HIGH COURT OF ORISSA, CUTTACK JCRLA NO.40 OF 2003 From the judgment and order dated 19.04.2003 passed by Shri B.K. Jena, 1st Addl. Sessions Judge, Berhampur in S.C. No.11 of 2002/S.C. No.133 of 2002 GDC. ……… Somanath @ Jogi Gouda & Ors. ……… Appellants Versus State of Orissa ……… Respondent For Appellants : M/s J. Katikia and A. Mohanty. For Respondent : Miss S. Misra, Addl. Standing Counsel. ……… PRESENT : THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.K.PATEL -------------------------------------------------------------------------------------- Date of hearing & judgment : 24.12.2009 PRADIP MOHANTY, J. In this appeal from jail the appellants challenge the judgment and order dated 19.04.2003 passed by the learned 1st Addl. Sessions Judge, Berhampur in S.C. No.11 of 2002 (S.C. No.133 of 2002 GDC) convicting them under Section 302/34 IPC and Section 201/34 IPC and sentencing them to undergo rigorous imprisonment for life for the offence under Section 302/34 IPC. No separate sentence has been imposed for the offence under Section 201/34 IPC. 2. The case of the prosecution is that deceased Dhoba Paik had migrated to village Katapalli with his family. Accused-appellant no.1 Somanath suspected the deceased to have killed Jagili Gouda (husband of Somanath’s sister) by practicing sorcery (witch craft) and abused him in filthy language. On 11.04.2001 from 7.00 AM to 7.00 PM, a meeting was held near Manikeswari temple and the deceased was called to the meeting along with his sons. In the said meeting, the deceased and his sons denied the allegation and asked for confirmation. Accused-appellant no.2 Tabatia Dalai told that the deceased was a sorcerer and he was responsible for Jagili Gouda’s death. As per direction of appellant no.2, accused-appellant no.3 Kora Dalai tied the deceased with a long and thick rope keeping his both hands at the back. With legs upwards and head downwards the deceased was kept in a suspended position from a beam and was made to come up and down by pulling the other end of the rope. Accused-appellant no.7 Anurudha Naik (since dead), watcher of the village, made a fire. Accused-appellant no.4 Krushna Dalai brought an iron crow bar, accused- appellant no.1 Somanath an iron plough share and accused-appellant no.5 Kailash Dalai (since dead) an ‘L’ shape iron Dahana which were made hot in the fire. Accused-appellant no.6 Ujala Paik and others applied hot iron treatment on the deceased being callous to the supplications, beseechings, prostrations and promises of the deceased and his sons to leave the village. Such treatment continued till the body was motionless. At about 7.00 PM the body was untied and deceased was found dead. P.W.1 Bhagabata Paik, the informant, was forced by the accused persons to carry the dead body to the cremation ground and the body was cremated. The accused persons, who were village committee members and influential persons, watched the movement of the family of the deceased and threatened that if they reported the matter to the police similar treatment would be given to them. P.Ws.1 and 3, the sons of the deceased, came out of the village to attend the funeral rites of P.W.3’s wife’s brother in another village. From there, they came to Pattapur police station and reported the matter on the basis of which the case was registered on 08.05.2001. The investigation was 2 taken up by the police and after its closure charge-sheet was filed against the appellants. 3. The plea of the appellants is complete denial of the allegation. 4. In order to prove its case, prosecution examined as many as seven witnesses. Of them, P.Ws.1, 3 and 4 are sons and daughter of the deceased; P.W.2 is a relation of the deceased; P.W.5 is a co-villager who turned hostile and P.Ws.6 and 7 are Investigating Officers. Defence examined none. 5. The trial court on conclusion of the trial convicted the present appellants and two others (since dead) under Section 302 and 201 both read with sec.34 IPC with the finding that they have committed murder of the deceased by giving heated iron touch and also cremated the dead body to cause disappearance of evidence with an obvious intention to screen them from legal liabilities. 6. Mr. Katikia, learned counsel for the appellants assails the judgment of conviction on the following grounds: (i) There is unexplained delay of 28 days in lodging the FIR; (ii) Prosecution case rests on improbable version of the family members of the deceased; (iii) Non-examination of material witnesses who were present at the time of occurrence is fatal to the prosecution; (iv) No explanation has been given by the prosecution with regard to non-examination of the Gram Rakhi; (v) Prosecution has not proved seizure of weapon of offence including the rope which was seized in course of investigation; 3 (vi) There are major contradictions in the evidence of the prosecution witnesses; and (vii) The witnesses have tried to develop the prosecution story in Court inasmuch as although at the time of investigation the witnesses had stated that only one crow bar was used by the accused persons, in court they introduced other weapons of offence; 7. Miss Misra, learned Additional Standing Counsel vehemently contends that the evidence of P.Ws.1, 3 and 4 is very clear, cogent and consistent. They are none else than the sons and daughter of the deceased. They were throughout present at the time of occurrence. In fact, the villagers lynched the deceased. All the appellants are leaders of the village. There is no illegality committed by the trial court in convicting the present appellants under Sections 302/34 IPC and 201/34 IPC. In order to meet the argument advanced by the counsel for the appellants to convert the conviction to one under Section 304 Part-II, IPC, she specifically states that this case in no way comes under the purview of Section 304 Part-II, IPC. The intention to kill the deceased is very clear in the instant case and, therefore, the appellants are liable to be punished under Section 302 IPC. She further states that even at the worst the instant case will fall within clause ‘thirdly’ of Section 300 IPC. 8. Learned counsel for both the parties in support of their respective contentions cited the decisions in Ishwar Singh v. The State of Uttar Pradesh, AIR 1976 SC 2423; Thulia Kali v. The State of Tamil Nadu, 1972 SCC (Cri) 543; Dambarudhar Jain v. Kumari Rajeswari Khatriya and another, (1993) 6 OCR 102; Sana Santa v. State of Orissa, (2009) 42 OCR 368; State of Punjab v. Ajaib Singh and others, 2004 AIR SCW 2996; Silak Ram and another v. State of Haryana, (2008) 1 SCC (Cri) 58; Peddireddy Subbareddi and others v. State of 4 Andhra Pradesh, AIR 1991 SC 1356; Kula @ Kulamani @ Kulabandhu Suna v. State of Orissa, 2007 (SUPP-I) OLR 634; Raj Pal & others v. The State of Haryana, 2006 (II) OLR (SC) 118 and Morcha v. State of Rajasthan, AIR 1979 SC 80. 9. Perused the LCR and the decisions cited by the parties. The trial court based the conviction of the accused/appellants on the testimony of P.Ws.1, 3 and 4. P.W.1 is the informant and son of the deceased. He specifically stated in his evidence that on the day of occurrence a village committee was convened by appellant no.1 Somunath and appellant no.2 Tabatia through appellant no.7 Anurudha. Village people assembled in the village Danda near Manikeswari temple. P.W.1 himself, his brother Tina Paik (P.W.3), his father (deceased) and other villagers were present in that meeting. P.W.1, his brother and his father (deceased) told the villagers that the allegations should be confirmed by engaging a sorcerer of repute. But appellant no.2 Tabatia directed to tie the deceased saying that he was a sorcerer. Appellant no.3 Kora Dalai tied his father keeping both of his hands at his back. There was a Chamundia near the temple. The beams of Chamundia were there. Tying both of the hands of his father with a rope, the rest of the rope was thrown over the beam of the Chamundia and the other part of the rope was pulled and in the process his father was kept in a hanging position from the beam of the Chamundia. The other side of the rope was made to come up and down and as a result his father was made to come up and some times to come down. Appellant no.7 Anurudha (since dead) brought wood and made fire. Appellant no.4 Krushna Dalai brought a crow bar to the fire place, appellant no.1 Somanath Gouda @ Jogi Gouda brought a plough share, appellant no.5 Kailash Dalai (since dead) brought a Dhana (a small iron rod ‘L’ shaped with one end fixed to a wooden handle). They put all the above articles in the said fire and made them red hot. While his father was kept in a suspended position from the beam of the Chamundia, the accused persons applied hot iron on his body and they repeated the exercise one after another from 7.00 AM to 8.00 PM. P.W.1 further stated 5 that he and his brother were not allowed to move about even to drink a glass of water and when they wanted to urinate they were even escorted to the place of urination. Due to application of hot iron, the deceased died. After the death of his father, when they wanted to inform at the police station through the Choukidar the accused persons threatened them with dire consequences. The accused persons took the dead body to the cremation ground and he was forced to go along with them. They also threatened him that disclosure would bring same kind of treatment to him as his father was done with. The movement of their family was guarded by the accused persons and they were not allowed to move out. P.W.1 further deposed that after 27 days of the occurrence when he and his brother had been to village Baburiguda to attend the rituals of his brother’s wife’s brother, they went to Pattapur police station and narrated the occurrence which was reduced to writing by police. But in cross-examination he admitted that about 200 people of their village were present at the time of occurrence. About 150 people from nearby villages had come to see the occurrence. People of nearby villages raised voice of protest against such kind of treatment to his father but it went unheeded. At about 7.00 PM the body of his father was pulled down. At that time there was no life on the body of the deceased. He was made to carry the dead body to the cremation ground putting the dead body on his shoulder. In addition to the accused persons, he and 8 to 10 villagers were present in the cremation ground. P.W.3 is another son of the deceased and brother of P.W.1. He is also a witness to the occurrence. He corroborated the version of P.W.1 with regard to torture meted out to the deceased by the accused persons. He deposed that Appellant no.3 Kora Dalai brought a crow bar, appellant no.5 Kailash Dalai (since dead) brought ‘L’ shaped Dhana and appellant no.1 Somanath Gouda @ Jogi Gouda brought a plough share. Appellant no.7 Anurudha Naik (since dead) heated those articles and thereafter all the accused persons gave hot iron treatment on the body of the deceased. They raised protest and asked to make their father free. 6 According to this witness, meeting began at 7.00 A.M. His father was tied and suspended to the beam at about 8.00 AM. Application of hot iron treatment started from 11.00 AM. He also corroborated the statement of P.W.1 to the extent that when outsiders objected, appellant no.3 Kora Dalai threatened them with similar treatment. When he and his brother (P.W.1) raised voice, they were also threatened with same hot iron treatment. Appellant no.3 Kora Dalai extended the hot iron to them and asked them to give hot iron treatment to their father to which they refused. His father was released from the beam at about 2.00 PM. At about 5.00 or 6.00 PM the last breath of his father was snuffed out. Thereafter, he fainted there. When he regained his sense, the cremation of the dead body was over. He asked his brother P.W.1 how he accompanied the dead body for cremation and his brother replied that he did so under compulsion and threat. He accompanied P.W.1 to the police station for lodging FIR. He also proved the signature of his brother in the FIR (Ext.1). In cross-examination he admitted that people of nearby villages remained up to 2.00 or 3.00 PM and they also protested. P.W.4 is the daughter of the deceased and sister of P.Ws.1 and 3. Like P.Ws.1 and 2 she vividly described about the hot iron treatment given by the accused persons to her father. She has also stated that while hot iron treatment was going on, her father was crying and she along with her brothers was also crying. Being frightened she came back to her house and at about 7.00 PM she learnt about the death of her father. In cross-examination she admitted that when she was inside the house, her brother P.W.1 came to the house and informed them about the death of their father and all the accused persons were there near the dead body. She also admitted in cross-examination that her brother (P.W.1) was forced by the villagers to accompany the dead body. P.W.3 was lying unconscious and he was removed to their house by her Bhaujas (wives of P.W.1 and P.W.3). She further admitted in cross-examination that though she had not attended the meeting, she was seeing everything standing on the verandah of her maternal uncle from where the meeting place and 7 Manikeswari temple were visible and audible. She was watching the incident till 11.00 AM. After hearing about the death of her father from P.W.1, she went to the spot and there she saw all the accused persons near the dead body and all carried the dead body to the cremation ground. All the accused persons forced her brother (P.W.1) to accompany them. 10. The evidence of P.W.3 gets corroboration from P.W.2, who stated in his evidence that P.W.3 had come to village Guburiguda to attend the funeral rites of his wife’s brother. On being questioned the reason for his being tonsured, he said that his father died about 14 or 15 days before. When he was asked why he did not inform the relations, in reply he said that his father was killed suspecting him to be a sorcerer and he was threatened to be killed in case he would disclose the cause of death. He also stated that out of fear he did not inform the police about the occurrence. 11. It is true that P.Ws.1, 3 and 4 are sons and daughter of the deceased. But the Supreme Court in Darya Singh and others v. State of Punjab, AIR 1965 SC 328 held that on the ground of close relationship, the evidence of related witnesses cannot be thrown out. In a plethora of decisions it has also been held that in a case of murder, when witnesses are close relations of the deceased, evidence of such witnesses shall be subjected to close scrutiny but it cannot be discarded on the ground of relationship. With the above touch stone, this Court scrutinized the evidence of P.Ws1, 3 and 4. They have categorically stated the specific role played by each of the accused persons. There is no infirmity in the evidence of P.Ws.1, 3 and 4 with regard to assault. The occurrence had taken place in front of these witnesses. There is no material before this Court to dispute presence of these three witnesses. These witnesses corroborate each other and the F.I.R. version. In view of the above, this Court opines that P.Ws.1, 3 and 4 are reliable and trustworthy witnesses and their evidence cannot be brushed aside on the ground of relationship. 12. On careful scrutiny of the evidence of the above eye witnesses, it is manifest that the deceased was charged for sorcery for 8 which a meeting was convened in the village. In presence of the villagers the deceased was tied by appellant no.3 Kora Dalai as per direction of appellant no.2 Tabatia Dalai near Manikeswari temple with a long and thick rope keeping both of his hands at his back. He was kept in a suspended position from the beam of a Chamundia and was made to come up and down by pulling the other end of the rope. Hot iron treatment was applied to the deceased by the appellants as a result of which, he breathed his last in the evening. The appellants forced P.W.1 to accompany them for cremation of the dead body and threatened him not to disclose to any body. From the above evidence, it is clear and cogent that the accused persons are the real assailants and they caused death of the deceased. 13. Learned counsel for the appellants contended that there was delay in lodging F.I.R. and no satisfactory explanation was given by the prosecution for such delay. Admittedly, the matter was reported to the police on 08.05.2001 whereas the occurrence had taken place on 11.04.2001. P.W.1 in his evidence has specifically stated that after cremation of the dead body he was threatened by the accused persons not to disclose the incident anywhere or in the police station and that the disclosure would bring same kind of treatment to him as his father was done with. He has also stated that the movement of his family was guarded by the accused-appellants and they were not allowed to move out. P.W.3 in his evidence has also stated that they were restrained by the accused-appellants. P.Ws.1 and 3 have further stated that the threat was given by the members of the village committee, who were leaders of the village. In the F.I.R. itself the informant (P.W.1) has explained the delay. From the evidence of P.Ws.1 and 3 coupled with the FIR, it can be irresistibly concluded that delay in filing the FIR has been explained properly. That apart, there is no hard-and-fast rule that delay in filing FIR in each and every case is fatal and on account of such delay the prosecution version should be discarded. It is also the settled principle of law that delay in lodging FIR by itself would not be sufficient to discard the 9 prosecution version unless it is unexplained and such delay is coupled with the likelihood of concoction of evidence. 14. In the case at hand, the accused-appellants are leaders of the village and at the instance of the village committee the entire incident took place. Therefore, although a number of villagers were present at the scene of occurrence none of them came forward to give evidence against the village committee. So non-examination of independent witnesses cannot be fatal to the prosecution. Similar is the situation in case of the Grama Rakhi. He might not have dared to come to the Court to depose against the accused-appellants. As regards contradictions, this Court does not find any material contradiction to disbelieve the prosecution case. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. The minor contradictions appearing in the evidence of the prosecution witnesses are bound to occur due to efflux of time and that cannot affect veracity of the prosecution evidence. P.W.1 admitted in his cross- examination that M.Os.I, II and III were brought by the accused persons. P.W.3 in his examination in chief specifically stated that accused Anirudh heated M.Os.I, II and III in the fire. No suggestion was given to the witnesses about introduction of any new weapon in Court. The I.O. was also not confronted with regard to introduction of any new weapon in Court. Therefore, the argument advanced by the learned counsel for the appellants with regard to introduction of weapon of offence in Court fails. It is the consistent case of the prosecution that crow bar was used as weapon of offence. On analyzing the material facts and the evidence on record, this Court comes to the conclusion that the accused- appellants are authors of the crime. 15. Now, the question is whether the act committed by the appellants was culpable homicide amounting to murder or not amounting to murder. In the instant case, assault was done not with an intention of causing bodily injury to the deceased to cause death and there is no material that the bodily injury intended to be inflicted is sufficient in 10 ordinary course of nature for causing death. There is nothing on record to suggest that the accused persons had any intention to kill the deceased. There is also no material to show that the act was done with the knowledge that it was likely to cause death or cause such bodily injury as was likely to cause death. There is no evidence, either oral or documentary, that the accused-appellants had caused any injury to any vital part of the body of the deceased. Regard being had to the contentions of both the parties and taking note of the fact situation of this case that accused-appellants had no intention to kill the deceased, this Court opines that present is a clear case under Sections 304, Part-II and 201 both read with Section 34 of the IPC. Therefore, the conviction of the appellants under Section 302/34, IPC is converted to Section 304-Part-II/34, IPC and that of Section 201/34, IPC is maintained. The appellants are sentenced to undergo imprisonment for eight years on both counts. It is stated at the Bar that the appellants have already remained in custody for more than eight years. If that be so, the appellants be set at liberty forthwith, if their detention is not required in connection with any other case. 16. In the result, the Jail Criminal Appeal is allowed in part. ………………………… Pradip Mohanty,J. B.K.PATEL, J. I agree. ……………………….. B.K.Patel, J. Orissa High Court, Cuttack Dated 24th December, 2009/G.D.Samal/Routray 11