ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No. 56 of 2001 From the judgment and order of sentence dated 10.05.2001 passed by Shri A.K. Senapati, learned Sessions Judge, Keonjhar in S.T. Case No. 76 of 1997, under Section 302, I.P.C. ---------- Bhanu @ Chandrabhanu Naik … Appellant Versus State of Orissa … Respondent For Appellant : Miss Gouri Das, Advocate. For Respondent : Mr. D. Panda, Addl. Govt. Advocate. ---------- P R E S E N T : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH --------------------------------------------------------------------------------------------------- Date of Judgment : 09.03.2011 --------------------------------------------------------------------------------------------------- C.R. Dash, J. Conviction of the appellant under Section 302, I.P.C. and consequent sentence recorded thereunder for the appellant to suffer imprisonment for life are impugned in this appeal. 2. The occurrence happened at about 3.30 p.m. on 13.12.1996 in village Jamunaposi under Turumunga P.S. in the district of Keonjhar. It was a Friday and the day of ‘Thakurani Puja’ at the village. All the villagers had assembled near the village deity for the ‘Puja’. At about 4 p.m. Mitrabhanu Naik (P.W.5), who happens to be the brother of the present appellant, conveyed Gopabandhu Naik (P.W.2) near the place of ‘Puja’ that at about 3.30 p.m. the appellant has committed murder of deceased Keshab @ Matal Naik. Deceased Keshab @ Matal Naik, after becoming a widower, came to reside in the house of his daughter Rambha Naik (P.W.1) in village Jamunaposi. Sankhali Naik (not examined) is the husband of said Rambha Naik (P.W.1). Gopabandhu Naik (P.W.2) is their son-in-law. On hearing about the matter from Mitrabhanu Naik (P.W.5), Gopabandhu Naik (P.W.2) and his mother-in-law Rambha Naik (P.W.1), Danda Naik (not examined) and others rushed to the spot, which is the house of Sankhali and Rambha. They found the deceased Keshab lying dead. His head was completely severed from the trunk. A ‘katari’ (M.O.-I) was lying near the dead body. All of them saw the appellant present on his homestead with blood stains on his banion (M.O.-IV) and napkin (M.O.-III). Gopabandhu (P.W.2) on the same day lodged oral report in Turumunga P.S. The present case was registered and on completion of the investigation, the O.I.C. (P.W.9) filed charge-sheet implicating the appellant in offence under Section 302, I.P.C. 3. Prosecution has examined nine witnesses to drive home the guilt to the appellant. Besides the witnesses introduced in the preceding paragraph, P.W.4 is a witness to the first part of the occurrence. P.W.3 is a witness to the inquest over the dead body of the deceased. P.W.6 is the Medical Officer, who conducted autopsy, P.W.7 is the S.I. of Police attached to Turumunga P.S., who reduced 2 the oral report lodged by Gopabandhu Naik (P.W.2) to writing, P.W.8 is the Scientific Officer, who examined the incriminating articles on police requisition and P.W.9 is the Investigating Officer. The defence plea is one of complete denial. 4. Learned trial court, relying on the evidence of P.Ws.4, 5 and other corroborative evidence, held the appellant guilty under Section 302, I.P.C. and sentenced him thereunder. 5. Learned counsel for the appellant submits that the case being based on circumstantial evidence and the circumstances proved being not conclusive for recording the guilt of the appellant, the findings arrived at by the learned trial court is erroneous. Learned Addl. Govt. Advocate on the other hand supports the impugned judgment. 6. From the impugned judgment we find that learned trial court has relied on the following circumstances :- (i) Just preceding the murder of the deceased, the deceased and the appellant were engaged in loud altercations and the appellant was shouting at the deceased saying “MU TOTE HANI DEBI”, holding a ‘katari’ in his hand. (As testified by P.W.4). (ii) P.W.4 intimated about the aforesaid fact to P.W.5, brother of the appellant, who was present at the place of worship, and on coming over the spot P.Ws.4, 5, 1, 2 and others found the dead body of the deceased, his head being severed from the trunk. 3 (iii) Banion and napkin of the appellant was stained with blood, which tally with the blood group of the deceased so far as the origin and A.B.O. grouping system is concerned. (As found in the evidence of the I.O., Scientific Officer and the Chemical Examination Report – Ext.15). 7. Evidence of P.W.4, in the present case, is the most crucial for arriving at the just decision, as he is a witness, who has seen the part of the occurrence just preceding the murder of the deceased. Relevant testimony of P.W.4 reads as follows - “… On the alleged date at about 3 P.M. I returned from the place of worship to my house. Then I have seen Keshab and accused were talking in the house of P.W.1. From my house I could hear loud altercations amongst them and specifically the shouting of accused, who was giving out that he will commit murder of Keshab. (“MU TATE HANI DEBI”). I came out of the house and saw tussle amongst them. Accused was holding a KATARI while giving out threat. When accused saw me there, he looked at me with frowning face and eye, which caused fear in me and for that I ran away to the place of worship and there reported to Mitrabhanu Naik about the behaviour of the accused. Informing them I again returned to the spot and found by then the head of Keshab was completely cut and severed from the trunk. …. A KATARI, which was held by the accused, was also lying there. M.O.-I is that KATARI.” In the cross-examination, P.W.4 has testified thus – “My house is in front of the house of P.W.1 intervened by the village road. By spot I mean the front courtyard of the house of P.W.1 adjoining the 4 village road. The dead body was lying touching the verandah on the village road.” “I had seen accused dealing two to three blows with M.O.-I to Keshab before I left the spot out of fear. It is a fact that I have not stated to Police that I have seen accused dealing two to three blows with KATARI to Keshab. ….” 8. From the aforesaid evidence of P.W.4, it is clear that his house is situated near the spot. He was attracted towards the spot on hearing loud altercations between the appellant and the deceased. He saw the appellant engaged in tussle with the deceased in the front courtyard of the house of P.W.1 and giving out threats to him (deceased) holding a ‘Katari’ saying “MU TOTE HANI DEBI” (I shall cut you to death). He got frightened when the appellant cast an angry look on him and rushed to the place of worship and conveyed about unusual behaviour of the appellant to his brother Mitrabhanu Naik (P.W.5). He (P.W.4) again returned to the spot and found the deceased lying dead with his head completely severed from his trunk. The ‘katari’ the appellant had held, was lying at the spot and he (P.W.4) has identified that ‘katari’ as M.O.-I. 9. P.W.5 did not support the prosecution case as he should, and learned Public Prosecution cross-examined him under Section 154 of the Evidence Act. On thorough scrutiny of his (P.W.5’s) evidence, we find that P.W.4 is corroborated by P.W.5 on the following aspects- (1) P.W.4 informed him there at the place of worship that Matal @ Keshab Naik has been murdered and his head 5 has been completely severed from the trunk, without naming the appellant. (2) He along with others came to the spot and found the dead body of the deceased Matal @ Keshab Naik lying in front of the house of P.W.1 and his head had been completely severed from the body. From the aforesaid evidence of P.W.5, it is clear that P.W.4 is corroborated by P.W.5 to the extent that he (P.W.4) informed him (P.W.5) about the occurrence (though not in the manner as testified by him - P.W.5), and on returning to the spot along with others he (P.W.5) also found the dead body of the deceased lying with the head completely severed from the trunk. From his cross-examination it is further found that he (P.W.5) told about the incident to P.Ws.1 and 2 and some others. On thorough perusal of his evidence in its entirety, P.W.5 can be held to have corroborated P.Ws.4 and 2 to the extent as discussed supra. Learned trial court, however, without being alive to the probative effect of the statement recorded under Section 164, Cr.P.C. and the answers elicited by the Public Prosecution on cross- examination of his own witness on the point as to what such witness had stated before the Investigating Officer, during his examination under Section 161, Cr.P.C., has relied on the entire evidence of P.W.5. That was, however, a wrong approach, because what the witness stated in his statement under Section 164, Cr.P.C. or what he had stated before the Investigating Officer during his examination under Section 161, Cr.P.C. are only his previous statements which cannot take the place of substantive evidence. In view of such position, 6 P.W.5 though declared hostile, his evidence can be used for the benefit of the prosecution to the extent as indicated supra. 10. Learned counsel for the appellant quite strenuously persuaded us to disbelieve P.W.4, in view of the evidence of P.W.5 to the extent that P.W.4 had not stated anything to him (P.W.5) regarding the assailant and evidence of P.Ws.1 and 2 to the extent that P.W.4 reported them to the effect that the appellant has completely severed the head of the deceased from his trunk. Further, the evidence of P.W.4 in his cross-examination to the effect that he saw the appellant dealing two to three ‘Katari’ blows to the deceased is impugned as contradiction. 11. We cannot lose sight of the fact that all the witnesses are rustic. They happened to see a ghastly scene of a dead body lying with his head completely severed from the trunk, in broad day light. Human mind has the tendency to believe things on supposition as to what might have happened and every human being has a tendency to improve and exaggerate on the basis of such supposition. In the present case, P.W.4 saw the appellant and deceased engaged in loud altercations and tussle and heard the appellant giving out threats to kill the deceased. He also saw the appellant armed with a ‘Katari’. In a state of fright, he went to inform the villagers present at the place of worship regarding the incident. Immediately he and other villagers including P.Ws.1, 2 and 5 came to the spot and found the deceased lying dead with his head completely severed from the trunk. All the three incidents, i.e., what P.W.4 saw and heard, his going to the place of worship to inform the witnesses there and coming of the witnesses 7 to the spot immediately to see the ghastly scene having happened in quick succession, there bound to be exaggeration in the evidence of P.Ws. 1 and 2 and even P.W.5 to the effect that P.W.4 told them about the fact that the deceased has been murdered by the appellant by cutting his head from the trunk. On this score alone, therefore, P.W.4 cannot be disbelieved, inasmuch as he is consistent in his evidence to the effect that he only informed Mitrabhanu Naik (P.W.5) about the unusual behaviour of the appellant. P.W.1 has testified that he heard the incident from P.W.4. P.W.2 has however testified that P.W.5 reported him about the incident. Taking into consideration the totality of evidence as tendered by P.Ws.4, 1, 2 and 5, we are of the view that there is nothing to disbelieve P.W.4 and he (P.W.4) has been corroborated by P.Ws.5, 1 and 2 so far as the sequence of events are concerned, and such corroboration can be held to be corroboration in material particulars. 12. So far as the contention regarding contradiction in the evidence of P.W.4 is concerned, it is found that P.W.4 in his cross- examination has testified that he saw the accused dealing two to three blows with the ‘Katari’ (M.O.-I) to the deceased. Such a fact being a fact elicited in the cross-examination, cannot be said to be a contradiction on cross reference to what the witness (P.W.4) had stated before the Investigating Officer under Section 145 of the Evidence Act, and such evidence of P.W.4 has been rightly dismissed as improvement by learned court below. 13. In view of the above, we are of the view that the prosecution has proved the following primary facts :- 8 (i) P.W.4 saw the appellant and the deceased engaged in loud altercations and tussle. The appellant was armed with a ‘Katari’ and he (P.W.4) heard the appellant threatening the deceased to kill him; (ii) P.W.4 left the spot in a state of fright and informed the villagers at the place of worship. Coming to the spot immediately after being informed by P.W.4, the witnesses (P.Ws.1, 2, 4 and 5) saw the deceased lying dead with his head completely severed from the trunk. (iii) The ‘katari’, which the appellant had held was lying at the spot and P.W.4 identified that ‘katari’ as M.O.-I. 14. From the aforesaid primary facts, it is to be seen whether inference of guilt pointing unerringly at the appellant can be drawn. There is nothing on record to show that the deceased had previous enmity with any other person in the village and any person other than the appellant had the opportunity to kill the deceased during the short time P.W.4 left the spot and again returned along with other witnesses. There is nothing on record to show that the death of the deceased might have been accidental. From the sequence of events and from the aforesaid three circumstances alone, inference regarding guilt of the appellant can be drawn, inasmuch as there were none except the appellant, to whom the opportunity to kill the deceased was available in the short time as aforesaid. The aforesaid circumstance is further corroborated by presence of blood tallying with the blood of the deceased on the banion (M.O.-IV) and napkin (M.O.-III) of the appellant. 9 15. In view of our discussions supra, we do not find any justification to take a different view. Accordingly, the Jail Criminal Appeal is dismissed. ………………….. L. Mohapatra, J. I agree. ………………….. Orissa High Court, Cuttack. The 09th day of January, 2011. / Parida. 10