ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No. 133 of 2000 From the judgment and order of sentence dated 10.09.1999 passed by Shri N.K. Rajguru Mohapatra. Sessions Judge, Sundargarh in Sessions Trial No. 151 of 1997, under Sections 302/34, I.P.C. ---------- Sahadev @ Mangalu Munda and two others … Appellants Versus State of Orissa … Respondent For Appellants : Mr. Rajanikanta Sahoo, Advocate. For Respondent : Addl. Standing Counsel. ---------- P R E S E N T : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH --------------------------------------------------------------------------------------------------- Date of Hearing : 18.08.2010 Date of Judgment : 18.08.2010 --------------------------------------------------------------------------------------------------- 1. This appeal arises out of the judgment and order of sentence dated 10.09.1999 passed by learned Sessions judge, Sundargarh in Sessions Trial No.151 of 1997. Learned trial court found all the three appellants guilty of the offence under Section 302/34, I.P.C. and accordingly sentenced each of them to suffer imprisonment for life. 2. A compendium of the prosecution case is as follows – The occurrence happened at about 2 a.m. in the night of 21/22.04.1997 in village Upurda under Bonai P.S. Informant (P.W.1) happens to be the brother of the deceased Manu Kishan. He was in his house. He heard ‘hulla’ of one Kalu Kishan (P.W.12) of his village shouting that the deceased Manu Kishan is running away after assaulting him. On hearing such ‘hulla’ he (P.W.1) came out of his house and found Lecha Kishan (A-2), Kandara Kishan and Hari Kishan (all are sons of P.W.12) were searching for the deceased, who, by that time had hidden himself in a bush behind his (deceased’s) dwelling house. In the meantime Sahadev @ Mangalu Munda (A-1) and Raghu Munda (A-3), who belong to village Belkudar situated on the other side of the river Brahmani, reached there with a ‘budia’. They along with the aforesaid sons of Kalu Kishan (P.W.12) dragged the deceased out of the bush from the place of his concealment and assaulted him, confronting him as to where he has concealed their fishing nets. Thereafter all of them forcibly took the deceased towards the river. In the next day morning the dead body of the deceased was found on the other side of the village. The informant (P.W.1) lodged report in Bonai P.S. The then O.I.C. of Bonai P.S. (P.W.14) registered the case and took up investigation. After completion of the investigation, he filed charge-sheet implicating the accused persons for the offence punishable under Sections 302/201/34, I.P.C. 2 3. Prosecution has examined 14 witnesses to prove the charge. P.Ws. 1, 2, 3, 7, 8, 9 and 12 are the eye-witnesses to the occurrence, out of whom P.Ws. 2, 3, 9 and 12 have turned hostile and admittedly their evidence is of no avail to the prosecution. Besides P.W.13, who is the Medical Officer, and P.W.14, who is the Investigating Officer, all other witnesses are witnesses to the seizure of wearing apparels of the accused persons at different points of time, seizure of wearing apparels of the deceased on production after post- mortem examination, seizure of the axe (‘budia’), (M.O.-VII), at the instance of accused Raghu Munda (A-3). The defence plea is one of complete denial. 4. Learned trial court has returned the finding of guilt of the appellants under Section 302/34, I.P.C. on the basis of the following evidence – (i) P.Ws.1, 7 and 8 can be believed so far as a part of the occurrence is concerned; (ii) presence of blood stains of human origin of ‘AB’ group on the wearing apparels of Lecha Kisan (A-2) and Sahadev @ Mangalu Munda (A-1) and their failure to explain regarding presence of such blood stains on their wearing apparels; (iii) seizure of the axe (M.O.-VII) at the instance of Raghu Munda (A-3). 5. Learned counsel for the appellants submits that P.Ws. 7 and 8 having been contradicted on material particulars and the 3 contradiction being major in nature, their evidence cannot be believed to sustain the conviction of the appellants; P.W.1 having given prevaricative evidence regarding his presence and regarding the very genesis of the prosecution case, his evidence also cannot be believed. It is further submitted that if evidence of P.Ws.1, 7 and 8 are taken out of consideration, there is nothing on record, which can be held to be sufficient to sustain the charge. 6. Learned Addl. Govt. Advocate on the other hand supports the impugned judgment and submits that even if P.Ws.1, 7 and 8 are disbelieved, the two circumstances of seizure of the axe (M.O.-VII) at the instance of Raghu Munda (A-3) and presence of blood stains of human origin of ‘AB’ group on the wearing apparels of Sahadev @ Mangalu Munda (A-1) and Lecha Kisan (A-2) can be made the basis of conviction. 7. On perusal of the evidence of P.Ws. 7 and 8 and the impugned judgment, it is found that learned trial court, in paragraph-7 of the judgment, while dealing with evidence of P.Ws. 7 and 8, has specifically observed thus – “… The only contradiction as available in their statement under section 161, Cr.P.C. is that they stated to police that on hearing the hullah they had not come out of the house but from the shouting they had gathered that the accused persons were taking their deceased son. …” The aforesaid contradiction has been held to be not a major contradiction by the learned trial court. We are not able to accept the view of learned Trial Court on this aspect. In the trial both the 4 witnesses, i.e., P.Ws. 7 and 8 are testified to have seen the occurrence. Before the police, during investigation, however, they had stated that they had not come out of the house but from the shouting they had gathered that the accused persons were taking their deceased son. They were contradicted on this aspect under Section 145 of the Evidence Act. Both the aforesaid statements, i.e., one made before the police during investigation and another made during trial, cannot be reconciled. Learned Trial Court, however, has taken into consideration, the improvements made by both P.Ws. 7 and 8 during trial over their statements recorded by the police to justify that their evidence in court explains as to under what circumstance, they might have made such a statement before the police. The aforesaid contradiction in the evidence of P.Ws. 7 and 8, as obtained under Section 145 of the evidence Act, is a major contradiction inasmuch as it affects the very basis of their evidence as eye witnesses. We are ready to accept that P.Ws. 7 and 8 are tribals and they are rustic. We are also ready to accept variance in their evidence on the fringes but not at the core. We are also ready to accept discrepancies in details or contradictions in narrations so far as their evidence is concerned. But evidence of P.Ws. 7 and 8 in view of the contradiction as discussed, which militate against the veracity of the core of their testimony, cannot be accepted giving them allowance on the ground of their illiteracy. Therefore, we are of the view that no reliance can be placed on the evidence of P.Ws. 7 and 8. 8. Coming to the evidence of P.W.1, it is found that he has given prevaricative testimony so far as his presence at the time of 5 occurrence is concerned. In his examination-in-chief he has testified that all the accused persons forcibly took the deceased Manu Kishan from his house. Such evidence is totally in contradiction to the genesis of the prosecution case, which speaks of raising of ‘hulla’ by one Kalu Kishan, which attracted P.W.1 to come out from his house to find the accused persons dragging the deceased from out of the bush, where he was hiding himself. In the cross-examination on behalf of the accused Sahadev @ Mangalu Kishan he has testified that the accused persons assaulted the deceased Manu Kishan near the river and he was in his house at that time. He has further testified that the river is at a distance of 100 cubits away from his house. In his examination-in-chief he has testified that immediately after dragging the deceased from his house, the accused persons assaulted the deceased by means of axe (‘budia’) and stone and thereafter they dragged him to the river side and threw him inside the river; thereafter they threw his dead body into a ditch near village Belkudar. Again in paragraph-5 of his cross-examination he has testified that he was in his house when the occurrence took place and the accused persons took his brother from the house and he has seen the accused persons assaulting his brother in the night. If the evidence of P.W.1 is read in its entirety, conclusion is irresistible that he is giving prevaricative testimony so far as his presence at the time of assault and factum of assault on his deceased brother and place of assault on his deceased brother are concerned. Such conduct of P.W.1 makes us to disbelieve his evidence. 6 9. Coming to the circumstance of seizure of the axe (M.O.- VII) at the instance of Raghu Munda (A-3), it is found from the discussion in the impugned judgment at paragraph-9 that most of the witnesses to the factum of seizure have not supported the prosecution case. There are also discrepancies regarding the factum of seizure of the weapon of offence at the instance of Raghu Munda (A-3). The chemical examination report (Ext.22) speaks of no presence of human blood on the axe alleged to have been seized at the instance of Raghu Munda (A-3). In view of such fact, we are of the view that this circumstance pressed by the prosecution cannot be held to be one under Section 27 of the Evidence Act and it is of no avail so far as the prosecution is concerned. The lone circumstance that remains for consideration is presence of human blood of ‘AB’ group on the wearing apparels of Lecha Kisan (A-2) and Sahadev @ Mangalu Munda (A-1). There is nothing on record to show the grouping of blood of the aforesaid convicts/appellants. Further it is found from the chemical examination report (Ext.22) that all the wearing apparels seized from the accused persons and the wearing apparels of the deceased seized on production by the accompanying Constable were sent for chemical examination in one parcel consisting of one cardboard box. When the wearing apparels of the deceased and the accused persons had been sent in one cardboard box and there is no evidence to the effect that the wearing apparels of the accused were sealed separately and the wearing apparels of the deceased were also sealed separately and when there is no evidence regarding blood group of the appellants concerned, we are of the view that this circumstance cannot be held to be of any avail to the prosecution. 7 10. In view of our discussions supra, the order of conviction of the appellants under Section 302/34, I.P.C. is set aside. They be released from custody forthwith, if their detention is not required in connection with any other case. The Jail Criminal Appeal is accordingly allowed. ………………….. L. Mohapatra, J. …………………. C.R. Dash, J. Orissa High Court, Cuttack. The 18th day of August, 2010. /Parida. 8