Satrughna Majhi & Anr. vs State of Orissa

Sashikanta Mishra,J. The appellants faced trial in the Court of the learned Adhoc Addl. Sessions Judge (Fast Track), Champua in S.T. Case No.41/202-2007 for committing murder of three persons namely, Ghasia Majhi, his wife Girtha Majhi and son Soren Majhi and being convicted, were sentenced to undergo imprisonment for life.

The prosecution case, briefly stated, is as follows:-

The deceased Ghasia Majhi and his family members belonged to village Gurtuan under Bamebari Outpost in the district of Keonjhar. They were accused by the villagers of practicing witchcraft and of causing death of several villagers thereby. As such, they were socially boycotted in the village. A year before the occurrence, one Bameri Majhi and Rati Majhi died after illness. The villagers suspected that their death was caused by the deceased and his family members by practicing witchcraft. One Dula Majhi and Topa Majhi also died on 8.5.2007 and 10.5.2007 respectively. All the above persons who died were related to the appellants. The villagers held them responsible for such deaths. However, Ghasia and his family members threatened to wipe out the villagers using witchcraft. Therefore, the relatives of the persons who had died took a decision to kill the entire family of Ghasia. Accordingly, on 17.6.2007 at 9 A.M. both the appellants attacked Ghasia and his family members near their house. They first killed Soren Majhi by inflicting blows with katuri and farsa. Then they chased his old parents for 4-5 meters and also killed them by means of such weapons. After the incident, both the appellants went to Bamebari Outpost at 10.50 A.M. with accused Satrughna holding a bloodstained katuri and accused Sunaram holding a blood stained farsa. They informed the S.I. of the Outpost of having killed Ghasia Majhi and his family members on the ground that they were practicing witchcraft and belief that their presence in the village may cause death of the other residents. The above information was entered in the Station Diary and the weapons were seized from the possession of the accused persons. The S.I. visited the spot village and found the dead body of Soren in front of his house with severe injuries on his neck and other parts of the body. He also found the dead bodies of Ghasia and his wife Girtha at a distance from their house on an open land with severe cut injuries on their neck and face. After making preliminary inquiry and ascertaining the basic facts, the S.I. submitted a written report before the IIC of Joda P.S. which was registered as P.S. Case No.103 dated 17.6.2007 under Section 302/34 I.P.C. and investigation followed. Upon completion of investigation, charge sheet was submitted against the appellants under Section 120-B and 302/109 I.P.C.

The accused persons took the plea of denial and false implication.

To prove its case, prosecution examined sixteen witnesses and proved twenty-four documents. It also proved 14 material objects. On the other hand, the defence did not adduce any evidence, either oral or documentary.

After analyzing the evidence on record, the trial Court framed the following points for determination: -

On the first point, the trial Court, after scanning the evidence held that the prosecution could not establish the same. As regards the second point, the trial Court relying basically on the medical evidence held that the death of all the deceased was homicidal in nature. On the third point, the trial Court found that P.W.10 is the sole eyewitness to the occurrence. His evidence was scanned in detail in the light of the settled position of law relating to acceptability of evidence of solitary witness and held that the appellants had committed the death of the deceased. On the 4^th point, the trial Court did not find any acceptable evidence. On such findings, the trial court held that the prosecution had established the charge under Section 302/34 of I.P.C. beyond all reasonable doubt and therefore, held the accused persons guilty thereof. Both of them were sentenced to imprisonment for life.

Heard Mr. Sk Zafarulla, learned counsel for the accused-appellants and Ms.Suvalaxmi Devi, learned Addl. Standing Counsel for the State.

Mr. Zafarulla assails the impugned judgment by submitting that the P.W.10 being the solitary eye witness could not have been treated as wholly reliable by the trial Court so as to base the order of conviction on his testimony. He raises the following grounds to question the credibility of P.W.10:-

Per contra, Miss Suvalaxmi Devi would submit that delay in examination of P.W.10 by the I.O. cannot be treated as fatal to the case. The I.O. has offered plausible explanation for the same in the case diary. As regards the so-called non-corroboration of P.W.10’s testimony by medical evidence, Ms. Suvalaxmi would argue that his sole testimony by itself is adequate and in any case, he being a rustic villager, is not expected to depose with mathematical precision. As regards the evidence of P.W.14, it is argued that he had merely opined about the possibility of P.W.l0 witnessing the occurrence, which cannot be treated as clinching evidence.

Before considering the merit of the rival contentions, we deem it proper to analyze the evidence on record independently. This is a case where, as per the F.I.R., the two accused persons went to the Police outpost holding blood-stained weapons and confessed to have killed Ghasia Majhi and his family members. Obviously, such confession has no value in law. During trial, the accused persons took the plea of denial and false implication. However, the fact that Ghasia Majhi, his wife Girtha Majhi and Soren Majhi died on the date of occurrence is by itself not disputed. That such deaths were homicidal in nature is also not disputed. We find from the evidence of the autopsy surgeon, P.W.13, that Ghasia Majhi sustained the following injuries:-

Girtha Majhi sustained the following injuries:-

Soren Majhi sustained the following injuries:-

P.W.13 stated that the cause of death of Ghasia Majhi is instantaneous shock due to injuries. She further stated that the cause of death of Girtha Majhi is coma due to injuries to brain. In so far as Soren Majhi is concerned the cause of death is shock due to the hemorrhage resulting from division of right carotid artery and jugular vein. P.W.13 also stated that all the injuries were ante-mortem in nature and caused by some heavy weapon with a cutting margin. The ceased farsa and katuri being produced by the I.O., P.W.13 opined that all the injuries present on the body of the deceased are possible by said weapons. There is nothing in the evidence to doubt the veracity of the evidence of P.W.13. We therefore, hold that the death of the deceased persons was homicidal in nature.

As regards, the authorship of the crime, prosecution has heavily relied upon the evidence of P.W.10, who is an eye witness. We shall now discuss his evidence in light of the objections raised by defence.

P.W.10, who is a co-villager of the accused persons as well as the deceased deposed that after hearing hullah near the house of Ghasia Majhi, he rushed there and found both the accused persons assaulting Soren Majhi, Ghasia Majhi and Girtha Majhi by katuri, bhujali and farsa by chasing them. As a result of the blows given by them on the head and the neck of the deceased they fell down on the spot and died instantaneously. Thereafter the accused went to Bamebari Outpost holding the blood stained weapons. In cross-examination, he stated that the spot is at a distance of about 60 feet away from his house. He clarified that he had seen the occurrence by standing near his house as the place of occurrence was directly visible from there. He further clarified that accused Sunaram was holding a bhujali which is locally called katuri of about one feet length. Sunaram was the first person to assault using bhujali/katuri and gave two successive blows on Ghasia Majhi. Thereafter his son Soren was assaulted by giving four successive blows on his belly and back. Then accused Sunaram gave two successive blows by the bhujali/katuri on the belly of Girtha.

Coming to the defence objection, it is argued that the evidence of P.W.10 is not corroborated by medical evidence inasmuch as the sequence of assault and the injuries sustained as deposed by him do not tally with the injuries found on the dead bodies by the autopsy surgeon. We do not agree with this argument. We have also noted the injuries sustained by the three deceased. What P.W.10 has stated more or less conforms to the version of P.W.13 as regards the site of injuries. That apart, P.W.10 was deposing nearly 8 months after the occurrence. He is not expected to state the facts with mathematical precision. It would suffice if his evidence largely corresponds to the medical evidence, which in the instant case, it does.

Coming to the next ground urged by the defence that P.W.10 was examined by the I.O., four months after the occurrence, we do not think this could be a ground to discredit his testimony, which we have otherwise found credible and reliable. Non-examination or belated examination of a witness by the I.O. can be a lapse in investigation but the same by itself cannot demolish the prosecution case. Even otherwise, we find that the defence did not cross-examine the I.O. specifically on this ground. Obviously, the ground of delayed examination of P.W.10 is being raised as an afterthought. That apart, the case diary contains adequate explanation for non-examination of P.W.10 to the effect that despite multiple efforts, he could not be traced and the villagers had decided not to speak about the occurrence before Police.

The next ground urged by the defence is that P.W.10 could not have witnessed the occurrence from his house. In this regard, the evidence of P.W.14 is referred to. He stated in cross-examination that if any person stands in the house of Sukanatha Naik (P.W.10), the dead bodies of Ghasia, Girtha and Soren will not be visible. Firstly, the above statement of P.W.14 can only be treated as his personal opinion. Secondly, when P.W.10 himself deposed that the spot is about 60’ away from his house and that it was clearly visible, there is no reason for us to discard such statement and accept the opinion of P.W.14. Even otherwise, P.W.14 only stated about the dead bodies and not specifically the occurrence.

We thus find that none of the grounds urged to question the evidence of P.W.10 are valid so as to be accepted by us. According to Mr. Zafarulla, P.W.10 cannot be treated as a wholly reliable witness. For the reasons indicated, we are unable to accept such contention. This is a case where prosecution examined 16 witnesses including P.Ws.9,10,11 all of whom were said to be eye witnesses. Out of them, P.Ws.9 and 11 turned hostile to the prosecution. This leaves the Court with the evidence of only P.W.10. Law relating to acceptability of the testimony of solitary witness is that it should be reliable, trustworthy and credible. Reference may be had to the judgment of Namdeo vs State of Mahasrashtra^{11.Signed by: ASHOK KUMAR BEHERA1 (2007) INSC 283}. Conviction can lie basing solely upon the version of a solitary eye witness even in the absence of corroboration if it comes out as truthful and credible. We have already indicated the reasons why we have held the testimony of P.W.10 as truthful, credible and reliable. We therefore find nothing wrong in the reliance placed on it by the trial Court so as to find fault with the order of conviction.

For the foregoing reasons therefore, we find no illegality in the findings of the trial Court or in the order of conviction and sentence passed in the case so as to be persuaded to interfere.

In the result, the appeal fails and is therefore, dismissed. The accused persons being on bail, their bail bonds be cancelled and they be taken into custody forthwith to serve the remaining part of the sentence.