Orissa High Court
Maghu Hansda vs State Of Orissa on 24 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 78 of 2005
Maghu Hansda .... Appellant
-versus-
State of Orissa .... Respondent
Advocates appeared in the case:
For Appellant : Mr. D.P. Dhal, Senior Advocate
For Respondent : Mr. J. Katikia, Addl. Government
Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE G. SATAPATHY
JUDGMENT
24.07.2023
G. Satapathy, J.
1. This appeal is directed against the judgment passed on
21.01.2005 by learned Additional Sessions Judge, Rairangpur in
C.T. Case No. 52/03(S.T. Case No.285 of 2003) convicting the
Appellant for offence punishable Under Section 302 of IPC and
sentencing him to undergo Rigorous Imprisonment for life with
payment of fine of Rs. 2,000/-(Two Thousand)only in default
whereof to undergo Rigorous Imprisonment for a further period of
one month, while acquitting the Appellant for offence punishable
Under Sections 201/34 of IPC and the accused Gandhi Tudu for
offence Under Sections 302/201/34 of IPC.
CRLA No. 78 of 2005
2. It is relevant to note here that this Court by an order passed on
19.11.2012 in Misc. Case No. 1638 of 2012 had directed for
release of the Appellant on bail.
3. The prosecution case in brief was on 03.06.2003 at about 5pm
while Kalia Soren(hereinafter referred to as the "deceased") and
PW1 Pratap Hembram were returning to their village by riding
bicycle after selling rice at Gorumahisami weekly market, on the
way near Railway level crossing fatak (Gate) at village Kalimati,
the Appellant and another came out by the side of a Khajuri(Date
Palm Tree) and the other person caught hold of the bicycle of the
deceased, who was moving little bit ahead of PW1 and the
Appellant Maghu Hansda, to whom PW1 could identify, brought
out a Bhujali from his towel and dealt blows on the chest of the
deceased, as a result, the deceased fell down on the ground and
out of fear, PW1 returned back to village Kalimati by riding his
bicycle as he could not find any male persons and remained in the
village Kalimati in the night. Due to assault of the Appellant and
the other person by means of Bhujali, the deceased died at the
spot.
4. On the following day i.e. 04.06.2003 at about 8.30am, PW1
lodged an FIR before OIC, Gorumahisami P.S. by stating therein
that he can identify the other persons involved in the crime.
Accordingly, the OIC, Gorumahisami registered PS Case No.21
dated 04.06.2003 and investigated into the matter. In the course of
investigation, the I.O. conducted inquest over the dead body as
well as got the autopsy done over the dead body of the deceased
by PW7. The Appellant and one Gandhi Tudu had surrendered
before the Court on different dates and after being taken on
CRLA No. 78 of 2005
remand from the Court, the Appellant on 29.08.2003 gave
recovery of the Bhujali MOI from the place of concealment i.e a
bush near Kalimathi hill, pursuant to his disclosure statement
(Ext.10) and PW10 seized the MOI under Ext.6. In the course of
investigation, the identity of the other person was unearthed as
Gandhi Tudu. Besides, PW10 had also seized sample earth, blood
stained earth, one black goggle, one half chain cover of Hero
Cycle and a pair of leather chappal(footwear) from the spot under
Ext.8 and sent the same along with sample blood of Appellant &
MOI to SFSL, Bhubaneswar for chemical examination under the
forwarding report vide Ext.11 and the Chemical Examination vide
Ext.12 received by the Court. On completion of investigation, a
charge-sheet was filed against the Appellant and co-accused
Gandhi Tudu for offences punishable Under Sections 302/201/34
of IPC resulting in trial in the present case.
5. In support of its case, the prosecution had examined 10
witnesses in all and relied upon documents under Exts. 1 to 12
and material object MOI as against the oral evidence of sole
witness DW1 Radhanath Bindhani. The plea of the Appellant was
one of complete denial and false implication by PW1 on account
of prior enmity.
6. After appreciating the evidence upon hearing of the parties, the
learned trial Court convicted the Appellant and sentenced to the
punishment indicated supra by the impugned judgment.
7. A careful glance of the impugned judgment, it appears that the
learned trial Court had convicted the Appellant by mainly relying
upon the evidence of eye witness PW1 and recovery of weapon of
CRLA No. 78 of 2005
offence-MOI containing human blood stain of B+ve group at the
instance of the Appellant and the motive behind commission of
crime as deposed to by PW2 and PW4.
8. Although, neither the defence nor the Appellant had challenged
the homicidal death of the deceased as arrived at by the learned
trial Court, but it was seriously contended that the Appellant was
not the author of the crime. A scrutiny of the evidence of PW1
would reveal that he was an eye witness to the occurrence and
from his evidence it transpired that on the relevant date and time
of occurrence, the Appellant and accused Gandhi Tudu, who was
acquitted by the learned trial Court, came out of a Khajuri
bush(Date Palm) and caught hold of the Bicycle of the deceased
and the Appellant brought out MOI from his Gamucha(Napkin)
and assaulted the deceased by means of MOI on his chest as a
result, the deceased fell down on the ground and seeing it, he
returned back to village Kalimati out of fear and stayed in the
house of one Budhu. It was his further evidence that on the next
day morning at 8am, he came to Gorumahisami PS and lodged an
FIR vide Ext.1.
9. From the evidence of IO-cum-PW10, it transpired that on
27.08.2003, he took the Appellant on remand from the Court for 2
days and on 29.08.2003 at about 6.30am, the Appellant while in
police custody made disclosure statement vide Ext.10 and gave
recovery of MOI from a bush near Kalimati hill which was seized
under Ext.6.
CRLA No. 78 of 2005
10. PW7 was the Doctor, who conducted Post Mortem over the
dead body of the deceased and his evidence revealed the
following injuries found on the dead body of the deceased.
(i) Incised wound 2x2 abdominal depth
penetrating over left lower back.
(ii) Incised wound penetrating 3x2cm lungs
depth above the right nipple.
(iii) Incised wound penetrating 3x2cm lungs
depth 1cm above injury No.2
(iv) Incised wound penetrating 2x2x5cm over
right chest 1cm from midline.
(v) Incised wound 3x2x1cm over front of the
left seen of tibia.
(vi) Incised wound 1x1/2x1/2cm over each of the
right thumb and middle fingers.
(vii) Incised wound 3x1x1/2 cm over front of the
left neck.
(viii) Incised wound 1x1/2 x1/2cm over each of
the left thumb, index and middle finger.
(ix) Incised wound 3x1/2x1/2 cm over left lateral
side of knee.
10.1. On dissection PW7 found, the right lung had collapsed,
penetrating injuries were seen over the right lung below the injury
no.ii and iii. Right hyler vessels were cut thorough and through.
Superior venacava injured, stomach contained semi digest food
hard chambers were empty. All organs were pale.
11. According to the evidence of PW7, the cause of death of the
deceased was due to hemorrhage and shock and these injuries can
cause death in ordinary course of nature. It is his further evidence
CRLA No. 78 of 2005
that he had furnished his opinion as to the query of possibility of
injuries by MOI affirmatively vide Ext.5. It was elicited in cross-
examination of PW7, "these injuries can be caused by one weapon
like MOI or it may also be caused by several weapons."
12. On a close scrutiny of above evidence, the prosecution was
considered to have established the homicidal death of the
deceased which was never challenged or disputed by the
appellant, but Mr. D.P. Dhal, learned Senior Counsel appearing
for the Appellant has argued and criticized the impugned
judgment mainly on four grounds firstly, the evidence of PW1
was not believable, secondly, the absence of names of
Assailants/Appellant in the inquest report itself suggestive of FIR
to be ante-timed and after thought and came to be prepared after
due deliberation and consultation, thirdly, non-examination of
witnesses to disclosure statement and lastly, absence of evidence
of safe custody of MOI after its seizure till it reached SFSL,
which had rendered the chemical examination report unreliable
and the opinion made therein by the chemical examiner indicating
presence of human blood of Group-B+ve on MOI cannot be said
to be blood Group of the deceased.
13. Mr. J.Katikia, learned AGA, has countered the submissions of
the Appellant by submitting inter-alia that the evidence of eye
witness was corroborated by the FIR which was further
strengthened by the evidence of PW7 and the chemical
examination report indicating presence of human blood of Group-
B+ve on MOI which the defence had failed to offer any
explanation. It is further submitted by learned AGA that when the
evidence of eye witness is clear, cogent and convincing, such
CRLA No. 78 of 2005
evidence cannot be discarded or thrown away merely because the
I.O. had omitted to mention the names of Assailants in Ext.2
which was basically prepared to know the apparent cause of death
and, therefore, the impugned judgment does not suffer from any
infirmity.
14. Evaluating the evidence of eye witness PW1, it appears that
the defence although had tried to demolish his evidence, but it
only found to have explained by eliciting in the cross-examination
that he saw two to three blows given by Appellant Maghu Hansda
on his chest and neck region of the deceased by means of Bhujali
(MOI). The testimony of PW1 was, however, assailed on two
grounds, firstly, when his evidence was disbelieved by the learned
trial Court in respect of co-accused Gandhi Tudu, who was
identified by him in the Court during trial, how his evidence
would be believed for convicting the Appellant and secondly,
since he(PW1) was a signatory to Ext.2, how come the names of
the Assailants did not find place in Ext.2 which was prepared
subsequent to Ext.1 lodged by PW1 himself and thereby, it had
rendered Ext.1(FIR) to be a product of embellishment. PW1 had
of course not only identified the acquitted co-accused Gandhi
Tudu in the Court, but also had described the role played by
accused Gandhi Tudu, but the learned trial Court had acquitted the
accused Gandhi Tudu for being neither named in the FIR nor put
to TI parade to identify him and such finding of the trial Court
having not challenged by the State, this Court does not wish to
comment on the same. At any rate, the principle Falsus in Uno,
Falsus in Omnibus does not apply to the criminal trial in our
CRLA No. 78 of 2005
country and the witnesses cannot be branded as liars, merely
because he lied on one thing nor this maxim occupies the status of
rule of law.
15. A good number of decisions are relied upon for the Appellant
to contend "omission to mention the names of the Assailants in
inquest report renders the FIR to be ante-timed", but the defence
having got the opportunity to cross-examine PW1 and PW10 had
failed to make any cross-examination in this regard, no matter it
was elicited from PW10 that in column 7, 9 & 10 of Ext.2 he had
not mentioned the names of accused persons, but the same
columns being meant for circumstances, if any, which give rise to
suspicion of foul play, opinion of witnesses and police officer as
to cause of death are hardly considered to doubt the veracity of
prosecution case for omission to indicate the names of assailants
in the aforesaid columns. Besides, neither PW10 nor PW1 was
ever suggested that Ext.1 was lodged with deliberation and
consultation much after the preparation of Ext.2. On careful and
anxious consideration of the decision relied upon for the
Appellant in Meharaj Singh v. State of U.P., (1994) 5 SCC 188
on this point, the same appears to be not applicable to the present
case since the prosecution neither produced eye witnesses nor
offered any explanation for non-examination of such eye
witnesses in the relied on case, but there is eye witness account in
the present case.
16. Similarly, in other decision in Thanedar Singh v. State of
Madhya Pradesh, (2002) 1 SCC 487, the crime number/FIR
number was not found in the inquest report, whereas in the
present case it was stated in the top of Ext.2. Moreover, in another
CRLA No. 78 of 2005
relied on decision in the case of Mobarak Sk. @ Mobarak
Hossain & Others v. the State of West Bengal, (2011) CRI L.J.
1677, there was delay in sending the FIR to the Court for nearly
11 days after the occurrence and no eye witness was found stating
to police to have seen the incident on the date of occurrence and
on such ground, the Calcutta High Court took the adverse view
against the prosecution.
17. On the other hand, in Brahm Swaroop and another v. State of
Uttar Pradesh, (2011) 6 SCC 288, wherein after noticing the
names of the accused persons to have not been filled up in the
inquest report, the Apex Court held that omission in the inquest
report are not sufficient to put the prosecution out of the Court.
18. A bare perusal of the inquest report Ext.2 in this case, all the
columns found therein had been duly filled up by giving reference
of Gorumahisami PS Case No. 21 dated 04.06.2003 and other
necessary facts, such as opinion of witnesses and police officer as
to cause of death "accused persons inflicted severe wounds on the
chest and other parts of the body of Kalia Soren and committed
his murder."
19. What is the true purport and object of inquest report has been
reiterated by Apex Court more than once in a plethora of
decisions. The fundamental purpose of holding inquest report is to
know the apparent cause of death, such as whether it was suicidal,
homicidal or accidental and it is never meant to ascertain the
perpetrator(s)/assailant(s) of the crime or as to who was
responsible for the death of the deceased. According to law,
inquest report cannot be read as substantive piece of evidence nor
CRLA No. 78 of 2005
can it be used to discard the evidence which is otherwise clear,
unambiguous and credible as well as establishes the prosecution
case, but when there appears manipulation in it or it is otherwise a
product of embellishment, the defence can certainly take
advantage of it. Above all, when there is no column in it for
recording the names of the accused persons in the State of Orissa,
the veracity of prosecution case cannot be doubted for omission to
indicate the names of the assailants in the inquest report.
20. Merely because the IO had committed a mistake to omit to
mention the names of the assailants in the inquest report or he was
not diligent in this regard, it does not necessarily mean by
implication or otherwise that the reliable or clinching evidence
adduced by the witnesses should be discarded by the Court on the
selfsame ground. Hence, in the backdrop of preceding discussion,
the argument advanced by the Appellant that omission to mention
the names of Assailant in the inquest report to put the FIR as ante-
timed and product of embellishment merits no consideration.
21. The recovery of MOI at the instance of Appellant/Convict was
seriously disputed in the appeal for want of examination of
independent witnesses Jadumani Sethy and Bidyapada Pahadi, but
such assertion appears to be insignificant because the manner of
recovery of MOI and its seizure vide Ext.6 were spoken to in
evidence by PW10 the I.O. who had been thoroughly cross-
examined, but nothing substantial was elicited from his mouth to
disbelieve the recovery and seizure of MOI which on chemical
examination was found containing human blood B+ve Group in
Ext.12.
CRLA No. 78 of 2005
22. The late recovery and delayed chemical examination of MOI
as well as its safe custody before its dispatch to SFSL were also
seriously challenged in this appeal, but although it appears from
the evidence of PW10 that MOI was recovered on 29.08.2003 at
the instance of convict in police custody, but it was sent to SFSL,
Rasulgarh on 22.09.2003, however, Ext.12 disclosed human blood
stain of B+ve Group on MOI on chemical examination which was
believed by the learned trial Court and this Court does not see any
reason to disbelieve it inasmuch as no explanation was offered by
the Appellant-Convict as to how human blood of B+ve group was
found on MOI which was recovered at his instance. The decision
in Nimai Murmu v. The State; 59 (1985) C.L.T. 488 was relied
on for the Appellant to disbelieve the chemical examination
report, but what would be the consequence of defective or
incomplete investigation, when there is clear and credible
testimony of eye witness as was found in the form of PW1 in this
case, in State of Madhya Pradesh v. Chhaakki Lal; (2019) 12
SCC 326, the Apex Court in a somewhat similar situation has held
in paragraphs 34 and 35 as under:-
"34. For reversing the verdict of conviction, the High
Court has pointed out that there was delay in sending
the seized gun and pistol (recovered on 01.03.2006)
which was sent to the FSL only on 19.04.2006. The
High Court has doubted the case of prosecution by
observing that apart from delay in sending the seized
guns/pistol, there is no material showing as to where
the seized weapons were kept during the period from
01.03.2006 to 19.04.2006. Such delay in sending the
recovered weapons to FSL could only be an omission
or lapse on the part of the Investigating Officer. Such
omissions or lapses in the investigation cannot be a
CRLA No. 78 of 2005
ground to discard the prosecution case which is
otherwise credible and cogent. In Nankaunoo v.
State of Uttar Pradesh; (2016) 3 SCC 317, it was
held as under : (SCC P. 322, Para-9)
"9. ......any omission on the part of the
investigating officer cannot go against the
prosecution case. Story of the prosecution is to
be examined dehors such omission by the
investigating agency. Otherwise, it would
shake the confidence of the people not merely
in the law enforcing agency but also in the
administration of justice".
"35. In V.K. Mishra v. State of Uttarakhand
and; (2015) 9 SCC 588, it was held as under : (SCC
P.607, Para-38)
"38. The investigating officer is not obliged to
anticipate all possible defences and investigate
in that angle. In any event, any omission on
the part of the investigating officer cannot go
against the prosecution. Interest of justice
demands that such acts or omission of the
investigating officer should not be taken in
favour of the accused or otherwise it would
amount to placing a premium upon such
omissions".
23. After having carefully scrutinized the evidence available on
record with the assistance of learned counsels for the parties, this
Court on discussion made in the foregoing paragraph is unable to
buy the arguments advanced for the Appellant that prosecution
was unable to establish the guilt of the accused for commission of
murder of the deceased Kalia Soren beyond all reasonable doubt,
especially when the evidence of eye witness was found not only
credible but also cogent and his evidence could not be demolished
in cross-examination and such evidence when received ample
CRLA No. 78 of 2005
corroboration by medical evidence together with recovery of MOI
containing human blood of B+ve group, for which the appellant
could not offer any explanation, at the instance of appellant lends
assurance to the prosecution case which was further strengthened
by proof of motive of crime as deposed to by PW2, PW4 and
PW6.
24. Consequently, no ground is made out for interference of the
impugned judgment in this appeal.
25. In the result, the appeal being found unmerited stands
dismissed on contest, but there is no order as to costs. As a
necessary corollary, the impugned judgment and order of sentence
passed on 21.01.2005 by learned Additional Sessions Judge,
Rairangpur in C.T. Case No. 52/03(S.T. Case No.285 of 2003) are
hereby affirmed.
26. Since Appellant Maghu Hansda is on bail, his bail bonds
stands cancelled and he is directed to surrender to custody
forthwith and in any event, not later than 20th August 2023 failing
which the IIC of the concerned PS will take steps forthwith to
take him into custody to serve out the remainder of his sentences,
A copy of this judgment be delivered forthwith to the IIC of the
concerned PS for necessary action.
(G. Satapathy)
Judge
(Dr. S. Muralidhar)
Signature Not Verified
Digitally Signed
Chief Justice
Signed by: PRIYAJIT SAHOO
Designation: Jr. Stenographer
Priyajit
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 24-Jul-2023 19:10:49
CRLA No. 78 of 2005
