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2011 DIGILAW 429 (ORI)

Halo @ Jaymangal Majhi v. State of Orissa

2011-08-12

B.K.NAYAK, PRADIP MOHANTY

body2011
JUDGMENT B.K. NAYAK, J. — In this jail criminal appeal, the appellants have assailed the judgment dated 28.02.2002 passed by the learned Sessions Judge, Sundargarh in S.T. Case No.231 of 1997 convicting all the three appellants under Sections 302/34 of the I.P.C. and sentencing them to undergo imprisonment for life. 2.The prosecution case is that on 25.07.1997 the dead body of deceased-Gobardhan Majhi with some injuries was found near the land of one Nehru Kisan, which was locally known as ‘Chelimunda land’. The villagers, who detected the dead body, finding no reason to suspect any foul play, buried the dead body. Later on Baya Majhi (P.W.1) of village-Talibahaldhipa revealed before the Sarpanch, Ward Member and some villagers that he had seen the accused-appellants assaulting the deceased on the land in question. On the advice of the Sarpanch, P.W.1 went to Lephripada Police Station and reported the matter orally before the Officer-in-charge, which was reduced into writing. On the basis of the F.I.R., the Officer-in-charge of the Police station, registered P.S. Case No.41 of 1997 and took up investigation, during the course of which he requisitioned the services of the Tahasildar and in his presence exhumed the dead body of the deceased and thereafter held inquest over the same and prepared the inquest report. He made arrangement for shifting the dead body for postmortem examination, examined witnesses and recorded their statements, seized incriminating articles like blood stained earth, wearing apparels of the accused persons. He also recovered and seized the weapon of offence at the instance of appellant-Jayamangal Majhi and dispatched all the material objects to the RSFL, Sambalpur for chemical examination. On completion of investigation, the I.O. submitted charge-sheet against the appellants. 3.The defence plea of the appellants was one of simple denial and false implication. 4.The prosecution tried to substantiate the charges by examining 16 witnesses and leading into evidence several documents and material objects. P.W.1, Baya Majhi made disclosure of his eyewitness account before the Ward Member, Sarpanch and some other villagers. P.W.7 is the nephew of P.W.1 and another eyewitness to the occurrence. P.Ws. 2 and 12 are the son and daughter-in-law of the deceased, who spoke about the deceased leaving the house on the previous day of the detention of the dead body. P.Ws. 3 and 10 are the persons before whom P.W.2 had made the aforesaid disclosure. P.Ws. P.W.7 is the nephew of P.W.1 and another eyewitness to the occurrence. P.Ws. 2 and 12 are the son and daughter-in-law of the deceased, who spoke about the deceased leaving the house on the previous day of the detention of the dead body. P.Ws. 3 and 10 are the persons before whom P.W.2 had made the aforesaid disclosure. P.Ws. 4, 5, 8, 9, 11 and 13 are formal witnesses to the inquest and seizures made by the I.O. during investigation. P.W.6, a seizure witness, has turned hostile. P.W.14 is the Executive Magistrate in whose presence the dead body was disinterred. P.W.15 is the doctor, who conducted post mortem examination on the body of the deceased. P.W.16 is the Investigating Officer. No evidence at all was led by the appellants in support of their defence. 5.On consideration of evidence led by the prosecution, the trial Court found the appellants guilty of the charge under Sections 302/34 of the I.P.C. and accordingly convicted and sentenced them thereunder as aforesaid. 6.Learned counsel for the appellants assails the impugned judgment of conviction contending that P.Ws. 1 and 7, the so called eyewitnesses, are not reliable because of discrepancy in their evidence and because of the fact that P.W.1 did not make any disclosure before anybody about the occurrence for three days. It is also his contention that the recovery of the weapon of offence, a lathi, said to have been made at the instance of the appellant-Jayamangal, cannot be utilized against the other two appellants. His last submission is that there is no proof of common intention of all the three appellants to commit the offence for attracting Section 34 of the I.P.C. and that since no separate individual charge under Section 302 of the I.P.C has been framed against each of the appellants, none of them can be convicted thereunder. Learned Additional Government Advocate, on the other hand, contends that there is no material discrepancy in the evidence of P.Ws. 1 and 7 and that delay of three days in making the disclosure about the occurrence by P.W.1 is not fatal to the prosecution in the facts and circumstances of the case. According to him, once the evidence of P.Ws. Learned Additional Government Advocate, on the other hand, contends that there is no material discrepancy in the evidence of P.Ws. 1 and 7 and that delay of three days in making the disclosure about the occurrence by P.W.1 is not fatal to the prosecution in the facts and circumstances of the case. According to him, once the evidence of P.Ws. 1 and 7 or either of them with regard to the occurrence is believed, the recovery of the weapon of offence at the instance of appellant-Jayamangal Majhi on the basis of the disclosure can also be utilized as a strong piece of circumstance against the other two appellants. He also contends that there is clear proof of common intention of all the three appellants for commission of the offence and it is not necessary that each of the appellants should be individually charged under Section 302 of the I.P.C. for conviction of the actual assailant even where the joint charge under Sections 302 with the aid of Section 34, I.P.C. fails. 7.P.W.15 is the doctor, who conducted postmortem examination on 28.7.1997 over the dead body of the deceased. As per his evidence and his postmortem report, Ext-8, the death occurred four to five days prior to the postmortem examination and that though the body was swollen and there was peeling of skin over the body, the doctor found one lacerated wound on the right side forehead of size 2" x 1/2", depressed fracture on the right side skull bone over fronto-parietal region, compound fracture of eye shoket, axillary bone, frontal bone, with haematoma, two contusions on lateral part of left leg 2" below the petella of size 3" x 2" and on the front part of the knee joint of size 2" 1/2" x 2". On dissection of brain P.W.15 found there was laceration of membrane. The doctor opined that death was caused due to shock, haemorrhage and coma as a result of the injuries on the head and chest. It is thus crystal clear that the deceased died a homicidal death, which aspect is not disputed by the learned counsel for the appellants. 8.Now it is to be considered whether the appellants are authors of the crime. P.Ws. 1 and 7 are said to be eyewitnesses to the assault on the deceased by the appellants. Both are related to each other as uncle and nephew. 8.Now it is to be considered whether the appellants are authors of the crime. P.Ws. 1 and 7 are said to be eyewitnesses to the assault on the deceased by the appellants. Both are related to each other as uncle and nephew. P.W.1 has stated in his evidence that he and P.W.7 had gone to the field to see the crop at about 6.00 P.M. on the date of occurrence and found all the three appellants present on their paternal land and were quarrelling with the deceased. Appellant-Sulandar was then holding a lathi. In course of the quarrel appellant-Jayamangal gave a necking to the deceased, who fell down, whereafter appellant-Sulandar assaulted the deceased by the lathi. When the deceased shouted for help, appellant-Khairu gagged his mouth. Seeing the furious mood of the appellant, P.Ws. 1 and 7 fled away. His evidence further reveals that out of fear he did not disclose the matter to anybody by going to the Basti. On the 3rd day of the occurrence, when he had gone to the Basti he disclosed the matter to some villagers, the Sarpanch and the Ward Member having learnt that the villagers had buried the dead body of the deceased. It also transpires from his evidence that on the advice of the Sarpanch (P.W.6) he went to the Police Station and reported the matter orally, which was reduced to writing, and he put the LTI on the report after the contents thereof were read over to him. P.W.7 has stated in his evidence that at 6.00 P.M. on the date of occurrence he and P.W.1 had been to the land to attend call of nature and at that time they found the appellants quarrelling with the deceased and giving him pushes on the ridge of the land of Chelimund Chaka. Seeing the quarrel he ran away out of fear leaving P.W.1. On the following morning, he learnt that the deceased had died. In cross-examination by the defence he stated that the spot of occurrence was not quite visible and the persons quarrelling were not identifiable from the place where he was attending call of nature. He was unable to say whether after he left the place, Baya Majhi (P.W.1) had gone nearer to the spot. He, however, admits that P.W.1 after his return did not tell him anything. He was unable to say whether after he left the place, Baya Majhi (P.W.1) had gone nearer to the spot. He, however, admits that P.W.1 after his return did not tell him anything. Because of the contradictory statements given in his examination-in-chief and in cross-examination, the trial Court put him questions as to which part of his statement was correct and he replied that the persons assaulting and the person assaulted were not identifiable. 9.As is admitted by P.Ws. 1 and 7 and testified by P.W.2, who is the son of the deceased, these three P.Ws., the deceased and the appellants are all agnatic relations. In cross-examination, P.W.1 has admitted that he cannot say the reason of the quarrel between the appellants and the deceased at the time of occurrence. It has also been elicited from him that he asked P.W.7 to go near the spot and he himself followed him and saw the incident from a distance of about 20 cubits. This part of the evidence of P.W.1 does not match with the evidence of P.W.7, who has said that he saw the quarrel from a distance of one furlong and that the persons quarrelling were not identifiable. However, no effort has been made either by the prosecution or the defence to find out whether the voices of the persons quarrelling were identifiable or not. P.W.7 does not state to have gone nearer to the spot to witness the occurrence. Considering the prevaricating statement given by him, he does not appear to be a truthful and reliable witness, particularly when he has confirmed that the persons quarrelling on the spot were not identifiable. P.W.1 has stated that he and P.W.7 left the place out of fear one after another. Assuming that P.W.1 saw the assault on the deceased by the appellants from close quarters even after P.W.7 left, the question is whether he is a reliable witness. Even though, P.W.1 witnessed the assault, he did not disclose the same to any body for three days. The deceased having died of assault was discovered lying in the field on the following morning and his dead body was brought to the village and buried since the villagers including the family members of the deceased thought that he might have sustained injuries due to fall on the rough and stony surface of the field in question. The deceased having died of assault was discovered lying in the field on the following morning and his dead body was brought to the village and buried since the villagers including the family members of the deceased thought that he might have sustained injuries due to fall on the rough and stony surface of the field in question. P.W.1 neither disclosed the incident to P.W.2 or any other family members of the deceased or P.W.7 or even to his own family members. The only explanation given by him for such non-disclosure is the fear of accused persons, although, he is an agnatic relation of the deceased and originally belongs to village-Malipada, at the time of occurrence he was staying at Talibahal Dhipa, which is also known as Majhapada and situated only about half a kilometer away from Malipada as per his own evidence. It also transpires from his evidence in cross-examination that while coming from the spot of occurrence to village-Majhapada, one has to pass through village-Malipada near by the house of the deceased. It is also admitted by him that while returning from the spot through village-Malipada, he did not tell any of the villagers of Malipada about the incident. The conduct of P.W.1 about non-disclosure of incident involving the assault of one of his agnatic relations for three days is very suspicious. While returning from the spot, if not to any outsider, he could have easily disclosed the incident to P.W.2 and his family members. Although P.W.1 denies his presence at the time of burial of the deceased, P.W.9, a disintered person, who is also a witness to inquest, states in his evidence in cross-examination that he along with many others and P.W.1 were present on the burial ground when the dead body of the deceased was buried. The burial having taken place on the following morning of the occurrence, if the evidence of P.W.9 is believed, it is surprising that at that time also P.W.1 did not make any disclosure about the occurrence to any person. The fatal blow to the reliability of P.W.1 comes from the evidence of none other than P.W.2, the son of the deceased, who stated that though P.W.1 disclosed about the incident to some villagers three days after the occurrence he had never made any disclosure before him. The fatal blow to the reliability of P.W.1 comes from the evidence of none other than P.W.2, the son of the deceased, who stated that though P.W.1 disclosed about the incident to some villagers three days after the occurrence he had never made any disclosure before him. According to P.W.2, the deceased left the house in the late afternoon on the date of occurrence with a gamuchaa and badi (lathi) to see his land at Mahadevpada where one of the sisters of the deceased resides and he having not returned in the night, P.W.2 thought that the deceased might have stayed in his sister’s house and therefore he went in search of him on the following morning when he himself discovered the dead body of his father lying on the field in question. He, thereafter, came back to the village and informed some villagers who also went to see the dead body. He has named some persons, such as Ashok, Karmu and Dhruba etc., who had gone to see the dead body lying on the field near the Nala. He has also stated that P.W.1-Baya Majhi had gone to that place. It is very very surprising that even after witnessing the assault, seeing the dead body and attending its burial, P.W.1 did not think it proper to disclose to any body for three days about the cause of death of the deceased or about the occurrence. This conduct makes his evidence highly suspicious and unreliable. 10.It is held by the apex Court in the case of Peddireddy Subbareddi and others v. State of Andhra Pradesh; AIR 1991 SC 1356 as follows: “...As we have pointed out earlier that P.W.1 is none other than the son-in-law of the deceased. After witnessing the occurrence he did not go to the village and inform any one of the villagers, but on the other hand, he went to his village which is said to be at the distance of four furlongs. He states that he informed only his mother-in-law (P.W.3). P.W.1 came with the present version only on the next morning. After witnessing the occurrence he did not go to the village and inform any one of the villagers, but on the other hand, he went to his village which is said to be at the distance of four furlongs. He states that he informed only his mother-in-law (P.W.3). P.W.1 came with the present version only on the next morning. The conduct of P.W.1 in not reporting to any of the villagers about the occurrence throws a considerable doubt on the verasity of his evidence which is incredible...” It is also held in the case of Harbans Lal v. State of Punjab; AIR 1996 SC 1186 : “....These two witnesses appear to us to be got up witnesses. They saw a gruesome murder being committed with their own eyes and yet for reasons best known to them, they did not raise any alarm but went their way and did not disclose about the occurrence to anyone, not only that evening but even till the third day after the occurrence. Their conduct was thus, most unnatural. This creates a serious doubt about their credit-worthiness....” In the instant case, seeing the aforesaid very unnatural and suspicious conduct of P.W.1, his evidence cannot be considered to be creditworthy. 11.M.O.I is the lathi, which is said to have been recovered from Nala near the spot in question on the basis of the discovery statement (Ext.7) given by appellant no.1-Jayamangal. M.O.I was seized under seizure list (Ext.6) at 5.00 P.M. on 28.07.1997. According to the I.O., at about 10.30 A.M. on that day he disintered the dead body in presence of the Executive Magistrate, at 2.45 P.M., he arrested the accused persons and thereafter accused-Jayamangal gave the discovery statement in pursuance of which M.O.I was recovered from the Nala. P.W.10, who is the son-in-law of the deceased and a witness to the recovery of weapon of offence, has stated in the cross-examination that the police had disintered the dead body subsequent to the seizure of M.O.I. This evidence is directly in conflict with the evidence of the I.O. There is also discrepancy in the evidence of P.Ws. 10 and 11 as to the place where appellant-Jayamangal made the disclosure statement. M.O.I, as per the evidence of P.W.12, who is the daughter-in-law of the deceased, belongs to the deceased himself, which the deceased had carried while leaving the house in the afternoon of the date of occurrence. 10 and 11 as to the place where appellant-Jayamangal made the disclosure statement. M.O.I, as per the evidence of P.W.12, who is the daughter-in-law of the deceased, belongs to the deceased himself, which the deceased had carried while leaving the house in the afternoon of the date of occurrence. As per the prosecution case, which is mainly based on the disclosure made by P.W.1, only one lathi was used in the assault of the deceased. If M.O.I., the weapon of offence, belonged to the deceased, it goes without saying that the appellants were unarmed at the time of occurrence. P.W.13, an independent witness, who had gone to see the dead body lying on the field near the Nala, has stated in cross-examination that the stick (M.O.I) was lying near the dead body of the deceased close to his body. There is no explanation by the prosecution as to how and when M.O.I, which was found by witnesses in the following morning lying near the dead body on the field, was concealed by appellant-Jayamangala inside the water of the Nala. Therefore, the recovery of the weapon of offence (M.O.I) on the basis of the statement of appellant-Jayamangala is wholly suspicious and we are unable to place implicit reliance on the same. 12.There being no other incriminating evidence against the appellants, we are of the view that they are entitled to benefit of doubt. Accordingly, we allow the appeal, set aside the impugned judgment of conviction and sentence of the trial Court and acquit the appellants of the charge under Sections 302/34 of the I.P.C. They be set at liberty forthwith unless their custody is required in connection with any other case. PRADIP MOHANTY, J.I agree. Appeal allowed.