Orissa High Court
Lambodar Munda vs State Of Orissa on 1 November, 2017
Equivalent citations: AIRONLINE 2018 ORI 424
Author: S.Pujahari
Bench: S.Pujahari
THE HIGH COURT OF ORISSA, CUTTACK.
JCRLA NO. 61 OF 2005
From the judgment and order dated 29.01.2005 passed
by Shri B.K. Jena, Additional Sessions Judge (F.T.),
Champua in S.T. Case No.62/43 of 2004/2003.
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Lambodar Munda ......... Appellant
-Versus-
State of Orissa .......... Respondent
For Appellant - Ms. Sarmistha Nayak and
Mr. Kiran Rout
Mr. B.R. Sahu,
Amicus curiae
For Respondent - Mr. A.K. Nayak
Addl. Standing Counsel
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P R E S E N T :-
THE HONOURABLE MR. JUSTICE S.PUJAHARI
AND
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
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Date of Argument- 16.09.2017 : Date of Judgment-01.11.2017
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DR. D.P. CHOUDHURY, J. The captioned appeal is assailed
against the judgment of conviction and sentence for life for
the offence punishable under sections 302/201/34 I.P.C.
passed by the Additional Sessions (F.T.), Champua in S.T.
Case No.62/43 of 2004/2003.
2. The adumbrated facts leading to the case of the
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prosecution is that on 14.6.2002 at about 8 am the
informant and her husband Dilip Karua went to the house
of one Paradesi Oram to purchase liquor in order to
celebrate Raja festival. After purchasing liquor they went to
the house of one Gedua Munda. The present appellant was
there already in the house of Gedua Munda. Then the
informant, her husband and Gedua Munda consumed the
liquor.
3. When the informant asked her husband Dilip to
leave the place for return to home, appellant Lambodar
Munda and Gedua Munda did not allow Dilip to leave the
place and there was altercation by Dilip with Lambodar and
Gedua. Thereafter appellant Lambodar and co-accused
Gedua assaulted the deceased Dilip by a Sargi (Sal lathi)
and with fist blows and kicks. When the informant
intervened appellant Lambodar, he also assaulted her.
Appellant Lambodar also threatened the informant to leave
the place. Then out of fear, the informant left the place
with her baby. In that night Dilip did not return to home.
On the next day morning the informant went to the house
of Gedua Munda and asked him about the whereabouts of
her husband, but appellant Lambodar and Gedua informed
3
that they left deceased Dilip near the bank of the river.
After thorough search on 16.6.2002 at 6 am they found
the dead body of her husband floating in the water of river
Sona. So, she lodged the F.I.R.
4. During investigation, the police made inquest
over the dead body of deceased Dilip and sent the dead
body for post-mortem examination. The police examined
the witnesses. The police also seized one cotton banyan, a
pair of shoes and a pair of socks of the deceased. Also the
police seized the duty attendance card of Dilip. On the
same day the police searched the house of co-accused
Gedua Munda and seized one white colour pant stained
with blood from his house as co-accused Gedua was
absconding. The police seized the wearing apparel of the
deceased after the post-mortem examination.
5. During further investigation, the police arrested
the appellant who confessed about the crime before the
police. The police also obtained the opinion of the doctor to
the effect that injuries on the deceased are possible by Sal
lathi. When the police could not arrest co-accused Gedua,
finally after completion of investigation charge sheet was
submitted against the appellant and co-accused Gedua
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showing the latter as absconder.
6. The prosecution adduced seven witnesses, out
of which P.W.7 is the doctor, P.W.6 is the Investigating
Officer, P.W.1 is the occurrence witness, P.Ws.2 and 4 are
inquest witnesses and P.W.3 is the post-occurrence
witness. The defence examined one.
7. The learned trial court after analyzing the
evidence of the prosecution witnesses found the appellant
guilty under sections 302/201/34 I.P.C. and convicted him
thereunder. The learned trial court sentenced the appellant
under section 302 I.P.C. to undergo imprisonment for life,
but did not pass separate sentence under section 201 I.P.C.
SUBMISSIONS:
8. Learned counsel for the appellant submitted
that there is no eye witness to the occurrence of murder of
the deceased although the witnesses stated to have seen
the quarrel between the parties and assault on the person
of the deceased at the instance of both appellant and co-
accused Gedua. He further submitted that the evidence of
P.W.5 who happens to be the wife of the deceased should
not be relied on as she is related to the deceased.
Moreover, he submitted that there is contradiction between
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the evidence of the doctor (P.W.7) and the occurrence
witnesses about the place and number of injuries sustained
by the deceased. According to him, there are lot of
contradictions between the evidence of P.W.5. The chemical
examination report also is not specific to show the
involvement of the appellant. When there is no chain of
circumstances to prove the guilt of the accused, the
learned trial court has erred in law by convicting the
appellant under sections 302/201/34 I.P.C.
9. Learned amicus curiae for the appellant
submitted that the learned trial court has failed to
appreciate the evidence on record properly and finally
landed in a wrong conclusion by convicting and sentencing
the appellant Lambodar. The learned trial court has also
erred in law by not considering the mitigating circumstance
while sentencing the appellant. So, he challenged the
finding of the learned trial court and sentence awarded. In
short, he submitted to acquit the appellant Lambodar while
allowing the appeal.
10. Learned Additional Government Advocate
submitted that there is clear evidence of P.W.1 who is an
eye witness to the occurrence about the assault and
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disappearance of the dead body. He further submitted that
the evidence of P.W.5 cannot be discarded although she is
the wife of the appellant because it is settled law that the
evidence of relative cannot be thrown out, but the same
should be scrutinized with caution. He further submitted
that there is no any contradiction between the evidence of
the doctor and the occurrence witness as to place of injury
on the person of the deceased. Apart from this, he
submitted that in case of murder, the minor discrepancies
in the evidence occurring hither and thither should not be
counted to discard the well corroborated case of the
prosecution. So, he supported the judgment of conviction
and sentence passed by the learned trial court.
DISCUSSION:
11. The evidence of P.W.6 shows that after the
F.I.R. vide Ext.5 is lodged he made inquest over the dead
body. The evidence of P.Ws.2 and 4 shows that in their
presence, the police made the inquest over the dead body
and the same is proved vide Ext.1. It is further revealed
from the evidence of P.W.6 that he has sent the dead body
of the deceased for post-mortem examination.
12. It is revealed from the evidence of P.W.7 that
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he has not done the autopsy of the deceased, but the same
was done by one Dr. Pulak Kumar Pati, who is dead. There
is no evidence led by the prosecution to show that he is
acquainted with the signature and handwriting of Dr. Pati to
satisfy the necessary provisions of the Evidence Act. But as
it appears from the post-mortem examination report and
evidence of P.W.7 that he is also the Assistant Surgeon of
Sub-Divisional Hospital, Champua. Even if he has not
specifically stated that he is acquainted with the signature
and hand writing of Dr. Pati, it cannot be stated that Dr.
Pati was not his colleague as both were working in one
hospital. Also in the cross-examination nothing was
challenged by the defence as to examination of P.W.7 to
prove the post-mortem examination report. In absence of
challenging the examination of the doctor who deposed
about the post-mortem examination report, the fact of
post-mortem of the deceased Dilip cannot be discarded. Of
course, the post-mortem examination report has not been
admitted in the evidence by P.W.7, may be for the reason
that P.W.7 has not vouched about his acquaintance with
the hand writing of Dr. Pati. However, the contents of the
post-mortem examination report have been allowed by the
trial court to be proved through P.W.7. The question arises
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whether in such situation can the court read evidence.
13. It is revealed from the evidence of P.W.7 that
the autopsy of the deceased was conducted by Dr. Pulak
Kumar Pati, who is dead. According to him, Dr. Pati has
prepared the post-mortem examination report. When the
doctor conducting the post-mortem examination of the
deceased is not examined, it has to be seen whether the
same can be admitted in evidence. It is reported in 2002
AIR SCW 219; State of Haryana v. Ram Singh where
Their Lordships observed as follows:-
"While it is true that the post-mortem report
by itself is not a substantive piece of evidence,
but the evidence of the doctor conducting the
post-mortem can by no means be ascribed to be
insignificant. The significance of the evidence of
the doctor lies vis-a-vis the injuries appearing on
the body of the deceased person and likely use
of the weapon therefor and it would then be the
prosecutor's duty and obligations to have the
corroborative evidence available on record from
the other prosecution witnesses."
14. With due regard to the said decision, it is clear
that post-mortem examination report itself is not a
substantive piece of evidence, but the evidence of the
doctor conducting post-mortem examination is a
substantive piece of evidence. At the same time, it is
reported in A.I.R. 1966 Orissa 21 (Hadi Kirsani v.
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State), where Their Lordships observed at paragraph 7 as
follows:-
"7. The position of law may, therefore be
summarised thus if the doctor is available for
examination in court, the injury report or the post-
mortem report given by him is not substantive
evidence and is inadmissible unless he is
examined. It can be used for corroboration or
refreshing memory or for contradiction of his
evidence in court. If, however, the doctor is dead
or is not available for examination in court under
the circumstances mentioned in Section 32, the
injury report or the postmortem report is
admissible and relevant. What weight it would
carry with a court of fact is altogether a different
question. Its probative value would depend on the
facts and circumstances of each case."
15. With due regard to the aforesaid decision it is
clear that the post-mortem examination is admissible, if it
is found that the doctor who conducted the post-mortem
examination is dead or not available for his examination in
court. In the instant case since Dr. Pati is dead, the post-
mortem examination report prepared by him is admissible.
16. On perusal of the lower court records, it
appears that on 4.1.2005 the defence admitted the post-
mortem examination report to accept same in evidence
and accordingly, the post-mortem examination report was
exhibited vide Ext.14 on admission. The provision under
section 294 Cr.P.C. and read for admitting the post-mortem
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examination report on admission. It is reported in 2003
Cr.L.J. 1031 (Boraiah alias Shekar v. State), where the
Full Bench of Karnatak High Court at paragraph-11 was
pleased to observe as follows:-
" ........ The very object of Section 294 of the Cr.
P.C. would be defeated if the signature and the
correctness of the contents of the PM report are
still required to be proved by the doctor
concerned even if its genuineness is not disputed
by the accused. Section 294, Cr. P.C. is clear and
unambiguous and it leaves no doubt that when
once the genuineness of the document is not
disputed, it could be read in evidence. It is only
when the genuineness of the PM report filed by
the prosecution is not disputed by the accused
that Sub-section (3) of Section 294 of Cr. P.C. will
come into play and the PM report may be read as
substantive evidence and the signature and the
correctness of its contents need not be proved by
the doctor concerned ............"
17. With due respect to the aforesaid decision it is
found that the post-mortem examination admitted by the
defence under sub-section (3) of section 294 Cr.P.C. is
admissible also.
18. Thus, relying upon the aforesaid decision, of
the Hon'ble Apex Court, High Court of Karnataka and of
this Court, in the instant case no doubt the post-mortem
examination report is admissible and accordingly the trial
court has rightly marked it as Ext.14.
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19. It is revealed from the evidence of P.W.7 read
with the post-mortem examination report that the
deceased has got the following external injuries:-
"1) A strong stout edematous body limbs by the
side of the body rigormatics present.
2) Lacerated wound on the both side of the chest
size 2" x ½" into bone depth.
3) A large hematoma size 3" x 2" on frontal elbow
of the brain."
20. The cause of death was due to secondary
pressure to the brain due to large hematoma and such
injuries are possible by assault with lathi. But in the cross-
examination he opined that by virtue of fall on a stony
surface the injuries are possible except odema of the body.
At the same time he stated in the cross-examination that if
somebody drowned for a period of two to three days, then
general odema is possible. But while he was asked by the
court about the consequence of injury No.3, he testified
that injury No.3 is grievous in nature and the same is
sufficient for causing death. On the whole it is found that
even if he has not conducted the post-mortem
examination, but as a doctor there is no bar for the
prosecution to elicit opinion on the injuries. Of course such
opinion may not be conclusive, but can be an opinion
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lending assurance to the case of the prosecution. The post
mortem report as stated above, along with the evidence of
inquest evidence and then same being coupled with the
evidence of P.W.7, the homicidal death of the deceased
Dilip cannot be ruled out.
21. It is reported in A.I.R. 2003 SC 854; Lallu
Manjhi and another v. State of Jharkhand where Their
Lordships observed as follows in paragraph-10:
"The Law of Evidence does not require
any particular number of witnesses to be
examined in proof of a given fact. However,
faced with the testimony of a single witness,
the Court may classify the oral testimony into
three categories, namely (i) wholly reliable,
(ii) wholly unreliable, and (iii) neither wholly
reliable nor wholly unreliable. In the first two
categories there may be no difficulty in
accepting or discarding the testimony of the
single witness. The difficulty arises in the third
category of cases. The court has to be
circumspect and has to look for corroboration
in material particulars by reliable testimony,
direct or circumstantial, before acting upon
testimony of a single witness. (See Vadivelu
Thevar etc. v. State of Madras, AIR 1957
SC 614)."
22. With due regard to the aforesaid decision it is
quite clear that the conviction can lie basing on the
evidence of single witness. The oral testimony of a witness
can be wholly reliable or wholly unreliable or partly reliable
or partly unreliable.
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23. It is also reported in A.I.R. 2009 SC 2263;
Joginder Singh v. State of Punjab, where Their
Lordships observed at paragraph-9 as follows:-
"9. We may also observe that the ground
that the witness being a close relative and
consequently being a partisan witness, should not be
relied upon, has no substance. This theory was
repelled by this Court as early as in Dalip Singh's
case (supra) in which surprise was expressed over
the impression which prevailed in the minds of the
Members of the Bar that relatives were not
independent witnesses. Speaking through Vivian
Bose, J.it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - `Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
24. Keeping in mind the above principles let the evidence on record be analyzed to find out whether the learned trial court reached at the correct conclusion.
25. The evidence of P.W.1 revealed that on the occasion for celebration of Raja festival she and her 14 husband Dilip after purchasing liquor went to the house of co-accused Gedua Munda where the present appellant was present. According to her, they celebrated the party and after the party was over when she asked her husband to leave the place for their home, the present appellant and co-accused Gedua did not allow her husband to leave the place. Both the accused persons started assaulting her husband with fist blows and also assaulted by wooden stick (Sargi Badi). When she intervened, the present appellant abused her in obscene language and dealt her two blows. Since she was carrying her baby, she being afraid of returned to home.
26. It is further revealed from the evidence of P.W.1 that on the next morning while she was searching for her husband she found a pair of shoes, a pair of socks and shirt which her husband had put on in last night, lying on the way to the river side. Then she moved to the house of the present appellant who is the brother of co-accused Gedua and asked about her husband, but they expressed ignorance. At the same time, the present appellant handed over a hazira khata and money purse of her husband to her. Then she returned to her house and on the next day 15 she found the dead body of her husband floating in the river Sona. She informed the police and the police reduced same into writing.
27. The above facts are alleged in the F.I.R. and also finds corroboration from the evidence of P.W.6 who stated to have reduced the oral report of P.W.1 into writing and read over and explained the contents of the same to the P.W.1 and after knowing the same to be true she put her L.T.I. No doubt P.W.6 has proved the F.I.R. vide Ext.5. On going through the F.I.R. vide Ext.5 it appears that it amply corroborates the statement of P.W.1. She has been cross-examined in detail by the defence. During cross- examination she admitted that she has not witnessed that accused persons have committed murder of her husband, but she had seen the assault by appellant and co-accused Gedua on the person of her husband by Sargi Badi. When the assault was witnessed by her, it is immaterial whether she witnessed the murder because the assault itself led to cause of death of the deceased in the facts and circumstances of the case. In cross-examination she was further asked about the date of occurrence and clearly she stated that on 14.6.2002 the occurrence took place and 16 the dead body was found on 15.6.2002 and on 16.6.2002 she lodged the F.I.R. But on the other hand in the examination-in-chief she has stated two days after the occurrence she got the dead body of her husband and lodged the F.I.R. The F.I.R. contains such fact. Since she is a tribal woman and confirms about the date of occurrence and also date of lodging the F.I.R., the recovery of the dead body on 15th or 16th is not material contradiction to discard her testimony. Of course in cross-examination she made it clear that by the time the drinking party was over, her husband was severely intoxicated. Even if such statement elicited from the cross-examination, same does not affect her testimony as to assault by the present appellant and co-accused Gedua to the deceased.
28. It is further revealed from the evidence of P.W.1 that the police has seized the attendance register along with the money purse of her husband being handed over by the appellant on the next date of occurrence. She stated to have taken the same in zima and produced the same vide M.O.I. There is no any departure of her statement from the cross-examination. Such M.O.I is also found on record. As a whole the statement of P.W.1 could 17 not be well shaken by the counsel for the appellant. Relying upon the decision of the Hon'ble Supreme Court the evidence of P.W.1 who is the wife of the deceased, after being scrutinized with caution is found to be wholly acceptable. As such, she has proved not only the occurrence, but also the circumstances as to the recovery of M.O.I of the deceased from the possession of the appellant on the next day of occurrence.
29. It is revealed from the evidence of P.W.3 that prior to the occurrence deceased Dilip had purchased liquor from his shop and then went to the house of Gedua Munda. This evidence also amply lends corroboration to the evidence of P.W.5 that after the deceased and the informant purchased the liquor, had gone to the house of the appellant and Gedua Munda to celebrate the drinking party.
30. The evidence of P.Ws. 2 and 4 disclose that police has seized a pair of shoes and red colour banyan vide Ext.2. P.W.6 who is the I.O. stated to have seized those properties of the deceased from the informant. So, the wearing apparel of the deceased also lends corroboration to P.W.1. Not only this, but also the 18 prosecution has produced the wearing apparel of the deceased vide M.Os. II to V. The evidence of P.W.6 shows that he has seized one Khurda napkin from the appellant suspected to have got blood stain therein. He produced the same property vide M.O.VI. P.W.6 also stated that he has seized a white full pant stained with mud from the house of co-accused Gedua and produced the same vide M.O.VII. P.W.6 stated to have sent those properties for chemical examination.
31. The chemical examination report is produced by the prosecution, but it has not been proved by formal evidence. Also there is no admission of such report by the defence. However, on perusal of the chemical examination report, the wearing apparel of the appellant having not being found stained with blood and the report having not proved the blood group of the appellant, the chemical examination report even if admitted in the evidence vide Ext.15 by the trial Court does not lend any support to the evidence led by the prosecution.
32. From the aforesaid discussion we are of the view that the evidence of post-occurrence witnesses coupled with the circumstantial evidence clearly make out 19 culpability of the appellant in committing murder.
33. Now the question arises whether the appellant has committed culpabale homicidal amounting to murder or not amounting to murder. To come to a conclusion it is necessary to revisit the facts and evidence on record. On perusal of the materials on record, it appears that the medical evidence coupled with the evidence of P.W.1 clearly revealed that the fatal injuries on the person of the deceased led to the death have been caused by the overt act of the appellant and the co-accused Gedua. The doctor's report also adds that such injuries are possible by the Sargi Badi, of course the prosecution has not produced the Sargi Badi. When there are sufficient materials to prove the occurrence and overt act of the appellant and the co- accused, non-production of the Material Object is not fatal to the prosecution. Apart from this there is clear circumstantial evidence to show that the present appellant and co-accused Gedua did not allow the deceased to go with his wife even on the insistence of the wife of the deceased. No doubt the deceased, appellant and co- accused have taken liquor in the party. But the circumstances as depicted by the evidence cannot allow to 20 take any other lenient view, when they drove away the wife of the deceased. Not only this, but also another circumstance is that both the appellant and co-accused dragged the dead body of the deceased towards river side showing clear fact that the appellant and the co-accused have got intention to dispose of the dead body for disappearance of the evidence. Moreover, production of the I. Card and money purse of the deceased by P.W.1 on being same handed over by the appellant to P.W.1 after the occurrence is clinching circumstance against the appellant to prove his culpability. Learned counsel for the appellant submitted that the appellant and the co-accused being intoxicated did such occurrence without having any mens rea and they being tribal people have no any intention to kill the deceased. If a person having taken liquor voluntarily commits offence cannot get any excuse, but a person after being administered with liquor, commits any overt act, the same may be viewed otherwise. However, in this case the appellant and the co-accused Gedua having intention and knowledge that the injuries caused to the deceased are in ordinary course to cause death and there being no exceptions to section 300 I.P.C. being proved from the evidence on record, the charge under section 302 21 I.P.C. stands. We are therefore, unable to persuade ourselves also to find out any material to convert the conviction under section 302 I.P.C. to section 304 I.P.C. Therefore, the submission of learned counsel for the appellant is indefensible.
34. In terms of the above discussion, we are of the view that the prosecution has well proved the ingredients of offence under sections 302/201 I.P.C. against the present appellant by virtue of cogent and trust worthy evidence. On the other hand, the prosecution has proved the offence under sections 302/201 I.P.C. against the appellant and we find that the learned trial court has rightly convicted the appellant thereunder. So, there is nothing to interfere with the conviction and sentence passed by the learned trial court against the appellant.
In the result, the Jail Criminal Appeal stands dismissed.
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Dr. D.P. Choudhury, J
JUSTICE S.PUJAHARI, J. I agree.
.................................... S. Pujahari, J Orissa High Court, Cuttack The 1st November, 2017/ DNP 22