Orissa High Court
Jayalal Sahu And Etc. vs State Of Orissa on 22 December, 1993
Equivalent citations: 1994CRILJ2254
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Seventeen persons (each one of them hereinafter described as the 'accused') have filed these two appeals against the judgment of conviction and sentence passed by learned Sessions Judge, Bolangir in S.C. No. 64 of 1985. Jayalal Sahu is the appellant in Criminal Appeal No. 96 of 1988, whereas sixteen others are appellants in Criminal Appeal No. 107 of 1988. Since the points of attack as raised by the appellants and combat as pressed by learned Counsel for State are common, these two appeals are disposed of by this common judgment.
2. All the seventeen accused persons faced trial being charged with commission of offences punishable under Sections 302 and 436 read with Section 149 of the Indian Penal Code, 1960 (in short, '1PC') on the accusation of having committed (a) murder of Balakrushna Barik (hereinafter referred to as the 'deceased'), and (b) mischief by fire by causing destruction of residential house of one Banamali Sahu of village Luhuramunda.
3. Shorn of unnecessary details, prosecution case as unfolded during trial is as follows:-
On 19-11-1984 at about 10.30 a.m. informant Bhagirathi Padhan (P.W. 1) who was coming along with Rukuna Sahu (P.W. 2) from the paddy field saw the deceased sitting on the verandah of one Bhuja Sahu of his village. Suddenly the/found that the accused persons who were armed with Tangi, tablia, gujar and lathis came in a group from the opposite direction of the village shouting to kill the deceased. Hearing their shout, the deceased out of fear started running, entered inside the house of Banamali Sahu and remained inside a room closing the door from inside. The accused persons made forcible entry into the house of Banamali Sahu and gave pushes to the door of the room where the deceased had concealed himself, as a result of which the door broke open. The accused persons brought some straws from a nearby thrashing floor, put the same inside the room and set fire, as a consequence of which the house was burnt. The deceased came out in a half burnt state. He was first assaulted by accused Banamali by an axe on his neck. Thereafter accused Rajendra alias Rajin inflicted tabli blows on his head and right shoulder. Accused Wila Sahu gave 3 to 4 blows on his knee and accused Kandha inflicted 3 to 4 tabli blows on his right foot. He was also assaulted by Dhara Guru and other accused persons. After such assaults all the accused left the spot and went towards Harijanpada. The deceased succumbed to injuries sustained due to such assaults. Immediately after the incident, both P. Ws. 1 and 2 rushed to Selebhata Police Out Post, where the former orally reported the incident to the then A.S.I. (P.W. 6) who reduced the same to writing and having made a Station Diary Entry sent the same to Luisingha Police Station for registration of a case. He thereafter proceeded with the investigation and having recorded the statements of P.Ws. 1 and 2, left for village Luhuramunda on the same day at 11.25 a.m., went round the village in search of accused persons, held inquest over the dead body in presence of the witnesses and sent the same to Headquarters Hospital, Bolangir for post-mortem examination. He seized blood-stained earth along with unstained earth, one half burnt cot, some half burnt straws, paddy, gunny bag etc. in presence of the witnesses at the spot. Charge of investigation was handed over to the Officer-in-Charge of Luisingha P.S. (P.W. 7) who on receiving written report registered a case and proceeded to village Luhuramunda for investigation. After taking charge of the case from P.W. 6, he seized a blood-stained tangi and tablia from the houses of accused Banamali Barik, Rajin Padhan, Pachila Rout and Nila Sahu. He also seized blood-stained Lungi (MO V) from accused Rajin Padhan in presence of the witnesses, arrested some of the accused persons and forwarded them to the Court, sent the seized blood-stained tablia and Lungi (MOs I to IV) to the Medical Officer who conducted autopsy to examine and opine if the injuries found on the person of the deceased could have been caused by the tablia. He thereafter sent tablia and tangi, blood-stained cloth, blood-stained earth and unstained earth to the Director, Forensic Science Laboratory, Rasulgarh through the Chief Judicial Magistrate, Bolangir for sereological tests. On completion of investigation, charge-sheet was submitted. Plea of accused persons was one of complete denial. A specific plea of alibi was taken by accused Jayalal Sahu. According to him, at the relevant point of time, he was present in Mahulpali L. P. School where he serves as a teacher.
4. In order to establish culpability, prosecution examined seven witnesses, out of whom P.Ws. 1,2 and 5 were claimed to be the eye-witnesses to the occurrence, P.W. 4 claimed to have witnessed part of the occurrence. One witness was examined by accused Jayalal Sahu in support of plea of alibi. Though no witness was examined by other accused persons, certain documents were filed to show the existence of enmity between them and the deceased and some of the P.Ws. On evaluation of evidence of P.Ws., learned trial Judge concluded that prosecution has been able to bring home the guilt of the accused Banamali Barik under Section 302, IPC, and against other accused persons under Section 302 read with Section 149, IPC. He also held that prosecution has been able to prove the charges against all the accused persons under Section 436 read with Section 149, IPC. They were accordingly convicted. Accused Banamali Barik was sentenced to undergo imprisonment for life for offence punishable under Section 302, IPC, while other accused persons were sentenced to undergo imprisonment, for life for offence punishable under Section 302/149, IPC. So far as offence punishable under Section 436/149, IPC is concerned, each of the accused was sentenced to undergo rigorous imprisonment for six years, and to pay a fine of Rs. 500/-. in default to undergo rigorous imprisonment for three months. Both the sentences were directed to run concurrently.
5. In support of appeals, learned Counsel for appellants have urged that there are several loose ends in the prosecution case which rendered it vulnerable. It is stated that there was considerable delay (three days) in sending the F.I.R. to Court without any explanation whatsoever. Evidence of P.Ws. 1, 2 and 5 should have been discarded being tainted with interestedness. There was accepted hostility between these witnesses and the accused persons. They are all guilty of not disclosing real facts. Even though they were accused persons in several cases where some of present appellants figured as witnesses, they have suppressed this fact. Evidence of P.Ws. I, 2 and 5 has also been commented upon labelling it to be parrot like. After four years of occurrence, vivid description given by them clearly established that they were tutored and got up witnesses. Some independent witnesses about whose presence, material exists, have not been examined. It is also submitted that there is material difference in the evidence of witnesses as to how alleged fire was set up. Medical evidence is at complete variance with ocular testimony. Witnesses claimed that attacks were made by the sharp side of weapons. But no cut injury was noticed, and all the injuries noticed by the Doctor were lacerated injuries. Though in the F.I.R. a motive was ascribed for the crime, the same was given a go-by during trial. In some contemporaneous documents names of only few of the accused persons have been mentioned, and delay in despatch of the F.I.R. clearly shows that others were falsely implicated. With reference to the dead body challan it is stated that names of only two were mentioned, and also reached the hospital quite late. The reason for such delay has not been explained as the accompanying constable has not been examined. The fact that only statements recorded under Section 151 of the Code of Criminal Procedure, 1973 (in short, 'Cr. P.C.') were sent to the Court and other documents were not sent, clearly shows that the records have been manipulated. It is submitted that except making omnibus statement about the presence, no definite role has been attributed to accused persons Sadhu Sarik, Sankar Bhoi, Kangalu Barik, Lala Nag, Basu Bhoi, Ananda Sahu, Safala Tandi, Kalikar Darik, Kartik Nag and Jayalal Sahu. The fact that their names were not stated in the FIR and/or contemporaneous clearly show that they have been falsely implicated. It is urged by the accused that evidence of P. Ws. 1,2 and 5 in their examination-in-chief is parrot like. Stand of accused Jayalal is that the school where he is employed is at a distance of 15 Kms. Evidence clearly shows that he had attended the school at 10.30 a.m. Therefore, it could not have been possible to be present at the time of alleged occurrence as alleged. Learned Counsel for State on the other hand, supported the judgment as of conviction and sentence.
6. Scanning through the evidence of P.Ws. 1, 2 and 5, we find the same to be clear and cogent. Their presence at the spot is quite natural and probable. They are independent witnesses. The plea that some material witnesses were not examined is of no consequence because it was nobody's case that they have witnessed the occurrence or any part thereof. P.W. 5 is a neighbour and most material witness. No interestedness is pleaded in this case. Attack has been made to the evidence of P.Ws. 1, 2 and 5 on the ground that it is parrot like. If a case is proved perfectly, it is argued that it is artificial and the evidence is parrot like; if a case has some flaws, invariably because human beings are prone to err, it is argued that it is too imperfect. As observed by the apex Court in Indar Singh v. State (Delhi Administration), , one wonders whether in the meticulous hyper-sensitivity to eliminate a rate innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline not a fetish. "A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. D.P.P., 1944 AC 315). The correct approach is that no innocent should be punished and no guilty person should go unpunished. It is no judicial heroism to blindly follow the oft repeated saying, let hundred guilty men be acquitted but let not one innocent be punished. It is undesirable to acquit a guilty person and/or punish an innocent. Any exaggerated devotion to benefit of doubt is disservice to the society. Evidence of the Doctor is not contrary to oral evidence as claimed. Assaults were made when deceased was half burnt. Therefore, mere description of injuries as lacerated, cannot be treated to be at variance to the ocular evidence. So far as delay in despatch of F.I.R. is concerned, it is seen that most of the accused persons were arrested on 20-11-1984. So the allegation that the F.I.R. was fabricated, because it reached on 22-11-1984 is not tenable. Additionally, in documents like dead body challan, inquest report, names of accused persons were not required to be mentioned, and the fact that they contained names of some cannot be a factor to discard the F.I.R. as a got-up one. On the contrary, they indicate complicity of some of the accused clearly. A significant document is referred to i.e. Ext. A (the report of the Fire Station Officer) wherein names of some of the accused persons have been clearly stated. It is trite law that in every case of delayed despatch of F.I.R., prosecution case does not become vulnerable. It is not a circumstance to throw out prosecution case in entirety. (See Sarwan Singh v. State of Punjab, . Every delay in sending report to the Magistrate under Section 157, Cr. P.C. would not necessarily lead to the inference that the F.I.R. has not been lodged at the time stated or has been ante-timed or ante-dated or that investigation is not fair and forthright. (See State of U. P. v. Gokaram, ). If circumstances show that F.I.R. was lodged as claimed mere delay in despatch would not lead to an inference about suppression of actual facts and/or manipulation.
7. Evidence of P.Ws. 1, 2 and 5 clearly shows that the deceased wanted to protect his life by going inside a room in the house of Banamali Sahu by locking the door from inside. The door was partially pushed open, and the accused persons entered into the room, collected straw from nearby, and set fire. Evidence of P.Ws. 1, 2 and 5 is also clear to the effect that accused Banamali gave the first blow on the neck, receiving which the deceased fell down, and thereafter accused Rajin alias Rajendra gave tabli blows on the head, accused Nila gave 3 to 4 tabli blows on the knees and accused Kandha Guru gave 3 to 4 tabli blows on the right foot. Evidence of these witnesses cannot be discarded. P.W. 5, the neighbour is the most natural witness. She has no axe to grind so far as accused persons are concerned. Where bad blood exists between deceased and prosecution witnesses on one hand and the accused persons on the other, the evidence requires an in-depth scrutiny and careful evaluation. If it passes the acid test of credibility, it can be acted upon. The testimony of interested, partisan and inimical witnesses cannot be discarded I altogether. The testimony of such witnesses 1 has to pass the test of close and severe scrutiny before it can be acted upon. (See Ram Ashrit v. State of Bihar, ). Each case must be judged on own facts. There can be no sweeping generalisation. Where the testimony of a witness who is branded, hostile, and interested is not shaken on material points in cross-examination, the same cannot be brushed aside. In the case at hand, the learned trial Judge has made an in-depth and elaborate analysis of the evidence of P.Ws. 1, 2 and 5 and has found it credible and cogent. In view of evidence of P.Ws. 1, 2 and 5, we find that accusations have been proved beyond shadow of doubt so far as accused Banamali, Samaru Tandi, Rajin alias Rajendra, Nila, Pachila Rout, Dhara Guru and Kandha Guru are concerned. The witnesses have specifically stated about the weapons held by each one of them, and manner and nature of assaults made by them. Learned trial Judge was therefore, justified in convicting accused Banamali Barik under Section 302, IPC and Samaru, Rajin alias Rajendra, Nila, Pachila, Dhara and Kandha under Section 302/149, IPC. So far as accusations under Section 436/149, IPC is concerned, the evidence of witnesses clearly establishes guilt of the seven accused persons named above. Therefore, their conviction under Section 436/149, IPC cannot be faulted. So far as others namely, Sadhu Barik, Sankar Bhoi, Kangalu Barik, Lala Nag, Basu Bhoi, Ananda Sahu, Sufala Tandi, Kalikar Barik, Kartik Nag and Jayalal Sahu are concerned, it is submitted that there is no definite material about the role played by one of them. An ominibus statement has been made that they had come there with lathis and assaulted, and significantly in the F.I.R. there is no mention of use of lathis. The learned Counsel for the State submitted that for attracting Section 149 the evidence is sufficient.
8. Where in a case of murder, committed by a large number of accused, the witness lodging the F.I.R. had given a fairly detailed account of the occurrence and mentioned the names of the witnesses and also the name of the deceased and then he proceeded to give a long list of names of the accused person and it was generally stated that all of them were exhorting and surrounded the deceased and attacked him but to some extent specific acts are attributed to few of the accused persons only, but in deposition elaboration is made and version is improved upon generally, it would be unsafe to apply Section 149 and make everyone of the accused constructively liable. It would be proper to convict only those who were consistently mentioned as having participated in the attack from the stage of the earliest report. In a case of murder where large number of accused are charged with carrying out assault, the evidence of the witnesses has to be subjected to a close scrutiny in the light of their earliest statements. The earliest report namely, the F.I.R. has to be examined carefully. (See Sherey v. State of U.P., ).
9. At the first flush the plea of the accused appears to be on terra-firma. But on deeper scrutiny, certain features exist which clearly bring home a case under Section 149, IPC. The genesis of the dispute as reflected in the first information report and as deposed in Court by P.Ws. 1 and 2 is that all the accused persons being armed with various weapons were coming in a group, and were exhorting to kill the deceased. They chased the deceased who entered inside the house of Banamali Sahu, and closed the door from inside. They followed him and entered inside the courtyard of Banamali and brought straw from a nearby thrashing floor, put it inside the room, poured kerosene and set fire. When the deceased came out in a half-burnt condition, the attacks were made by various accused persons. Inconsistency in the evidence is highlighted by the learned Counsel for accused relating to use of weapons. In the first information report, specific acts were attributed to various accused persons and so far as the accused whose case is presently concerned, it was stated that by use of tabli, gujar etc. cut blows were inflicted. With reference to this statement, it is submitted that since some of the accused were holding lathi each, they would not have inflicted cut blows. The word 'assault' is a wide term. Even if it is accepted that the accused persons did not use the lathi, the fact that they came in a body, armed with weapons, chased the deceased, and participated in the act of setting fire is sufficient to bring in constructive liability. They are vicariously liable for the acts of other members of unlawful assembly of which they were members. Their conviction under Sections 302/149 and 436/149, IPC is irreversible.
10. So far as accused Jayalal is concerned, it is submitted that he was working in a school and had attended the school at about 10.30 a.m. as deposed by D.W. 1. It is stated that the school is at a distance of 15 kilometres from the place of occurrence. The prosecution has established that the occurrence took place around 9.30 a.m. The distance is not so large as to render attendance of Jayalal at the school at 10.30 a.m. after committing the offence at 9.30 a.m. as claimed by the prosecution improbable and/or impracticable. The appeal filed by him is also devoid of merit.
11. In conclusion the conviction as made and the sentence awarded by the learned Sessions Judge are maintained in both the appeals, which are dismissed.
D. M. Patnaik, J.
12. I agree.