RUSIA BEHERA v. STATE — 1984 DIGILAW 188 (ORI)

B. K. BEHERA, J. ( 1 ) THE appellant stood his trial in the Court of Session being charged under section 302 of the Indian Penal Code with having committed murder by intentionally causing the death of Sankar Swain (to be described hereinafter as the deceased) near the canal bridge of village Khalarda in the district of Cuttack in the morning of February 21, 1980. Five other accused persons, namely, Ramesh Chandra Baithalu, Baidyanath Nayak. Yudhisthir Routra, Subodh Swain and Batakrushna Sahu, were also tried with the appellant being charged under section 302 read with section 34 of the Indian Penal Code for having committed the same murder with the appellant in furtherance of their common intention. ( 2 ) THE prosecution had alleged that the Yubaka Sangha of the village of which the co-accused Yudhisthir was the President and the appellant was a member and the other villagers had a dispute as to what would be the rate of subscription for the Dola festival and while the members of the Yubaka Sangha were in favour of Rs. 10/- per family, the other villagers were in favour of Rs. 15/- per family. The Sub-Inspector of Police of the locality had come to the village on February 20, 1980 and effected an amicable settlement and it had been decided that the subscription would be paid at the rate of Rs. 15/- per family. On the day following, i. e. , on February 21, 1980, the deceased had gone to the bridge said. Two persons, namely, Roghu and Dhula took up quarrels with each other there and the deceased intervened. At that time, an Ambassador car bearing registration number ORU 7773 and an auto rickshaw came and stopped at that place. The co-accused Yudhis their and Ramesh and the appellant got down from the car. The co-accused Yudhisthir, Ramesh and Subodh caught hold of the deceased and the appellant stabbed the deceaed on his belly with a spring knife and then took to his heels. The deceased narrated the occurrence to his brothers, P. Ws. 4 and 5. On the basis of the first information report lodged by Gangadhar (P. W. 4), the brother of the deceased, P. W. 13, the Officer-in-charge of the police station, visited the spot. He had recorded Ext. 4, the dying declaration of the deceased. The deceased narrated the occurrence to his brothers, P. Ws. 4 and 5. On the basis of the first information report lodged by Gangadhar (P. W. 4), the brother of the deceased, P. W. 13, the Officer-in-charge of the police station, visited the spot. He had recorded Ext. 4, the dying declaration of the deceased. Under his direction, the Sub-Inspector of Police (P. W. 16) attached to the same police station who was on the scene of occurrence took large of the investigation. The Inspector of Police (P. W. 17) took over charge of the investigation on February 24, 1980. On the completion of investigation, a charge sheet was placed and the appellant and the co-accused persons were prosecuted. ( 3 ) THE prosecution had examined -seventeen witnesses to establish its case. One witness had been examined for the defence in order to show that the deceased and Bhaskar had committed theft of paddy from the threshing floor of two persons and their confessions (Ext. H) had been recorded by the co-accused Yudhisthir who was also a witness to the search of the houses of the deceased and Bhaskar. ( 4 ) ON a consideration of the evidence, the learned Sessions Judge held that the prosecution had failed to establish any motive for commission of the murder by the appellant. The case of the prosecution regarding the complicity of the co-accused persons was discarded. The learned trial Judge did not place reliance on the recorded dying declaration (Ext. 4 ). Relying on the evidence of the two witnesses to the occurence, namely, Bhaskar Swain (P. W. 8) and Baldav Charan Mulia (P. W. 12), the oral evidence with regard to the dying declaration of the deceased testified by his two brothers, P. Ws. 4 and 5, coupled with the medical evidence and the evidence of P. Ws. 1, 3 and 11 to the effect that they had heard a hulla raised on the spot that the appellant had stabbed the deceased and that he had been seen running away from the spot, the learned Judge held that the charge of murder against the appellant had been brought home to him. ( 5 ) IT is not disputed at the Bar and it is clear from the evidence that the deceased had died a homicidal death. Mr. ( 5 ) IT is not disputed at the Bar and it is clear from the evidence that the deceased had died a homicidal death. Mr. J. Mohanty, appearing on behalf of the appellant, has taken us through the evidence of P. Ws. 4 and 5 and that of P. Ws. 8 and 12 besides the other relevant evidence and has submitted that neither the evidence of P. Ws. 8 and 12, who claim to have witnessed the occurrence, nor the evidence of P. Ws. 4 and 5 regarding the dying declaration could safely be accepted and made the foundation of an order of conviction and the other evidence could not be of much avail to the prosecution. ( 6 ) THE two witnesses to the oral dying declaration were no other persons than the two brothers of the deceased. Although their evidence would show that there were other persons who could have heard the dying declaration of the deceased and thus their evidence could be corroborated, it had not been. It is important to note that in the first information report (Ext. 2/1) lodged by P. W. 4, nothing had been stated that the deceased had made a dying declaration and had named the appellant as the author of the crime. It had, on the other hand, been stated therein that after the assault by the appellant on the person of the. deceased, the latter fell down unconscious. The first information report lodged by P. W. 4 would give an indication as if he was himself a witness to the occurrence although he had not deposed about having seen the assault on the person of the deceased by the appellant. As testified by P. Ws. 4 and 5, both of them were present when the deceased named the appellant as his assailant. If so, it is unthinkable that such an important aspect would not find a place in the first information report lodged by one of them, namely, P. W. 4. No doubt, the first information report is not a substantive evidence and it can corroborate or contradict its maker, but omission of important facts like the dying declaration in the first information report would be relevant under section 11 of the Evidence Act to judge the veracity of the prosecution case (See AIR 1975 Supreme Court 1026 ). No doubt, the first information report is not a substantive evidence and it can corroborate or contradict its maker, but omission of important facts like the dying declaration in the first information report would be relevant under section 11 of the Evidence Act to judge the veracity of the prosecution case (See AIR 1975 Supreme Court 1026 ). ( 7 ) AT the trial; P. W. 4 had made a strenuous effort to make out a case that Ext. 2/1 was not the first information report lodged by him and that he had lodged another report which had been suppressed and he had been made to sign on Ext. 2/1. This had been denied by P. W. 13. In the absence of materials in support of the assertion of P. W. 4, the learned Judge unjustifiably accepted his version and held that Ext. 2/ I was not the first information report lodged by P. W. 4 without seeing through the game of P. W. 4 that this plea had evidently been set up by him during the trial to allay the criticism with regard to the non mention of the dying declaration in it. In our view, there was no justification for the trial court to hold that investigation had not been conducted properly in this case. ( 8 ) APART from this consideration, there were verbal differences in the evidence of. PW5, 4 and 5 as to the actual statements made by the deceased to which our attention has been invited by the learned counsel for both the sides. The court has to apply the strictest scrutiny and the closest circumspection when it is called upon to decide as to whether a dying declaration is to be accepted. ( 9 ) FOR the reasons recorded by us, it would not be safe and proper to accept the dying declaration of the deceased, as deposed to by P. Ws. 4 and 5, whose evidence, being the close relations of the deceased, required scrutiny before its acceptance and was not true and trustworthy besides being uncorroborated by anyone of those persons who were also said to be present when the dying declaration was made. ( 10 ) OWING to the suspicious features in the evidence of P. Ws. 4 and 5, whose evidence, being the close relations of the deceased, required scrutiny before its acceptance and was not true and trustworthy besides being uncorroborated by anyone of those persons who were also said to be present when the dying declaration was made. ( 10 ) OWING to the suspicious features in the evidence of P. Ws. 4 and 5 with regard to the dying declaration which important aspect was conspicuous by its absence in the first information report lodged by P. W. 4, the learned Standing Counsel has not pressed into service the dying declaration of the deceased and justifiably so. He has, however, placed reliance on the evidence of P. Ws. 8 and 12 supported by the medical evidence and has contended that the order of conviction is well founded on the evidence of P. Ws. 8 and 12. ( 11 ) P. WS. 1, 3, 8, 11 and 12 had been examined as the eye-witnesses to the occurrence. Of them, P. Ws. 8 and 12 supported the case of the prosecution with regard to the assault on the person of the deceased by the appellant while the others did not for which they were put leading questions by the prosecution under Section 154 of the Evidence Act. The learned trial Judge has, however, relied on the evidence of those witnesses who had testified that they had heard a hulla being raised on the spot that the appellant had stabbed the deceased and that the appellant had been seen running away from the spot. As has been submitted by the learned counsel for the appellant, the evidence of P. Ws. 1,3, and 12 that they had heard a hulla was too vague to be accepted and no one had given evidence that he had raised a hulla on the spot. If the evidence of P. Ws. 8 and 12 is accepted, the evidence that the appellant was seen running away from the spot would corroborate their evidence.-By itself, this piece of conduct on the part of the appellant running away from the spot would not lead to the conclusion of a guilty mind as placed in such circumstances, even an innocent person was likely to run away from the spot. ( 12 ) THIS takes us to the evidence of the two witnesses to the occurrence (P. Ws. 8 and 12 ). ( 13 ) P. Ws. ( 12 ) THIS takes us to the evidence of the two witnesses to the occurrence (P. Ws. 8 and 12 ). ( 13 ) P. Ws. 8 and 12 had given evidence that they had seen the appellant stabbing the deceased on his belly by a knife. As would appear from the statement of P. W. 8, he seemed to be friendly with the deceased and he and the deceased had filed a paper before the Yubaka Sangha. On his own showing, P. W. 12 belonged to a hostile faction. As admitted by him, the deceased was a friend of his. It would be seen from his cross-examination that his father and brother were the members of one party and the accused persons in this case belonged to the other party in a proceeding under Section 107 of the Code of Criminal Procedure. The evidence of this witness required careful scrutiny before its acceptance. ( 14 ) BY their own statements, P. Ws. 8 and 12 had made their evidence with regard to their presence at or near the spot vulnerable and indeed, doubtful. While P. W. 8 had given evidence that he had seen the occurrence when he was busy in transplantation of paddy in his land at a distance of about one hundred cubits from the spot, he had stated in the course of investigation that he had been taking tea in the tea-stall of Rabi Mulia. It was in evidence that some tea-stalls and shops were on the spot. According to P. W. 12, on February 21, 1980 at about 8. 00 a. m. he, Ranjan Bipin, Bhuleswar and the deceased had come to take tea and the tea-stall and the stationery shops werelocated on the spot. But he had not stated to the Investigating Officer that he had come to take tea. ( 15 ) P. W. 8 had not stated to the Investigating Officer as to the location of the stabbing on the person of the deceased which he had given in his evidence in the court. While according to P. W. 8, the appellant and the co-ace used Yudhisthir, Subodh and Ramesh got down from the car, the evidence of P. W. 12 was that only one person, namely, the appellant, got down from the vehicle. While according to P. W. 8, the appellant and the co-ace used Yudhisthir, Subodh and Ramesh got down from the car, the evidence of P. W. 12 was that only one person, namely, the appellant, got down from the vehicle. The evidence of these persons would indicate the presence of a number of persons on the spot when the occurrence had taken place. Some persons who had been examined by the prosecution had not supported the prosecution case and the others had not been examined. The prosecution is not obliged to examine as its witnesses all the persons who may have witnessed an occurrence, but if only interested persons, such as, P. Ws. 8 and 12 or persons hostile to an accused person are examined and independent persons are not examined, that would certainly cast a reflection on the fairness of the trial. ( 16 ) DIFFERENT persons react differently when they witness a murder. The evidence of the persons witnessing such an occurrence is not to be discarded merely because they had not raised a hull a nor had they tried to intervene. In the instant case, however, both P. Ws. 8 and 12 appeared to be friendly with the deceased and P. W. 12 also belonged to a faction hostile to the appellant. In such circumstances, it is not understood as to how these two persons did not even raise a hulla when they saw the murderous assault on the deceased. It was not in their evidence that they had raised any hulla. ( 17 ) P. WS. 8 and 12 had not disclosed the occurrence to anyone in the village of the deceased. The unexplained delayed examination of these two material witnesses in the course of investigation would certainly affect their evidence. P. W. 8 claimed to have been examined in the course of investigation two days after the occurrence. This was not true as this witness had been examined by P. W. 17 who had taken charge of the investigation on February 24, 1980. The evidence of P. W. 12 was that be bad been examined in the course of investigation on February 25, 1980 at the police station where he had gone and prior to that, he had not stated about the occurrence to anyone else. The evidence of P. W. 12 was that be bad been examined in the course of investigation on February 25, 1980 at the police station where he had gone and prior to that, he had not stated about the occurrence to anyone else. No, explanation had been offered by the prosecution as to how and why these two witnesses had not made immediate disclosure about the occurrence if they had, in fact, seen the assault on the person of the deceased by the appellant. There was no evidence either that they had developed a sense of fear or that they bad been threatened by the appellant asking them not to disclose the occurrence to anyone. No reason had been assigned either by P. W. 8 or by P. W. 12 for their late disclosure of the occurrence in the course of investigation. No explanation had been offered by any of the Investigating Officers. ( 18 ) RELYING on the priiciples laid down in Ranbir and others v. State of Punjab1 and Atmaduddin v. State of U. P. , the learned Standing Counsel has submitted that mere delay in the examination of witnesses to the occurrence would not, by itself, be sufficient to discard their testimony. In the first-mentioned case, however, the delay had been explained. In the second case, there had been a break in the investigation owing to the transfer of the Investigating Officer and the successor Investigating Officer took charge of the investigation some days thereafter. As has been laid down by the Supreme Court in Babuli v. State of Orissal3 Panda Nana Kare v. State of Mharashtra4 and Sonia Behera v. State of Orissa,5 belated disclosure of the occurrence by eyewitnesses would affect their evidence and it may not safely be relied on. In this connection, reference may also be made to the views taken by this Court in the cases of Bishnu Dec alias Bishnu Prasad Jadav v. State6, Basudev Sahu and two others v. State7t and Madan Naik v. ( 19 ) FOR the aforesaid reasons, we are of the view that the evidence of P. Ws. 8 and 12 that the appellant had stabbed the deceased by means of a knife could not safely be accepted. 8 and 12 that the appellant had stabbed the deceased by means of a knife could not safely be accepted. ( 20 ) WE thus find that the charge under Section 302 of the Indian Penal Code against the appellant had not been brought home to him by the prosecution and that he was entitled to an acquittal. ( 21 ) THE appeal is allowed and the order of conviction and the sentence Passed against the appellant are set aside. The appellant be set at liberty forthwith. . .