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2011 DIGILAW 424 (ORI)

Shyam Bhadra v. State of Orissa

2011-08-10

L.MOHAPATRA, S.K.MISHRA

body2011
JUDGMENT This appeal is directed against the judgment passed by the learned Sessions Judge, Sundargarh in S.T. Case No.146 of 1996. All the three appellants have been convicted for commission of offence under Sections 302, 147 and 148 of the Indian Penal Code (in short 'IPC') and also have been convicted for commission of offence under Sections 450 and 149 of IPC. For their conviction under Section 302 of IPC, they have been sentenced to imprisonment for life. Similarly for their conviction under Sections 147 and 149 of IPC, they have been sentenced to imprisonment for one month and for their conviction under Sections 450 and 149, they have been sentenced to imprisonment for three months. 2. Case of the prosecution is that on 19.2.1996 night, the inhabitant of huts belonging to Munda Community were celebrating obsequies ceremony of one Laxman Munda at a little distance from the house of the deceased. The community members were celebrating the ceremony by playing music and dancing. A feast had been arranged. Some of the Community members after taking food and liquor, left the place at about 11 P.M. All the accused persons at that point of time came, along with two absconding accused Matai Munda and Joseph Munda and quarrelled with the deceased Ramesh Gagarai in front of his house. Thereafter, they assaulted Ramesh by means of deadly weapons, which they were carrying with them. Thereafter, they entered into the house of the deceased Ramesh and dragged out Jema Gagarai and killed her in the same manner suspecting both the husband and wife to be witch practisers. It is further alleged by the prosecution that hearing hulla of the accused persons, the informant and few others, who were near the feast, rushed to the spot but being afraid of the accused persons, they escaped and went back to their respective houses. In the next morning, P.W.1 came to the spot and found two dead bodies lying in front of their house. Thereafter, he informed about the incident to Grama Rakhi and as per his advise, went to Koida Police Station and lodged the F.I.R. On the basis of F.I.R., investigation was taken up and on completion of investigation, charge sheet was submitted for commission of the aforesaid offence. All the three appellants pleaded not guilty. 3. Prosecution in order to prove the charges examined nine witnesses. All the three appellants pleaded not guilty. 3. Prosecution in order to prove the charges examined nine witnesses. P.Ws.1, 2 and 3 were examined as eye-witnesses to the occurrence whereas P.W.4 was examined to prove the seizure of blood stained earth, sample earth, one tangia and lathi from the spot. P.W.5 is the Grama Rakhi, who was informed about the incident by P.W.1 on the following day of incident. P.W.6 is a witness to the inquest and P.W.7 is a Constable, who had carried both the deceased for post-mortem examination. P.W.8 is the Doctor, who conducted post-mortem examination. P.W.9 is the I.O. Learned Sessions Judge relying on the evidence of P.Ws.1 and 3 found the three appellants guilty of the charges and convicted them there under. 4. Miss. Tripathy, learned counsel appearing for one of the appellants assailed the impugned judgment on the ground that P.W.2 is a child witness and the endorsement made by the learned Sessions Judge that she lacks the power of understanding because of her childhood and she does not understand the meaning of oath or its implication. In view of such endorsement, the said witness should not have been examined in course of the trial. Moreover, in cross-examination, P.W.2 has clearly stated that her statement is as per the facts tutored by the police. So far as P.W.1 is concerned, it was contended by the learned counsel for the appellant that his presence at the spot is also doubtful and, therefore, no reliance can be placed on him. The submission in respect of P.W.3 is that the said witness was in an intoxicated state of mind at the time of occurrence and, therefore, no reliance could be placed on this witness. It was also contended by the learned counsel for the appellant that if the three eye witnesses are not relied upon, there is no other evidence on the basis of which the appellants can be convicted for all the charges. Learned counsel for the State fairly submitted that evidence of P.W.2 cannot be relied upon but there is no reason to discard the evidence of P.WS.1 and 3, who have specifically stated to have seen the occurrence. Their evidence is also corroborated by the evidence of P.W.8, who conducted the post-mortem examination. 5. Learned counsel for the State fairly submitted that evidence of P.W.2 cannot be relied upon but there is no reason to discard the evidence of P.WS.1 and 3, who have specifically stated to have seen the occurrence. Their evidence is also corroborated by the evidence of P.W.8, who conducted the post-mortem examination. 5. Out of nine witnesses examined on behalf of the prosecution, P.Ws.1, 2 and 3 had been examined as eye witnesses to the occurrence as rightly pointed out by the learned counsel for the appellant. P.W.2 is a child witness and the learned Sessions Judge in the deposition has clearly stated that she is not able to understand the questions put to her and she is also not able to give any answer. She lacks the power of understanding because of her childhood. In view of the above, learned Sessions Judge should not have examined the said witness but evidence of the said witness has been recorded. In cross-examination, P.W.2 has stated that on the date of her examination, the police officer came with her to the Court and tutored her to depose before the Court. She further stated that whatever she was stating, the same had been tutored to her by the police officer. She has also admitted in cross-examination that whatever she had stated in examination-in-chief had not been stated by her before the police during investigation. Under the circumstances, learned counsel for the State says that no reliance could be placed on P.W.2. So far as P.W.1 is concerned, he, in his deposition, has stated that in the night of occurrence, the villagers were taking food and were dancing. All the accused persons assaulted the deceased Ramesh by means of lathi, as a result of which, he fell down. Thereafter, he ran away from the place of occurrence out of fear. On the next day morning, he informed about the incident to Grama Rakhi and, thereafter, went to Koida Police Station to report. He has not stated to have seen the assault on the other deceased i.e. Jema wife of Ramesh. In cross-examination, he has stated that he used to perform night duty in Prakash Industries every day and on the date of occurrence, he was also on duty at night. He has also stated that on that date, he had not gone to the house of Laxman or Ramesh. In cross-examination, he has stated that he used to perform night duty in Prakash Industries every day and on the date of occurrence, he was also on duty at night. He has also stated that on that date, he had not gone to the house of Laxman or Ramesh. If this part of the evidence in cross-examination is accepted, a doubt arises as to whether this witness could have seen the assault on the deceased Ramesh. If he was on duty in the industry, there was no scope for him to see the incident that had taken place where the deceased and other people belonging to Munda community were staying. We are of the view that much reliance cannot be placed on the evidence of this witness as his presence at the spot is doubtful. So far as P.W.3 is concerned, he, in his deposition, has stated that in the night of occurrence, all the accused persons were assaulting Ramesh and his wife Jema by lathis. One Joseph was also there and he had taken part in the occurrence. One Motai had also taken part in the alleged occurrence. In examination-in-chief, he has not named any one of the appellants nor he has stated about the role played by each of the appellants while assaulting both the deceased persons. In cross-examination, he admitted that he had gone to the house of Laxman for taking food on account of the death ceremony. The house of Ramesh (deceased) is at a considerable distance from the house of Laxman. He has also stated that he was not in sense' after taking liquor. We are therefore of the view that a person, who was not in sense because of intoxication, could not have seen the occurrence that took place at a considerable distance from the place where the witness was present. Accordingly, this witness also cannot be relied upon. From the evidence P.W.8, the doctor, who conducted the post-mortem examination, it is clear that both the deceased persons died of homicidal death. Rest of the witnesses are seizure witnesses. We are unable to rely on the evidence of P.WS.1 and 3 to come to a conclusion that it is the appellants, who assaulted both the deceased persons and caused their death. 6. Rest of the witnesses are seizure witnesses. We are unable to rely on the evidence of P.WS.1 and 3 to come to a conclusion that it is the appellants, who assaulted both the deceased persons and caused their death. 6. For the reasons stated above, we allow the appeal and set aside the impugned judgment of the learned Sessions Judge, Sundargarh passed in S.T. Case NO.146 of 1996. Appeal allowed.