Khetra Majhi vs The State

P.K. Mohanti, J.—This appeal is directed against an order of conviction u/s 302, Indian Penal Code and a sentence of imprisonment fat life passed by the learned Sessions Judge of Bolangir-Kalahandi.

The prosecution case was that on the night of 22-8-1973 while the deceased Dhobi Naik along with P.W. 2 Sobha Naik, P.W. 3 Biswanath Naik and P.W. 4 Braja Naik were committing theft of the Gurji crop from the field of the accused, the latter arrived there along with P.W. 5 Bairagi Majhi and another person named Dundu. On seeing the accused and his companions, the deceased and his companions tried to run away from the spot, but the accused chased and caught hold of the deceased and gave a lathi blow on the back of his neck as a result of which he sustained injuries and lost consciousness. Then the accused tied the legs and bands of the deceased and threw him into a Nala. On the next day the deceased was carried to Bhawanipatna Hospital where he succumbed to the injuries on 25-8-1973. P.W. 7 Tulsa Gouden, the widow of the deceased lodged F.I.R. at the police Station on 25-8-1973 at 10.30 p.m. and after investigation the police submitted charge-sheet against the accused.

The accused denied the occurrence and pleaded innocence. During the examination u/s 313, Code of Criminal Procedure he stated that he was falsely implicated by the witnesses out of previous enmity.

On trial, the learned Sessions Judge held the accused guilty and inflicted the sentence as indicated above. Hence the present appeal.

That the death of the deceased was homicidal is beyond dispute. The doctor P.W. 1 who held post-mortem examination over the dead body of the deceased found multiple abrasions on different parts of the body of the deceased, such as the right side of the face, the nose, chest, neck, elbows, wrists, lower part of the abdominal wall, both the knees, ankle and back of both the thighs. On dissection he found a contusion with heamatoma in the muscles of the back side of the neck a contusion with laceration of the inter-spinous ligament of the miscervical vertebrae. In his opinion, the external injuries might have been caused by lathis and stones or any other rough substance. He also opined that the injuries were ante-mortem in nature. His evidence leaves no room for doubt that the deceased died as a result of the injuries.

The crucial question for consideration is whether the accused is responsible for the death of the deceased. The order of conviction is based mainly on the evidence of P.Ws. 2, 3 and 4 who were cited as eye-witnesses to the occurrence. P.W. 5 Bairagi Majhi was also cited as an eye-witness to the occurrence but he did not support the prosecution case at the trial and was cross-examined by the public prosecutor. Prosecution also wanted to prove through P.W. 6 Prabha Gouda that the accused and the deceased had made extra-judicial confession and dying declaration respectively before him but he too did not support the prosecution case at the trial and was cross-examined by the public prosecutor.

On a perusal of the judgment it appears that the learned Sessions Judge did not take the trouble of going through the evidence or judicially considering the same before he recorded a decision about the guilt of the accused. To say the least, the judgment is vague, perfunctory and a carelessly prepared document. We are of the opinion that the learned Sessions Judge has failed to judicially weigh the evidence adduced by the prosecution and to apply his mind to the evidence and consider it carefully in order to determine whether that evidence has or has not established the charge against the accused. In view of the unfortunate state of the judgment it has become necessary for us to scrutinise he evidence and give our careful consideration to it.

The learned Judge came to hold that the guilt of the accused was established by the direct evidence of P.Ws. 2, 3 and 4. He observed that there was nothing in the cross-examination of P.Ws. 2 to discredit his testimony and that the evidence of this witness received corroboration from the evidence of P.Ws. 3 and 4. He also observed the evidence of the three P.Ws. gets independent corroboration from the fatal injuries found by the doctor on the person of the deceased. It was contended before the learned Judge that though the witnesses claimed to have witnessed the occurrence, they did not disclose the commission of the crime before anybody and as such they were in the position of accomplices and their evidence should not be accepted without corroboration in material particulars. The learned Judge repelled this contention observing as follows:

... They cannot be treated as accomplices because they disclosed the matter to the wife of the deceased. As such it cannot be said that they were not interested in disclosing the information.

We are constrained to remark that the aforesaid observations have been made due to confusion of thought and improper appreciation of the evidence on record. We tall to comprehend how presence of injuries on the person of the deceased can afford independence corroboration to the evidence of the witnesses. As we shall presently show the witnesses had not disclosed the occurrence to the wife of the deceased and their evidence is inconsistent with the medical opinion about the cause, nature and location of the injuries on the deceased.

P.Ws. 2, 3 and 4 stated in their examination-in-child that they had seen the accused dealing a single blow with a lathi on the back of the neck of the deceased. But the doctor found a number of injuries on different parts of the body of the deceased as mentioned supra. The witnesses did not state as to how the deceased sustained the injuries which the doctor found on different parts of the body. It cannot therefore be said that the evidence of the witnesses gets corroboration far less any independent corroboration from the doctor''s evidence about the presence of the injuries on the body of the deceased.

The witnesses stated in Court that they had given information to the wife of the deceased about the occurrence in the same night immediately after the incident. But their statements do not find support from the evidence of the widow of the deceased who was examined as P.W. 7. In the First Information Report. P.W. 7 did not state that the occurrence was disclosed to her by P.Ws. 2, 3 and 4. If actually the witnesses had disclosed to her in the night of occurrence that her husband had been assaulted by the accused she would not have omitted to mention that fact in the F. I. R. It is significant to note that in the F. I. R. the accused was not named as an assailant of the deceased. In the F. I. R. it was stated that in the night of occurrence the deceased went to watch his Gurji crop but did not return therefor. During her evidence in Court P.W. 7 stated as follows:

My husband and three or four others went to commit theft of Gurji crop on a night and my husband was found dead. The other returned and told me that my husband was caught and so he could not come back. Next day I went and found my husband lying in a Nala with his hands and legs tied up.

It will thus be seen that in her evidence she did not even say that P.Ws. 2, 3 and 4 were the persons who had accompanied her husband to commit theft of Gurji crop on the night of occurrence.

She did not also state that the persons who accompanied her husband had given her any information about the assault by the accused. The learned Sessions Judge was, therefore, not justified in observing that P.Ws. 2, 3 and 4 had disclosed the occurrence to the wife of the deceased.

It appears that the learned Sessions Judge has not at all gone through the statements of the witnesses made in cross-examination and has mechanically accepted their statements made in examination-in-chief. The contradictory statements made by P.W. 2 during his examination u/s 164, Code of Criminal Procedure were confronted to him in cross-examination and he denied the same. The learned Judge did not follow the usual practice of marking the previous contradictory statements as exhibits and did not care to go through those contradictory statements. When the witness denied his previous contradictory statement it should have been admitted in evidence and marked as an exhibit In the interest of justice we carefully went through the statement of the witness recorded u/s 164; Code of Criminal Procedure and found that he had not implicated the accused as an assailant of the deceased. On the other hand he had stated as follows:

We, four persons started reaping crops. Khetra the owner of the field came running towards us. Myself, Bisi and Braja ran away. After a while we heard ''Oh, mother'' and sat for an hour. Then Dhoba shouted'' I am dying. ''At this 10-12 persons from the village came to the spot. At their sight we came away. On that day it was dark night. It was also drizzling.

In view of the omissions and contradictions in the previous statement of the witness no reliance could be placed on his evidence in Court.

P.W. 3 stated in his examination-in-chief that the accused had given a lathi blow on the back of the deceased. But in cross-examination he stated "I had not seen the assault on the deceased because 1 rana way from the spot". Thus the witness stood discredited by his own contradictory statement in cross-examination.

P.W. 4 also stated in his examination-in-chief that the accused had given a lathi blow on the neck of the deceased. His previous contradictory statements under Sections 161 and 164, Code of Criminal Procedure were confronted to him and he denied the same. Neither the learned defence lawyer nor the learned Judge questioned the investigating Police Officer as to whether the particular contradictory statements had been made to him during investigation. The previous contradictory statements made u/s 164, Code of Criminal Procedure were also not exhibited in the case. It appears that the witness had stated before the Magistrate as under:

It was dark. So I could not see anything. I suspected that Khetra gave a heavy blow to Dhoba, the deceased.

Thus it will be seen that the witness had not actually seen the accused assaulting the deceased but he simply suspected the accused to be the assailant.

There is no other evidence, direct or circumstantial, to connect the accused with the crime. The evidence of P.Ws. 2, 3 and 1 shows that the accused came to the spot along with P.W. 5 Bairagi Naik and another person named Dundu. It was a dark night and it was also drizzling at the time of occurrence. Due to darkness the witnesses might not have been able to see the real assailant. No doubt, there is a suspicion that either the accused or one of his companions committed the assault on the deceased but suspicion cannot take the place of legal proof. We accordingly hold that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubts.

In the result, the appeal is allowed, the order of conviction and sentence being set aside. The accused is acquitted of the charge u/s 302, Indian Penal Code. He should be set at liberty forthwith.

Before concluding, we deeply deplore the way the trial has been conducted and the judgment has been prepared. In a case like this the learned Judge has not exercised that amount of care in conducting the trial which he is expected to bestow.

We regret to note that the procedure to be followed in the case of proving the contradictions appearing in the previous statements made by the prosecution witnesses to the police and the Magistrate during investigation has not been followed by the learned Judge. If a prosecution witness denies having made a previous contradictory statement before the police, the particular portion of the statement recorded u/s 161, Code of Criminal Procedure should be provisionally marked for identification, and when the Investigating Officer who had actually recorded the statement in question, comes to the witness box, he should be questioned as to whether that particular statement had been made to him during investigation by the particular witness, and if the Investigating Officer gives answer in the affirmative the particular statement made before him should be exhibited in the case. Similarly, when it is intended to prove the contradictions appearing in the statement of a witness made u/s 164. Code of Criminal Procedure his attention should be drawn to that part of the contradictory statement and if he denies having made such a statement, the particular portion of the statement should be marked as an exhibit.

R.N. Misra, J.

I agree.

Appeal allowed.