suggested that they saw Nakul lying dead while crossing the road, a suggestion which was denied by her. P. W. 14 used to call Nakul uncle by village courtesy, while P. W. 4, the husband of P. W. 3, used to also address Nakul as brother by village courtesy. To P. W. 14 for the first time it was suggested that they saw Nakul lying dead while crossing the road, a suggestion which was denied by her. P. W. 14 used to call Nakul uncle by village courtesy, while P. W. 4, the husband of P. W. 3, used to also address Nakul as brother by village courtesy. But neither P. W. 3 nor P. W. 14 were in fact related to the victim. P. W. s 6 and 7 deposed that on hearing the shouts of P. W. s 1, 2, 3 and 14 they rushed to the spot and saw the appellant and Chandu fleeing away. They found Nakul lying dead in a blee -ding condition. These 4 ladies reported to them that the appellant and Chandu had assaulted Nakul. That night the villagers guarged the body' and the appellant and Chandu were searched for but they were not found. P. W. 6 deposed further that after the occurrence the appellant and Chandu were not available in the village that the appellant, used to search for them in the village. 9. P. W. s 4 and 8 are villagers of cholebera who deposed that immediately after the incident P. W. s 1, 2, 3 and 14 came to the village and reported to them that Nakul had been murdered by the appellant and Chandu. They both went and saw the dead-body of nakul lying on the road in a bleeding condition. P. W. 4 went with P. W. 1 in the morning to the police station for the purpose of P. W. l' s lodging the F. I. R. P. W. 8 deposed as to how all night, guard was kept over the dead body of Nakul. P. W. 4, however, admits in cross-examination that he did not state in the previous trial (in which Chandu was al one tried and acquitted) that the 4 ladies had reported any incident to him as he was not asked about it. Nothing however has been brought on record to challenge the evidence of P. W. 8 that P. W. 2, there and then, shortly after the incident reported to him that her uncle Nakul was being assulted by the appellant and Chandu. He also deposed that the appellant and Chandu were searched for in vain by the villagers. 10. Nothing however has been brought on record to challenge the evidence of P. W. 8 that P. W. 2, there and then, shortly after the incident reported to him that her uncle Nakul was being assulted by the appellant and Chandu. He also deposed that the appellant and Chandu were searched for in vain by the villagers. 10. P. W. 11 is the doctor who conducted the postmortem examination on the dead body of the victim after due identification. He found injuries on the face, neck and scalp of the victim. The four injuries which he found are as follows: (1) Incised -looking lacerated wound on left side of face measuring 3" by 1" exposing left mandible and fracturing it. (2) Trangular incised looking lacerated wound going obliquely -measurement 5" into 3" into 1". The injury was on the left side of the neck. The injury was going obliquely downwards just below the left mandible exposing the muscles and cutting the traches esophagus and 4th and 5th cervical vertebra. (3) Lacerated wound in front of the neck just below the chin. Head was connected with the trunk by posterior muscles of the neck and some linear skin on the left side of the neck. The 2nd 3rd wound was separated by a thin margin of skin" in thickness. (4)Depressed fracture of the scalp in left temporal bone including the left parietal bone measuring 3" by 2". The injuries according to him were homicidal and antemortem in nature and death was caused due to shock and haemorrhage as a result of these injuries. The said injuries were sufficient in ordinary course to cause death. Injuries 1 and 2 could have been caused by the sharp side of an axe while injuries nos 3 and 4 could be caused by the blunt side of an axe. The injuries according to him could not be caused by a knife. Forgetting the medical surgeon it is obvious that the victim was all but decapitated. P. W. 18 took up investigation on the F. I. R. (Exhibit 1) and seized the garments of the deceased as well as bloodstained earth with control from the place of occurrence, under different seizure lists in the presence of witnesses. These seizure lists have been exhibited along with the material exhibits including the blood stained earth and the control. P. W. 18 took up investigation on the F. I. R. (Exhibit 1) and seized the garments of the deceased as well as bloodstained earth with control from the place of occurrence, under different seizure lists in the presence of witnesses. These seizure lists have been exhibited along with the material exhibits including the blood stained earth and the control. He prepared a sketch map (Exhibit 4)which indicates the place he found the deceased lying in a blood stained condition being the place from where he seazed the blood stained earth. None of the exhibits appear to have been sent for chemical examination to the F. S. L. He deposed that on many occasions he searched for the appellant and the said Chan du but they were not to be found. 11. IN cross-examination the fact of the seizure which he made of the searches which he conducted for the appellant have not been challenged at all. The defence appears to have been content with bringing some contradictions oh record of 2/3 witnesses. P. W. 17 took over charge from S. I. S. Roy on 7. 7. 75 who had in turn taken over charge from P. W. 18 on 26. 6. 75. Warrant of arrest was issued against the absconding appellant and Chandu he has deposed that before and after the filing of the charge-sheet which he submitted on 18. 9. 75, he searched for the appellant- but the appellant could not be traced. 12. ALTHOUGH there was some attempt in cross-examination to elicit whether he could give the name of any person present in the house of the appellant when he went to the house of the appellant before submission of Charge-sheet. There was no cross-examination at all as to the factum of the searches which he conducted for tracing the appellant after submission of the charge-sheet. The evidence of the eye witnesses namely, P. W.s 1, 2, 3 and 14 corroborate each other on all material points. The evidence has already been discussed. The F. I. R. lodged by P. W. 1 (Exht. 1) corroborates his evidence in ail material particulars including the fact that the name of the appellant and the part played by him appear therein. The evidence has already been discussed. The F. I. R. lodged by P. W. 1 (Exht. 1) corroborates his evidence in ail material particulars including the fact that the name of the appellant and the part played by him appear therein. In the circumstances of this case it cannot be said that there was any delay in lodging the f. I. R. The incident happened at sunset and the body of the victim was guarded throughout the night by the villagers and at 7-15 a. m. next morning the widow along with other villagers had arrived at the P. S. which was at a distance of 14 k. m. to lodge the F. I. R. One must remember the state of her mind on seeing her husband being killed in front of her eyes, the distance between the p. S. and her village, the fact that night intervened, and that she was woman. Even if we discard the evidence of P. W. s 6 and 7 to the extent that they arrived in time to see the appellant and Chandu running away, their evidence that the name of the appellant was disclosed to them by the eye-witnesses did not appear to have been shaken in cross-examination. P. W. s 4 and 8 have both stated that immediately after the occurrence the four ladies arrived and narrated the incident to them including the part played by the appellant. Even if we do not rely on the testimony of P. W. 4 in view of his omission in the previous trial (in which Chandu was being tried alone) to state that ladies had reported the incident to him and discarding his explanation that he did riot do so because he was not asked about him in that trial, the evidence of P. W. 8 on this point still remains unshaken. So far as the motive is concerned, both P. W. s 1 and 13 deposed as to the motive regarding the sale proceeds of fish already noted before. In the evidence of P. W. 13 there is a discrepancy regarding the total amount of fish sold over which the dispute arose but there does not appear to be anything which shakes her testimony regarding the incident of ill feeling between the deceased on the one hand and the appellant on the other. In the evidence of P. W. 13 there is a discrepancy regarding the total amount of fish sold over which the dispute arose but there does not appear to be anything which shakes her testimony regarding the incident of ill feeling between the deceased on the one hand and the appellant on the other. The evidence of the eye-witnesses in this case appear to be reliable and the fact that there is evidence of motive only helps to strengthen the judicial mind in accepting their testimony. While assessing the evidence of the eye-witnesses and the other witnesses we have borne in mind the fact that although these witnesses deposed in the trial against Chandu he was acquitted. One must however remember in this connection that at the' time Chandu was tried, the present appellant was absconding and the evidence in the case really discloses that it was the axe weilded by the appellant which killed the victim. 13. THE evidence of the eye-witnesses is corroborated by the evidence of other witnesses in this case relating to the fact that immediately after the incident the part played by the appellant transpired. In the light of this evidence, the statement of the appellant in this examination under section 313 of the Code of Criminal Procedure that he had gone to Durgapur does not seem to appear worthy of any credence. 14. IN so far as the framing of the charge is concerned it is no doubt true that it was most improper to frame a charge against the present appellant under section 302/34 of the Indian Penal code along with a person who already stood acquitted on the date when the present charge was framed by the learned Trial Court in this case. However, the death of the' victim is clearly attributable to the axe wielded by the appellant. Section 34 of the Indian Penal Code, it is well settled, does not create any substantive offence but is only an appendage. In this case it is the act of the appellant with intention of causing the death of the victim, which caused the death of Nakul. Section 34 of the Indian Penal Code, it is well settled, does not create any substantive offence but is only an appendage. In this case it is the act of the appellant with intention of causing the death of the victim, which caused the death of Nakul. In view of this position of the evidence and materials on record and considering the provisions laid down in section 215 and section 464 of the Code of Criminal Procedure, the fact that no objection at all was raised during the Sessions trial by the defence and that this was not even taken as one of the grounds, in the grounds of appeal, we are of the view that no prejudice whatsoever has been caused to the appellant by the framing of the said charge under section 302/34 of the Indian penal Code against him and consequently no failure of justice can be said to have taken place. Moreover, the attention of the appellant in his examination under section 313 of the Code of Criminal Procedure was specifically drawn to the fact that it was his acts which had killed the victim. It must also be remembered that the. appellant was being defended by a learned Advocate in the Trial Court. From the nature of the weapon wielded, and the fact that the victim had been virtually decapitated, the only inference that is possible, is that the appellant intended to kill the victim. We hold that it was his act alone which was responsible directly for the death of Nakul. 15. THE submissions made on behalf of the appellant, therefore fail. The conviction of the appellant under section 302 of the Indian Penal Code and the sentence of imprisonment if life passed on him are accordingly upheld. The appeal is dismissed. Appeal dismissed.