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2017 DIGILAW 1467 (ORI)

Sanatan Munda v. State of Orissa

2017-12-16

D.P.CHOUDHURY

body2017
JUDGMENT Dr. D.P. CHOUDHURY, J. - The appellant assails the judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge, Keonjhar in S.T. Case No.32/121 of 2014 in convicting him under Section 304Part-I of I.P.C. and sentencing him to undergo R.I. for ten years and to pay a fine of Rs.5,000/- in default thereof to undergo R.I. for one year. 2. The factual matrix leading to the case of the prosecution is that on 15.5.2014 at about 11 a.m. Sanatan Munda, his first wife Kuntala Munda, second wife Pramila Munda, son Rajesh Munda and minor daughter had been to Simamundi Nala to rear fish. There Sanatan Munda told Kuntala Munda to make a ridge and to drain water for rearing fish. Kuntala Munda refused to do so and quarrelled with Sanatan Munda. Being enraged, Sanatan Munda dealt blows by the blunt side of a spade on the head of Kuntala Munda causing profuse bleeding injuries. Kuntala Munda succumbed to injuries.Thereafter the Ward Member arrived at the spot. F.I.R. was lodged. During investigation the Police made inquest over the dead body of Kuntala and made autopsy of the dead body. Police also examined the witnesses. During investigation the appellant led the police and gave recovery of the weapon of offence from the Simamundi Nala and consequently the same was seized. After completion of investigation charge sheet was submitted under Sections 302 and 201, I.P.C. 3. The plea of the appellant as revealed from the statement recorded under Section 313 of Cr.P.C. and the suggestion given during cross-examination to the prosecution witnesses, is squarely denial to the occurrence and he pleads innocence. 4. The prosecution in order to prove the charge examined 19 witnesses against the appellant whereas the defence examined himself as a single defence witness. The trial Court after analyzing the evidence of witnesses has found the appellant guilty under Section 304 Part-I, I.P.C. and sentenced him to undergo R.I.for ten years and to pay fine of Rs.5000/-in default to undergo further R.I. for one year. SUBMISSIONS. 5. Learned Counsel for the appellant submitted that the judgment of conviction is illegal and improper because the learned Trial Court relied on the evidence which is not admissible. She further submitted that the evidence of most of the P.Ws. having hostile to the prosecution have not supported to the prosecution case. SUBMISSIONS. 5. Learned Counsel for the appellant submitted that the judgment of conviction is illegal and improper because the learned Trial Court relied on the evidence which is not admissible. She further submitted that the evidence of most of the P.Ws. having hostile to the prosecution have not supported to the prosecution case. The learned Trial Court has based the conviction mainly on the extrajudicial confession made by the appellant before P.W. 1 but on going through the said evidence it would appear that he has not supported the prosecution case. Learned Trial Court has also relied on the evidence of leading to discovery made by the appellant, but there is no independent witness to corroborate the leading to discovery. The evidence of the I.O. cannot be trusted one to prove the leading to discovery. There is no direct or circumstantial evidence to find the appellant guilty, but he has been convicted by the learned trial Curt basing on the inadmissible evidence.So, she submitted to set aside the judgment of conviction and order of sentence against the appellant. 6. Learned Addl. Government Advocate submitted that the evidence of P.W. 5 should be taken into consideration as she is the second wife of the appellant and has witnessed the occurrence. Although the prosecution has cross-examined her, but during such cross-examination she admitted before police to have witnessed the occurrence of assault made by the appellant by means of a spade to the head of the deceased. He further submitted that in view of the clear admission of P.W. 5 her evidence also proved the overt act of the appellant. Apart from this, he submitted that the blood stain Gamuchha of the accused has been seized and the same had been found to have contained human blood. In addition to the evidence of the eye witnesses and the circumstantial evidence as detailed by the Trial Court the appellant should be convicted under Section 304 Part-I, I.P.C. and sentenced thereunder. DISCUSSION; 7. It is well settled in law that prosecution has to prove the case beyond all sorts of doubt. It is reported in A.I.R.2003 SC 854 : Lalu Manjhi and another v. State of Jharkhand where Their Lordships at paragraph 10 observed as follows : “The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. It is reported in A.I.R.2003 SC 854 : Lalu Manjhi and another v. State of Jharkhand where Their Lordships at paragraph 10 observed as follows : “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 .)”. 8. It is also trite in law that evidence of witnesses should be assessed to weigh same for discerning truth. The Court is required to separate grain from chaff while appreciating the evidence. Apart from this it is well settled in law that conviction can be maintained basing on the sole evidence of a single witness if his evidence is cogent, clear, consistent and above the reproach. 9. It is also settled in law that evidence of hostile witness cannot be rejected, but should be read as a whole to find out the ring of truth to the extent supporting the prosecution case. The appellate Court has duty to re-appreciate the evidence on record to find out whether the conclusion arrived at by the trial Court to correct or not. Keeping in mind of this principle the evidence on record should be assessed. 10. It is revealed from the evidence of P.W. 1 that after hearing about the occurrence he went to the spot and found the dead body of Kuntala Munda. In his presence inquest was made over the dead body vide Ext.2.The evidence of P.W. 2 also shows that he is a witness to the inquest. The evidence of P.Ws. 3 and 4 also revealed that in their presence the police made inquest over the dead body. The evidence of P.W. 17 shows that he has made the post-mortem examination on the dead body of Kuntala. The evidence of P.Ws. 3 and 4 also revealed that in their presence the police made inquest over the dead body. The evidence of P.W. 17 shows that he has made the post-mortem examination on the dead body of Kuntala. He found the following features as follows: “External features : It is a female dead body aged about 35 years of average body built. The dead body was swollen. Abdomen was swollen. Eyes and mouth closed. Rigormortis present over all extremities. External injuries: (i) Lacerated injury of size ½” x ½” x ½ “ over right fronto parietal region of scalp. (ii) There was swelling of size 1"X 1 X 1"over left froto parietal region of scalp. Internal features. On dissection I found clotting of blood of size 3" X 2" inside the membrane of brain below injury No.(ii). Old clot of blood was present below injury No. (i).All other organs were normal.” 11. According to him the cause of death is due to injury on her vital organ like brain and it was homicidal in nature. He proved the report vide Ext. 12. From the aforesaid material it is clear that the deceased Kuntala has met a homicidal death. 12. The evidence of P.W.5 who claimed to be an occurrence witness should be assessed at first. In her examination-in-chief she admitted that she had not seen the occurrence. She was cross-examined by the prosecution. During cross-examination she admitted to have stated before the police that in the morning there was quarrel between the deceased and the appellant and the appellant being enraged gave a blow by means of a spade. Although she had stated in the examination-in-chief to have not seen the occurrence, but only admitted in cross-examination by the prosecution that before the police she has stated so. But her evidence does not end there. During cross-examination by the defence she admitted in paragraph 4 that she came to know from the villagers that Kuntala Munda is lying dead near the Nala, whereafter she went to the Ward Member and told him about the death. The evidence of P.W. 5 after reading as a whole cannot be taken as a gospel truth to have witnessed the occurrence. The evidence of P.W. 5 after reading as a whole cannot be taken as a gospel truth to have witnessed the occurrence. Even if she admitted in cross-examination that she has stated about quarrel between the parties and overt act of the appellant, but actually she clearly stated that she had not seen the occurrence. It had not been explained by the prosecution as to why she did not express about the occurrence during examination-in-chief. 13. Now in order to explain the doubt about the credibility of the witness the Court took steps where she had clearly stated at paragraph 5 that she had falsely stated accused Sanatan Munda has committed murder of Kuntala and she had not stated anything to police. In view of such, evidence of P.W. 5 can not be trusted in any manner when varying the statement from time to time and particularly admitted that she has not stated anything about the occurrence before the police. Be that as it may, the evidence of P.W. 5 is not clear and cogent to rely her as an eye witness, but she is a post-occurrence witness. 14. The evidence of P.W. 1 is also requires discussion. He came to know from Pramila Munda ( P.W.5) about the occurrence and then he rushed to the spot and found Kuntala Munda lying dead. There is no evidence of P.W. 5 that she has narrated the occurrence to P.W.1 for which the evidence of P.W. 1 is not admissible being not corroborated by P.W. 5. The peculiarity of the case is that after cross-examination by the defence the witness was again cross-examined by the prosecution. In further cross-examination by prosecution, he only admitted to have mentioned in the F.I.R. that Sanatan Munda assaulted his wife Kuntala and Kuntala became dead. When this evidence has not come out in chief, but in the cross-examination by the prosecution putting leading questions and on further cross-examination by defence he stated that nobody was there when Sanatan disclosed the fact the evidence of P.W. 1 cannot be trusted solely to prove the extrajudicial confession by appellant. There is no other witness examined corroborating the evidence of P.W. 1 to prove the extrajudicial confession made by the appellant. There is no other witness examined corroborating the evidence of P.W. 1 to prove the extrajudicial confession made by the appellant. It is true that the extrajudicial confession if proved can be the basis of conviction, but the evidence must be clear and cogent to prove this circumstance against the accused. 15. The I.O. ( P.W.19) in paragraph-6 stated that after arrest during interrogation the accused disclosed before him in presence of witnesses voluntarily to have committed murder of his wife Kuntala by a spade and has kept the spade concealed inside the water of Simamundi rivulet. Accordingly he prepared the statement vide Ext.3/2. According to him the appellant led the police and other witnesses to the spot and brought out the spade from inside the water of Nala vide Ext. 4/1. He proved the spade vide M.O.I. It appears that the other witnesses have not supported the I.O. about the extrajudical confession and leading to discovery. On going through Ext. 3/2, it appears that the disclosure statement is to be admissible but not rest of the confessional statement as settled in law. The seizure list shows that the spade has been seized, but all the witnesses to the seizure stated that the police seized the spade from the Nala, but has not been brought out by the accused. There is nothing to disclose the other witnesses. Therefore, the evidence of leading to discovery including the disclosure statement is proved to be clear and cogent evidence. So, this link of chain of circumstance is not proved beyond all shadow of doubts. 16. It is revealed from the evidence of the I.O. and other witnesses that the police seized the wearing apparel of the deceased and blood stain wearing apparels of the appellant. On going through Ext.17, the Chemical Examination report, saree and saya of the deceased which contain human blood group ‘A’. The napkin seized from the appellant although contains human blood, but it has no opinion whether it contains blood group “A” or not. When there is no evidence to show that the blood group of the deceased in the wearing apparel is of the appellant, one of the link of chain of circumstance against the appellant also remained as not proved other clinching material against the appellant 17. When there is no evidence to show that the blood group of the deceased in the wearing apparel is of the appellant, one of the link of chain of circumstance against the appellant also remained as not proved other clinching material against the appellant 17. It is true that the chain of circumstances must be linked together unerringly pointing out the guilt of the accused and each of the circumstance must be proved by cogent and consistent evidence beyond all shadow of doubts. Since direct evidence or circumstantial evidence as discussed above have not been proved by the prosecution by creditworthy and consistent evidence, the appellant is entitled to benefit of doubt. 18. The learned trial Court has discussed the materials but not with proper perspective. Hence, the conclusion arrived at by the learned trial Court is not agreed with in terms of the above discussion, the conviction and sentence against the appellant are hereby set aside. The appellant is found not guilty of the charge under Section 304 Part-I of the I.P.C. and as such he is acquitted of the said offence. In the result, the Jail Criminal Appeal is allowed and the appellant be set at liberty forthwith if not detained in any other case. The L.C.R. be returned forthwith. Appeal allowed.