ORISSA HIGH COURT,CUTTACK CRLA NO. 347 OF 2006 From the judgment and order dated 18.7.2006 passed by Shri S.N.Sahoo, learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in Sessions Case No.137 of 2002 arising out of G.R.Case No.226/2000 of the file of learned S.D.J.M., Dharamgarh corresponding to Jaipatna P.S.Case No.53 of 2000. ---------- Jalandhar Majhi & others … Appellants -versus- State of Orissa … Respondent For appellants - M/s S.K.Mund, D.P.Das, J.K.Panda,J.N.Panda, A.K.Dei & J.Sahu. For respondent - Additional Government Advocate PRESENT: THE HONOURABLE SHRI JUSTICE L.MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ---------------------------------------------------------------------------------- Date of hearing-17.11.2011 :: Date of judgment- 8.12.2011 ---------------------------------------------------------------------------------- B.K.Patel,J. This appeal is directed against the judgment and order dated 18.7.2006 passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in Sessions Case No.137 of 2002 convicting the appellants under section 302 read with 149 and 34 of the Indian Penal Code (for short, the I.P.C.) as well as section 148 of the I.P.C.; and sentencing each of them to undergo imprisonment for life and to pay fine of Rs.10,000/-, in default to undergo rigorous imprisonment for one year, under section 302 read with section 149 and 34 of the I.P.C. and to undergo rigorous imprisonment for three years under section 148 of the I.P.C. 2. Allegations in the case relate to murder of deceased Bijaya Khamari. Deceased belonged to village Chancharamal whereas appellants belong to village Sunamal. Occurrence took place on 14.6.2000 3. Prosecution case is that on the date of occurrence at about 10 A.M. informant P.W.1 along with the deceased, P.W.2, P.W.3 P.W.5 and P.W.6 as well as other co-villagers had been to Badadangar hill near their village to collect firewood. They collected firewood and returned home to take food. In the afternoon at about 4 P.M. P.W.1, P.W.2, P.W.3, P.W.5, P.W.6 and deceased again went to forest to bring firewood. While returning with firewood on the way at about 5 P.M. they were challenged by appellants and others who were holding tangias, lathis and gun near the land of appellant Jalandhar by the side of Totapada road. They abused in filthy language saying as to why ‘Doms’ were taking away trees from their jungle and threatened to kill them. Appellants Kailash, Jalandhar and Gora as well as co-accused persons Dharamsingh and Bhadra Disari caught hold of the deceased upon which appellant Thakur dealt tangia blows on him. Soon thereafter 50 to 60 persons belonging to village Sunamal rushed there holding tangias and lathis and assaulted the deceased. Appellant Gora assaulted the deceased’s brother P.W.5 by means of tangia causing bleeding injuries. When the deceased fell down after being assaulted, appellant Thakur and others dealt tangia blows on his head and legs. Also, deceased’s fingers were cut and he was assaulted 2 by lathis. Being assaulted by lathis informant P.W.1 and his companions returned to their village out of fear. As the deceased did not return for about half an hour, 10 to 12 residents of village Sunamal including the informant went in search of him. They found the deceased lying unconscious with bleeding injuries on him in a field. They administered water upon which the deceased regained sense. While bringing the deceased, on the way, on being asked by P.W.9 and others, he told that he was assaulted by appellant Thakur and others. In his house also deceased told his family members that he was assaulted by appellant Thakur and other residents of Sunamal. Deceased died while arrangements were being made to shift him to hospital. On the basis of written report Ext.1/1 submitted by P.W.1 at Jaipatna Police Station, the Officer In-charge P.W.13 registered the case and took up investigation. On completion of investigation, charge-sheet was submitted against the appellants and 10 others for commission of offences under sections 147/148/323/294/307/302/506/149 of I.P.C. 4. Upon consideration of materials on record the trial court framed charges under Section 302 of the I.P.C. against appellant Thakur, and under Sections 148 and 302 read with Section 149 of the I.P.C. against other appellants and co-accused persons. 5. Appellants took the plea of denial and false implication. 6. In order to substantiate the charge, prosecution examined thirteen witnesses. As has been stated above. P.Ws.1, 2, 3, 5 and 6 are stated to have accompanied the deceased and were examined as eye 3 witnesses. Of them, informant injured P.W.1 as well as P.W.2 and injured witnesses P.Ws.3 and 6 were declared to be hostile witnesses and cross- examined by the prosecution. So also post-occurrence witnesses P.Ws.4, 8, 9 and 11 were declared to be hostile witnesses. Other witnesses are formal witnesses, P.W.7 being a constable who accompanied the dead body of the deceased for post-mortem examination, P.W.10 being an inquest witness, P.W.12 being the doctor who conducted post-mortem examination over the dead body of the deceased and medically examined P.Ws.1, 2 and 5, and P.W.13 being the investigating officer. Prosecution also relied upon documents marked Exts.1 to 30. No defence evidence was adduced. 7. Placing reliance on the evidence of eye witness P.W.5 stated to have been corroborated by medical evidence and other incriminating circumstances, the trial court held the appellants guilty under Section 302 read with Sections 149 and 34 of the I.P.C. as well as Section 148 of the I.P.C., and sentenced them as stated supra. One of the co-accused persons died during trial whereas other co-accused persons were acquitted of the charge. 8. In assailing the impugned judgment Sri Mund, learned counsel appearing for the appellants launched a scathing attack on the evidence of P.W.5. Referring to and placing reliance upon the evidence of P.Ws.1, 2, 3 and 6 it was contended that evidence of P.W.5 is not only inconsistent with the evidence of other witnesses who accompanied the deceased to the forest but also the evidence of P.W.5 is improbablised by circumstances proved by said witnesses. It was argued that P.W.5 neither 4 saw the occurrence nor could have seen the occurrence. It was further contended that evidence of P.W.5 to have sustained injuries on his person due to assault by the accused persons in course of occurrence is falsified not only by the evidence of above said witnesses but also by the medical evidence. It was strenuously argued that P.W.5 materially contradicted himself not only with the evidence of other witnesses and medical evidence, but also with his own statement made before P.W.13 during investigation. His evidence regarding the manner of assault on him as well as on deceased, the sequence of events and the nature of injuries sustained by him and the deceased due to assault is not supported and, is rather, contradicted by medical evidence and other circumstances. 9. Sri Mund would also submit that there was no reason for the trial court to reject the evidence of P.Ws.1, 2, 3 and 6 just because they were declared to be hostile witnesses and cross-examined by the prosecution. According to him, there appears no contradiction in the evidence of said witnesses. Prosecution simply cross-examined these witnesses by suggesting that they had made statements before the investigating officer implicating the appellants with the commission of alleged offences. However, prosecution has not taken any step to prove the previous police statement of P.Ws.1, 2, 3 and 6 through the investigating police officer P.W.13. None of these witnesses implicated the appellants with the commission of the alleged offences while deposing in court. According to them P.W.5 also ran away from the spot when villagers of Sunamal approached them and P.W.5 sustained injuries when he fell 5 down while running. Alleged contradictions in the evidence of P.Ws.1, 2, 3 and 6 having not been proved by resorting to provisions under Sections 145 and 154 of the Indian Evidence Act and Section 162 of the Cr.P.C., their evidence ought to have been held to be consistent and should have been accepted in preference to the evidence of P.W.5. It was further argued that no reliance should have been placed by the trial court on the F.I.R. Ext.1 which remained unproved. 10. Learned counsel appearing for the State placing reliance on the evidence of P.W.5 contended that the trial court has rightly acted upon the testimony of the injured eyewitness who is deceased’s brother and whose evidence is corroborated by medical evidence. 11. Obviously the fate of the prosecution hinges upon the evidence of P.W.5. Evidence of hostile witnesses P.Ws.1,2,3 and 6, who accompanied him, and of post-occurrence witnesses P.Ws.4,8,9 and 11 does not provide any support to the prosecution. 12. P.W.5 testified in his deposition that on 14.6.2000 he alongwith P.W.1, P.W.2, P.W.3, P.W.6, deceased and two others had gone to Bada Dangar jungle near appellants’ village Sunamal at about 4 P.M. to bring fire wood. While returning back carrying the fire wood at about 5 P.M. near the land of appellant Jalandhara at the outskirts of the jungle they were restrained by fifty to sixty villagers of Sunamal. They abused and shouted to kill P.W.5 and his companions as they were always bringing wood from the jungle. It was further stated by P.W.5 that appellant Jalandhara assaulted on his head over the right ear and he fell 6 down. His brother, the deceased came to P.W.5’s rescue. Appellant Thakur assaulted on the head of the deceased by tangia. Appellant Kailash also assaulted on the head of the deceased by tangia. Deceased fell down writhing in pain. Appellant Gora assaulted on P.W.5’s head by tangia and when he dealt another blow aiming on P.W.5’s head, he raised his right hand and the tangia blow slipped on the reverse side of P.W.5’s right palm causing injury and also struck his head. Appellant Kailash instigated others to cut the hands and legs of deceased. P.W.5 stated that he started running escaping from the place and fell down near his house which is situated at a distance of one kilometer from the place of occurrence. Some villagers took him to Jaipatna Hospital at about 8 P.M. and some other villagers went in search of deceased who was yet to return. P.W.5 also asserted that he told his co-villagers that deceased was killed by the villagers of Sunamal as he presumed him to be dead when he was assaulted at different parts of his body and chest. In his cross-examination P.W.5 testified that three to four hundred villagers of Sunamal, and not fifty to sixty villagers of Sunamal as stated in his examination-in-chief, restrained him and his companion while they were returning from the jungle. He also stated that he was assaulted on his back while running from the place and he did not stop thereafter. At that time, he was assaulted by lathi and that he was assaulted twice on his back while fleeing from the place of occurrence. He as well as his companions were encircled while returning back from the jungle. When he was assaulted on his head, deceased came to his rescue whereas P.Ws.1, 2, 3 and 6 ran away from the place. He reiterated that at 7 first he was assaulted before anybody was assaulted. However, P.W.5 contradicted himself in course of his cross-examination by deposing that when he was assaulted over his right ear by a lathi, he fell down for which he could not run. He could not raise himself and kept lying down for one to one and half hour. During that period he was fully conscious. After he fell down, he was twice assaulted by tangia of its sharp side. To a question put in course of cross-examination P.W.5 answered that to his knowledge P.Ws.1, 2, 3 and 6 were not assaulted. He denied to have gone to the police station and asserted that police examined him in Jaipatna Hospital. At paragraph 20 of his deposition in course of the cross- examination P.W.5 stated that he had seen that the deceased had sustained six to seven tangia blows on his head and also that deceased was assaulted twice on either side of his chest by tangia. All the tangia blows were given by the sharp side. It has been elicited from the evidence of P.W.5 and investigating officer P.W.13 that in his police statement P.W.5 did not state that at first appellant Jalandhar assaulted him, or that he was assaulted by appellant Kailash. P.W.5 had also not stated before P.W.13 that specifically at which part of his body appellant Gora had dealt a tangia blow. He also had not stated before P.W.13 that when appellant Gora dealt second blow, he raised his right hand causing injury to his right palm, or that appellant Kailash instigated others by shouting to cut the hands and legs of the deceased. P.W.5 also had not stated before the I.O. that he fell down near his house. 8 Thus, P.W.5 contradicted himself while deposing in court. He testified in examination-in-chief that upon assault he started running escaping from the blows and fell down near his house whereas in course of cross-examination he stated that he fell down and could not run after first assault was dealt on his head over right ear, and could not raise himself and kept lying down for one to one and half hour at the spot. He also contradicted himself with his previous police statement with regard to the manner in which tangia blows were dealt by the appellants on him and the deceased. Therefore, evidence of P.W.5 being inconsistent in court as well as with the police statement, it cannot be held that P.W.5 is wholly a reliable witness. He is required to be corroborated in material particulars in order to act upon his testimony. 13. So far as medical evidence is concerned, it was P.W.12 who conducted post-mortem examination over the dead body of the deceased as well as medically examined P.W.5 and also P.Ws.1 and 2. P.W.12 stated that he found the following external injuries on the deceased: “(i) there was amputation of right thumb and index finger at interphalengal joint; (ii) Amputation of left middle finger on the phalengal joint; (iii) Lacerated wound star shaped on the parietoccipital region of size 3” x 1” x ¼” and 3” x ¼”; (iv) Lacerated injury on the occipital region 2” x 1” x ¼”; (v) abrasion on the left side of chest wall above the mamdary line 2” x 1” in size; and (vi) incised wound of size 1” x ¼” x 1” over left shoulder region.” 9 Thus, it is found that apart from abrasion on the chest, deceased was found to have sustained amputation of right thumb and left middle finger, two lacerations on the head and one incised wound on the shoulder. However, P.W.5 stated to have seen only two blows by means of tangia to have been dealt on the deceased. P.W.12 stated to have found the following external injuries on P.W.5: “(i) lacerated injury of 3” x ¼” x ¼” over the parietal aspect of skull; (ii) bruise of 3” x ½” over right inter scapular area; and (iii) abrasion of size 1 and ½” x 1” over the right temporal region.” However, P.W.5 stated that three blows were dealt on him, one by appellant Jalandhara on his head, one by appellant Gora by means of tangia on his head and also another tangia blow dealt by appellant Gora causing injuries on his right palm and head. Absence of any incised wound on P.W.5’s head and any injury on his palm is not consistent with the evidence of P.W.5 himself. In his cross-examination, P.W.12 stated that laceration and other injuries on P.W.5’s person were possible by fall on rough and hard surface like stone. Such opinion is consistent with defence plea of P.W.5 having sustained injuries due to fall while running away from the spot. 10 In view of such inconsistencies, medical evidence with regard to the injuries on the deceased and P.W.5 does not corroborate the evidence of P.W.5. Consequently, as has been held by this Court in Narayan Karjee –vrs.- State of Orissa : (1997) 12 OCR 523, discrepancy in the evidence of the doctor and the eye-witnesses with regard to the number of blows and the corresponding injuries goes a long way to create serious doubt on the prosecution version. 14. P.Ws.1, 2, 3 and 6 are stated to have accompanied the deceased and P.W.5 to the jungle. None of these witnesses implicated any of the appellants while deposing in court. P.W.1 stated that while returning back from the jungle in the evening when the darkness was just starting about seventy to eighty persons or more than that encircled them. He could not identify anyone of them. They were armed with lathis and objected as to why P.W.1 and his companions cut wood inside the jungle which they were protecting. P.W.1 testified that out of fear he threw the load of wood on the ground and ran to his village where he narrated the incident before other villagers and during that narration all his companions except the deceased came back. At paragraph 14 of his deposition, in course of cross-examination, P.W.1 admitted that when he was running to his village P.W.5 was following him and at paragraph 15 he admitted that soon after he returned to the village P.W.5 also returned. P.W.1 having not implicated any of the appellants with the alleged offences, prosecution was permitted to put leading questions under Section 154 of the Evidence Act to him. In course of cross-examination by the prosecution P.W.1’s attention was drawn to previous statements made 11 by him before the investigating officer to suggest that he had implicated the appellants and some of the co-accused persons with the assault on the deceased as well as himself. Suggestions to have made such statements before the investigating officer were denied by P.W.1. However, prosecution did not take any step to prove P.W.1’s police statement through investigating officer P.W.13. In such circumstances, contradiction, if any, in the evidence of P.W.1, remained unproved. Similar omission appears to have been committed by the prosecution in respect of P.Ws.2, 3, 4 and 6 also. P.W.2 testified that while he alongwith deceased and others were returning from the jungle carrying wood, at about 7 or 7.30 P.M. villagers of Sunamal whom he could not identify due to darkness, restrained them with lathis and tangias. They chased them and for fear of life P.W.2 ran to his village. He also stated that he did not sustain injury. In course of his cross-examination, at paragraph 6 of his deposition, P.W.2 admitted that when he was running to the village P.W.5 was also running with him and that while returning to their village P.W.5 stumbled and his head was dashed against a stone for which he sustained bleeding injuries. P.W.3 stated in his deposition that about sixty to seventy villagers of Sunamal chased them and they ran for their life. He was assaulted by lathi on his back. He could not recognize any of the assailants due to darkness. This witness also in his cross- examination, at paragraph 6 of his deposition, stated that while fleeing from the jungle, two children ran ahead followed by P.W.1, and that P.Ws.5 and 2 were following P.W.1, and that he himself and one co- accused Keshari Pan were following P.Ws.5 and 2. P.W.6 testified that 12 when they were cutting fire wood inside the jungle the villagers of the Sunamal chased them. Out of fear they ran to their house but deceased Bijaya Khamari did not return. It is stated by him that he could not identify any of the villagers of Sunamal who chased them as it was dark. In course of his cross-examination, at paragraph 4 of the deposition, this witness stated that after they were chased by the villagers of Sunamal all of them except the deceased ran and reached their village at about the same time. Though all these witnesses were also put leading questions by the prosecution in course of which their police statements were brought to their attention and they were suggested to have made statements implicating the appellants with the commission of alleged offences, they denied to such suggestions. However, police statements of these witnesses were not proved through the investigating police officer P.W.13. 15. Placing reliance on the decision of Patna High Court in Baijnath Mahto alias Baijnath Gope –vrs.- Emperor : AIR (33) 1946 Patna 109, it was contended by the learned counsel for the appellants that simply because a witness has been declared hostile by the prosecution it does not amount to saying that the value of his testimony given in cross- examination has been done away with. It was argued that though prosecution declared P.Ws.1, 2, 3 and 6 to be hostile witnesses, provisions under Sections 145 and 154 of the Evidence Act as well as under Section 162 of the Cr.P.C. were not resorted to. 16. Statement of witness recorded in course of investigation can not be used for any purpose save and except to contradict such witness as 13 provided under Section 162 of the Cr.P.C. by resorting to provisions under Section 145 of the Evidence Act. Section 154 of the Evidence Act provides that the Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross- examination by the adverse party. Section 145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Thus, in order to prove contradiction, previous statement of witness in writing is required to be proved in accordance with law. 17. In the present case, prosecution has not proved any contradiction in the evidence of these witnesses in view of omission to prove previous statements of these witnesses made before the investigating officer. Therefore, evidence of these witnesses remains uncontradicted. Evidence of these witnesses reveals that more than hundred villagers of Sunamal encircled the deceased and these witnesses, and chased them when it was already evening for which it was not possible to identify the members of the mob. Their evidence also indicates that alongwith P.Ws.1, 2, 3 and 6 deceased’s brother P.W.5 also ran to the village. While running to the village he stumbled and fell down resulting in injury on his person. Therefore, plea of defence that P.W.5 did not sustain any injury in course of the occurrence as a result of assault by any of the appellants finds corroboration from the evidence of P.Ws.1, 2, 3 and 6. Moreover, evidence 14 of these witnesses, which has not been discredited in any manner, contradicts the evidence of P.W.5. 18. In view of omission on the part of the prosecution to prove contradictions in the testimony of P.Ws.1, 2, 3 and 6 with their previous statements made before the investigating officer, their testimony remained uncontradicted. As has been held by the Hon’ble Supreme Curt in Shashidhar Purandhar Hegde and Anr. –vrs.- State of Karnataka : 2004 (4) Crimes 202 (SC), ‘contradiction’ means the setting of one statement against another and not the setting up of a statement against nothing at all. Suggestion denied by a witness is meaningless, and has no evidentiary value. Putting suggestion to the witness and the witness denying the same does not amount to putting contradiction to the witness. The contradiction has to be put to the witness as contemplated under Section 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him, then his attention has to be drawn to the statement made by such witness before the police or any other previous statement, and he must be given a reasonable opportunity to explain as to why such contradiction appears. Previous statement is required to be confronted to him. Thereafter,