Orissa High Court
Mathu Majhi And Others vs State Of Odisha on 4 December, 2023
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA Nos.180 & 181 of 2016
(Appeals U/S.374 of the Code of Criminal Procedure,
1973 against the common judgment passed by Sri.
H.M. Bisoi, Sessions Judge, Phulbani in S.T. Nos.60 of
2012 and 187 of 2013 arising out of Bamunigaon PS
Case No.14 of 2010 corresponding to G.R. Case No. 29
of 2010 of the Court of JMFC, Daringbadi)
Mathu Majhi and others ... Appellants
(In CRLA No.180 of 2016)
-versus-
State of Odisha ... Respondent
Somanath @ Sindrisa ... Appellants
Patamajhi and others
(In CRLA No.181 of 2016)
-versus-
State of Odisha ... Respondent
For Appellants : Ms. D. Mohapatra, Advocate
For Respondent : Mr. S.K. Nayak, AGA
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :02.11.2023
DATE OF JUDGMENT:04.12.2023
G. Satapathy, J.
1. These two appeals are directed against one
common judgment passed on 16.02.2016 by the learned
Sessions Judge, Phulbani in two trials in ST No.60 of 2012
and ST No.187 of 2013 arising out of one transaction
convicting the appellant Mathu Majhi for offences
punishable U/Ss.302/201 of IPC and rest 34 appellants
for offences punishable U/Ss.201/149 of IPC.
The learned trial Court by the impugned
judgment has, accordingly, sentenced the appellant
Mathu Majhi to undergo imprisonment for life and to pay
a fine of Rs.500/-, in default whereof, to undergo Simple
Imprisonment (SI) for further two months for offence
U/S.302 of IPC with no separate sentence against him for
offence U/S.201 of IPC and each of the rest of the
appellants, to undergo Rigorous Imprisonment (RI) for
three years and to pay a fine of Rs.500/-, in default
whereof, to undergo RI for further period of two months
for offence U/Ss.201/149 of IPC.
2. Since these two appeals arise out of one
common judgment in two trials for one transaction, the
same are heard together and disposed of by this common
order with consent of the learned counsel for the parties.
An overview of prosecution case:
3. On the basis of some information, an inquiry
was conducted by Sub-Inspector of police, Bamunigaon
namely Anudhatta Parichha in reference to Station Diary
Entry (SDE) No.143 dated 08.04.2010 and in the course
of such inquiry, it was unraveled that one organization
name and styled as "Lok Sangram Manch Sangathan"
asserted its presence in bordering area of Gajapati
District and the members were professing the ideals of
Maoist. It was further learnt in such inquiry that around 3
to 4 years back, one Gudrisa Majhi, Liasa Majhi, Tohali
Mallick and Gaya Gandasa Majhi of village Gadama had
died out of some unknown disease, but the local people
blamed Tupi Patamajhi (hereinafter referred to as the
"deceased") for the death of above four persons by
practicing witchcraft and accordingly, on 07.04.2010, a
meeting was called on this issue, where the deceased and
his family members as well as 400 to 500 peoples of
different villages such as Gudrisahi, Mundasahi, Badasahi,
Srakigudi, Badaripi, Indra Colony and Baghapada
attended the meeting. In the meeting, some of the
accused persons including appellants Johan Muthamajhi
and Kalisa @ Binod Kandha had forced the deceased and
his family members to pay a sum of Rs.2 lakhs to the
village committee and threatened to kill the deceased, if
the amount is not paid, but the deceased by pleading his
innocence, expressed his inability to pay such a hefty
amount. On this reply of the deceased, the accused
persons became infuriated and killed the deceased by
cutting his throat and immediately cremated the dead
body at the spot and took oath not to disclose the matter
anywhere and warned the family members not to report
the matter before police.
On the basis of outcome of this inquiry, on
09.04.2010 at about 5 PM, the SI police, Anudhatta
Parichha lodged an FIR before the IIC, Bamunigaon
against 15 named accused and 40 unknown accused
including appellants Johan Muthamajhi and Kalisa @
Binod Kandha of village Gadamaha. On the basis of FIR,
Bamunigaon PS Case No.14 of 2010 was registered and
the IIC, Bamunigaon PS took up the investigation of the
case, in the course of which, he examined the witnesses,
visited the spot, prepared the spot map under Ext.2,
seized the bone pieces and ashes under Ext.3 and
dispatched the seized articles to SFSL, Rasulgarh for
chemical examination through Ext.4 and received the CE
report vide Ext.5 and subsequently, handover the charge
of investigation which was completed by the SI of police,
Dayanidhi Das, who submitted charge-sheet against the
accused persons for offences punishable U/Ss.147/ 148/
302/ 201/ 506/ 387/ 149 of IPC.
4. Finding prima facie material, the learned JMFC,
Daringbadi took cognizance of offences and committed
the case to the Court of Sessions after duly following
committal procedure. Finding sufficient materials and
grounds for presuming the accused persons to have
committed the offences, the learned Sessions Judge,
framed charged against the accused persons including
the appellants and the trial commenced after the accused
persons denied to the charge. However, the case of the
appellants being committed to the Court of Sessions on
two different dates, two trials accordingly, commenced,
but on conclusion of both the trials, one common
judgment was passed.
5. For sake of convenience and in order to avoid
confusion, some of the common witnesses examined in
the two trials are referred to in these appeals as they
were referred in the original case with same witness
number by putting the witness number in ST No.60 of
2012 preceding to the number of the witness in later case
in ST No.187 of 2013 (For example the witness Tambasa
Pattamajhi examined as PW2 in ST No. 60/2012 & PW 1
in ST No. 187/2013 would be referred commonly as
PW2/PW1 in this appeal).
In support of the charge, the prosecution
examined altogether 8 witnesses and relied upon 5
documents under Exts.1 to 5 in ST No.60 of 2012,
whereas it examined 6 witnesses vide PWs.1 to 6 and 5
documents vide Exts.1 to 5 in ST No.187 of 2013 as
against no evidence whatsoever by the defence in ST
No.60 of 2012, but sole documentary evidence was
exhibited under Ext.A by the defence in ST No.187 of
2013. Of the witnesses examined, PW2/PW1 Tambasa
Pattamajhi, PW4/PW2 Akash Pattamajhi and PW5/PW3
Ribika Pattamajhi were the eye witnesses to the
occurrence, whereas PW7/PW5 Ajay Kumar Barik and
PW8/PW6 Dayanidhi Das were the two investigating
officers and PW6/PW4 Anudhatta Parichha was the
informant police officer. However, PW1 Benansios
Baliarsingh and PW3 Sudhira Sahani were the two
independent additional witnesses examined in ST No.60
of 2012.
6. The plea of the appellants in the course of trial
was denial simplicitor and false implication.
7. After appreciating the evidence on record upon
hearing the parties, the learned trial Court convicted the
appellant Mathu Majhi for offences punishable
U/Ss.302/201 of IPC and rest of the appellants for
offences punishable U/Ss.201/149 of IPC by mainly
relying upon the evidence of eye witnesses to the
occurrence.
Rival Submissions:
8. In assailing the impugned judgment of
conviction and order of sentence, Ms. D. Mohapatra,
learned counsel for the appellants in both the appeals
while not seriously challenging the conviction of the
appellant Mathu Majhi, has vehemently interalia argued
by taking this Court through the evidence of eye
witnesses that none of the eye witnesses had ever stated
against any of the appellants except the appellant Mathu
Majhi either for cremating the dead body of the deceased
or even for their presence at the spot which was in fact
doubtful, but the learned trial Court has convicted the
aforesaid appellants for offences U/Ss.201/149 of IPC. It
is further submitted by her that PW2/PW1 Tambasa
Pattamajhi who is the brother of the deceased, although
claimed to be an eye witness, but his evidence clearly
suggests that he had never seen the occurrence as had
been admitted by him in the cross examination that he
had not seen the appellants assaulting the deceased by
means of stone and as to how the dead body of his
deceased brother was burnt. Ms. Mohapatra, has also
submitted that since there were 500 persons present at
the time of occurrence as per the prosecution story, but
the learned trial Court having acquitted all the appellants
except Mathu Majhi for committing the offence of murder,
it would be highly unsafe to convict the rest of the
appellants for offences U/Ss.201/149 of IPC when there is
absolutely nil evidence to infer for the prosecution of
common object of the appellants. Ms. Mohapatra has,
however, submitted that although there appears some
evidence against the appellant Mathu Majhi, but in the
circumstance, such evidence being highly unsafe to rely
upon, the appellant Mathu Majhi may kindly be acquitted
of the charge. In summing up her argument, Ms.
Mohapatra, learned counsel for the appellant has prayed
to allow both the appeals.
9. On the other hand, Mr. S.K. Nayak, learned
AGA has, however, strongly submitted that each of the
circumstance so established against the convicts by the
prosecution clearly and unerringly points towards the
guilt of the convicts and the circumstances so established
form a chain so complete that it is incapable of any
explanation consistent with the hypothesis of innocence
of the convicts and the circumstances taken cumulatively
prove the only hypothesis of the guilt of the convicts and,
therefore, the impugned judgment of conviction and
order of sentence require no interference by this Court.
Further, Mr. S.K. Nayak, learned AGA has, however,
submitted by taking this Court through the evidence of
eye witnesses that the prosecution has proved the guilt of
the Mathu Majhi beyond all reasonable doubt for offences
U/Ss. 302/201 of IPC since all the eye witnesses have
categorically stated before the Court that Mathu Majhi
slitted the throat of the deceased with a knife and such
evidence having not been demolished by the defence, the
guilt of the appellant Mathu Majhi is squarely established
by the prosecution beyond all reasonable doubt. Further,
Mr. Nayak, learned AGA has submitted that the evidence
on record clearly reveals that the other appellants had
cremated the dead body in order to screen themselves
from the legal punishment and, thereby, their conviction
for offences U/Ss.201/149 of IPC cannot be faulted with.
Mr. Nayak, learned AGA has accordingly, prayed to
dismiss both the appeals.
Analysis of law and evidence
10. After having extensively gone through the
evidence on record and meticulously examining the
impugned judgment of conviction in the light of rival
submissions, this Court considers it apposite to examine
the sustainability of the conviction of the appellants for
the respective offences by scrutinizing and re-
appreciating the evidence on record. On adverting to the
evidence on record, it appears that PW2/PW1 Tambasa
Pattamajhi had clearly stated in his evidence that on
07.04.2010, a meeting was held on the cultivable land at
a distance of 100 meters from Anganwadi building in
which he and his other family members, accused persons
and other villagers were present and in the said meeting,
at first, accused Alo Majhi told not to leave his deceased
brother and kill him, but the appellant Mathu Majhi
having cut the neck of his deceased brother by a knife
also stabbed on the belly of the deceased by the said
knife. It was also the specific evidence of PW2/PW1 that
after his(deceased) death, they went away and the said
persons had taken away the dead body of his deceased
brother and burnt the same. The above evidence of
PW2/PW1 is corroborated by the evidence of PW4/PW2
Akash Pattamajhi, whose specific evidence was that the
accused Mathu Majhi slitted his father's throat with a
knife and his father died there. The evidence of above
two witnesses is further invigorated by the evidence of
PW5/PW3 Ribika Pattamajhi who in her evidence had
specifically stated that accused Mathu Majhi slitted the
throat of his husband Tupi Patamajhi by a knife as a
result of which, her husband Tupi Patamajhi died there
with bleeding injury. The evidence of these three
witnesses could not be demolished by the defence in their
cross examination since nothing fruitful benefiting the
defence of Mathu Majhi was elicited from their mouth nor
their evidence was found suffering from any infirmity and
inconsistency with respect to Mathu Majhi slitting the
throat of the deceased which the prosecution in the
circumstance of evidence appears to have established the
guilt of Mathu Majhi for murder of the deceased beyond
all reasonable doubt. Thus, the strenuous effort of the
learned counsel for the appellants to challenge the
conviction of Mathu Majhi for offence U/S.302 of IPC is
found to be feeble and merits no consideration.
11. Albeit, the learned trial Court on analysis of
evidence has found all the appellants except Mathu Majhi
to have committed the offences U/Ss.201/149 of IPC, but
in the course of such appreciation of evidence on record,
it has found them not guilty to the charge for other
offences U/Ss.147/148/387/506/149 of IPC. It is quite
strange that after finding the appellants not guilty of
offences U/Ss.147/148 of IPC, the learned trial Court has
convicted them for offences U/Ss. 201 with aid of Sec.
149 of IPC, but after holding the appellants not guilty of
offences U/Ss.147/148 of IPC, whether the appellants can
still be convicted with aid of Section 149 of IPC. In order
to answer the same, the crucial questions required to be
determined in this case to attract the liability U/S.149 of
IPC is whether there was an unlawful assembly consisting
of 5 or more persons including the appellants and
whether such unlawful assembly had a common object to
cremate the dead body for causing disappearance of
evidence to screen themselves from legal punishment. It
is no doubt true that the presence of the appellants in the
unlawful assembly having common objection would
attract their liability for offence U/S.149 of IPC, but when
the appellants were charged for offences U/Ss.147/148 of
IPC and they having found not guilty of such offences
which basically speaks for rioting being armed with
deadly weapons, but before a person can be held guilty
for offences U/Ss.147/148 of IPC, the prosecution is
obliged to establish that the offender was a member of an
unlawful assembly consisting of 5 or more persons and he
or any member of such unlawful assembly had used force
or violence in prosecution of the common object of such
assembly and such person must be armed with deadly
weapons or with anything used as a weapon of offence, is
likely to cause death. It is true that the learned trial Court
while acquitting the appellants for offences U/Ss.147/148
of IPC has observed in the judgment as under:
"In this case prosecution has failed to prove
the accused persons either to have shared their
common object or were the supporters of "Lok
Sangram Manch Sangathan". There is no
concrete evidence on record that whether the
accused persons were present in earlier
meeting that was conducted in their village in
connection of this case. The evidence is very
much silent regarding carrying any deadly
weapon by the accused persons to kill the
victim. There is no evidence on record to
suggest that the other accused persons applied
any force or violence to complete their common
object. It seems from the material on record
that the killing of the victim is an individual act.
In such circumstance, it cannot be said that all
the accused had a common object to kill the
deceased. Mere presence in unlawful assembly
could not render a person liable unless there
was a common object which was shared by
that person. As per the evidence on record, the
other accused persons are not found to have
shared their common object with the accused
Mathu. Therefore they cannot be held liable
U/Ss.147/148 IPC".
12. After having observed as above, the learned
trial Court has proceeded to convict all the appellants
except Mathu Majhi for offences punishable U/Ss.201/149
of IPC without having any analysis of evidence on record
as to how these appellants had cremated the dead body
in prosecution of their common object which is the
essence of charge U/S.149 of IPC. Even on merits, if we
revert back to the evidence of PW2/PW1, it appears that
he had not seen these appellants cremating the dead
body in view of his own evidence that after the death,
they went away, which is further consolidated by his own
admission in cross-examination in following words "I did
not see how the dead body of my deceased brother was
burnt". Additionally, it is also not found from his evidence
as to who others cremated the dead body and even his
uncontroverted evidence is considered, only one thing
emanates that "they took away" the dead body which
means omnibus allegation and it is also not in dispute
that there were 500 persons present in the meeting. It is
not the case that PW2/PW1 had stated in the evidence
that the appellants cremated the dead body of the
deceased by attributing any overt act to them. On coming
back to the evidence of other eye witness PW4/PW2,
more or less it appears the same because PW4/PW2 had
made an omnibus statement in his evidence that they
took the dead body of his father towards one ditch
situated near a date palm tree and burnt the dead body
of his father.
13. Similarly, on coming to the evidence of the
other eye witness PW5/PW3, it transpires that all the
accused persons carried the dead body towards down the
field of Dadumaha and burnt the dead body of Tupi
Pattamajhi and, therefore, her evidence also appears to
be omnibus in nature with regard to cremating the dead
body. In the aforesaid situation, when there appears
scanty evidence against the appellants for offences
U/Ss.201/149 of IPC, it cannot be said that the guilt of
the appellants was established beyond reasonable doubt
for the offences U/Ss.201/149 of IPC inasmuch as there
is absolutely no evidence to indicate that the appellants
were members of any unlawful assembly nor had they
any common object to cremate the dead body of the
deceased by use/show of criminal force to any person.
14. On a careful conspectus of evidence on record,
especially when the learned trial Court having already
acquitted the appellants of the charge for offences
U/Ss.147/148 of IPC which contains the foundational
ingredients of non-substantive offence U/S.149 of IPC
and there being very scanty omnibus evidence as
deposed to by the eye witnesses not taking specific name
of any of the appellants or attributing any specific role to
them in cremating the dead body of the deceased, the
impugned judgment of conviction of the appellants except
the appellant Mathu Majhi for the offence U/S.201 of IPC
either individually or with aid of Sec. 149 of IPC is made
out in the eye of law and, thereby, the conviction of the
above appellants except appellant Mathu Majhi being
unsustainable is required to be set aside.
15. In the result, both the appeals are allowed in
part. Accordingly, the conviction and sentence of all the
appellants except appellant Mathu Majhi being
unsustainable in the eye of law are hereby set aside, but
the judgment of conviction and order of sentence passed
on 16.02.2016 by the learned Sessions Judge, Phulbani in
ST No.60 of 2012 and ST No.187 of 2013 are
confirmed in respect of appellant Mathu Majhi for offences
U/Ss.302/201 of IPC.
16. All the appellants except the appellant Mathu
Majhi being acquitted of the charge are discharged of
their bail bonds upon appeal.
(G. Satapathy)
Judge
I Agree
(D.Dash)
Judge
Signature NotOrissa
Verified
High Court, Cuttack,
Digitally Signed
Signed by: SUBHASMITA DAS
Dated the 4th day of December, 2023/Subhasmita
Designation: Jr. Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 05-Dec-2023 17:57:51
