Pandaka Narayan and Others vs State of Orissa

R.N. Misra, J.—Appellants have been convicted u/s 302/34. Indian Penal Code by the learned Sessions Judge of Koraput and each of them has been sentenced to rigorous imprisonment for life.

According to the prosecution case in the early hours of night of 15-12-1970 the deceased Khinbudi Domburu, Khillo Lokanath (P.W.14) and B. Lachmi (P.W.15) were sitting near the fire in front of the house of P.W. 14. The accused persons were similarly sitting by the side of the fire near the house of Appellant Pandaka Pratap. At that point of time Pandaka Pratap abused Khinbudi Domburu saying that he had stealthily removed olsi (said to be a fruit). Thereupon the deceased protested. There was not exchange of words. Then the accused persons went into their house and returned being armed with spears. Appellant No. 4, Pandaka Pratap had also brought an axe with him. The deceased went home and returned with an axe. Appellant Pandaka Pratap pierced his spear on the thigh of the deceased. The deceased assaulted Pandaka Pratap with the axe and gave two blows. All the Appellants surrounded the deceased and started assaulting him with spears as a result whereof he sustained fatal injuries and succumbed to injuries at the spot.

The defence was one of complete denial of the occurrence. Pandaka Pratap in his examination u/s 342, Criminal Procedure Code, named P.W. 3 as the assailant.

The prosecution examined 17 witnesses in all of whom PWs. 14 and 15 are the only eye-witnesses. P. ws. 1 to 4 and 6 to 8 were post occurrence witnesses. P. ws. 11, 12 and 17 were the investigating Officers. P.w. 13 was the doctor who conducted the post-mortem examination of the dead body. Others were formal witnesses.

The learned Sessions Judge came to hold that the a Appellants had inflicted grievous injuries on the deceased which led to his death and relied upon the evidence of PWs. 14 and 15 for such finding.

Appellants 1 to 3 are brothers being sons of Pandaka Dhono. Appellant No. 4 is the brother of Pandaka Dhono. The deceased was the village barber. According to P.W. 14 while he along with P.W. 15 was sitting near the fire in his outer courtyard, Appellant No. 4 started abusing the deceased. P.w. 14 has stated:

Khinbudi Domburu came to us protesting the abuse. Then the accused persons being armed with one spear each came to us. The accused Pandaka Pratap held M.O. II then. The M.O.S. I, III and IV were not held by the other accused. The rest three accused persons held spears whose handles had pointed ends.... The accused Pandaka Pratap gave two strokes with the pointed iron end of M.O. II on the back side of the right leg of Khinbudi Domburu. Then Khinbudi Domburu gave one stroke with the axe on the neck of the accused Pandaka Pratap. Then Kbinbudi Domburu was running and the accused Pandaka Jagabandhu pierced his spear on the belly of Khinbudi Domburu. Then the accused Pandaka Narayan pierced the spear into the neck of Khinbudi Domburu. Then the accused Pandaka Madan pierced the spear on the forehead of Khinbudi Domburu. Then Khinbudi Domburu sustained bleeding injuries, felt down on the ground and died.

This occurrence is said to have taken place on the outer courtyard of the witness. This witness in the committing Court had categorically stated that he was not able to say as to which of the accused persons assaulted the deceased on which part of his body. The witness had also stated before the committing Court that when Appellant No. 4 turned to call the other accused persons the deceased gave a blow on the back side of waist and it is only thereafter that Khinbudi Domburu had been assaulted by Pandaka Pratap. The evidence given by this witness in the committing Court and at the trial is thus discrepant on two material aspects. According to the witness''s statement before the committing Court the initial assault was by the deceased on Appellant No. 4 and Appellant No. 4 after being injured retaliated by inflicting the spear wound on the thigh.

P.W.15, the other eye witness, narrated the incident thus:

The accused Pandaka Pratap and Khinbudi Domburu exchanged stones and abused each other. Then the accused Pandaka Pratap went to the house and returned holding M.O.I. Then Khinbudi Domburu went to his house and returned with an axe. Then the accused Pandaka Pratap pierced M.O. I, into the right thigh of Khinbudi Domburu. Then Khinbudi Domburu gave one stroke with the axe on the waist and another stroke with the same axe on the back. Then the accused Jagabandhu. Madan and Narayan holding one spear each came and chased Khinbudi Domburu and the accused Pandaka Narayan pierced on the neck. The accused Madan pierced on the forehead. The accused Jagabandhu pierced with the spear on the belly of Khinbudi Domburu as a result of which Khinbudi Domburu sustained bleeding injuries, fell down on the ground and died.

According to p w 15, therefore, both the deceased and Appellant No. 4 had returned to their houses after the quarrel stated to arm themselves. There is no mention regarding the other accused persons being armed. P.w. 14 has made a categorical statement that M.O.S. I, III and IV were not the spears held by the accused persons and M.O. II was held by Appellant No. 4. P.w. 15 has identified M.O.I. as the spear of Appellant No. 4.

The occurrence took place at about 9 p. m. on 15th December. 1970. The two eye witnesses have stated that they saw the occurrence as it was a moonlit night. On a reference to the almanac it was found that it was the third day of the dark fortnight. Therefore, the moon must have appeared on the sky after three ghadis of sun set. The moon could not have been very much in the sky by the time of the occurrence. The evidence given by each of these two witnesses about the details of the incident differs substantially and while in the committing Court the witnesses had stated in one way about the details, they have spoken differently at the trial. According to the evidence in the committing Court the deceased was the first assailant while at the trial the witnesses have tried to change the sequence by claiming that Appellant No. 4 started the assault.

The remaining witnesses have not seen any part of the occurrence. P.w. 1 who is said to be a post occurrence witness and was the informant did not disclose the name of any of the accused persons at the time of giving First Information Report. P. w.2 had accompanied P.W. 1 to the police station. According to him, he first reported the matter to the police and he named all the accused persons in his report. This obviously is not correct statement because the First Information Report does not contain the names of the accused persons. P. ws. 3 and 4 do not appear to be material at an. P.w. 6 is the father of the deceased. P.w. 7 happens to be the son of the, deceased. While the father has not made any statement for all purposes, P.W. 7 relied upon his mother''s statement to him for naming the Appellants as the assailants of his father. P. w.8 is the widow of the deceased. She too has not spoken any thing material.

From the evidence of PWs. 14 and 15 the true picture of the entire incident is not really available. It is difficult to rely upon the shaky evidence of these two witnesses to hold that the occurrence took place in the manner described by them. There is inconsistency in regard to the accused persons getting armed, the M. Os. I to IV being arms used by the accused-Appellants; the place of occurrence is in dispute; the manner of infliction of injuries has been deposed to differently and while P.W. 14 had stated in the committing Court that he was not able to say who inflicted which of the injuries, at the trial he has tried to be very specific. The availability of light to see the details of the occurrence is also very much doubtful. Taking an overall picture of the matter we are led to hold that the prosecution has failed to establish the charge of murder beyond reasonable doubt and, therefore, the conviction of the Appellants cannot be sustained. We allow the appeal, set aside the judgment of conviction and direct that the Appellants be acquitted and they be set at liberty forthwith.

K.B. Panda, J.

I agree.