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2017 DIGILAW 1233 (ORI)

Lambodar Munda v. State of Orissa

2017-11-01

D.P.CHOUDHURY, S.PUJAHARI

body2017
JUDGMENT : DR. D.P. CHOUDHURY, J. 1. The captioned appeal is assailed against the judgment of conviction and sentence for life for the offence punishable under sections 302/201/34 I.P.C. passed by the Additional Sessions (F.T.), Champua in S.T. Case No.62/43 of 2004/2003. 2. The adumbrated facts leading to the case of the prosecution is that on 14.6.2002 at about 8 am the informant and her husband Dilip Karua went to the house of one Paradesi Oram to purchase liquor in order to celebrate Raja festival. After purchasing liquor they went to the house of one Gedua Munda. The present appellant was there already in the house of Gedua Munda. Then the informant, her husband and Gedua Munda consumed the liquor. 3. When the informant asked her husband Dilip to leave the place for return to home, appellant Lambodar Munda and Gedua Munda did not allow Dilip to leave the place and there was altercation by Dilip with Lambodar and Gedua. Thereafter appellant Lambodar and co-accused Gedua assaulted the deceased Dilip by a Sargi (Sal lathi) and with fist blows and kicks. When the informant intervened appellant Lambodar, he also assaulted her. Appellant Lambodar also threatened the informant to leave the place. Then out of fear, the informant left the place with her baby. In that night Dilip did not return to home. On the next day morning the informant went to the house of Gedua Munda and asked him about the whereabouts of her husband, but appellant Lambodar and Gedua informed that they left deceased Dilip near the bank of the river. After thorough search on 16.6.2002 at 6 am they found the dead body of her husband floating in the water of river Sona. So, she lodged the F.I.R. 4. During investigation, the police made inquest over the dead body of deceased Dilip and sent the dead body for post-mortem examination. The police examined the witnesses. The police also seized one cotton banyan, a pair of shoes and a pair of socks of the deceased. Also the police seized the duty attendance card of Dilip. On the same day the police searched the house of co-accused Gedua Munda and seized one white colour pant stained with blood from his house as co-accused Gedua was absconding. The police seized the wearing apparel of the deceased after the post-mortem examination. 5. Also the police seized the duty attendance card of Dilip. On the same day the police searched the house of co-accused Gedua Munda and seized one white colour pant stained with blood from his house as co-accused Gedua was absconding. The police seized the wearing apparel of the deceased after the post-mortem examination. 5. During further investigation, the police arrested the appellant who confessed about the crime before the police. The police also obtained the opinion of the doctor to the effect that injuries on the deceased are possible by Sal lathi. When the police could not arrest co-accused Gedua, finally after completion of investigation charge sheet was submitted against the appellant and co-accused Gedua showing the latter as absconder. 6. The prosecution adduced seven witnesses, out of which P.W.7 is the doctor, P.W.6 is the Investigating Officer, P.W.1 is the occurrence witness, P.Ws.2 and 4 are inquest witnesses and P.W.3 is the post-occurrence witness. The defence examined one. 7. The learned trial court after analyzing the evidence of the prosecution witnesses found the appellant guilty under sections 302/201/34 I.P.C. and convicted him thereunder. The learned trial court sentenced the appellant under section 302 I.P.C. to undergo imprisonment for life, but did not pass separate sentence under section 201 I.P.C. SUBMISSIONS: 8. Learned counsel for the appellant submitted that there is no eye witness to the occurrence of murder of the deceased although the witnesses stated to have seen the quarrel between the parties and assault on the person of the deceased at the instance of both appellant and co-accused Gedua. He further submitted that the evidence of P.W.5 who happens to be the wife of the deceased should not be relied on as she is related to the deceased. Moreover, he submitted that there is contradiction between the evidence of the doctor (P.W.7) and the occurrence witnesses about the place and number of injuries sustained by the deceased. According to him, there are lot of contradictions between the evidence of P.W.5. The chemical examination report also is not specific to show the involvement of the appellant. When there is no chain of circumstances to prove the guilt of the accused, the learned trial court has erred in law by convicting the appellant under sections 302/201/34 I.P.C. 9. According to him, there are lot of contradictions between the evidence of P.W.5. The chemical examination report also is not specific to show the involvement of the appellant. When there is no chain of circumstances to prove the guilt of the accused, the learned trial court has erred in law by convicting the appellant under sections 302/201/34 I.P.C. 9. Learned amicus curiae for the appellant submitted that the learned trial court has failed to appreciate the evidence on record properly and finally landed in a wrong conclusion by convicting and sentencing the appellant Lambodar. The learned trial court has also erred in law by not considering the mitigating circumstance while sentencing the appellant. So, he challenged the finding of the learned trial court and sentence awarded. In short, he submitted to acquit the appellant Lambodar while allowing the appeal. 10. Learned Additional Government Advocate submitted that there is clear evidence of P.W.1 who is an eye witness to the occurrence about the assault and disappearance of the dead body. He further submitted that the evidence of P.W.5 cannot be discarded although she is the wife of the appellant because it is settled law that the evidence of relative cannot be thrown out, but the same should be scrutinized with caution. He further submitted that there is no any contradiction between the evidence of the doctor and the occurrence witness as to place of injury on the person of the deceased. Apart from this, he submitted that in case of murder, the minor discrepancies in the evidence occurring hither and thither should not be counted to discard the well corroborated case of the prosecution. So, he supported the judgment of conviction and sentence passed by the learned trial court. DISCUSSION: 11. The evidence of P.W.6 shows that after the F.I.R. vide Ext.5 is lodged he made inquest over the dead body. The evidence of P.Ws.2 and 4 shows that in their presence, the police made the inquest over the dead body and the same is proved vide Ext.1. It is further revealed from the evidence of P.W.6 that he has sent the dead body of the deceased for post-mortem examination. 12. It is revealed from the evidence of P.W.7 that he has not done the autopsy of the deceased, but the same was done by one Dr. Pulak Kumar Pati, who is dead. It is further revealed from the evidence of P.W.6 that he has sent the dead body of the deceased for post-mortem examination. 12. It is revealed from the evidence of P.W.7 that he has not done the autopsy of the deceased, but the same was done by one Dr. Pulak Kumar Pati, who is dead. There is no evidence led by the prosecution to show that he is acquainted with the signature and handwriting of Dr. Pati to satisfy the necessary provisions of the Evidence Act. But as it appears from the post-mortem examination report and evidence of P.W.7 that he is also the Assistant Surgeon of Sub-Divisional Hospital, Champua. Even if he has not specifically stated that he is acquainted with the signature and hand writing of Dr. Pati, it cannot be stated that Dr. Pati was not his colleague as both were working in one hospital. Also in the cross-examination nothing was challenged by the defence as to examination of P.W.7 to prove the post-mortem examination report. In absence of challenging the examination of the doctor who deposed about the post-mortem examination report, the fact of post-mortem of the deceased Dilip cannot be discarded. Of course, the post-mortem examination report has not been admitted in the evidence by P.W.7, may be for the reason that P.W.7 has not vouched about his acquaintance with the hand writing of Dr. Pati. However, the contents of the post-mortem examination report have been allowed by the trial court to be proved through P.W.7. The question arises whether in such situation can the court read evidence. 13. It is revealed from the evidence of P.W.7 that the autopsy of the deceased was conducted by Dr. Pulak Kumar Pati, who is dead. According to him, Dr. Pati has prepared the post-mortem examination report. When the doctor conducting the post-mortem examination of the deceased is not examined, it has to be seen whether the same can be admitted in evidence. It is reported in 2002 AIR SCW 219; State of Haryana v. Ram Singh where Their Lordships observed as follows:- “While it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. It is reported in 2002 AIR SCW 219; State of Haryana v. Ram Singh where Their Lordships observed as follows:- “While it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefor and it would then be the prosecutor’s duty and obligations to have the corroborative evidence available on record from the other prosecution witnesses.” 14. With due regard to the said decision, it is clear that post-mortem examination report itself is not a substantive piece of evidence, but the evidence of the doctor conducting post-mortem examination is a substantive piece of evidence. At the same time, it is reported in A.I.R. 1966 Orissa 21 (Hadi Kirsani v. State), where Their Lordships observed at paragraph 7 as follows:- “7. The position of law may, therefore be summarised thus if the doctor is available for examination in court, the injury report or the postmortem report given by him is not substantive evidence and is inadmissible unless he is examined. It can be used for corroboration or refreshing memory or for contradiction of his evidence in court. If, however, the doctor is dead or is not available for examination in court under the circumstances mentioned in Section 32, the injury report or the postmortem report is admissible and relevant. What weight it would carry with a court of fact is altogether a different question. Its probative value would depend on the facts and circumstances of each case.” 15. With due regard to the aforesaid decision it is clear that the post-mortem examination is admissible, if it is found that the doctor who conducted the post-mortem examination is dead or not available for his examination in court. In the instant case since Dr. Pati is dead, the mortem examination report prepared by him is admissible. 16. On perusal of the lower court records, it appears that on 4.1.2005 the defence admitted the post mortem examination report to accept same in evidence and accordingly, the post-mortem examination report was exhibited vide Ext.14 on admission. The provision under section 294 Cr.P.C. and read for admitting the post-mortem examination report on admission. 16. On perusal of the lower court records, it appears that on 4.1.2005 the defence admitted the post mortem examination report to accept same in evidence and accordingly, the post-mortem examination report was exhibited vide Ext.14 on admission. The provision under section 294 Cr.P.C. and read for admitting the post-mortem examination report on admission. It is reported in 2003 Cr.L.J. 1031 (Boraiah alias Shekar v. State), where the Full Bench of Karnatak High Court at paragraph-11 was pleased to observe as follows:- “ …….. The very object of Section 294 of the Cr. P.C. would be defeated if the signature and the correctness of the contents of the PM report are still required to be pro ved by the doctor concerned even if its genuineness is not disputed by the accused. Section 294, Cr. P.C. is clear and unambiguous and it leaves no doubt that when once the genuineness of the document is not disputed, it could be read in evidence. It is only when the genuineness of the PM report filed by the prosecution is not disputed by the accused that Sub-section (3) of Section 294 of Cr. P.C. will come into play and the PM report may be read as substantive evidence and the signature and the correctness of its contents need not be proved by the doctor concerned …………” 17. With due respect to the aforesaid decision it is found that the post-mortem examination admitted by the defence under sub-section (3) of section 294 Cr.P.C. is admissible also. 18. Thus, relying upon the aforesaid decision, of the Hon’ble Apex Court, High Court of Karnataka and of this Court, in the instant case no doubt the post-mortem examination report is admissible and accordingly the trial court has rightly marked it as Ext.14. 19. It is revealed from the evidence of P.W.7 read with the post-mortem examination report that the deceased has got the following external injuries:- “(1) A strong stout edematous body limbs by the side of the body rigormatics present. (2) Lacerated wound on the both side of the chest size 2” x ½” into bone depth. (3) A large hematoma size 3” x 2” on frontal elbow of the brain.” 20. The cause of death was due to secondary pressure to the brain due to large hematoma and such injuries are possible by assault with lathi. (2) Lacerated wound on the both side of the chest size 2” x ½” into bone depth. (3) A large hematoma size 3” x 2” on frontal elbow of the brain.” 20. The cause of death was due to secondary pressure to the brain due to large hematoma and such injuries are possible by assault with lathi. But in the cross-examination he opined that by virtue of fall on a stony surface the injuries are possible except odema of the body. At the same time he stated in the cross-examination that if somebody drowned for a period of two to three days, then general odema is possible. But while he was asked by the court about the consequence of injury No.3, he testified that injury No.3 is grievous in nature and the same is sufficient for causing death. On the whole it is found that even if he has not conducted the post-mortem examination, but as a doctor there is no bar for the prosecution to elicit opinion on the injuries. Of course such opinion may not be conclusive, but can be an opinion lending assurance to the case of the prosecution. The post mortem report as stated above, along with the evidence of inquest evidence and then same being coupled with the evidence of P.W.7, the homicidal death of the deceased Dilip cannot be ruled out. 21. It is reported in A.I.R. 2003 SC 854; Lallu Manjhi and another v. State of Jharkhand where Their Lordships observed as follows in paragraph-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 Thevar etc. v. State of Madras, AIR 1957 SC 614 ).” 22. 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 Thevar etc. v. State of Madras, AIR 1957 SC 614 ).” 22. With due regard to the aforesaid decision it is quite clear that the conviction can lie basing on the evidence of single witness. The oral testimony of a witness can be wholly reliable or wholly unreliable or partly reliable or partly unreliable. 23. It is also reported in A.I.R. 2009 SC 2263; Joginder Singh v. State of Punjab, where Their Lordships observed at paragraph-9 as follows:- “9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: "We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -'Rameshwar v. State of Rajasthan' ( AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel." 24. Keeping in mind the above principles let the evidence on record be analyzed to find out whether the learned trial court reached at the correct conclusion. 25. The evidence of P.W.1 revealed that on the occasion for celebration of Raja festival she and her husband Dilip after purchasing liquor went to the house of co-accused Gedua Munda where the present appellant was present. 25. The evidence of P.W.1 revealed that on the occasion for celebration of Raja festival she and her husband Dilip after purchasing liquor went to the house of co-accused Gedua Munda where the present appellant was present. According to her, they celebrated the party and after the party was over when she asked her husband to leave the place for their home, the present appellant and co-accused Gedua did not allow her husband to leave the place. Both the accused persons started assaulting her husband with fist blows and also assaulted by wooden stick (Sargi Badi). When she intervened, the present appellant abused her in obscene language and dealt her two blows. Since she was carrying her baby, she being afraid of returned to home. 26. It is further revealed from the evidence of P.W.1 that on the next morning while she was searching for her husband she found a pair of shoes, a pair of socks and shirt which her husband had put on in last night, lying on the way to the river side. Then she moved to the house of the present appellant who is the brother of co-accused Gedua and asked about her husband, but they expressed ignorance. At the same time, the present appellant handed over a hazira khata and money purse of her husband to her. Then she returned to her house and on the next day she found the dead body of her husband floating in the river Sona. She informed the police and the police reduced same into writing. 27. The above facts are alleged in the F.I.R. and also finds corroboration from the evidence of P.W.6 who stated to have reduced the oral report of P.W.1 into writing and read over and explained the contents of the same to the P.W.1 and after knowing the same to be true she put her L.T.I. No doubt P.W.6 has proved the F.I.R. vide Ext.5. On going through the F.I.R. vide Ext.5 it appears that it amply corroborates the statement of P.W.1. She has been cross-examined in detail by the defence. During cross-examination she admitted that she has not witnessed that accused persons have committed murder of her husband, but she had seen the assault by appellant and co-accused Gedua on the person of her husband by Sargi Badi. She has been cross-examined in detail by the defence. During cross-examination she admitted that she has not witnessed that accused persons have committed murder of her husband, but she had seen the assault by appellant and co-accused Gedua on the person of her husband by Sargi Badi. When the assault was witnessed by her, it is immaterial whether she witnessed the murder because the assault itself led to cause of death of the deceased in the facts and circumstances of the case. In cross-examination she was further asked about the date of occurrence and clearly she stated that on 14.6.2002 the occurrence took place and the dead body was found on 15.6.2002 and on 16.6.2002 she lodged the F.I.R. But on the other hand in the examination-in-chief she has stated two days after the occurrence she got the dead body of her husband and lodged the F.I.R. The F.I.R. contains such fact. Since she is a tribal woman and confirms about the date of occurrence and also date of lodging the F.I.R., the recovery of the dead body on 15th or 16th is not material contradiction to discard her testimony. Of course in cross-examination she made it clear that by the time the drinking party was over, her husband was severely intoxicated. Even if such statement elicited from the cross-examination, same does not affect her testimony as to assault by the present appellant and co-accused Gedua to the deceased. 28. It is further revealed from the evidence of P.W.1 that the police has seized the attendance register along with the money purse of her husband being handed over by the appellant on the next date of occurrence. She stated to have taken the same in zima and produced the same vide M.O.I. There is no any departure of her statement from the cross-examination. Such M.O.I is also found on record. As a whole the statement of P.W.1 could not be well shaken by the counsel for the appellant. Relying upon the decision of the Hon’ble Supreme Court the evidence of P.W.1 who is the wife of the deceased, after being scrutinized with caution is found to be wholly acceptable. As such, she has proved not only the occurrence, but also the circumstances as to the recovery of M.O.I of the deceased from the possession of the appellant on the next day of occurrence. 29. As such, she has proved not only the occurrence, but also the circumstances as to the recovery of M.O.I of the deceased from the possession of the appellant on the next day of occurrence. 29. It is revealed from the evidence of P.W.3 that prior to the occurrence deceased Dilip had purchased liquor from his shop and then went to the house of Gedua Munda. This evidence also amply lends corroboration to the evidence of P.W.5 that after the deceased and the informant purchased the liquor, had gone to the house of the appellant and Gedua Munda to celebrate the drinking party. 30. The evidence of P.Ws. 2 and 4 disclose that police has seized a pair of shoes and red colour banyan vide Ext.2. P.W.6 who is the I.O. stated to have seized those properties of the deceased from the informant. So, the wearing apparel of the deceased also lends corroboration to P.W.1. Not only this, but also the prosecution has produced the wearing apparel of the deceased vide M.Os. II to V. The evidence of P.W.6 shows that he has seized one Khurda napkin from the appellant suspected to have got blood stain therein. He produced the same property vide M.O.VI. P.W.6 also stated that he has seized a white full pant stained with mud from the house of co-accused Gedua and produced the same vide M.O.VII. P.W.6 stated to have sent those properties for chemical examination. 31. The chemical examination report is produced by the prosecution, but it has not been proved by formal evidence. Also there is no admission of such report by the defence. However, on perusal of the chemical examination report, the wearing apparel of the appellant having not being found stained with blood and the report having not proved the blood group of the appellant, the chemical examination report even if admitted in the evidence vide Ext.15 by the trial Court does not lend any support to the evidence led by the prosecution. 32. From the aforesaid discussion we are of the view that the evidence of post-occurrence witnesses coupled with the circumstantial evidence clearly make out culpability of the appellant in committing murder. 33. Now the question arises whether the appellant has committed culpable homicidal amounting to murder or not amounting to murder. To come to a conclusion it is necessary to revisit the facts and evidence on record. 33. Now the question arises whether the appellant has committed culpable homicidal amounting to murder or not amounting to murder. To come to a conclusion it is necessary to revisit the facts and evidence on record. On perusal of the materials on record, it appears that the medical evidence coupled with the evidence of P.W.1 clearly revealed that the fatal injuries on the person of the deceased led to the death have been caused by the overt act of the appellant and the co-accused Gedua. The doctor’s report also adds that such injuries are possible by the Sargi Badi, of course the prosecution has not produced the Sargi Badi. When there are sufficient materials to prove the occurrence and overt act of the appellant and the co-accused, non-production of the Material Object is not fatal to the prosecution. Apart from this there is clear circumstantial evidence to show that the present appellant and co-accused Gedua did not allow the deceased to go with his wife even on the insistence of the wife of the deceased. No doubt the deceased, appellant and co-accused have taken liquor in the party. But the circumstances as depicted by the evidence cannot allow to take any other lenient view, when they drove away the wife of the deceased. Not only this, but also another circumstance is that both the appellant and co-accused dragged the dead body of the deceased towards river side showing clear fact that the appellant and the co-accused have got intention to dispose of the dead body for disappearance of the evidence. Moreover, production of the I. Card and money purse of the deceased by P.W.1 on being same handed over by the appellant to P.W.1 after the occurrence is clinching circumstance against the appellant to prove his culpability. Learned counsel for the appellant submitted that the appellant and the co-accused being intoxicated did such occurrence without having any means rea and they being tribal people have no any intention to kill the deceased. If a person having taken liquor voluntarily commits offence cannot get any excuse, but a person after being administered with liquor, commits any overt act, the same may be viewed otherwise. If a person having taken liquor voluntarily commits offence cannot get any excuse, but a person after being administered with liquor, commits any overt act, the same may be viewed otherwise. However, in this case the appellant and the co-accused Gedua having intention and knowledge that the injuries caused to the deceased are in ordinary course to cause death and there being no exceptions to section 300 I.P.C. being proved from the evidence on record, the charge under section 302 I.P.C. stands. We are therefore, unable to persuade ourselves also to find out any material to convert the conviction under section 302 I.P.C. to section 304 I.P.C. Therefore, the submission of learned counsel for the appellant is indefensible. 34. In terms of the above discussion, we are of the view that the prosecution has well proved the ingredients of offence under sections 302/201 I.P.C. against the present appellant by virtue of cogent and trust worthy evidence. On the other hand, the prosecution has proved the offence under sections 302/201 I.P.C. against the appellant and we find that the learned trial court has rightly convicted the appellant thereunder. So, there is nothing to interfere with the conviction and sentence passed by the learned trial court against the appellant. In the result, the Jail Criminal Appeal stands dismissed.