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2002 DIGILAW 317 (ORI)

Sashi Jena v. Khadal Swain

2002-05-17

L.MOHAPATRA, R.K.PATRA

body2002
JUDGMENT L. MOHAPATRA, J. — The appellants having been convicted for the commission of the offence under Section 302/34 of the Penal Code and sentenced to imprisonment for life have preferred this appeal against the judgment and order of conviction passed by the learned 1st Addl. Sessions Judge, Berhampur. 2. Appellant No. 1 is the mother-in-law of the deceased Saraju and appellant No. 2 is the husband of the deceased. Appel¬lants 3 and 4 are brothers of appellant No. 2 and brothers-in-law of deceased Saraju. Case of the prosecution is that appellant No. 2 Prasana Kumar Jena had married deceased Saraju alias Salu, daughter of P.W.2 and P.W.4 about six and half years prior to the date of occurrence. The deceased was ill-treated by her husband and was also subjected to torture for non-fulfilment of demand of dowry of Rs. 5000/-. Further case of the prosecution is that at the time of marriage dowry articles worth rupees twenty thousand had been given by the parents of the deceased. On 4.5.1986 the de¬ceased met P.W.1 and requested him to inform her parents about demand of further amount of rupees five thousand and she had expressed before him that if the amount is not paid she would be killed. P.W.1 assured the deceased to convey the news to her parents, but unfortunately on the same day the deceased was killed. Getting information about such death and the shout of P.W.1 who was an eye-witness to the occurrence, some people came running to the place but were obstructed from getting inside the house by the appellant No. 1. Immediately after the occur¬rence P.W.1 returned to his village and informed about the inci¬dent to the parents of the deceased, P.Ws.2 and 4. When P.Ws. 2,4 and 5 along with other came to the house of accused persons, again appellants No.1 did not allow them to enter inside the house. Gramarakhi of the village reported the matter to the Buguda police station and under the direction of the O.I.C., U.D. case was registered and enquiry was taken up. During such enquiry the officer seized some articles and after getting opinion about the nature of injuries sustained by the deceased formal F.I.R. (Ext. 15) was registered for the offence under Section 302 of the Penal Code and investigation was taken up. In course of investi¬gation the Investigating Officer examined witnesses and had submitted Final Report. During such enquiry the officer seized some articles and after getting opinion about the nature of injuries sustained by the deceased formal F.I.R. (Ext. 15) was registered for the offence under Section 302 of the Penal Code and investigation was taken up. In course of investi¬gation the Investigating Officer examined witnesses and had submitted Final Report. Thereafter, P.W.2, father of the de¬ceased, filed protest petition which was treated as complaint. In the complaint enquiry was taken up under Section 202 Cr.P.C. and on the basis of materials available during enquiry cognizance was taken in respect of offence under Section 302 of the Penal Code and accused persons faced trial. 3. The appellants did not plead guilty for the charge and denied the prosecution allegations. Appellant No. 2, husband of the deceased, in his examination under Section 313, Cr.P.C. took specific plea that since one of his legs was swollen, the de¬ceased was unhappy with him and she was not willing to come to his house. Mother-in-law, appellant No. 1, in her statement took a plea that the deceased committed suicide by hanging as her husband was suffering from disease. All the accused persons excepting the accused Rabindranath Jena took the plea of alibi in the examination under Section 313, Cr.P.C. 4. In order to bring home the charge the prosecution examined seven witnesses and several documents were exhibited. Learned Additional Sessions Judge on consideration of the evi¬dence of P.Ws.1,2,3,4 and 5 and also P.W.6, the doctor who con¬ducted post mortem examination, found that all the appellants in furtherance of their common intention committed murder of the deceased and as such found them guilty for the offence committed under Section 302/34 of the Penal Code. 5. Learned counsel for the appellants challenged the findings of the trial Court on the ground that only so called eye-witness of the occurrence examined as P.W.1 had turned hos¬tile during examination in Court and did not support the prosecu¬tion case. Evidence of all other witnesses namely P.Ws.2 to 5 are only hersay evidence and cannot be accepted under law. So far as the post mortem report and opinion of the doctor, P.W.6, are concerned, learned counsel submitted that even accepting that death was homicidal in absence of any other evidence whatever the appellants could not be convicted for the offence under Section 302/34 of the Penal Code. So far as the post mortem report and opinion of the doctor, P.W.6, are concerned, learned counsel submitted that even accepting that death was homicidal in absence of any other evidence whatever the appellants could not be convicted for the offence under Section 302/34 of the Penal Code. Learned counsel for the State, on the other hand, submitted that in the enquiry under Section 202, Cr.P.C. P.W.1 had specifi¬cally supported the case of the prosecution, but turned hostile during his examination in Court. As such that part of the evi¬dence recorded during enquiry was accepted by the trial Court and such statement corroborate the evidence of P.Ws. 2 to 5 and evidence of P.W.6 to prove that the appellants in furtherance of their common intention committed murder of the deceased. 6. In the light of the submissions made by the learned counsel for the parties, we proceed to examine the evidence of witnesses examined during trial. Undisputedly, P.W.1, is the only eye-witness to the occurrence. He was examined in the enquiry conducted under Section 202, Cr.P.C. and in his statement, during such enquiry, he had given a vivid picture of the manner in which the appellants committed the offence. However, while deposing in Court he did not support the prosecution case. During cross-examination by the prosecution through he denied to have made any such statement during enquiry under Section 202 Cr.P.C. support¬ing the case of the prosecution, in para-5 of the deposition he specifically admitted that after his deposition was recorded by the S.D.J.M., Bhanjanagar he signed in both pages of his deposi¬tion after its contents were read over and explained to him. In his statement recorded during enquiry under Section 202, Cr.P.C. the said witness had specifically stated that when he heard hulla “MARIJA MARIJA” he rushed to the house of the accused persons and found that the deceased was lying on the ground, whereas the accused Prasanna Jena and Sashi Jena were pressing a crow-bar on the neck of the deceased and at that time accused Sarat Jena and Rabindranath Jena had caught-hold of the legs of the deceased. P.W.2, father of the deceased, in his evidence has also stated about demand of dowry and torture meted out to the de¬ceased by the accused persons and also stated that he heard from P.W.1 about the manner in which her daughter had been killed. P.W.2, father of the deceased, in his evidence has also stated about demand of dowry and torture meted out to the de¬ceased by the accused persons and also stated that he heard from P.W.1 about the manner in which her daughter had been killed. P.W.3 is a co-villager and an independent witness, who has also stated to have heard about the incident from P.W.1. P.W.4 is the mother of the deceased who also stated to have heard about the manner in which deceased was killed, from P.W.1 P.W.5 also an independent witness who heard about the incident from P.W.1. P.W.6 is the doctor who conducted post mortem examination and was of the opinion that fracture of hyoid bone was sufficient to cause death in ordinary course of nature and the injury causing frac¬ture of hyoid bone was usually homicidal in nature. He has also opined that fracture of hyoid bone found on the deceased can be caused if a crow bar is pressed on the neck. He has also ruled out possibility of such injury by hanging. If the evidence of P.W.6, the doctor who conducted post mortem report, is examined carefully the plea of the accused-appellant No. 1 that the de¬ceased committed suicide is ruled out. P.W.6 in his evidence has categorically stated that he did not find any legature mark on the neck of the deceased and he found the internal injury of fracture of hyoid bone which was sufficient to cause death and usually homicidal in nature and could be caused if a crow bar is pressed with force on the neck. There is no material at all to support the plea of the appellant No. 1 that the deceased commit¬ted suicide by hanging. No legature mark having found on the neck, it is clearly proved that the appellant No. 1 came out with a story which is not supported by any evidence. 7. Coming to the evidence of P.W.1 it may be borne in mind that the protest petition was treated as a complaint and after cognizance was taken the said complaint was committed to the Court of Session for trial. During enquiry under Section 202 Cr.P.C. P.W.1 was examined and in his statement during such enquiry he specifically stated that he heard hulla as “MARIJA MARIJA” and on hearing such hulla he rushed into the house of the accused persons. During enquiry under Section 202 Cr.P.C. P.W.1 was examined and in his statement during such enquiry he specifically stated that he heard hulla as “MARIJA MARIJA” and on hearing such hulla he rushed into the house of the accused persons. On reaching there he found the deceased was lying on the ground and two of the accused persons namely Prasana Jena and Sashi Jena were pressing a crow bar on the neck of the deceased and other two accused persons namely Sarat Jena and Rabindranath jena had caught-hold legs of the deceased. In para-5 of his cross-examination he has also admitted that he had signed such statement after the contents were read over and explained to him. 8. Law is well settled that even if a witness turns hos¬tile that part of the evidence which supports case of the prose¬cution can be taken into consideration. In this connection, reference may be made to a decision of the Apex Court in the case of State of U.P. v. Ramesh Prasad Mishra and another, (1996) 10 SCC 360 . The Apex Court held as follows : “An evidence of hostile witnesses would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and the portion of the evidence which is consistent with the case of prosecution or the defence may be accepted. The fact that the hostile witnesses having given the statement about the facts within their special knowledge under Section 161, Cr.P.C. recorded during investiga¬tion, have resiled from correctness of the versions in the state¬ments without giving any reason as to why the investigating officer could record statements contrary to what they had dis¬closed, shows that they had no regard for truth, they fabricated the evidence in cross-examination to help the accused which did not find place in their Section 161, Cr.P.C. statements.” Another decision of the Apex Court in the case of Pandapa Hanumappa Hanamar and another v. State of Karnataka, (1970) 10 SCC 197, may be referred to where the apex Court had held that the entire evidence of hostile witnesses cannot be necessarily discredited and it can be believed in part. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. Though P.W.1 resiled from the earlier statement record¬ed in the enquiry under Section 202, Cr.P.C., in view of his admission that he had signed such statement after being read over and explained to him about the contents of the statement, this Court can use the statement recorded under Section 202, Cr.P.C. for the purpose of corroboration though it is not substantive piece of evidence to base a conviction. P.Ws. 2 to 5 are consistent in their respective statements that they heard about the manner in which the deceased was killed from P.W.1 and such statements get corroboration from the state¬ment of P.W.1 recorded during enquiry under Section 202, Cr.P.C. Statement of P.W.1 as aforesaid has been exhibited as Exhibit No. 1. 9. In view of such corroborative evidence and the evidence and opinion of doctor that the death is homicidal one, we do not find any reason to disturb the findings of the learned Additional Sessions Judge. Accordingly, appeal fails and stands dismissed. The bail bonds of those appellants who are on bail may be can¬celled and they be taken to custody forthwith. R. K. PATRA, J. I agree. Appeal dismissed.