Full Judgment Text
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CASE NO.:
Appeal (crl.) 546 of 1995
PETITIONER:
State of Orissa
RESPONDENT:
Vs.
Babaji Charan Mohanty & Anr.
DATE OF JUDGMENT: 31/07/2003
BENCH:
S. RAJENDRA BABU & P. VENKATARAMA REDDI.
JUDGMENT:
J U D G M E N T
With
CRIMINAL APPEAL NO. â\200¦. OF 2003
(Arisiing out of SLP (Crl.) No. 3971 of 1995)
P.Venkatarama Reddi, J.
S.L.P. (Crl.) 3971 of 1995
Leave granted
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 PW 1 in this case. She married the
deceased about a year earlier.
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 PW 1 â\200\223 the wife of the deceased. Against this
judgment of the High Court, the State of Orissa has preferred the
present appeals.
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
Mayadhar (A-2) took their meal together at their house and thereafter
the deceased went to his bed room. The first accused Babaji and his
son (A-3) had their food in the kitchen room where the ladies
including PW 1 started taking their meal thereafter. At that time PW 1
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 PW 1 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 mouth by placing their hands
on her face firmly. However, with some difficulty, she could unchain
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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 of A-1 came 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 (PW 5) who
is the immediate neighbour. When she was coming back towards
her house, A-2 and A-3 threatened to assault her also. As PW 1 was
crying and shouting, accused 1 and 2 tried to put her inside the
kitchen in the first instance and thereafter inside 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 person â\200\223 PW 3,
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.
PW 1 accompanied by village servant and PW 3 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 (PW 13) 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 before mid-night. PW 13 took up investigation and came
to the village at about 3 A.M. By that time the accused â\200\223 respondents
were found absent. He seized some blood stained clothes and
articles, held the inquest and sent the dead body for post mortem.
The post-mortem was conducted by PW 11 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.
The accused â\200\223 respondent No.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 PW 1 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 PW 1
and his deceased son were frequently quarrelling. He alleged that
PW 1 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 Barapada 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".
PW 11, 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 ½ cm. One incised injury
over the left fore arm with fracture of fore-arm bones 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
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found were fracture of right parietal bone, Haematoma on the right
parietal region, fracture of the right humerus and congestion of the
brain membranes.
P.W. 12, who first received the deceased in an injured condition
found, that 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
PW 11.
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 PW 1,
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 PW 1
in the house where the murder took place cannot also be doubted.
The following factors were relied upon by the High Court to
discredit the prosecution evidence especially that of PW1 â\200\223 the wife
of the deceased:-
1. The 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 her
father-in--law he 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 her father-in-law if 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. PW1’s version of the incident is doubtful for more than one reason :
(a) If the version of PW 1 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, PW 1 would rush to the police
station about 10 kms. away instead of attending on her
husband and give an exhaustive report.
(c) PW 1 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 PW1’s version that her husband was attacked
by Mayadhar soon after the meals.
(e) As against the statement of PW 1 that A-2 (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 PW 1 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 (PW 1) clothes being stained with
blood.
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(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) PW1’s version that on the two occasions when her father-in-law
(A-1) 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 DW 1 and
the second accused that they were not at the house on the
night when the incident took place is perhaps not false.
(5) PW 5 who is the next door neighbour does not appear to be a
truthful witness and at any rate his evidence does not conform
to PW 1’s 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) PW 3 who according to the prosecution went to the house of
the accused in the company of Gramrakshi after being informed
by PW 4 and hearing the cries of PW 1 to the effect that her
father-in-law and brother-in-law 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.
The learned counsel appearing for the State persuasively
argued that the grounds on which the High Court acquitted the
accused are flimsy and the High Court was not justified in
characterising PW-1 as unreliable witness though her evidence is
corroborated by evidence of independent witnesses who came to the
spot immediately after the incident and the earliest version in the FIR.
Moreover, the High Court had failed to weigh the circumstances
staring at the accused. The learned counsel argued that the
absence of strong motive is immaterial and there were no good
grounds to reverse the well-considered judgment of the learned
Session Judge.
We have given our anxious consideration to the case in the
light of the points urged by the learned counsel for the State, keeping
in view the fact that we are dealing with a case of appeal against
acquittal. Whether the conclusion of the High Court is so perverse
and irrational as to justify inference is the crucial question. At first
blush, it would appear that the High Court entered on the verdict of
acquittal without considering the evidence in its entirety and gave
importance to certain irrelevant and inconsequential factors. There
can be no doubt that some of the reasons given by the High Court
are not such as to discredit the evidence of PW-1 who is the only
eyewitness in the case. At the same time, on carefully scanning her
evidence, we feel that the ultimate view of the High Court that it is
not safe to convict the accused on the basis of testimony of PW-1 is
not ill-founded. There are certain additional factors and reasons
which have led us to the conclusion that on the question of reliability
of evidence PW-1, two views are not ruled out and, therefore, there is
no perversity in the ultimate conclusion reached by the High Court.
PW-1 claims to have seen the two accused (her father-in-law
and brother-in-law) attacking the deceased twice at two different
places in the house. The sequence of events relating to the first
attack was narrated as follows:-
"At about 9.30 p.m. my deceased husband and his
brother accused Mayadhar took their food together in
Bari Bangala. Thereafter my husband went to the bed
room to sleep.
*
After some time myself, accused Manorama, accused
Saraswati and my mother-in-law Susila sat in the
kitchen and started taking our food. At that time I
heard an alarming shout from my husband as "I am
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dying, Mayadhar what have I done to you and why do
you assault me? When I wanted to come out from
the kitchen and go to the bed room where my
husband was shouting, I found the kitchen door
chained from outside. I also shouted to open the
door. At that time accused persons Monarama
Mohanty and Saraswati gagged my mouth by putting
their hand on it. They also asked me not to shout.
However with some difficulty I pushed my hand
through the door and unchained it. I came out. Then
I found that the Bari door of the Bari Bangala which
abuts the room where my husband was sleeping was
closed from inside. I went to the vacant space
between the kitchen block and the main block of the
building and shouted near the window on the eastern
side of the room. At that time accused Saraswati also
came there and tried to gag my mouth and asked me
not to shout. Just at that time a bridgegroom party
was proceeding on the road. When I made an effort
to call some of them, accused Saraswati also gagged
my mouth. Again when I came to our Bari door, I
found the same open. There I saw my deceased
husband lying on the floor with multiple bleeding
injuries and accused Babaji assaulting him with a
wooden Gada and accused Mayadhar was assaulting
him with a sword. Accused Natabar Mohanty was
focusing the torch light towards him.
*
When I intervened and asked them not to assault my
husband, accused persons Babaji and Mayadhar said
that "Sala died" and went away towards the Sadar
side of the house."
If the above version of P.W.1 is tested in the light of
probabilities and ordinary course of human conduct, it becomes
highly doubtful whether she had seen the two accused injuring her
husband with deadly weapons. The first sign of attack she got was
the alarm raised by her husband from the bed room which was not
too close to the kitchen where PW-1 was sitting. The bed-room door
was closed from inside, according to P.W.1. It is, therefore, difficult to
believe the version of PW-1 that she distinctly heard the voice of her
husband questioning Mayadhar as to why he was assaulting. At
best, she could have heard the cries of the deceased but not the
exact words said to have been uttered by the deceased. Then comes
the version of unchaining the door after resisting the onslaughts of
two ladies (accused 4 & 5) who, according to her, gagged her mouth
and commanded her not to shout. To wriggle out of the hold of the
two ladies and to unchain the door by inserting her hand through the
door gap is indeed a difficult task. Whether she could manage to
come out of the kitchen in those circumstances is a big question.
Assuming she did, it would have taken quite some time for her to go
out of the kitchen after much of struggle with the two ladies. Then
again, there were attempts by the 4th accused Saraswati to prevent
her from going to the bed room of her husband. As the door was
closed from inside, according to her, she could not gain entry into the
room but she began shouting. She even endeavoured to draw the
attention of the members of marriage party who were going along the
road. Even at that stage, accused No.4 is said to have closed her
mouth. Thereafter she found the door open and she claims to have
seen the two accused assaulting her husband with a wooden ’Gada’
and sword while the 3rd accused was focusing a torch light. After
seeing her, they left the victim and went towards the other side of the
house with the remark "Sala dead". It is difficult to believe the version
of PW-1 that she had seen the two accused attacking her husband.
Firstly, in view of what is noticed above, there would have been
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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 of PW-1 and
sensing her efforts to draw the attention of passers-by the accused
would not have remained there still assaulting the victim, taking the
risk of being sighted by PW-1 and others.
The attack for the second time has been narrated by her in the
following words:-
"I dragged him to the verandah of the Bari side house.
From there I proceeded to our Bari side towards the
house of Krushna Das. I called him. When Krushna
Das was coming towards our house, accused
persons Babaji and Mayadhar threatened him with
assault in case he came to the rescue of my
deceased husband. So I came to the place where my
husband was lying. Again I saw accused Babaji (my
father in law) assaulting my husband with a Gada and
accused Mayadhar assaulting him with a sword
(Khanda). I caught hold of the feet of my father-in-law
accused Babaji and requested him not to assault.
Thereafter accused Mayadhar dragged me and put
me inside the kitchen. Again I came to the place
where my husband was lying. Again accused Babaji
pushed me inside the bed room. When he was about
to close the door from outside I came out of the room
and again shouted for help. At that time accused
persons Babaji and Mayadhar threatened to kill me if I
did not keep quiet. On hearing my shouts, the
Gramarakhi Kangali Jena and Sitanath Dalei arrived
at the house."
This part 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 of PW-1 even after knowing fully well
that PW-1 went 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 till PW-1 returns
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 Krushnadas (PW-5) approached their
house and threatened him with dire consequences if he came to the
rescue of the deceased. Of course, PW-5 who was treated hostile
witness did not support the version of PW-1. Be that as it may, what
is relevant to notice is that soon after the alleged confrontation with
PW-5, PW-3 and another by name Kangali Jena (Gramrakshi) came
there on hearing the shouts of PW-1. It is in the evidence of PW-3
that he did not see either of the accused in the house. Either the
accused were not at all there in the house or they would have left just
before PW-3 and another came to the house. But, it is not the version
of PW-1 that they left by that time. If the accused wanted to leave the
house after the murderous attack, having regard to the ordinary
course of human conduct, they should have in all probability left soon
after the attack without being seen by anybody. Thus, any amount of
doubt crops up whether P.W.1 had seen the actual attack or she
acted on suspicion, maybe strong suspicion, about the involvement of
the accused-respondents.
There is yet another circumstance which casts some doubt on
the prosecution case. PW-1 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
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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 by PW-13, the
I.O. No blood stains were found even on PW-1’s dress.
The above facts and circumstances would give rise to a
reasonable doubt whether the incident had taken place in the manner
narrated by PW-1. Added to this, the conduct of PW-1 in 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 of PW-1’s evidence. 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 of PW-1, the 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 High Court is unsatisfactory in
some respects.
The appeals are, therefore, dismissed.
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