Narayan Orang And 2 Ors vs State Of Assam And Anr

S. Serto, J

Heard Ms. Bijita Sarma, learned Amicus Curiae appearing in Crl.A(J) 83/2016. Mr. A. Ganguly, learned Amicus Curiae appearing in Crl.A(J) 104/2016 and Ms. S. Jahan, learned Additional Public Prosecutor for the State of Assam.

These two appeals are directed against the judgment dated 26.07.2016 and sentence order dated 01.08.2016 passed in Sessions Case No.144(T) of 2014 by the learned Sessions Judge, Tinsukia wherein and whereby the appellants in the two appeals were held guilty of having murdered one Budhoni Orang and another namely, Raka Orang of Samguri Village, P.S. Doomdooma in Tinsukia District with common intention to do so, punishable under Section 302 read with Section 34 IPC and sentenced to RI for life with a fine of Rs.1,000/- each and to a further period of 6 months RI in default of payment of the same.

The prosecution story in brief is that in the evening of 24.09.2013, at about 7 p.m, while the first victim late Smt. Budhoni Orang was sitting on the veranda of her house situated at Samguri village and her two daughters were inside the house, one of the accused namely, Purna Orang rang up to one of the daughters namely, Sushila Urang and asked her as to who were present in their house. Smt. Sushila Urang told him that she, her mother and her sister were the only ones present at their house. Soon thereafter, all the accused persons armed with lathis except Purna Orang who was armed with a dao came to the house of the victims and attacked the victim No.1 Budhoni Orang with the weapons which were in their hands, thereby causing serious injuries. At that time, the second victim Raka Orang came to the house of the first victim and seeing the incident, he shouted, and he was then chased by the accused persons towards the road and was also murdered at the same time by the accused persons.

Ms. Bijita Sarma, learned Amicus Curiae appearing for the three appellants in Crl.A(J) 83/2016 submitted that there were only two eye witnesses of the incident but the rest of the witnesses who were examined as PW- 3, 4, 5, 6, 7, 8, 9 and 10 were not eye witnesses of the incident. After having pointed out as such, the learned counsel submitted that the complainant in the case who is the daughter of the first informant and cousin sister of the second victim did not name the accused persons in the ejahar submitted before the Officer-in-Charge of Talap Police Outpost but disclosed their names only on the third day from the date of occurrence when her statement was recorded by the I/O of the case. Therefore, her evidence given in the Court lacks credibility as to the commission of the crime by the accused persons. Thereafter, the learned counsel also took us through the deposition of the PWs given in the Court to show that it was only PW-1 and 2 who were the eye witnesses and the rest were not and also to show that the complainant never mentioned the names of the accused persons before 26.09.2013 when, for the first time, she mentioned the names of the accused to the police.

Mr. A. Ganguly, learned Amicus Curiae for the appellant in Crl.A(J) 104/2016 submitted that there is no evidence to show that PW-1 and 2 were present at the place of occurrence when the incident occurred. Therefore, their so called eye witness account is doubtful. The learned counsel submitted that none of the witnesses specified the nature of involvement of the appellant Golap Orang. Therefore, there is no material in evidence to rope him in under Section 34 of the IPC.

Mr. A. Ganguly, learned counsel further submitted that since the PW-1 did not mention the name of the accused person at the first instance when the ejahar was lodged her evidence against him is doubtful. Therefore, it would not be safe to rely on the same. Furthermore, Mr. A. Ganguly, submitted that the two witnesses PW-1 and 2 are the relatives of the two victims therefore, their evidence cannot be taken at their face value and by relying on the same the accused persons cannot be held guilty.

Ms. S. Jahan, learned Additional Public Prosecutor, appearing for the State of Assam submitted that though it is true that the complainant did not mention the names of the accused persons at the time of filing of the ejahar, the reason for not doing so has been explained adequately by the complainant herself when she was examined as PW-1 and by her sister who was also examined as PW-2.

Ms. S. Jahan, submitted that the two witnesses had explained the reason for not mentioning the names of the accused persons by stating that they were threatened not to do so by the accused persons. Therefore, in that kind of circumstance, especially in the case of the two witnesses who were then only at the age of 19 and 14 ½ respectively, it would be unreasonable not to believe their evidence.

In support of her submission, the learned counsel cited a judgment of the Hon'ble Supreme Court passed in the case of Pralhad -vs- State of Maharashtra, reported in AIR 1981 SC 1241.

The contents of paragraph-5 of the said judgment are as follows:-

"Mr. Bhartari who has argued this case with great vehemence submitted that the names of these two eye-witnesses were not mentioned in the FIR. The first informant not an eye-witness at all and there is no evidence to show that these two witnesses had disclosed the name of the assailant to the informant. The definite case put forward by the two witnesses in Court is that immediately after they saw the assault, they were given serious threats by the accused and other villagers also advised them not to intermeddle with the affairs of the deceased and the appellant. This explains the silence of the witnesses. Thus, there being nothing to show that these witnesses had mentioned the names of the assailant to the informant Tulsi Das, they cannot be disbelieved on the ground that their names had not been indicated in the FIR."

On the reliability of witnesses who are relatives of the victims, learned Additional Public Prosecutor submitted that because witnesses happens to be close relatives of the victims evidence given by them cannot discarded if the evidence has a ring of truth around it and it is cogent, credible and trustworthy.

In support of her submission, Ms. S. Jahan, cited the judgment of the Hon'ble Supreme Court passed in the case of Gangabhavani Vs. Rayapati Venkat Reddy and Ors., reported in (2013) 15 SCC 298. The relevant paragraphs, 11 and 12 of the said judgment are reproduced below:-

"11. it is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon."

In State of Rajasthan Vs.Smt. Kalki and Anr reported in AIR 1981 SC 1390, this Court held:

"5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) She was a "highly interested" witness because she "is the wife of the deceased" .......... For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondent."

Ms. S Jahan, learned Additional Public Prosecutor, furthermore submitted that the evidence of relative witnesses if corroborated by other evidence ought to be believed and taken into account. Thereafter, she further submitted that in this case, the medical evidence given by the Doctor, who conducted the post mortem on the dead bodies of the two victims has corroborated the evidence given by the two PWs i.e., PW-1 and PW-2, therefore, there is no reason at all to discard or disbelieve their evidence just because they happened to be the close relatives of the two deceased.

In support of her submission, the learned counsel cited the decision of the Hon'ble Supreme Court passed in the case of Nagappa Vs. State of Madras, reported in (2013) 15 SCC 252. The contents of paragraph 7 are reproduced hereinbelow:

"7. This Court, in series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect credibility of a witness."

Lastly, the learned Additional Public Prosecutor, Ms. S Jahan, submitted that though the witnesses have not specified as to what each accused committed in the crime i.e., in the killing of the two victims, their common intention can be gathered from the manner in which the crime was committed, from their conduct before and after the occurrence of the crime, the circumstances under which the crime was committed, the weapons carried by the accused and from the nature of injury caused by one or some of them. Definitely a conclusion can be drawn from such, as to the existence of their common intention. The learned P.P. then submitted that in this case, there was a telephone call from one of the accused to the informant/PW-1 and thereafter, the accused persons all armed with lathis except for one of them who was armed with a dao came to the place of occurrence and killed the first victim i.e. Budhoni Orang and, thereafter, the second victim namely, Raka Orang and furthermore, they also surrendered before the police after 2/3 days from the date of the commission of the crime. All these goes to show that they committed the crime with common intention, therefore, all of them are liable to be punished under Section 302 of the IPC read with section 34 of the same code.

In support of her submission, the learned Additional Public Prosecutor cited the judgment of the Hon'ble Supreme Court passed in the case of Goudappa and Ors. Vs. State of Karnataka, reported in (2013) 3 SCC 675. The relevant contents of the paragraph 16 of the judgment on which emphasis is laid are given hereinbelow:

"16. Then how to gather common intension? The common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature and injury caused by one or some of them. Therefore, for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration."

We have given our anxious consideration to the submissions of the learned counsels appearing for the parties in the light of the facts and circumstances of the case and the evidence on record. We have also gone through the impugned judgment passed and the order of sentence passed by the learned Sessions Judge, Tinsukia.

As rightly pointed out by the learned counsel appearing for the parties in the two appeals, we are also of the view that the most important evidence in this case are the ones given by PW-1 and PW-2 who are none other than the daughters of the first victim i.e., Budhoni Orang and counsin sisters of the second victim Raka Orang. PW-1 in her evidence has stated that she was the one who lodged the ejahar on 25.09.2013 and she did not mention the names of the accused persons as she was threatened not to disclose their names. She also stated that in the evening of 24.09.2013 at about 7 P.M., while she was inside their house along with her sister Rupali Orang (PW-2) their mother (the deceased victim) was seated at the verandah of their house. And that time one of the accused, namely, Purna Orang rang up and asked her as to who and who were present in the house and to that she responded by saying that except for her mother, her sister and herself, there was nobody present. Soon thereafter all the accused persons armed with lathis except for the accused Purna Orang who was armed with dao came to their house. After hearing the sound of commotion outside the house, she came out and saw Purna Orang armed with a dao cutting her mother's neck. Seeing the happening she and her sister started crying but they were told to stop with threat by the accused persons. At that time her counsin brother Raka Orang (one of the deceased victim) came back to the house and saw what was happening and started shouting. Seeing him, the accused persons ran after him and killed him also at the same time at a place slightly away from their house. The witness further stated that thereafter the two dead bodies were taken to the garden hospital where they were declared dead. The witness exhibited the ejahar as exhibit 1 and her signature on the same as exhibit 1(1), but stated that the ejahar was not written by her. She also stated that the incident took place due to land dispute between them and the accused persons. The witness further stated that her statement was also recorded before a Magistrate and exhibited the same as exhibit 2 and her signature as exhibit 2(1) and 2(2). She confirmed in her cross examination all that she had stated in the examination-in-chief.

The evidence of PW-1 is supported and corroborated by the evidence of PW-2 who also stated more or less the same except regarding the phone call. She also stated that under threat the accused persons had told them not to disclose their names that they killed the victims. Therefore, due to fear they did not disclose the names of the accused persons. But two days thereafter they disclosed before the police that it was the accused persons who caused the death of their mother and their brother. She also stated that she gave statement before a Magistrate and exhibited the statement as exhibit-3 and her signature on the same as exhibit-3(1) and exhibit-3(2).

In her cross examination, the witness stated that for the first time her statement was recorded on 26.09.2013 and on that day, she disclosed the names of the accused persons.

On perusal of the evidence given by these two PW's their statements recorded under Section 164 Cr.P.C., by the Judicial Magistrate 1st Class, Tinsukia we find that their evidence are consistent in all respect and there is no deviation or contradiction. We find no reason to disbelieve on the truthfulness of their evidence. As rightly pointed out by the learned Additional Public Prosecutor there is a ring of truth in the evidence given by the relatives and the same are cogent, credible and trustworthy. Therefore, we find no reason why their evidence should not be or cannot be relied upon.

As stated above the evidence of the two PWs are credible and trustworthy because there is no contradiction, deviation or variance on the material particulars relating to the occurrence of the crime. The fact that PW-1 while lodging the ejahar had not mentioned or had not disclosed the names of the accused persons will not make any difference on the credibility of the evidence given by her and her sister, PW-2 since they have explained the reason as to why the names of the accused persons were not mentioned at the first instance. It is quiet natural that two young girls who no longer has their father would naturally be under fear psychosis when their mother who is the only one they are left with and their cousin brother, were killed in front of them with such brutality.

The evidence of the two witnesses is also trustworthy and credible because the evidence of the doctor, who conducted the post-mortem on the two dead-bodies of the victims supported their evidence. PW-9, who is the doctor, who conducted the postmortem, in his examination-in-chief, stated as follows:-

"External Appearance: - Dead body of an adult male, wearing a blue jean pant, blue half shirt and red banyan. Eyes and mouth partially opened. Dry blood stain present. Rigor mortis present all over the body.

Injuries:-

A 7 inch long 1 inch width sharp cut injury on the left side of head, extending from left temporal area to parietal area, bone deep with exposure of cranial cavity.

5 inch long sharp cut injury extending from left cheek to upper lip, bone deep, exposing the maxillary matters.

A 4 inch x 2 inch injury on central part of the neck, below the thyroid cartilage, exposing the trachea.

2 inch x one and half inch sharp cut injury on the right mandible area.

Fracture of the occipital bone with multiple fragments present. A 2 inch x 2 inch area of contusion present over occipital area. On dissection, membrane congested and large haematoma presentover the occipital area.

Other organs were normal healthy.

Opinion :- In my opinion, the person died due to shock and haemorrhage (neurogenic) as a result of the injury to the brain. All the injuries descried, are ante mortem and homicidal in nature, caused by sharp cutting weapon. Injury No. 5 is caused by blunt force impact. Time since death was 12 to 24 hours.

The injury to the brain, which I referred, is the injury No. 5.

Ext. 7 is the postmortem report and Ext.7(1) is my signature.

On the same day at about 2.30 P.M., I performed postmortem examination on the dead body of Budhoni Orang in connection with Talap O.P. G.D.E. No. 448 dated 24.9.13. The dead body was brought and identified by UBC/125 Helen Patra and Bulen Kujur and Pradip Orang. On examination, I found as follows -

External Appearance:- Dead body of a female subject, wearing a green blouse, red and green mekhela and red petticoat. Eyes and mouth shut. Rigor mortis present all over the body.

On examination of body, the neck is seen to be severed from the body with four sharp cut injuries extending from angle of right mandible to left of the neck. The vertebral column is cut at the level of Cervical 1 (C1) and Cervical 3 (C3). Spinal cord is cut. A clean cut injury of parietal region on right side, cutting through the both the tables of skull bone with exposure of brain matter, which is 5 inch long. A sharp cut injury over left shoulder deltoid area, 4 inch x 1 inch. Multiple cut injuries over right wrist joint one and half inch long and half inch width, 3 in numbers, spaced half inch apart. Another about 7 inch long and one and half inch cut mark on the left side of the face extending from cheek area to posterior aspect of left ear with exposure of both tables of bone. Other organs were normal and healthy.

Opinion:- In my opinion, the person died as a result of injury to the spinal cord and brain, leading to neurogenic and haemorrhagic shock and wound are ante mortem and homicidal in nature, caused by sharp cutting weapon. Time since death was 12 to 24 hours. Ext. 8 is the postmortem report and Ext.8(1) is my signature."

From the evidence given by the doctor what one can see is that multiple injuries were found on both the victims, which were caused with sharp weapons and blunt weapons and this supports the evidence of the two witnesses which stated that the accused persons were all armed with lathi except for one of them, who was armed with a dao.

Further the evidence of the two witnesses are also corroborated by the evidence of the two Investigating Officers, who testified in detail about the registration of the FIR and the way how the case was investigated and the materials for trial were collected. There is nothing in the record which would cast any doubt on the truthfulness and trustworthiness of the evidence given by both the doctor who conducted the postmortem on the two dead-bodies and the evidence given by the Investigating Officer.

Considering all that has been stated above, we find no reason to interfere in the impugned judgment and order and the sentence passed by the learned Sessions Judge, Tinsukia. Therefore, both the appeals are dismissed.

Send back the LCR along with a copy of this judgment immediately.

Before parting with the record, we appreciate the valuable service rendered by both Ms. B. Sarma and Mr. A Ganguly, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- each as legal fees be paid to them by the High Court Legal Service Committee upon production of a copy of this judgment and order.