Panlush Oraon vs State of West Bengal

Jayanta Kumar Biswas, J.—The appellant in both the appeals (one through advocate and the other through jail authority) is aggrieved by a judgment of the Additional Sessions Judge, 1st Court, Jalpaiguri, dated April 12, 1999 in Sessions Case No. 62 of 1990 convicting him of an offence under Section 302 IPC and the order of the Judge dated April 13, 1999 sentencing him.

The sentencing part of the order dated April 13, 1999 is quoted below:

".......that the convict Poulush Oraon convicted under Section 302 of the Indian Penal Code is sentenced to suffer life imprisonment and a fine of Rs. 1,000 (one thousand) only and in default of payment of fine he is to suffer imprisonment for a period of one month more."

The F.I.R. was registered at Mal police station in Jalpaiguri sub-division of the district Jalpaiguri on August 4, 1986 at 2.05 a.m. The information was given by one Basant Baraik. The oral information was reduced to writing.

Basant stated as follows. He, his mother and his elder sister, Anita, were residing together at Dukhia Line of Neoranadi Garden. He and his mother were employed in the garden. On the night of August 3, 1986 at around 9 p.m. his mother went to the road for taking fresh air. Other people of the village were also there. The appellant reaching there and calling his mother an old witch killed her with a Tangi (a hatchet). The incident was witnessed by Fuljan Munda and Piyari Oraon. Hearing sound his sister came out and seeing his sister the appellant fled.

The appellant was arrested and produced before the magistrate on August 11, 1986. Statements of one Amrita Uraon, Fuljan, Piyari and Anita @ Kutel were recorded under Section 164 Cr.P.C. on August 11 & 12, 1986. The appellant was granted statutory bail on November 10, 1986. A charge-sheet dated January 25, 1989 was filed against the appellant under Section 302 IPC on May 18, 1989. Charge was framed under Section 302 IPC on January 12, 1993. The appellant pleaded not guilty and claimed to be tried.

Between April 21, 1995 and March 9, 1999 the prosecution examined the following witnesses: P.W. 1 Kutel; P.Ws. 2-6 Hari Thakur, Tulu Mahali, Bindeswar Rai, Bajrang Rai & Puli Kar (all neighbours); P.W. 7--the officer making further investigation; P.W. 8 the officer completing investigation and filing charge-sheet; P.W. 9 the officer starting investigation; P.W. 10 Basant; P.W. 11 the magistrate recording the Section 164 statements; P.W. 12 Piyari; P.W. 13 Fuljan; P.W. 14 Amrita; P.W. 15 the doctor doing the postmortem.

The prosecution exhibited the following documents: Ex. 1 the FSL report; Ex. 2 the serologist''s report; Ex. 3 the F.I.R.; Ex. 4 the sketch map of the scene of the crime; Ex. 5 the inquest report; Ex. 6 the dead body challan; Ex. 7 a seizure list dated August 4, 1986; Ex. 8 a seizure list dated August 5, 1986; Ex. 9 the four Section 164 statements of P.Ws. 1, 12, 13 & 14; Ex. 10 the post-mortem report.

The appellant was examined under Section 313 Cr.P.C. on August 29, 1998 and again on March 19, 1999. On August 29, 1998 the appellant, while saying that he was innocent, also said that he would give defence evidence. On March 19, 1999 he, however, said that he would not give any defence evidence.

Examination-in-chief of P.W. 1, Kutel, is quoted below:

"I reside at Fulbani. Prior to my marriage I used to reside in my father''s house at Neoranadi T.E. Etoari Baraik was my mother. She is now dead. She died about 8/9 years back. About 8 & 9 years back one night at about 10.00 p.m. the accused Panlush murdered my mother by Tangi. On hearing the cries of my mother I came out of the room and found Panlush to murder my mother and to run away. I raised alarm when the villagers assembled at the PO. I narrated the matter to them and told them Panlush had murdered my mother. The accused Panlush is present in court today (id.)."

Cross-examination of P.W. 1 is quoted below:

"On hearing the cries of my mother I came out on the road and found my mother was lying on the road. It is not a fact that at that time I did not see Panlush there. I saw Panlush to runaway from that place with Tangi in hand. It is not a fact that I did not see Panlush to murder my mother. It is not a fact that I did not see Tangi in the hand of Panlush. I was interrogated by police. It is not a fact that I have not stated to police to have seen Panlush to inflict tangi blow to my mother. It is not a fact that I did not tell the police that Panlush had tangi in hand. Many persons came to the PO hearing my shouts. Tulu Mahali, Hari Thakur, Bindheswari, Phuli Oraon, Bajrang, Piary and others came to the PO on hearing my shouts. After the incident I went to the manager of the tea garden. Tulu, Bindesari and Hari Thakur accompanied me to the manager and I reported everything to the manager. It is not a fact that Panlush did not murder my mother by Tangi. It is not a fact that I did not see Panlush to runaway from the PO. After reporting to the manager of the tea garden I went to Police station and lodged the F.I.R. It is not a fact that I deposed falsely."

Examination-in-chief of P.W. 2, Hari Thakur, is quoted below:

"I reside at Neoranadi Station. Previously i.e. about 7/8 years back I used to reside at Neoranadi T.E. I know Etoari Baraik, mother of the P.W. 1 Kutel. Etoari died about 8/9 years back. She was murdered by Paulush. About 8/9 years back on the date of murder of Etoari while I was taking rest in my house after taking dinner I heard a noise and rushed towards the PO which was near the house of Etoari and on reaching there I found Etoari was murdered and lying on the middle of the road. I found blood in the road. At the PO. I came to learn from Kutel and others that Panlush had murdered Etoari and ran away. Panlush is present in court (id the accused)."

Cross-examination of P.W. 2 is quoted below:

"It is not a fact that Kutel did not tell me that Panlush had murdered her mother and fled away. Lachhman Munda was on the south of Etoari''s house. On the east was road. On the west was Kulu Mahali and on the north was Philip. Besides many labourers also live around the house, of Etoari. Myself, Tulu, Bindeswari, Kutel then went to the Manager Shri P. Chaudhuri and reported the matter. Thereafter the manager provided us with one car and he also gave a letter to the driver who handed over that letter to police at the PS. Thereafter we returned by that car from the PS. We did not report to the manager that Panlush had murdered Etoari."

Deposition of P.W. 3, Tulu Mahali, is quoted below:

"I reside at Neoranadi T.E. I knew Etoari, mother of P.W. 1, Kutel. Etoari died about 8 years back. I saw the dead body of Etoari which was lying in the road in front of the Etoari. I saw blood on the road. In that night I heard sound of cries but I did not learn from anybody how Etoari died. (The prosecution is permitted to cross examine the witness)

I was interrogated by the 10. It is not a fact that I stated to the 10 that when I went to the PO and enquired how Etoari was murdered then Kutel Baraik and others present there told me that sometime ago Panlush of our line murdered Etoari by tangi and fled away. I call Panlush as dada. It is not a fact that as per instruction of Panlush I deposed falsely. It is not a fact that I am suppressing the truth and desposed falsely to save Paulush.

XXX declined."

Deposition of P.W. 4, Bindeswar Rai, is quoted below:

"I reside at Neoranadi tea garden. I knew Etoari. She died about 8/4 years back. On that night while I was sleeping in my house I heard cries. I came out and found blood in the road and the dead body of Etoari was also lying in the road. We informed the matter to the Manager of the tea garden. On reaching the PO I found Kutel was crying there. I did not hear anything from anybody how Etoari died.

(The prosecution is permitted to cross examine witness.)

Police interrogated me. It is not a fact that I stated to police that on reaching the PO I came to learn from Kutel and other persons present there that some time ago Panlush murdered Etoari by a tangi and fled away. XXX declined."

Deposition of P.W. 5, Bajrang Rai, is quoted below:

"I reside at Neora Bagan tea garden, Bukia Line. I know Etowari Baraik who is now dead. I can''t say how long ago she died. I do not know anything about her death.

(The prosecution is permitted to cross-examine the witness):

It is not a fact that police interrogated me in connexion with this case. It is not a fact that I stated to police that on the previous night on hearing noise I went out on the road and found many persons had assembled there and the mother of Kutel Baraik was lying dead and Kutel was crying there and I came to learn from Kutel that Poulush Oraon had murdered her mother by a tangi. I know Poulush Oraon. I called him as Jamaibabu. It is not a fact that with a view to save Poulush from this case I did not tell the truth.

Cross-examination:-declined."

Deposition of P.W. 6, Puli Kar, is quoted below:

"I reside at Neora Bagan. I know Etowari Baraik of Dukhia Line of Neora garden. Etowari Baraik died about 8 or 9 years back. I do not know how she died. I also did not see her dead body.

(The prosecution is permitted to cross-examine the witness):

I was interrogated by the police. It is not a fact that I stated to the I.O. that on the last night at about 10 p.m. while I was in my house I heard noise went out on the road and found the mother of Kotail namely, Etowari Baraik was lying dead and Kuteltold me that Poulush Oraon murderer her mother by tangi and fled away. Cross-examination declined."

P.Ws. 7, 8 & 9 are the three-police officers who investigated the case. P.W. 7 took over the investigation from P.W. 9 on April 23, 1987. P.W. 7 left the investigation incomplete. He was not cross-examined. P.W. 8 took over the investigation on September 27, 1987. He submitted the charge-sheet. He proved the two FSL reports (Exs. 1 & 2) and the F.I.R. (Ex. 3). He was not cross-examined as well.

P.W. 9 started the investigation. He proved the inquest report (Ex. 5), the dead body challan (Ex. 6), the seizure list (Ex. 7) showing seizure of control blood and bitumen, the seizure list (Ex. 8) showing seizure of the victim''s torn blouse and petticoat, and said that during investigation he examined Tulu Mahali (P.W. 3), Bindeswar Rai (P.W. 4), Bajrang Rai (P.W. 5), Puli Kar (P.W. 6), who all told him that when they reached the scene of the crime they found the victim lying dead and were told by Kutel that the appellant had murdered the victim with a Tangi.

Cross-examination of P.W. 9 is quoted below:-

"After seizure of blood stained earth and blood kept the same at the P.S.

P.W. 1 did not tell me that she saw Poulus to inflict Tangi blow to her mother. She also did not tell me that she saw Poulus carrying a Tangi in his hand at that time. Wits. viz. Tulu Mahali, Bindeswar Rai, Bajrang Rai and Pouri Kar did not make any statement to me as recorded by me. Not a fact that I did not investigate the case properly."

Deposition of P.W. 10, Basant, is quoted below:

"I reside at Neora tea garden. Etowari Baraik was my mother. She is dead. She died about 11 yrs. ago. On the date of incident in the month of August on Sunday I came to know from my elder sister Putile Baraik at 10 p.m. that accused. Panlush assaulted my mother with a Tanga. As a result she died. I reported the P.S. about the incident at Mal P.S. Darogbabu wrote the same in writing as F.I.R. The contents of the F.I.R. was not read over and explained to me but I put my L.T.I. thereon. Thereafter I left for home. This is my signature in the F.I.R. (Ext. 3/2). There is electric light near our house. The road is clearly visible by the said light from our house. I know Poulush who is present on accd. Dock and identified. I along with Poulush are living the same line called Dukhiya Line. XX: Not a fact that my elder sister Kutel did not stated to me that Poulus did not assault our mother. The electric light post of the road is about 100 yrds. From our house. Not a fact that I am deposing falsely being tutored."

P.W. 11 is the magistrate who recorded the statements of Anita @ Kutel (P.W. 1), Piyari Oraon (P.W. 12), Fuljan Munda (P.W. 13) and Amrita Uraon (P.W. 14) under Section 164 Cr.P.C. on August 11 & 12, 1986. He said that he had recorded the statements in his own handwriting, and he proved the documents (Ex. 9) containing the recorded statements. He said that the witnesses had given their respective statements voluntarily, but that there was nothing in the records to show that the witnesses had made their statements voluntarily.

Deposition of P.W. 12, Piyari Oraon, is quoted below:

"I live at Neora tea garden. I knew Etowari Baraik who is dead. About 11 yrs. back she died being assaulted by accd. Panlush on Sunday with Tangan. Accd. Poulus is present today on accd. dock today. The incident took place in front of my house and I saw the incident. At that time I was sitting in the courtyard of our house. After assaulting Etowari, Panlus fled away with Tangan. The incident took place at about 10 p.m.

xxx: Nani, Rajkishore, Tulu, Amerika & other are residing in and around our house. At that time I was taking dinner inside the room. After having dinner I went to bed on that night. Not a fact that I did not see that accd. Panlus to assault Etowari Baraik on that night. Tulu Mahali is my neighbour. I had no talk with him over the incident."

Deposition of P.W. 13, Fuljan Munda, is quoted below:

"I live at Neora tea garden in Dukhiya Line. I knew Etowari Baraik who is dead. She used to live in our Line. She died about 11 yrs. ago in the month of Bhadra on one Sunday. She died being assaulted by Panlus with a Tangi. Said Panlus is present today on accd. dock and identified. Accd. Panlus fled away after assaulting Etowari with a Tangi. At that time I had been to the river side for easing myself. I made a statement before the Judl. Magistrate.

xxx: Not a fact that on the date of incident at night I did not go to the river side for easing myself. I did not state about the incident to villager. Not a fact that I am deposing falsely. Not a fact that I deposed falsely before the Magistrate being tutored."

Deposition of P.W. 14, Amrita Uraon, is quoted below:

"I reside at Neoragarden. About 11 yrs. back at about 10 p.m. Etowari was on the road and she was singing. It was in the month of Bhadra on a Sunday the incident took place. She was dashed by Panlus and was assaulted by Poulus with Tangan and thereafter he fled away. At that time I was inside the room and hearing halla I came out and saw the incident. Accd. Panlus is present in the courtroom on accd. dock and identified. In earlier occasion I made statement before the Judl. Magistrate.

xxx: On the date of incident at that time I was taking dinner at my house. After arrival at the P.O. I found many persons and Etowari were lying on the ground. I found Kutel (daughter of Etowari), Hari Thakur, Tulu Mahali, Bindeswar, Bajrang, Puli Kar there. I had no talk with them. Not a fact that I did not see Etowari to be assaulted by Pansuland fled away. Not a fact that I am deposing falsely being tutored. Not a fact that I made false statement before the Magistrate."

P.W. 15 is the doctor who did the postmortem on the victim. He proved his report (Ex. 10). He said that all the five incised wounds mentioned in his report were ante-mortem and homicidal in nature, and could be caused with a sharp weapon like Tangi and the cause of the victim''s death. In his cross-examination he remained firm in his opinion.

The wounds recorded in Ex. 10 are quoted below:-

"(1) Incised wound over the Rt Side of the base of the mandible 3" x 1/2" x bone deep -- blood clot in & around the wound. (II) Incised wound front & Rt Side of neck just above the thyroid cartilage 3" x 1" x bone deep cutting through larynx, pharynx & vs. of the neck -- blood clot in & around the wound. (III) Incised wound over the front of neck below the Cricoid cartilage 3" x 1" x bone deep cutting through trachea, oesophagus & vs. of the neck -- blood clot in & around. (IV) Incised wound obliquely placed over the back of the neck below the occipt 4" x 1" x bone deep -- blood clot in & around; (V) Incised wound over the Rt. shoulder 3" x 1" x bone deep -- blood clot in & around the wound."

Findings of the court below are these. The minor discrepancies in P.W. 1''s deposition are no ground to disbelieve her. She has been fully corroborated by P.W. 2. Evidence given by P.Ws. 3, 4, 5 & 6, though they were declared hostile, corroborates P.W. 1. There is nothing in the evidence of P.Ws. 7, 8 & 9 for which P.W. 1 should be disbelieved. P.W. 9 proved his signature on the F.I.R. P.W. 11 proved the Section 164 statements he recorded. Evidence given by P.Ws. 12, 13 & 14 fully proves the prosecution case that the appellant murdered Etoari. Evidence of P.W. 15 fully supports the prosecution case. Non-production of the murder weapon does not make the prosecution case unbelievable. .

The appeal was admitted by this court on January 14, 1999. The appellant''s prayer for suspension of sentence and his release on bail was rejected. He is in jail.

Mr. Bhattarcharyya appearing for the appellant has submitted as follows. Basant, the de facto complainant, deposing as P.W. 10 did not say specifically that P.W. 1 told him that she saw the appellant murder her mother. Evidence of P.W. 1 is only that she saw her mother lying. P.W. 9 has said that P.W. 1 did not tell him that the appellant murdered her mother. Evidence given by P.W. 1 is not believable. It was not possible for P.W. 13 to see the murder. Depositions of P.Ws. 1, 12, 13 & 14 in court substantially contradicted their version of the case recorded in their respective Section 164 statements. Hence these witnesses cannot be believed.

Mr. Singh, the Public Prosecutor, appearing for the State has submitted as follows. P.Ws. 1, 12, 13 & 14 are the eyewitnesses to the murder. That the victim was murdered is certain. Evidence of P.W. 15 and his post-mortem report (Ex. 10) fully supports the prosecution case that the victim died due to the effects of the five serious bodily cut injuries inflicted by a sharp weapon like a Tangi. When P.Ws. 1, 12, 13 & 14 have categorically deposed that they saw the appellant committing the murder, there is no reason why the prosecution case should be disbelieved. It is evident that P.Ws. 3, 4, 5 & 6 gave false evidence.

The court below has convicted the appellant of an offence under Section 302 IPC. The prosecution case was that on August 3, 1986 at around 9 p.m. the appellant murdered one Etoari of Dhukiya line at Neoranadi Tea Garden in the district Jalpaiguri with a Tangi on the road near Etoari''s house. The court below held that the prosecution proved the charge beyond reasonable doubt.

P.Ws. 1-6 & 12-14 all said that Etoari was dead. P.W. 9 starting the investigation of the case said that he prepared the inquest report (Ex. 5) and sent Etoari''s dead body for post-mortem under the challan (Ex. 6); and P.W. 15 said that he conducted post-mortem on Etoari, indentified by the constable bringing the dead body, on August 4, 1986. Non-examination of the constable does not create a doubtful circumstance. Evidence in the records leaves no doubt that Etoari is dead.

P.Ws. 1-4 & 12-14 said that they saw Etoari''s dead body lying on the road in front of Etoari''s house. The inquest report (Ex. 5) shows that Etoari''s dead body was found on the road at Dukhiya Labour line of Neoranadi Tea Garden, the place mentioned in the F.I.R. (Ex. 3). The sketch map of the scene of the crime (Ex. 4) shows that Etoari''s dead body was found on the road in front of her house. Hence there is no doubt that P.Ws. 1-4 & 12-14 found that Etoari''s dead body was lying on the road in front of her house.

The F.I.R. (Ex. 3) date and time of Etoari''s death is August 3, 1986 around 9 p.m. Evidence of P.Ws. 1-4 & 6 is that Etoari died around 8-9 years ago; and evidence of P.Ws. 10 & 12-14 is that she died around 11 years ago. A backward calculation takes the date of death to 1986. Though these witnesses did not give the exact date and time, they all said that it was around night meal time. Hence their evidence, considered with the inquest report (Ex. 5), the dead body challan (Ex. 6), the post-mortem report (Ex. 10), and evidence of P.Ws. 9 & 15, leads to the definite conclusion that Etoari died on August 3, 1986 at around 9 p.m.

P.Ws. 1, 2 & 12-14 deposed that Etoari was murdered. The F.I.R. (Ex. 3) was registered recording Etoari''s murder. The inquest report (Ex. 5) was prepared stating that Etoari was murdered. Evidence of P.W. 9 is that it was a murder case that he started investigating. P.W. 15 mentioned the five injuries he found on Etoari''s body. His evidence is that all the injuries were ante mortem and homicidal in nature, and that they could be caused by a sharp weapon. All were bone deep injuries - four on the neck, one on the right shoulder. Hence there is no doubt that it was a case of culpable homicide.

Evidence given by P.W. 1 is that when hearing her mother''s cries she came out of the room, she found the appellant murdering her mother with a Tangi. In cross-examination she said that when she came out on the road, she found her mother lying on the road. Relying on this it has been strenuously argued that it is not the evidence that P.W. 1 actually saw the appellant attacking Etoari with a Tangi and causing her the bodily injuries or any one of them. The argument has no merit. P.W. 1 very firmly repeated in cross-examination that she saw the appellant murdering her mother and fleeing with the Tangi.

P.W. 2 was a neighbour of Etoari. His evidence is that when hearing a noise he came out and went to the place, he found murdered Etoari lying on the middle of the road and was told by P.W. 1 and others that the appellant had murdered Etoari and ran away.

P.W. 3, declared hostile, evidently withheld the truth. He said that though hearing cries he reached the place and saw Etoari''s dead body lying on the road, he did not learn from anybody how Etoari died. P.W. 4, also declared hostile, gave similar evidence. P.Ws. 5 & 6, also declared hostile, feigned total ignorance. All these four witnesses were interrogated during investigation. But these witnesses (P.Ws. 3 & 5 calling the appellant as "dada" and "Jamaibabu" respectively) could do little to bring out the appellant from the blaze of the eyewitness account of P.W. 1 cemented by the eyewitness account given by P.Ws. 12, 13 & 14.

P.Ws. 7, 8 & 9 are the officers investigating the case. They examined the cited witnesses during investigation for completing which they took an amazing two year five-month period. The offence weapon did not come to court. P.W. 9 even allowed the case, a murder case, to fall in the course of statutory bail. A classic example of spoiling investigation and allowing a serious offence case lose its sting. But at times it is very difficult to erase the horror of a crime and blur the memory of eyewitness to an offence like murder of one''s dear one.

P.W. 10 said that his elder sister (P.W. 1) told him that the appellant murdered his mother Etoari. P.W. 11 is the magistrate who recorded the statements (Ex. 9) of P.Ws. 1, 12, 13 & 14 under Section 164 Cr.P.C. P.Ws. 12, 13 & 14 all said that they saw the appellant murdering Etoari with a Tangi and fleeing. They all were Etoari''s neighbours.

P.W. 12 said that the incident happened in front her house, and that she saw it. That in cross-examination she said that she was taking dinner inside the room, and that after dinner she went to bed, is no reason to conclude that she could not witness the murder. She was deposing around 11 years after the incident. The attacker struck Etoari as many as five times. It was natural for people around the place to hear her cries, come out of their houses and see the attacker in action and fleeing.

P.Ws. 13 & 14 also gave quite credible eyewitness evidence that they saw the appellant attack Etoari and kill her. P.W. 13 said that she was at the riverside for defecating. The map of the scene of the crime (Ex. 4) shows that the river was within yards from the scene of the crime. P.W. 14, also residing within yards from the scene of the crime, as is revealed by the map (Ex. 4), said that when hearing halla (a noise) he came out, he saw the appellant killing Etoari with a Tangi.

There is nothing in the cross-examination of P.Ws. 1, 12, 13 & 14 that raises a doubt about the truth of what they said in their depositions. They all are natural witnesses. In 1995 P.W. 1 was 29. This means that in 1986 she was 20. In 1997 P.W. 12 was 25 and P.W. 13 was 27. This means that in 1986 they were 14 and 16 respectively. Age of P.W. 14 was not recorded in her deposition. P.Ws. 1, 12, 13 & 14 were illiterate; they put their left thumb impressions on their respective depositions.

Once these four witnesses are projected on the screen of the mind individually and then collectively, not a single reason emerges for discarding their evidence, especially when there is no evidence that any one of them had any reason to implicate the appellant in a false case.

Questionable investigation not shedding on the offence weapon and as many as four witnesses turning hostile together are unable to dismantle the case firmly and definitely proved by the evidence given by P.Ws. 1, 12, 13 & 14. Whatever little P.W. 9 contributed supports their evidence, and evidence given by P.W. 15 and his post-mortem report (Ex. 10) lend full support to their evidence that it is the appellant who attacked Etoari with a Tangi on August 3, 1986 at around 9 p.m. and caused all the five homicidal bodily cut injuries with the intention to kill her.

The answer to the question why the appellant attacked Etoari and killed her is not available from the evidence given by the prosecution witnesses. But absence of evidence to show motive does not make any difference. The evidence proves beyond reasonable doubt that it is the appellant who attacked and killed Etoari, and the nature of the five bodily injuries mentioned in the post-mortem report clearly proves that the appellant inflicted them with the intention to kill Etoari and for ensuring her death. There is nothing to bring the case within the fold of any exception in Section 300. It is a clear case of murder. For these reasons, the appeal fails and accordingly it is dismissed. The appellant''s conviction by the court below is affirmed and the sentence imposed by it is maintained. Department to take steps under Section 388 Cr.P.C. Certified xerox.