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2000 DIGILAW 542 (ORI)

MANANIGA DIGAL v. STATE OF ORISSA

2000-12-03

B.P.DAS, M.PAPANNA

body2000
JUDGMENT : B.P. Das, J. - This appeal arises out of an order dated 7.4.1993 passed by the learned sessions Judge, Phulbani In Sessions Trial No. 77 of 1992 thereby convicting the Appellants for commission of offences punishable under Sections 392/397/302/34, I.P.C. and sentencing each of them to undergo rigorous imprisonment for seven years under Sections 392 and 397, I.P.C. and rigorous imprisonment for life under Sections 302/34, -I.P.C. The sentences have been directed to run concurrently. 2. The prosecution case is that on 2/3.3.1992 between 10 P.M. and 5 A.M. the Appellants committed robbery by snatching away the gold ornaments of one Kema Mallick causing grievous hurt to her and in furtherane of their common intention, they committed murder by intentionally causing the death of said Kema Mallick. The further facts reveal that the husband of Late Kema mallick was an accused in a murder case and lodged in Balliguda Sub-jail. The accused Manu alias Monoranjan Digal and Maninga Digal were also co-inmates of the aforesaid jail where the husband of the deceased was lodged. On 17.1.1992 Kema mallick and the father of the accused manu alias Manoranjan Digal came to Balliguda Sub-jail and visited their respective relatives. Being enlarged on bail, on 2.3.1992 accused Manu Digal and Maninga Digal came to the house of the deceased who was then staying in her parent's house and canvassed her to go with them to Balliguda sub Jail to get her husband escaped from the jail and assured her that they would instruct him to scale over the wall of the jail by means of a rope. The parents of the deceased dissuaded her to pay any-heed to the suggestion.of the accused persons. But on 2.3.1992 at about 8 P.M. accused Manu Digal and Maninga digal came to the house of the parents of the deceased and discussed with the deceased. The deceased left the house with them. It was night. On the next day morning, the dead body of the deceased was found lying in the field. But on 2.3.1992 at about 8 P.M. accused Manu Digal and Maninga digal came to the house of the parents of the deceased and discussed with the deceased. The deceased left the house with them. It was night. On the next day morning, the dead body of the deceased was found lying in the field. The matter was reported by P.W. 2 Bidu Mallick in Balliguda Police Station and after completion of investigation, charge-sheet was submitted for commission of aforesaid offences on the allegation that on the fateful night all the accused persons robbed the gold ornaments of the deceased and killed her by dashing her head against the wall of the cowshed of accused Manu and the aforesaid offences have been committed by Manu alias Manoranjan Digal Maninga Digal and Para Digal. 3. The prosecution examined as may as 20 witnesses in order to bring home the charges. None was examined by the defence. 4. The plea of the defence was complete denial. 5. The trial Court after evaluating the evidence on record came to the conclusion that the prosecution failed to bring home the charges against the accused para Digal, but could establish the same against the accused Manu Digal and Maninga Digal beyond all reasonable doubt and thereby convicted both of them to undergo rigorous imprisonment for seven years for the offence u/s 392 read with Section 397, I.P.C. and rigorous imprisonment for life for the offence u/s 302/34, I.P.C. and directed the sentences to run concurrently. 6. This case is completely based on circumstantial evidence. We are aware of the decision of the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, in which five cardinal principles have been enunciated by the apex Court regarding the legal requirement for conviction basing upon circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (5) So, we have to examine whether the evidence collected during trial, if arranged together, can at all form a chain of events towards the guilt of the accused persons. 7. In the case at hand, there is no direct eye witness. Learned Counsel for the Appellants challenges the order of conviction on various grounds, one of them being that the father and mother of the deceased were dead during trial. Hence, trial Court by accepting their evidence recorded u/s 161, Code of Criminal Procedure has committed irregularity., The informant in this case is one Bidu Mallick, who is the brother of the deceased. P.W. 19 is the Investigating Officer. P.W. 2 lodged the F.I.R. only after, discovering the dead body of the deceased. The evidence of P.W. 19 who is the I.O. transpires that the parents of the deceased died prior to the commencement of the trial. But their statements u/s 161, Code of Criminal Procedure have been marked as exhibits in this case. Learned Counsel for he Appellants argues that the statements of the parents of the deceased should not have been accepted by the learned Sessions Judge. It is further argued that the observation of the Sessions Judge that the 161 statements of the parents of the deceased so exhibited by P.W. 19, the I.O. though cannot be said to be conclusively proved, but this sort of evidence can be used for corroborating other evidence, is totally falacious and the learned Sessions Judge has further committed error relying upon the Exts. 31 and 32 for corroborating other evidence. 31 and 32 for corroborating other evidence. In this regard, we agree with the contention of the learned Counsel for the Appellants that the statements of the parents who died before their statements could be recorded in a judicial proceeding were not admissible in evidence. The parents made no statement in the judicial proceedings. Hence, the provisions of Section 33 of the Evidence Act are absolutely not attracted. Let us see whether the statements made by the parents do come within the purview of Section 32(1) of the Evidence Act, which reates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in her death. In the case at hand, the statements made by the parents do not relate to cause of their death or to any circumstances relating to her death. The statements made by the parents are relating to the deparature of their daughter from their home with the company of the accused persons. In other words, the parents of the deceased saw the deceased last in the company of the accused persons. So, Section 23(1) does not apply to the statements of the parents. This view of ours gets support from a decision of the apex Court in the case of Rat an Gonda v. State of Bihar reported in AIR 1959 S.C. 10. 8. Let us see excluding the statements of the parents, whether there is any other evidence against the Appellants. In the F.I.R. the informant states that the deceased was in the house of her parents at about 8 P.M. In his statement on oath, he has stated that he has identified 10 Nos. of golden ear rings and other ornaments of the deceased in T.I. parade. The informant in. the F.I.R. only stated the fact that he found the dead body of his sister and in his testimony before the Court he corroborates the fact of deceased's presence in his house last evening. P.W. 3, Buhupa Mallick, in his statement says that he along with other villagers accompanied P.W. 2 to Balliguda Police Station where P.W. 2 reported the incident before the O.I.C. The then O.I.C. and some other police persons went to the paddy field of Syamasingh. P.W. 3, Buhupa Mallick, in his statement says that he along with other villagers accompanied P.W. 2 to Balliguda Police Station where P.W. 2 reported the incident before the O.I.C. The then O.I.C. and some other police persons went to the paddy field of Syamasingh. It is stated that accused Manu Diga by that time said "why you are going to that side, we have murdered the deceased", This statement of P.W. 3 clearly reveals that the accused Manu Digal confessed his guilt. Learned Counsel for the Appellants argues that the same cannot be treated to be confessional statement and no credence should be given to the statement of P.W. 3 as he is an unreliable witness because of the fact that he himself in the later stage says that these two accused persons were sleeping under some bushes. To their query, he confessed his guilt by saying "KEMAKU AMBE THANTI KU BHIDI DHARI THARH MONDA KU KANTHA RE BADEI DELU. "The statement of this witness was also recorded u/s 164, Code of Criminal Procedure. In his statement u/s 164, Code of Criminal Procedure the said P.W. 3 has not stated anything regarding the confession of the guilt of the accused. In our opinion there is some force in the contention of the learned Counsel for the Appellants that P.W. 3 Buhupa Mallick is trying to improve the story of the prosecution, because at a later stage he had given his evidence on oath. Hence, his version cannot be relied upon. 9. In these circumstances if the deposition of P.W. 3 goes, whether there is any circumstances which is cogently and firmly established and unerringly points towards the guilt of the accused. P.W. 4 Suranga Mallick states that on the fateful day he came from Cuttack to Baliguda by bus. From Baliguda he proceeded to his village on foot. About mid night while he was passing through the house of Manu Digal, he heard a groaning sound of a lady coming out from the cow-shed of the accused Manu Digal. He also heard a dashing sound. When he asked who was groaning, dashing sound and groaning sound were stopped. Due to darkness he could not see anybody. This evidence of P.W. 4 was corroborated by his statement recorded u/s 164 Code of Criminal Procedure An effort was made to give a picture that P.W. 4 is an interested witness. 10. He also heard a dashing sound. When he asked who was groaning, dashing sound and groaning sound were stopped. Due to darkness he could not see anybody. This evidence of P.W. 4 was corroborated by his statement recorded u/s 164 Code of Criminal Procedure An effort was made to give a picture that P.W. 4 is an interested witness. 10. P.W. 5, Subinda Mallick in his statement stated that at about mid?night he was returning from Ballguda after witnessing Sibaratri festival. On the way they saw the accused persons coming together from the land of Bidu mallick and at that point of time accused Manu was focussing torchlight and all of them went to the house of Manu digal. This evidence of P.W. 5 goes unchallenged and nothing was brought out by the defence during cross examination to disbelieve his statement. 11. That apart P.W. 7 - Balakrushna Mallick is another witness from whom accused Manu Digal got the torchlight and the said torch light was returned to P.W. 7 on the next morning. As per the evidence of P.W. 6, Kada Mallick, when he along with P.W. 5 was returning from Balliguda after witnessing Sivaratri festival, they saw three persons focussing torch light coming through his land towards the house of Manu Digal. The deposition of P.W. 8 Shiba Mallick, who is a witness to Ext. 10 (the inquest report) reveals that the accused Manu Digal and Maninga Digal had concealed themselves in Kasam hill and they found them sleeping under a bush and on their query both of them confessed their quilt saying that they killd the deceased. The statement of this witness has also been recorded u/s 164, Code of Criminal Procedure wherein he has stated that the accused persons were found from Kasam hill where they were hiding and they confessed their guilt. 12. Learned Counsel for the Appellants draws our attention to the statement of I.O. wherein it has been stated that the accused persons were arrested while they were sitting under a mango tree and accused manu Digal confessed the fact that he had given the ornaments to his sister Kanchana in village Bhagamunda. Learned Counsel for the Appellants strenuously argued that due to the aforesaid material contradiction, the evidence of I.O. as well as other witnesses should not be believed a all. Learned Counsel for the Appellants strenuously argued that due to the aforesaid material contradiction, the evidence of I.O. as well as other witnesses should not be believed a all. But the fact remains that after arrest of the accused persons, the accused- Appellant No. 2 disclosed that he had handed over gold ornaments robbed from the deceased to his sister Kanchan in village Bhagamunda wherefrom the gold ornaments were recovered and the said gold ornaments were identified by P.W. 1 to be that of his sister. The factum of seizure of ornaments soon after the murder has not been explained by the accused in his statement. Moreover, he accused stated it to be false. 13. P.W. 20, Madunga Digal, has stated that he saw the deceased Kema Mallick along with the accused Manu Digal and Maninga Digal entering the house of accused Manu Digal. In the said night at about midnight he heard groaning sound of a female from the house of accused Manu Digal and Maninga Digal. In cross-examination, it is elucidated that his house is the nearest one from the house of accused Manu Digal and nothing in the cross-examination has been brought out to impeach the credibility of the evidence of P.W. 20. Learned Counsel for the Appellants submits that as per P.W. 4 he heard groaning sound coming from the cowshed. But P.W. 20 stated that he heard sound from his house. Learned Counsel for the Appellants submits that there is discrepancy in their evidence regarding the place from which sound was coming. In our opinion, this discrepancy is not sufficient to discard the evidence of P. Ws. 4 and 20. That apart the circumstances in which the recovery of wearing apparels was made cannot be over-looked. The evidence of I.O. is clinching and unimpeachable to the effect that he has recovered the ornaments while Manu Digal was under his custody and confessed regarding the fact that the golden ornaments were handed over to his sister and P.W. 14 is the seizure witness. So, even if the extra judicial confession is excluded from the evidence, the other evidence on record, if arranged together, points towards the guilt of the accused. Moreover, he accused persons are having previous criminal antecedents and admittedly they were jail. 14. So, even if the extra judicial confession is excluded from the evidence, the other evidence on record, if arranged together, points towards the guilt of the accused. Moreover, he accused persons are having previous criminal antecedents and admittedly they were jail. 14. From the aforesaid discussion and on hearing the learned Counsel for the parties, we do not find any merit in this appeal, which is accordingly dismissed. The order of the learned Sessions Judge, Phulbani is confirmed. 15. It is open to the prosecution to produce such witnesses without bothering the Court to issue summons to them). The case shall be disposed of after taking all the remaining steps, in accordance with law. 16. This appeal is disposed of in the above terms.