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Kurungalanga Luxman Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1964CriLJ464
AppellantKurungalanga Luxman
RespondentState
Cases ReferredIn Subramania Goundan v. State of Madras
Excerpt:
.....the stains might have been caused by the blood of some wild animals because it is well known that these aboriginal khonds kill animals in the forest and also kill fowl and goat for consumption. iii the instant case the existence of the land dispute between the appellant and the deceased madhab as stated in the confession is well proved by the evidence of several prtbsecu-lion witnesses. the appellant is an aboriginal khond, and khonds as is well known are highly excitable and inclined to commit most serious crimes on even mild provocation......padmapur within the police station of bissern-cuttack in the district of koraput. the deceased madhab patro belonged to another village named deokupali close-by. it appears that there was acute friction between him and some of the khonds of another village, dobhaguda, which was also close-by, but by shrewd litigation in law courts he succeeded in dispossessing the khonds of their lands and taking them under his personal cultivation this was said to have so much enraged the khonds that on 11th july 1961 at about 8a.m. when the said madhab patra was proceeding on the public bad from his village deokupalli to village dhobagiida he was waylaid by the khonds and brutally hacked to death. his brother-in-law krushna chandra sahukar (p.w. 5) and his cooly sannyasij (p.w. 6) were also.....
Judgment:

Narasimham, C.J.

1. This is a reference made by the Sessions Judge of Jeypore for the confirmation of the death sentence passed on the appellant (Kurungalanga Luxman). The condemned person has also filed an appeal gainst his conviction and sentence and both the appeal and the death reference were heard together and are disposed of by one Judgment,

2. The appellant is an aboriginal Khond residing in village Padmapur within the Police Station of Bissern-cuttack in the district of Koraput. The deceased Madhab Patro belonged to another village named Deokupali close-by. It appears that there was acute friction between him and some of the Khonds of another village, Dobhaguda, which was also close-by, but by shrewd litigation in law courts he succeeded in dispossessing the Khonds of their lands and taking them under his personal cultivation This was said to have so much enraged the Khonds that on 11th July 1961 at about 8A.M. when the said Madhab Patra was proceeding on the public bad from his village Deokupalli to village Dhobagiida he was waylaid by the Khonds and brutally hacked to death. His brother-in-law Krushna Chandra Sahukar (P.W. 5) and his cooly Sannyasij (P.W. 6) were also following him on the same road on that fatal day. They claim to have witnessed the assault on the deceased by the KhondsJ p. W. 6 tried to interfere, but he was threatened with death and hence they both ran away leaving him to his fate.

3. The earliest information about the occurrence was given by none else but the appellant and his companion Pidikkaka Sarathy who both appeared before the A. S. I. (P. W. 14) at the Police Outpost fat Muniguda, on 11th July 1961 at about 9.45 A. M. and made a statement. They also produced before him two tangis. He noticed bloodstains oil the tangy of the appellant and also some blood reforms on his nark and seized the same. The Report of the Chemical Examiner shows that they were stained with blood but the Serologist stated that as the stains had disintegrated the origin of the blood could not be determined. The A. S. I, (P. W. 14) took some preliminary steps and handed over the investigation of the case to the S. I. of Police at Bissam-cuttack (P. W. 15) who happened to arrive at the outpost in connection with tiie investigation of another case. He found the appellant and his companion Sarathy under arrest, acid after recording their statements he hurried to tie spot, found the corpse of Madhab Patra lying on the Public road between Deokopalli and Dhobaguda.

After holding the usual inquest he sent it for post mortem examination by one Dr. Mullik (P. W. 4) who was then the Medical Officer in Charge, at Eiasemcuttaok. The post mortem was actually done at 9 A. M. on 12-7-61. There were tour clean cut wounds, on the head, right shoulder, right side of the back and right side of the chest. The head was practically severed from the body being attachedi only by two pieces of skin. The cut wound on the chest broke the collar bone and opened into the chest cavity. Similarly the cut injuries on the shoulder and back side also opened into the chest cavity. All the injuries were ante mortem and appeared to have been caused by a sharp cutting weapon like a tangia. Every one of the injuries was fatal. From the medical evidence it is titles clear that the deceased Madhab Patra was the victim of an attack made in a frenzy of hatred by assailants who had no other intention except to kill him.

4. The appellant and his companion, Sarathy were originally sent up for trial by the committing magistrate, but Sarathy died before the commencement of the sessions trial which therefore proceeded against the appellant alone.

5. To prove the charge against the appellant the prosecution relied on the following pieces of evidence:

(i) The conduct of the appellant in himself proceeding to the Police outpost with his bloodstained tangy and cloth, making a statement, and-surrendering himself before the Police Officer;

(ii) The judicial confession made by the appellant before the Magistrate (First Class) Mr. Negi, four days after the commission of murder, and

(iii) The evidence of the two eye-witnesses. (P. Ws. 5 and 6) who were closely following the deceased before he was attacked and who claimed to have identified the appellant and his companion Sarathy as the assailants.

6. There can be no doubt that Madhali Patro had incurred the bitter enmity of the Khonds of the locality by dispossessing them of their lands as a result of successful litigation. His brother-in-law Krushna Chandra Sahukar (P. W. 5) admitted that there was litigation between some of the Khonds including Sarathy on the one hand and himself and Madhab Patro on the other. Madhab Patro also had litigation in 1954 with appellant Kurungalanga Luxman. There were in all seventeen or eighteen suits and criminal cases between the parties. It also appears from the evidence of Harihar patro (P. W. 11)(a son of the deceased) take on the day previous to the murder the appellant Luxman came to the deceased Madhab and asked him if he would give some land. Madhab however replied that he spent so much money on litigation and asked who would compensate him if he would give away the land which he had won after spending so much money. But Luxman told him that he would starve otherwise. Madhab was said to have then premised to consider the matter on the next day.

7. It is thus clear that there was adequate motive for both Sarathy and the appellant to have joined in the murderous assault on the deceased. So far as Sarathy was concerned the large number of cases, both civil and criminal, between him and the deceased coupled with the fact that ultimately Madhab succeeded in depriving him of his lands would be a strong motive even for a non-aboriginal. But for an aboriginal Khond, who should not be judged by standards applicable to men of the plains, the motive was certainly stronger. It is true that so far as appellant Luxman is concerned there was not so much deeprooted enmity between him and the deceased. The evidence shows that there was only one case which was fought out between him and the deceased in 1954 and again on the day previous to the occurrence the appellant entreated Madhab to give him some land saying that he would otherwise starve, but Madhab gave evasive replies. Considering the fact that the appellant is also an aboriginal Khond, though, living in another village, the motive is sufficient for him to join with Sarathy in the murderous attack on the deceased.

8. As regards the eye witnesses, P. Ws. 5 and 6 I think it will be unsafe to rely on their testimony. P. W. 5 is the brother-in-law of the deceased and was a party (along with the deceased) in the litigation that was going on between them and the Khonds. P. W. 6 Sanyasi is a cooly of the deceased. Apart from their interestedness there is a fatal omission on the part of these two witnesses to name the assailants of the deceased, immediately after the commission of the crime.

Thus Bhima Patro (P.W. 3) one of the sons of the deceased stated that he questioned Sanyasi (P. W. 6) at the spot and that the latter merely told him that four persons had killed his father, but that he did not give out their names. Similarly Harihar Patro (P. W. 11) another son of the deceased stated that the two eye-witnesses (P. W. 5 and P. W. 6) met him and informed him that the Khonds of Dhobaguda had killed his father. The names of the assailants were not disclosed at the earliest j opportunity. There is no satisfactory explanation i for this serious omission. If really P. Ws. 5 and 6 had witnessed the occurrence and identified the assailants it is highly unlikely that they would have omitted to disclose their names to the two sons of the deceased immediately after the occurrence; they would not have merely contended themselves with saying in a general way that the Khond of Dhobaguda had killed the deceased.

This omission to name the assailants leads to i a reasonable inference that these witnesses did not see the actual giving of the fatal blows by the .assailants, but merely thought that they must be none else but the Khonds. According to P. W. 5 he was closely following the deceased just before the latter was attacked by the assailants who were lying in ambush. This witness, apart from being a near relation of the deceased, was also one of the .bitter enemies of the Khonds having joined with the deceased in almost all litigations with the Khonds. It is therefore unlikely that if he had been seen by Them following the deceased they would have left him alive; in all probability he would also have been killed along with the deceased.

Moreover P. Ws. 5 and 6 have not given a consistent version as to where exactly the assailants were hiding themselves just before attacking the deceased. The spot map (Ex. 11) shows that there is a mahua tree (marked C) on one side of the road from Keokupalli to Dhobaguda and some bushes on the opposite side. According to P. W. 5 the assailants remained concealed under that tree and fell upon the deceased when he was walking along the road close to them. But according to V. W. 6 the assailants emerged from a bush which according to the spot map is on the opposite side of the road. He however 'tried to reconcile this discrepancy by saying that the mahua tree and the 'bush are both on one side of the road. This statement is not borne out by the spot map. Hence I am not inclined to accept the testimony of these two witnesses to the effect that they saw the occurrence. Admittedly they were proceeding on the road at some distance behind the deceased and when the Khonds suddenly attacked the deceased they fled from the place out of sheer right and did not see who the assailants were. This seems the main reason why immediately after the incident they were not able to name the assailants. Their evidence so far as their claim to be eye witnesses, should be rejected.

9. But the judicial confession of the appellant and his conduct soon after the occurrence are, 1 think, sufficient to fix his guilt beyond reasonable doubt He, of his own accord, went to the Police outpost soon after the commission of the murder, made some statement to the A. S. I. of Police (P. W. 14) and surrendered himself. He was produced before the Sub-divisional Magistrate of Rayaghada who directed a First Class Magistrate, Shri Negi, to record his confession on 13-7-1961. That Magistrate, gave him the usual warnings and also allowed two days time for reflection. He was then sent to the local Jail and was produced before the Magistrate on 15-7-61 at about 12-15 P. M. Thus more than two days were allowed to elapse between the date of recording of the confession and the date on which the appellant was produced from Police custody to Jail custody.

It was alleged that as the appellant was produced before the Magistrate by a Head Constable, the Police custody must be held to have continued even after he was remanded to jail custody. The confession (Ext. 2) shows that the appellant was produced before the Magistrate by the Head Constable on 15-7-1961 but the Magistrate was not asked as to whether that Police Officer had anything to do with the investigation of the case or else whether he was a member of the Police Party which was deputed to escort the appellant from the Jail to the Magistrate's court'. It cannot be said that an under trial prisoner was in Police custody while being taken from the Jail to the Magistrate, unless it can be further shown that the escorting Police Officer was in any way connected with the investigation o the case or that he was directly under the supervision of the investigating Police Officer. If it be held that the mere fact that an under-trial prisoner was escorted by some Police Constables from the Jail to the Magistrate's Court room is itself sufficient to establish that he was transferred from Jail custody to Police custody, then no confession can possibly be held to be free from Police influence; because it will be unreasonable to expect any person other titan a Police Officer to escort such undertrial prisoners. Moreover the long interval of two days during which the appellant was kept in Jail custody, is I think sufficient to remove all Police1 influence if any, The Magistrate also put several questions to him with a view to ascertain whether the confession was made voluntarily. He also put a special question as to why he wanted to make a confession and the appellant, like a typical Khond, rleplied frankly that as he had committed a crime for the sake of land he should not deny his guilt. I am therefore satisfied that the confession was made voluntarily and not under duress.

It is true that the confession was retracted but the appellant has given inconsistent versions as to why he made the confession. Before the Committing Magistrate he stated that he was severely assault ed by the Police and hence he made the confession; whereas before the court of Session, when the confession was read over to him, he denied having made any such confession. But if really the confession was extorted from him under threat by the Police as stated by him before the Committing Magistrate, it is inexplicable as to why he did not put forward such a plea before the Court of Session.

10. The next question is whether the confession is true. For the purpose of appreciating this point it I is necessary to translate in English the reply given by the appellant in answer to the question pull to him by the Magistrate, as to what he had got to say. The appellant's reply was as follows:

I assaulted Madhab Sundhi. I had disputes with him over land. Basu Patro was tilling my land on Friday. On my enquiring he advised me to fight with Madhab Sundhi. I questioned Madhab on Monday. He replied that he had given the landj to Basu Patro for five years. On hearing this I thought: 'It makes no difference whether I live or die'. Then I lay in wait on the road, watching the land and with the assistance of Saradhy assaulted Sundhi, while waiting near the Mahual {Mahua): tree, on Tuesday.

11. It will be noticed that there is adequate corroboration of almost every essential point mentioned in the confession. His dispute with Madhab Patro regarding some lands is proved by P. W. 5, and it Was the defence lawyer who brought out in the crosp examination of that witness that in 1954 the appellant had filed a Petition against Mahdab Patro for trespass and that petition was subsequently dismissed due to his non-attendance. Again, the distress of the appellant on account of his being left with no land is also supported by P. W. 11 Harihar Patro, one of the sons of the deceased Madhab Patro.

12. There is however a material discrepancy between the confession and the evidence of the two eye witnesses P. Ws. 5 and 6. From the confession it would appear that only two persons namely the appellant and the other accused Sarathy. attacked Madliab and killed him, but P. Ws. 5 and 6 stated that several Khonds joined in the attack. On the basis of this discrepancy it was argued that the portion pi the confession has not been corroborated. But I have already shown that the claim of P. Ws. 5 and 6 to have seen the occurrence cannot be bedim and consequently their evidence either ago it the number of assailants or 'the names of the assail ante must be held to be based on merle suremise. They seem to have bolted away from the place as soon as the appellant and his companions fell upoh Madhab and would not have taken the risk of Witnessing the actual assault. Hence it will not be trooper to disbelieve this portion of the, confession on the 'testimony of witnesses who haw been discredited so far as their claim to be eye-witnessed is concerned.

13. The conduct of the appellant after the commission of the crime is also very significant. Of his own accord he went to the Police Outpost where type A.S.I. (P. W. 14) seized his tangi and napkin which were found to have been stained with blood. When questioned as to why he went-to the Police Outpost and how bloodstains were present On the tangi and napkin, the appellant gave no satisfactory explanation except to say that the allegations made against him were false. It is true that the origin of the bloodstains could not be determined by the Serologist and it is possible to give an plternative theory that the stains might have been caused by the blood of some wild animals because it is well known that these aboriginal Khonds kill animals in the forest and also kill fowl and goat for consumption. But when the appellant himself did not put forward any plea that the blood stains found oh his tangi and napkin were caused by the blood of sorrie animal and merely took the plea of complete denial, it will not be proper for this Court to surmise that the stains might have been caused by the blood of animals.

In this connection I may refer to Ratan Gond v. State of Bihar : 1959CriLJ108 where at p. 23 the recovery of a bloodstained weapon from an accused person even though the origin of the blood could not be determined owing to disintegration, and there was a complete denial of such recovery by the accused person when questioned by the Court, was taken to be an incriminating circumstance which lent assurance to the confession made by the accused. It is true that here the confession was retracted subsequently and rules of prudence require that it should be corroborated, but the standard of corroboration required for a retracted confession has been held to be somewhat different from the standard of corroboration required for the evidence1 of an accomplice.

In Subramania Goundan v. State of Madras : 1958CriLJ238 it was observed that in order to corroborate a retracted confession it is sufficient if the corroboration is of a general nature, whereas an accomplice's evidence should be corroborated in material particulars. Iii the instant case the existence of the land dispute between the appellant and the deceased Madhab as stated in the confession is well proved by the evidence of several prtbsecu-lion witnesses. The appellant's subsequent conduct in going to the Police outpost must, in the circumstances of this case, be held to amount to corroboration, especially when the appellant has given no explanation for the same apart from denying the incident altogether.

14. Mr. Misra however urged that the statement of the A. S. I. (P. W. 14) about the appellant appearing at the Police Station with the bloodstained tangy and napkin should not be believed inasmuch as the witness (P. W. 12) to support him as regards the seizure of these two articles stated that he was sent for after the recovery had taken place. Too much importance need not however be attached to this statement of P. W. 12. The A. S. I. (P. W. J4) could not have expected that the appellant would, of his own- accord, go to the than with a bloodstained tangi and napkin. It was only after hearing the appellant's statement and noticing the tangi and martini stained with blood that the A, S. I. could have thought of seizing them. The search witnesses were therefore sent for immediately afterwards. I see therefore no reason to disbelieve the A. S. I. on this point especially as the contemporaneous entry in the Case Diary fully corroborates him.

15. Some comment was also matle on the fact that the records in the Case Diary were probably prepared later on, at the than and not at the spot during investigation. But I do not think this has a material bearing on the main question, namely the conduct of the appellant soon after the commission of the crime.

16. For the aforesaid reasons though I am not inclined to believe the evidence of the two eye witnesses P. Ws. 5 and 6, I hold the judicial confession made by the appellant to be voluntary and true and though it has been subsequently retracted it is adequately corroborated by the subsequent conduct of the appellant and the presence of bloodstains on the tangi and the napkin. I would accordingly hold that the appellant was rightly convicted Under Section 302/34 IPC

17. But the extreme penalty of law is not called for in the circumstances of this case. The crime was committed on 11-7-1961 more than 18 months ago and the appellant has already undergone the agony of a capital sentence hanging queen his head, for such a long period. The principal culprit Pidika Sarathi who had bitter hatred towards the deceased Madhab Patro and who joined with the appellant in the murderous assault is now dead. It is true that the apptellant also joined in the attack but he appears to have become desperate as the deceased would not allow him to cultivate his > land in spite of the appellant's entreaties before him that he would otherwise starve. The appellant is an aboriginal Khond, and Khonds as is well known are highly excitable and inclined to commit most serious crimes on even mild provocation. Taking all these circumstances into consideration, I think the ends of justice would be met by imposing the lesser penalty permitted by law.

18. I would accordingly maintain the conviction of the appellant Under Section 302/34 IPC but set aside the sentence of death passed on him, and in lieu of the same sentence him to undergo imprisonment for life.

19. The appeal and the reference are disposed of accordingly.

S. Barman, J.

20. I agree.


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