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2006 DIGILAW 449 (ORI)

STATE OF ORISSA v. SUKURAM MUNDA

2006-06-21

A.K.PARICHHA, P.K.TRIPATHY

body2006
A. K. PARICHHA, J. ( 1 ) SINCE both matters arise out of a common judgment passed by learned Ad hoc Additional Sessions Judge (Fast Track Court), Champua in S. T. Case No. 15/75 of 2005/2000, they were heard analogously and are disposed of by this common judgment. FACT : ( 2 ) APPELLANT is the son of Sonu munda, the deceased through his first wife and was residing separately from his father. Sonu Munda sold a piece of land, but out of the sale proceeds he did not give anything to the appellant, for which the latter was bearing a grudge against sonu Munda. While the matter stood thus, on 24. 5. 1999 at about 9. 30 P. M. , the grama Rakhi of the area (P. W. 6) saw the appellant going on the village road armed with bow, arrows and axe. He also noticed that hands of the deceased were stained with blood. Suspecting some foul-play, he rushed to the house of Sonu Munda and found the door of the house lying broken and Sonu Munda, his wife, Junga Munda, son, Kande Munda and daughter, Sambari lying on the floor of the house with multiple bleeding injuries on their persons. He also found a small girl, Kande Munda (P. W. 5) concealing herself in the corner of the house trembling with fear. On query the girl told that the appellant broke open the door, entered into the house and attacked the inmates with bow, arrows and axe causing injuries. The Grama rakhi immediately contacted the security guard available nearby and with his help went to Joda Police Station, where he reported about the incident. All the persons lying at the spot with injuries were removed to the Company Hospital of TISCO for treatment. Sonu Munda, junga Munda and Sambari Munda succumbed to the injuries at the hospital. Kande Munda somehow survived. After completion of a routine investigation the investigating Officer submitted charge-sheet for the offences punishable under sees. 302 and 307, IPC. ( 3 ) ACCUSED pleaded innocence and claimed for trial. ( 4 ) TO prove the charges, prosecution examined 11 witnesses and produced several documents and material objects, which were marked as Exts. 1 to 36 and m. Os. I to X respectively. In his defence accused cited no document or witness. 302 and 307, IPC. ( 3 ) ACCUSED pleaded innocence and claimed for trial. ( 4 ) TO prove the charges, prosecution examined 11 witnesses and produced several documents and material objects, which were marked as Exts. 1 to 36 and m. Os. I to X respectively. In his defence accused cited no document or witness. On consideration of the evidence on record, learned trial Judge found that charges under Sees. 302 and 307, IPC were substantiated and accordingly, convicted the accused, awarded death sentence to him and in accordance with Sec. 366 (1) Cr. P. C. referred the matter to this court for confirmation of the death sentence. That has been registered as dsref No. 3 of 2005. Independent of the dsref accused also challenges the conviction and sentence and accordingly preferred the appeal from jail, which has been registered as JCRLA No. 70 of 2005. ( 5 ) OUT of the witnesses examined by the prosecution P. W. 1 is the sister, p. Ws. 5 and 11 are the daughters, P. W. 3 is the daughter-in-law of the deceased sonu Munda. P. W. 2 is a co-villager, P. W. 6 is the informant-Grama Rakhi, P. Ws. 4, 7, 9 and 10 are doctors, and P. W. 8 is the I. O. ( 6 ) THE minor girl, P. W. 5 whom p. W. 6 saw inside the room is the only eye-witness to the occurrence. She was produced before the Court, but the Court felt that she had not developed maturity of understanding and was competent person under Section 118 of the Evidence act to testify. After the sole eye-witness was found unfit for giving evidence, prosecution relied on the following circumstantial evidence. (i) The three deceased persons suffered homicidal death and injured Kande Munda had received injuries which were homicidal in nature. (ii) P. W. 6 saw the accused in the night of occurrence with axe, bow and arrows and blood stain on his hands, and immediately visited house of deceased and found Sonu, Jonga and their two children lying with multiple injuries and learnt from p. W. 5 that the accused broke open the door and inflicted those injuries. (iii) The seizure of the weapons of offence on the information provided by the accused. (iv) The doctors giving opinion that the injuries on the deceased persons and the injured Kande are possible with those weapons. (iii) The seizure of the weapons of offence on the information provided by the accused. (iv) The doctors giving opinion that the injuries on the deceased persons and the injured Kande are possible with those weapons. (v) Availability of human blood on the weapon of offence and the clothes of the appellant. (vi) The dissatisfaction of the accused and frequent quarrel with his father-Sonu Munda for the share in the sale proceeds of land to constitute the motive. ( 7 ) P. W. 4 is the doctor who conducted the post-mortem examination on deceased-Sambari and prepared postmortem report Ext. 1. P. W. 7 is the doctor, who conducted post-mortem examination on deceased Sonu and prepared report -Ext. 4. P. W. 9 is the doctor who conducted post-mortem examination on deceased-Junga and prepared report Ext. 33. P. W. 10 is the doctor who examined injured-Kande Munda and prepared injury report ext. 13/2. The same doctor also examined Sambari Munda and prepared injury report Ext. 12/2. The contents of the injury reports, post-mortem reports, inquest reports, Exts. 17, 26 and 16 coupled with the evidence of the doctors clearly establish that the death of the above named three deceased persons occurred due to homicidal injuries and the injuries on kande Munda were also homicidal in nature. Evidence of the doctors, prosecution case thereof and the findings in that respect at the trial Court being not disputed, further discussion in that respect is not necessary. Suffice it to say that findings of the trial Court in that respect are approved and accepted. ( 8 ) P. W. 6 stated that on 24. 5. 1999 at about 9. 30 P. M. while he was there at bileipada Chhak, he saw the appellant passing in front of him armed with bow, arrows and an axe and that his hands were stained with blood. Seeing this he suspected some foul play and being the grama Rakhi of the area he thought it proper to verify the situation. He stated that immediately he went to the house of deceased-Sonu Munda and found the door of that house lying broken and inside the house Sonu Munda, his wife junga and their two children Sambari and Kande lying with multiple bleeding injuries on their person. He stated that immediately he went to the house of deceased-Sonu Munda and found the door of that house lying broken and inside the house Sonu Munda, his wife junga and their two children Sambari and Kande lying with multiple bleeding injuries on their person. He said that he noticed a small girl hiding inside the room and trembling out of fear and on being asked by him she narrated that her brother-Sukuram Munda entered into the house breaking the door and attacked her father, mother, brother and sister with axe etc. causing the injuries. According to P. W. 6, he immediately informed the Security Personnel who were there and with their help-came to Joda p. S. and submitted the report Ext. 3. P. W. 6 identified M. Os. II, III and IV as the bow and arrows and M. Os. V and VI as the Dhoti and Shawl of the appellant. He also identified the saree and sayaa of the deceased-Sambari as M. Os. VII and VIII. In cross-examination, he no doubt stated that the FIR was lodged after visit of the police to the spot, but that is of no consequence as because the I. O. visited the spot soon, after the occurrence and removed the injured persons, to the hospital. The injury requisitions Exts. 10, 11, 12 and 13 and the requisitions for recording dying declaration of the injured persons Exts. 6, 7, 8 and 9 show that the injured persons were already there at hospital undergoing treatment and examinations by doctors before the midnight of 24. 5. 1999. So, even if the FIR was given at the spot, the delay was nominal and does not affect genuineness of the allegations contained therein. ( 9 ) P. W. 8 stated that he arrested accused-Sukuram at about 12. 30 P. M and while in custody the said accused confessed that in the previous night he entered into the house of his father-Sonu breaking the door and attacked Sonu with arrows and axe, his step mother junga, his step brother, Kande and sister Sambari with axe and that after the incident he concealed the bow, arrows and axe inside a bush at village Lahunda. According to P. W. 8, he recorded the statement of accused read over the contents to him and obtained his L. T. I, on the same. According to P. W. 8, he recorded the statement of accused read over the contents to him and obtained his L. T. I, on the same. P. W. 8 stated that after giving the above statement, the accused led to the place of concealment and gave recovery of the weapons, which was seized. Ext. 20 is the said statement of the accused and ext. 201 is the seizure list regarding the seizure of the weapons of offence from the place of concealment. Confession of an accused about the crime before a police officer is inadmissible in evidence in view of the bar provided in Sections 25 and 26 of the Evidence Act. But the statement of accused regarding the place of concealment of incriminating articles is an information which facilitates discovery of such articles and is admissible under Sec. 27 of the Evidence Act. Observations of the Privy Council made in the case of Pulukuri Kottaya and another v. Emperor AIR 1947 PC 67, makes it clear that so much of the statement of the accused as relates distinctly to the facts thereby discovered can be proved under Sec. 27 of the Evidence Act. So the trial Court has rightly accepted statement of the accused so far as it relates to recovery of weapons of offence only and not beyond that. ( 10 ) MR. Goutam Mishra, learned counsel for the accused argued that seizure of the weapons from the bush under seizure list Ext. 21 is of no consequence as the said place is an open place accessible to all. According to him, when the seizure was made from an open place, the said weapons cannot be linked to the appellant excluding possibility of others keeping those weapons in that open place. He further pointed out that genuineness of the recovery and seizure should not have been accepted as no independent seizure witness was examined by the prosecution. On this point the following observation of the apex Court in the case of State of Himachal Pradesh v. Jeet Singh AIR 1999 SC 1293 can be taken note of. "it is a fallacious notion that when recovery of any incriminating article was made from any place which is open or accessible to others it would vitiate the evidence under Section 27 of Evidence Act. Any object can be concealed in places which are open or accessible to others. "it is a fallacious notion that when recovery of any incriminating article was made from any place which is open or accessible to others it would vitiate the evidence under Section 27 of Evidence Act. Any object can be concealed in places which are open or accessible to others. For example if the article is buried on the main Road side or it is concealed beneath dry leaves lying on public place or kept hidden in public office, the article would remain out of the visibility of others in normal circum stance. Until such article is disinterred its hidden state would remain unhampered. The person who hid alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place is accessible to other or not but whether it was ordinary visible to other. If it is not then it is immaterial that the concealed place is accessible to others. " ( 11 ) IN the present case accused gave information about the place of concealment and basing on his information the weapons were recovered from the bush and there is no evidence on record to indicate that someone else had concealed those weapons there or the concealment was visible to others or that the accused had some other way of knowing that the weapons were there. It was also not the plea of accused in the trial Court, that non-examination of the local seizure witness Chanda Munda caused prejudice to him. There is no requirement in Section 27 of the evidence Act to obtain signature of independent witnesses either on the statement of the accused or in the recovery memo. If the evidence is otherwise reliable, non-examination of local seizure witness will not make the fact of recovery unbelievable. ( 12 ) P. W. 8 stated that he sent the seized bow and arrows and axe to the doctors for their opinion and the doctors after examining those weapons along with the injuries found on the deceased and injured Kande Munda gave their opinion that those injuries are possible by the weapons M. Os. I to IV. The concerned opinions are Exts. 2, 5 and 28/3. It is also worthwhile to note that the doctor found one arrow sticking to the chest of the deceased-Sonu and this arrow was seized by the I. O. on production by the accused. I to IV. The concerned opinions are Exts. 2, 5 and 28/3. It is also worthwhile to note that the doctor found one arrow sticking to the chest of the deceased-Sonu and this arrow was seized by the I. O. on production by the accused. In this regard learned counsel for the accused-appellant submitted that there are discrepancies between the report of doctor-P. W. 10 and that of doctor P. W. 4. The evidence and report of the doctors read together makes the picture clear and dispel all doubts or ambiguity. They have all categorically stated that injuries found on the deceased persons and injured are possible with the weapons M. Os. I to IV. According to them, some of the injuries were bleeding bruises and depressed skull with fracture etc. which are possible with the blunt side of the axe. Similarly, the punctured injuries and cut injuries are possible with arrow and sharp side of the axe. So, evidence of the doctors as argued by accused are neither discrepant nor ambiguous. Their evidence clearly establish that the injuries found are possible by M. Os. I to IV. I. O. P. W. 8 also spoke about the seizure of blood stained clothes of the victims, accused and blood stained earth etc. from the spot under seizure list M. Os. 15, 22, 23, 25, 29, 30 and 32. He stated that he sent through Court the seized weapons of offence M. Os. I to IV, clothes of the accused and clothes of the deceased persons for chemical examination and se-rological test by S. F. S. L. In that respect report from S. F. S. L. , Ext. 36 reveals that human blood was found on the weapons as well as on the clothes of the victims. The grouping of those blood could not be ascertained as the same had deteriorated. However, the blood on the clothes of the accused was found to be of Group-B although the blood group of the accused is 'o' negative. No explanation was offered by the appellant as to why and how 'b' group blood was found on his clothes which he was wearing at the time of his arrest and how human blood was found on the weapons M. Os. I to IV. ( 13 ) REGARDING motive, evidence of p. W. 3 who is the wife of accused is relevant. I to IV. ( 13 ) REGARDING motive, evidence of p. W. 3 who is the wife of accused is relevant. She stated that accused was unhappy with his father-Sonu as Sonu sold some lands and did not give a share to him out of the sale proceeds. She stated that accused was frequently quarrelling with Sonu about this. P. W. 3 further stated that on the date of occurrence accused quarreled with her and when her father-in-law Sonu intervened accused became angry with Sonu and in the night the incident took place. P. W. 1, who is the sister of deceased-Sonu Munda, also stated that Sonu sold some lands and because he had not given part of the sale proceeds to accused, he was quarrelling with Sonu. The evidence of these relatives establish the motive of the accused for committing the alleged crime. ( 14 ) LEARNED Counsel for the accused-appellant submitted that even if the above noted circumstances are accepted as established, yet they do not form a complete chain unerringly establishing guilt of the accused and that gap is available to accommodate a possibility of his innocence. In support he relied on the cases of Akhilesh Hqjam v. State of Bihar 1995supp. (3) SCC 357. and Gambhir v. State of Maharashtra AIR 1982 SC 1157 . , wherein the apex Court observed that the circumstances relied by the prosecution in support of the case must not only be fully established, but the chain of evidence furnished by the circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The standard of assessment regarding the formation of complete chain was however indicated in the case of dharm Das Wadhwani v. The State of Uttar pradesh AIR 1975 SC 241 . Their Lordships stated : "every evidentiary circumstance is a probative link, strong or weak and must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then can a concatenation of incriminating facts suffice to convict a man. Short of that insufficient. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then can a concatenation of incriminating facts suffice to convict a man. Short of that insufficient. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate interferences flowing from evidence circumstantial or direct. " ( 15 ) SO a broad and practical approach is to be adopted by the Court in assessing to find out if the chain is complete. In the present case prosecution has established through evidence that the accused-appellant was bearing a grudge against his father for not parting with a part of the sale proceeds of the land. Soon after the occurrence, he was found near the house of his father armed with bow, arrows, axe and blood stains on his hands. Immediately, thereafter the witnesses found the father, step-mother, stepbrother and step-sister of the accused-appellant lying in their house with multiple injuries on their persons. After arrest accused gave statement regarding concealment of the weapons of offence and gave recovery of those weapons from the place of concealment. The said weapons and the wearing clothes of the accused were found tainted with human blood. The blood found on the wearing apparels of the accused was of Group 'b'. although the blood group of the accused is 'o' negative. The medical reports and evidence are to the effect that the death of the three deceased persons occurred due to homicidal injuries, which were possible with the weapons recovered on the information of the accused. The accused had no explanation as to how human blood of 'b' Group came to his clothes or how human blood were found on his weapons. Once all these circumstances are put together, they form a complete chain pointing at the guilt of the accused and leaving no room for any hypothesis of his innocence. Learned trial Court, therefore, did not commit any error in holding the accused-appellant guilty for the offences punishable under Sections 302 and 307, IPC. Once all these circumstances are put together, they form a complete chain pointing at the guilt of the accused and leaving no room for any hypothesis of his innocence. Learned trial Court, therefore, did not commit any error in holding the accused-appellant guilty for the offences punishable under Sections 302 and 307, IPC. ( 16 ) SUPPORTING the death reference, learned Standing Counsel submitted that the accused-appellant killed his own father, step-mother and sister and attempted to cause death of his minor brother in cold blood simply because Sonu did not give him a share of the sale proceeds of the land. According to him. such brutal conduct and act of the accused-appellant comes under the rarest of the rare category and so the death sentence is warranted. Learned Counsel for the appellant on the other hand submitted that alleged incident may be brutal in nature, but the same does not come within the rarest of the rare category. He also submitted that considering the weak socio-economic background of the tribal accused, lack of any past criminal record and absence of eyewitness to the occurrence to testify as to what preceded between the accused and the deceased before accused injured them, it will not be proper to award capital punishment to the appellant. In support of his submission, he places reliance on the cases of Vashram v. State of Gujarat AIR 2002 SC 2211 . Allaudin Mian and others v. State of bihar AIR 1989 SC 1456 . and Raja Ram Yodau and others v. State of Bihar AIR 1996 SC 1613 . In all these cases the apex court univocally observed that death penalty should be awarded in the rarest of rare cases and before awarding such penalty Court must look into the facts and circumstances of the case, the type of evidence available, the age of the victim and his chances of rehabilitation and his socio-economic background. The apex court, however, observed that there is no straitjacket formula and each case is to be judged on its own facts and circumstances. In the case of Raja Ram Yadau (supra) murder was committed in a premeditated and calculated manner with extreme cruelty and brutality. But considering the fact that the conviction was passed on the testimony of solitary child witness, the death penalty was not considered proper. In the case of Raja Ram Yadau (supra) murder was committed in a premeditated and calculated manner with extreme cruelty and brutality. But considering the fact that the conviction was passed on the testimony of solitary child witness, the death penalty was not considered proper. In the case of Allaudin mian (supra) the convict committed murder of his infant daughter, but the motive for such killing was not clear and so it was not considered a rarest of rare case. In the case of Ronny alias Ronald James alwaris etc. v. State of Maharashtra AIR 1998 SC 1251 . , the accused persons not merely robbed the victim family of valuables but killed three members of the family present in the house and also raped the only female in the house. Since the accused persons were not too young or too old and possibility of reform and rehabilitation was not ruled out, it was not considered as rarest of rare case for awarding capital punishment. In the instant case, learned trial court, however, preferred to follow the guidelines noted in the case of Bachan singh v. State of Punjab AIR 1980 SC 898 . ; Machhi Singh v. State of Punjab 1983 (3) SCR 413 . and the case of Sushil murmu v. State of Jharkhand (2004) 27 OCR 360. to conclude that the present case comes within the rarest of rare cases. In these cases the apex Court have observed that when the act of the accused is so ghastly that the collective conscience of the society is shocked and the existence of the culprit will be detrimental to the interest and existence of the society, then only the case can be considered as the rarest of rare case. ( 17 ) IN the present case, no doubt the accused-appellant killed his father,' step-mother and sister and caused serious injuries to his step-brother in a brutal manner, yet such act cannot be considered as an act which would revolt the conscience of the society or would threaten the existence of the society. In fact the present case is somewhat akin to the case of Ronny v. State of maharashtra (supra) and cannot be considered as a rarest of rare case warranting capital punishment. Moreover, accused-appellant is a tribal man less than 40 years of age and he comes from a family of poor social background. In fact the present case is somewhat akin to the case of Ronny v. State of maharashtra (supra) and cannot be considered as a rarest of rare case warranting capital punishment. Moreover, accused-appellant is a tribal man less than 40 years of age and he comes from a family of poor social background. No previous criminal antecedent has been shown against him. With all these aspects at hand award of capital punishment will be against the ratio laid down by the apex court in the case of Bachan Singh (supra ). In that view of the matter, the death reference is discharged and the sentence is modified to life imprisonment for the offence under Sec. 302, IPC. Since the life imprisonment is awarded no separate sentence is necessary for the offence under Sec. 307, IPC. ( 18 ) THE death reference is accordingly answered as above and Jail criminal Appeal is dismissed with modification in sentence. Order accordingly. .