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2008 DIGILAW 1031 (ORI)

GHANA MUNDA v. STATE OF ORISSA

2008-11-19

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT : P.K. Trlpathy, J. - Heard. 2. Both the Appellants have preferred this Jail Criminal Appeal as against the order of conviction u/s 302/34 Indian Penal Code and sentenced of imprisonment for life passed against them by the Learned Addl. Sessions Judge, Jajpur in Sessions Trial No. 612 of 1997/2 of 1998 arising out of G.R. Case No. 435 of 1996 of the Court of J.M.F.C, Jajpur Road. As it reveals from the lower Court record Dilika Munda is the deceased. He had borrowed a bullock cart from the accused persons and could not be able to redeliver the same because of its damage condition and therefore on the demand of the accused persons when the deceased delivered a new bullock cart, the accused persons demanded delivery of the new as well as old bullock carts. The dispute arose there from when deceased refused to part with the old bullock cart. Thereafter accused persons brought allegations against the deceased for applying sorcery on them but in that respect they were proved to be false before the Panchayat and accordingly they were condemned by the Panch. For the said reasons, accused persons bore a grudge against the deceased. It is further case of the prosecution that on 9.10.1996 the deceased together with P.W. 2 - Kanda Haibru and P.W. 3 - Ratha Munda had gone to irrigate his cultivable land and at about 7 A.M. while they were returning P.W. 3 had gone to ease out and the P.W. 2 was together with the deceased. At that time both the accused persons being variously armed including Farsa and hatchet asked P.W. 2 to stand on a side or else to sustain injuries. P.W. 2 out of fear followed their instructions and stood at a side and witnessed the occurrence of dealing of blows by both the accused persons inflicting cut injuries and ultimately severing heads from the trunk of the deceased. Both the accused persons thereafter carried the severed head to the police station and produced the same before the police officer in-charge of the police station. P. Ws.2 and 3 respectively intimated the incident to the inmates of the house of the deceased and other villagers and P.W.l, i.e., the son of the deceased lodged the FIR and set the law into motion. 3. P. Ws.2 and 3 respectively intimated the incident to the inmates of the house of the deceased and other villagers and P.W.l, i.e., the son of the deceased lodged the FIR and set the law into motion. 3. In course of investigation, the Investigating Officer (P.W.13) held inquest on the trunk portion of the dead body of the deceased under inquest report Ext. 2. A separate inquest report Ext. 9 was prepared when the accused persons produced the head at the police station. Witnesses to the inquest identified the head and the trunk as that of the deceased and made necessary endorsements therein. In course of the investigation, the seized weapon of offence, blood stained wearing apparels, nail clippings of the accused collected in course of investigation were seized and sent to the chemical analyst and serologist under forwarding letter Ext. 13. All such articles were seized under different seizure lists and on completion of investigation charge sheet was submitted against the accused persons. While denying the charge, accused persons claimed for Trial. To substantiate the charge against the accused persons, prosecution relied on the evidence of 13 witnesses and the documents marked Exts.1 to 13 series. In reply the accused persons examined one witness i.e. D.W.1-Satari Kayam. 4. On assessment of the evidence of P.W. 6 i.e. the doctor who conducted autopsy on the dead body of the deceased, Learned Addl. Sessions Judge recorded the finding that the deceased suffered homicidal death. On appreciation of evidence on P. Ws.2 and 3 the two witnesses to the occurrence together with the corroborating evidence of P. Ws.5 and 9 who stated about the accused persons carrying the severed head and the further corroborating evidence through the seizure list and the report from the S.F.S.L. Ext. 13 series Learned Addl. Sessions Judge held that prosecution has proved beyond all reasonable doubt that both the accused persons are the author of the injuries which resulted in homicidal death of the deceased. Accordingly, he recorded conviction of both the accused persons u/s 302/34 Indian Penal Code and sentenced each of them to imprisonment for life. Learned Counsel for the Appellants argues that in the post mortem report Ext. Accordingly, he recorded conviction of both the accused persons u/s 302/34 Indian Penal Code and sentenced each of them to imprisonment for life. Learned Counsel for the Appellants argues that in the post mortem report Ext. 4 it was not mentioned by P.W. 6 that the body (trunk) and the head were belonging to one person i.e. the deceased and therefore a serious doubt is cast on identity of the dead body so as to connect it with the deceased. The argument is imaginary in nature and devoid of substance in view of positive evidence available on Exts.2 and 9 and the evidence of P.W. 6 that at the time of post mortem examination he matched the trunk and the head of the deceased and found it matching. Mere non-mentioning of that fact in the post mortem report does not create any doubt in the manner it has been argued by the Appellants. Therefore, such submission of the Appellants is devoid of merit. 5. Learned Counsel for the Appellants further argues that evidence of P.W. 1 about the manner in which he accounted for damage of the bullock cart appears to be improbable because he stated in Court that bullock cart was burnt. That contention of the Appellants is of no importance and apart from that such evidence of P.W. 1 was not challenged. Hence this point raised by the Appellants is also devoid of merit. 6. Learned Counsel for the Appellants further argues that evidence of P. Ws.2 and 3 is contradictory about the manner in which the occurrence took place. Except saying so Learned Counsel for the Appellants is unable to point out the exact contradiction. On perusal of evidence of P. Ws.2 and 3 we find no contradiction at all on any material particulars and therefore we concur with the finding recorded by the Trial Court about reliability and credibility of P. Ws.2 and 3. 7. Mr. Mishra Learned Standing Counsel argues that prosecution case is based on direct evidence and evidence of P. Ws.2 and 3 are sufficient enough to prove the charge but nonetheless prosecution led corroborating evidence of P. Ws.5 and 9 and the report from SFSL Ext. 13 series in addition to evidence of P.W. 6 and Ext. 4 and therefore the finding recorded by the Trial Court may be maintained. We find sufficient force in that submission. 8. 13 series in addition to evidence of P.W. 6 and Ext. 4 and therefore the finding recorded by the Trial Court may be maintained. We find sufficient force in that submission. 8. After careful consideration of the evidence on record and the aforesaid contentions of the parties, we find no merit in the appeal and the same is accordingly dismissed. Final Result : Dismissed