Gauhati High Court
Mohesh Munda And 2 Ors vs The State Of Assam on 15 March, 2019
Author: Ajit Borthakur
Bench: Manash Ranjan Pathak, Ajit Borthakur
Page No.# 1/18
GAHC010122692015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 98/2015
1:MOHESH MUNDA and 2 ORS.
VERSUS
1:THE STATE OF ASSAM
2:SRI AJIT and RAJIB MUNDA
S/O-BUDHUA MUNDA
VILL-KALAKHOWAGAON
ANANDAPUR T.E.
MURACHUK
P.S.-BOKAKHAT
DIST.-GOLAGHAT
ASSAM
Advocate for the Petitioner : MRS BORGOHAIN
Advocate for the Respondent :
Page No.# 2/18 BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK HON'BLE MR. JUSTICE AJIT BORTHAKUR For the appellants : Mr. Sidhartha Borgohain, Ms. B. Devi, Advocates.
For the respondent No. 1 : Mr. Makhan Phukan, Additional Public
Prosecutor, Assam.
For the respondent No. 2 :Did not contest.
Date of Hearing : 10-01-2019.
Date of Judgment : 15-03-2019.
JUDGMENT AND ORDER
(Ajit Borthakur, J)
This is a jail appeal preferred by the appellants against the Judgment and Order of conviction, dated 09.09.2015, in Sessions Case No. 212 of 2014, under Sections 302/201/448/323/34 of the IPC, passed by learned Sessions Judge, Golaghat.
2. The appellants' case, precisely, is that an FIR, dated 11.02.2014, was lodged jointly by Ajit Munda and Rajib Munda, sons of Budhua Munda of village Kalakhowa, Murahchuck, before the Officer-in-Charge of Bokakhat Police Station alleging, interalia, that on 10.02.2014 at about 11:45 pm, the appellants herein and another, namely, Umesh Munda dragged Dharmendra Munda from the house of Ajit Munda to the outside and assaulted him with a motive to kill him and while Ajit Munda and Rajib Munda, brothers of said Dharmendra Munda interfered with the appellants, they too were assaulted and further, the appellants caused grievous injuries on the person of said Dharmendra, dragged him away and threw off his dead body to the Rajabheta pond, situated nearby.
3. Based on the above FIR, Bokakhat PS Case No.42/2014 under Sections Page No.# 3/18 302/201/448/325/34 of the IPC, dated 11.02.2014 was registered and the Officer-in-charge SI Ajit Kumar Saikia endorsed the case to SI (P) Jyotish Phukan for investigation. It may be mentioned that on 10.02.2014 at about 11:50 pm, the Officer-in-charge of the said police station received telephonic information from one Ratneswar Mura about the said occurrence and accordingly, investigation was launched after making an entry to the aforesaid effect in the general diary of the police station. On completion of investigation, the investigating officer laid a charge-sheet under Sections 302/201/448/323/34 of the IPC against the appellants and another, namely, Umesh Munda showing him absconder.
4. The learned Sub-Divisional Judicial Magistrate (M), Bokakhat, after complying with the necessary formalities under Section 209 of the CrPC, committed the case to the Court of learned Sessions Judge, Golaghat for trial of the appellants, whereupon, it was registered as Sessions Case No.212 of 2014. The learned Sessions Judge, Golaghat, after hearing the learned counsels of both sides and consideration of the materials on the case diary framed the charges under Sections 302/201/448/323/34 of the IPC against the appellants. The appellants pleaded not guilty. In order to establish the charges, prosecution examined as many as 10 witnesses and the defence cross-examined them. After closing the case of the prosecution side, the statements of the appellants were recorded under Section 313 of the CrPC, where they pleaded innocence. The appellants namely, Mohesh Munda and Mohan Munda declined to adduce any evidence in defence, but the appellant Biswa Tanti @ Babu Tanti inclined to adduce evidence in defence. Accordingly, appellants Mohan Munda and Biswa Tanti @ Babu Tanti examined themselves. On closing the evidence of the defence side, the learned Trial Judge, after hearing the arguments advanced by the learned counsels of both sides and on appreciation of the evidence adduced by them and further, on perusal of record, convicted the appellants under Sections 302/448/323 of the IPC and sentenced each of the appellants to undergo rigorous imprisonment for life and also to pay a fine of Rs. 2000/- in default of payment of fine, simple imprisonment for one month under Section 302 of the IPC, rigorous imprisonment for 5 years and also to pay fine of Rs.1,000/-, in default simple imprisonment for a period of one month under Section 448 of the IPC and simple imprisonment for another 6(six) months under Section 323 of the IPC. The period of substantive sentence of imprisonment was directed to be set off under Section 428 of the Cr.P.C.
5. Now let us look at the evidence of the prosecution witnesses.
Page No.# 4/18 PW-1, Ratneswar Munda deposed, inter-alia, that the occurrence took place on a day in the year 2014 at about 10/11 pm, in front of the house of the deceased Dharmendra Munda, situated at village Kalakhuwa. At that time, he was watching TV serial. Ajit Munda and Rajib Munda appeared at his house and reported that the appellants, Biswa Munda, Bulu Munda and absconder accused Umesh Munda had involved in a quarrel with the deceased Dharmendra Munda. Ajit and Rajib again visited his house and reported that by that time, the quarrel was over. He went to the place of occurrence. He noticed pool of blood at the place of occurrence. He enquired from the family members of Ajit and Rajib about the occurrence and came to know from them that the appellants had dragged away Dharmendra. He also noticed blood stains on the body of Ajit. Ajit informed him that when he made an attempt to intervene in the quarrel, the appellants assaulted him. They followed blood stains and traces of dragging on the ground, up to the field and when there was no further trace, they returned. On their way back, they came across the appellants, Mohan and Biswa, who were going towards his house, on the garden road. He enquired them as to wherefrom they were coming, to which they replied that they were returning from a party in the village. Noticing blood stains on the leg of the appellant Mohan, he enquired from them as to where they left Dharmendra to which they did not reply. He reported the occurrence to the local Panchayat President, Mamoni Doley and requested her to inform the police and on her information, the police arrived and thereafter, he handed over the appellants Mohan and Biswa to the police. Police took away both the appellants, Mohan and Biswa to the police station after detaining them at the police station, again returned to the place of occurrence.
6. PW-2 Ajit Munda, the other informant in the case stated that he knows all the accused persons and on 10.02.2014, while he was sleeping, at about 11:45 pm, he heard 'hulla' and found the four accused persons assaulting Dharmendra with strips of wood and crowbar and when he tried to resist them, they assaulted him by giving blow on his head and after some time, he noticed pool of blood and a mark left as a result of dragging a man. He along with Rajib then went to the house of Ratneswar Munda and reported the incident to him. Ratneswar informed the police. On the next morning, police found the dead body of Dharmendra in the nearby pond and the dead body was sent for post-mortem examination. Exhibit-1 is the ejahar and Ext.1(1) is his signature. PW-2 stated that about three years prior to this incident, Dharmendra killed the mother of the appellant Bulu and accused Umesh Munda. PW-2 was treated in Bokakhat Civil Hospital for Page No.# 5/18 his injury on head. He identified Mat. Ext. 1, the crowbar and Mat. Exts-2 and 3, the strips of wood that were used by the appellants.
7. PW-3 Bhanu Munda stated that the informants are her husband and brother-in-law respectively and that the deceased was also her brother-in-law. She stated that one day about a year ago, at about 10:00/11:00 pm, when she was sleeping, hearing a hue and cry, she came out and saw three accused persons assaulting Dharmendra Munda with strips of wood and one crowbar. As her husband in the course of restraining the accused persons from assaulting the deceased, sustained injury, she took him inside the house and when she came out, she saw pool of blood. Her husband informed the incident to the police station through Ratneswar and the police found the dead body of Dharmendra on the following day in the nearby pond.
8. PW-4 Monika Munda is the sister-in-law of PW-2 and the deceased was her brother-in-law. She stated that at about 11:00 pm, about one year ago, during the day time, on the day of occurrence, Dharmendra came to her house and on the same day, he again came to her house at night. At that time, the four accused persons entered her house and dragged Dharmendra and assaulted him with strips of wood and crowbar and threw him off into the nearby pond. The accused persons belonged to her village and she does not know why they assaulted and killed Dharmendra.
9. PW-5 Bobai Howala is a rickshaw puller and he stated that the incident had taken place in a night about one year ago and he knows the informants. On the following morning, from the VDP Secretary and other persons of the village, he came to know that the accused persons killed Dharmendra and threw off his dead body into the nearby pond. Police seized Mat. Exts. 1, 2 and
3. Ext. 2 is the seizure list and Ext. 2(1) is his signature. He does not know the reason why Dharmendra was killed.
10. PW-6 Dr. Rajib Kumar Prasad is the Doctor, who did post-mortem examination on the dead body of the deceased Dharmendra Munda. He found one cut mark vertically oblique on right side of the cheek, one cut mark horizontally oblique of the skull over occipital bone and one cut mark on the scalp over right temporal bone. In his opinion, the death was due to shock and haemorrhage as a result of head injury sustained by the deceased. Ext. 3 is the post-mortem examination report and Ext. 3(1) is his signature. Ext. 3(2) is the signature of the then Superintendent of Kushal Konwar Civil Hospital, Golaghat and Ext. 3(3) is the signature of the Page No.# 6/18 then Joint Director of Health Services, Golaghat.
11. PW-7 is Dr. Lakhi Prasad Bora. On 11.02.2014, he examined Ajit Munda and found lacerated cut injury over right side of scalp and tenderness over right hand. Ext. 4 is the medical report and Ext. 4(1) is his signature. He also examined Rajiv Munda and found imprints of abrasion over back of chest of left side and the injury was simple. Ext. 5 is the medical report and Ext.5(1) is his signature.
12. PW-8, Rajib Munda is one of the informants. He stated that the deceased Dharmendra Munda was his elder brother. The incident took place on 10.02.2014 at about 11:45 pm. When PW-8 was sleeping, deceased Dharmendra Munda came to his house. At that time, the three accused persons came to his house and caught hold of his elder brother and assaulted him with lathi, crowbar etc. When Rajib Munda tried to save his elder brother, the four accused persons assaulted him too. He then informed the VDP Secretary, who in turn informed the police. On the next morning, police found the dead body of Dharmendra in the pond and took the dead body for post-mortem examination. Ext. 6 is the inquest report and Ext. 6(1) is his signature.
13. PW-9 is Lakhinder Tanti. He stated that he did not see the incident, but he learnt from the villagers that the accused persons had killed Dharmendra. Police recovered the dead body from the nearby pond.
14. PW-10 S.I.(P), Jyotish Phukan was the investigating officer. He stated that on 10.02.2014, when he was posted at Bokakhat Police Station, at about 11:50 pm, one telephonic information was received from Ratneswar Mura that Umesh Mura and Bulu Mura along with two associates assaulted Dharmendra Mura with a view to take revenge for committing murder of Bhutki Mura, after kidnapping him from his house. He made an entry in the GD being GDE No.214, dated 10.02.2014. Ext. 7 is the extract copy of the said GDE. He recorded the statements of the appellants Mohan Munda and Biswa Tanti at the place of occurrence. The appellants stated that they had killed Dharmendra Munda and threw his dead body into Rajabheta pond. Next morning, the Officer-in-charge of Bokakhat Police Station registered a case being Bokakhat PS Case No.42 of 2014 and endorsed the case to him for investigation of the case. Ext. 1 is the FIR and Ext.1(3) and Ext.1(4) are the signatures of the Officer-in-Charge. After recovery of the dead body, the Executive Magistrate held inquest thereon and prepared the sketch map of the place of occurrence. Ext. 8 is the sketch map and Ext.8(1) is his signature. He examined the witnesses of Page No.# 7/18 seizure memo and sent the dead body for post-mortem examination. During investigation, he found complicity of Umesh Munda, but could not arrest him as he was absconding. After completion of the investigation, charge sheet was submitted. Ext. 9 is the charge sheet and Ext. 9(1) is his signature and Ext. 9 (2) is the signature of the officer in charge of Bokakhat police Station. Lakhindra Tanti stated before PW-10 that he put his signature on the seizure list. The seized weapons of offence were used in the murder of Dharmendra Munda and also in assaulting Ajit and Rajib Munda.
15. DW-1 Mohan Munda, the appellant, interalia, stated that in the relevant night of the occurrence, he was at home. At about 10 pm, he heard hue and cry at the house of Ajit Munda. He went there to see the incident. He noticed Ajit Munda, Rajib Munda, Dharmendra Munda, Umesh Munda and Mohesh Munda quarrelling. Witnessing the quarrel, he and Biswa Tanti went to report to the VDP Secretary. They reported accordingly. The VDP Secretary accused them of assaulting Dharmendra, Ajit and Rajib and reported accordingly to the police. At about 11 pm, the police arrived and took them to the police station. In cross-examination, he stated that the occurrence took place at the house of Ajit Munda. He denied all the suggestions of the prosecution.
16. DW-2 Biswa Tanti, the appellant, interalia, deposed in similar tune with DW-1, but specifically stated that he and DW-1 tried in vain to dissuade Dharmendra, Rajib, Umesh and Mohesh from quarrelling. Rajib wielded with one wooden bit and Ajit was without any weapon. Dharmendra was wielded with one crowbar. He did not notice any weapon in the hands of Umesh and Mohesh. He denied all the suggestions of the prosecution.
17. Heard the arguments advanced by Mr. S. Borgohain, learned counsel for the appellants and Mr. M Phukan, learned Additional Public Prosecutor, Assam appearing for the State respondent. Perused the case records including the impugned judgment and order.
18. Mr. S Borgohain, learned counsel appearing on behalf of the appellants, submitted that in this case, the entire prosecution case basically rests on the evidence of the closely related witnesses namely, PW-2 Ajit Munda, PW-3 Bhanu Munda, wife of PW-2, PW-4 Monika Munda, wife of PW-8 and PW-8 Rajib Munda, who were inimical to the deceased Dharmendra Munda, brother of PWs 2 and 8, who was accused of killing their mother Bhutki Munda as it has come in the evidence of PW-1 Ratneswar Munda, giving rise to suspect false implication of the appellants out Page No.# 8/18 of said old grudge. There is no satisfactory explanation on the evidence of the prosecution as to why the neighbouring people such as Kania Munda, Dilip and Raha Malik did not appear at the place of occurrence, despite there was great commotion, during night hours at the nearby house of PWs 2 and 4, indicating thereby that no such alleged incident had taken place. Mr. Borgohain further submitted that there are apparent contradictions between the identity of the weapons allegedly used as stated by the purported eye witnesses and seized by police and the findings of the autopsy surgeon as to the nature of injuries sustained by the deceased from the point of view of medical jurisprudence. Mr. Borgohain submitted that as per medical jurisprudence a crowbar cannot cause the nature of injuries received by the deceased and therefore, he submitted that the prosecution has failed to prove by medical evidence that the injuries were caused by the said weapon. Focusing on the statements of the appellants, recorded under Section 313 of the CrPC, Mr. Borgohain, learned counsel for the appellants stressed on the plea of innocence of the appellants Mohan Munda and Biswa Tanti, who stated that witnessing the incident committed by the absconder accused Umesh Munda and appellant Mohesh Munda, when they went to report to the VDP Secretary PW-1 Ratneswar Munda, they were apprehended and then handed over to the police. Therefore, Mr. Borgohain submitted that a fair and balanced weight ought to have given to the evidence of Mohan and Biswa in the light of the evidence led by the prosecution in the case. Mr. Borgohain has relied on the judgment rendered by the Hon'ble Supreme Court in Mahinder Singh -Vs- State of Punjab reported in 1953 Cri.L.J 1761.
19. Per Contra, Mr. M Phukan, learned Additional Public Prosecutor, Assam submitted that there is no dispute on evidence, from the defence side regarding the quarrel that had taken place between the appellants and the deceased; motive of the appellants behind assaulting the deceased, who murdered the mother of PWs 2 and 8, namely, Bhutki Munda, the identification of the seized weapons M.Ext. 1, spade in inflicting the nature of injuries found on the deceased and M.Exts. 2 and 3, the wooden bits in inflicting the injuries sustained by the injured PWs 2 & 8, as confirmed in evidence of their possible use by the assailant(s) by PW-6, the autopsy surgeon and PW-7, the doctor, in causing those injuries. Mr. Phukan also submitted that identity of the weapons of offence is not relevant, when the eye witnesses have implicated the appellants without any contradictions. Mr. Phukan also submitted that DW-1 Mohan Munda and DW-2 Biswa Tanti, in their evidence, have not specifically denied the implicating evidence against them and as such, the evidence on record clearly established that the appellants only committed the offences, Page No.# 9/18 in furtherance of the common intention, beyond all reasonable doubt. Mr. Phukan has relied on the Judgments of the Hon'ble Supreme Court in Solanki Chimanbhai Likabhai -Vs- State of Gujarat, reported in (1983) 2 SCC 174 and in Punjab Singh -Vs- State of Haryana, reported in 1984 (Supp) SCC 233.
20. The FIR, dated 11.02.2014, which was lodged jointly by Ajit Munda (PW-2) and Rajib Munda (PW-8), brothers of the deceased and eye witnesses vide Exhibit 1 revealed the allegation that the appellants, namely, Mohesh Munda @ Bulu, Mohan Munda, Biswa Tanti @ Babu and another Umesh Munda (since absconding) dragged away their brother Dharmendra Munda, in the previous night at about 11:45 pm from his bed and assaulted him. It further revealed that when they (Ajit and Rajib) resisted the appellants and the other accused, they too were assaulted by those accused persons. In the said occurrence, the appellants inflicted stab wounds on the person of Dharmendra, after dragging him out of house and threw off him to the nearby pond known as 'Rajabheta Dubi'. On conjoint scrutiny of the evidence of PWs-2 and 8, it appears that in the relevant night, their brother, the deceased Dharmendra was at the house of PW-8 Rajib Munda, which is located in their common courtyard and they have supported the facts of the occurrence depicted in the F.I.R., aforementioned, in material particulars. Both of them (PWs 2 and 8) witnessed the appellants assaulting Dharmendra with crowbar ('siprung', an iron bar with a flat end) and wooden plank at the courtyard of PW-8, after dragging out of the latter's house and on resistance, both of them were also assaulted by the appellants. It is further revealed that as they could not resist the appellants from assaulting Dharmendra, they left for the house of Ratneswar Munda (PW-1), who was the local V.D.P. Secretary, to report about the occurrence. PW-1 has corroborated the fact of information, he received from PWs 2 and 8 about the occurrence, who personally appeared before him at his home. His (PW-1) evidence reveals that PWs 2 and 8 reported him (PW-1) that the appellants involved in quarrel with Dharmendra. The evidence of PW-1 also reveals that when PWs 2 and 8 for the second time appeared before him (PW-1) and reported that the quarrel was over, he (PW1) went to the place of occurrence and noticed blood stains on the body of PW-2 and thereupon, when he (PW-1) enquired from the family members of PWs 2 and 8, they replied that the appellants dragged away Dharmendra. PW-2 reported that the appellants also assaulted him, when he tried to resist them. They (PWs 1, 2 and 8) followed the blood stains and dragging trace on ground to the extent of the field and thereafter, having not found further trace, when returning, on their way, came across the appellants Mohan and Biswa Page No.# 10/18 coming towards his (PW-1) house. It is noticed that on his (PW-1) enquiry as to wherefrom they were coming, they (the appellants) replied that they were returning from a party in the village, but when he interrupted and asked as to where Dharmendra was thrown, they gave no reply. He (PW-1) reported the occurrence to the VDP President Mamoni Doley, who, in turn, reported the occurrence to the police and thereupon, police arrived and he (PW-1) handed over the appellants Mohan and Biswa to the police. On close scrutiny of the cross-examinations of their evidence (PWs 1, 2 and 8), it is noticed that they have firmly withstood their statements made in examinations-in-chief.
21. Turning to the evidence of PW-3 Bhanu Munda, wife of PW-2, PW-4, Monika Munda, wife of PW-8, who were also eye witnesses to the occurrence, have corroborated the evidence of PWs 1, 2 and 8 in regard to the actual incident of the appellants assaulting the deceased Dharmendra and PWs 2 and 8, sustaining injuries in the occurrence, when they resisted the appellants assaulting Dharmendra.
22. On further scrutiny of the evidence of PWs 1, 2, 3, 4 & 5, Bobai Howalla, PW-8, PW-9 Lakhinder Tanti and PW-10, S.I Jyotish Phukan, the investigating officer, as a whole, reveals that after preliminary investigation, in the relevant night, the police abandoned search for Dharmendra, and on the following morning, in course of search, following the trace of blood and dragging, recovered the dead body of Dharmendra from Rajabheta pond, situated about 100/150 meters from the place of occurrence, in presence of witnesses (PWs 1, 2, 5, 8 & 9). Although PW- 10, the investigating officer omitted to draw up a sketch map of the place, wherefrom the dead body was recovered, perusal of the sketch map of the place of occurrence vide Ext. 8, however, clearly indicates that the occurrence took place, that is, the incident of assault, at the common courtyard of PWs 2 and 8, on the side of Kalakhowa-Murachuk Kutcha road, which is indicated at 'A' and the dead body was recovered from Rajabheta pond, located at a distance of about 100/150 meters therefrom as elicited by the defence in their cross-examination. There is no dispute regarding the recovery of the dead body of Dharmendra from the said pond. It is further reinforced by the inquest report, dated 11.02.2014 vide Ext. 6 prepared by Ananda Kumar Das, Circle Officer and Executive Magistrate, Bokakhat, who was, of course, not examined in the case, containing information pin pointing to the said place etc. and that the dead body bore visible multiple cut injuries.
Page No.# 11/18
23. It is apparent on evidence that after inquest was done, the dead body of Dharmendra was sent to K.K.Civil Hospital, Golaghat, on 11.02.2014, for post-mortem examination and on the same day, PW-6 Dr. Rajiv Kr. Prasad, the doctor, performed the post-mortem examination. PW-6, the doctor, found the following injuries on his person:
"(i) One cut mark with well defined margin of 6 Cm X 2 Cm. Vertically oblique on right side of the cheek starting from below the lateral part of eyelid and extending over the maxillary prominence, bone deep with depressed fracture of maxillary bone of 2 Cm X 1 Cm.
(ii) One cut mark with well defined margin- 5 Cm X 2 Cm. Horizontally oblique of the skull over occipital bone with depressed fracture of occipital bone - 4Cm X 2 Cm
(iii) One cut mark- 4 Cm X 2 Cm. of the scalp over right temporal bone with bone deep with linear fracture of the temporal bone"
24. The doctor (PW-6) held the opinion that the death of Dharmendra was due to shock and haemorrhage as a result of head injury and that the injuries No. (i) (ii) and (iii) may be caused by M.Ext.1, one spade. He recognised Ext.3, the post-mortem report.
25. It is pertinent to mention that the post mortem report is crucial in homicidal cases, however, it is not a substantive piece of evidence. It can only be used to corroborate other evidence in the case. The evidence of doctor comes within the definition of 'expert evidence' under Section 45 of the Evidence Act. The doctor's evidence relating to post-mortem report is opinion evidence and as such, a relevant fact in aid of ascertaining the cause of death of the deceased in the light of the witnesses' account of the actual occurrence.
26. A perusal of the evidence of P.W. 7 Dr.Lakhi Prasad Bora, the doctor, reveals that on 11.02.2014 at about 12.40 a.m., he examined Ajit Munda, on police requisition and found the following injuries on his person:
"(i) Lacerated cut injury - @ Cm. X ½ Cm. over right side of scalp, i.e. frontal region.
(ii) Tenderness over right hand."
27. According to the doctor, his injuries were simple in nature and caused by blunt weapon.
The doctor recognised Ext. 4, the medical report. On the same day, he also examined Rajiv Munda, on police requisition and found the following injury:
Page No.# 12/18 "(I) Imprint abrasion over back of chest of left side. Nature of injury is simple and type of weapon used blunt."
28. The doctor (PW-7) recognized Ext. 5, the injury report and opined that the injuries mentioned in Ext. 4 may be caused by use of M. Exts. 2 and 3, which were exhibited to him. In cross- examination, the doctor further stated that the injury mentioned in Ext.5 may be caused by the weapons M. Exts. 2 and 3.
29. In Surender Singh -Vs- State of Haryana, reported in (2006) 9 SCC 247, the Hon'ble Supreme Court observed that the testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and the same occurrence, lends support to the testimony that the witness was present during the occurrence and he saw the happening with his own eyes.
30. In the instant case, the evidence of PW- 2 Ajit Munda and PW- 8 Rajib Munda, who were victims of suffering injuries in the occurrence, have firmly withstood the test of cross-examination of the defence and their evidence is being consistent with their statements given before the investigating officer (PW-10) in material particulars and further, their evidence being corroborated by the doctor (PW-7), their evidence, as a whole, cannot be looked with suspicion. Therefore, their presence at the place of occurrence at the relevant time of the occurrence and witnessing of the occurrence, in our opinion, are established beyond doubt.
31. It is also noticed from the evidence of PW-2 Ajit Munda and PW-8 Rajib Munda, that the occurrence had taken place in the moonlit night and as such, they could identify the appellants, who were known to them from before and it is apparent on evidence that both the deceased and the appellants were maintaining inimical relation as the deceased had allegedly killed the mother of the appellants namely, Bhutki Munda. However, it may be kept in mind that in a charge of murder, the question of motive becomes irrelevant, where the prosecution at best establishes the complicity of the accused in its commission. Therefore, identification of the appellants, who were known to them, in the moonlit night, cannot be disbelieved, in the absence of evidence of their visual disability or deep darkness, subject, of course, to further scrutiny of the evidence of the prosecution and the defence.
32. In Bhagwan -Vs- State of M.P., reported in (2002) 4 SCC 85, the Hon'ble Supreme Court held that the evidence of a related witness cannot be discarded merely on the ground of being in Page No.# 13/18 relation, provided he is a natural witness to the event and his testimony gets corroboration.
33. In Nagappan -Vs- State by Inspector of Police, Tamil Nadu, reported in (2013) 15 SCC, the Hon'ble Supreme Court observed that - in a series of decisions, it has been held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness.
34. With regard to the evidence of related and interested witness, in the case of Gangabhavani
-Vs- Rayapati Venkat Reddy and others, reported in (2013) 15 SCC 298 , the Hon'ble Apex Court held as follows -
"15. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Vide Bhagaloo Lodh v. State of U.P.and Dahari v. State of U.P.)
16. In State of Rajasthan v. Kalk, this Court held: (SCC p. 754, para 7) "7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a 'highly interested' witness because she 'is the wife of the deceased'.... For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be 'interested'. In the instant case PW 1 had no interest in protecting the real culprit, and falsely implicating the respondents."
17. In Sachchey Lal Tiwari v. State of U.P.14, while dealing with the case this Court held:
(SCC pp. 414-15, para 7) "7. ... Murders are not committed with previous notice to witnesses--soliciting their Page No.# 14/18 presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of explaining their presence."
18. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
35. A scrutiny of the evidence of PWs 1, 2, 3, 4, 8 and 9, as a whole, prima facie reveals that the appellants armed with weapons entered the house of PW-8 and dragged Dharmendra out of his house, assaulted severely at the common courtyard of PWs 2 and 8 and then, after a further dragging, threw off his dead body at the nearby pond called 'Rajbheta dubi'. The entire initial incident of dragging of Dharmendra from the house of PW-8 was witnessed naturally by PWs 2, 4 and 8, the inmates of the house of PW-8, which is circumstantially corroborated by the remaining PWs aforementioned. The neighbourers who were asleep at their respective house did not come out despite call. Therefore, we find their evidence quite natural and trustworthy being only the possible eye witnesses to the occurrence in the backdrop of facts surrounding the incident.
36. With regard to the weapons seized by PW-10, the investigating officer vide Ext. 2, the seizure memo, namely, M.Ext.1- one spade, M.Exts. 2 and 3, two pieces of broken wooden bits, it appears from the evidence of the witnesses, PW-2 , PW-4, PW-5 and PW-8, the injured-cum- seizure witnesses and PW-10 that those were seized from the common courtyard of PWs 2 and 8, that is , the place of occurrence, where Dharmendra was assaulted. PWs 6 and 7, the doctors, who performed the post-mortem examination of Dharmendra and examined the injured PWs 2 and 8 respectively and before whom the seized weapons were exhibited, corroborated the evidence of the eye witnesses as to the use of those articles in causing the nature of injuries on the persons of the deceased and the injured. However, as held in Sonlanki Chimanbhai Ukabhai (supra), we are inclined to apply the principle that testimony of eye-witnesses being corroborated Page No.# 15/18 by medical evidence, the same is acceptable. The view taken in the said case was also reiterated in Punjab Singh (supra) case.
37. It is respectfully submitted that the principles of appreciation of doctor's evidence vis-a-vis of the direct testimony as enunciated in Mohinder Singh (supra) is not applicable to the facts of this case as in the said case, the victim sustained gun-shot injuries, whereas in the instant case, the deceased sustained injuries caused by dangerous weapons like crowbar/spade and wooden bits.
38. Turning to the statements of the appellants, recorded under Section 313 CrPC, it appears that the appellant Mohesh Munda stated that his brother, Umesh Munda, who has been absconding since the time of the occurrence, committed murder of Dharmendra for killing their mother. Adding further to this statement, the appellant Mohan Munda stated that the absconder accused Umesh and the appellant Mohesh assaulted to death of Dharmendra after picking up a quarrel with him armed with the seized weapons M. Exts. 1, 2 and 3, which he saw from the road and thereafter, he and Biswa Tanti went to report to the VDP Secretary, but he handed over them to the police.
39. The Hon'ble Supreme Court in Ranvir Yadav -Vs- State of Bihar reported in 2009 (6) SCC 595 succinctly held as follows:
9. "12. The purpose of Section 313 of the code is set out in its opening words - 'for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him.' In Hate Singh Bhagat Singh -Vs- State of Madhya Bharat, it has been laid down by Bose, J. that the statements of the accused persons recorded under Section 313 of the Code 'are among the most important matters to be considered at the trial'. It was pointed out that: (AIR p. 470, para 8) '8.....The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box [and that] they have to be received in evidence and treated as evidence and be duly considered at the trial.' This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there."
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40. In Raj Kumar Singh -Vs- State of Rajasthan, reported in (2013) 5 SCC 722, the Apex Court also held that the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction.
41. Here, the appellants Mohan Munda and Biswa Tanti examined themselves as D.W.1 and D.W.2 respectively. Their evidence is that on a day at about 10/11 pm in the month of February, 2014, hearing hue and cry outside, they stepped out of home to see what happened. They noticed PW-2 Ajit Munda, PW-8 Rajib Munda, Dharmendra Munda (since deceased), absconder accused Umesh Munda and appellant Mohesh Munda involving in a quarrel. They tried to dissuade/ contain them in vain and so they rushed to report the incident to the VDP Secretary (PW-1 Ratneswar Munda), but they were apprehended accusing them of assaulting the deceased, PW-2 Ajit Munda and PW-8 Rajib Munda. The VDP Secretary informed the police accordingly and handed over both of them to the police in the relevant night itself. DW-1 stated that the occurrence took place at the house of PW-2 Ajit Munda and could not say why Dharmendra was assaulted. In cross-examination, the prosecution put certain incriminating suggestions as they emerged from the prosecution evidence.
42. It is pertinent to be mentioned that Section 315 CrPC enables an accused to be examined as a witness by specifically providing that an accused shall be a competent witness for the defence and may give evidence on oath in disproving the charges made against him or any person charged together with him at the same trial. However, the proviso (a) of Section 315(1) makes it clear that no Court can compel an accused to give evidence unless there is compliance of Section 315(1)(a), that is, the request in writing by the accused. It may, further, be mentioned that in view of the proviso (b) of Section 315 (1) CrPC, even if the accused has not entered the witness box for the plea of self defence, no adverse inference can be drawn against the accused. It is well settled that though the statement of the accused is relevant against the co-accused, yet before acting upon such evidence, the Court should subject such evidence to scrutiny, because they constitute accomplice evidence. The said statement of the co-accused cannot be accepted if it is not corroborated in material particulars by other evidence, direct or circumstantial.
43. In the case in hand, the appellant Mohesh Munda did not examine himself and accused Page No.# 17/18 Umesh Munda has been absconding since the time of alleged commission of the offences. We have considered the stand taken by the appellants Mohan and Biswa in the light of their statements under Section 313 Cr.P.C., while the plea of total innocence of the appellant Mohesh, in the light of the prosecution evidence.
44. The evidence of PW-1 Ratneswar Munda, the VDP Secretary, shows that while returning home from the place of occurrence, he came across Mohan and Biswa, who were coming towards his house. He (PW-1) reported the occurrence to the Panchayat President Mamani Doley and she having informed the occurrence, police came and took into custody of the said appellants. The defence did not cross-examine him in this regard. However, the evidence of PW-10 SI Jyotish Phukan, the investigating Officer, reveals that it was he (PW-1), who telephonically informed the Officer-in-Charge, Bokakhat Police Station at about 11.50 pm, whereupon Bokakhat P.S. G.D.Entry No.214, dated 10.02.2014, vide Ext. 7, the extract copy, was made and not by the Panchayat President Mamani Doley as he (PW-1) stated. The evidence of PW-10 further reveals that he took into custody of the said two appellants from the front of the house of PW-1, who caught them. The defence did not cross-examine him on this vital aspect. On the other hand, PWs 2 & 8 have not stated anything on this vital aspect of evidence of PW-1. Panchayat President Mamani Doley was not examined in the case, without explaining any reason. Undoubtedly, there is always a presumption of innocence in favour of the accused. However, as stated earlier, the evidence of PWs 1, 2, 4 & 8, although related, but being the most possible natural eye witnesses to the occurrence that took place in the house of PW-8, during night hours, their evidence cannot be brushed aside and on the other hand, the defence plea of innocence aforementioned being not supported by any other collateral evidence, the same cannot be relied on beyond all reasonable doubt.
45. In Goudappa and Others -Vs- State of Karnataka, reported in (2013) 3 SCC 675, the Hon'ble Supreme Court explained the principle of common intention defined in Section 34 of the IPC as hereinbelow:-
"No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the Indian Penal Code makes an exception to this principle. It lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common Page No.# 18/18 intention, animating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention. In such situation, each person is liable for the result of that as if he had done that act himself. Section 34 of the Indian Penal Code thus lays down a principle of joint criminal liability which is only a rule of evidence but does not create a substantive offence. Therefore, if the act is the result of a common intention that every person who did the criminal act share that common intention would make him liable for the offence committed irrespective of the role which he had in its perpetration.
46. From the above conspectus, it emerges that the appellants and their unknown associate, in furtherance of common intention, inflicted multiple injuries and threw off the dead body of Dharmendra to a nearby pond and thus, their acts amounted to 'culpable homicide' amounting to 'murder' defined in Section 300 of the IPC, which is punishable under Section 302 of the IPC. The injuries sustained by PWs 2 and 8 in the said occurrence are also proved committed by the appellants and their unknown associate beyond all reasonable doubt.
47. For the reasons, set forth above, we are in agreement with the reasons recorded by the learned Sessions Judge, Golaghat holding the appellants guilty of the charges and accordingly, their conviction and sentence are affirmed.
48. Accordingly, this appeal being devoid of any merit stands dismissed.
Return the records of the trial Court along with a copy of this judgment and order.
JUDGE JUDGE Comparing Assistant