Dasa ' Dasamant Majhi and Another vs The State

N.K. Das, J.—This appeal has been preferred by the two Appellants who have been convicted under Sections 302/34 Indian Penal Code and each of them has been sentenced to R.I. for life for committing the murder of Sankhi Bewa on 5-1-1972 at about 8 p.m. in village Tulsibani under Rairangpur P.S. in the district of Mayurbhanj.

The prosecution case runs thus: The two accused persons are the husband''s brother''s sons of the deceased. Previously the accused persons had their house adjacent to the house of p.w. 1. But some years back they abandoned that house and shifted to village Hatnabeda and settled down there. It is alleged that while the accused persons were living in the house adjacent to that of p.w. 1, the brother of Appellant Ramai and wife and children of Appellant Dasmat died. Then they lost one buffalo. They consulted one sorcerer who informed that one woman was causing witchcraft. They suspected that the deceased was practising witchcraft. On the evening of the occurrence at about 8 p.m. the deceased, p.w. 1 and his wife were taking meals. While the deceased went to the kitchen to bring a raw tomato she was shot by an arrow which pierced on her trunk on the right side and she immediately raised an alarm giving out the names of the two Appellants and called her son. Some of the villagers also assembled there and the deceased disclosed the names of these two Appellants as assailants. Next morning she was being taken to the hospital and she expired on the way. Then a report was lodged at the Rairangpur P.S. and after arrest the Appellant Ramai led the I.O. (p.w. 8) to the house of Chutia Majhi and gave recovery of a bow. The plea of the Appellants is a complete denial of the occurrence.

The doctor (p.w. 5) conducted the post mortem examination on the dead body and found one eliptical incised looking wound on the right side of the chest 4" lateral to the mid line. The size was 11/2" � 1/2" � 3/4" and it was situated in the space between the 8th and 9th ribs. On dissection, she found the following internal injuries:

(i) The external injury could be traced from the external chest wall to the abdomen.

(ii) There were haemorrhagic patches on the tissues underneath the skin.

(iii) The stomach was punctured at its lesser curvature.

She found that an iron head of an arrow was in the lumen of the stomach. The injuries were found to be antemortem in nature and death was due to shock and hemorrhage. In the opinion of the doctor the injuries were sufficient in the ordinary course of nature to cause death. No other circumstances has been brought on record to discard this evidence. Accordingly, we hold that death was homicidal.

The prosecution relies on:

(a) dying declaration of the deceased;

(b) the Evidence of p w. 2 to the effect that she saw the Appellants running away immediately after the occurrence;

(c) movement of the Appellants in the railway station in a suspicious manner when they were arrested; and

(d) previous grudge of the Appellants against the deceased.

From the evidence on record it appears that p.ws. 1 and 2 are the only witnesses about the dying declaration and the other witnesses p.ws. 4 and 6 have turned hostile. According to p.ws. 1 and 2 they along with the deceased were taking their meals when the deceased went towards the kitchen to bring tomato. Immediately she raised an alarm that she was shot by an arrow by the Appellants and called the son for help. Both p.ws. 1 and 2 rushed to the place and found an arrow imbedded on the chest of the mother. P.w. 2 says that she saw that the Appellants were running away at that time. Then p.w. 1 called the villagers before whom the deceased also disclosed that the Appellants were the assailants.

The other witnesses to dying declaration, are p.ws. 4 and 6. But they turned hostile. It appears that they both have heard nothing from the deceased. As such no reliance can be placed on the evidence of those witnesses. P.ws. 1 and 2 are the only witnesses. P.w. 1 is the son and p.w. 2 is the daughter of the deceased. Admittedly there was long standing ill feeling between the Appellants who were brother''s sons of the husband of the deceased. The Appellants had left the village and had shifted to another village about 2 furlongs away and are staying there. An attempt has been made by the prosecution to show that the deceased was practising witchcraft on the brother of Appellant Ramal, wife, children and buffalo of the Appellant Dasmat and that is why they shifted to another place.

As regards this previous history the prosecution case is that the Appellants and p.w. 1 went to a sorcerer about a year before the occurrence III order to know who was practising witchcraft. The sorcerer on the first occasion could not say anything and thereafter said that it was an old woman who was practising this. A panchayat was held in the village but it could not come to any decision because it could not doubt any body. The prosecution has tried to prove enmity between the Appellants and the deceased. But none has been examined on this point even though It is admitted by the prosecution that they are alive. The prosecution relied only on evidence of p.ws. 1 and 2 in this connection. The death of the brother of Appellant Ramai and wife and children of Appellant Dasmat took place more than one year before the date of occurrence. There is no immediate or recent incident for the Appellants to take recourse to such drastic action. Of course, motive is not considered as an important factor, if the evidence of eye witnesses are accepted. If the case depends upon circumstantial evidence, absence of motive itself becomes a relevant factor in the chain of circumstances for commission of offence. In the instantcase there are no eye witnesses. The prosecution has based its case only on the evidence of p.ws. 1 and 2 who have admittedly strained relationship against the Appellants. Strained relationship can be an important issue for making a false charge against a ''person. The evidence adduced by the prosecution does not establish the immediate cause for murder as well as the story presented by the prosecution about suspicion of Appellants that the deceased was practising witchcraft is not acceptable. Therefore in the instant case though attempt has been made to establish existence of motive, the prosecution has failed to show any immediate cause for the murder by the Appellants.

A truthful and reliable dying declaration may form the sale basis of conviction, even though it is not corroborated. The declaration should be subjected to a close scrutiny for its reliability because it was made in the absence of the accused persons, who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased''s version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. See Thurukanni Pompiah and Another Vs. State of Mysore, , State v. Hadibandhn Mati 39 (1973) C.L.T. 619.

It has also been held in Lallubhai Devchand Shah and Others Vs. The State of Gujarat,

A dying declaration must be closely scrutinised as to its truth-fulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, bearing in mind, on the other hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent persons falsely.

According to the principles laid down above, first of all the Court has to scrutinise the evidence as to the dying declaration in order to be satisfied about its truthfulness. The evidence of p.ws. 1 and 2 is to be carefully scrutinised in order to find out if it is reliable. P.w. 2 has developed a case during the trial which she had not stated before the police. She states in Court that she saw the Appellants running away. But before the police she did not at all state this fact. An attempt has been made by the prosecution that a lantern was burning and there was also moon light. Curiously enough the I.O. has not seized any lantern and he could not assign any person why he has not seized the lantern. There is no evidence to show at what distance lantern was burning so that it was possible for the deceased to see and identify the assailants or that p.w. 2 could have seen them. The lantern in the particular case has a great bearing on the evidence as to the identity of the assailants. This lantern story is thus shrouded in mistry. 5-1-1972 which is the date of occurrence is 5th day of the dark fortnight. There cannot be any moon light at the time of occurrence. Thus, the prosecution case that there was sufficient light or that there was any light by which the assailants could have been identified cannot be accepted as true.

P.w. 4 is the ward member of the Gram Panchayat and p.w. 6 is a co-villager. According to p.w. 1 these two witnesses came immediately after the occurrence. It is also stated by p.w. 1 that the deceased disclosed before them that the Appellants were assailants. But these'' two witnesses do not support the prosecution case and they were declared hostile. From the evidence it appears that there were also other persons present. But none of them has been examined. P.ws. 1 and 2 being inimically disposed against the Appellants, in the circumstances of this case, corroboration is necessary inasmuch as their evidence cannot be said to be above suspicion. P.w. 2 has gone to the length of saying that she saw the Appellants running away and we have already held that this statement cannot be accepted. This is clear indication of her attempt to rope in the two Appellants. The evidence that a lantern was burning and that there was moon light cannot be accepted. There is also evidence on record to show that the walls of the house of the Appellants adjacent to that of the deceased were upto chest height without any thatch and there was a fence between the two houses. The evidence of p.ws. 1 and 2 is to the effect that the arrow shot came from the side of the house of the Appellants. Existence of wall upto chest height also improbabilises that the deceased could have seen the assailants inasmuch as the arrow shot, according to the prosecution, came from the distance of 15 to 20 cubits. The trial Court relying on the spot map (Ex. 6) has come to the conclusion that the location of different rooms in the houses of p.w. 1 and the place where the deceased fell, rules out the possibility of any obstruction between the place where the deceased stood and the place from where the arrow could possibly be shot at her are not of any importance.

The spot map is prepared by the S.I. on the basis of the statement made before him by the witnesses during the course of investigation and showing the place where deceased was hit and also the place where the witnesses were at the time d incident. It would not be admissible in evidence as it is hit by Section 162, Code of Criminal Procedure See Tori Singh Vs. The State of Uttar Pradesh, . The trial Court has fallen into error in considering the map in arriving at the conclusion of the possibility of the deceased being hit from a place as alleged by the prosecution.

It will thus appear that the prosecution has not been able to establish that the deceased could have seen or identified the assailants. The only two witnesses on which the prosecution bases its entire case have admittedly got ill feeling against the Appellants. The prosecution has also failed to establish the story of witchcraft to be the cause of murder. The prosecution has failed to establish that immediately after the : occurrence the villagers came to the spot being called by p.w. 1 and the deceased disclosed the names of Appellants as the assailants. P.w. 3, though declared hostile has stated that when he asked p.w. 1 as to who are the assailants the latter was not able to name any person. It is not a case where it cannot be possible for any body else besides the inmates of the house to be present at the time. But materials on record show that other persons were present immediately after the occurrence and a dying declaration was made before them. Witnesses examined to that effect are not supporting the prosecution case and other persons present have not been examined by the prosecution. Therefore, it cannot be said that the evidence of p.ws. 1 and 2 is free from blemish and is thus not reliable evidence to establish that the dying declaration can be said to be true. P.ws. 1 and 2 have strained feeling against the Appellants and they are trying to implicate these two persons.

Considering all the surrounding circumstances and scrutising the evidence we hold that the evidence of p.ws. 1 and 2 does hot establish beyond doubt that the dying declaration was true. Therefore, we hold that the dying declaration cannot be taken as the sole basis for conviction. Besides the statements of p.ws. 1 and 2 there is no other corroborative evidence.

As the dying declaration has not been accepted the other circumstance relied on by the prosecution that the Appellants were found moving suspiciously at the Railway station when they were arrested loses its importance and it cannot have any bearing on implicating the Appellants with the crime.

In view of the aforesaid circumstances we hold that the prosecution has failed to prove beyond reasonable doubt that the Appellants are, in fact, the murderers.

In the result, the appeal is allowed and the conviction and sentence of the Court below are set aside and the Appellants be set at liberty forthwith.

P.K. Mohanti, J.

I agree.