Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 14 (ORI)

Kandra Munda v. State of Orissa

2016-01-06

RAGHUBIR DASH

body2016
JUDGMENT : Raghubir Dash, J. Being aggrieved, the Appellant has challenged the judgment dated 12.1.2012 passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court, Keonjhar in S.T. Case No.62/116 of 2011 convicting the Appellant for commission of the offence under Section 304 (Part-I), I.P.C. and sentencing him to undergo R.I. for 10 years with fine of Rs.1,000/-, in default, to undergo S.I. for one month. 2. On a written report submitted by a Grama Rakhi attached to Nayakote Police Station, P.S. Case No.49 of 2010 was registered under Section 302, I.P.C. In the report it was stated that on 30.11.2010 morning the Grama Rakhi received information that the Appellant killed his cousin Tanti Munda, by assaulting him with a stick (BADI). It is further stated that having received such an information the Grama Rakhi proceeded to the deceased’s village and on enquiry from deceased’s wife came to know that the Appellant assaulted her husband by giving blows on the head as a result of which her husband died on the spot. 3. After registration of the case the police took up investigation. In course of investigation witnesses were examined, inquest over the dead body was held, the dead body was sent for post-mortem, Appellant was arrested, weapon of offence was recovered at the instance of the Appellant, Appellant’s wearing apparels were seized, the seized weapon of offence and wearing apparels along with some other articles seized by the police were sent for chemical examination and on completion of investigation charge-sheet was submitted on 24.2.2011. The case was committed to the Court of Sessions on 6.5.2011. After commitment, charge was framed on 14.11.2011. 4. During the trial, 8 prosecution witnesses were examined. Defence declined to adduce any evidence. Out of the eight prosecution witnesses, P.W.1 is the informant; P.W.8 is deceased’s wife and the sole eye-witness to the alleged assault; P.W.5 is a post occurrence witness; P.W.6 is the doctor, who conducted post-mortem over the dead body; P.W.2 is an eyewitness to seizure of bloodstained earth and sample earth; P.Ws.3 and 4 are witnesses to the recovery of the weapon of offence and P.W.7 is the I.O. 5. That the deceased met with homicidal death is not in dispute. However, learned counsel for the Appellant submits that there is no reliable evidence to support the finding recorded by the learned Court below that the Appellant committed the murder. That the deceased met with homicidal death is not in dispute. However, learned counsel for the Appellant submits that there is no reliable evidence to support the finding recorded by the learned Court below that the Appellant committed the murder. It is submitted that when the sole eye-witness has stated in his cross-examination that she has not seen the occurrence, adding another statement that she was not present at the spot with further statement that relationship between her husband (the deceased) and the Appellant was cordial, the learned Court below ought not to have relied on her testimony. Learned counsel for the State, on the other hand, has argued in support of the findings recorded by the learned Court below. 6. P.W.8 in her direct evidence has stated that while she was sitting on her Verandah she heard a quarrel between the Appellant and her husband. She immediately rushed to the spot which is at a little distance from her Verandah and saw the Appellant giving repeated blows on her husband’s head by means of a BADI. She has stated that the Appellant dealt four blows on her husband. She has further stated that her husband collapsed on the spot. However, in her cross-examination she has stated that she was not present at the spot and that she had not seen the occurrence. Learned Court below has relied on her testimony. The Court below ignored the argument advanced by the learned defence counsel pointing out the aforestated damaging statements of the witness, merely by observing that during cross-examination the witness had denied a suggestion that she was not an eye-witness to the incident. The learned Court below has further proceeded to observe that even if the witness had not seen the incident her version that the accused fled away with the weapon of offence and her husband was found lying dead in a pool of blood could not be shaken in any manner and that no explanation was given by the accused as to how the deceased sustained fatal wounds. In addition to that the learned Court below has taken support from the testimony of P.W.5, who has turned hostile. 7. In addition to that the learned Court below has taken support from the testimony of P.W.5, who has turned hostile. 7. Coming to the reliability of P.W.8, who is the sole eye-witness, it is found from her deposition that though she narrated the incident as an eye-witness but in her cross-examination she has made some statements (already reflected in the previous paragraph) which create grave doubt over her status as an eye-witness. Such a doubt cannot be dispelled by her denial statement to a suggestion that she was not an eyewitness to the occurrence. P.W.8 claims that the Appellant had given 4 blows on her husband. This statement does not find corroboration from the medical evidence. The Doctor (P.W.6) has stated that there was a bruise on the right lower lateral abdomen and another bruise on frontal part of the head of the deceased. P.W.8 claims that repeated blows were given on deceased’s head but the doctor has noticed only one injury on the head. Under such circumstances, the presence of P.W.8 at the spot to witness the actual assault becomes highly doubtful. 8. P.W.8 would have got some corroboration from P.W.5 but she has turned hostile. P.W.5 has not admitted to have made statements before the police implicating the Appellant. Nothing could be elicited from her mouth to disbelieve what she has stated in the Court. She is a close relation of both the victim and the deceased. Therefore, it would not be correct to presume that she being a close relative of the Appellant has turned hostile. Learned Court below has accepted the statement of P.W.5 recorded under Section 161 Cr.P.C as substantive evidence relying on the decision in Bhagwan Dass v. State (NCT) of Delhi, reported in 2011 Criminal Law Journal 2903. In the said reported case the mother of the accused had stated before the police that her son had confessed before her to have killed the deceased, but when examined as a prosecution witness the accused’s mother turned hostile and denied to have stated before the police that her son had made such confessional statement. Their Lordships in Bhagwan Dass’ case observed that no doubt a statement to the police is ordinarily not admissible in evidence in view of Section 161(1) Cr.P.C., but as per the Proviso to Section 162(1) of the Code it can be used to contradict the testimony of a witness. Their Lordships in Bhagwan Dass’ case observed that no doubt a statement to the police is ordinarily not admissible in evidence in view of Section 161(1) Cr.P.C., but as per the Proviso to Section 162(1) of the Code it can be used to contradict the testimony of a witness. Thereafter, their Lordships expressed their opinion stating that her statement to the police was acceptable. Also learned counsel for the State places reliance on the aforestated observation of the Hon’ble Apex Court to support his contention that though P.W.5 has turned hostile her earlier statement recorded under Section 161 Cr.P.C. having been duly proved during the trial and she being a close relation of the Appellant, her statement before the police should be taken into consideration in order to get corroboration to the testimony of P.W.8. In a Judgment of a three Judge Bench of the Hon’ble Apex Court reported in AIR 1956 SC 181 (Baladin and others v. State of Uttar Pradesh) it is held that statements made by prosecution witnesses before the Investigating Police Officer are not substantive evidence. Therefore, the statement of P.W.5 recorded under Section 161 Cr.P.C. cannot be used as a piece of substantive evidence. In State of Rajasthan v. Teg Bahadur and others: (2004) 13 SCC 300 it has been held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In the present case in hand, P.W.5 while deposing in the Court has not made any statement in favour of the prosecution though he was subjected to examination under Section 154 Evidence Act. Nothing favourable to the prosecution could be elicited though several suggestions were put to her as to what he had stated before the police in course of the investigation, but she has denied to have made such statements. Therefore, no portion of her evidence can be said to be consistent with the case of the prosecution and, for that, no portion of her evidence can be utilized for providing support to the prosecution case. 9. Even otherwise also her statement recorded under Section 161 Cr.P.C. cannot be of any help to the prosecution when evidence of P.W.8 is of doubtful nature. 9. Even otherwise also her statement recorded under Section 161 Cr.P.C. cannot be of any help to the prosecution when evidence of P.W.8 is of doubtful nature. P.W.5 was cited as a witness to say that the deceased’s wife (P.W.8) came to her soon after the alleged incident and told her that the accused committed murder of her husband by giving lathi blows. P.W.5 is not claimed to be an eye witness. Had she not resiled from her earlier statement recorded under Section 161 Cr.P.C., her evidence could have been used as a piece of corroborative evidence. Since the testimony of P.W.8, the sole eye witness, is found not safe to rely on and when there is no other incriminating facts and circumstances appearing against the Appellant in the evidence adduced by the prosecution, the statement of P.W.5 recorded under Section 161 Cr.P.C., even if held to be acceptable in view of observation made in Bhagwan Dass’ case, the fate of the prosecution case would not improve. Therefore, prosecution cannot be said to have proved its case beyond all reasonable doubts. 10. P.Ws.3 and 4 are witnesses to recovery of one stick from Appellant’s house. Both of them have stated that while in police custody the Appellant confessed his guilt and gave recovery of one BADI. P.W.4 is not specific as to wherefrom the BADI was recovered but P.W.3 says that it was kept concealed in the room of Appellant’s house which was recovered at his instance. The I.O. has also stated about the recovery of the stick. But he does not say wherefrom it was recovered. The seizure list (Ext.3) reflects that the stick was recovered from the thatched roof of Appellant’s house wherefrom it was brought by the Appellant and handed over to the police. The recovery of one stick, which was kept on the roof of the Appellant’s house, does not give rise to any inference that the stick was used as a weapon of offence and that it was kept concealed by the accused. Therefore, recovery of the stick does not give any corroborative support to the prosecution. The stick was never produced before the Court. Mere recovery of the lathi, in the absence of any other legal evidence, does not strengthen the prosecution case in any manner. 11. Prosecution must establish connection between the fact discovered and the crime. Therefore, recovery of the stick does not give any corroborative support to the prosecution. The stick was never produced before the Court. Mere recovery of the lathi, in the absence of any other legal evidence, does not strengthen the prosecution case in any manner. 11. Prosecution must establish connection between the fact discovered and the crime. In this case there is total absence of evidence, direct or circumstantial to connect the recovered object with the crime. It is also difficult to accept the prosecution case that the recovery of the stick amounts to discovery of any fact. The stick was lying on the roof of the Appellant’s thatched house. It is not claimed that it was kept in a concealed manner. As already stated, the evidence on the place of recovery of the stick is inconsistent. One seizure witness says that it was kept concealed in the room of Appellant’s house. But the seizure list reflects that it was kept on the roof. In Geejaganda Somaiah v. State of Karnataka, reported in AIR 2007 S.C. 1355 , it is observed that the Court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act. Having regard to the nature of the prosecution evidence on the alleged recovery of the stick, it is found to be not helpful to the prosecution. 12. In the result, the findings of the learned court below are liable to be set aside. Since the prosecution has failed to establish its case beyond all reasonable doubt, the Appellant is entitled to get the benefit thereof. Accordingly, the appeal is allowed. The impugned order of conviction and sentence is set aside. The accused-Appellant is found not guilty of having committed any offence and he is acquitted of the charge. He be set at liberty at once. The seized material objects be disposed of in accordance with the order passed by the learned court below. The JCRLA is accordingly disposed of.