Indian Kanoon - Search engine for Indian Law

14.Apart from the evidence of Jagannath Naik, PW 8 there is yet another evidence of Rema Naik, PW 2 who deposed that the appellant, his mother and niece (the deceased) had also attended the ceremony and that the appellant Laxman and the deceased were found to be absent from the function. From the evidence discussed above it clearly turns out that the appellant had left the Village Patkadihi along with the deceased. Further Genada alias Ganga Ram Naik, PW 1 resident of Village Patkadihi deposed that on the date of occurrence while he was returning to his village at about 4.00 p.m. he saw the appellant and the deceased near Chhotsima jungle and both were heading towards their village. Learned counsel for the appellant sought to discard the evidence of this witness by contending that he did not disclose this fact to anyone till his case diary statement was recorded by the police after about a month. We are unable to persuade ourselves to concede to the submission. It is true that the witness Ganga Ram Naik deposed in cross-examination that he was examined by the police one month after the occurrence and till then he had not disclosed this fact. But this statement appears to be due to the failure of his memory as the incident had occurred on February 17, 1990 while he was examined on November 26, 1991 after about two years, therefore, he faultered as to the date and time when his statement was recorded by the police. The view that we are taking of the evidence of this witness is supported by the evidence of the Investigating Officer, Niranjan Pareda, PW 10 who deposed that he had examined the witness on February 21, 1990 after the dead body of the deceased was recovered from the forest. It may also be pointed out that the witness Ganga Naik, PW 1 is an illiterate person and an aboriginal belonging to Adivasi tribe and, therefore, is not expected to remember the date and time with that exactitude as is expected from a literate and an average person. In this view of the matter it cannot be accepted that the police recorded the statement of PW 1 after about a month from the date of occurrence. The witnesses Ganga Ram Naik, PW 1, Rema Naik, PW 2 and Jagannath Naik, PW 8 are all independent witnesses having no axe to grind against the appellant so as to make false statement to implicate the appellant. We accept their version to be truthful and reliable. It is thus established that on the day of occurrence the appellant had commanded the deceased to accompany him to the village and the appellant and the deceased had actually both proceeded towards their village and while on their way the appellant and the deceased both were last seen together in the Chhotsima jungle.

Ans. Yes, I have told lie to my mother.

I do not remember, what Ihave told to my brother.

21.A plain reading of Question No. 5 with regard to the evidence of Ganga Ram Naik, PW 1 that he had seen him in Chhotsima Dungri along with the deceased proceeding towards his village, will go to show that the appellant while answering the same had no courage to squarely deny it but gave an evasive reply that "I do not know". Similarly, in reply to Question No. 6 with reference to the evidence of his mother that when she asked him about the whereabouts of Nitma, the appellant falsely told to her mother that Nitma was at the house, the appellant again did not deny the same but gave an evasive reply by saying that "I do not remember. I cannot say". But it can be significantly pointed out that in answer to Question No. 19 to the fact that he had intentionally committed the murder of the deceased after subjecting her to sexual intercourse, he gave false information to his mother and brother, the appellant admitted by saying "Yes I have told lie to my mother. I do not remember, what I have told to my brother".

23.Thus, on a close and critical examination of the evidence on record, the circumstances which are fully established against the appellant are that in the afternoon on February 17, 1990, Jagannath Naik, PW 8 heard the appellant commanding the deceased to accompany him to their Village Tangarjoda, and that on February 17, 1990, itself at about 4.00 p.m. Rema Naik, PW 2 noticed the conspicuous absence of the appellant and the deceased from the function at his house. Immediately before the occurrence on February 17, 1990 at about 4.00 p.m. Ganga Ram Naik, PW 1 had last seen the appellant and the deceased together in Chhotsima jungle both proceeding towards their village. In the evening of February 17, 1990 the appellant went back to his Village Tangarjoda and falsely told his brother Hindu Naik, PW 4 that the deceased and his mother Nitma Naik, PW 3 were at Patkadihi at the house of Rema Naik. The appellant made a false representation to his mother, Nitma Naik also that the deceased had reached back to her Village Tangarjoda which the appellant himself admitted in his statement under Section 313, Criminal Procedure Code that he had given false information to his mother. In the morning of Saturday the appellant was found by his mother Nitma Naik, PW 3 moving about near the said forest and again gave a false information to her that the deceased had already arrived at her Village Tangarjoda. But when Smt Nitma Naik, PW 3, the mother of the appellant reached her Village Tangarjoda she did not find the deceased in the house and the appellant also escaped from the house soon thereafter. Thereafter on Monday when a search for the deceased was made, her dead body was found lying in Chhotsima jungle. The searching party found a serious bleeding injury in her private part and her clothes were found smeared with blood, eloquently speaking about the monstrous sexual assault made on her and lastly the presence of bloodstained underwear belonging to the appellant near the dead body which was seized and identified as one belonging to the appellant and the chemical and serological examination established the presence of blood on the same.