Kholia Naiko and Others vs Emperor

Agarwala, J.—The five appellants were charged in the Court of the Sessions Judge of Ganjam Puri with being members of an unlawful assembly, the common object of which was to murder Lokhono Tripathi and with the murder of that man. Of the four assessors who assisted at the trial three were of opinion that the charges were not proved while the remaining assessor found the accused guilty of rioting with deadly weapons and of causing grievous hurt in prosecution of the common object of the assembly. The learned Sessions Judge accepted the opinion of the last mentioned assessor, convicted all the appellants u/s 426, read with Section 149 and sentenced them to six years'' rigorous imprisonment each.

The prosecution case as laid in Court was that at 9 P.M. on 30th January last, the deceased and his brother Baranidhi Tripathi (P.W. 3) had finished the measuring of their paddy on their threshing floor Then the deceased went home to have his evening meal leaving Baranidhi Tripathi (P.W. 3) to watch the paddy. When the deceased returned to the threshing floor, Baranidhi (P.W. 3) went home to have his meal. on his way back from his home to the threshing floor P.W. 3 saw the five appellants going from the direction of the threshing floor towards the village carrying arms. When he reached the threshing floor, P.W. 3 saw his brother lying there severely injured, and he deposed that his brother told him that he had been assaulted by the five appellants. According to the evidence of P.W. 3, an alarm was then raised which at first brought P.Ws. 4 and 5 to the scene. The story that these two witnesses told is curious and unnatural. They say that hearing a man cry out from the khaliban and hearing blows, they hastened there and found the appellants in the act of assaulting Lokhono.

On their protest the five appellants hastily withdrew. They themselves did nothing to ease the injured man but returned to the place from which they had come and said nothing to anybody. Later, when they heard P.W. 3 raise the alarm, they went to the threshing floor and they depose that on this occasion Lokhono made a statement that he had been assaulted by the appellants. While Damodar Tripathi (P.W. 4) remained at the threshing floor with P.W. 3, Hari Krishna Panda (P.W. 5) was sent to the village to inform the villagers, and it is said that then Baidyanath Panda (P.W. 6) and Dibya Sinha alias Gandu Panda (P.W. 7) arrived and that Lokhono informed them also that he had been assaulted by the five appellants.

This evidence fails to carry conviction for a number of reasons. In order to appreciate those reasons, it is necessary to state the relationship of the appellants inter se. Kholia Naiko and Bhika Naiko, appellants 1 and 2, are brothers, living jointly at Ghiari Jhola. Baya Naiko, appellant 3, is the husband of their sister. His home is at Nuvagodo, four miles from Ghiari Jhola. The remaining two appellants Kalu Misra and Lingaraj Misra are two Brahmans of Ghiari Jhola and are related to each other as uncle and nephew.

Some two months before Lokhono Tripathi''s death, a complaint had been laid against one Raibari Naik that he had stolen a necklace from the person of the daughter of Agadhu Misra, a Brahman of village Ghiari Jhola. During the course of the investigation which followed this complaint, appellant 1, Kholia Naiko, who was the village Talayari, informed the police that the story of theft was false and that the real fact was that the modesty of the daughter of Agadhu Misra had been outraged by Baibari Naik, but as the Brahmans did not wish this fact to be known, they had falsely converted the case into one of theft. The result of this action of the appellant was that the police did not pursue the charge of theft. There was therefore a cause of enmity between the Narko appellants and the Brahman witnesses of the village.

Then, with regard to the Brahman witnesses 6 and 7, who depose to having heard the dying declaration from the lips of the deceased, it appears that P.W. 6, had instituted a suit on a mortgage against the brother of the first appellant and this suit had been dismissed, the Court upholding the plea of payment made by the defendant. As a result of the failure of that suit, the appellant prosecuted P.W. 6 for bringing a false charge. The witness denies that he knows the result of that prosecution. Dibya Sinha (P.W. 7) admitted that the brother of the fourth appellant Kalu Misra had taken his lands in settlement of his debt. Against both of these witnesses, it has also been pointed out that there is a further cause of suspicion, namely, that in the statement which P.W. 3 made to the village Munsif at 6 A.M. on the morning following the crime, no mention is made of their presence or of the deceased having made any statement to them.

The same criticism is levelled against the evidence of witnesses 4 and 5. No mention is made of their presence in the statement which P.W. 3 made to the village Munsif. That statement is Ex. B, and in it the deponent gave a version of what had happened on the evening at the threshing floor which differs materially from his evidence in Court. According to this statement, it was not when he was returning from his home to the threshing floor that he saw the five appellants but when he was going from the threshing floor to his home for the purpose of taking his meal. What he actually said was:

When I went home from the threshing floor to take my meal, Kholi Naik, Bhika Naik, Kalu Misra, Baya Naik of Nua Gardh and Lingaraj Misra came with knives, spears and crowbars. When I arrived at the threshing floor I found that my brother Lokhono Tripathi was injured.

The sequence of events has therefore been changed at the trial and the reason probably is that if in fact he saw the five armed men at about midnight going in the direction where his brother was guarding the paddy and knowing the cause of enmity between them, he would at least have done something to render assistance to his brother before he could be attacked. In that statement the deponent went on to say that his brother told him that the five appellants had assaulted him.

He made no mention whatsoever of anybody else being present at any time when such statement was made. In view of the enmity which existed between the appellants and the Brahman witnesses on whose evidence the conviction is based and to which I have already referred, I consider it would be unsafe to uphold the convictions of the appellants. The information which P.W. 3 gave to the village Munsif at 6 A.M. did not reach the Sub-Inspector until 11-30 although the police station is only three miles from the village. There is no explanation of why this time should have been taken in informing the Sub-Inspector. The police officer who supervised the investigation of the case was not favourably impressed by the witnesses and reported against the prosecution.

In my opinion, the majority of the assessors rightly appreciated the evidence that they heard and I agree with the conclusion that they came to with regard to it. I would therefore set aside the convictions and direct that the appellants be set at liberty.

Harries C.J.

I agree.