Barman, A.C.J.
1. Pangi Jogi Naik and Pangi Bisu Naik, who are both brothers were convicted on a charge of murder of Pangi Krishna and his wife Pangi Muthei on the night of 16th September 1963, and sentenced to death by the learned Sessions Judge of Koraput.
2. The motive for the murder is said to be hostility due to some land dispute between the parties. The weapon used for committing the murder is said to be tangia (M O I) which caused an incised punctured wound. The tangia was found to be stained with human blood, according to the Serologist's report.
3. The accused persons (appellants) totally denied their complicity in the crime ; their case is that due to previous enmity they have been falsely implicated in this case.
4. On 6 (16?) September 1963, the deceased Pangi Krishna and his wife, the deceased Pangi Muthei were sleeping with their four children including two boys, namely Pangi P. W. 1 Pangi Dora aged 15 years and P. W. 2 Pangi Rama aged about 12 years, in one room, the doors of which are said to have been closed from inside. The husband and wife were sleeping in two cots joined together while the children were sleeping on the floor below. The doors of the room were made of wooden planks. The front door had been chained and the back door had been closed by a Mushal (wooden piece). The circumstances in which the two deceased persons were murdered are fully spoken to by the two boys (P. W. 1 and P. W. 2) who were sleeping inside the room with their parents and happened to be eye-witnesses to the occurrence as discussed hereunder.
5. Immediately after the commission of the murder P. Ws. 1 and 2 reported the occurrence to their uncle P. W. 8 Pangi Kangu Naik. Thereafter other persons including P. Ws. 10, 11 and 12 were also informed about the incident, namely that the accused persons had committed the murder of the two deceased persons. A punchayeti meeting was held in the village. Then P. W. 1 Pangi Dora along with P. Ws. 8 and 10 went to the police-station at Pottangi, which is said to be at a distance of about 25 miles from the place of occurrence, and lodged information about the occurrence on 18th September 1963 at about 8 A. M. They filed a statement narrating the incident which is Ext. 14 in the case. In the meantime, immediately after the incident, on 17th September 1983, at about 6 P. M. accused Jogi Naik had himself lodged information at the same police-station stating that the brother of the deceased Pangi Krishna had committed the murder--see Ext. 16--apparently by way of fores tailing the complainant's party before they could inform the police about the occurrence. On the earlier information received on 17th September 1963, the police came to the village of the deceased, took up investigation and in due course arrested the accused persons. They were charged, committed, and sent up for trial before the Sessions Judge of Koraput, who convicted them under Section 302 and Section 302/34, Penal Code and sentenced them to death by his order dated 5th December 1964.
6. The charge against the accused persons is that on the night of the murder they, in furtherance of their common object, both raided the house of the deceased Pangi Krishna ; and then accused Pangi Jogi Naik killed Pangi Krishna by a Kathi blow while he was sleeping and the other accused Pangi Bisu Naik killed Krishna's wife Pangi Mutei also, while she was escaping and thereby each of them committed an offence punishable under Section 302 and Section 302/34, Penal Code.
7. The prosecution case is based mainly on the direct testimony of the two sons of the deceased, namely P. Ws. 1 and 2, aged 15 and 12 years respectively.
8. The evidence of P. W. 1 Pangi Dora about what had actually happened on that fatal night is, so far as is material is this :
'I heard the groaning sound of my father and I immediately heard my mother saying : 'Jogi has stabbed your father, get up'. I got up immediately and found Jogi (identified) who belongs to Narangpadar, pulling out a knife from the chest of my father. The blade of which, I could see after it was drawn out, was about 6 inches. I also found accused No. 2 standing near the door to the front with an axe. Both the doors were open by the time I got up, though they had been closed when we retired. Then my mother escaped through the backdoor, followed by accused No. 2. Then I heard my mother saying that she had been attacked by accused No, 2 and that we should run away to our uncle Kangu or else we would be killed. Rama had got up. I roused Sitrung and Lingu and then we, four fled away .... After day-break Kangu, Birsu, Chikunu, Dasu and Butchanna and myself and Rama went to the spot. We found my father dead on the cot and my mother in the front yard.'
9. The question is : Is there any reason why the Court should disbelieve the testimony of this eyewitness P. W. 1 before the learned Sessions Judge The defence had strongly commented on this evidence, as being discrepant in material particulars from, the written report to the Police Ext. 14 which this witness, along with P. Ws. 8 and 10, had signed. The material portion of Ext. 14 (English translation--as quoted by the learned Sessions Judge in paragraph 11 (iii) of his judgment) is this
'The two accused on 16th September, 1963 night came. They called my father abusively and as my father did not come out they broke open the door and with a Mundi tangi assaulted my father on the chest. As my father raised alarm saying 'I am dying' my mother got up and ran through the back-door but Pungi Bisu assaulted her with Tangi. As she also fell down, we four boys out of fear ran to Khajuripadar to our uncle.'
The defence contention is that in Ext. 14, as quoted above, there is mention of the accused persons calling out Pangi Krishna abusively and their breaking open the door when he failed to respond, there is however no mention about such abuse or the breaking open of the door by the accused, in the evidence given by P. W. 1 before the Court of Sessions. During his examination-in-chief the report Ext. 14 was read out to P. W. 1 as recorded by the learned Sessions Judge and P. W. 1 denied having stated that two accused had called out his father abusively and that when his father did not respond they broke open the door.
10. The learned Sessions Judge was not right in allowing Ext. 14 in its entirety to be read out to P. W. 1 in the course of his examination-in-chief. He seems to have apparently overlooked the provisions of Section 162 (i) Criminal Procedure Code to the effect that no statement made by any person to a police officer in the course of an investigation shall be used for any purpose, at any enquiry or trial, in respect of the offence under investigation, at the time when such statement was made and the proviso to Sub-section (1) of that Section namely that when any witness is called by the prosecution for such enquiry or trial whose statement has been reduced in writing as aforesaid, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness but for the purpose only of explaining any matter referred to in his cross-examination.
11. In the present case P. W. 1 even in cross-examination, when confronted with Ext. 14, stated that the statement said to have been made by him in that report that the two accused persons before committing murder had called out his father abusively was untrue, and also stated that the further statement in Ext. 14 attributed to him that when his father did not respond to the call the accused broke open the door was also untrue.
12. In our opinion, the formalities required by Section 145 of the Indian Evidence Act were not complied with in this case. That Section lays down :
'145 --Cross-examination as to previous statement in writing :--
A witness may be cross-examined as to previous statements made by him in writing or reduced in, writing, and relevant to matters in question without such writing may be shown to him, or being proved; but if it is intended to contradict him by the writing his attention must before the writing can be proved, be called to those parts of it, which are to be used for the purpose of contradicting him.'
The word 'parts' in the Section is not without significance. In the present case no specific question was put to either of the eye-witnesses, P. W. 1 or P. W. 2 regarding the alleged abusive language stated to have been used by the accused towards deceased Pangi Krishna or regarding the breaking open of the door by the accused persons. The reading out or reference to the report Ext. 14 as such, either in the examination-in-chief or even in 'Cross-examination in the manner it was done is not permissible in law. What Section 145 of the Evidence Act requires is that the witness must be confronted with those parts of the earlier statement on which the defence relies for the purpose of contradicting him. Ext. 14 as such, being a statement made to a police officer cannot be used by the defence by reason of prohibition contained in Section 162 (1), Criminal Procedure Code. The defence can rely only on those parts of Ext 14, with which P. W. 1 was confronted by virtue of proviso to the Section. No part of Ext. 14 can be used by the defence for the purpose of contradiction without complying with Section 145 of the Evidence Act. It was fairly conceded on behalf of the defence, that the legal formalities required under Section 145 of the Evidence Act read with Section 162 (1) (including the proviso) of the Criminal Procedure Code, were not complied with in this case. Indeed, there is nothing to show that those parts of Ext. 14 on which the defence relies were 'duly proved' as required under the proviso to Section 162 (1) Criminal Procedure Code; they, therefore, cannot be used by the defence in contradicting the eye-witnesses P. Ws. 1 and 2. Hence the defence argument based on the supposed discrepancies between the statement of P. W. 1 in his evidence before the Sessions Judge and his statement in his signed report Ext. 14 has no substance.
13. Even assuming that the reference in Ext. 14 about the accused persons abusing the deceased Pangi Krishna and breaking open the door of his house before committing the murder are true, nevertheless the essential aspects of the prosecution case implicating the two accused persons in the crime are not affected in any way. The consistent story of this eyewitness P. W. 1 and that of his younger brother (P. W. 2) (to which I shall refer presently) is that these two accused persons committed the crime, and there is absolutely no reason why these two witnesses should falsely implicate the accused persons in this case.
14. Therefore, apart from the evidence of P. W. 1 Pangi Dora, the evidence of his younger brother Pangi Rama, P. W. 2 who was also an eye-witness to the occurrence, as he was also sleeping in the same room as the deceased at that time, is by itself sufficient to sustain the conviction of the accused persons. P. W. 2 had not signed Ext. 14. But the defence relied on his answer in cross-examination to the effect that--
'the report (Ext. 14} was written when told by Kangu (P. W. 8): who was translating what we are saying.'
On the basis of this answer in cross-examination the defence argued that P. W. 2 also was a party to Ext. 14. In our opinion, this argument also has no substance. It is apparent that in the process of the translation and recording made by Kangu (P. W. 8) there might have been some embellishments. It is not suggested that there was any special motive for the witness to make such references about the accused persons abusing the deceased Pangi Krishna and about their breaking open the door. On the other hand, the explanation given by the learned Government Advocate for such references to abusing and breaking open of the door is this : All the inmates of the room including the two eye-witnesses (P. Ws. 1 and 2) were dead asleep at mid-night, when the house was raided by the accused persons. They suddenly woke up. The mother of these boy witnesses (deceased Pangi Mutei) might have told them about the abusing made by the accused persons--which the boys might have heard. As regards the breaking open of the door of the room the fact remains that the front door was shut from inside and except by breaking open the two accused persons could, not have made their entry inside the room for the purpose of committing the murder. The fact remains that the boys were fast asleep and themselves did not hear the abusing nor the breaking open of the door. So they rightly denied in court these earlier parts of the incident. In our opinion the prosecution explanation seems reasonable in the circumstances. Even assuming that Ext. 14 is also the statement of P. W. 2, it is inadmissible in evidence as P. W. 2 was not confronted with the statement under Section 145, Evidence Act. Mr. H. Kanungo made a prayer that the case may be remanded to give an opportunity to the defence to confront P. Ws. 1 and 2 with Ext. 14 under Section 145 Evidence Act. The defence was represented by a lawyer. We find no force in the contention and we reject it.
15. The material portion of the evidence o P. W. 2 is this :
'About a year back on a Monday night the incident took place when we were all sleeping. That night we four brothers were sleeping on the ground, my father next to us on a cot, and then my mother in, a cot of creepers. I was fast asleep. I got up as my mother said 'Jogi has come and has stabbed your father, get up'--At that time a country lamp (MO II) was burning. I found the two accused in the room. I also found A. 1 Jogi drawing out a knife from my father's chest. Then my mother escaped through the front door of the room. A.-2 chased my mother. So my mother cried saying: 'Bisu has killed me, you run away.' My elder brother P. W. 1 had already got up. We roused the other two and fled away and then went to our uncle. We told our uncle Kangu the whole incident. When I and Sitru escaped through the fence a cross bar hit us. We received some injuries and we were examined by the doctor for that. Ours was the only house in that locality at the time of occurrence. I know the accused long before the occurrence.'
The witness is very clear about what he had actually seen and experienced on the fatal night of the murder, including injuries received by him. The fact that P. W, 2 received injuries on the way while going to his uncle P. W. 8 supports his version that after seeing the occurrence, he ran away. Dr. S.R. Mullik (P. W. 3) examined him and found two wound injuries. This supports the prosecution case. There is absolutely no reason why the evidence of P. W. 2, should not be accepted. Hence apart from the evidence of P. W. 1 the evidence of P. W. 2 by itself is sufficient to establish the guilt of the accused persons.
16. The other corroborating circumstance which Strongly supports the direct testimony of the 2 eyewitnesses is the evidence of the other prosecution witnesses including P. Ws. 10, 11 and 12--who are absolutely disinterested persons--to whom the eyewitnesses had narrated about the occurrence immediately after the occurrence implicating the two accused persons as having committed the murder of their parents. There was no time lapse to enable anyone to tutor these witnesses to falsely implicate-the accused persons. The two boys disclosed to their uncle P. W. 8 immediately on the very night of the murder and then to the other witnesses how the two accused persons had killed their father and mother,--accused Jogi having killed the father by stabbing, him, and accused Bidu having killed the mother with an axe by chasing her. There was no delay in lodging information with the police. As appears from the evidence of P. W. 16 (the A. S. I. of Police) the place of occurrence is about 25 miles from the police station, out of which 15 miles have to be covered by ghat road and the remaining 10 miles can be negotiated by bus. He further stated that even if the direct route is taken--which would be about 20 miles--one has to cover it on foot alone over Ghati road. In view of the difficulty of communication between the place of occurrence and the Police Station there was no delay in lodging information.
17 The medical evidence also supports the prosecution case. P. W. 4 Dr. P.K. Chakravarty who conducted the post mortem examination on the corpse of the deceased Pangi Krishna found the following injuries:
'1. One incised wound 4' x 11/2' x thoracic cavity deep situated vertically on the left side of the chest, extending from the 2nd to the 4th rib, 2' laterally to the midline.
2. One incised wound 1/2' x 1/8' on the upper part of the pina of the right ear.
3. One incised wound 1' above the middle of right eye brow 2' x 1/2' x bone deep causing fracture of the underlying bones.
4. One incised wound 1' x 1/2' bone deep causing fracture of the underlying bone over the molar region of the right side.
5. One incised wound 1' x 1/2' bone deep vertically at a point 2' above and lateral to injury No. 3.'
According to him death of Pangi Krishna was caused by shock and haemorrhage on account of the injuries to the chest and head. Injuries Nos. 1 and 2 could have been caused by an axe or by a knife or a sharp cutting weapon, while the other injuries could have been caused by a heavy cutting weapon. Similarly the doctor noticed the following injuries on the corpse of Pangi Mutheni :
'1. One incised wound 2' x 1' muscle deep vertically over the upper part of the right knee joint.
2. One incised wound 3' x 1' x the depth of the cerebral cavity vertically over the right part of the frontal region at a point 2' above the right eye brow and 3' above the right ear, causing fracture of the underlying bone.
3. One wound 2' x 1' bone deep vertically over the left part of the frontal region at a point 1 1/4' above the left eye brow and 2' from the left ear.
4. One incised wound on the left ear-lobe 1/2' x 1/4' thickness of the lobules.
5. One wound 11/2' and 1/2' bone deep over the right mastoid process causing fracture of the underlying bones.'
The doctor opined that her death was caused by shock and haemorrhage due to injuries which might have been caused by a sharp cutting weapon, and a heavy sharp cutting weapon. The medical evidence is consistent with the prosecution evidence that the accused persons had committed the murder with a sharp cutting weapon like Kathi or tangi as deposed to by the eye-witnesses.
18. Having regard to the evidence as discussed above, the two accused persons were properly convicted under Section 302 and Section 302/34 Indian Penal Code. As regards the sentence, the learned Judge has rightly taken the view that this was a case of brutal, cold-blooded and calculated murder of a husband and wife, committed while they were fast asleep along, with their children, and there is no extenuating circumstance to justify any lenient view being taken of this diabolical murder.
19. In the result, therefore, the death reference is accepted, the order of conviction of the two accused persons (appellants) under Section 302 and 302/34 Indian Penal Code is maintained and the sentence of death passed on them by the learned Sessions Judge is confirmed.
The Criminal appeal is dismissed.
Misra, J.
20. I agree.