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2017 DIGILAW 1131 (ORI)

Chandra Majhi v. State of Orissa

2017-10-11

B.K.NAYAK, D.P.CHOUDHURY

body2017
JUDGMENT : Dr. D.P. Choudhury, J. 1. This Criminal Appeal is filed against the judgment of conviction and sentence passed by the learned Additional Sessions Judge, Nuapada in S.C. No.58/17 of 2001 whereby the appellants were convicted under section 302/34 I.P.C. and sentenced to life imprisonment. 2. The conspectus of the case of the prosecution is that the deceased Bhagat Majhi has purchased a piece of land from Durbal Majhi and Ganesh Majhi for a consideration of Rs.10,000/- in the year 1998, but no document could be registered as appellant No.1-Chandra Majhi refused to give his signature in the document. The land in question purportedly stands recoded jointly in favour of Durbal Majhi, Ganesh Majhi and appellant No.1-Chandra Majhi. In spite of request of the deceased, appellant Chandra Majhi refused to give consent and to sign the document. 3. It is alleged inter-alia that on 1.11.2000 at 9 AM the deceased and his elder brother Santosh Majhi had visited the house of appellant Chandra Majhi and requested him to sign the document to facilitate registration of the document. But appellant Chandra Majhi and his son appellant No.2-Takat Majhi quarrelled with the deceased and following the quarrel, appellant Chandra Majhi assaulted the deceased by an axe on the head and other parts of the deceased causing profuse bleeding injuries and appellant Takat Majhi also assaulted with a lathi on different parts of the body of the deceased. At the spot the deceased succumbed to the injuries. The wife of the deceased raised hullah and the witnesses rushed to the spot. Thereafter the wife of the deceased lodged F.I.R. in the Police Station. During investigation post-mortem examination of the deceased was conducted and the witnesses were examined under section 161 Cr.P.C. The police seized incriminating materials from the spot. In course of investigation, appellant Chandra Majhi made statement under section 27 of the Evidence Act and led the police to his house and gave recovery of the axe, weapon of offence (M.O.I) and the said M.O.I was also seized. The wearing apparels of the appellants were also seized by the police during course of investigation. One lathi which is also the weapon of offence was also seized vide M.O.II. The seized properties were sent for chemical examination and the report was also received from the Chemical examiner. After completion of investigation charge sheet was submitted. 4. The wearing apparels of the appellants were also seized by the police during course of investigation. One lathi which is also the weapon of offence was also seized vide M.O.II. The seized properties were sent for chemical examination and the report was also received from the Chemical examiner. After completion of investigation charge sheet was submitted. 4. The plea of the appellants was complete denial of the occurrence. 5. The prosecution examined as many as 16 witnesses, whereas the defence examined one witness. After going through the materials on record, the learned trial court convicted the appellants under section 302 I.P.C. and sentenced them to imprisonment of life for the ends of justice. Against the said order of punishment, the present appeal has been filed on various grounds. SUBMISSIONS 6. Learned counsel for the appellants submitted that the appellants have been convicted by the learned trial court only basing on the evidence of P.Ws.1 and 8. He further submitted that P.Ws. 1 and 8 are none other than the wife and brother of the deceased. Since they are relatives of the deceased and interested for prosecution, their evidence should not be accepted in toto. According to him, except their evidence there is no eye witness to the occurrence. Besides, there are discrepancies in the evidence of the witnesses to find out the actual role played by the appellants. He also pointed out that leading to discovery of the weapon of offence by appellant-Chandra Majhi is also manipulated by the prosecution. Actually he did not lead the police to give discovery of the weapon of offence. The blood stain found on the weapon of offence (M.O.I) was of human origin of “O” group, but the seized wearing apparel of the appellants do not show any human blood stain. 7. Learned counsel for the appellants further submitted that the post-mortem examination report is silent about any injury on the hand and leg of the deceased, whereas the ocular witnesses stated about the assault by appellant Takat Majhi on the leg and hand of the deceased. P.W.8 being hostile to prosecution does not support P.W.1, who is the wife of the deceased. 8. Learned counsel for the appellants submitted that the learned trial court has erred in law by not appreciating the evidence of other witnesses with proper perspective. P.W.8 being hostile to prosecution does not support P.W.1, who is the wife of the deceased. 8. Learned counsel for the appellants submitted that the learned trial court has erred in law by not appreciating the evidence of other witnesses with proper perspective. According to him, learned trial court should have appreciated the post-mortem examination report which does not disclose that the death of the deceased was homicidal in nature. Learned trial court has committed error by relying upon the discovery of the weapon of offence by appellant Chandra Majhi although there is no support by P.W.5 to such recovery. Learned trial court could have come to a conclusion that in the dark night at the village area, P.W.1 was hardly able to witness the occurrence, particularly when the occurrence allegedly took place in the house of the deceased. Learned trial court while acquitting the appellants of the offence under section 307 I.P.C., should have acquitted the appellants of the offence under section 302 I.P.C. on the selfsame nature of evidence adduced by prosecution. 9. Learned counsel for the appellants also contended that the learned trial court has committed error by sentencing the appellants to imprisonment for life having no material to support same and also failed to appreciate that there was previous enmity between the parties which is one of the factors to disbelieve the case of the prosecution. However, in toto he submits that the judgment and sentence suffers from legal infirmity, based on conjectures and not in accordance with the principles of law, for which same is required to be set aside. 10. Mr. B.P. Tripathy, learned Additional Government Advocate submitted that the learned trial court has rightly appreciated the evidence of P.Ws.1 and 8 because there is no bar in law to rely on the evidence of relative witnesses. On the other hand their evidence requires close scrutiny. Learned trial court has rightly appreciated their evidence keeping in view the principles of law in mind. According to him, the post-mortem examination report is clear about the nature of death and the evidence of eye witnesses is also clearly corroborating the injuries sustained by the deceased. Learned trial court has discussed in detail the evidence of each witness and come to the conclusion that the appellants are responsible for causing death of the deceased. 11. Mr. According to him, the post-mortem examination report is clear about the nature of death and the evidence of eye witnesses is also clearly corroborating the injuries sustained by the deceased. Learned trial court has discussed in detail the evidence of each witness and come to the conclusion that the appellants are responsible for causing death of the deceased. 11. Mr. Tripathy, learned Additional Government Advocate further submitted that motive takes back seat when there are eye witnesses to the occurrence. Land dispute between the parties may be a great motive, but where there are eye witnesses, the motive is hardly to be considered. According to him, there is enough evidence against appellant Chandra Majhi and sharing of his intention to kill the deceased by appellant Takat Majhi is well proved by the prosecution. Hence he supports the judgment of conviction and sentence passed by the learned trial court. DISCUSSIONS 12. Before going to the facts of the case, let us discuss about the law prevalent for appreciation of evidence. In the case of Lallu Manjhi & Anr vs State Of Jharkhand, reported in A.I.R. 2003 SC 854, where Their Lordships have observed in paragraph-10 as follows:- “10. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. {See -Vadivelu Thevan etc. v. State of Madras, AIR 1957 SC 614 }.” 13. With due respect to the said decision, it is clear that the oral testimony of the single witness can be wholly reliable or wholly unreliable or partly reliable and partly unreliable. There is no bar in law to appreciate the evidence of those witnesses to come to the conclusion and courts are to be careful to discuss such evidence on record without discarding the same outright. 14. There is no bar in law to appreciate the evidence of those witnesses to come to the conclusion and courts are to be careful to discuss such evidence on record without discarding the same outright. 14. It is reported in the case of Hari Obula Reddy and others –V-The State of Andhra Pradesh; (1981) 3 SCC 675 , where Their Lordships observed in paragraph-13 as follow: “...... an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon........” 15. The aforesaid view has been also relied upon by Their Lordships reported in the case of Jodhan –V- State of Madjya Pradesh; (2015) 11 SCC 52 and at paragraph-26, it is observed as follows: “The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in regard to material particulars.....” 16. With due respect to the aforesaid decision, it appears that merely because the witness is related to the deceased, his or her evidence cannot be discarded in toto as he or she would speak truth for the reason that their relative has succumbed to the injuries. After sustained cross-examination their evidence is to be accepted or rejected. Keeping in mind of this principle the evidence on record are being scanned. 17. On perusal of the impugned judgment, it appears that the learned trial court has mainly relied on the evidence of P.Ws.1 and 8 as they are the only eye witnesses to the occurrence. Also the evidence of P.Ws.4 and 5 have been taken into consideration as appellant Chandra Majhi has led the police to give discovery of the weapon of offence. Also the evidence of P.Ws.4 and 5 have been taken into consideration as appellant Chandra Majhi has led the police to give discovery of the weapon of offence. Learned trial court has relied upon the confessional statement of appellant Chandra Majhi made under section 164 Cr.P.C. before the Magistrate vide Ext.21. It has also relied upon the report of the chemical examiner to lend support to the case of the prosecution. While recording satisfaction about trustworthiness of the evidence of the prosecution witnesses, he not only found guilty appellant Chandra Majhi, but also found guilty appellant Takat Majhi who in the opinion of the learned trial court had shared the intention to cause death of the deceased. 18. It appears from the evidence on record that the prosecution had led the direct and circumstantial evidences. Even if it is a Criminal Appeal, the Court has to find out whether the conclusion arrived at by the learned trial court is to be confirmed or varied. 19. On perusal of the F.I.R., it appears that on 13.11.2000 the deceased had gone to the residence of the appellants to request them to give consent for execution of the sale deed in respect of the land in question which has been purchased by the deceased on payment of Rs.10,000/- from the cousins of the appellant Chandra Majhi and during altercation the appellants assaulted the deceased causing bleeding injuries on his head and other parts of the body of the deceased who succumbed to injuries. Seeing this, the informant, who is the wife of the deceased called the villagers. Of course the F.I.R. does not disclose whether the informant accompanied the deceased to the house of the appellants, but it is settled in law that the F.I.R. is not the encyclopedia and it is not substantive evidence, but a document to commence investigation. 20. P.W.1, who is the informant and wife of the deceased and she testified about purchase of the land in question by her husband from one Durbal Majhi and Ganesh Majhi for a consideration of Rs.10,000/- and the deceased was in possession of the same, but there was no registration of the document of sale deed. 20. P.W.1, who is the informant and wife of the deceased and she testified about purchase of the land in question by her husband from one Durbal Majhi and Ganesh Majhi for a consideration of Rs.10,000/- and the deceased was in possession of the same, but there was no registration of the document of sale deed. It is clear from her evidence that due to recording of the case land jointly with the appellants, the deceased had requested several times to put their signature in the registered document, thereby giving consent for sale of the case land to the deceased. This part of evidence is never shaken during cross-examination. 21. P.W.1 further stated that on the date of occurrence her husband and P.W.8-Santosh Majhi went to the house of the appellants in the evening hour and requested accused-appellant Chandra Majhi to give his signature on the registered sale deed. It was supposed to be executed by the vendors of the case land, but appellant Chandra Majhi refused to give signature whereas the deceased insisted to get it done as he has paid full consideration money. Both the appellants drove the deceased and P.W.8 out of their house and thereafter appellant Chandra Majhi got annoyed and assaulted her husband by a Tabal (axe) on the fore head resulting in severe bleeding injuries and her husband fell down on the ground. Appellant Chandra Majhi gave successive blows by the Tabal on the back portion of the neck of the deceased causing multiple bleeding injuries. Appellant Takat Majhi assaulted her husband by means of a lathi on different parts of his body. Seeing this, she shouted for help and the witnesses came to the spot. When the witnesses objected, appellant Chanra Majhi did not listen and her husband died at the spot. She has been grilled during her cross-examination. In paragraph-5 of the cross-examination she stated to have seen the occurrence from the road at a distance of 15 to 20’ from the place of occurrence. She specifically stated that appellant Takat Majhi assaulted her husband by M.O.II (Lathi) to both her legs and hands. During cross-examination denying the suggestion of the defence she stated to have stated before the police that her husband insisted the appellant Chandra Majhi to give signature on the registered sale deed and even if he has paid full consideration the registration could not be done. 22. During cross-examination denying the suggestion of the defence she stated to have stated before the police that her husband insisted the appellant Chandra Majhi to give signature on the registered sale deed and even if he has paid full consideration the registration could not be done. 22. P.W.16 denied such exact statement of P.W.1 before him. It is well settled in law that every omission does not amount to contradiction and material omission merits consideration. So, the omission of specific statement of P.W.1 while being examined by the police is not a material one as same thing has been already stated by P.W.1 in the F.I.R. and only statement about giving no consent by appellant Chandra Majhi to the sale is omitted. So, this omission cannot be taken as material omission to take it as material contradiction of P.W.1. Rather, during cross-examination it has been elicited that P.W.1 saw the occurrence from a distance only 15 to 20’. 23. The evidence of P.W.9, the doctor who is stated to have conducted the autopsy over the dead body of the deceased, found the following injuries:- (1) One abrasion of size 2 C.M. X 0.5 C.M. on the right eye lashes. (2) One lacerated wound of size 2 C.M. X 0.5 C.M. X 0.5 C.M. on the middle of occipital region. (3) One abrasion of size 2.5 C.M. X 1 C.M. present below the left scapula. 24. The doctor’s testimony shows that the death was homicidal in nature. The doctor’s evidence does not disclose about any injury on hand and leg of the deceased. The evidence of P.W.1 about the assault by appellant Takat Majhi on the leg and hand does not find corroboration from the doctor’s evidence. Even if the evidence of P.W.1 is discrepant to this extent, there is no reason to disbelieve her statement so far as assault by appellant Chandra Majhi to the deceased causing such injuries as found by the doctor (P.W.9). Thus, evidence of P.W.1, who is the wife of the deceased after proper scrutiny is found to be cogent, clear and consistent to prove the assault by appellant Chandra Majhi causing death of the deceased Bhagat Majhi. 25. P.W.8-Santosh Majhi, who accompanied the deceased to the house of the appellants, is none other than a relative of the deceased. In his evidence he denied to have seen the occurrence and expressed ignorance of the occurrence. 25. P.W.8-Santosh Majhi, who accompanied the deceased to the house of the appellants, is none other than a relative of the deceased. In his evidence he denied to have seen the occurrence and expressed ignorance of the occurrence. He has been cross-examined by the Public Prosecutor. During cross-examination by the prosecution he denied to have stated before the police that he has accompanied the deceased to the house of the appellants and during the quarrel appellant Chandra Majhi assaulted by axe to the head of the deceased as a result of which he fell down on the ground and also gave successive blows to the head of the deceased and ran away from the spot. P.W.16 who is the I.O. admitted about such statement of P.W.8 before him. So, P.W.8 is found to have contradicted his earlier statement. Not only this, but also P.W.8 was suggested by the prosecution that he was also injured during the occurrence and had been examined by the doctor. On the other hand, P.W.9 who is the doctor stated to have examined P.W.8. It appears that he not only has suppressed to state about the occurrence, but also he disowned his own injuries. Rather, it is revealed from his evidence that appellant Chandra Majhi is the brother of his father and deceased Bhagat Majhi is the son of his uncle. Since he is a relative of both deceased and the appellants, he has avoided to speak truth without corroborating the prosecution. On the other hand, his evidence is of no consequence to the case of the prosecution. 26. The evidence of P.Ws.2, 3, 4 and 10 shows that hearing hullah of P.W.1, they came to the spot and found that the deceased was lying with bleeding injuries on his person. Their evidence also reveal that appellant Chandra Majhi was having a Tabal (axe) with him. So, the evidence of the post-occurrence witnesses amply corroborate the evidence of P.W.1 as to inflicting injuries on the person of the deceased. 27. The evidence of P.Ws.4 and 5 clearly reveal that in their presence appellant Chandra Majhi admitted to have killed the deceased and led the police to his house and gave recovery of the axe. Both of them identified M.O.I, the weapon of offence seized from the possession of appellant Chandra Majhi. There is nothing revealed from the cross-examination to discard their evidence. Both of them identified M.O.I, the weapon of offence seized from the possession of appellant Chandra Majhi. There is nothing revealed from the cross-examination to discard their evidence. Thus, recovery of the weapon of offence at the instance of appellant Chandra Majhi corroborates the evidence of P.W.1 as to the assault to the deceased by appellant Chandra Majhi. 28. P.W.9 who is the doctor stated to have examined the M.O.I and opined vide Ext.6 that the injuries caused to the deceased are possible by M.O.I. Thus, the evidence of the doctor also lends support to the case of the prosecution as to use of M.O.I by appellant Chandra Majhi to cause injuries on the person of the deceased. 29. At the same time the evidence of the I.O. does not disclose about seizure of the lathi (M.O.II), whereas his evidence is clear about recovery of M.O.I by him from the house of appellant Chandra Majhi being led by him. So, the evidence of P.W.9 about examination of M.O.II is of no consequence, but his evidence is material about use of M.O.I as weapon of offence to cause death of the deceased by appellant Chandra Majhi. 30. Evidence of P.W.16 shows that he has seized the Dhoti and banyan of appellant Chandra Majhi as M.Os.III and IV. He has seized the Lungi and napkin of appellant Takat Majhi vide M.Os.V and VI. He stated about seizure of Dhoti vide M.O.VII. P.W.15 has sent all the seized property including the weapon of offence for chemical examination. P.W.15 proved the report of the chemical examiner vide Ext.17 which shows that the seized axe contained human blood of “O” group and the Dhoti and Chadi have got also human blood stain of “O” group. Needless to say that the Dhoti and Chadi belonged to the deceased. When the blood group “O” is found from the axe (M.O.I) seized on being recovered from the possession of appellant Chandra Majhi, such chemical examination report sufficiently corroborated the prosecution evidence to show that it is the appellant Chandra Majhi who used the M.O.I to cause death of the deceased. In addition to the above material, the confessional statement of the appellant Chandra Majhi vide Ext.21 recorded by learned Judicial Magistrate observing all formalities is another link to prove culpability of appellant Chandra Majhi. 31. In addition to the above material, the confessional statement of the appellant Chandra Majhi vide Ext.21 recorded by learned Judicial Magistrate observing all formalities is another link to prove culpability of appellant Chandra Majhi. 31. From the aforesaid discussion, we are of the opinion that there are well nitty-gritty evidence coupled with the circumstantial evidence which unerringly point out the legal culpability of appellant Chandra Majhi. The complicity of appellant Takat Majhi is not well proved by the prosecution as per the discussions made above. In view of such fact and circumstances and evidence as discussed, we are of the view that the learned trial court has correctly found appellant Chandra Majhi guilty, but has misdirected itself in finding appellant Takat Majhi guilty. Therefore, we confirm the judgment of conviction and sentence passed against appellant Chandra Majhi under section 302 I.P.C., whereas we set aside the conviction and sentence passed against appellant Takat Majhi under section 302/34, I.P.C. Appellant Takat Majhi is thus acquitted of said charge and he be set at liberty forthwith if not detained in any other case. Bail bond of appellant-Takat Majhi be cancelled. 32. In the result the appeal is partly allowed. The lower court records be sent back immediately.