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Judgment
Sashikanta Mishra, J.
The appellants faced trial in S.T. No. 12/237/94 in the Court of the learned Additional Sessions Judge, Kendrapara, for committing the murder of one Giridhari Pradhan and voluntarily causing grievous hurt to Giridhari Pradhan and Swarnalata Pradhan, in furtherance of their common intention. They were charged under Section 302/34 IPC. Additionally, appellants Nirakar Pradhan, Padmalochan Pradhan and Baikuntha Pradhan were charged under Sections 326/34 and 506/34 IPC. By judgment dated 24.04.1998, the trial Court convicted all the appellants under Section 302/34 IPC and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs.3,000/-, in default, to undergo RI for one year. The appellants Nirakar, Padmalochan and Baikuntha were further convicted under Sections 326/34 and 506/34 IPC and sentenced to undergo RI for five years and to pay a fine of Rs.1,000/- each, in default to undergo RI for one year, for the offence under Section 326/34 IPC and RI for one year for the offence under Section 506/34 IPC. All the sentences were directed to run concurrently. The trial Court further directed that, from the fine so imposed, a sum of Rs.6,000/- shall be paid to P.W.8 Swarnalata Pradhan, daughter of the deceased, as compensation.
It is pertinent to note that the appeal in respect of appellant No.1-Nirakar Pradhan, appellant No.2-Padmalochan Pradhan and appellant No.6-Banamali Pradhan has abated. Accordingly, consideration of the present appeal is confined to appellant No.3-Baikuntha Pradhan, appellant No.4-Hrushikesh Pradhan and appellant No.5-Laxmikanta Pradhan.
Prosecution case, briefly stated, is as follows.
On 22.08.1993, at about 7.00 A.M., the deceased Giridhari Pradhan was transplanting paddy seedlings in his agricultural land. At that time, Accused Baikuntha, being armed with a Farsa, dealt a blow on his head causing a bleeding injury. Accused Padmalochan assaulted him on his leg with a lathi, as a result of which he fell down. Nirakar thereafter assaulted him with a lathi on his back and hand and incited others to kill him, stating that the deceased used to go to the police station everyday and, if he was killed, he would no longer be able to do so. Banamali armed with a wooden plank, assaulted the deceased on his left hand, causing a fracture, and thereafter sat on his chest. Hrusikesh assaulted him on his legs with a lathi, while Laxmikanta assaulted him on his hands and back. When Swarnalata, daughter of the deceased, attempted to rescue her father, Baikuntha assaulted her on the head with a Farsa, causing bleeding injury, and Padmalochan assaulted her on the hand with a lathi, causing fracture. Nirakar also threatened to kill both Giridhari and Swarnalata. On hearing their cries, the villagers came to the spot, due to which the accused persons left the place. It is further stated that the injured Giridhari and Swarnalata were thereafter taken to the Rajkanika P.S, where Swarnalata lodged FIR. On the basis of the FIR, P.S. Case No.59 of 1993 was registered under Section 341/323/324/326/506/294/34/307 IPC. Soon thereafter, Giridhari succumbed to his injuries. Upon completion of investigation, charge sheet was submitted against Nirakar, Baikuntha and Padmalochan under Sections 341/323/324/326/506/294/34/307/302IPC. Subsequently, during trial, accused Banamali, Hrusikesh and Laxmikanta were impleaded as accused with the aid of Section 319 Cr.P.C.
The defence of the accused persons was of complete denial and false implication. Defence also stated that owing to land dispute, there was mutual assault between the deceased and accused Baikuntha and Padmalochan, in which the deceased assaulted the accused persons and caused injuries to them.
To prove its case, prosecution examined fifteen witnesses and exhibited eleven documents. That apart, prosecution also proved three material objects. Defence, on the other hand, exhibited six documents.
After analyzing the evidence on record, the trial Court held that the prosecution had established its case and the participation of all the accused persons in the occurrence beyond reasonable doubt. It relied on the evidence of PW-8 Swarnalata, the daughter of the deceased and an injured eyewitness, and found her testimony natural, consistent and corroborated by the medical evidence and the FIR. The evidence of PWs-4, 6, 7, 9 and 11 was also found to corroborate the prosecution case. It rejected the defence plea of mutual assault and false implication, as evidence adduced by defence did not establish the injuries sustained by the accused persons. It also held that the participation of all the accused persons in the assault and they being armed with weapons, the manner in which they jointly assaulted the deceased and the incitement to kill him established their common intention and therefore, convicted and sentenced them as stated hereinbefore.
Heard Mr. S.N. Mishra (4), learned Amicus Curiae for the Appellant; Ms. Anwesha Mishra, learned counsel for the informant appearing on behalf of Mr. D. Mohanty and Mr. D. Mohanty, learned Addl. Government Advocate for the State.
Mr. Mishra assails the impugned judgment of conviction on the following grounds.
Evidence of PW-8, being the daughter of the deceased and an interested witness, ought not to have been relied upon without independent corroboration.
ii) There are material omissions and contradictions in the evidence of the prosecution witnesses, particularly with regard to the specific overt acts attributed to Hrusikesh and Laxmikanta.
iii) The names and specific roles of the appellants were not disclosed by the witnesses before IO and their subsequent implication during trial creates serious doubt regarding their presence and participation.
iv) Though Prosecution has stated that Baikuntha used a Farsa but the weapon was never seized and the medical evidence does not corroborate the manner of assault.
The trial Court failed to properly appreciate the defence version of mutual assault.
vi) In the alternative, even accepting the prosecution case, the circumstances do not establish the requisite intention for murder and the conviction under Section 302 IPC deserves to be altered to one under Section 304 Part-I IPC.
Per contra, Mr. Mohanty would argue that the conviction is well founded. He argues that PW-8 is an injured eyewitness and her presence at the spot stands corroborated by medical evidence and the FIR. Her relationship with the deceased is no ground to discard her otherwise consistent testimony. The omissions and discrepancies relied by the defence are minor and do not affect the substratum of the prosecution case. He also argues that the evidence on record establishes the participation of the appellants and their common intention, which can be inferred from their conduct and the manner in which they jointly assaulted the deceased. As regards defence plea of mutual assault, he submits that it is unsupported by reliable evidence and was rightly rejected by the trial Court. Lastly, he submits that the nature and number of injuries sustained by the deceased, including the head injury, fractures and haemorrhage, clearly establish the offence under Section 302 IPC. The conviction, therefore, calls for no interference.
Ms. Mishra adopts the submissions of Mr. Mohanty and further submits that PW-8 being an injured eyewitness is a natural and reliable witness. Her presence at the place of occurrence is established by the injury sustained by her and the lodging of the FIR. She submits that only because she is the daughter of the deceased, her evidence cannot be discarded. According to her, the discrepancies and omissions relied by the appellants are minor and do not affect the core of the prosecution case. She further submits that the participation of the appellants and the common intention can be gathered from the manner in which the assault was carried out and, therefore, no interference with the judgment of conviction is warranted.
We have heard learned counsel for the parties and have taken note of the rival contentions. We have also perused the case record and the impugned judgment. The prosecution case rests principally on the evidence of PW- 8, the daughter of the deceased and the informant, who is also an injured witness. The prosecution also relies on evidence of PWs-4, 6, 7, 9 and 11 as witnesses to the occurrence. The medical evidence of PW-13 and the evidence of the IO have been relied on in support of the ocular version.
Before we proceed to independently examine the evidence, it would be apposite to refer to the settled principle that a conviction can be founded on the testimony of a solitary eyewitness if such evidence is found to be wholly reliable and inspires confidence. There is no rule of law requiring corroboration in every case. However, where the testimony of the sole eyewitness is subjected to challenge, the Court must scrutinise it with greater care and examine whether it is cogent, consistent and receives support from the surrounding circumstances and other evidence on record. Reference may be had in this regard to the case of Panchu @ Panchunath Pradhan and others v. State of Orissa1, Ramji Surjya Padvi v. State of Maharashtra2 and Amar Singh v. State (NCT of Delhi)3 wherein it has also been held that the quality of evidence and not its quantity, is the determinative factor. The Court must, therefore, examine whether the testimony bears a ring of truth, is consistent with the earlier version of the witness and the evidence of other witnesses, while distinguishing between minor discrepancies which do not affect the substratum of the prosecution case and material inconsistencies which create a reasonable doubt regarding the participation of the accused.
Coming to the case at hand, PW-8 stated that on hearing the shouts of Padmalochan and Nirakar, she proceeded towards the place of occurrence and saw Baikuntha assaulting her father on his head with a Farsa. She attributed specific overt acts to the other accused persons, including Hrusikesh and Laxmikanta. She further stated that when she intervened to rescue her father, Baikuntha assaulted her on the head with a Farsa and Padmalochan assaulted her with a lathi.
Her testimony cannot be discarded merely because she is the daughter of the deceased. Such relationship calls for careful scrutiny, but is not a ground for rejection. Her status as an injured eyewitness, coupled with the fact that she sustained injuries and lodged the FIR immediately thereafter, suggests her presence at the occurrence. However, being an injured eyewitness does not render every part of her testimony immune from scrutiny. Her evidence, particularly regarding the individual participation and specific overt acts attributed to each accused must be tested against the other reliable evidence on record.
The prosecution has cited PWs-4, 7, 9 and 11 as independent eyewitnesses. Their evidence, therefore, has considerable importance in testing the reliability of the version of PW-8 regarding the participation of Hrusikesh and Laxmikanta.
We shall now proceed to consider the evidence of PWs-4, 7, 9 and 11 independently.
From the overall appreciation of the statements of PWs-4, 7, 9 and 11 under Section 161 Cr.P.C. and the evidence before the Court, it is evident that the prosecution version, particularly regarding the presence and specific overt acts of Hrusikesh and Laxmikanta and the use of a Farsa by Baikunth are clear improvements from their statements made before IO. The consistent part of their statements, however, establishes that the occurrence arose out of an existing agricultural land dispute between the deceased, Padmalochan and Nirakar and a quarrel ensued between them and Baikuntha subsequently came to the spot carrying a Bahungi. The statements of PWs-4 and 11 further shows that the deceased and Padmalochan-Nirakar initially engaged in a mutual assault and Baikuntha intervened thereafter. More importantly, P.Ws-4, 7, 9 and 11 did not speak of the presence of Hrusikesh or Laxmikanta at the spot or attribute any overt act to them nor did they refer to any Farsa being used by Baikuntha before the IO. These omissions are not minor, as they relate to the presence and participation of these accused persons and the manner of assault subsequently deposed at trial, which, in our considered view is an improvement made in their version. The evidence of the IO, PW-14, also corroborates these omissions.
The evidence of PW-14 is important in this regard. The IO stated that PW-4 had not stated before him that Banamali, Hrusikesh and Laxmikanta were present at the spot. He further stated that PW-7 had not stated before him that these persons had surrounded Giridhari or assaulted him. Similarly, PW-9 had not stated before the him about the specific overt acts which he subsequently attributed to Hrusikesh and Laxmikanta before the trial Court. PW-11 too had not stated before him that Hrusikesh and Laxmikanta had assaulted the deceased in the manner subsequently narrated by him before the trial Court.
Another important piece of evidence is the statement of deceased Giridhari recorded by the IO before his death and marked Ext. E. He stated that on 22.08.1993 at about 7.00 A.M., while he was working in the paddy field with P.W.9, Nirakar and Padmalochan arrived with ploughing implements and bullocks, resulting in a quarrel, during which Nirakar, Padmalochan and Baikuntha assaulted him with lathis and a Bahungi. He also stated that his daughter was assaulted when she intervened. If defence Exhibit E is accepted as admissible under Section 32(1) of the Evidence Act, this statement is substantive evidence insofar as it relates to the cause of his death or the circumstances resulting in it. Significantly, while giving a specific account of the assailants, the deceased named Nirakar, Padmalochan and Baikuntha but did not mention Hrusikesh or Laxmikanta. Though such omission, by itself, cannot establish innocence, it is important when read with the absence of corroboration from PWs-4, 7, 9 and 11 regarding the presence or overt acts of Hrusikesh and Laxmikanta. The statement, however, supports Baikuntha's participation, while raising a reasonable doubt regarding the participation of Hrusikesh and Laxmikanta.
PW-6 has also been treated by the prosecution as an eyewitness. However, he was not examined by the IO under Section 161 Cr.P.C. and was witness to the inquest report. Therefore, his testimony cannot be tested with reference to Section 161 statement. Though non-examination under Section 161 Cr.P.C. does not render his testimony inadmissible, it assumes significance while assessing the weight to be attached to his evidence, particularly when it is relied as corroboration of the participation of Hrusikesh and Laxmikanta. On a careful examination of his testimony, we find that it does not provide clear and independent corroboration of the specific overt acts attributed to them so as to dispel the doubt arising from the other evidence.
The omissions in regards to Hrusikesh and Laxmikanta cannot, in the facts of the present case, be treated as mere omissions. Their presence itself is doubtful from the earliest versions of the witnesses. The prosecution seeks to attribute specific overt acts to them through the testimony of PW-8, but the same is not supported by the statements of the other ocular witnesses. It is a fact that PW-8, in the FIR, implicated Hrusikesh and Laxmikanta. Her status as an injured eyewitness undoubtedly provides support to her testimony and her evidence cannot be discarded merely because she is the daughter of the deceased. However, the fact that a witness is injured does not make her testimony immune from scrutiny. Where her testimony, so far as the complicity of particular accused persons is concerned stands materially apart from the earliest versions of the other witnesses and is not independently corroborated by the surrounding circumstances, the Court is required to scrutinize that part of her testimony with greater caution.
There is another circumstance which bears on the reliability of the prosecution version concerning Baikuntha's use of a Farsa. The prosecution has consistently sought to attribute the head injury to Giridhari and the injury to PW-8 to a Farsa blow by Baikuntha. However, no Farsa was recovered during investigation. PW-12 stated that he seized a Bahungi from the house of Baikuntha and PW-14 also proves such seizure but there is no recovery of the Farsa. The earliest statements of PWs-4, 7, 9 and 11 also do not refer to any Farsa and instead speak of Baikuntha holding a Bahungi. The medical evidence undoubtedly establishes that Giridhari sustained a lacerated wound on the head and multiple other injuries, but it does not identify the weapon by which any particular injury was caused. Thus, while the medical evidence establishes the assault and the resultant injuries, it does not state the necessary corroboration for the specific claim that Baikuntha used a Farsa.
This, however, does not mean that the entire testimony relating to Baikuntha is liable to be rejected. The consistent evidence establishes his presence at the spot and his participation in the occurrence. PWs-4 and 11 place Baikuntha at the spot and state that he came carrying a Bahungi. They further speak of an ensuing assault involving him and the deceased. PW-7 also places Baikuntha at the spot with a Bahungi. Thus, notwithstanding the inconsistency regarding the particular weapon used by Baikuntha, his presence and participation in the occurrence receive support from the evidence of more than one witness.
We are therefore unable to accept the prosecution case, to the extent it seeks to establish the presence and specific overt acts of Hrusikesh and Laxmikanta beyond reasonable doubt. In these circumstances, while the core of the occurrence and the participation of Baikuntha find support from the evidence, the subsequent attribution of specific overt acts to Hrusikesh and Laxmikanta remains doubtful, as their presence at the spot was not stated by any of the witnesses relied by the prosecution and held by the trial Court, except PW-8, who implicated Hrusikesh and Laxmikanta in the FIR. The evidence against them is thus not of such quality as would permit the Court to sustain their conviction. They are, consequently, entitled to the benefit of doubt.
However, the case of Baikuntha it is different. His presence at the spot as per the version of PWs-4, 7 and 11 is established. There was an existing agricultural land dispute between the deceased and Padmalochan and Nirakar. A quarrel arose in connection with ploughing, which developed into a mutual assault. Baikuntha thereafter arrived at the spot. His participation in the occurrence is established. The fact that the weapon attributed to him in the subsequent version was not recovered does not nullify his participation altogether. The Court is entitled to separate the reliable part of the prosecution evidence from that which is found doubtful.
The medical evidence also supports that assault had taken place. PW-3, the doctor who conducted the post-mortem examination, found a stitched lacerated wound over the head, multiple bruises, bleeding injuries, fracture of the right patella and extensive clotted blood. The cause of death was opined to be haemorrhage and shock resulting from multiple injuries, which were ante-mortem in nature. Thus, the death of Giridhari was undoubtedly homicidal. The medical evidence, however, does not establish the particular weapon used by Baikuntha or the individual attribution of each injury to a particular accused.
At the same time, the evidence does not establish beyond reasonable doubt that Baikuntha shared a pre-arranged common intention with the other accused persons to cause the death of the deceased. Section 34 IPC suggests prior meeting of minds, which may be inferred from the conduct of the participants and the circumstances of the case but such inference cannot be drawn only because several persons happened to participate in an occurrence. In the present case, the evidence of PWs-4 and 11 indicates that the occurrence started in a quarrel and mutual assault between Giridhari, Padmalochan and Nirakar and Baikuntha arrived thereafter. There is no reliable evidence of any prior concert between Baikuntha and the other accused persons to cause the death of Giridhari.
At the same time, the absence of common intention under Section 34 IPC does not exonerate Baikuntha from the consequences of his own acts. The evidence establishes that he voluntarily participated in the assault upon the deceased during the course of the quarrel. The circumstances in which he joined the occurrence, the nature of the assault and the injuries sustained by the deceased shows that his act was not accidental. The question, therefore is, whether the act attributable to Baikuntha, in the circumstances established by the prosecution, is murder under Section 300 IPC or culpable homicide not amounting to murder under Section 304 Part-II IPC.
The distinction assumes importance in the facts of the present case. The occurrence was not shown to be the result of a prior conspiracy or premeditated plan to kill the deceased. Rather, the evidence shows that the incident started due to an agricultural land dispute and a sudden quarrel, which developed into a mutual assault. Baikuntha arrived thereafter. The prosecution version of a Farsa attack is itself rendered doubtful by the absence of recovery of the weapon and by the fact that P.Ws.4, 7, 9 and 11 did not mention any Farsa in their statements before IO. The evidence also does not establish that Baikuntha intended to cause the particular injuries which ultimately resulted in the death of the deceased.
Nevertheless, the nature and seriousness of the assault cannot be ignored. The deceased suffered multiple ante-mortem injuries, including a head injury, extensive bruising, fracture of the patella and haemorrhage and shock resulting in death. Thus, while the prosecution has failed to establish the requisite common intention so as to make Baikuntha liable under Section 302/34 IPC, the circumstances proved against him disclose that he participated in the assault with knowledge that such act was likely to cause death. The case, therefore, falls within the ambit of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC.
We also find that the defence version of mutual assault cannot be accepted in its entirety so as to completely exonerate Baikuntha. The evidence does establish a mutual quarrel and indicates that Baikuntha himself sustained an injury during the incident. However, the prosecution evidence, establishes that he thereafter took part in the assault on the deceased. The fact that the occurrence had its origin in a mutual quarrel is relevant primarily for determining the nature of the offence and the absence of premeditation.
As regards the conviction under Section 326/34 IPC and Section 506/34 IPC, the same also cannot be sustained against Baikuntha in the absence of proof of common intention under Section 34 IPC. So far as the assault upon PW-8 is concerned, the prosecution version attributes a Farsa blow to Baikuntha, but, as already observed, the weapon was never recovered and the earliest statements of the ocular witnesses do not support the use of a Farsa. The medical evidence though establishing injury does not establish that the injury was caused by Baikuntha with a Farsa. Similarly, the allegation of criminal intimidation is primarily connected with the incitement attributed to Nirakar. In the absence of reliable evidence establishing the necessary ingredients against Baikuntha independently, the conviction under Sections 326/34 and 506/34 IPC cannot be sustained.
Thus, from a conspectus of the analysis of the evidence, reasoning of the trial Court and its findings, the contentions raised and the discussions made, we are of the considered view that the prosecution has established the homicidal death of Giridhari and the participation of Baikuntha in the occurrence but failed to prove the presence and participation of Hrusikesh and Laxmikanta beyond reasonable doubt. Their implication rests mainly on PW-8 and lacks corroboration from the other witnesses. They are, therefore, entitled to benefit of doubt. As regards Baikuntha, his participation is established by PWs-4, 7 and 11. The occurrence arose from an agricultural land dispute and sudden quarrel, without proof of premeditation or common intention. The use of a Farsa is also doubtful, particularly as it was not recovered and the earliest versions refer to a Bahungi. Accordingly, Section 34 IPC is not attracted. Nevertheless, Baikuntha's intentional participation in the assault attracts Section 304 Part-II IPC. His conviction under Sections 326/34 and 506/34 IPC also cannot be sustained for want of evidence.
In the result, the appeal is allowed in part. The impugned judgment of conviction dated 24.04.1998 passed by the Additional Sessions Judge, Kendrapara in S.T. No. 12/237/94 against appellant Nos.4-Hrusikesh Pradhan and 5-Laxmikanta Pradhan is hereby set aside. The appellants being on bail be discharged from their bail bonds. Insofar as appellant No.3-Baikuntha Pradhan is concerned, his conviction is modified to one under Sec 304 Part-II IPC.
Mr. Mishra submits that all the three appellants have already been incarcerated for more than 17 years. Therefore, interest of justice would be best served by sentencing Appellant No.3 Baikuntha Pradhan to RI for a term of 10 years with the period of detention already undergone by him being set off. Since the period already undergone is stated to be more than the sentence of ten years, appellant No.3-Baikuntha Pradhan shall also be set at liberty forthwith, if his detention is not required in connection with any other case.
We also place on record our appreciation for Mr. S.N. Mishra-4, for his able assistance to the Court as Amicus Curiae. We assess his professional fee at Rs.15,000/- to be paid by the Odisha State Legal Services Authority.
Manash Ranjan Pathak, J. I agree.