Kondra Paraja and Others vs The State

Ray, J.—These seven Appellants along with two others, were charged under various sections of the Indian Penal Code and stood their trial in the Court of sessions. All the nine accused persons had been charged under Sections 120B, 148, 302/149, 201 and 302, Indian Penal Code. In addition, the two acquitted persons were charged u/s 364, Indian Penal Code., for having abducted the deceased in order that he may be murdered. Accused who is also Appellant-I was further charged u/s 379, Indian Penal Code., for having committed theft of Gomaohha of the deceased.

The Sessions Judge by his judgment dated 11-9-1967 passed in Sessions case No. 3/67 acquitted accused Nos. 8 and 9 of the charges brought against them. He convicted the remaining seven accused under Sections 302, read with Sections 149, 148, and 201 of the Indian Penal Code and sentenced each of them to undergo R.I. for life u/s 302/149. No separate sentence was passed for their convictions under the other two sections, 148 and 201, Indian Penal Code. Appellant-I was also convicted u/s 379, but there was no separate sentence for the same.

The prosecution case, in brief, is this : All the Appellants and the deceased are residents of village Kamata and are co-villagers as such. Appellants 1 to 6 who are Parjas, belong to Parja Sahi of the Village. Appellant No. 7 and the two acquitted accused persons are Dombs and are residents of Domb Sahi. There was long standing enmity between Appellants 1 to. 4, who are brothers, on one hand, and the deceased on the other. They were not on speaking terms. The other accused persons, namely, accused Nos. 7 to 9 were either inimically disposed towards the deceased or related to those who were so disposed. In the past, disputes between them bad been compromised, at the intervention of third parties, from time to time. Despite such settlements the undercurrent of ill-feeling did not abate and the tense feeling continued prevailing. This long standing animosity was finding visible expression in the form of commission of offences relating to person as well as to property.

Shortly before the occurrence, there was a bitter quarrel and mutual assault between the deceased and Appellant-I. This, it is suggested by prosecution, sparked off the murder which is said to have taken place in the night of the 7th September, 1966. This was a Wednesday and was also the day of Nuakhia festival in the locality. In that connection the deceased had gone to his separated brother, p.w. 1. After the night meal the deceased came and sat on his own Pinda. Then he went to the Pinda of his neigh hour Ratan Gadaba for a smoke. He was followed by his daughter, p.w. 3. After lighting the smoke, he returned to his own Pinda while his daughter p.w. 3, slept in the Pinda of Ratan Gadaba. The wife of the deceased (p. w. 2) slept with the children inside the house after closing the door. Sometime later in the night Jagabandhu Bagh (accused-8) and Bolapu Hia (accused-9) came and persuaded the deceased to accompany them. The latter was at first reluctant, but ultimately left with them. He was taken to the house of Bodu Paraja (Appellant-2) where the deceased was gagged and mercilessly assaulted with lathis, kicks and fist. Thereafter he was killed by sharp-cutting weapons like Tangia and knife and his body secretly disposed of with the object of causing disappearance of the evidence of the crime of murder. The mutilated and decomposed dead body was discovered on the morning of 12th September, 1966, in the Singijodi Nala near another village Olam.

As soon as the deadbody was identified, the villagers of village Kamata held a Punchayati, where facts immediately antecedent to the disappearance of the deceased from the village were ascertained. Thereupon a report, Ext. 2, was drafted by p.w. 7 containing all the facts beginning from the night of Wednesday, when the deceased was called away by accused Nos. 8 and 9 till the discovery, and despatched to the police station. p.w. 1 who in the company of others, took the written report to the police station, also lodged the first information report which was recorded by p.w. 20. The contents of the F. I. R. and the written report are almost the same. This F. I. R. was lodged on 13-9-1966.

The A. Section I. who took down the first information report reached the village where the dead body was discovered on the morning of 14-9-1966 and commenced investigation. He held inquest over the deadbody and seized some human hairs and bones lying at a distance of 9" from the dead body. The investigation was taken over by the officer-in charge (p.w. 21) who arrived there later on and the deaddody was sent for postmortem examination. He examined p.ws. 2, 3, 4, 5 and 9 and others on 14-9-1966 and on the next day, that is, 15-9-1966, he arrested the accused persons. He seized a Gamochha from the person of Appellant No. 6 and banian from the person of Appellant No. 1 both of which appears to have contained blood stains. The Gamochha of the deceased having been sold by Appellant-1 to p.w. 12 it was produced by the latter. A knife and a tangia containing blood stains were produced by Appellant no 1. Appellant No. 2 Bodu Paraja produced from his house the spear of the deceased and a stick all of which appeared to be blood-stained. Similarly a tangia, a towel, and a Gamochha, all appearing to contain blood-stains were seized from Appellant-3. A bamboo stick containing blood was seized from Appellant No. 6. Bloodstained sticks were seized from the houses of Appellant Nos. 8 and 5 being given discovery thereof by Appellants 8, 9 and 5. A cloth was sei zed from the person of Appellant-4 and the same appeared to contain blood stains. On serological test only the Dhoti seized from Appellant No. 4 and the Lungi seized from Appellant No. 2 were found to contain human blood.

The doctor''s evidence and the post mortem report make it quite transparent that the deceased was the subject of a foul and gruesom murder. The doctor found eight injuries on the deadbody. According to him six of them appeared to have been inflicted by sharp-edged weapons like Tangi and knife and were ante-mortem. Besides the out-injuries, two were bruises which were likewise ante-mortem and could have been caused by lathi. The doctor was of opinion that the cumulative effect of the aforesaid injuries was sufficient in the ordinary course of nature, to cause death. We have, therefore, no hesitation in accepting the finding of the learned Sessions Judge that the deceased was murdered by reason of cut-injuries inflicted on him by means of Tangi and knife.

The defence is one of complete denial.

It appears from the evidence of p.ws. 4, 5 and 20 that the place where the dead body was ultimately discovered, was not the place where it might have been originally buried or thrown away and that the body had been dragged by violent means to that place, probably by wild animals. This discovery was made on the morning of 12th September, 1966, and the post mortem examination was held on the 15th September, 1966.

The question that has now to be considered is whether the prosecution has been able to bring home the charges under Sections 302/149, 148 and 201, Indian Penal Code against all or any of these accused persons. Further, it is to be decided if the additional conviction of Appellant No. 1 u/s 379 is justified. The decision of this question depends upon circumstantial evidence and the circumstances upon which the prosecution relies, and each of which has been well established, are as follows:

(i) A strong motive for murder has been established through p.ws. 1, 2, 3, 7, 10 and 11. The accused had assaulted a brother of Appellants 1 to 4 with a tangi in consequence whereof there was a criminal case against the deceased u/s 32-1, Indian Penal Code, which was later compromised (vide p.ws. 1 and 19). Two or three months prior to the occurrence, there was mutual assault between the deceased and the Appellant No. 1 over the cutting of a tamarind tree (vide p.ws. 1, 10 and 11). There was a dispute between accused No. 8 and the deceased on account of cutting of a tree purchased by the former. In that connection there was mutual assault between Appellant No. 1 and the deceased (vide p.w. 10). p.w. 11 proves a dispute between Appellant No. 4 and the deceased over cutting of a branch of a tree purchased jointly by Appellant No. 4 and himself. While the deceased was being questioned On this, Appellant-1 arrived there and told the deceased that cutting of the branch of a tree amounted to cutting him and threatened to avenge this injury. p.w. 11 however, succeeded in pacifying him at the time; p.ws. 1 and 10 prove ill-felling between Appellant No. 5 and the deceased on account of the former''s father having illicit intercourse with the wife of the deceased and for which the Panchayat compelled the adulteror to pay compensation to the injured husband, viz., the deceased. There was dispute between the deceased and accused 9 regarding cutting of ridge separating their Dungar land and, the deceased was not pulling on well with Appellant No. 7 and accused No. 8 (vide p.ws. 1, 2 and 10). The deceased and the Appellants were not on speaking terms (vide p.w. 7). Appellant No. 6 is the sister''s son of Appellants; 1 to 4. Appellant No. 7 is the sworn friend of Appellant No. 4. Accused No. 8 is the co-brother-in-law of accused No. 9 with whom, as already indicated the deceased had quarrel.

(ii) The Appellants 1 to 5 congregated in the house of Appellant no 2 in the evening of the night of occurrence and engaged themselves in a drinking bout. p.w. 16 deposes to that effect. By itself, this evidence has no incriminating implication, but assumes some significance in conjunction with other evidence.

(iii) Accused Nos. 8 and 9 had a nocturnal meeting with the deceased later that very night with, a design. On 7-9-1966, after night meal the deceased was preparing to go to bed and was having his last smoke for the night when accused Nos. 8 and (sic) called him away. The deceased was at first reluctant to go, but was ultimately persuaded to accompany them. This was the last time when his daughter saw him alive. This is proved by p.ws. 3, 8 and 9, against whom nothing substantial has been elicited so as to discredit their testimony.

The initial reluctance of the deceased to accompany accused. 8 and 9 was obviously due to a feeling of distrust the deceased bore towards the latter on account of the background of enmity existing between them. Though he yielded to the persuasion of the latter, and consented to accompany them, he thought it safe to go armed and took his own spear. This shows that the deceased was apprehensive of danger and the sudden cordiality on the part of accused 8 and 9 at that part of the night was patently with some design. As appears from the evidence of p.w. 3, the two acquitted accused persons made some effort to allay the apprehensions of the deceased by saying "You need not have any fear Mahaprasad". The accused 8 and 9 deny this part of the prosecution case, but in view of the unimpeachable evidence provided by p.ws. 3, 8 and 9, this denial is untrue.

(iv) Sometime after the deceased left his home accompanying accused 8 and 9, he was gagged and assaulted in the courtyard of Appellant no 2. The evidence regarding this part of the story is provided by the only eye-witness in the case, p.w. 13. He appears to be witness to the one part of the occurrence. He is a field servant of p.w. 7 and was temporarily residing in the Dhenkishal of Appellant 6. His mother-in-law having died, his father accompanied by p.w. 17 had come that evening to take him so that he may perform the last rites of his deceased mother-in-law. p.w. 13 proposed to start next morning and so his father went ahead to village Bhatigam leaving p.w. 17 behind to accompany his son. p.w. 17, therefore, spent the night sleeping with p.w. 13 in the Dhenkishal. Appellant 6 was also sleeping with them. This Dhenklshal of Appellant 6 is very near the house of Appellant 2. They heard some sound which appeared like sounds of some sort of assault. Appellant 6 thought that there was quarrel and mutual fighting between the brothers, who are Appellants 1 to 4 and wanted to find out what it was. He, therefore, called this witness (p.w. 13) to accompany him to investigate. p.w. 13 first of all refused, but subsequently agreed to accompany him. Appellant 6 entered the house of Appellant 2 while this witness stood under a tamarind tree and from that place be saw that the deceased was lying on the ground. Appellant 4, Dinabandhu and Appellant 7, Nityananda gagged the deceased and Appellants 2, 3, and 5 assaulted the deceased with lathis, fist blows, and kicks. He also found two other persons near the thatch of Appellant 2, but could not recognize them. While this assault was going on, the wife of Appellant 2, Kanak Dei, came and questioned the Appellants as to why they were assaulting the deceased. Thereupon she was threatened by Appellant 1 and was told to mind her own business. Accordingly, she went back to her room. He also saw Appellant 6 joining the assault on the deceased when he was told about the latter''s identity. This Appellant No. 6 kept away almost the whole night from his house. According to him, there was a fire burning on the Pinda of Appellant 2, at a distance of four cubits from the place of assault. He could see and notice the assault in the light of that fire. The boundary wall of the courtyard wherein the incident was taking place was about waist-high. He, therefore, was able to look into the courtyard and see things for himself. He became terrified and came away while the assault was still going on and slept in the Dhenkishal near p.w. 17. His further evidence is that at about cock-crow time next morning Appellants 1 and 4 woke him up and dragged him to the Pinda of Bisa Gudia where other Appellants were present and they all cautioned him not to disclose what he had been and threatend him that in case he did so, they would either kill him or implicate him in the murder of the deceased. This threat indicates that killing was over by then and the Appellants were aware of it. He is substantially corroborated by p.w. 17. This latter witness also had beard during the night of occurrence some Dig Dong sound and had seen p.w. 13 and Appellant No. 6 proceeding towards the house of Appellant 2 to find out the cause of the Golamal. Next morning, that is, in the morning of the 8th September, 1966, p.ws. 17 and 13 left for the village of the latter''s mother-in-law. On the way p.w. 17 questioned p.w. 13 about the occurrence of the previous night. p.w. 13 revealed that Parajas and Dombs bad assaulted the deceased and killed him. p.w. 17 thus corroborates this witness that he, p.w. 13, and Appellant 6 were sleeping in the Dhenkishal during the night of 7-9-1966. They also beard some howling from inside the house of Appellant 2. Thereupon p.w. 13 and Appellant 6 woke up and went to investigate. He also had seen two persons taking away p.w. 13 in the early morning of next day.

From the evidence of these two witnesses it is quite clear that p.w. 13 had seen the assault with lathis, kicks and fist blows. But he is not an eye-witness to the infliction of injuries with sharp-cutting weapons as also to the Act of killing, nor has he seen the persons who had participated in killing. His evidence only shows that the two accused-Appellants 1 and 4 called him next morning at about the cock-crow time to the Pinda of Bisa Gudia and gave a warning to him that if he would tell anybody he would be implicated in the killing. This evidence proves three facts, viz., (1) All Appellants assaulted the deceased in the house of Appellant No. 2; (2) The deceased had been killed before the 8th morning; and (3) the Appellants were a ware of the killing of the deceased.

The next question for consideration is whether the evidence of p.ws. 13 and 17 should be relied upon. p.ws. 13 and 17 are no way related to each other. p.w. 17 for the first time came to know of p.w. 13 on the 7th September 1966. There is also no cause for p.w. 17 to be antagonistic to the Appellants. There is, therefore, no reason to discard the testimony of p.w. 17 who has corroborated substantial portions of the narration of p.w. 13. The criticism against p.w. 13 is that he is in a position analogous to an accomplice as he kept sum about the occurrence for nearly ten days till he was examined by the police. It is argued that this reticence on his part at a time when it was his duty to speak, puts him in a position analogous to that of an accomplice. His sole uncorroborated testimony therefore, should not form the basis for conviction. This is not a case where he was absolutely silent. He had disclosed it to p.w. 17 on the morning of 8th September and had also told his father about it. On Wednesday, when the dead body of the deceased was being carried through his village he had also disclosed the fact of assault by the Dombs and Parajas to a co-villager of his. That apart, he has given some good reasons for his reticence which is that the Appellants had administered a dire threat to him that if he was found talking about the incident, he may be killed. That is understandable. Persons who have killed once, can kill again. If he believed from the warning administered to him by Appellants 1 and 4 that the accused persons had killed the deceased, that, belief must have been confirmed in his mind from the continued absence of the deceased from his home. In such a case it is not unlikely he would try to assure his safety by remaining silent. It is, however, rightly contended by counsel for the prosecution on the decision of Ramratan and Others Vs. The State of Rajasthan, that p.w. 13 is neither an accomplice nor is in any position analogous to that of an accomplice and that, he is an ordinary witness who was indisputably present at the time when part of the occurrence took place in the courtyard of accused-2. It is argued that there is Rome discrepancy between his Statement u/s 164, Code of Criminal Procedure and his testimony with regard to the accused persons who gagged the month of the deceased. A perusal of his 164 statement does not indicate that the stated to have seen gagging by six accused persons. Even in sessions Court be does not say to have witnessed actual gagging; he merely start''s that the deceased had already been gagged when he arrived at the tamarind tree and his statement that Appellants 4 and 7 had gagged a cloth in the mouth of the deceased is his own inference. Hence there it no actual discrepancy on this account. The second discrepancy pointed out is that white he omitted to speak of Appellant No. 6 joining the assault, in his statement u/s 164, be implicates him in that act in the Sessions Court. This is a case of omission, but not of contradiction. That apart, be gives an explanation for the so called discrepancy. The explanation is that be did not say so because be was not asked about it. Therefore, this criticism has not much force and there is no adequate ground for discarding his testimony. Thus, both p.ws. 13 and 17 appear to be witnesses of truth.

(v) The next circumstance is the doctor''s opinion that the death took place about nine days prior to the post mortem examination which brings the death to the alleged date of occurrence, viz., 7-9-1960. This opinion as to the probable time of death finds corroboration from the evidence of p.w. 13 who speaks of the Appellants having disclosed the fact of killing in their warning to him. The deceased was seen last lying gagged in the courtyard of Appellant No. 2 in the night of 7-9-1966 and being mercilessly assaulted by all the Appellants. Thereafter, the deceased remained untraced till his mutilated corpse was discovered on the 12th September, 1966, about a furlong and a half from the place where assault took place.

(vi) Another incriminating circumstance against Appellant-1 is that he had pledged a Gamochha, Mo. HI belonging to the deceased with p.w. 12 for one rupee. This Gamochha was identified correctly both by p.w. 2 and 3 who are respectively the widow and daughter of the deceased in the T.I. parade held by p.w. 14, and p.w. a repeated her identification in sessions Court. This is the Gamochha which the deceased was wearing when he left his house in the night of 7-9-1966 being called by accused Nos. 8 and 9. But this circumstance cannot be used for any purpose whatsoever as this Appellant-1 has not been questioned in his 342 examination to explain it.

(vii) The next inculpatory fact against Appellants 1 and 6 is that the banian of the former (MO. XIV) and the Gamochha of the latter (MO. V) seized from their respective persons were stained with human blood. Both the Appellants have offered explanation in their statements u/s 342, Code of Criminal Procedure that the blood-stains may be due to their own blood. Appellant No. 1 says that he goes to jungle to cut fuel and might have injured himself in such occupation, and stained his banian with his own blood thereby. Appellant No. 6 says that be bad a boil and blood from it might have stained his Gamochha. The I.O. has not been cross-examined in this line. These explanations, apart from lacking in definite assertions, are far from convincing.

(viii) The next circumstance of incriminating nature against Appellant No. 2 is that he gave discovery of the spear (MO. II) of the deceased from his own house. p.w. 2 (widow) p.w. 3 (daughter) of the deceased correctly identified the spear in test identification parade held by p.w. 14 as belonging to the murdered man. H is this spear which the deceased took with him when he was called away in the night of 7-9-1956.

Thus, summing up, the various facts, which form the links in the chain of circumstantial evidence, are as follows:

(a) A fairly strong motive for all the Appellants to commit murder has been made out.

(b) Appellants 1 to 5 had congregated in the house of Appellant No. 2 in whose courtyard the initial assault took place in the evening of 7-9-1966 and were drinking liquor.

(c) Later in the night of 7-9-1966, accused Nos. 8 and 9 (acquitted) persuaded the deceased to come with them with some design. The deceased accompanied them armed with his spear indicating thereby that he had apprehension of personal danger.

(d) The deceased was thereafter gagged and assaulted by all the Appellants in the courtyard of Appellant No. 2. The latter gave discovery of the spear of the deceased from his own house.

(e) Appellant No. 6 who was sleeping with p.ws. 13 and 17 in his Dhenkisal went with p.w. 13 to investigate the noise in the house of Appellant No. 2. Finding that the person who was being assaulted was Prahallad Gadaba (deceased) with whom he had enmity, he joined the others in the assault. He came back to Dhenkisal to sleep after an hour''s absence.

(f) Warning administered to p.w. 13 by the Appellants early next morning that if he disclosed what he had seen, he would be implicated in the murder.

(g) The deceased was last seen alive in the village in the night of 7-9-1966 and thereafter he remained untraced till his dead body was discovered on 12-9-1966.

(h) Deceased met his death during the night on 7-9-1966 as appears from medical evidence and from the warning given to p.w. 13.

(i) Discovery of the spear of the deceased given by Appellant No. 2 from his house.

(j) Banian of Appellant No. 1 and Gamochha of Appellant No. 6 were found stained with human blood for which no satisfactory explanation is forthcoming.

These circumstances, taken together, point definitely and reasonably to the Appellants as the persons who either directly participated in the murder or remained associated with those of them who did the actual killing. The Appellants have offered" no explanation as to what happened to the deceased after assault on him in the courtyard of Appellant No. 2 was over. On the contrary, they have adopted a false plea of total denial. In this situation, such absence of explanation are additional links which complete the chain.

The mode of evaluating circumstantial evidence has been laid down by the Supreme Court in the case" of Hanumant Vs. The State of Madhya Pradesh, , in the following words:

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from with the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within an human probability the act must have been done by the accused.

We are, therefore, satisfied that the conviction of the Appellants u/s 302/149 Indian Penal Code, is correct. On the same circumstantial evidence as discussed above, the finding that all the Appellants ,had formed themselves into an unlawful assembly with the common object of assaulting the deceased and ultimately killing him is justified and accordingly they have been rightly convicted u/s 148, Indian Penal Code. Likewise, from the fact that the deadbody was disposed of at a place about a furlong and a half from the village and that all the Appellants threatened p.w. 13 not to disclose the incident so that delay in detention will obliterate evidence of murder by the corpse being destroyed by natural causes of decomposition and by wild animals, conviction u/s 201, Indian Penal Code is well-founded.

There is, however, some doubt as to the correctness of conviction u/s 379, Indian Penal Code. There is no evidence as to when Appellant No. 1 took the Gamochha from the deceased. If be took it after death bad occurred, be would be taking it out of possession of a dead man and it is doubtful if in such circumstances the act would amount to theft. However, since no separate sentence has been imposed u/s 379, Indian Penal Code, the question need not be decided.

The appeal is dismissed.

G.K. Misra, J.

I agree.