Jaya Munda (dead) vs State Of Orissa

Biswanath Rath, J

This Jail Criminal Appeal involves a challenge to the judgment and order of conviction passed by the learned Ad hoc Additional Sessions Judge, Sundargarh in Sessions Trial No.159/70 of 2003 convicting the accused persons, appellants herein sentencing them to undergo rigorous imprisonment for life.

Prosecution story as revealed from the Case Record is as follows :-

Deceased, Suratha Pandab while visiting the house of the present appellants asked Bijuli Munda, the widow-daughter-in-law of the appellants, for handia (an intoxicating drink), to which the appellants, who were also present there, protested. During altercation and exchange of words between the appellants and the deceased, the appellants and the deceased went to a nearby paddy field and assaulted him by means of bed-cot wooden roller and bamboo stick, as a result of which the deceased fell down on the ground and they left him there. While the Informant was sleeping at his house at about 11.30 P.M., Police Party in a Jeep along with Appellant No.1 (Accused, Jaya Munda) from the spot came to his house and informed the Informant, Lalit Pandab about the deceased (his brother) lying in a drunken stage. The Informant identified his deceased brother and kept him in his house anticipating his recovery from the drunken stage. On the next day morning of the occurrence, when deceased did not get back his sense, the Informant, brother of the deceased got him admitted to the District Headquarters Hospital, Sundagarh and later heard about the death of his brother, Suratha Pandab in the Hospital. After the death, the nephew and son-in-law of the Informant proceeded to the house of accused-appellant No.1 where he made extra-judicial confession of killing the deceased, as he tried to outrage the modesty of his wife (accused-appellant No.2). The Informant then lodged an F.I.R. at the Police Station. The Sub-Inspector of Police conducted investigation, conducted inquest over the dead body, sent the dead body for post mortem examination and examined the witnesses. Thereafter, the Sub-Inspector of Police submitted the charge-sheet resulting in trial.

Defence plea was one that of complete denial.

To establish the case, Prosecution examined P.Ws.1 to 12. Defence examined none. Prosecution exhibited documents marked as Ext.1 to Ext.5/3. Defence exhibited no document. Similarly Prosecution also marked some Material Objects as M.O.-I & M.O.-1(A). There is no Material Object marked by the Defence.

It be indicated that both the appellants moved this Court for Bail, vide Misc. Case No.78 of 2009 and by order dated 25.8.2009, this Court allowing the said Misc. Case released both the appellants on bail on executing bond of Rs.25,000/- each with two local sureties each for the like amount to the satisfaction of the learned Ad hoc Additional District & Sessions Judge, Sundargarh in S.T.No.159/70 of 2003 (Sundargarh Town P.S. Case No.47/2002 corresponding to G.R.Case No.307/2002.

In course of hearing before a coordinate Bench, the fact of death of appellant No.1, Jaya Munda during pendency of the Appeal, was apprised to the Court. The coordinate Bench directed the learned Additional Government Advocate for the State to bring on Record the status of Jaya Munda, appellant No.1 through the Sundargarh Town Police Station. After commencement of further hearing before this Bench, there has been categoric statement by the learned Additional Government Advocate on instruction from the concerned Police Station that appellant No.1, Jaya Munda has passed away. A Memo. has also been filed to the above effect on 20.3.2023, which is kept on Record. Learned counsel for the appellants requested this Court for not pressing the Jail Criminal Appeal on behalf of appellant No.1. Thus this Jail Criminal Appeal presently confines to Appellant No.2, namely, Helena Munda, W/o.Late Jaya Munda, as the sole Appellant.

Mr.R.P.Dalai, learned counsel for the Appellant, assails the impugned order of conviction and sentence on the premises that the learned Sessions Court has failed to appreciate the evidence properly. There was no scope for relying on the evidence of P.W.10, the so-called eye-witness. Prosecution story should not have been believed not only on account of P.W.10, the eye-witness being examined after three days of the occurrence but there is also long delay in disclosing the facts. P.W.10 claiming to be the eye-witness to have witnessed the incident at the distance in between her and the site of occurrence being at a place 30 feet away. There was no evidence forthcoming as to the prospect of visibility as the occurrence took place in the dead night and in a jungle area. It is submitted, further prosecution case also failed, as P.W.10 was not examined by the Police and for her not disclosing this aspect to anybody else before she made her deposition first time in the Court. Learned counsel for the appellant also challenged the impugned order of conviction and the sentence imposed by the learned trial court relying on extra-judicial confession made by accused before P.Ws.3 & 4 of the deceased when the Appellants denied acquaintance with P.Ws.3 & 4. Further taking this Court to the evidence of P.W.7, the I.O., learned counsel for the appellant also contested the impugned order on the premises that the I.O. in his evidence categorically submitted on getting information, he rushed to the spot where the deceased, Surath was lying and he had found availability of alcohol smell but he did not find any injury on the deceased, which is contrary to the evidence of P.W.10. As per the doctor’s report where the deceased was admitted next day morning after he was found in a drunken state in the night, there is no external injury. It is in the above background, learned counsel for the appellant seeks to declare the order of conviction and sentence in S.T. No.159/70 of 2003 not only bad but also prays for acquittal of the surviving appellant No.2 honourably.

Mr.Ghosh, learned Additional Government Advocate for the State, however, taking this Court to the evidence of P.W.10, the solitary eye-witness, P.W.7, the I.O., P.W.1, the autopsy Doctor attempted to justify the impugned order of conviction and sentence and sought for dismissing the Jail Criminal Appeal.

This Court from the aforesaid finds, the order of conviction and sentence appears to be based on the evidences of witnesses, P.Ws.7 & 10. Reading the F.I.R., as it found from the paper book reveals, the Informant (P.W.2) to have stated while he was sleeping in his house on 17.6.2002 at about 11.30 P.M. Police came by a vehicle along with Jaya Munda. Both the Police and Jaya Munda told him about his brother lying in drunken state and he was required to accompany the Police to identify him. P.W.2 states to have visited the spot along with the Police in their vehicle and identified the person lying with drunken state to be his brother. Nephew and son-in-law of the deceased lifted him to his residence and waited till morning. Finding the deceased not showing any response at about 9 A.M. morning, his parents got admitted the deceased to the Hospital. P.W.2 had some court work on that date and left. After some time, he got information of death of his brother.

Examining the evidence of solitary witness, P.W.10, this Court finds, P.W.10 is Kasturi Munda W/o.Bila Munda claimed to be an eye-witness. In chief she simply stated that the incident took place two years back in the night at about 10 P.M. and while returning after attending  call  of  nature,  she  found  the  accused  persons  assaulting  the deceased by means of wooden plank-cot roller and then she returned to her house. This Court finds, the deposition of P.W.10 was recorded by the  competent  court  about  two  years  after  the  incident.  In  the  cross- examination she has stated as follows :-

“3.xx-examination by defence:

My house is adjacent to the house of accused persons at a distance of 30 feet. I was attending the call of nature near the place of incident, which is at a distance of more than 30 feet. Incident took place during night hour. Before disclosing the fact to police, I had not disclosed the fact to anybody else of the village police did not ask me anything about the incident. It is a fact that for the first time I am deposing about the incident. It is not a fact that I have not seen the incident and that I am deposing falsehood. I have seen the incident.”

Reading  the  cross-examination  of P.W.10,  this  Court  finds, the  “eye-witness” presented  by  the  Prosecution  while  stating  that  she was attending call of nature near the place of incident claimed the place of incident was at least at a distance of more than 30 feet and the incident took place during night. She had categorically stated not to have disclosed the fact to anybody else of the village and further never to the Police nor did Police ask her anything about the incident and she was for the first time deposing about the incident that too in court. It is observed, there is absolutely no disclosure of the name of any of the accused persons. Further there is no evidence forthcoming through the chief of the solitary eye-witness as to the visibility at night and identifying either of the accused persons involved in the incident as the incident undisputedly occurred at a distance of 30 feet and it was night. This Court finds it rather strange in the disclosures of P.W.10 had seen the occurrence noticing the accused persons involved in the incident, resulting in killing of the deceased but not disclosing such incident to anybody for two years and even never stating the incident before Police. This Court thus finds, the eye-witness is wholly unreliable and her sole testimony cannot be trusted to arrive at the issue of murder being committed by either of the accused persons.

Coming to scan the evidence of P.W.7, the other witness relied upon heavily by the Prosecution, this Court finds, P.W.7 is Dasarathi Nag, A.S.I., who was directed by the Inspector In-Charge to take up the investigation and for preparation of the inquest report. He also sent the dead body for post-mortem examination. In his examination in chief, he has also stated to have mentioned in the Station Diary that the accused Jaya Munda visited the Police Station at about 11.30 P.M. to 11.45 P.M. on 17.6.2002 and informed the A.S.I., Pradhan Narayan that one person was lying in drunken state in front of his house. He visited the spot with Jaya Munda and found Suratha lying in front of the house of Jaya Munda in unconscious state. He immediately rushed to Mohantipada and came with the relation of Suratha. They poured water on Suratha there and they noticed alcohol smell and categorically stated that he did not find any injury on him also found the deceased, Suratha was in heavy drunken state. It is unfortunate to note here that the A.S.I., Pradhan Narayan to whom the information of deceased lying in drunken state in front of accused house was passed on, has not been examined at all. In cross-examination, the A.S.I., P.W.7 has also made a clear statement of not sealing the weapon of offence and straightway seized the articles in the Police Station Malkhana. It appears that there is no examination of the M.Os. claimed to have been seized. It has to be observed that such omission is a serious lapse on the part of Prosecution and the Prosecution miserably failed in discharging its responsibility of proving the guilt beyond all reasonable doubts. It is also found that in the evidence of both P.Ws.7 & 10, nowhere it has been disclosed regarding the involvement or participation of the present Appellant.

Coming to scan the deposition of P.W.1, the Doctor, this Court finds, P.W.1 conducted the post-mortem on the dead body. In his cross-examination, he has categorically stated regarding non-examination of M.Os. in the court, which were earlier examined by him. In cross-examination for Jaya Munda at Paragraph-11, the Doctor has stated possibility of injury due to road traffic accident might be possible in vehicular accident. This Court finds, there is no material forthcoming at least the evidence regarding the M.Os. used for assaulting the deceased. Further the M.Os., if any, even have not been produced in the trial. Further the autopsy Doctor has made a categorical statement that vehicular accident might be the cause of injury sustained by the deceased.

In the above analysis of the matter, this Court finds, there is absolutely no material to correlate the involvement of appellant No.2 with the incident involving the trial before the learned trial court. In the result, this Court finds, there has been no proper appreciation of evidence available on Record.

For the foregoing reasons, we are of the considered view that the impugned judgment of conviction and order of sentence cannot be sustained in the eye of law. In the result, this Jail Criminal Appeal is allowed and the judgment of conviction and order of sentence dated 30.8.2004 passed in S.T. No.159/70 of 2003 by the Ad hoc Additional Sessions Judge, Sundargarh is set aside and the Jail Criminal Appeal succeeds.

Since the surviving appellant, namely, Helena Munda has been enlarged on bail by this Court, vide order dated 25.8.2009, the bail bond submitted by this appellant stands discharged.

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