Judgment:
S.K. Mohanty, J.
1. Bhakua (appellant No. 1), Brahma (appellant No. 2), Suguda (informant) and Parama (deceased) are brothers. They lived separately. Makaranda (appellant No. 3) and Bhaskar (appellant No. 4) are sons of Bhakua. The appellants assail their conviction for the offence under Section 302 read with Section 14 I.P.C. for having committed murder of Parama in furtherance of their common intention. Each of them has been sentenced to undergo imprisonment for life for the aforesaid offence.
2. Prosecution story in brief is that on 12-7-86 at about 3 P. M. the four appellants cut the embankment of the water reservoir at different places, as a result of which the water of the reservoir passed on to the adjoining field of Parama and thereby damaged small paddy plants thereon. Parama arrived there and protested. The appellants did not pay any heed and on the other hand threatened Parama with assault. Sumali (P.W.1) the daughter of Parama arrived there and pleaded with the appellants not to assault her father. The appellants did not pay any heed and appellant Bhakua dealt a blow by means of a tabli on the heed of Parama, as a result of which he fell down. Thereafter, appellant Makaranda by means of the Tengia he held, gave a blow on the neck of Parama, and the other two appellants Bhaskar and Brahma each dealt one Tangia blow on the left leg of Parama. After assaulting in this manner, the appellants left the place declaring Parama dead. After their departure, Sumati, her brother Birendra (P.W. 4) and informant Suguda, went near the place where Parama was lying and some water was given to his mouth, but he was by then dead.
3. The appellants took the plea of denial. Appellant Bhakua stated that at the spot there was quarrel between him and Parama and in course of the same, Parama gave a blow by means of Tangia on his left thigh and thereafter he came away to his house.
4. Relying on the direct evidence of P.W. 1 - Sumati, the daughter and P.Ws. 2 and 4, the sons of the deceased and the medical evidence of P.W.3 the doctor, the learned Sessions Judge has convicted and sentenced the appellants as above.
5. P.W. 3, the Orthopedics Specialist of Boeongir District Headquarters Hospital claimed to have conducted autopsy on the dead body of Parama, He found as many as four incised wounds, one on the vertex of the head, second on the lower part of neck extending upto upper part of the left side of the chest, third on the antero medial aspect of left knee and lower part of left thigh and fourth on the anterior aspect of upper part of the left leg. On dissection among others he found corresponding cutting of right perietal bone, membrane and the parietal lobe of brain, cutting of traches (wind pipe) and all branches of left common carotid artery. According to him, all the injuries were antemortem in nature and death was due to shock and heomorrhage resulting from injuries to vital and vascular organs like brain and its covering and large vessel on the left side she heard hulla coming from their field situate at a distance of about 100 cubits. She entertained some foul play by appellant Bhakua and others as previously they had assaulted her father. So she ran to the field and found the appellants there. She further saw the appellant Bhakua directing other appellants to kill her father. She forbade and them, but to no effect. Ultimately appellant Bhakua by means of a Tabli assaulted her father on his head by the sharp side end receiving the blow he fell down. Appellant Makaranda then dealt a Tangi blow on the neck of her father on its sharp side and he was followed by assault by Tangla by appellants Bhaskar and Bramha on the left leg of her father. She claimed to have administered water to her father at the spot and found him to have died.
P.W. 2 has stated that while in his house, he and his brother Biranchi (P.W.4) heard a hulla, Biranchi then rushed to the spot and he followed him some time thereafter. According to him reaching the spot he saw appellant Bhakua assaulting on the head of his father by a Tabli as a result of which he fell down and thereafter appellant Makaranda assaulted by Tangia on the neck of his father, followed by appellants Bhaskar and Biranchi who assaulted by axe on the left leg of his father.
P.W. 4 has stated that while he had gone to tend cattle, he saw the appellants cutting the embankment of their water reservoir as a result of which water flowed to their adjoining field where there were small paddy plants. He informed this fact to his father Parama who wanted to proceed to the spot, P.W. 4 forbade. But Parama did not listen and proceeded towards the embankment. About half an hour thereafter he heard a hulla and proceeded to the embankment. From a distance of about 20 cubits he saw appellant Bhakua striking a blow by a Tabli on the head of his father as a result of which he fell down, appellant Makaranda inflicting a blow by a Tangi on the neck of his father on its sharp side and appellants Bhaskar and Brahma inflicting one blow each by the sharp side of tangi on the left leg of his father who ultimately succumbed to the injuries.
Excepting some contradictions in the shape of omissions in statements during investigation which do not touch the core of the prosecution case and are not material ones, there is nothing in their cross-examination to discredit their testimony.
11. The aforesaid direct evidence of the daughter and two sons of the deceased, fully corroborate each other and are also corroborated by the F.I.R., Ext. 5 which was promptly lodged at the Police Station. With reference to the Tabli shown to the doctor, he has stated that the same can cause the head injury and the corresponding internal injury. So far as other injuries are concerned, he has stated that they can be caused by Tangia. Thus, the medical evidence also corroborates the direct evidence appearing in this case.
12. As already stated, D.W. 1 Suguda is a liar. That apart, there are several cogent reasons which need not be repeated in this appellate judgment, for which his evidence can be safely kept out of consideration.
13. As to motive, P.W. 4 has stated that Parama purchased a piece of land from one Nitya Amath. That land is adjacent to the land of appellant Bhakua and he wanted to purchase that land, but as Parama purchased, the appellant bore grudge against him. It has been brought out from P.W. 2 during cross-examination that there were litigations between Parama and Bhakua. Thus prosecution has proved some motive oil the part of the appellants in committing the crime alleged against them.
14. As to the stand taken by appellant Bhakua that in course of quarrel he was assaulted by Tangia, D. K. 1 has stated that Parama dealt blows with the blunt side of the Tangia on the back and right side chest of accused Bhakua. He has further stated that Parama dealt another Tangia blow on the left leg of accused Bhakua. As already observed, D. W. 1 is a liar and his evidence is not reliable. This apart, the injury report Ext. 3 concerning appellant Bhakua shows one abrasion 2' x 1' above right nipple, a second abrasion 1/2' x 1/2' on the back and a bruise 3' x 2 1/2' with abrasion 1/2' x 1/2' over left thigh. In Ext. 3 the doctor has stated that the two abrasions might have been caused due to friction against hard and rough substance and the bruise by bitting against some hard and rough substance. Thus the evidence of D.W. 1 also does not find support from the medical evidence. This apart, there is no evidence on record to show that Bhakua sustained the aforesaid injuries in course of the occurrence. In this connection P.W. 2 has categorically stated that appellant Bhakua did not receive any injury at the place of occurrence.
15. The learned Sessions Judge relying on the fact that the appellants one after another dealt Tabli and Tangia blows on Parama and he died at the spot, has concluded that the appellants shared the common intention of causing the death of Parama. We are not inclined to accept this finding. In our view, the conclusion of the above sole fact is not justified in law. According to the prosecution case itself, two of the appellants inflicted blows on legs, after Parama of the neck. He has opined that the head and neck injuries independently were sufficient to cause death in ordinary course. In face of such medical evidence, the irresistible finding is that taking the person on whose dead body postmortem examination was conducted was homicidal in nature.
6. Mr. Misra for the appellants argued that prosecution has failed to connect the evidence of the doctor and his postmortem report with the dead body of Parama. True it is that the Police constables who identified the dead body to the doctor P. W. 3 have not been examined in court. In this connection the Investigating Officer, P.W. 5 has stated that after holding inquest, he sent the dead body to the District Headquarters Hospital for postmortem examination through Police Constables S. Luha and Basudev Majhi as per command certificate Ext. 7 and the dead body challan Ext. 8. Both Exts. 7 and 8 corroborate the Investigating officer that the two police constables took the dead body of deceased Parama to the doctor for postmortem examination. In this connection the doctor has stated that the dead body of Parama Kampa son of Kunja Kampa was identified to him by two constables Sanyesi Luha and Basudev Majhi, besides Birauchi Kampa (P.W. 4). The doctor has not been cross-examined on this point. Consequently there can be no escape from the conclusion that actually the doctor conducted postmortem examination over the dead body of Parama and his report Ext. 1 and opinion Ext. 2 relate thereto. The observations of this Court in Herbetas Oram v. State, 1971 (1) CWR 960, in the matter of connecting the postmortem report with the deceased relied on by Mr. Misra cannot be applied to the facts of the case at hand because in that case neither the Police Constable and the other person who identified the dead body were examined in court nor the dead body chalan and command certificate which were drawn up by the Investigating Officer had been proved by him. In the case at hand, the Investigating Officer has proved both the above documents and further more, the sworn testimony of the doctor that P.W.4 also identified the dead body is not challenged. Consequently, it is held that death of Parama was homicidal in nature.
7. Mr. Misra for the appellants assailed the conviction on the ground that the true F.I.R. is not before the Court, independent witnesses have not been examined and the interested testimony of the daughter and the sons of the deceased should not have been relied upon by the court below.
8. It is not disputed that Suguda Kampa varbally lodged a report at the Police Station. According to the Investigating Officer (P.W. 5), the Officer-in-charge of Balangir Town P.S., on the said oral report he drew up the F.I.R. Ext. 5, read over and explained the same to Suguda who put his signature thereon after understanding its contents. Prosecution did not examine Suguda and peculiarly enough he has examined himself as D. M. 1 by the defence. In his evidence he claims to have given a totally different story before the Police and according to him, Police did not reduce his oral report into writing. In his examination in-chief he stated that Police obtained his signature on a blank paper and nothing was written on it. In cross-examination he first stated that he put his signature once on the report. He then stated that he put his signatures on two full size papers and there was no printing of words in the papers in which he put his signatures. He further stated that he has signed on both the papers at the bottom. He first avoided to identify his signature in court due to defect in eye-sight. He was ultimately confronted with his solitory signature at the bottom of the F.I.R., Ext. 5 drawn upon printed form and he was constrained to admit that it was his signature. In Ext. 5 his signature appears 5 lines from the bottom. There can, therefore, be no doubt that D.W. 1 is a lier and Ext. 5 is the F.I.R. lodged by him at the Balangir Police Station after a time gap of 2 1/2 hours of the occurrence by covering 10 kilometres distance. In other words Ext. 5 is the true F.I.R. which had been promptly lodged and the same can, therefore, be justifiably utilised for the purpose of corroborating direct evidence appearing in the case.
9. In the F.I.R. it has been stated that one Dadhi Patra witnessed the occurrence and was forbidding the parties from quarrelling. This Dadhi Patra has not been examined in court and his non-examination has been commented by the learned defence counsel. The position is well settled that the contents of F.I.R. are not substantive evidence in a case. It has been fairly admitted by Mr. Misra for the appellants that there is no substantive evidence to show that this Dadhi Patra witnessed the occurrence. Consequently, the point as to non-examination of Dadhi Patra is not available to be commented upon.
10. No doubt the direct evidence appearing in the case are that of the daughter Sumati (P.W. 1) and the two sons P.Ws. 2 and 4. Merely because they are close relations, their evidence cannot be thrown out as incredible. That is because normally close relations of a deceased would be loath to spare the real culprits and falsely implicate others. The evidence, however, need careful scrutiny.
P.W. 1 has stated that while she was in her house was lying on the ground. Therefore, it cannot be said that they intended the death of Parama. The other two appellants having inflicted blows by sharp cutting instruments on the vital parts like head and neck must be said to have intended death of Parama. But there is no evidence on record to show that both of them shared the intention. Consequently, the charge under Section 34, I.P.C. must fail and the appellants can be held liable for the acts done by them individually. The doctor has said that the head injury alone might have caused the death of Parama immediately after the blow was inflicted. If in fact Parama died as a result of the assault on his head by appellant Bhakua, then the other three appellants assaulted the dead body and cannot be made liable for the offence of murder. This argument was advanced in the court below, but was repelled on the ground that the doctor has not stated that the death was a must after the first blow was inflicted. More the learned Sessions Judge has committed an error of law. The evidence of the doctor that Parama might have died receiving first blow on the head, must enure to the benefit of the appellants who did not give the first blow. Consequently, therefore, appellant Bhakua who inflicted the head injury is liable to be convicted for the offence of murder and the other three appellants must get the benefit of doubt and are entitled to acquittal.
16. In the result, the appeal by appellant Bhakua must fail and the same is, therefore, dismissed. The appeal by the three other appellants is allowed and the order of conviction and sentence passed against them is set aside. They be set at liberty forthwith.
17. Before parting, we are constrained to make some observations regarding the leisurely manner in which the trial proceeded in the court below. Charge against accused persons was framed on 20-7-87 and was fixed to 25-9-87 for fixing a date of trial. After some adjournments on 19-12-87 the case was posted to 18-2-88 and 19-2-88 for trial. On those two dates P.Ws. 1 to 3 were examined and discharged. On 26-2-88, P.W. 4 was examined and then on 31-7-89 after long lapse, the last witness P.W. 5 the Investigating Officer was examined. Statements of accused persons were recorded on 4-8-89 and then the evidence of the solitary defence witness was recorded on 30-11-89. Although there were only 6 witnesses in the case, the trial court judgment is unnecessarily lengthy running upto 38 pages almost equal to the number of pages of depositions of witnesses. During investigation, as stated by the Investigating Officer, the appellant Bhakua made a statement that he had concealed a Tabli in one of the rooms of his house under the paddy puda. So saying appellant Bhakua led the Investigating Officer and showed the said place from which the Investigating Officer seized the Tabli. The statement of appellant Bhakua has been recorded by the Investigating Officer in the case diary and the same has been marked as Ext. 14 in court describing it as a disclosure statement. The learned Sessions Judge has observed that the same is inadmissible as only a separate statement to the effect signed by appellant Bhakua would have been admissible in evidence. This is a strange proposition of law stated by the learned Sessions Judge. Law nowhere requires that in order to be admissible under Section 27 of the Evidence Act, the statement of the accused in custody must be taken down by the Investigating Officer on a separate paper along with his signature. A copy of this judgment be transmitted to the concerned Sessions Judge for his information and future guidance.
D.P. Mohapatra, J.
18. I agree.