Case: State Of Orissa Vs. Babajli Charan Mohanty

2. Five persons including respondents 1 and 2 herein stood trial before the court of Sessions, Balasore, for intentionally causing the death of one Santosh Kumar Mohanty on the night of 14th March, 1988. The two respondents were charged and convicted under Section 302 IPC. They are the father and elder brother of the deceased who was serving in Indian army at Dehradun and who came to his native place to take his wife with him. The other accused are the second wife of the accused Babaji Charan Mohanty and his son and daughter. The wife of deceased by name Manjulata Mohanty figures as informant and PW1 in this case. She married the deceased about a year earlier.3. The accused Nos. 3 to 5 who were charged under Section 302 read with 34 IPC were acquitted by the learned Sessions Judge On. appeal preferred by accused 1 and 2 (respondents herein), the High Court set aside the conviction and sentence and acquitted them of the charge of murder. The High Court did not consider it safe to rely on the evidence of PW1the wife of the deceased. Against this judgment of the High Court, the State of Orissa has preferred the present appeals.4. The prosecution case may be narrated briefly. At about 9.30 p.m. in the night of 14th March, 1988, the deceased and his brother Mayadhartook their meal together at their house and thereafter the deceased went to his bed room. The first accused Babaji and his sonhad their food in the kitchen room where the ladies including PW1 started taking their meal thereafter. At that time PW1 heard alarming cries from her deceased husband to the effect "I am dying, Mayadhar what I have done to you and why do you assault me!". When PW1 tried to go out of the kitchen towards the bed room where her husband was shouting, she found the kitchen door chained from outside. While she was shouting and imploring others to open the door, the accused persons 4 and 5 (second wife of the 1st accused and his daughter) gagged her month by placing their hands on her face firmly. However, with some difficulty, she could unchain the door by reaching it with her hands through the gap. She found that the backyard door abutting the bed room was closed from inside. She then started shouting near the window of the bed room. Again, the daughter ofcame there and tried to close her mouth and asked her not to shout. She then came to the Bari door (backyard door) and found the same opened. There, she saw her husband lying on the floor with multiple bleeding injuries and the first accused assaulting him with a club (wooden Gada) and the second accused assaulting him with a sword. The third accused was focusing the torch light towards him as the electric lights were dim on account of low voltage. She heard the accused persons 1 and 2 saying (sala dead) and saw them going towards, the front side of the house. the victim asked for water which she brought and asked her to call the villagers as they had threatened to burn him alive. She then dragged her husband to the verandah on the back side of the house. Thereafter, she proceeded to the house of Krishna Das (PW5) who is the immediate neighbour. When she was coming back towards her house,threatened to assault her also. As PW1 was crying and shouting, accused 1 and 2 tried to put her inside the kitchen in the first instance and thereafter inside and the bed room and tried to close the door from outside. With some difficulty she came out of the room and shouted for help. The two accused threatened her to kill if she did not keep quiet. On hearing her shouts, the village servant by name Jena (not examined) and one other personPW3), came to their house and then some other villagers also gathered. A truck was passing through the road in front of their house at that time. PW1 accompanied by village servant and PW3 immediately went to the police station by the truck. There she made an oral report at about 11.30 p.m. narrating the entire incident and the same was reduced to writing by the Police Officer Incharge (PW13) and the same was treated as FIR. In the meantime, the accused (respondents) left the house. Other villagers took the deceased who had sustained multiple injuries and fracture of both legs to the nearby primary health center; but, he succumbed to the injuries and died a few minutes beforePW13 took up investigation and came to the village at about 3 A.M. By that time thewere found absent. He seized some blood stained clothes and articles, held the inquest and sent the dead body for post mortem. Thewas conducted by PW11 the next day. He could not trace the two accused persons or the weapons used in the offence. However, on 17.6.1988, both the accused surrendered in the court of Judicial Magistrate.5. TheNo.1 who examined himself as DW1 had taken the plea of alibi. He stated that he went to a place known as Keonjhar and remained there on the fateful night and on the way back to his house, he learnt about the death of his son and the complaint lodged by PW1 against them. Out of fear, he did not go to the village. He stated that there was no strained relationship between him and his deceased son and that the witnesses bore grudge against him on account of certain past events and that PW1 and his deceased son were frequently quarrelling. He alleged that PW1 was receiving some love letters from one person and his son was not happy with her. The second accused also took the plea of alibi by taking the stand that he was at Barpada Engineering School on the day of the incident and he was afraid to come to the village having heard about the complaint lodged against him. The trial Court disbelieved the plea of alibi. However, the High Court observed that the plea is perhaps not false".6. PW11, who conducted autopsy on the dead body on the afternoon of 16.3.1988, found eight external injuries and notable among them were, two incised injuries over the right parietal region, one of them being of the size of 3 x 2 x 1/2 cm. One incised injury over the left fore arm with fracture ofbones and two lacerated injuries over the right leg and left leg and thigh and a fracture on both the upper ends of the legs. The internal injuries found were fracture of right parietal bone, Haematoma on the right parietal region, fracture of the right humerus and congestion of the brain membranes.7. PW 12, who first received the deceased in an injured condition found, the he was in a state of unconsciousness and was having multiple injuries all over his body with profuse hemorrhage and shock. He was in a gasping condition. He also found various injuries on his person, which are more or less of the same description as given by PW11.8. Both, PWs. 11 and 12 stated that injuries were ante mortem in nature and they could be caused by a hard and blunt weapon like wooden club and a sharp cutting weapon like sword. The head injuries were sufficient in the ordinary course of nature to cause death. PWs 2, 3, 4 and 5 categorically stated that when they came to the house of accused in the night on hearing the cries of PW1, they found the deceased lying in the house with multiple bleeding injuries. On the basis of the evidence on record, there can be no doubt that the deceased Santosh Mohanty was murdered on the night of 14th March, 1988 at his family house. The presence of PW1 in the house where the murder took place cannot also be doubted.9. The following factors were relied upon by the High Court to discredit the prosecution evidence especially that of PW1the wife of the deceasedThe motive is not satisfactorily proved. According to PW1 the second accused Mayadhar behaved properly with her and her husband and accused Nos. 3 to 5 were also in good terms with them. The second accused and the deceased took food a few minutes before the incident. It is unlikely that soon thereafter Mayadhar (accused No.2) together with his father would have perpetrated the ghastly act of killing his own brother. The evidence of PW1 that on two occasions when she went to Cuttack in the company of herhe misbehaved with her and tried to sexually assault her and when this fact was brought to the notice of her husband when he came to the village on 3.2.1988 her husband objected to his conduct and even placed the matter before the village panchayat cannot be believed. It is incredible that she had gone to Cuttack for the second time in the company of herif in fact there was indecent behaviour on his part a few days earlier. Moreover, it is improbable that the first accused would have thought of killing his own son by taking the help of his other son even if the deceased had quarreled with him and/ or condemned his behaviour.2) PW1s version of the incident is doubtful for more than one reason:(a) If the version of PW1 that she protested and raised hue and cry is true, she would have been assaulted, but, there is no evidence to that effect;(b) It does not appear probable when the husband was struggling for life with multiple injuries, PW1 would rush to the police station about 10 kms. away instead of attending on her husband and give an exhaustive report.(c) PW1 does not claim to have narrated the incident to the Gramarakshi or PW3 on the way to the police station.(d) In the face of her evidence that the second accused Mayadhar was in good terms with his deceased brother and they had meal together a few minutes before the occurrence, it becomes difficult to believe PW1s version that her husband was attacked by Mayadhar soon after the meals.(e) As against the statement of PW1 that(Mayadhar) inflicted injuries by means of sword on several parts of the body, medical evidence reveals that there were only two incised injuries.(f) Though PW1 deposed that she dragged the deceased from the bed room to the verandah of the passage room, no blood was found on the verandah and the intervening space. There is also no evidence of her (PW1) clothes being stained with blood.(g) The prosecution has not explained as to how the injured was in the verandah which lies beyond the passage room.(h) There is no evidence to show that the two accused were seen in the house or in the village in that night.(i) PW1s version that on the two occasions when her) accompanied her to the examination center, he tried to sexually assault her is not believable.(3) Sushila, the mother of the deceased, who is supposed to have seen the occurrence and Kangali Jena, the Gramrakshi have not been examined, though they are material witnesses.(4) The plea of accused No.1 who examined himself as DW1 and the second accused that they were not at the house on the right when the incident took place is perhaps not false.(5) PW5 who is the next door neighbour does not appear to be a truthful witness and at any rate his evidence does not conform to PW1s evidence that he was called by her and that when he was coming to the house of the accused, he was threatened by the two accused.(6) PW3 who according to the prosecution went to the house of the accused in the company of Gramrakshi after being informed by PW4 and hearing of the cries of PW1 to the effect that heraw were killing her husband, does not claim to have seen either accused No.1 or 2 in the house or asked any other inmates as to how the deceased was injured.

Reasoning: 17. The above facts and circumstances would give rise to a reasonable doubt whether the incident had taken place in the manner narrated byAdded to this, the conduct ofin implicating all the family members imputing them certain overt acts which were found to be unbelievable by the trial Court would cast a serious doubt on the reliability ofevidence. She went to the police station leaving the victim who was unconscious but still alive and reported against all the family members en bloc excepting the mother of the deceased who is said to be mentally unsound. Her vindictiveness and tendency to implicate innocent persons as well is apparent from this conduct. In these circumstances, if the High Court had taken the view that it is not safe to convict the accused on the basis of testimony ofthe High Court cannot be faulted for reaching this conclusion though the High Court failed to address itself to certain crucial aspects of evidence and gave undue importance to certain inconsequential matters. It is true that the conduct of accused persons after the incident had taken place is very unnatural and creates strong suspicion against them; but, that by itself is not sufficient to convict the accused, especially when no strong motive to put an end to the life of son/brother is made out. We are, therefore, not inclined to interfere with the verdict of acquittal rendered by the High Court though the reasoning of the High Court is unsatisfactory in someis difficult to believe the version ofPW1 that shehad seen the two accused attacking her husband. Firstly, in view of what is noticed above, there would have been considerable time gap between the point of hearing the cries of her husband and the point of time when she could gain access to the scene of occurrence. By that time, in all probability, the attack would have been over. The assailants would not have leisurely carried out the attack, especially in the midst of commotion going on in the house. Secondly, even after hearing the shouts ofand sensing her efforts to draw the attention ofthe accused would not have remained there still assaulting the victim, taking the risk of being sighted by5. This apart of the story also seems to be quite artificial and highly improbable. It is difficult to believe that the two accused having perpetrated a ghastly crime and having got the impression that the victim was dead could still remain there to launch another attack in spite of the shouts and cries ofeven after knowing fully well thatwent out to call the neighbours. Is it reasonably possible to believe that the accused would have allowed her to go out to inform the neighbours and in any case, will they wait tillreturns and then launch another attack on the person who was almost dead by that time? It will be equally difficult to believe that the accused remained in the house till Krushnadasapproached their house and threatened him with dire consequences if he came to the rescue of the deceased. Of course,who was treated hostile witness did not support the version ofBe that as it may, what is relevant to notice is that soon after the alleged confrontation with3 and another by name Kangali Jena (Gramrakshi) came there on hearing the shouts ofPW1. It isin the evidence ofthat he did not see either of the accused in the house. Either the accused were not at al there in the house or they would have left just beforeand another came to the house. But, it is not the version ofThere is yet another circumstance which costs some doubt on the prosecution case.stated that after the first attack she fed the victim with some water and then dragged him to the varandah on the back side of the house. Whether the assailants and other family members who were trying to forcefully silence P.W. 1 would have allowed her to drag and shift the body of the deceased is one aspect. If, in fact, he had been dragged, blood stains should have been found in the passage and verandah but nothing was found bythe I.O. No blood stains were found even on