Orissa High Court
Jania Munda @ Gania And Ors. vs State Of Orissa on 2 May, 2008
Equivalent citations: 2008(II)OLR88
Author: L. Mohapatra
Bench: L. Mohapatra, B.K. Patel
JUDGMENT L. Mohapatra, J.
1. All the five appellants having been convicted for commission of offence under Sections 302/201/34 of the, Indian Penal Code (in short 'I.P.C.') and sentenced to undergo imprisonment for life for commission of offence under Sections 302/34 I.P.C. and to pay a fine of Rs. 2,000/- each, in default, to undergo further R.I. for one year, and to undergo R.I. for two years each and to pay a fine of Rs. 1,000/- each, in default, to undergo R.I. for six months for commission of offence under Sections 201/34 I.P.C. by the learned Sessions Judge, Sundargarh in Sessions Trial No. 19 of 1999, have preferred this appeal. However, the substantive sentences have been directed to run concurrently.
2. The case of the prosecution as revealed from the record is that the appellants and the deceased persons belong to the same village and there was enmity between appellant Singha Munda and the deceased persons, since the former suspected one of the deceased, namely, Balima Munda to be a witchcraft responsible for death of his two wives. In the night of occurrence all the appellants went to the house of the deceased persons being armed with weapons such as bhujalis and lathies and assaulted the deceased Balima Munda by means of bhujalis and also assaulted the other deceased Mania Munda, who is husband of Balima Munda by means of lathi blows. As a result of such assault on both deceased persons, they died. Two minor children P.Ws. 7 and 8 of the deceased couple being frightened, ran away from the house and concealed themselves in the house of one Kamaya P.W. 4. It is alleged by the prosecution that having killed both the deceased persons, all the appellants threw the dead bodies inside the forest. Next day morning the son of deceased couple P.W. 8 narrated the incident to P.W. 4 who informed the matter to the informant P.W. 1 and accordingly a report was submitted before the O.I.C., Koida Police Station by P.W. 1. On receipt of the F.I.R., a case was registered and investigation was taken up. The dead bodies were recovered and on completion of investigation, charge sheet was filed for commission of offences under Sections 302/201/ 34 I.P.C.
The defence plea is complete denial of the prosecution allegation.
3. Prosecution in order to bring home the charges, examined nine witnesses, out of whom P.W. 1 is the informant, P.Ws 7 and 8 are the children of the deceased couple, who are the eye-witnesses to the occurrence. P.W.4 is the witness in whose house both P.Ws. 7 and 8 took shelter in the night of occurrence. P.Ws. 2, 3 and 5 are witnesses to the seizure, inquest, etc. P.W. 6 is the doctor, who conducted post-mortem examination and P.W. 9 is the Investigating Officer.
4. The trial Court accepting the evidence of two eye-witnesses, namely, Gambhari Munda (P.W. 7) and Baburam Munda (P.W. 8) found the appellants guilty of the charges and convicted them thereunder.
5. Learned counsel for the appellants assailing the impugned judgment submitted that P.Ws. 7 and 8 had not witnessed the occurrence at all. It is further contended by the learned Counsel for the appellants that both the witnesses had not disclosed about the incident before any one and their statements in the cross-examination clearly show that they had not witnessed the occurrence at all. So far as recovery of weapons of offence is concerned, it is contended by the learned Counsel for the appellants that both the witnesses examined by the prosecution in this regard turned hostile as they did not support the prosecution case. According to the learned Counsel, evidence of P.Ws. 7 and 8 should not be believed and since there is no other evidence to connect the appellants with the alleged crime, they should be acquitted of the charges.
6. Learned counsel for the State relying on the evidence of P.Ws. 7 and 8 submitted that there is no reason to disbelieve their testimonies. It was further contended by the learned Counsel for the State that evidence of P.Ws. 7 and 8 corroborates the evidence of P.W. 6 the doctor, who conducted post mortem examination and therefore, the trial Court was justified in convicting all the appellants for commission of the aforesaid offences.
7. Undisputedly, prosecution relied upon the evidence of P.Ws. 7 and 8 who are the eye-witnesses to the occurrence. Both P.Ws. 7 and 8 are the children of the deceased couple. P.W. 7 is the daughter of both the deceased persons. She (P.W. 7) has stated in her evidence that in the night of occurrence all the accused persons entered into their house when four of them were sleeping. Inside the house appellant Jokar stabbed her mother by means of knife on her belly causing injury as a result of which, her mother fell down and died at the spot. The other appellants assaulted her father by means of lathies as a result of which her father also sustained bleeding injuries and died. Thereafter, all the appellants took away her father and mother to the jungle and out of fear she and her brother P.W.8 went to the house of P.W. 4 and spent the night there. In the next morning, they went to the Chowkidar and narrated about the incident before him. However, in cross-examination this witness has stated that there was no light in the house and occurrence took place inside the house. She further stated that it was dark and it was not possible to recognize any body in the darkness. Though in cross-examination she again stated that the appellant Jokar stabbed her mother by means of a knife, we are unable to accept the evidence of this witness considering her previous statement that it was completely dark and it was also not possible to recognize a person. Apart from above, it also appears from the cross-examination of this witness that she did not disclose about the incident to anyone and not even to the Chowkidar. For the first time she deposed about the occurrence in Court. She has further stated in her cross-examination that her uncle P.W.1 was not pulling on well with these appellants and she was deposing in the Court as per the instructions of her uncle. It appears that her uncle was present in Court on the date of examination. From the statement made by this witness in cross-examination, we hardly find anything to rely on the evidence of this witness. Similarly, P.W.8 is the son of the deceased couple. Though in examination-in-chief he has stated that appellant Jokar stabbed his mother by means of a knife and other appellants assaulted his father by means of lathies, but in cross-examination he has stated that he could not say who came to their house in that night and who did not come. He further stated that by the time he woke up, except four members of their family, none else were present. Thereafter, he went straight to the house of P.W. 4 and did not disclose about the incident before P.W. 4. On the next day also he did not state about the occurrence to P.W.4. and made a statement before the I.O. The statement of this witness in cross-examination that by the time he woke up, he found all the four persons of their family present in the house and none else was present and immediately thereafter he went straight to the house of P.W. 4 clearly shows that he had not witnessed the occurrence as stated in examination-in-chief. P.W. 4 in whose house both the witnesses took shelter turned hostile and did not support the case of the prosecution. In view of such evidence, we are unable to place any reliance on the evidence of P.Ws. 7 and 8 which is full of inconsistencies and contradictions.
It is fairly stated by the learned Counsel for the State that the evidence with regard to recovery of weapons of offence at the instance of the appellants is not supported by the witnesses in course of their examination. Therefore, there is no other evidence to connect the appellants with the alleged offences and having held that P.Ws.7 and 8 cannot be relied upon, we have no other option except acquitting the appellants of the charges since the prosecution failed to prove its case against the appellants beyond all reasonable doubt.
8. While concluding, some disturbing features in the impugned judgment deserve to be commented upon. Admittedly, in the present case, the informant P.W. 1 as well as P.Ws. 4 and 5 turned hostile and were put leading questions by the prosecution. As the informant turned hostile, the contents of the F.I.R. remained unproved. The prosecution in course of putting leading questions to P.W. 1 confronted him with the contents of the F.I.R. and his police statement. P.Ws. 4 and 5 were also confronted with their police statements. The learned trial Court appears to have referred to and relied upon the contents of the F.I.R. as well as the police statements of P.Ws. 1, 4 and 5 to find corroboration to the evidence of P.Ws. 7 and 8. In doing so, the learned Sessions Judge utterly failed to appreciate the well settled principles of appreciation of the evidentiary value of the F.I.R. and the police statements. Neither the F.I.R. nor the statement made by a witness before the police in course of investigation is substantive evidence. F.I.R. can be used only for corroboration or contradiction of maker thereof. On the other hand, the statement made by a witness before the Investigating Officer can only be used for contradiction of maker thereof. In this connection, the decisions in Apren Joseph @ Current Kunjukunju and Ors. v. The State of Kerala , State of Madhya Pradesh v. Surbhan 1996 CRL. L.J. 3199, Rishi Nandan Pandit and Ors. v. State of Bihar and Vinay D. Nagar v. State of Rajasthan (2008) 40 OCR (SC) 141 may be readily referred to.
9. We, therefore, allow the appeal and set aside the impugned judgment and order dated 10.4.2003 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No. 19 of 1999 convicting all the five appellants for commission of offence under Sections 302/ 201/34 l.P.C. and sentencing each of them to undergo imprisonment for life and to pay a fine of Rs. 2,000/- each, in default to undergo further R.I. for one year for commission of offence under Sections 302/34 l.P.C. and to undergo R.I. for two years each and to pay a fine of Rs. 1,000/- each, in default to undergo R.I. for six months for commission of offence under Sections 201/34 l.P.C. It is stated that all the five appellants are still in custody. If that be so, the appellants, namely, Jania Munda @ Gania, Tunta Munda @ Lambu, Tandaya Munda, Singha Munda and Jokar Munda be set at liberty forthwith, unless their detention is required in any other case.
B.K. Patel, J.
10. I agree.