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2002 DIGILAW 625 (ORI)

Besra Munda v. State

2002-09-25

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT B. PANIGRAHI, J. — The judgment/order of conviction under Section 302, I.P.C. and sentence to undergo imprisonment for life passed by the learned Sessions Judge, Dhenkanal in S.T. No. 90-D of 1986 on 15.12.1989 is under challenge in this appeal. 2. The brevity of the prosecution story as presented in course of trial is as follows : Three months preceding the occurrence there was a dispute between one Michhu, Gopie, Charan Hansada on one hand and Ghana Purty on the other who were helpers in a truck in Kathapala Mining Area. Since then there was no love-lost between the two groups. On 18.3.88 at the time of sun-set there was a severe brawl at Kathapal Weekly market between the appellant and his associates (since acquitted) and Ghana Purty (P.W.16) along with Govinda for which the accused Laxman Tiria dissuaded them from quarrelling. At this moment it is further stated that appellant Besra Munda gave a blow with a wooden pole “Mugura” on the head of deceased Laxman Tiria and thereafter all other accused persons assaulted him with lathis as a result of which he became unconscious and thereafter he was shifted to Birasal P.H.C. and on the following day he was taken to Kamakhyanagar Hospital where he collapsed. P.W.16, Ghana Purty lodged F.I.R. at Kamakhyanagar Police Station after which the police investigated into the case, held inquest over the dead body of the deceased, arranged to despatch the dead body for post mortem examination. The police also seized some lathis from the house of appellant Besra Munda and after completion of investigation charge-sheet was placed in the Court against the appellant and other accused persons (since acquitted). 3. The defence plea before the learned Sessions Judge was complete denial of the occurrences and they claimed to have been falsely implicated in the case out of previous enmity. 4. The trial Court while recording the order of conviction against the appellant had relied upon the evidence of eye-wit¬nesses, namely, P.Ws. 2,5,8,9,11 and 16 apart from other official witnesses and seizure witnesses. So far as the nature of death of Laxman Tiria is concerned there has been no challenge by the appellant. From the evidence of P.W.1. 4. The trial Court while recording the order of conviction against the appellant had relied upon the evidence of eye-wit¬nesses, namely, P.Ws. 2,5,8,9,11 and 16 apart from other official witnesses and seizure witnesses. So far as the nature of death of Laxman Tiria is concerned there has been no challenge by the appellant. From the evidence of P.W.1. a Lady Asst.-Surgeon of Kamakhyanagar Subdivisional Hospital, who conducted the post mortem examination over the dead body of the deceased, it has revealed that the deceased had received four external injuries corresponding to other 8 internal injuries out of which internal injury Nos. 2 and 3 corresponding to external injury No. 4 were sufficient in ordinary course of nature to cause death. Ext.3/1 was the post mortem report proved by P.W.1. 5. Prosecution placed utmost reliance on the evidence of the eye-witnesses who are relations of the deceased. It is true that maximum credibility shall be attached provided the testimony of such witnesses is otherwise found to be truthful. 6. From the fact scenario presented by the prosecution it has emerged that there was a mob consisting of 50 to 60 persons who surrounded P.W.16. At that moment deceased Laxman Tiria, the husband of P.W.2, wanted to intercept and dissuade both the groups from quarrelling with each other. Therefore, in such a situation it is unlikely to observe the individual participation of any member in a mob, particularly when the incident happened at the sun-set time. In chief-examination although P.W.2 claims that the appellant assaulted on the head of her husband, but in cross-examination the defence was able to bring out that she did not specifically state before the I.O. that appellant Bisra Munda assaulted by a lathi on the head of the deceased as a result of which he fell down since slight darkness had already set in. P.W.14, the Officer-in-Charge of Kamakhyanagar Police Station has similarly admitted that P.W.2 did not state before him that the appellant assaulted the deceased with a lathi on his head. From the statement of this witness it is apparent that the eye-wit¬nesses have not specifically stated before the I.O. as to which person assaulted on which part of the body of the deceased. From the statement of this witness it is apparent that the eye-wit¬nesses have not specifically stated before the I.O. as to which person assaulted on which part of the body of the deceased. If it is held that the death of the deceased was an outcome of the injury on the head, then the prosecution would be bound to prove that the appellant was the author of such injury on the head of the deceased and in that case the appellant would be held guilty for causing death of the deceased. But from the testimony of P.W.2, it has transpired that in a gathering of 50 to 60 persons surrounding the deceased, when she went near the deceased, he had already fallen down after being assaulted. In our anxiety, we have gone through the discussions made by the learned Sessions Judge so far as the evidence of the eye-witnesses is concerned. While assessing the evidence of P.W.2, the learned Sessions Judge has recorded that her evidence is omnibus in nature and not specific as to who gave blow on which part of the body of de¬ceased. Therefore, we are unable to accept the evidence of P.W.2 as credible, trustworthy and confidence-reposing. 7. Referring to the evidence of P.W.5 it is noticed that he was a co-villager of the deceased. Although in chief examination he has stated have seen the appellant assaulting on the head of the deceased as a result of which the latter sustained bleeding injury and fell down on the ground, but in cross-examination he has stated that at the earliest point of time before the I.O. he did not state to have seen the appellant assaulting on the head of the deceased. Therefore, the statement before the Court is nothing but a subsequent thought and developed in course of trial. Thus we are unable to place any reliance on the statement of P.W.5. 8. Now turning to the evidence of P.W.8 it is further noticed that similar statement has been made in chief examination that she saw the appellant giving a lathi blow on the head of her brother, the deceased, as a result of which the deceased fell down and other accused persons surrounded him. 8. Now turning to the evidence of P.W.8 it is further noticed that similar statement has been made in chief examination that she saw the appellant giving a lathi blow on the head of her brother, the deceased, as a result of which the deceased fell down and other accused persons surrounded him. But in cross- examination when her attention was drawn about her statement made before the I.O., P.W.15, she did not claim to have disclosed that the appellant gave a lathi blow specifically on the head. The I.O. P.W.15 contradicted the statement of P.W.8 and stated that P.Ws.8 and 11 did not state before him that the appellant as¬saulted the deceased on his head. Since the other accused persons who are alleged to have assaulted the deceased were acquitted, it is not understood why the appellant should be held guilty of causing murder of deceased Laxman, more particularly when there has been no specific evidence of the eye-witnesses that he caused any injury on the head. 9. On a careful study of the evidence of P.Ws.9 and 11 who are post-occurrence witnesses, no reliance can, therefore, be placed on their testimony while determining the culpability of the appellant. P.W.16 is the informant in this case. Admittedly there was hostility between himself and the appellant along with other accused persons. It is strange to note that although in his evidence he has claimed that the appellant assaulted by a lathi on the head of the deceased, he has not mentioned in the F.I.R. at the earliest moment. From his evidence it has further been disclosed that there was a gathering of about 100/150 persons in the market. Therefore, it was not possible for him to take note of the facts as to who was standing at which position. P.W.16 was standing at 100 feet away from the place of occurrence and undis¬putedly the deceased was surrounded by a group consisting of 50 to 60 persons. Thus it is quite unlikely to closely observe the individual assault given by each of the accused persons. 10. After careful cogitation of the evidence of the wit¬nesses and also other materials on record, we found that the trial Court had disbelieved the statement of witnesses in respect of assault alleged to have been by other accused persons. Thus it is quite unlikely to closely observe the individual assault given by each of the accused persons. 10. After careful cogitation of the evidence of the wit¬nesses and also other materials on record, we found that the trial Court had disbelieved the statement of witnesses in respect of assault alleged to have been by other accused persons. We are at a loss to understand that since there has been no specific evidence led by the prosecution that the deceased met with homi¬cidal death due to the assault given by the appellant only by means of a lathi, how the accused-appellant alone could be found guilty by the learned Sessions Judge. Therefore, we are unable to uphold the conviction and sentence passed against the appellant by the learned Sessions Judge. 11. In the result, the conviction and sentence under Section 302, I.P.C. passed against the appellant are set aside. The bail bond furnished by the appellant is hereby discharged. CH. P. K. MISRA, J. I agree. Appeal allowed.