Matu Munda vs State of Orissa

M. Papanna, J.—This Jail Criminal Appeal is directed against judgment of the learned Sessions Judge, Sundargarh in S.T. Case No. 204 of 1993. The learned trial Judge convicted the accused (hereinafter referred to as ''the Appellant'') under Section 302 of the Indian Penal Code. He sentenced him to undergo Rigorous Imprisonment for life.

The case of the prosecution, in brief, is that Marium Kujur (hereinafter referred to as ''the deceased''), Appellant Matu Munda and Juliani Bhengra (P.W. 2) were returning from Bimalgarh market on 14.6.1993 after selling mangoes. On the way at Sianbahal they took rest for sometime. It was about 5 p.m.. At that time P.W. 2 went for answering call of nature. On her return, she saw Appellant dragging the deceased forcibly towards Gidhipahad. P.W. 2, when protested illegal act of the Appellant, he asked her to leave the place or else she would face the same consequence as that of the deceased. In her presence, the Appellant gave a slap on the mouth of the deceased. Then he dragged her towards Gidhipahad. Since then the deceased did not return home. Later she was found lying dead near Gidhipahad. On the FIR (Ext.1) lodged by P.W. 1, K. Balang P.S. Case No. 12 of 1993 was registered. During investigation the police held inquest over the dead body of the deceased. It was sent for autopsy. On completion of investigation, the Appellant was charge sheeted.

The Appellant pleaded innocence.

Eleven witnesses have been examined in proof of charges against Appellant. P.W. 1 is the informant. P.W. 2 is Juliani Bhangra. P.W. 3 is Ratni Komar who had gone to Bimalgarh market along with the deceased. P.W. 4 is Mangulu Munda, the maternal uncle of the Appellant. P.W. 5 is Dasrath Minz. P.W. 6 is Manuel Dhanwar a witness to recovery and seizure of weapon offence (M.O.I.) P.W. 7 is a Doctor, who examined the Appellant Matu Munda. P.W. 8 is another Doctor, who conducted autopsy on the dead body of the deceased. P.W. 9 is Prabhudan Tirkey a witness to seizure of sample and blood stained earth from the spot. P.W. 10 is Trilochan Patra a witness to seizure of wearing apparels of the deceased such as says stained with blood. P.W. 11 is the I.O.

On the other hand, no witness has been examined in defence.

The learned Sessions Judge, on consideration of evidence of witnesses on record, convicted the Appellant under Section 302, I.P.C. He sentenced him to undergo imprisonment for life.

Learned Counsel for the Appellant assails the judgment impugned before us on the ground that the circumstantial evidence on which the learned trial Judge based conviction of the Appellant has not been complete and fully established. His further contention is that the Appellant had no intention to kill the deceased for which his conviction under Section 302, Indian Penal Code is illegal and bad in law. That apart, he has strenuously argued that nobody has actually seen the Appellant assaulting the deceased to death. Evidence of P.W.2 that she saw the Appellant dragging the victim towards Gidhipahada is not at all sufficient to reach a positive conclusion of guilt of the Appellant in a charge of murder. On the other hand, the learned Addl. Govt. Advocate supported the impugned judgment.

In the case at hand, prosecution hinges essentially on circumstantial evidence. We can categorise the said circumstantial evidence as below in order to find out as to who is the perpetrator of the crime.

(i) medical evidence as deposed to by P.W. 8 testifying that death of the deceased is homicidal in nature.

(ii) motive of the accused for committing crime.

(iii) the deceased was returning along with P.W. 2 and the accused at the material time from Bimalgarh market.

(iv) the deceased was last seen together in the company of the accused on the date of occurrence.

(v) recovery of weapon of offence, a stone (M.O.I) by the I.O. on the information of the accused.

Before we examine evidence on record, we would like to point out what the law is relating to appreciation and acceptance of circumstantial evidence in a criminal trial. He rely on the case of Laxman Naik Vs. State of Orissa, in this regard. In the reported case their Lordships have held as follows:

The standard of proof required to convict a person on circumstantial evidence is now well establish by a series of decisions of this Court. According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. 10. We may also follow certain guidelines laid down in the leading case of Hanumant Vs. The State of Madhya Pradesh, . We have to bear in mind the caution regarding danger that most often there is likelihood that conjecture or suspicion may take place of legal proof. But such suspicion, however, so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjecture and suspicion do not take the place of legal proof. The Court has to be satisfied fully that the various instances in the chain of evidence is established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.

In the present case, medical evidence is one of the chains in the circumstantial evidence tendered by P.W. 8. He has conducted autopsy on the dead body of the deceased. He has proved the post mortem report (Ext. 10). Ext. 10 shows some injuries found on the victim. They are;

(i) There was a fracture of left parietal bone extending throughout the bone 11/2" to the left arm mid-line almost parallel to sagital suture.

(ii) There was a laceration of membrances of brain at the sight of fracture with blackish brown clotted blood.

(iii) There was laceration of left parietal lobe of brain with blackish brown clotted blood in it on cutting.

The dead body was decomposed. So sign of sexual intercourse could not be detected in the victim. However, it has been opined by P.W. 8 that the death of the deceased might be due to injuries on the head leading to shock and brain damage. She died homicidal death. Time since death was within 48 to 72 hours prior to P.M. examination. The head injuries in ordinary course of nature could cause the death. On query by I.O. (P.W. 11), P.W. 8 examined a stone (M.O.I) and opined that the injuries sustained by the deceased could be possible by the same. He proved his opinion (Ext. 11).

The learned Sessions Judge, on medical evidence, held that the deceased sustained injuries which are ante mortem in nature and she died a homicidal death. Medical evidence has not been challenged by the defence during trial before the trial court nor the same has been controverted by the learned Counsel for the Appellant during hearing of the appeal before us. As such we affirm the above finding of the learned trial judge unhesitatingly.

On behalf of the Appellant, it is contended that motive of the accused for commission of the crime has not been established in this case. In this regard, the Apex Court has said in the case of Udayapal Singh v. State of U.P. AIR 1992 SC 54 that where only circumstantial evidence is available, at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having strong enough motive, had the opportunity to commit the crime and the established circumstances on the record considered along with explanation if any of the accused, exclude the reasonable possibility of any one else being the real culprit then the chain of evidence can be considered to be so complete as to show that with all human probabilities the crime must have been committed by the accused. He may in that event safely be held guilty on such circumstantial evidence.

In the present case, evidence of P.W. 1 proves such motive of the Appellant to commit the crime. His evidence indicates that the Appellant and deceased belong to the same village. He had a desire to marry her. But she was not willing to marry him. The matter was referred to village Panch which directed him not to keep any relation with her. From the evidence of P.W. 1 corroborated by evidence of P.W. 2 it can be inferred that the Appellant was waiting for the opportunity to commit the crime. He got it on 14.6.1993 when he was returning home from Bimalgarh market along with the deceased. Version of P.W. 2 is very clear, consistent and convincing on this aspect. On the way near Gidhipahad he dragged her towards the said Pahad forcibly. On protest by P.W. 2, he asked her to leave the place or else she would face the same consequences as that of the deceased. Evidence of P.W. 2 establishes these facts and circumstances of the prosecution case. When his desire to marry the victim could not be materialised he wanted to take revenge on her. He having strong enough motive, had the opportunity to commit the crime on the relevant date and time of occurrence. During his examination under Section 313, Code of Criminal Procedure he failed to explain as to what happened to the victim. He should explain how she died particularly when she was going along with him from Bimalgarh market. In this connection reliance can be placed on the Division Bench decision of this Court reported in Vol. Patra Bahale alias Kishall Vs. State of Orissa, . In the said decision this Court had taken the view that it is the duty of the accused to furnish reasonable explanation as to what happened to the deceased and how she was murdered. If somebody else would be the murderer, the accused as a lover would naturally intervene and protect the deceased. On the contrary, the Appellant furnished no explanation as to how the deceased died.

The prosecution has to prove that the deceased, P.W. 2 and the Appellant were returning from Bimalgarh market at the material time. This is an important chain in the circumstantial evidence connecting him with complicity of the crime. FIR (Ext. 1) discloses that the victim along with P. Ws. 2 and 3, Appellant and Ors. had been to Bimalgarh market to sell mangoes on 14.6.1993. She did not return home on that day. Ratni (P.W. 3) handed over the basket to the mother of the victim. On being asked by P.W. 1 about the victim, she told that she, along with five to six others were returning from the market. On the way they took rest near Sianbahal. Then she and Ors. went ahead leaving the deceased, Appellant and Juliani (P.W. 2). P.W. 1 also asked Juliani (P.W. 2) about victim. She told him that the victim and Appellant were in Gidhipahad. Then P.W. 1 along with Johan Kujur and Isac went to Gidhipahad in search of the victim, but of no avail. They also asked Mangulu Munda (P.W. 4) about Appellant. He happens to be his maternal uncle. He told them that the Appellant had come to his house. They took food together. Thereafter, he had gone to attend call of nature, but did not return. Evidence of P.W. 4 lends support to the version of P.W. 1 on this points. At last dead body of the victim was found lying by the side of the road near Gidhipahad. P.W. 1 corroborated Ext. 1 containing story of prosecution case. Evidence of Juliani (P.W. 2) has also lent support to the prosecution case. Her version is very clear, cogent and consistent when she says that she, deceased and the Appellant were returning together from the market on the date of occurrence. She has made it clear that on the way near Sianbahal they took rest. She went to attend call of nature. On her return she found the Appellant and the deceased dragging each other. He was dragging her towards the hill. On protest, he asked her to leave the place or else she would face the same fate. Then he gave a slap on the mouth of the victim. He dragged her towards hill. At that time, she came away. On the next day, she came to know about the death of the deceased.

Evidence of Ratni (P.W. 3) lends support to the version of P.W. 2. Evidence of P. Ws. 1, 2, and 3 regarding returning of the victim along with the Appellant from Bimalgarh Market on the date of occurrence at about 5 P.M. has not been challenged by the defence during cross-examination. Evidence of P.W. 2 that near Sianbahal they took rest; she went to answer call of nature and on her return she found the Appellant dragging the victim towards Gidhipahad and that he gave a slap on her face in her presence and then he dragged her towards the hill has remained unassailed during cross-examination by the defence. Therefore, the learned trial judge has rightly accepted and relied upon the evidence of P. Ws. 1, 2 and 3 in proof of the fact that the deceased was returning along with P.W. 2 and the Appellant at the material time from Bimalgarh market and the deceased was last seen together in the company of the Appellant on the date of occurrence. Moreover, we find no reason as to why P.W. 2 would go out of her way to falsely implicate the Appellant. No manner of strained relation, nor personal enmity as such between her and the Appellant has been established by the defence. In such a view of the matter we give weightage to her evidence so far as the fact of Appellant dragging the victim, assaulting on her face and she being last seen together with him is concerned. This last seen theory relied upon by the prosecution having been not challenged by the defence during trial, the same has been rightly accepted by the learned Sessions Judge as a chain of link to the circumstances showing that the deceased was last seen in the company of the Appellant at the material time. On scrutiny of evidence of P.W. 2, we are fully convinced that she is a truthful witness. Her evidence that she saw the deceased last in the company of the Appellant at the material time cannot be disbelieved and discarded. The said last seen together aspect is a clinching circumstance appearing against the Appellant. When he was failed to explain it in his statement, we safely accept and rely upon it as an important link to the chain of circumstances connecting him with the alleged crime.

As per contention of the learned Counsel for the Appellant P.W. 2 has seen the part of the occurrence. We agree with him. That is why we accept her evidence as an additional link to the chain of events presented by the prosecution. In our considered view her evidence is most trustworthy. We see no reason why reliance should not be placed thereon.

The next and most vital chain in the circumstantial evidence relied upon by the prosecution is recovery of weapon of offence. Evidence of I.O. (P.W. 11) corroborated by evidence of P.W. 6 has established recovery and seizure of a stone (M.O.I) under seizure list (Ext. 2). With this stone (M.O.I) the Appellant killed the deceased. Their evidence to the effect that while in custody, the Appellant gave information regarding concealment of the weapon of offence and led the I.O. and independent witness (P.W. 6) to the recovery of the same from the place of concealment is very clear and categorical. Their evidence corroborated by the medical evidence as deposed to by P.W. 8 has well established beyond doubt that by M.O.I. the injuries as per P.M. report (Ext. 10) were inflicted on the victim. We have perused Ext. 11, the opinion of Doctor (P.W. 8), we are fully satisfied that M.O.I is the weapon of offence with which the injuries as per Ext. 10 were inflicted on the victim. The contentions of the learned Counsel for the Appellant that he has been roped falsely in this case cannot be sustained having no force of law. Moreover, relying on the decision of the Supreme Court in the case of State Government of N.C.C. Delhi v. Sunil and Anr. reported in 2000 (7) Supreme 728, we do not distrust version of P.W. 11 regarding recovery and seizure of M.O.I, as the same is not otherwise unreliable.

The Appellant was also tried for the offence of rape under Section 376, Indian Penal Code along with charge of murder. However he was acquitted of the charge for want of legal evidence. But his acquittal of the said charge cannot be a ground to hold him not guilty of the charge of murder, as contended by the learned Counsel for the Appellant. His further contention that the Appellant had no intention to commit murder of the deceased and as such his conviction under Section 302, Indian Penal Code should be converted to one under Section 304, Indian Penal Code stands rejected. The reason is obvious. He has inflicted injuries by means of M.O.I. on her head with much force with intention to finish her for which it was broken into pieces. In such a view of the matter we do not agree with the aforesaid contentions raised by the learned Counsel for the Appellant.

In the result, we hold the Appellant guilty under Section 302 I.P.C. We dismiss the Jail Criminal Appeal and confirm his conviction and sentence passed against him.

B.P. Das, J.

I agree