State of Orissa vs Muna @ Madhusudan Kar and Others

L. Mohapatra, J.—The State has preferred this Appeal against the judgment and order dated 16.10.1993 of the IInd Additional Sessions Judge, Puri passed in S.T. Case No. 56/286 of 1991 acquitting the Respondents of the charge u/s 302/34 I.P.C.

The case of the prosecution is that the informant (P.W.1) was working as Hawker in the Kerosene Depot of one Rampal Saha in Puri town since three years prior to the occurrence. Deceased Narayan Panda and deceased Kasinath Panda are respectively the father and the younger brother of the informant. On 08.08.1990, the hawkership of the informant was terminated by the Depot owner and he was not supplied with kerosene oil. But on 10.08.1990, the informant met the Supply Officials to ensure supply of kerosene oil from the depot. On that date, he came to know that his younger brother (deceased Kasinath Panda) was assaulted by Respondent No. 1, namely, Muna, causing bleeding injuries to his left cheek. Hearing about the assault, the informant and his deceased father went to the Depot of Rampal Saha and found that the Supply Inspector Kar Babu was present there. While the informant was narrating the incident, Respondent No. 1 assaulted him. The persons present there intervened and separated them. On the next day, i.e., 11.08.1990 at about 11 A.M. Simanchal Patra (P.W.5) told the informant that Kalu Saha, the grand son of Rampal Saha, had sent for the informant to solve the dispute by way of compromise with regard to termination of hawkership. So, the father of the informant went to the Kerosene Depot. After some time, he returned along with one Raghunath Pujapanda and told that on production of Issue Register, kerosene oil would be issued to the informant. Thereafter, at about 1.30 P.M. both the deceased, the informant, P.W.5 and Raghunath Pujapanda went to the Depot with money and Issue register. The deceased persons, i.e., the brother and father of the informant waited in front of the depot and the informant entered inside the office of Kalu Saha. While he was in the office, where some other persons were also present, he heard his brother shouting from outside that he was being killed. Thereafter, the informant peeped from the house standing at the door and saw Respondent No. 1 thrusting a Gupti into the abdomen of deceased Kasinath Panda. After receiving the blow, Kasinath ran into the office room and fell down unconscious. At that time, deceased Narayan came running to the door of the office crying for help. Respondent No. 1, who had chased deceased Kasinath to the room, thrust his Gupti into the chest of Narayan. The other three accused persons were guarding at the gate with their respective weapons in their hands. Accused Pujapanda was brandishing a big Gupti, accused Kalia Panda was holding a knife and accused Rabi Behera had an iron rod. The informant''s father fell down unconscious and the informant bolted the office door from inside to prevent the entry of the accused persons. Kalu Saha was also present inside the room. After a while, when the informant opened the door, the outsiders, who had reached the spot, stated that the accused persons had left. The informant took the deceased persons to the district Headquarters Hospital, Puri where the doctor declared them dead. The Town Inspector, Puri went to the hospital and received the information. He reduced it to writing and treated the same as F.I.R. A case was registered against the present Respondents along with Kalu Saha u/s 302/34 I.P.C. After completion of investigation, charge sheet was submitted against the present Respondents by deleting the name of Kalu Saha.

The plea of the Respondents is complete denial of the allegation.

In order to prove its case, prosecution examined as many as fourteen witnesses including the doctor and I.O. and exhibited thirty documents. Defence examined none and exhibited three documents.

Learned Additional Sessions Judge, Puri, who tried the case, by his judgment dated 16.10.1993, acquitted the Respondents of the charge under Sections 302/34 I.P.C. by giving them the benefit of doubt because of the infirmities in the testimony of P. Ws.1 and 4, non-examination of the witnesses named in the F.I.R., non-production of blood-stained articles seized from the spot and absence of independent reliable corroboration.

Mr. Mohapatra, learned Counsel for the State assails the judgment on the following grounds:

(i) The trial court illegally discarded the evidence of P.W.4, who is an eyewitness to the occurrence and there is direct evidence to the effect that Respondent No. 1 had assaulted the deceased

(ii) Since there was previous enmity between P.W.1 and Rampal Saha, non-examination of the family members of Rampal Saha was not material.

(iii) The evidence of P. Ws.1 and 4 coupled with the evidence of the order (P.W.7), clearly establishes that the accused persons are authors of the crime.

(iv) Relationship of P.W.4 with the deceased is not a ground to discard his evidence. It is the settled principle of law that on the ground of interestedness, the evidence of an eye-witness cannot be discarded, if he is otherwise a reliable witness. It is evident from the evidence of P.W.4 that Respondent No. 1 stabbed the deceased persons by means of a Gupti. P.W.4 has also corroborated the evidence of P.W.1 to the effect that Respondent No. 1, namely, Muna, caused the death of both the deceased by stabbing them with a Gupti. There is no reason to discard the testimony of P.W.4.

(v) The prosecution proved the recovery of M. Os. I & II and non-production of blood-stained articles seized from the spot is not a ground to disbelieve the prosecution case.

for the Respondents supported the findings of the trial court contending that there is no illegality or infirmity in the impugned judgment acquitting the Respondents of the charge u/s 302/34 I.P.C. He contended that the trial court has rightly discarded the evidence of P.W.4, who is not a reliable witness since he developed the story from stage to stage. There are inconsistencies in the testimony of P.W.1 and his version has also remained uncorroborated. There are major contradictions in the evidence of P. Ws.1 and 4.

Perused the L.C.R. P.W.1 is the informant, who is the son of deceased Narayan Panda and brother of deceased Kasinath Panda. He stated about the details of the occurrence. He stated in his deposition that on 11.08.1990 at about 11 A.M., Simanchal Patra (P.W.5) a friend of Kalu Saha and the grand son of Rampal Saha, told him that Kalu Saha had sent him to call his (P.W.1''s) father and brother for a compromise. Then his deceased father first went to the Kerosene Depot. Kalu Saha wanted him to come with Kerosene licence register and money to receive Kerosene. His father returned home. At about 1.30 P.M., he along with his deceased father, deceased brother and P.W.5 went to Kerosene Depot. His father and brother stood near the gate of the depot. He alone went inside and met Kalu Saha. While he was inside the depot, he heard the voice of his younger brother coming from outside that he was being killed. He rushed towards the gate. At the door of the room of Saha, he saw Respondent No. 1 piercing a Gupti into the abdomen of his deceased brother Kasinath. His deceased brother ran into the room of Saha for life and fell down unconscious. Thereafter, his deceased father rushed in crying for help and stood near the door of the room. Respondent No. 1 who had chased his younger brother to the room also thrust the Gupti into the chest of his father. Respondent Nos. 2, 3 and 4, namely, Budha Panda, Kalia Panda and Rabi Behera respectively, were brandishing their respective weapons standing near the gate of the depot. He specifically stated that Respondent No. 2 was holding a big Gupti, Respondent No. 3 a knife and Respondent No. 4 an iron rod. His father fell unconscious on a cot inside the room. He bolted the door of the room in order to prevent the entry of the Respondents. Kalu Saha was present inside the room. Two or three minutes thereafter, outsiders came and asked him to open the door saying that all the Respondents had fled away from the spot. He opened the door and carried his father and brother to the District Headquarters Hospital, Puri. The doctor at the Out-Patient Department declared both of them dead. Police arrived at the spot and he narrated the incident in the hospital. The Town Inspector, Puri reduced it to writing, read over and explained him the contents therein and he put his signature. The F.I.R. has been marked as Ext.1. On the next day, he pointed out the spot to the police at about 6 or 7 A.M. Respondent No. 1 is known as Madhusudan Kar and his elder brother Madan Mohan Kar is a kerosene hawker under Saha. P.W.1 also identified Respondent No. 4 in the T.I. Parade. In para-8 of his deposition, he stated that Respondent No. 3 is known as Jambeswar Pujapanda and Respondent No. 2 as Om Pujapanda. In para-9 he stated that M.O.II was the Gupti, which is also known as Bhujali, which Respondent No. 2 was brandishing. In cross-examination, he specifically stated that no workers or other persons were present except Kalu Saha inside the depot. In para-11 he stated that the shops near the gate were closed by the time they arrived at the depot. Near the gate there was a betel shop and that shop was closed. He also stated in his cross-examination that Kalu Saha, who is the grand son of Rampal Saha, is involved in the crime. He also stated that in the F.I.R. he had stated that Kalu Saha had engaged the accused persons to kill his father and brother. He specifically identified M.O.1 as the Gupti, by which both his father and brother were assaulted by Respondent No. 1. He also specifically stated that no other Respondents assaulted his deceased father. On scanning the evidence of P.W. 1, it reveals that there are some contradictions with regard to the weapon of offence, but he identified the Gupti as the weapon of offence which was used by Respondent No. 1. Nothing has been elicited by the defence through cross-examination to disbelieve his testimony with regard to assault by Respondent No. 1 with M.O.I. This witness was examined in court after a long gap of near about two years.

P.W.2 is the witness to the inquest of deceased Narayan Panda and P.W.3 is the witness to the inquest of Kasinath Panda. P.W.4 is an ocular witness and a relative of the deceased. When both the deceased were standing near the gate of the kerosene depot, he went there and he was sitting with them. He specifically stated in his examination-in-chief that all the Respondents came from the cement godown of Rampal Saha situated at a distance of 20 cubits from the place where they were standing. Respondent No. 3 was holding an iron rod and Respondent No. 2 a Gupti. Respondent No. 1 was carrying some weapon concealed and Respondent No. 4 a piece of casurina log (stick). They first searched for P.W.1 who had gone inside the depot. Finding him absent, they shouted to kill Kasinath Panda. At this, deceased Kasinath tried to run away into the kerosene depot. All the Respondents chased him. Respondent No. 2 thrust a Gupti into the chest of Kasinath, Respondent No. 4 dealt a blow with the casurina stick on his head, Respondent No. 3 dealt a blow on his face with the iron rod he was holding. Deceased Kasinath ran towards the office room of Rampal saha for life. Respondent No. 1 chased him and thrust a Gupti into his abdomen in front of the office room. The first assault on deceased Kasinath took place at a distance of 5 cubits from the depot and the second assault, at a distance of 15 cubits from the place of the first assault. Deceased Kasi entered into the room after the second assault. He tried to come to the rescue of Kasi, but the rest three Respondents holding their respective weapons stood in front of the main gate of the depot and prevented his entry. Deceased Kasinath somehow entered inside and went to the office room in order to rescue his son. As he reached near the office room, Respondent No. 1 thrust a Gupti into his abdomen and he fell down due to assault. In cross-examination, he specifically stated that Respondent No. 1 was not carrying the Bhujali but a Gupti. He also stated that Respondent No. 1 assaulted both the deceased by means of a Gupti. He further stated in his cross-examination that Respondent No. 2 was holding M.O.II, which he (Respondent No. 2) thrust into the right side chest of the deceased Kasinath. He also stated that both Respondent Nos. 1 and 2 had assaulted deceased Narayan Panda. From the cross-examination of this witness nothing contrary has been elicited with regard to his presence at the spot and also with regard to the assault by the Respondents. There is no reason to disbelieve the evidence of P.W.4 with regard to assault by the Respondents.

P.W.6, the Town Inspector, seized one bloodstained sapa (mat), one pair of blood stained sponze hawai chappal, one pair of old leather chappal with blood stains, one panbura tin box with blood stains, one dot pen having blood stains, one plastic water bottle having blood stains and one paper clip having blood stains from the office room of the kerosene depot of Rampal Saha. The seizure list has been marked as Ext.5. P.W.7 is the doctor who conducted autopsy over the dead bodies. He found the following external injuries on deceased Narayan Panda:

(i) An elliptical wound of size length 3/4" X 1/4" breadth at the centre having clean cut margins sharp angles at two extremeties placed slight obliquely at the 8th intercostals surface on the anterior axillary line of the left chest wall.

He opined that the cause of death was due to haemorrhage and shock resulted from the penetrating injury to the vital organ like lungs. He also opined that the external and corresponding internal injuries were sufficient in ordinary course of nature to cause death. The injury could be possible by a thrust by M.O.I.

P.W.7 also found the following injuries on deceased Kasinath.

(i) One lacerated wound of size lengh 1/4" X 1/4" breadth over the left maxillary prominence with swelling around it.

(ii) One lacerated wound of size 1/2" X 1/4" breadth on the left side of the fore-head 1/2" above the left eye-brow. There was little swelling and blackening of the left lower eye-lit.

(iii) One elliptical incised wound having sharp angles at the extremities present over the left and medial aspect of the chest 1/2" laterial to the mid-sternal line over the second inter costal space.

(iv) Another ellipticalincised wound of size 3/4" x 1/3" breadth over the abdomen just at the junction line of epigastricun and left hypochondriac plane 1 1/2" above and 1" lateral to the umbilicus.

He opined that the cause of death was due to haemorrhage and shock resulting from injury to the vital organs like lung and main subclavian vein. He specifically stated that M.O.I. is a Gupti but not a Bhujali and M.O.II is a Bhujali otherwise known as Khokari but not Gupti, The incised wounds and the penetrating wounds on both the deceased persons are not possible by M.O.II. Nothing has been elicited by the defence from his cross-examination.

P.W.8 is a witness to leading to discovery but he was declared hostile and cross-examined by the prosecution wherein he admitted that he had put his signature marked as Ext.10 on the seizure list at the instance of police. P.W.9 is a witness who stated about the occurrence of the previous day. P.W.10 is another seizure witness who turned hostile and was cross-examined by the prosecution. With regard to seizure of the weapon of offence, he admitted his signature in the seizure list. At the time of cross-examination by the prosecution, he stated that he was examined by the police under 161 Code of Criminal Procedure. but again stated that he had not been examined by the police. P.W.11 is the Judicial Magistrate First Class who conducted T.I. Parade and proved Ext.2 as the T.I. Parade report. He stated that Respondent No. 4 was correctly identified by Biswanath Panda (P.W.1). Nothing has been elicited from his cross-examination to discard his evidence.

P.W.12 is a photographer who proved Exts. 11 to 15. P.W.13 is an employee of the depot. He did not support the prosecution case. But he admitted that the occurrence took place between 1 P.M. to 2 P.M. P.W.14 is the I.O. He specifically stated that on 11.08.1990, he received a telephonic message from an unknown person that some persons had stabbed two persons near '' Mausima Temple'', Puri,. Basing on this information, he immediately rushed to the spot and on enquiry learnt that the injured persons have been shifted to District Headquarters Hospital, Puri. He also went to the Hospital and saw two dead bodies lying in the Casuality and received the oral report from P.W.1 which was reduced to writing on his dictation by Akhila Kumar Parida, the then Traffic S.I. On 13.8.1990 at 12 noon he seized one mat stained with blood, a pair of hawai chappals, one pair of leather chappals stained with blood, one Pan Parag container stained with blood, one dot pen stained with blood and one plastic container with sponge and one yellow writing clip stained with blood under seizure list (Ext.5). On the same day he also seized copy of letter of Rampal Saha dated 9.8.1990 addressed to the District Magistrate, Puri and other articles under seizure list (Ext.6). Ext.25 is the reply of letter from C.S.O., Puri which he had seized under seizure list (Ext.6). Ext.26 is the Tally Register of the informant. On 14.8.1990 at 10 A.M. he arrested accused Kalia @ Jambeswar Pujapanda who led him to Bajragarh Amina Jaga along with two witnesses and gave recovery of one Bhujali stained with blood kept under a leather cover, one Gupti and one check Gamuchha stained with blood which were seized. On 18.8.1990, he arrested accused Budha Panda @ Onkarnath Puja Panda, Muna @ Madhusudan Kar and Rabi Behera and forwarded them to the court on 19.8.1990. Before forwarding accused Budha Panda @ Onkarnath Pujapanda, he sent him to the hospital as he had some injuries. On the same day he received the post-mortem examination report. On 28.8.1990, he made a prayer before the court of S.D.J.M. to hold T.I. Parade in respect of the suspect Rabi Behera. The T.I. Parade was conducted by the learned J.M.S.C. Puri on 5.9.1990. On completion of investigation, he submitted charge-sheet on 9.11.1990. He also stated that P.W.8 was a witness to the leading to discovery and stated before him that on interrogation accused Kalia @ Jambeswar Pujapanda gave information that accused persons, namely, Budha Panda and Muna Kar had kept concealed one blood stained Gupti and one blood stained Bhujali at Amina Garha Jagaghar and also a blood stained napkin inside an Almirah and he led to the Amina Garha Jagaghar where he gave recovery of said articles from an almirah. He also stated that P.W.10 is another witness to leading to discovery who stated before him in the same manner as P.W.8 and he recorded the statement u/s 161 Code of Criminal Procedure. He further stated that P.W.13 stated before him that he along with Patanjali Mohapatra, Kalu Saha and Bisu (P.W.1) was sitting in the Depot office. Hearing hullah, he came out and found deceased Kasinath Panda lying on the ground being stabbed by the accused persons, and four other persons were standing outside. Accused Muna Kar was holding a Bhujali, another person was holding a Gupti and the third one was holding a wooden stick. At that time, deceased Kasinath Panda entered into the office room with bleeding injuries. Deceased Narayan Panda tried to rescue deceased Kasinath, but accused Muna Kar dealt a Bhujali blow on Narayan Panda, as a result of which he fell down with bleeding injuries. P.W.13 also stated before him that at that time someone dealt a blow on his head and left fore-arm with a wooden stick.

On scanning the evidence, it is found that P. Ws.1 and 4 are eyewitnesses to the occurrence and they have given direct evidence with regard to the assault. There is no dispute about the identification of the accused persons. Though there are some minor contradictions in the evidence of P. Ws.1 and 4, but they have attributed a specific role to each of the accused. The F.I.R. also indicates the role played by the accused persons. There is no good reason why the trial court has discarded the evidence of P. Ws.1 and 4, who are eye-witnesses. There are some material discrepancies about the weapon of offence. But both the weapons are similar to each other. It is not expected of each of the witnesses to say the exact name of the weapon of offence because they may not be acquainted with the names of different weapons. The trial court is wrong in discarding the evidence of ocular witnesses like P. Ws.1 and 4 inasmuch as their evidence is corroborated by the doctor, who conducted autopsy.

In view of the above, this Court is of the opinion that there are direct materials against all the Appellants. The evidence of P.W.9, who has deposed about the previous day''s occurrence, is clear which proves the motive of the Appellants. Therefore, this Court sets aside the judgment and order of acquittal passed by the trial court, convicts the Respondents u/s 302/34 I.P.C. and sentences each of them to undergo imprisonment for life.