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2002 DIGILAW 59 (ORI)

MAGDALI PANDAN ALIAS HEMRAM v. STATE OF ORISSA

2002-01-30

B.PANIGRAHI, M.PAPANNA

body2002
JUDGMENT : B. Panigrahi, J. - The order of conviction u/s 302, IPC and the sentence to undergo R.I. for life passed by the learned Sessions Judge, Sundargarh in S.T. No. 175 of 1993 has been assailed in this appeal. 2. The following facts in brief has led to filing of this criminal appeal: There was a land dispute between one Johan Haro and Agastina Pandan as a reason whereof a proceeding u/s 145, Code of Criminal Procedure was originated in the Court of Executive Magistrate at Bonei. The Executive Magistrate declared the possession in favour of Johan Haro and directed the O.I.C. of Banki P.S. to deliver possession to the successful Party at village Hatiaqda. At the time of giving delivery of possession of the land pursuant to the order in the proceeding u/s 145, Code of Criminal Procedure in Criminal Misc. Case No. 118 of 1989 to the successful party, the deceased Johan Pandan was sitting on the ridge of 'Hes Nala'. The accused-Appellant Magdali Pandan @ Hemram suddenly appeared at the scene of occurrence with a Tangia and dealt indiscriminate blows on the deceased Johan Pandan causing multiple bleeding injuries as a result of which Johan Pandan died instantaneously. The Officer-in-charge of Bank! Police Station who was present at the spot for giving delivery of possession of the case land to the successful party in the proceeding u/s 145, Code of Criminal Procedure immediately rushed to the spot on hearing the outcry of deceased Johan Pandan. He also saw a part of the occurrence and, according to him, after reaching the spot he found the Appellant dealing with Tangia blows upon deceased Johan Pandan. P.W.1, Marsel Bodra, who was eventually present at the spot and was a witness in the proceeding u/s 145, Code of Criminal procedure lodged an oral information which was reduced to writing by the Police Officer of Banki Police Station. P.W.1 signed on that report after having understood its contents. P.W.5, the O.I.C. of Banki Police Station registered a case against the Appellant u/s 302, IPC in P.S. Case No. 12/93 and immediately thereafter swung into action. P.W.5, the O.I.C. Banki Police Station, thereafter visited the spot, drew up a spot map, marked Ext. P.W.1 signed on that report after having understood its contents. P.W.5, the O.I.C. of Banki Police Station registered a case against the Appellant u/s 302, IPC in P.S. Case No. 12/93 and immediately thereafter swung into action. P.W.5, the O.I.C. Banki Police Station, thereafter visited the spot, drew up a spot map, marked Ext. 9, seized the Tangia on being produced by the Appellant, held inquest over the dead-body of the deceased, sent the dead-body for post mortem examination to Panposh Hospital through Constable No. 494 under Command Certificate, Ext. 4, seized sample earth and blood stained earth under seizure list, Ext. 6, seized the wearing apparels of the accused containing blood stains under seizure list, Ext. 7 and placed the charge-sheet after completion of investigation. 3. In course of investigation the Appellant was arrested and forwarded to the Court and thereafter she was sent to judicial custody. During investigation the blood stained earth, sample earth, blood stained Tangia, wearing apparel of the deceased and the accused were sent for chemical analysis and the report of the Chemical Examiner is marked as Ext. 13. The Sub-divisional Judicial Magistrate upon receiving charge-sheet committed the case to the Court of Session and accordingly the Appellant stood prosecuted u/s 302, IPC for commission of offence of murder of deceased Johan Pandan. 4. The prosecution in all had examined 7 witnesses of which P.Ws. 1 to 3 are said to be eye-witnesses to the occurrence. P.W.1, Marsel Bodra, has claimed to be an eye-witness and was present at the spot during occurrence. He went to the case land during delivery of possession by P.W.5. He has also proved the FIR, Ext. 1, and identified the Tangia. M.O.I., and also seizure of the Tangia under Ext. 2. From the evidence of P.W.1 it appears that he not only corroborated the averments in the FIR but has stated that on 26.5.93 at about 11 a.m. on being invited by the Police Officer he went to the case land alongwith Johan Munda, Philip Horo, Hunas Horo, Lucas Munda, Raiman Pandan, Habartus Pandan and Ors. . At that time the deceased Johan Pandan was standing on the ridge of 'Hes Nala'. The Appellant suddenly appeared at the scene of occurrence, and discriminately assaulted the deceased Johan Pandan from his backside by means of a Tangia as a result of which he fell down on the ground. . At that time the deceased Johan Pandan was standing on the ridge of 'Hes Nala'. The Appellant suddenly appeared at the scene of occurrence, and discriminately assaulted the deceased Johan Pandan from his backside by means of a Tangia as a result of which he fell down on the ground. P.W.1 rushed to the scene of occurrence. The Writer Constable snatched away the Tangia from the Hand of the Appellant and the Appellant was taken to the Police Station. The matter was explained at the Police Station which was reduced to writing and after the contents were read over and explained to P.W.1, he signed thereon. Ext. 1 was the FIR and P.W.1 proved his signature on the same. He was also a witness to the seizure list, Ext. 2. on which he too signed. 5. learned Counsel for the Appellant has invited our attention to the fact, that P.W.1 did not state before the I.O. nor was it mentioned in the FIR that one of the Writer Constables had snatched away the Tangia from the hand of the accused, in that view of the matter, we think, this is a subsequent development only In course of trial and this portion of the evidence does not inspite our belief. Even if we do not believe this part of the statement it cannot, however, be argue that the entire evidence of P.W.1 should efface to the ground. There has been absolutely no cross-examination in so far as the incident is concerned nor any question has been asked as regards the involvement of the Appellant in the crime. Therefore, that part of the statement remains unassailed. learned Counsel appearing for the Appellant then contended that there was a high ridge for which it could not be possible to see the occurrence by standing at a distance of 100 feet from the ridge of Hes Nala'. After carefully examining this aspect of the argument, we found that 100 feet from the ridge of the 'Hes Nala' is not such a long distance wherefrom nobody would be able to see the accused, particularly when the incident had taken place in broad day light. After carefully examining this aspect of the argument, we found that 100 feet from the ridge of the 'Hes Nala' is not such a long distance wherefrom nobody would be able to see the accused, particularly when the incident had taken place in broad day light. It was elicited in cross-examination that there were some ridges in between the place of occurrence and the place where the witness was standing, but nothing has been brought out in cross-examination about the height of the ridges of the Nala and also the site where P.W.1 was standing so as elude his notice. So in our considered opinion the evidence of P.W.1 is natural, credible and trustworthy. There was also no suggestion that this witness was deposing against the Appellant on account of interestedness or due to enmity. In that view of the matter implicit reliance can be placed on the evidence of P.W.1 so as to bring home the culpability of the Appellant. Now turning to the evidence of P.W.2. it appears, his presence was also quite natural at the scene of occurrence. We do not understand why the Appellant had assaulted the deceased Johan Pandan who had no interest in the land nor did he give any assistance to the police officer on behalf of the successful party in the proceeding u/s 145. Code of Criminal Procedure He simply went alongwith other witnesses. By that, it cannot be meant that he was averse to the Appellant or that he claimed any interest over the case land. Since there was no enmity between the Appellant and P.W.2. who is her cousin brother, there is no reason why he would make a false statement involving the Appellant in such a sinful act, like murder. From the evidence it has further transpired that he was standing at a distance of 100 feet away from the deceased. During day time 100 feet is not a (Sic) place so that it would escape his notice and that there would be a question of doubtful visibility. Accordingly from the statement of P.W.2 also we find, there was ample evidence as regards the complicity of the Appellant in the occurrence. P.W.3's evidence also, substantially and in material particulars received corroboration with the evidence of P.Ws. 1 and 2. Accordingly from the statement of P.W.2 also we find, there was ample evidence as regards the complicity of the Appellant in the occurrence. P.W.3's evidence also, substantially and in material particulars received corroboration with the evidence of P.Ws. 1 and 2. learned Counsel for the Appellant has invited our attention to the fact that since P.W.3 has stated that he saw only one Tangia blow being dealt by the Appellant, therefore, his evidence should not be believed in entirety. We find, there is no substance in the said argument inasmuch as by the time of P.W.3 had seen the occurrence he must have seen only one blow. That does not mean that the Appellant gave only one blow to deceased Johan Pandan. P.W.4 was a constable who carried the dead body of the deceased to Panposh hospital. P.W.5 was the I.O. who went to give delivery of possession of the case land to the successful party in the proceeding u/s 145, Code of Criminal Procedure He had also found that the Appellant was giving Tangia blows on the head, neck, shoulder and back of the deceased. It is gathered from his evidence that one Writer Constable and himself snatched away the Tangia from the lands of the accused which was seized under Ext. 2. Therefore, on a combined reading of the evidence of P.Ws. 1 to 3 and 5 we found that the Tangia which was the weapon of offence was seized at the place of occurrence from the hand of the Appellant which amply proves that she was the author of the crime. learned Counsel for the Appellant has engaged our attention to the fact that had the Appellant inflicted several blows at least her saree must have contained blood stains. We do not understand under what circumstances, the saree did not contain human blood and it is not known after how many days the saree was sent for chemical examination. Merely because the wearing apparel of the Appellant did not contain any blood stains, thereby no inference can be drawn about the innocence of the accused in this case. P.W 6 was the Medical Officer who examined the deceased Johan Pandan and found the following injuries: 1. One chopped incised wound over left side of neck middle part from front of backwards measuring 3" ? ?" ? bone deep. 2. P.W 6 was the Medical Officer who examined the deceased Johan Pandan and found the following injuries: 1. One chopped incised wound over left side of neck middle part from front of backwards measuring 3" ? ?" ? bone deep. 2. One chopped incised wound 1" above the injury No. 1, 3" ? ?" ? muscle and vessel deep. 3. One incised wound latero medically little oblique over it of the left shoulder measuring 3" ? ?" ? skin deep with a thunk of skin missing. 4. One chopped incised wound over back of chest right side ?" to the right of thorasic vertebrae 8 spine obliquely present from left to right 3" ? ?" x muscle deep. 5. One chopped incised wound over right side of head obliquely over pareital region 3" x ?" ? bone deep. 6. One chopped incised wound over top of head obliquely 3" ? ?" ? bone, deep. Accordingly to P.W.6 all the injuries were ante mortem in nature and the injuries might have been inflicted by any sharp cutting weapon and appeared to be homicidal in nature. P.W.7 was Anr. I.O. who assumed charge of investigation from P.W.5 and sent the blood stained incriminating materials for chemical examination and finally submitted the charge-sheet. Therefore, from the cumulative effect of the evidence of prosecution we find there is least doubt with regard to the complicity of the accused with the crime. We, therefore, found that the prosecution has amply and satisfactorily proved the complicity of the Appellant in the crime. Much has been contended on behalf of the Appellant on the evidence of D.W.1. It is contended that if we believe P.Ws. 1 to 3, then similar importance should be attached to the evidence of D.W.I. who had also accompanied P.W.5 to the spot at the time of giving delivery of possession of the case land. We do not know how the evidence of 0.W.1 is helpful to the Appellant. D.W.1 also supports the prosecution story to the effect that he had gone to the case land while giving delivery of possession to Johan Haro. At that time the deceased Johan Pandan was sitting on a ridge and then they heard an outcry "MARI GALI, MARI GALI" (in Oriya) following which they proceeded to the spot and found the deceased lying in a serious condition. Then they left the spot. At that time the deceased Johan Pandan was sitting on a ridge and then they heard an outcry "MARI GALI, MARI GALI" (in Oriya) following which they proceeded to the spot and found the deceased lying in a serious condition. Then they left the spot. From this no inference can be drawn as regards the innocence of the Appellant. He might not have seen the Appellant at that time, but from his evidence it transpires that Johan Pandan died out of the injuries inflicted by some one. Coupled with the evidence of P.Ws. 1 to 6 and also D.W.1. we, however, notice that it was the Appellant who alone was responsible for commission of murder of Johan Pandan. We do not find any other extenuating circumstances so as to take any other view in this factual backdrop. 6. Therefore, this appeal is bereft of any merit and accordingly dismissed. The order of conviction and sentence passed by the learned Sessions Judge. Sundargarh is hereby affirmed. M. Papanna, J. 7. I agree. Final Result : Dismissed