AI Structured Summary
Not yet generated for this judgment
Judgment
Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 14th of February, 1996 passed in Sessions Trial No. 275/93 by the First Additional Sessions Judge, Bastar at Jagdalpur. By the impugned judgment, the appellants and their co-accused Tati Mukka (A1) were convicted under Sections 366, 368, 376, 376(2)(g) & Section 302/34 IPC and sentenced to undergo R.I. for 5-5 years for the first four offences and imprisonment for life for offence u/s 302/34 IPC with direction to run the sentences concurrently.
The facts, briefly stated, are as under:
Five accused persons namely Tati Mukka (A1) Tati Bhima (A2), Tati Mala (A3), Tati Legami (A4) and Tati Linga (A5) were tried for the above offences. Tati Legami (A 4) absconded during the trial, therefore, his matter was separated and the trial was concluded against the remaining 4 accused. Tati Mukka (A1) filed separate appeal i.e. Cr. A. No. 900/96. He died during pendency of appeal on 17.6.2005, therefore, appeal filed on behalf of Tati Mukka i.e. Cr. A. No. 900/96 was dismissed as abated vide order dated 28.3.2006. Deceased Tati Deve was wife of Tati Joga (PW-5). The case of the prosecution is that on 19.9.92 at about 6.00 p.m. all the accused persons (Al to A5) came to the house of Tati Joga (PW-5) and started quarrelling with him saying that his wife, Tati Deve (deceased) did not give them Shalphi (a local liquor) on their demand. They slapped Tati Joga (PW-5). Seeing this, Tati Deve (deceased) came to rescue. On this, the accused persons assaulted her (deceased) also and they took her towards the forest. Tati Joga (PW-5), on account of fear, ran away from his house. In late night when he came to his house, he saw that his wife was not there. He slept all alone in the night. In the morning, i.e. on 20.9.92, he found dead body of his wife in hanging condition in the ladi (a small shed made for watching the crops) of Aaytu. According to Tati Joga (PW-5), Tati Podiya (PW-2) had informed him that the accused persons had committed murder of the deceased. Thereafter a Panchayat was convened in which the accused person admitted their guilt. Tati Joga (PW-5) lodged the First Information Report (FIR. Ex. P 6) and merg intimation (Ex. P7) as above. The Investigation Officer reached to the place of occurrence, gave notice (Ex. P8) to the Panchas and prepared inquest (Ex. P9) on the dead body of the deceased. The dead body of the deceased was sent for post-mortem to PHC, Kuakonda by requisition Ex. P10. The postmortem examination was conducted by Dr. (Smt.) Seema Soni (PW-1). She noticed various abrasions on thighs and chest of the dead body; post-mortem ligature mark was also found over the neck; blood was coming out from the vagina; hymen was ruptured; there was swelling around the vagina. She opined that the deceased was subjected to forcible sexual intercourse before her death as there were signs of struggle over her body. The cause of death was vasovageal shock because of forcible sexual intercourse, and the death was homicidal in nature. The post-mortem report is Ex. P1. Two slides were prepared from vaginal swab and handed over to the concerned police officer. The accused persons were also sent for their medical examinations vide Exs. P12, P13, P14, P15 and P16 and were found to be capable of performing sexual intercourse. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Sagar vide Ex. P17, but FSL report could not be filed. Tati Podiya (PW-2) turned hostile. The learned Sessions Judge relied on the testimonies of Tati Joga (PW-5) and Tati Sukri (PW-6) and convicted & sentenced the accused persons as above.
Mr. R.K. Jain and Mrs. Kiran Jain, learned counsel appearing on behalf of the appellants, have argued that there was absolutely no evidence against the appellants. The above two prosecution witnesses had not at all supported the case of the prosecution, even then, the conviction has been awarded to the appellants which deserve to be set-aside. They have Very much thrashed that present is a case of no evidence.
On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.
Having heard learned counsel for the parties at length, we have perused the records of the sessions case.
Let us look into the evidence of two witnesses relied by the Sessions Court.
Tati Joga (PW-5) deposed that the deceased was his wife; she was murdered by the accused persons and her dead body was hanged in a ladi. He deposed that on the fateful day at about 8.00 a.m., he was going to take bath in the village tank. His wife Tati Deve was going to her parent''s village Solnaar. The accused persons committed her murder on the way. Then he deposed that he had not seen the accused persons assaulting or committing murder of his wife. He further deposed that even he had not seen the accused persons when he was going to take bath. However he contended that since his father was murdered by the accused persons, therefore, they had also committed murder of his wife. On the next date of the incident, when he was going to fetch water, he saw the dead body of his wife. It was in hanging condition having sustained multiple injuries. Thereafter he came to the village and told the villagers. Then a village Panchayat was organized. He then deposed in clear words that the accused persons were not present in the village Panchayat. The persons, present in the Panchayat, said that since the accused persons had committed murder of his father, therefore, they must have committed murder of the deceased also. Saying this, they advised him to lodge a report. Thereafter he went to lodge the report. This is what he stated in his examination-in-chief. In cross-examination, he categorically admitted that it was decided in the Panchayat that since the accused persons had committed murder of his father, therefore, a report has to be lodged against them. Patel, Hidiya, Sarpanch-Hunga, Kotwar-Dula, Panjami and Aaytu were present in the Panchayat.
In appreciation of evidence of Tati Joga (PW-5), we find that neither he saw the appellants assaulting the deceased nor he saw them committing forcible sexual intercourse against the deceased. On the contrary, he admitted in clear words that even he had not seen the accused persons on the date of incident. He also admitted that the accused persons were not present in the Panchayat. Therefore, there was no question of making confession by them. He admitted in clear words that since the accused persons had committed murder of his father, therefore, the Panchayat people suggested that they must have committed murder of his wife also and they instructed him to lodge the FIR, and then only he lodged the FIR (Ex. P6) in the above manner. We are of the view that nothing adverse against the appellants was proved by the evidence of Tati Joga (PW-5) and the Sessions Judge fell into error while relying on his testimony.
Tati Sukri (PW-6) is mother-in-law of the deceased. She deposed that much earlier her husband Buddhu was murdered by the accused persons. About the present incident, she deposed that on the fateful day at about 6.00 p.m., she was going to fetch water. Her daughter-in-law (deceased-Deve) was going to her parent''s place. She saw that Deve was chased by the accused persons. Alt the accused persons were carrying knives. The accused persons committed murder of her daughter-in-law near the forest. She deposed that since they had committed murder of her husband, therefore, they would have committed murder of her daughter-in-law also. The dead body of her daughter-in-law was found hanging in the ladi of Aaytu. She deposed that she alone had witnessed the incident. Tati Sukri (PW-6) was confronted with her case diary statement (Ex. D1). All above facts like seeing the accused persons; chasing the deceased by them having knives in their hands; committing murder of the deceased near the forest are omissions in her case diary statement (Ex. D1) recorded u/s 161 Cr.P.C. She could not give any explanation as to why these facts were not recorded by the police. She also claimed that she had told to the police that the accused persons had hanged the dead body of her daughter-in-law in the ladi of Aaytu, and if the said fact is also not mentioned in her case diary statement (Ex. D1), she cannot tell the reason for all these omissions.
In appreciation of the evidence of Tati Sukri (PW-6), we find that she gave a new story before the Court. She recorded her evidence before the Court as an eye-witness, whereas, according to her diary statement, she was not an eyewitnesses and was told by her son about the incident. According to her, since the accused persons were the culprits of committing murder of her husband, therefore, she had strong suspicion that they must have committed murder of the deceased also. In light of the above vital omissions in the case diary statement (Ex. D1) of this witness, Tati Sukri (PW 6), we are of the view that she was also unreliable.
Even otherwise also, we find that both the witnesses have tried to give a new story before the Court which was not at all the case of the prosecution. The sole eye-witness, cited in the FIR (Ex. P6), namely Tati Podiya (PW-2) has turned hostile. He did not support the case of the prosecution.
In appreciation, we find that there was absolutely no evidence to connect the appellants with the aforesaid offences of commission of rape or murder of the deceased. We are of the view that the learned Sessions Judge fell into error while convicting the appellants for the aforesaid offences relying on the testimonies of Tati Joga (PW-5) and Tati Sukri (PW-6) who were not at all reliable. For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants under Sections 366, 368, 376, 376(2)(g) & 302/34 IPC are set aside. The appellants are acquitted of the charges framed against them.