Ramesh Sahu vs State Of Orissa

S.K.Mishra, J

: In this appeal, the appellant-Ramesh Sahu has assailed his conviction under Section 302 of the Indian Penal Code, 1861 (hereinafter referred to as "Penal Code") and sentence of imprisonment for life in Sessions Case No.44 of 1997, (arising out of G.R. Case No.139 of 1996 as per the judgment dated 16.05.1998 passed by the learned Sessions Judge, Bolangir-Sonepur, Bolangir.

Shorn of unnecessary details, the case of the prosecution is as follows:-

Accused/appellant and deceased belong to the occurrence village Komira. On 28.11.1996 morning, deceased Maguni Pradhan left his house at about 7.00 A.M. While leaving he told his wife (informant)-Mahandri Pradhan (P.W.1) that he was going to the spot land situated near Nuabandha Pond as he apprehended that the accused might be reaping away paddy crops standing thereon. On his way deceased called Gobardhan Badi (P.W.2), Bidyadhar Pradhan and Hemabanta Tandia to come to the spot land. On his arrival at the spot deceased Maguni found accused Ramesh arranging paddy crops into bundles in the spot land. Deceased asked the accused not to remove paddy. On this, the accused chased him with an axe and dealt several axe blows with its blunt side on the deceased. Deceased sustained injuries and fell down. Being informed by her neighbor, Chera Dip, informant (P.W.1) rushed to the spot. By that time, the deceased with the injuries on him was sitting on the ridge of the spot land. On P.W.1's enquiry he narrated regarding the occurrence to her. P.W.1 with the help others removed the deceased to Subalaya Hospital. However, the deceased succumbed to his injuries as on the way before he could get any medical attention.

On the oral report of the informant (P.W.1) made at Subalaya Police Out Post at 12.00 noon on the same day, A.S.I, Banshidhar Thanapati (P.W.6) prepared written report (Ext.12), sent it for registration to Birmahrajpur Police Station and took up investigation. P.W.6 held inquest over the dead body of the deceased and prepared inquest report (Ext.4) at 1.00 P.M. on that day in presence of witnesses including Shankar Bag (P.W.3). On his requisition contained in the dead body chalan (Ext.13), deceased's dead body was subjected to post mortem examination at D.H.H., Sonepur by Dr.Ansuman Tripathy (P.W.5). Accused Ramesh appeared at Birmaharajpur Police Station before the then O.I.C./S.I. of Police, Khagswar Agasti (P.W.7). P.W.7 apprehended and produced him before P.W.6 at 6.00 P.M on 28.11.1996. P.W.6 seized blood stained lungi (M.O.III) and banion (M.O.IV) of the accused and prepared seizure list (Ext.5) in presence of witnesses including P.W.3. P.W.6 arrested the accused at 7.00 P.M. on that day. At 8.15 P.M. he visited the spot and prepared spot map (Ext.15). From the spot, P.W.6 seized blood stained earth, sample earth and some paddy sheaves and prepared seizure list (Ext.7) in presence of witnesses including Jagannath Jani (P.W.4). While in custody, accused Ramesh gave information regarding concealment of weapon of offence, the axe (M.O.I) in his mother-in-law's house in village Balarampur. P.W.6 recorded accused's disclosure statement (Ext.9). Accused Ramesh led to the recovery of axe (M.O.I) in his mother-in-law's house. P.W.6 seized the axe on production by the accused and prepared seizure list (Ext.8) in presence of witnesses including P.W.4 at 11.00 P.M. on the date of occurrence. On P.W.6's requisition (Ext.16), accused was medically examined and injury report was furnished. P.W.6 also seized and prepared seizure list (Ext.6) in respect of deceased's Gamuchha and blood stained Dhoti (M.O.II). He sent requisition to Revenue Inspector, Subalaya for demarcation of the spot land on 30.11.1996 and handed over charge of investigation to P.W.7 on 04.12.1996. P.W.7 seized Xerox copy of sale deed (Ext.1) and R.O.R. (Ext.2) on production by the informant (P.W.1) and prepared seizure list (Ext.3/1). He also seized Photostat copy of another sale deed (Ext.18) on production by accused's wife and prepared seizure list (Ext.17) P.W.7 got the spot land demarcated by Revenue Inspector, Subalaya and obtained his reports (Exts. 19 and 22). On prayer of P.W.7, statements of P.W.2 and one Basanta Guru were recorded in Court under Section 164 of the Code. On production of axe (M.O.I) with requisition of P.W.7 for his opinion, P.W.5 Dr. Tripathy submitted his report (Ext.11). On prayer of P.W.7, the seized material objects were sent for chemical examination under the seals and a forwarding report of the Court of S.D.J.M., Birmaharajpur. Result of chemical examination was furnished to the Court from R.F.S.L., Sambalpur under report No.959 dated 06.08.1997 (Ext.21). On completion of investigation, P.W.7 submitted charge sheet against the accused.

Defence plea is one complete denial. Accused pleads false implication.

In order to prove its case, prosecution has examined seven witnesses. P.W.1-Mahendri Pradhan is the informant, P.W.2-Gobardhan Badi is an eye witness to the occurrence, P.W.3-Sankar Bag and P.W.4-Jagannath Jani are seizure witnesses to a piece of cloth and banion (M.O.IV) and weapon of offence i.e., axe (M.O.I), P.W.5-Dr. Anshuman Tripathy, who conducted the P.M. examination over the dead body of deceased Maguni Pradhan. P.W.6-Banshidhar Thanapati, A.S.I. of Subalaya Police Out Post and P.W.7- Khageswar Agasti, O.I.C./S.I. of police of Katarbaga Police Station are the Investigating Officers.

Mr. Satyabrata Panda, learned counsel appearing for the sole appellant argued that in this case vital documents, the R.O.Rs etc. have not been produced by the prosecution to establish that the deceased was in possession of the land in question or that he has title over the same. He further argued that material witness, who has been named in the F.I.R. namely, Chera Dip, who is an eye witness, as per the narration in the F.I.R. has not been examined. The other two eye witnesses, namely Bidyadhar Pradhan and Hemabanta Tandia, who as per the version of the prosecution, accompanied the solitary eye witness namely, Gobardhan Badi have not been examined in this case. No explanation is forthcoming from the side of the prosecution why Hemabanta Tandia and Bidyadhar Pradhan have not been examined. It is also pointed out by the learned counsel for the appellant that P.W.1 admitted in cross-examination in paragraph-12, Chera Dip learnt about the incident from two female labourers, namely Tarini Sahu and Rambha. No explanation has been forthcoming why the said Tarini Sahu and Rambha have not been examined. Similarly, Dina and Pana Khadal were at the spot prior to arrival of P.W.1 and they have not been examined.

Learned counsel for the appellant further argued that the case of the prosecution is that the appellant assaulted the deceased by means of an axe, whereas the case of the prosecution as revealed from the F.I.R. itself that the appellant assaulted the deceased by using the sharp side of the axe (tangiare hani deichhi). But, the evidence led on behalf of the prosecution regarding the death of the deceased i.e., the evidence of P.W.5, Dr. Anshuman Tripathy reveals that the injuries sustained by the deceased were caused by the blunt side of the M.O.I, which is an axe.

Mr. Panda, learned counsel for the appellant further argued that the learned Sessions Judge has found the appellant guilty of the offence of murder basing solely on the solitary eye witness account i.e., the statement of P.W.2 which is fraught with several contradictions. The other circumstance i.e. dying declaration before P.W.1 and the leading to discovery of weapon of offence cannot be relied upon in view of the fact that the deceased allegedly stated before the informant (P.W.1) that the appellant was reaping the paddy crops along with his field servants and that when the deceased stopped him from proceeding with the reaping of the paddy, he assaulted the deceased by means of the sharp side of the axe (Tangiare Hani Dela). Admittedly, the field servants have not been examined in this case and the prosecution even do not reveal the names of the said field servants. Hence, it is argued by the learned counsel for the appellant that the appellant should be acquitted of the offence alleged and set at liberty.

Learned counsel appearing for the State Mr.Arupananda Das, learned Additional Government Advocate on the other hand argued that this is an appreciation of evidence by the learned Sessions Judge and it should not be interfered lightly by the appellate court.

As is evident from the materials available on record and the submissions made by the learned counsel appearing for the parties, the evidence of P.W.5 has not been assailed. It has not been assailed by the appellant that his opinion that the deceased sustained several injuries, mostly lacerated and involving fracture of bone were found on the body of the deceased and could have been caused by the blunt side of the axe. So, it is not necessary to examine the evidence so far as the final opinion of the Doctor (P.W.5) is concerned. At this stage, we are more concerned about the complicity of the appellant and the evidences available regarding complicity of the appellant in commission of the crime. In his connection, we have to examine carefully the evidence of P.W.2, Gobadhan Badi to come to a just and proper conclusion.

P.W.2 has stated on oath that on the date of occurrence in the morning the deceased came to their 'pada'. P.W.2 has further stated that on his enquiry, the deceased told him that he had come to the Grama Rahi for lodging of the report, but the Grama Rakhi was absent in his house. The deceased requested P.W.2 to accompany him as a gentleman to his land near Nuabandha as the appellant was removing paddy from the land. Deceased left the spot first and after some time P.W.2 along with one Bidyadhar Pradhan and one Hemabanta Tandia proceeded towards the spot. P.W.2 further testifies that he saw the appellant, Ramesh chasing the deceased and dealing an axe blow on the deceased from his backside before he fell down. P.W.2 further stated that the accused dealt axe blow on the deceased after he fell down. Seeing this incident P.W.2 returned to village with his companions out of fear. On the way, he narrated regarding the occurrence to Gram Rakhi, Dinabandhu Tandia. In course of cross-examination at paragraph-7 P.W.2 has stated that first he himself, deceased and Hemabanta went to a little distance towards Nuabandha. However, on the way P.W.2 and Hemabanta waited for Bidyadhar Pradhan. In the meantime, P.W.2 also attended to his ailing mother at his home. P.W.2 explained that he along with Hemabanta and Bidyadhar Pradhan proceeded to the spot about half an hour after the deceased left him and Hemabanta on the way.

The evidence of P.W.2 has not been assailed by the defence on the basis of some contradictions which the learned Sessions Judge considered to be minor. His contradictions are with respect to statements made under Sections 161 and 164 of the Code before P.W.6 and Magistrate. It is stipulated in cross-examination that this witness has not stated in his earlier statements that the deceased Maguni came to his house and requested to go to the spot land as a gentleman. He also stated in his earlier statement that the deceased told him that he had come to Grma Rakhi and the Grama Rakhi was not in his house and he expressed his intention regarding lodging of Police report. It is further clear from the evidence of P.W.2 at paragraph-2 that he admitted that the accused dealt an axe blow on the deceased when he fell down in the manner in which timber logs are cut.

So on the basis of such statement, it is agued by the learned counsel that when a witness states that the appellant gave blows by means of an axe, the natural meaning is that he gave blows in the sharp side of an axe. It is the very prosecution case that the deceased was done to death by giving blows with sharp side of an axe, which is evident from F.I.R. lodged by P.W.1. The learned Sessions Judge has further taken into consideration the evidence that P.W.2 witnessed the occurrence from a distance of 165 feet. Learned trial Judge has further held that since the distance is 165 feet, it is not at all expected that P.W.2 would be able to distinctly notice as to whether axe blows were dealt on its sharp side or blunt side.

P.W.2 has further stated at Paragraph-6 that the land in question was in cultivating possession of the appellant. He admitted the defence suggestion that the appellant had cultivated the paddy in the spot land. P.W.1, the wife of the deceased and the informant has admitted that before mutation of the spot land in the name of her husband's sister's husband Gobinda Pradhan, it was the accused who was cultivating the spot land since long. About one month prior to the date of occurrence her husband claimed the spot land informing the accused that he should leave the same as the same has been recorded in their favour. She admitted the defence suggestion that in the occurrence year, the appellant sown paddy in the spot land and he declined to leave possession of the spot land.

On the basis of this factual aspect, it is apparent that the deceased was the aggressor. When the land in question was in cultivating possession of the appellant and that he had sown paddy there, it was not proper on the part of the deceased to resist the reaping of paddy by the appellant. Coming back to the reliability of the solitary eye witness, P.W.2, it is seen that his evidence suffers from certain contradictions with respect to his statement made earlier under Sections 161 & 164 of the Code. Furthermore, the evidence of P.W.2 is not supported by the evidence of P.W.5 in the sense that the Doctor had found lacerated injury on the person of the deceased which could be caused by the blunt side of the axe and it is not the case of the prosecution that the blunt side of the axe was used, rather it is the case of the prosecution that sharp side of the axe was used. This fact is also gatherable from the evidence of P.W.2.

Section 134 of the Indian Evidence Act, 1872, hereinafter referred to as "the Evidence Act" provides as follows:

"134. Number of witnesses.-No particular number of witnesses shall in any case be required for the proof of any fact".

From this provision, it is clear that in order to establish a fact that it is not necessary on the part of the prosecution to prove a number of witnesses. A solitary eye witness, who is truthful and reliable in proving the fact asserted by the prosecution may outweigh a number of untruthful witnesses, who are not reliable, can be said to be proved the case of the prosecution. In the case of Vadivelu Thevar v. the State of Madras (AIR 1957 SC 614), the Hon'ble Supreme Court way back in the year 1957 classified the witnesses into three categories, namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. Generally the evidence of a witness, who is wholly reliable, can be accepted and a particular finding can be given without any difficulty. Similarly unreliable witnesses can be discarded and existence of factor non-existing thereof can be recorded by Court. The problem arises whether a witness is neither fully reliable and fully not reliable. In such cases, the evidence of the witnesses is to be carefully examined to find out whether a person can be found guilty of a heinous offence like murder and send to prison for rest of his life.

In order to accept the evidence of solitary eye witness the Court has to come to a finding that his evidence is reliable quality without any contradiction or infirmity. Another approach is to test his evidence by testing it with the anvils of the objective circumstances found in the case. It is evident from the discussion of evidence of P.W.2 that there are certain contradictions in his deposition made before the learned Sessions Judge. Further, his evidence cannot be wholly reliable in view of the fact that he witnessed the incident from a distance of 165 feet as has been found by the learned Sessions Judge. His evidence is not supported by the Doctor's evidence as the deceased was found to have sustained injuries on his person which could have been caused by the blunt side of the axe seized in this case. So, we are of the opinion that if the evidence of the solitary eye witness, P.W.2 is tested in the anvils of the objective circumstances then his evidence cannot be said to be reliable so as to come to a conclusion that the accused has committed murder of the deceased.

The other materials available on record i.e., alleged dying declaration made before P.W.1 cannot be accepted, as it is an oral dying declaration and runs contrary to the medical opinion.

The statement leading to discovery alone itself will not prove the case of the prosecution as it is not established by the prosecution that the axe (M.O.I) was stained with human blood by chemical examination. So, necessary connection between the weapon of offence and the crime cannot be established in this case. Moreover, the axe i.e. produced by the appellant's mother-in-law.

Thus, on conspectus of the materials available on record, we are of the opinion that the evidence of P.W.2, Gobardhan Badi is fraught with contradictions and he being a solitary eye witness, whose evidence do not fit to the anvils of objective circumstances of the case as proposed by the prosecution cannot be relied upon. So, there are also materials on record to show that although there are many other eye witnesses to the occurrence, they have not been examined without any plausible explanation. There is material regarding the dispute over the possession of the land which is raised by the deceased and it is admitted by P.Ws.1 and 2 that the appellant was in cultivating possession of the land in question.

Keeping in view the materials on record, we are of the opinion that the prosecution has not established its case beyond all reasonable doubts and benefit of doubt goes to the appellant. We, therefore, hold that the learned Sessions Judge committed error on record by holding the appellant guilty of the offence under Section 302 of the Penal Code.

Hence, the appeal is allowed. His conviction under Section 302 of the Penal Code and the sentence of imprisonment of life are hereby set aside. The appellant is acquitted of the offence under Section 302 of the Penal Code. He be set at liberty forthwith, if his detention is not necessary in any other case.

Accordingly, the CRA is disposed of.

The Trial Court Records (T.C.Rs) be returned back to the trial court forthwith along with copy of this judgment.

Urgent certified copy of this judgment be granted on proper application.