Paresh Munda @ Para vs State Of Orissa

B.P. Routray, J.

The Appellant was sole accused before the trial Court in S.T. Case No.31/55 of 2015. He has been convicted under Section 302/201 of the Indian Penal Code (I.P.C.) and sentenced to undergo life imprisonment for the offence under Section 302 I.P.C. and imprisonment for a term of one year under Section 201 of the I.P.C. The judgment dated 17th January, 2018 of the learned Additional Sessions Judge, Keonjhar is under challenge in the present appeal.

Prosecution case in brief is that, the deceased namely, Surya Munda is a minor girl aged about 11 years. She is the daughter of Mangal Munda (P.W.1) of village Upara Raigoda. The informant Jeeban Munda is the grand-father of the deceased. The Appellant is also a resident of village Upara Raigoda.

Dulei Munda is a friend of deceased and a resident of same village. On 17th September, 2014 the deceased had been to village Jaladihi to watch 'Pala'. As the deceased did not return by 18th morning, her grand-father (informant) came to village Jaladihi in search of her. After searching everywhere along with other villagers, the informant saw the bed sheet of the deceased stained with blood lying near a culvert over the canal in village Jaladihi. He further found that the dead body of the deceased was lying in the Hume pipe under the culvert. He further noticed cut wounds around the neck of the deceased. So suspecting murder of the deceased, the F.I.R. (Ext.3) was lodged by the informant which was registered as Nayakote P.S. Case No.40 dated 19th September, 2014 and the investigation commenced. P.W.12, the then I.I.C. of Nayakote Police Station took charge of the investigation. He visited the spot, held inquest (Ext.1) over the dead body and sent the same for post mortem examination to the District Headquarters Hospital, Keonjhar. Post mortem was conducted on 19th September, 2014 at 4.40pm by P.W.13.

In course of investigation it came to light that the Appellant along with deceased and another child namely, Raju Munda (P.W.7) while proceeding to witness the 'Pala' during the evening hours 17.09.2014, on the way near the culvert, all of sudden the appellant killed the deceased by means of an axe (M.O.I) dealing blows on the neck of the deceased. He then threw the axe in the nearby field and concealed the dead body under the culvert. The appellant further threatened Raju Munda not to disclose about the same before anyone else lest he would be killed. The Appellant then fled away to his village. Said Raju Munda did not tell anyone about the occurrence out of fear but told to her mother Golapa Munda (P.W.8) in the next morning.

The Appellant was arrested on 20th September, 2014 and while in police custody, gave discovery of (M.O.I) lying in the nearby field to the culvert which was seized as per the seizure list under Ext.9.

Upon completion of investigation charge-sheet was submitted on 25th November, 2014 against the Appellant for the offences afore-stated.

Prosecution has examined 14 witnesses in course of trial and marked several documents from Ext.1 to Ext.16. The Appellant took the plea of false implication and did not adduce any evidence.

The homicidal nature of death of the deceased is not disputed by the Appellant. It is seen from the evidence of P.W.13, the Medical Officer who conducted post mortem examination that the deceased sustained three sharp cut injuries on her neck, one on the left side of the neck of size 5cm X 2.5cm X 5cm, another on the right side of mandible of size 6cm X 2cm X 5cm and one more on the nape of neck of size 4cm X 2cm X 5cm. As per the opinion of P.W.13 all such injuries were ante mortem in nature and the cause of death is due to massive external hemorrhage leading to shock. The duration of death is within 48 to 72 hours from the time of post mortem examination, which means the deceased died during the evening hours of 17th September, 2014. The content of the inquest report (Ext.3) also corroborates the injuries noticed by P.W.13. Therefore, it can safely be concluded that the deceased died homicidal death.

The prosecution evidence against the Appellant to prove the charges is broadly in three-folds; (i) the evidence of P.W.7, a direct eye witness to the occurrence; (ii) the evidence under Section 27 of the Indian Evidence Act giving discovery of the weapon of offence; and (iii) the chemical examination report of the weapon of offence and wearing apparels.

It is submitted on behalf of the Appellant that the evidence of P.W.7, the key witness, is not convincing and credible. His presence along with the deceased at the spot is doubtful as it is admitted by the said witness that he is staying in the residential school which is one kilometer away from his village. It is further submitted that, there is absence of motive and delay in lodging the F.I.R.

The nature of evidence adduced by the prosecution is a combination of direct evidence as well as circumstantial evidence. The informant could not be examined due to his death before commencement of trial and Prosecution has declined to examine Dulei Munda.

Coming to the evidence of P.W.7, the key witness, he has stated that on that fateful evening he along with the deceased and the Appellant were proceeding to watch the 'Pala'. On the way near the culvert the Appellant first throttled the neck of the deceased and then dealt blows by the axe (M.O.I). He has further stated that after throwing the deceased in the canal and the axe in the nearby paddy field, Appellant ran away giving him threat not to disclose the incident before anyone. In his cross-examination he has stated that, "... xx ... I used to stay in school hostel. During the period of occurrence I was in my home. I only stay in my home on holidays and on other days I stay in my hostel. It is a fact that on the date of occurrence I was in my school." Taking advantage of this statement of P.W.7, it is submitted that his presence at the spot is therefore doubtful. As mentioned earlier, P.W.7 was a child aged about 10 years at the time of his deposition and he was 9 years old on the date of occurrence. Of course some discrepancies are noticed in his evidence. The question is that, whether such discrepancies are affecting the credibility of the witness? Here it is important to look to the evidence of his mother. His mother Golapa Munda is examined as P.W.8. She has fully corroborated the statement of her son by saying that, being asked, P.W.7 told to her that while proceeding to watch the 'Pala' along with the Appellant and the deceased, the Appellant killed deceased by means of an axe (M.O.I) near the culvert over the canal. Said P.W.8 has further confirmed that her son had gone from home with the Appellant. She has clarified in her cross-examination that, "... xx ... School of my son is located about 1 Km away from my house. ... xx .. My son disclosed about the incident on the following morning of the occurrence night. By that time except me no other person was present. I have not disclosed about the incident to any other person after hearing it from my son. I did not disclose because of fear that my son has witnessed the occurrence."

The cumulative reading of the evidence of P.W.7 and P.W.8 leaves no doubt on the truthfulness of the statement of P.W.7 despite minor discrepancies. The competency of P.W.7 has been tested to the satisfaction of learned trial court. Law is settled that in relation to the evidence of a child witness, the precaution to be taken is that he is not tutored. It is worth mentioning here that the statement of this P.W.7 was recorded under Section 164 of the Cr.P.C. in course of investigation and has been marked under Ext.12 and the same is found corroborating to the evidence of P.W.7. Thus no sense of tutoring is found upon careful perusal of the evidence of P.W.7 which is fully supported by his mother and corroborated with his earlier statement recorded under Section 164 the Cr.P.C. On the other hand the same is seen trustworthy and truthful as the evidence of any other competent witness. It is needless to say that minor discrepancies are natural on the part of a genuine witness who speaks of his truthfulness. The precaution that there is no likelihood of tutoring has been duly taken care of and is completely ruled out in case of P.W.7. Additionally the evidence of P.W.8 rendered in support of the statement of P.W.7 is seen beyond all doubts and such disclosure of P.W.7 before P.W.8 seems spontaneous, which therefore, is relevant to the fact in issue.

So far as the discovery of the weapon of offence, i.e. axe (M.O.I) given by the Appellant while in police custody, the same is not found unbelievable as urged on behalf of the Appellant. It is true that the independent witness, P.W.14 has stated in his cross-examination that he had neither gone to the police station nor the spot of concealment of the axe. But this statement of P.W.14 will not take away the effect of discovery of the weapon on the information of the Appellant completely. What is relevant under Section 27 of the Indian Evidence Act is the discovery of fact in consequence to the information given by the accused.

The place of recovery of the axe (M.O.I) is a Benugiri (cultivable) land. The axe which was seized pursuant to the discovery given by the Appellant was found blood stained and on serological examination, the report of which has been adduced under Ext.15, it reveals the stained blood is of human origin of group 'O'. Similarly the bed-sheet of the deceased and her frock (sky colour shirt) as well as the wearing apparels of the Appellant (cement colour pant and violet colour ganjee) were found stained with same human blood group. This appears to be a strong circumstance against the Appellant. The Appellant did not offer any explanation to the fact of presence of blood stain of human origin 'O' group in his wearing apparels.

It is true that none of the prosecution witness including the investigating officer has stated anything about the motive of committing murder of the deceased. Though it has not been brought on record, but as appears from the disclosure statement of the Appellant under Ext.8 that he had an old grudge against the father of the deceased due to land dispute. However, as nothing has been brought to that effect, it can safely be said that no evidence on motive of committing the murder has been brought on record. But at the same time it needs to be reminded that, failure to establish the motive does not mean that the prosecution case has to be thrown over-board despite availability of otherwise dependable evidence. Absence of motive has nothing to reflect upon the credibility of a reliable witness. If the evidence of the eyewitness is clear and other circumstances are against the accused pointing towards his guilt, the absence or inadequacy of motive cannot stand on the way of conviction. In the present case considering the evidence of P.W.7 and other witnesses as well as the circumstances, the apparent absence of motive will not affect prosecution case any way.

The delay in lodging F.I.R. as urged on behalf of the Appellant is not found true on examination of record. The informant who could not be examined in trial due to his death, has explained the same in the contents of the F.I.R. (Ext.3). A bare perusal of the F.I.R. reveals that the deceased had gone on 17th September, 2014 to watch the 'Pala' and as she did not return on the next morning, informant came to village Jaladihi in search of her. It is further mentioned in the F.I.R. that after a tough search, he found the dead body of the deceased lying under the culvert and then he lodged the F.I.R. Therefore, the explanation for delay is manifest on the face of the F.I.R. and no doubt can be entertained on that aspect.

Upon careful scrutiny of the entire evidence adduced on behalf of the prosecution and the circumstances revealing against the Appellant, no flaw is seen in the impugned judgment convicting the Appellant for the charges under Section 302 of I.P.C. The way the dead body was kept inside the culvert coupled with other circumstances suggest the intention of the Appellant to disappear the evidence and screen the offender.

Therefore the charge under Section 201 I.P.C. is also found established against the Appellant.

We are thus in agreement with the findings of learned trial court that the prosecution has established its case beyond all reasonable doubts to prove the charges. No ground is seen to interfere with the impugned judgment of conviction and sentence. The appeal is dismissed being devoid of merit.

All the seized properties be dealt with in terms of the directions as contained in the impugned judgment after four months from today.

Copy of the L.C.R. be returned.

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