Orissa High Court
Tunu @ Chereng Munda vs State Of Orissa on 17 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
Jail Criminal Appeal No.13 of 2009
From the judgment of conviction and order of sentence dated 29.08.2008 passed by the
learned Adhoc Additional Sessions Judge, (Fast Track) Champua in Sessions Trial No.9/42
of 2007.
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Tunu @ Chereng Munda ...... Appellant
-Versus-
State of Orissa ...... Respondent
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For Appellant : Mr. R.D. Nayak, Advocate
(Amicus Curiae)
For Respondent : Mr. J. Katikia,
Additional Government Advocate
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CORAM :
HONOURABLE MR. JUSTICE S. TALAPATRA
HONOURABLE MISS. JUSTICE SAVITRI RATHO
JUDGMENT
17th May, 2023
S. Talapatra, J. This is a prisoner's appeal, filed by the convict from the
jail. The judgment and order of conviction and sentence dated
29.08.2008 delivered in S.T. Case No.9/42 of 2007 by the Adhoc
Additional Sessions Judge, (Fast Track), Champua are under challenge
in this appeal. The Appellant has been convicted under Section 302 of
the IPC for committing murder of one Jayadev Mahanta on 28.09.2006
at about 3 a.m.
2. Briefly stated, the case of the prosecution, as projected
during the trial, is that in order to take revenge on Jayadev Mahanta
(hereinafter referred to as the deceased), Chereng Munda @ Tunu along
with other accused persons, namely, Naba Mohakud, Krushna Sardar
and Govinda @ Buturu Munda armed with the weapons, went to the
house of the deceased at Sirapur at the time of occurrence. They knocked
on the door of the bedroom of the deceased. The deceased along with his
wife Rebati Mahanta was sleeping. Having registered the knock when
they opened the door, the Appellant and his associates caught hold of
Jayadev and assaulted him by a sharp cutting weapon. The deceased
received serious bleeding injuries. The deceased fell down near his door
and died instantaneously. The Appellant and his associates had left the
place in the immediate aftermath of the occurrence. But, it has been
stated that they had taken away a wooden box containing money, gold
ornaments, clothes and articles made of bell-metal. After taking out the
valuable materials from the said wooden box, they had thrown it at a
place, at a small distance from the house of the deceased.
3. Immediately after the occurrence, the information was
lodged at Champu P.S. by Rebati Mahanta, wife of the deceased. Based
on the said F.I.R. (Ext.3), the Officer-in-charge (P.W.9) registered the
Champua P.S. Case No.134/2006 under section 302/394 of the IPC and
took up the investigation. At the beginning of the investigation, he
examined the informant, sent the requisition to the S.P. Keonjhar for
sending a Scientific Team and Dog Squad in order to gather physical
clues from the spot. After the spot verification, the District Scientific
Officer, Keonjhar and the dog-handler, prepared their respective reports
(Exts.12 and 18). Those reports were handed over to P.W.9 (the
Investigating Officer). P.W.9 conducted the inquest over the dead body
of the deceased and prepared the inquest report (Ext.4). He had seized
the sample earth and blood stained earth from the spot by preparing the
seizure list (Ext.5). Thereafter, he sent the dead body for postmortem
examination by the challan (Ext.9) to the S.D. Hospital, Champua. One
constable, namely, Trilochan Mahanta guarded the dead body till it
reached the said hospital. P.W.11, Dr. S.K. Sahoo of the said hospital
carried out the postmortem examination. During the investigation, P.W.9
seized the stolen articles, i.e. one wooden box, four old sarees, three old
Dhotis, one Kansa bellmetal Bela, one Kansa Nota along with one Lathi
thrown by the Appellant and his associates by preparing the seizure list
(Ext.10). He had released those articles except the lathi in zima to the
informant. P.W.2 executed the zimanama (Ext.11). After postmortem
examination, he had seized wearing apparels of the deceased viz, one
lungi (M.O.X) along with the Command Certificate issued to the
constable, Trilochan Mahanta by preparing the seizure list (Ext.13).
P.W.9 had arrested the Appellant and according to P.W.9, he had
confessed his guilt in presence of witnesses. According to P.W.9, the
said confession, revealed that, there was a village meeting 15 to 20 days
prior to the occurrence for stealing away one wooden table by the one of
the associates of the Appellant, namely, Buturu Munda. In the said
meeting, the Appellant had confessed his guilt in stealing away the said
wooden table. The deceased, Jayadev Mahanta, reprimanded him for
which, he had grudge against the deceased. The Appellant formed
association with the other accused persons to take revenge and
accordingly they raided the house of the deceased in the wee hour of the
night and assaulted him by knife. According to P.W.9, the Appellant had
also confessed that he had stabbed on the chest of the deceased. Even,
the Appellant had admitted that they had carried the wooden box
containing money, ornaments and other articles. The said statement was
reduced in to writing in presence of the witnesses. On the said statement,
the thumb impression of the Appellant was taken. On the basis of the
revelation made in the purported confessional statement, the Appellant
led P.W.9 to show the place where the weapon of offence (knife)
M.O.XI was concealed. The said weapon was recovered by the
Appellant in presence of the witnesses. From that place, one
handkerchief (M.O.XII) was also recovered. Thereafter, from the house
of the Appellant one bamboo lathi (M.O.XI) was seized by preparing the
seizure list (Ext.7). P.W.9 arrested all other accused persons. From the
accused persons, blood samples and nail clippings were collected with
the aid of a medical personnel at S.D. Hospital, Champua and those
materials were collected by P.W.12, Dr. Rajkishore Nayak.
4. Having received the post mortem examination report from
P.W.11, Dr. Sudhir Kumar Sahu, P.W.9 dispatched the material objects
that he had seized including the blood samples and nail clippings of the
accused persons to the S.F.S.L., Rasulgarh, Bhubaneswar by a
forwarding report (Ext.15) as per the order of the S.D.J.M., Champua.
On completion of the investigation, the charge-sheet was filed against all
the accused persons under Section 302/394 read with Section 34 of the
IPC. All the charge-sheeted persons were committed for facing the trial.
In due course, the charge under Section 302/34 of the I.P.C. and the
charge under Section 394/34 of the IPC were separately framed against
the Appellant and his associates. The charges were denied by the
Appellant and his associates and they claimed to be tried.
5. In order to substantiate the said charges, the prosecution
adduced 13 witnesses, 18 documentary evidence including the inquest
report (Ext.4) and the postmortem examination report (Ext.19). As noted
earlier, 13 material objects (M.O.I to XIII) were seized by the
Investigating Officer and introduced in the evidence. But, no evidence
was adduced by the defence. After the prosecution evidence was
recorded, the Appellant and his associates were separately examined
under Section 313 (1)(b) of the Cr.P.C. for recording their response on
the incriminating materials which surfaced in the evidence. The
Appellant and his associates reiterated their plea of innocence and stated
that they had been falsely implicated in the case. On evaluation of the
evidence, the Adhoc Additional Sessions Judge, (F.T.C), Champua,
acquitted the associates of the Appellant, but convicted the Appellant for
committing murder of Jayadev Mahanta (the deceased) and sentenced
him to suffer rigorous imprisonment for life and fine of Rs.2000/- and in
default to suffer further rigorous imprisonment for six months for
committing offence punishable under Section 302/34 of the IPC.
6. Mr. R. Das Nayak, learned counsel has appeared for the
Appellant and contended that the entire prosecution case is based on the
evidence of Rebati Mahanta (P.W.2). Rebati Mahanta had purportedly
identified the Appellant, but could not identify the other associates of the
Appellant. According to Mr. Das Nayak, learned counsel, the story of
the previous enmity has been planted in order to give credence to the
prosecution story. But that story does not get any support from the
evidence. It has been stated by P.W.2 that the electric light was burning
near the main door where the Appellant and his associates assaulted her
husband. But the police did not bring any evidence as regards the
existence of "electric light" near the main door. In order to question the
identification, Mr. Das Nayak, learned counsel has drawn our attention
to the statement made by P.W.2 that all the accused persons had
wrapped their faces with cover. They were seen by the said electric light.
P.W.2 has claimed in the trial that she could identify the appellant only.
Even during the trial, P.W.2 could not identify the other associates of the
Appellant, the co-accused. P.W.2 has claimed to have identified the
Appellant. The other members of the family, namely, Smt. Laxmipriya
Mahanta (P.W.3), and Sri Krushna Chandra Mahanta (P.W.4) cannot be
relied on by this Court for their apparent interest for securing conviction
of the Appellant. Mr. Das Nayak, learned counsel has further submitted
that P.W.4 who has been referred to have been present when the
Appellant made the confessional statement to the police. P.W.4 is also
the witness to the recovery of the weapon by the Appellant. At this
juncture, Mr. Das Nayak, learned counsel has categorically stated that
the police did not find any independent witnesses during the seizure of
the weapon of offence or at the time of recording the purported
confessional statement.
7. P.W.6 being the nephew of the informant (P.W.2), is
definitely interested in securing the conviction of the Appellant. Mr. Das
Nayak, learned counsel has, with adequate emphasis, referred to the
following part of the statement made by the Investigating Officer
(P.W.9). P.W.9 has stated in the trial as follows:
"2. Basing upon such report of informant Rebati Mahanta (Pw-2),
I registered Champua PS case no.134 dt.28.9.06 U/s 302/394 of
the I.P.C, against unknown culprits and took up "investigation". I
had also drawn up the formal FIR. Ext,3 (already marked) is the
said FIR. Ext.3/1 is my endorsement and signature on Ext.3.
Ext.3/2 is the signature of scribe of FIR. Ext.3/3 is the formal FIR
drawn by me. Ext,3/4 is my signature on Ext,3/3."
[Italics supplied]
8. P.W.9 has not disclosed how he came to know about
involvement of the Appellant and his associates. At this juncture, Mr.
Das Nayak, learned counsel has taken us to the F.I.R. (Ext.3) where in
the column for details of known/suspected/unknown/accused of the
F.I.R., P.W.9 has clearly recorded "four unknown persons". Reading of
the written complaint dated 28.09.2006 as filed by Rebati Mahanta, it
will surface that after parley between the related witnesses and at the
behest of the police, the Appellant had been implicated in the crime. The
police did not ask P.W.2 why she did not disclose the name of the
Appellant in the F.I.R., which had been written by her son in the
immediate aftermath. Even, P.W.9 did not provide any explanation in
this regard. For purpose of reference, the relevant part of the F.I.R. in
Oriya is extracted hereunder, followed by the verbatim translation in
English:
"ମ ଁୁ େରବତୀ ମହା ାମ - ଶିରପୁର ଥାନା- ଚ ଆ
ୁ ଆପଣ ୁ
ଜଣାଉଛୁ େଯ ଆଜି ତା-୨୮/0୯ /୨00୬ ତାରି ଖ େଭାର ୩ ଘଟିକା
ସମୟେର ଆେମ େସାଇଥ -ବା ସମୟେର େକହି ଜେଣ ଆମ କବାଟ
କୁ ବାେଡଇବାର ଶୁଣଲ
ି ୁ | ମ ଁୁ େମା 1ାମୀ ମୃତ ଜୟେଦବ ମହା କୁ
ବାହାେର ଗାଈ ପଘାରୁ ଫିଟି ଧାନ ଖାଉଛି କି େବାଲି େଦଖ -ବାକୁ
କହିଲି | ଆେମ ଦୁ େହ ଁ ଉଠି କବାଟ େଖାଲୁ େଖାଲୁ ଚାରି ଜଣ େଲାକ
ହାପପ9ା: ପି ;ି ମୁ< େର ଗାମୁଛା ବା;ିଥ -ବାର ଏବଂ ହାତେର
ଭୁଜାଲି , ଖ<ା ଭଳି ଅB ସାହାଯ9 େର ହଟାତ େମା 1ାମୀ କୁ
ଁ ି ପି ଟୁଛ କହି ଛଡ଼ାଇବାକୁ େଚEା
ଆCମଣ କେଲ | ମ ଁୁ ତାଂକୁ କାହିକ
କଲି | େସମାେନ େମା ହାତ ଧରି ପେକଇେଲ | ମ ଁୁ ତାପେର ପାଟି
କରି ଘର େଲାକ ୁ ଉଠାଇବାକୁ େଚEା କଲି , ସବୁ ଘେର
କବାଟେର ଶିକୁଳି ମାରି େଦଇଥ -ବାର େଦଖ -ଲି , ତା ପେର ପାଖ
ଘେର େଶାଇଥ -ବା ମେହF କୁ ଉଠାଇଲି ଓ ତା ୁ ବାହାର ପେଟ
ଶିକୁଳି ଦିଆେହଇ ଥ -ବା ଘରଟିକୁ େଖାଲି େଦଇ ପେଡାଶୀ ଘରର
ଚCଧର ମହା ୁ ଡାକିଲି | େଫରି ଆସି େଦଖ -ଲା େବଳକୁ
େସମାେନ ତା ୁ ମାରି ପି<ା େର ଗଡ଼ାଇ େଦଇ ଘେର ଥ -ବା କାଠ
ବାH ଟିକୁ େନଇଯାଇଥ -େଲ | େଯଉଥଁ -େର ୨000/୩000 ଟ ା ଓ
ଝିଅ ର ହେଳ କାନଫୁ ଲ, େଧାତି ଓ ଶାଢ଼ୀ ଥ -ଲା"
"I, Rebati Mahanta, Vill-Sirapur, P.S. Champua beg to
inform that today on 28.09.2006, at about 3.00 a.m.
early morning, we heard someone knocking our door. At
that time, we were sleeping. I asked my late husband
Jaydev Mahanta to see if the cows had been loosened
from tether and eating paddy. Four people wearing half
pants with towel tied around their head were holding
weapons like sword/bhujali and attacked my husband.
As we both rose and opened the door, I tried to release
him by asking them why they were beating him. They
caught hold my hand. Then, I tried to wake up my
family members by shouting. I saw every door had been
bolted. Then, I made Mahandra who was sleeping in the
neighbourhood wake up and asked him to lift the latch
which had been put from the outside of the house. I
called Chakradhara Mohanta from the neighbourhood.
After returning, I saw that they had killed him and laid
on the verandah and had taken away the wooden box
from the house. It had Rs.2000/3000 and a pair of ear-
ring of my daughter, dhoti and saree".
9. It is therefore apparent that till the written complaint was
filed, P.W.2 (the only eye witness of the transaction of crime) did not
know the identity of any assailant. All the other witnesses, from the
family, P.Ws.3 and 4, made their statement in tune with the new story
introduced in the trial by P.W.2. Those witnesses viz P.W.3, P.W.4 and
P.W.6 cannot be trusted at all, as they were not witness to transaction of
the crime. They have tried to lay some inputs to support the prosecution
case in a well-orchestrated manner. In this background, it has been
contended that the prosecution story is visited by serious doubt and the
Appellant is entitled to its benefit.
10. In order to repel the submission of the counsel for the
Appellant, Mr. J. Katikia, learned Additional Government Advocate
appearing for the State has submitted that there is no reason to disbelieve
the evidence of P.W.2, in as much as, she has clearly stated in the trial
that she could clearly identify the Appellant by the electric light. But,
she could not identify the other three accused persons, who had been
tried along with the Appellant and were acquitted by the impugned
judgment. Mr. Katikia, learned Additional Government Advocate has
contended that the testimony of P.W.3 needs serious attention, in as
much as, she had categorically stated that she saw that accused Krushna
Sardar carrying the wooden box on his head and the accused, Chereng
Munda was following him by holding a Bhujali in his hand. P.W.3 is the
daughter-in-law of the deceased. She had also given a description of the
electric light by stating that three bulbs were burning at the outside of the
house and out of those, two were in the verendah and one was outside
the house. She has reiterated that she could identify Chereng Munda
during the course of his departure from their house after the occurrence.
But in the cross-examination, she had changed the statement by stating
that she could not exactly identify the person who was carrying the
wooden box on his head. Later on, she came to know that the said
person was Krushna Sardar. But, she did not disclose the source of
knowledge about identity of Krushna Sardar. In the course of cross-
examination, P.W.3 has stated that she would be able to identify the
Appellant from his walking style. Thus, according to P.W.3, Chereng
Munda had a distinct walking style. Mr. Katikia, learned Additional
Government Advocate has, having referred to that part of the evidence,
submitted that identification of a known person can be made even from
his walking style. Mr. Katikia, learned Additional Government Advocate
has further submitted that the presence of Chakradhar Mahanta (P.W.6)
is quite natural and his testimony proves his presence. He had put his
signature on the memorandum where the confessional statement was
recorded. Mr. Katikia, learned Additional Government Advocate has
submitted that the investigation was carried out in a fair manner and the
evidence as collected are not tainted in any manner. Hence, there cannot
be any reason to interfere with the impugned judgment of conviction.
11. For purpose of appreciating the rival contentions, it would
be apposite to take a brief survey of the evidence, part of which has been
referred at the time of recording the submission of learned counsel for
the Parties.
12. P.W.1, Prasanna Kumar Nayak is the seizure witness of
wearing apparels of four accused persons. The seizure was carried out
after their arrest. Another constable, namely, Ramesh Ch. Mahanta was
present at the time of the seizure of apparels. He was also the witness to
the seizure of the nail clippings and blood sample of the accused
persons. It may be noted that those materials were seized by preparing
the seizure list (Ext.2), which was attested by P.Ws.1 and 2. P.W.3, has
been projected by the prosecution as the solitary eye-witness. She has
testified that in the said night when the occurrence took place, she was
sleeping with her husband, and on hearing the knocking sounds, they
opened the door and they found that "four persons were standing at the
door by holding weapons in their hands". Thereafter, she has testified as
follows:
"...out of them I could able to identify Chereng @
Tunu Munda."
From her testimony, it appears that all of them caught hold
of her husband and assaulted him. Her husband sustained severe
bleeding injuries and became senseless.
13. P.W.2 immediately called the other family members i.e.
daughter-in-law, nephew, Chakradhar Mahanta and also her son.
Thereafter, she became senseless. After regaining the sense, she came to
know, her husband Jayadev has expired succumbing to his injuries. She
has stated clearly that Chereng Munda (the Appellant) assaulted her
husband by "Bhujali". On the next day, she lodged the F.I.R. scribed by
her son. The accused persons had taken away their wooden box
containing cash, gold earring, two articles made of bell-metals and 5-6
clothes. In the cross-examination, she has admitted that except Chereng
Munda she could not identify the other persons. The police had
apprehended Chereng Munda on the very day when the FIR was lodged
and take him to different places. She has also stated that there was an
electric light burning near their main door. At the same time, she has
made a very significant statement, which reads as under:
"The electric light was burning near our main door where the
alleged assault on my husband took place. During the time of my
return from the house of my nephew Chakra the culprits were
already left from our house. First Chakra Mahanta was arrived at
our house thereafter others were came (sic). My daughter-in-laws
also came after arrival of Chakra. The doors of the rooms in
which my daughter-in-laws were sleeping, were hooked from
outside. All the culprits had wrapped their faces with napkins and
while during assault the wrap of accused Chereng Munda sliped
from his face, I could able to identify him through electric light."
14. Further, she has testified in the trial that the F.I.R. (Ext.3)
was prepared as per her dictation in her house in presence of her
daughter-in-law, Laxmipriya Mahanta and others. She has, however,
denied the suggestion that she never disclosed the name of the Appellant
to the police. She has clearly admitted that Goutam Mahanta and
Chakradhar Mahanta (P.W.6) are her nephews. P.W.3. Laxmipiriya
Mahanta, one of the daughters-in-law of P.W.2 has testified that after
hearing the alarm, she came out of her room and saw Krushna Sardar
holding the wooden box on his head and Chereng Munda had been
following him with a Bhujali in his hand. She saw her father-in-law
lying with bleeding injuries in front of their door. She has further stated
that when she had come out of their room, she did not find her mother-
in-law (P.W.2) nearby her injured father-in-law. Thereafter, she had
gone outside for calling others. She has also described that an electric
light was burning at the entrance. Her means of identification has been
noted earlier. She had claimed to have identified from the walking
pattern of the Appellant. But in the trial, she had changed her statement
during the cross-examination by stating that, she could not exactly
identify Krushna Sardar. But, she had heard subsequently that the person
who had been carrying the wooden box was Krushna Sardar. She did not
reveal the name of that person. She has confirmed that two perpetrators,
whom she saw during the transaction of crime, had wrapped their heads
with pieces of cloth. Hence, identification by face by P.W.3 cannot be
relied on. P.W.4, Krushna Chandra Mahanta is another nephew of
P.W.2. He is clearly a post occurrence witness. He has stated that, he
saw Jayadev Mahanta lying in front of the main door, but by that time,
Jayadev succumbed to his injuries. He has stated that, P.W.2 had
disclosed the name of the Appellant at that time. He was witness to the
inquest procedure. He has admitted his signature on the inquest report.
Significantly, he has stated that he was present at the time of scribing the
F.I.R. The said F.I.R. was scribed by his son. He has admitted that prior
to the occurrence, the Appellant had stolen away one wooden bar from
the house of the deceased. There had been a Panchayat meeting for
settlement of the said dispute. P.W.5, Sirapani Mhanta is also the witness
to the inquest. In the cross-examination he has made the following
statements:
"All the accused persons were present near the dead body
of Jayadev Mahanta at the time of inquest. On the next day of
inquest, I had seen all the accused persons except accused
Chereng Munda."
P.W.6, Chakradhara Mahanta has stated that Rebati
Mahanta, (P.W.2) had called him and disclosed that four youths were
assaulting her husband, Jayadev at their house. When he reached at the
house of Jayadev Mahanta, he had found that Jayadev was lying on the
verandah with bleeding injuries on his chest and shoulder and he had no
sense. When the Appellant (Chereng Munda) made the disclosure
statement, P.W.6 was present there. He has also testified that a village
meeting was convened on the issue of theft of wooden table (not bar).
According to him, in order to take revenge, the Appellant, being
accompanied by the other three accused persons, assaulted the deceased
in the night of 28.09.2006. But, he did not claim anywhere that he had
heard the entire story from P.W.2. He has testified further that Chereng
had led the police along with P.W.6 to his house at village Sirapur and
showed to the police the lathi (made of bamboo) and knife. The police
had seized a blood stained handkerchief. Ext.6 is the purported
confessional statement of the Appellant and Ext.7 is the seizure memo
for seizing the weapon viz, bamboo lathi, knife and the blood stained
handkerchief in presence of the nephew of P.W.2, namely, Chakradhar
Mahanta (P.W.6) and Goutam Mahanta. During cross-examination,
P.W.6 has clearly stated that when he had reached the house of the
deceased, the assailants had left. It has been stated by P.W.6 that on the
basis of the statement made by the Appellant, three other accused
persons were brought to the place of occurrence. One of the co-accused,
namely, Krushna Sardar, according to P.W.6, assisted them for
cremation of the dead body of the deceased. The Appellant had led to the
house of the co-accused, namely, Basu Sardar and Putuka Munda of
village-Sirapur. The police had brought out one Bhujali from the house
of Putuka Munda and one knife from the house of Basu Sardar. In the
cross-examination, he has made the following statement, which might
have some ramification on the evidence of the prosecution in as much as
P.W.6 is a post occurrence witness:
"The D.S.P. Saheb' has also asked me to provide the clue
for detection of the culprits and so 'also told me to supply the
names of the suspects. I cannot say who recorded the Ext.6. It is
not a fact that the accused Naba Mahakud, Krushna Sardar and
Buturu Munda are in no way connected with the alleged assaults
and death of Jayadev Mahanta."
He has denied in the cross-examination that, he had
implicated the accused Chereng Munda falsely. He has also denied that
Chereng did not make any confession of his guilt, while he was in the
police custody. P.W.7, Ramesh Chandra Mahanta, a police constable is
the witness to the seizure of apparels of the accused persons in the police
station by a duly-drawn seizure list (Ext.1). He is also the seizure
witness of blood sample and nail clippings vide the seizure list (Ext.2).
He has clearly admitted that all the material objects, marked as M.Os.I to
VIII were seized in the police station on production by the accused
persons. P.W.7 could not segregate and identify who was wearing which
cloth. Later on, he had identified that M.Os.I and II as the wearing
apparels of Chereng Munda. P.W.8, a police constable had escorted the
accused persons to the S.D. Hospital, Champua for collection of their
blood samples and nail clippings. Those were later on seized from him
by a duly drawn seizure list (Ext.2). P.W.9, Sujit Kumar Say was the
Officer-In-Charge at Champua Police Station. On 28.09.2006, he had
received the complaint from P.W.2 and registered the Champua P.S.
Case No.134 on 28.09.2006. He has given a brief detail in the trial how
he had carried out the investigation and given requisition for service of
the forensic expert for getting the initial clue to identify the assailants.
He had also asked for the Sniffer Dog to follow the trail of the assailants.
He has clearly admitted in the cross-examination that no aid was
available from the report of the Forensic Science Laboratory nor from
the Dog Squad to direct the investigation to any definite direction. He
has introduced the seizure lists, material objects and the reports of the
postmortem examination, forensic examination and the inquest. He has
made a very significant statement, which was not taken proper care of by
the trial judge at the time of evaluation of the evidence. The said
statement reads as under:
"During course of my investigation, I came to know about
the involvement of accused persons with the alleged occurrence, so
on 2.10.06, I arrested accused Chereng alias Tunu Munda. After
arrest while accused Chereng Munda under my custody, he
confessed his guilt before me in presence of witnesses by stating
that 15 to 20 days prior to the alleged occurrence he along with
accused Buturu Munda had stolen away one wooden table of
deceased and for which a meeting was convened in the village and
that in the said meeting he had confessed his guilt about stealing
away of the wooden table of deceased being associated with
accused Buturu Munda and in the said meeting deceased Jayadev
had reprimanded him and for which he had grudge on the
deceased and thereafter he informed about the same to his co-
accused Naba Mahakud, Krushna Sardar and Buturu Munda and
thereafter, they all made a plan to cause the death of Jayadev
Mahanta and in the said night, according to their plan they moved
to the house of deceased Jayadev Mahanta from the back side of
his house and that accused Chereng was holding a knife, accused
Naba was holding a gupti and accused Krushna Sardar and
Buturu Munda were holding Lathi and torchlight. He jumped in to
the house of deceased and opened the aldropes (Jhinjiri) of the
door from inside and thereafter other accused persons could able
to enter into the house of deceased and they all bolted the
aldropes of all the doors of deceased family from outside except
the room of deceased and thereafter he (Chereng) along with
accused Naba knocked the door of the deceased and while Jayadev
Mahanta came to the outside by hearing the knocking sound, then
he (accused Chereng) along with Naba Mahakud assaulted the
deceased Jayadev by giving fist and kick blows and thereafter
accused Chereng gave through knife on the chest of Jayadev and
while the wife of Jayadev i.e. Rebati Mahanta raised hullah, then
he along with other accused persons went away from the house of
Jaydev Mahanta by carrying the wooden box containing clothes
and money. Ext.6 (already marked) is the confessional statement of
accused Chereng Mgnda Ext.6/3 is my signature on Ext.6 wherein
accused Chereng had given his L.T.I."
P.W.9 has further stated that accused brought out one
blood-stained handkerchief and bamboo-lathi from his house in the
course of the recovery. The other recoveries have been made from the
house of the co-accused, as noted earlier. All the accused persons were
arrested in the course of the investigation. He has identified the seizure
lists of various materials. On receipt of the postmortem examination
report, he wanted further observation from the postmortem doctor as
regards whether by the M.Os.XI and XIII (knife and bamboo lathi), the
injuries as found on the dead body of Jayadev were possible or not. He
has clearly admitted that no physical clue was given by the Dog Squad
and even no clue was supplied by the Scientific Team. According to
P.W.9, Goutam Mahanta and Chakradhar Mahanta were present when
the confession of the Appellant was recorded. In the cross-examination
P.W.9 has made the following statement:
"13. It is a fact that the P.W.2 (Rebati Munda) had not
stated before me that, out of all the culprits she could [be] able to
identify accused Chereng Munda and that accused Chereng has
assaulted her husband through Bhujali.
14. It is not a fact that my investigation is perfunctory and
that I have submitted charge sheet against accused persons
falsely."
[Emphasis added]
P.W.10, Dr. Dharanidhar Swain is the Scientific Officer,
who appeared on the spot on requisition of P.W.9. His appearance has no
relevance as the forensic report (Ext.12) did not help the investigation in
any manner. P.W.11, Dr. Sudhir Kumar Sahu carried out the postmortem
examination on 28.09.2006 while he was posted as Asst. Surgeon at the
S.D. Hospital, Champua. He has categorically stated that the said
postmortem examination was carried out at the requisition of the police.
The dead body was identified by the police constable. He had found the
following antemortem injuries on the dead body of the deceased:
"i) One lacerated wound of size 2 cm x 1 cm x 2 cm about 8
cm above the right orricle and over the parietal bone;
ii) One hematoma of size 4 cm x 2 cm x 2 cm over the right
parietal lobe;
iii) One stabbed wound of size 1 ½ cm x 1 cm x 1cm about
4 cm below the left nipple;
iv) One incised wound of size 1cm x 1cm x 1cm about 3 cm
above and lateral to left nipple;
v) One incised wound of size 3,5cm x 1/4cm x 1/4cm over
the left shoulder;
vi) Incised wound of size 3cm x l/4cm x 1/4cm over the
right supraclavicular fossa;"
P.W.11 has clearly opined that the cause of death was due
to severe haemorrhage for injuries, caused by sharp cutting and hard
blunt weapons. He has admitted the postmortem examination report
(Ext.19) in the evidence. P.W.12, Dr. Rajakishore Nayak had collected
the sample blood and nail clippings of the accused persons. He handed
those over to one constable, namely, Umakanta Pasayat from the
Champua Police Station. He has identified his report (Ext.14) for
admission in the evidence. P.W.13, Pratap Chandra Nayak is the Dog
handler. He had simply stated in the trial that, he had taken the dog to the
spot on requisition of the police and thereafter, sent the report (Ext.18) to
the investigating officer.
15. We have noticed that the finding of conviction is based
mainly on the testimonies of P.Ws.2 and 3. For purpose of reference, the
relevant part of the finding of the trial judge is reproduced hereunder:
"It has been well established from the evidence of P.Ws.2
and 3 that, the accused Tunu @ Chereng Munda in association
with other three had mewed to the house of deceased being armed
with dangerous weapon like Bhujali in the dead of the night and he
(accused Chereng Munda) had assaulted the deceased Jayadev on
the vital part of his body i.e. on his chest by giving successive
blows through Bhujali resulting the instantaneous death of
Jayadev while there was no provocation at all from the side of
deceased."
Based on the said finding, the Appellant has been convicted
under Section 302/34 of the IPC. It may be noted here that the Appellant
has been acquitted from the charge under Section 394/34 of the IPC. The
other accused persons were found not guilty of committing any offence.
Hence, pertinent question that emerges is that whether P.Ws.2 and 3 can
be relied on the question of identification of the Appellant. It is apparent
from the F.I.R. that P.W.2 could not disclose anybody's name as the
assailant or the perpetrator of the crime. Even though, P.W.3 was present
at the time of writing the F.I.R., there is no mention of anybody's name
as the perpetrator of the crime. It may also be noted that the F.I.R. was
lodged after four hours of the occurrence by P.W.2, who has
categorically claimed to have seen the occurrence. It is apparent from the
records of evidence that P.W.2 has clearly stated that P.W.3 had
appeared in the place of occurrence after her return from the house of
P.W.6. P.W.6 has also clearly stated that when P.W.2 returned to her
house after informing P.W.6, the assailants had left the place. According
to P.W.3, she saw the occurrence when P.W.2 was not in the place of
occurrence. If we believe P.W.2, we cannot believe P.W.3. P.W.2 has
categorically testified that when she raised the alarm the assailants had
dispersed. In order to implicate the Appellant the statement of P.W.3,
which is incongruous to the statement of P.W.2 cannot relied on. P.W.9,
the Investigating Officer has made two significant statements viz, in the
course of investigation, he had suspected the involvement of the
Appellant and the co-accused and on such suspicion when the Appellant
was arrested, he had made the confessional statement, and on the basis
of the confessional statement, the other three accused persons were
arrested. He has also emphatically stated that the Appellant had led to
discovery of the weapon of offence. But what we find that from the
house of the Appellant only a bamboo stick and blood stained
handkerchief were recovered. The blood in the handkerchief could not
be related to the blood of the deceased nor the lathi could be related to
the assault. It is well settled law that the statement made in the police
custody even, if inculpating in nature, cannot form the legal evidence
except the part which is protected by Section 27 of the Indian Evidence
Act. Only the part in which the Appellant discloses about the place of
hiding of the material object can be accepted in the evidence subject to
the real recovery of those materials in presence of the witnesses.
Therefore, the other part of the confessional statement has no evidentiary
value. Even, the trial judge has not placed any reliance on such
statement. As consequence thereof, all the co-accused persons have been
acquitted from the charge. Only evidence that survives the scrutiny is the
discovery of the lathi from the house of the accused. But, there is no
evidence that the assault was made by the said lathi. For that reason, we
can revisit the statement of P.W.2. P.W.2 has testified that all the
accused persons had assaulted her husband on different parts of his
body. As a result, he got severe bleeding injuries and became senseless.
It has been also stated by her that Chereng Munda had assaulted her
husband by Bhujali. There is no mention of lathi at all. The opinion of
P.W.11, Dr. Sudhir Kumar Sahu as regards injuries by the blunt weapons
cannot be conclusive for purpose of identifying the weapon of assault
definitely in absence of the other corroborative evidence.
16. On critical analysis of the evidence, we cannot believe the
statements made by P.Ws.2 and 3 in the trial, as the name of the
Appellant did not figure in the F.I.R. P.W.2 has stated only in the trial
for the first time that she could identify the Appellant at the time of
assault, but, she did not explain why she could not disclose the name of
the Appellant in the First Information Report, which was prepared in
presence of P.W.3 and filed after four hours of the occurrence. Further,
the statement of P.W.9 has made the statements of P.Ws.2 and 3 more
susceptible to doubt as P.W.9 has categorically stated that P.W.2 had not
stated to him that out of all the assailants she was able to identify
Chereng Munda. According to her, Chereng Munda had assaulted her
husband with Bhujali. Moreover, P.W.9 has categorically stated that
during the course of investigation, he came to know about the
involvement of the accused persons in the occurrence. On 2.10.2006,
after four days of the occurrence, he had arrested Chereng Munda @
Tunu, the Appellant herein. P.W.9 has failed to disclose the source from
whom he came to know about the involvement of the Appellant nor was
any witness examined in the trial to substantiate that he had disclosed the
name of the Appellant to P.W.9. It may also be noted that all the
interested witnesses were chosen by P.W.9 for seizure and to record the
so called confessional statement of the accused in their presence.
17. The cumulative effect of all these divergent evidence
destroys the reliability of the prosecution case. Hence, the Appellant is
definitely entitled to get the benefit of doubt.
18. Accordingly, we set aside the impugned judgment and
order of conviction and sentence on benefit of doubt. The Appellant is
therefore, entitled to be released forthwith, if his detention is not
required in any other case.
19. In the result, the appeal stands allowed.
20. LCRs, if any, lying in the Registry shall be returned.
...............................
( S. Talapatra, J.)
Savitri Ratho, J. I agree.
............................
(Savitri Ratho, J.)
Signature Not Verified
Digitally Signed
Signed by: LITARAM MURMU
Designation: Sr. Stenographer
Location: High Court of Orissa, Cuttack
Date: 23-May-2023 11:23:54
