Jabuna Munda vs State Of Orissa

D.Dash, J

The Appellant by filing this Appeal from inside the jail has challenged the judgment of conviction and order of sentence dated 15.11.2017 passed by the learned Additional Sessions Judge, Champua in Sessions Trial Case No. 92 of 2015 arising out of G.R. Case No.491 of 2015 corresponding to Bamebari P.S. Case No.139 of 2015 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Champua.

The Appellant (accused), thereunder has been convicted for committing offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’) and he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months for commission of offence under section-302 of the IPC.

The prosecution case is that on 13.08.2015 around 9 am, one Manguli Hasdah Informant-P.W.2 lodged a written report with the Inspector-In-Charge (IIC) of Bamebari Police Station to the effect that on that morning, she had come to her father’s place at Kalimati to take her daughter back who was then staying with her father and step-mother. Arriving there, to her utter surprise, she saw her father lying dead near the room of the house with severe bleeding injuries on his head. Her daughter Gurusan Hansdah (P.W.3), who was then staying there disclosed that accused Jabuna Munda, who is the step-mother of Manguli assaulted Nanda Munda by means of Badi (lathi) and then by a Tangia in the last night in causing his death.

The written report being received by the IIC, he treated it as F.I.R. and registering the case, directed one Sub-Inspector (S.I.) of that Police Station (P.W.10) to take up investigation.

In course of investigation, the Investigating Officer (I.O.-P.W.10) examined the Informant (P.W.2) and other witnesses. He visited the spot and prepared spot map, Ext.10. He then held inquest over the dead body in presence of the witnesses and prepared the report, Ext.2. The dead body of Nanda Munda was sent for postmortem examination by issuing necessary requisition. The accused was arrested and while in police custody, he gave his statement as regards keeping of that Tangia and Badi (lathi) in the place known to her. He then expressed to lead police and others to the place and give recovery of the said weapons. The I.O., P.W.10 recorded the statement of the accused under Ext.4/1. The accused then led P.W.10 and other witnesses near their bari and gave recovery of one Tangia and Badi (lathi), which was seized under seizure list, Ext.3. The incriminating articles seized in course of investigation, were sent for chemical examination through Court.

The solitary eye witness to the occurrence is the granddaughter of the deceased and daughter of P.W.1. The I.O. (P.W.10) prayed before the learned Magistrate for recording her statement under section-164 of the IPC, which was accordingly accepted and the learned Magistrate recorded the statement of P.W.3 under section-164 of the Cr.P.C. On completion of investigation, Final Form was submitted placing the accused to face the Trial for commission of offence under section-302 of the IPC.

Learned S.D.J.M., Champua receiving Final Form, took cognizance of the above offence and after observing the formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing charge for the said offence against the accused.

In the Trial, the prosecution has examined in total 10 witnesses. Out of whom, as already stated P.W.2 is the Informant-P.W.3, who is the star witness for the prosecution being solitary eye witness who happens to be the daughter of P.W.2 and the granddaughter of the deceased. The Doctor who had conducted postmortem examination over the dead body of the deceased is P.W.9 and the I.O. has come to the witness box at the end and has examined himself as P.W.10.

The prosecution besides leading the evidence by examining the above witnesses has proved several documents. Important of those are:- the F.I.R., Ext.8, statement of the accused in leading the

police and others in giving recovery of the Badi(lathi), Ext.4/1 and the Chemical Examiners Report i.e. Ext.14.

The accused having taken the plea of denial and false implication has however not led any evidence in support of the said plea.

First of all coming to the nature of death of the deceased, when we go through the evidence of the Doctor, P.W.9, we find that he has deposed to have seen during postmortem examination, five lacerations of different parts of the body of the deceased, such as around the right eye involving fracture of frontal bone and right zygomatic bone; around right ear; around left eye, around left ear; and below left ear. On dissection, he has noted subdural haemorrhage tearing of the membrane and large intestine containing faecal brain matter on the affected area and the paleness on the rest part. His categorical evidence is that all these injuries are antemortem in nature and the death was on account of loss of blood and injury to the vital organ like brain. He has stated the death to be homicidal in nature and also later on opined that by means of said seized lathi and axe, the injuries which he found upon the body of the deceased were possible. The I.O. during inquest has also noted such injuries on the dead body of the deceased which he has mentioned in the inquest report, Ext.2. But the other witnesses have also seen the deceased lying dead with such injuries besides the child witness, P.W.3. We find from the tenor of cross-examination that there was no challenge to this aspect during Trial and that is also the situation before us. When such overwhelming evidence as to the nature of death stand; we find no difficult in arriving at a conclusion that Nanda met a homicidal death.

Learned Counsel for the Appellant (accused) submitted that the entire case of the prosecution rests upon the solitary testimony of the child witness, P.W.3, who too is highly interested as the granddaughter of the deceased being the daughter of the deceased born through his first wife.

Inviting our attention to the deposition of the P.W.3, he submitted that the Trial Court ought not to have relied upon the version of the P.W.3 in basing his finding upon the same as regards complicity of this accused. He further submitted that the other circumstances with regard to detection of the human blood of ‘A’ Group, which is the blood group of the deceased over the Tangia seized in the case ought not to have been given any importance more particularly, as the evidence on record do not inspire confidence that said Tangia was recovered at the instance of the accused who had led P.W.10 and others to the place pursuant to her statement while in police custody.

Learned Counsel for the State submitted that the evidence of the child witness-P.W.3 on being examined carefully by the Trial Court since no such infirmity has been noticed therein, the Trial Court is right in believing her version to fasten the guilty of the accused as evidence of P.W.3 finds corroboration from other evidence such as from the evidence of the Doctor-P.W.9 and P.W.2 before whom the P.W.3 had immediately disclosed about the incident, which had happened before her. He further submitted that the evidence as to the recovery of the Tangia and Lathi at the instance of the accused has been proved that the accused having made the statement while in police custody had led P.W.9 and others in giving recovery of those weapons. According to him, when the Tangi has further been connected with the injury as to its user by detection of the human blood of the same group as that of the deceased, the Trial Court did commit no mistake in finally convicting the accused.

Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.10 and have perused the documents which have been marked Exts.1 to 14.

The star witness for the prosecution here is P.W.3, who at the time of occurrence was aged around six years. This P.W.3 is the daughter of the Informant (P.W.1). According to the evidence of P.W.2, her daughter was staying in the house of the deceased, who happens to be the father of P.W.1 and the accused is the second wife of the deceased. The Trial Court having made necessary examination as to the competency of this P.W.3 to depose in Court has certified in favour of the same and accordingly, has recorded her evidence. It is stated by P.W.3 that in the night, the accused assaulted the deceased by means of a stick and then by an axe near his ear, causing bleeding injury. He has stated to have been inside the room at that time and to have witnessed the occurrence. It has been specifically stated that her mother-P.W.1, when came there, she narrated the incident which is the version of P.W.1. He has also stated to have given her statement on the earlier occasion in the Court which refers to her statement under section-164 of the Cr.P.C. The witness being cross-examined, we find that there has been no attempt from the side of the defence either to discredit her version or show that she has been tutored to so depose in Court. Rather she has asserted during cross-examination that she was very much present at the village Kalimati, when her grandfather died. He has also stated that after taking food in the evening, she slept and after getting up, she saw the incident. When this P.W.3 states to have disclosed about the occurrence seen by her to P.W.2 immediately on her arrival on the next morning, P.W.2, the mother of P.W.3 has also so stated. Thus, this P.W.3 appears to have made the disclosure immediately finding her mother by side without suppressing the matter for any longer period.

It is the settled position of law that the competency of a child witness to give evidence is not regulated by the age but by the degree of understanding, he or she appears to possess and there is no fixed rule to that effect. However, the Court before accepting the version of such a child witness must be doubly sure that he/she is a truthful witness and his/her version is not the prompted one and product of tutoring. The version of P.W.3 having been recorded under section-164 of the Cr.P.C., no such contradiction has surfaced and what she has stated in Court was her previous version recorded by the Magistrate who too after ascertaining that she was able to give rational answer to the questions put after understanding the same properly, had so recorded the statement. The F.I.R. lodged by P.W.2 also find mention in clear term that P.W.2 came to know about the incident that the accused had assaulted the deceased by lathi and then by Tangia from this P.W.3.

In such state of affairs in evidence, when we find no other surrounding circumstance to take a view for a moment that version of P.W.3 in Court was not truthful and as such not acceptable as the conclusion arrived at by the Trial Court that the evidence of P.W.3, the child witness being corroborated by the evidence of her mother, P.W.2 further receiving support from the F.I.R. Ext.1 and the evidence of the Doctor that the injuries on the deceased were possible by Lathi and Tangia are enough to hold that the prosecution has proved the charge against the accused beyond reasonable doubt. Furthermore, in view of such evidence, even if, we do not accept the evidence let in by the prosecution with regard to the recovery of Tangia and Badi (lathi) at the instance of the accused by leading the I.O. (P.W.10) and other witnesses to the place where those had been kept in view of discrepancy in the evidence of P.W.10 and other witnesses, the said finding of guilt of the accused as has been returned by the Trial Court in holding her liable to be convicted for commission of offence under section-302 of the IPC intentionally causing the death of Nanda Munda would stand based on the above discussed evidence.

In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 15th November, 2017 passed by the learned Additional Sessions Judge, Champua in Sessions Trial Case No.92 of 2015 are hereby confirmed.

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