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2003 DIGILAW 479 (ORI)

JOGESWAR JENA v. STATE OF ORISSA

2003-07-31

L.MOHAPATRA, SUJIT BARMAN ROY

body2003
L. MOHAPATRA, J. ( 1 ) BOTH the appellants having been convicted for commission of offence under Section 302/34 of the Penal Code and having been sentenced to imprisonment for life have filed this appeal. ( 2 ) THE appellants along with two other accused persons stood charged under Sections 120b/34 of the Penal Code and the present appellants were separately charged for commission of offences under Sections 302/324/34 of the Penal Code for committing murder of Gangadhar Jena and causing hurt to P. W. B. The case of the prosecution is that deceased Gangadhar Jena and the present appellants are brothers and there was bitter relationship between them due to land dispute. On 18/11/1991 at about 10. 00 A. M. all the four accused persons along with the absconding accused conspired among themselves at village Gududa to do away with the life of the deceased and while the wife. of the deceased (P. W. B) was coming with rice from house of one Jachi Ganda she heard the accused persons conspiring to kill the deceased and when they saw her, they declared to make her a widow. Thereafter, at about 12 0 clock when the deceased the husband of P. W. B, came back from Balasore and was taking food inside the house suddenly both the appellants entered into the house armed with Katarles and tried to drag him outside. At that point of time when P. W. 8 objected, it Is alleged that the appellant Jogeswar assaulted by means of a Katari on the hand of the P. W. 8 and thereafter dragged the deceased to a place where there was a Pipal tree. It Isalso alleged that P. W. 8 followed them crying and one Narendra Sahu (P. W. 3) came to the spot and requested the appellants not to create trouble and while Narendra Sahu was looking into the injury sustained by P. W. 8, the deceased tried to escape. It Is further alleged that at that point of time appellant Maheswar obstructed him on the way and appellant Jogeswar assaulted on the back side of the neck of the deceased by means of a Katari he was holding as a result of which the deceased fell down and died on the spot. Thereafter, some other villagers came to the spot and one Bhlmeswar Behera caught hold of appellant Jogeswar but Maheswar escaped from the place. Thereafter, some other villagers came to the spot and one Bhlmeswar Behera caught hold of appellant Jogeswar but Maheswar escaped from the place. It appeal from the record that P. W. 11, who is the Officer-In-charge of Remuna Police Station received a rumour about the Incident of murder in the village Gududa in which one Gangadhar Jena died. He entered this fact in the Station Diary and left for village Gududa. On his arrival at Gududa an oral report was submitted by P. W. 3 which was reduced to writing. After Investigation, chargesheet was submitted for commission of offences under Sections 302/324/120b/34 of the Penal Code. ( 3 ) IN order to bring the charges, prosecution examined 11 (eleven) witnesses out of whom P. Ws. 3 and 8 are eyewitnesses to the occurrence. P. W. 8 is not only an eyewitness to the occurrence but also an Injured. P. Ws. 2 and 9 claimed that the appellant Jogeswar made extra-judicial confession before them. The learned trial court relying on the evidence of these witnesses found the appellants guilty for commission of offence under Section 302/34 of the Penal Code and convicted them thereunder. No witness was examined on behalf of the defence. The plea of the appellants is complete denial of the occurrence. ( 4 ) THE learned counsel appearing for the appellants submitted that though P. W. 8 claimed to be an injured and eyewitness to the occurrence, part of her evidence with regard to Injury sustained by her having been disbelieved, no reliance could have been placed on the said witness. P. W. 3 being the only eyewitness to the occurrence and there being no corroboration to his statement made in the court, the conviction should not be maintained solely on the basis of the version of one eyewitness. The learned counsel further submitted that the prosecution has suppressed the materials and referring to the evidence of P. W. 1 It was contended that one Niranjan Mishra had been Instructed to lodge the F. I. R. Initially and after lodging the F. I. R. the said Niranjan Mlshra is stated to have come to the spot. However, the F. I. R. lodged by Nlranjan Mlshra which is supposed to be the first F. I. R. has been suppressed and not brought before the court. However, the F. I. R. lodged by Nlranjan Mlshra which is supposed to be the first F. I. R. has been suppressed and not brought before the court. It was also contended by the learned counsel that so far as the assault Is concerned, the same Is attributed to appellant Jogeswar and In absence of any material to support the ingredients of Section 34 of the Penal Code, appellant Maheswar could not have been convicted for commission of offence under Section 302 of the Penal Code, as he has not assaulted the deceased. ( 5 ) THE learned Additional Standing Counsel, on the other hand submitted that not only P. W. 3 is an eyewitness to the occurrence but there is also extrajudicial confession made by the appellant Jogeswar before P. Ws. 2 and 9. The doctor who conducted the postmortem examination also found the corresponding injury on the deceased which caused death and, therefore, the order of conviction and sentence passed by the trial court is justified. ( 6 ) KEEPING in mind the rival contentions of the learned counsel appearing for both the parties, we proceed to examine the evidence adduced before the court in course of trial. P. W. 8 is the informant and injured as well as wife of the deceased. In the F. I. R. she has stated that on the date of occurrence while the deceased was taking food inside the house both the appellants entered into the house being armed with Kataries and tried to drag the deceased. At that point of time, she protested, but she was assaulted by the appellant Jogeswar on her hand whereafter both the appellants dragged the deceased to a place where there was a Pipal tree. However, in her deposition before the court she has stated that while the deceased was taking food the appellants arrived there armed with Katartes, dragged him to near a Pipal tree and thereafter she followed them and tried to snatch away the Katari from appellant Jogeswar, but he forcibly snatched it out of her hand as a result of which she sustained bleeding injury on the left hand forefinger. This witness has made two different statements at two different stages and, therefore, the trial court rightly disbelieved her evidence so far as assault by Jogeswar on her is concerned. This witness has made two different statements at two different stages and, therefore, the trial court rightly disbelieved her evidence so far as assault by Jogeswar on her is concerned. So far as assault on the deceased, there appears to be consistency in her version in the F. I. R. as well as before the court. She has specifically stated in her deposition that while her husband was trying to escape and was running towards her house, appellant Maheswar obstructed her husband from his front side and appellant Jogeswar assaulted by means of a Katari on the back side of the neck. P. W. 3 who is an independent witness to the occurrence has stated that on the date of the occurrence while he was going to take bath, he saw the appellants and the deceased were quarrelling on the road. He also found the appellants holding Kataries and he requested the appellants not to quarrel being armed with Kataries. This witness has also stated that while the deceased tried to escape and started running towards his house, appellant Maheswar came to his front side and at that moment appellant Jogeswar dealt a Katari blow on the back side neck of the deceased. This witness has also stated that one Bimeswar Behera who was going to take bath at that point of time caught hold of the appellant Jogeswar and snatched away the Katari from his hand. Much argument was advanced by Shri Panda, the learned counsel for the appellants with regard to non-examination of the said Bhimeswar Behera. On careful examination of the depositions of the aforesaid two witnesses, we are of the view that nothing has been brought out in their cross-examination to disbelieve their evidence so far as it relates to assault on the deceased. Non-examination of Bhimeswar Behera does not materially affect the prosecution case since he is not an eyewitness to the occurrence and he is said to have snatched away the Katari from the hand of Jogeshwar. The doctor who conducted the post mortem examination also found the corresponding injury on the neck of the deceased. Non-examination of Bhimeswar Behera does not materially affect the prosecution case since he is not an eyewitness to the occurrence and he is said to have snatched away the Katari from the hand of Jogeshwar. The doctor who conducted the post mortem examination also found the corresponding injury on the neck of the deceased. True it is that this doctor has admitted in his evidence that in the postmortem report he had not stated as to whether the injury was ante mortem in nature or not and whether it would cause death in ordinary course of nature, but during examination in court on being asked by the court, he expressed that the injury noticed on the deceased as per the postmortem examination report is ante mortem in nature and sufficient to cause death in ordinary course of nature. Not having given his opinion with regard to the aforesaid aspect of the injury and death, may be a mistake on the part of the doctor who conducted the postmortem examination, but having made a statement before the court referring to the postmortem examination report that the injury found on the body of the deceased was ante mortem in nature and was also sufficient to cause death in ordinary course of nature, we do not find any reason to discard the postmortem report. From the aforesaid evidence, it is clear that the appellant Maheswar obstructed the way of the deceased when he was trying to escape and appellant Jogeswar assaulted the deceased by means of a Katari on the back side of the neck and such injury caused death of the deceased. Apart from the evidence of the eyewitnesses, P. W. 2 in his evidence has stated that after the occurrence he came to the spot and found the appellant Jogeswar sitting near the deceased and on being asked by him, appellant Jogeswar stated that due to land dispute he had killed the deceased by inflicting a Katari blow on the back side neck of the deceased. There is nothing to disbelieve this witness so far as the extrajudicial confession is concerned. Similarly, the evidence of P. W. 9 before whom appellant Jogeswar made the extrajudicial confession has stated that on being asked, appellant Jogeswar stated before him that due to land dispute he committed the murder of the deceased by means of a Katart. There is nothing to disbelieve this witness so far as the extrajudicial confession is concerned. Similarly, the evidence of P. W. 9 before whom appellant Jogeswar made the extrajudicial confession has stated that on being asked, appellant Jogeswar stated before him that due to land dispute he committed the murder of the deceased by means of a Katart. The Katari which was seized by the police was sent for forensic examination and human blood was found on the same. In view of such evidence available on record, it can never be said that the appellants are not the authors of the crime. Now the question that arises for consideration is whether appellant Maheswar can be convicted with the help of Section 34 of the Indian Penal Code. According to the learned counsel for the appellants, there is no material to satisfy the ingredients of Section 34 of the Penal Code. We are unable to accept such contention in view of the following reasons. In the F. I. R. it is alleged that there was land dispute between the appellants and the deceased. It is also alleged in the F. I. R. that on the date of occurrence both the appellants entered into the house of deceased being armed with Katanes and dragged the deceased to a place near a Pipal tree. It is also alleged that while the deceased was trying to escape, appellant Maheswar obstructed his way and at that point of time appellant Jogeswar dealt a blow on the back side of the neck of the deceased. This part of the allegations made in the F. I. R. finds corroboration from the evidence of P. Ws. 3 and 8 and the doctor who conducted the postmortem examination has also found the corresponding injury which caused the death. The conduct of the appellants clearly indicate a premeditation/meeting of mind to cause death of the deceased otherwise they would not have entered into the house of the deceased being armed with Kataries and appellant Maheswar would not have obstructed the way of the deceased while he was trying to escape. The last point raised by the learned counsel for the appellants is with regard to the so called F. I. R. which was suppressed by the prosecution. The last point raised by the learned counsel for the appellants is with regard to the so called F. I. R. which was suppressed by the prosecution. No, doubt in his evidence P. W. 1 has stated that he had instructed his younger brother Niranjan Mishra to go to the police station and lodge the F. I. R. and after lodging the F. I. R. Niranjan Mishra came to the spot. The said Niranjan Mishra has not been examined in support of evidence of P. W. 1. On the other hand, the Officer-in-charge of Remuna Police Station who has been examined as P. W. 11. in cross-examination, has specifically denied the suggestion made to him in this regard. We, therefore, do not find any force in the above point raised by the learned counsel for the appellants. ( 7 ) HAVING held that both the appellants with common intention of causing death of the deceased entered into his house with Kataries, dragged him to a place near a Pipal tree and also caused death of the deceased in the manner stated abovem we find no reason to differ with the findings of the trial court. Accordingly, the appeal stands dismissed. Appellant Maheswar has been released on bail by this Court on 1/8/1996 and appellant Jogeswar, has been released on bail by this Court on 18/12/1996. Both the appellants are directed to serve the remaining part of the sentence and the trial court is directed to take steps for apprehending the appellants to serve the remaining part of the sentence. The record be sent back to the trial court immediately. Appeal dismissed.