S. Barman, J.
1. The accused respondents Jagabandhu Domb and Dalibandhu Domb who are brothers were charged with the offence of having committed murder of their elder brother Sambaru Domb in course of a family quarrel among themselves on October 9, 1961 at village Dhangidail, district Koraput. They both were convicted under Sections 334 and 335, Indian Penal Code for having voluntarily caused hurt and grievous hurt on provocation and sentenced to one month's rigorous imprisonment and to pay a fine or Rs. 50/- in default to rigorous imprisonment for another fifteen days. They both were acquitted of the charge of murder under Section 302, Indian Penal Code. This Government Appeal is against the said order of acquittal of both the accused respondents of the charge of murder.
2. The prosecution case shortly stated is this : On October 9, 1961 at about 4 or 5 P.M. the accused persons assaulted the deceased with lathi and tangia as a result of which the deceased died. The quarrel was near the house of Jagabandhu and the deceased was chased by the accused respondent. It was near the house of P. W. 4 who had lodged the First Information, Report that the accused Jagabandhu gave a lathi blow, and the deceased fell down; then the other accused Dalibandhu gave tangi blows and the deceased died there. It is said that both the accused persons gave about 4 to 5 blows each. The deceased fell down and died on the spot.
3. The prosecution relied on the statements before the Committing Court of eye-witnesses P. Ws. 4, 5 and 6 and. also on the statement of F. W. 8 Who immediately after the murder on being informed by the deceased's son went to the spot, saw the dead body and called the Panchayat, The witnesses however resiled from their previous statements before the committing Magistrate. The prosecution further relied on the extra-judicial confession of the accused persons before the Punchayat as deposed by P. Ws. 5 and 8. That apart, there was also confessional statement by both the accused respondents Jagabandhu and Dalibandhu before the Magistrate P. W. 1.
Furthermore, there were also several incriminating recoveries. In fact, the lathi which had blood stains (M.O. 1) was produced by accused Jagabandhu before the Panchayat. The evidence of doctor P. W. 12 also supports the prosecution version of the case. He found as many as nine external injuries including lacerated and incised wounds. He said that the lacerated wounds could be caused by blunt substance like lathis and that any of the lathis M. Os. I and II could cause the lacerated wounds. The doctor further said that the incised wounds could be caused by a sharp cutting weapon like the Tangia M.O. VII.
4. The learned Sessions Judge, relying on the statements of P. Ws. 4, 5, 6 and 8 before the Committing Court, found that the accused Jagabandhu being armed with a lathi and the accused Dalibandhu being armed with an axe chased the deceased, and near about the house of P, W. 4 the accused Jagabandhu gave a blow on the head of the deceased as a result of which he fell down, and thereafter both the two accused persons gave 4 to 5 blows each by lathi and tangia respectively. The learned Sessions Judge thus accepted the prosecution version of the case. In spite of the said finding the learned Sessions Judge acquitted the two accused respondents of the charge under Section 302 Indian Penal Code and convicted them only under Sections 334 and 335, Indian Penal Code and sentenced them as aforesaid.
5. The question is : Is there sufficient evidence in this case for conviction of the accused respondents of the charge of murder under Section 302, Indian Penal Code? In my opinion the statement of the eye-witnesses P. Ws. 4, 5 and 6 as also the other witness P. W. 8, if properly scrutinised, are sufficient for conviction of the accused respondents of the charge of murder. The learned Sessions Judge rightly preferred the statements of these witnesses before the committing Court to their evidence at the trial In Court, and he rightly took the view that such evidence can equally be treated as substantive evidence for the purpose of deciding the case.
The defence point is that the statements of these witnesses before the committing Court, which were subsequently resiled from, cannot be relied on for conviction of the accused respondents. Undoubtedly statements before the Committing Court are admissible as substantive evidence under Section 288, Criminal Procedure Code. In a recent decision, their Lordships of the Supreme Court in Sharnappa Mutyappa Halke v. State of Maharastra : 4SCR589 Save clarified the legal position thus:
In considering the value of a statement before a committing Court, what the Court must keep in mind is this:
On the one hand, it is true that corroboration of such evidence is not required in law; but it is equally true that in order to decide which of the two versions, the one given in the committing court and the one in the Sessions Court, both of which are substantive evidence, should be accepted, the Judge of facts would almost always feel inclined to look for something else beyond this evidence itself to help his conclusion.
In other words, before the Court decides to accept the evidence brought in under Section 2S8, Criminal Procedure Code as true and reliable, the Court has to be satisfied that this is really so. Then the question to be posed is : How can that satisfaction be reached? In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime is true.
Their Lordships of the Supreme Court also go so far as to lay down to the effect that it is not that such extrinsic evidence is essential, for even without such extrinsic support if the Judge of facts, after bearing in mind the intrinsic weakness of the evidence, in that two different statements on oath have been made, is satisfied that the evidence is true and can be safely relied upon, then
the judge will be falling in his duty not to do so
6. It is in this light of settled position in law regarding the value of statements before committing Court, that the present case is to be considered. The question now is : Is there such extrinsic evidence as to give a reasonable indication that what the said witnesses P. Ws. 4, 5, 6 and 8 said in the Committing Court is true? In my opinion the circumstances show that what the witnesses initially said before the committing Court was true and reliable, and that what they subsequently said before the Sessions Court was retraction from truth on after-thought. Dealing with the material wit-nesses, one by one, the position is as discussed hereunder.
7. P. W. 4 Sundarmani Domb said before the committing Court how the two accused persons had murdered their brother the deceased; the wit-ness said that both the accused persons gave about 4 to 5 blows each on the deceased. The witness further said that in the Panchayat the 2 accused were present and there the accused Jagabandhu admitted his guilt and produced the lathi M.O, I which was stained with blood.
As regards the non-mention of the name of accused Dalibandhu in the First Information Report lodged by the witness P. W. 4, he explained that : the accused Jagabandhu was tied in a rope and Kept by Punchayat; that the. witness along with others was sent to the police to report and accused Dalibandhu went with them; on the way accused Dalibandhu threatened the witness and others; this. was the reason why the witness did not mention before police the name of Dalibandhu; that it was after the arrest of Dalibandhu that the witness deposed against him. In the Sessions Court, the witness in examination-in-chief, had totally gone back upon his entire story given by him in the committing Court. He said that he cannot remember what he might have stated in the committing Court, He denied each and every statement made by him. It was not until in cross-examination that the witness referred to the alleged threatening and tutoring by the police. In cross-examination the witness said that the police was always threatening the witness to put in jail if they did not tell as the police tutored.
It is quite clear that the story of alleged threatening and tutoring by the police was an afterthought. If the police had in fact tutored the witness, the witness would have immediately said so in the examination-in-chief itself when the witness was confronted with the statements made by him before the committing Court.
8. So also P. W. 5 Jagli Domb in the committing Court supported the prosecution version of the case. The witness said that he had seen the occurrence; the 2 accused persons had killed the deceased in the manner as deposed by him. In examination-in-chief before the Sessions Judge the witness however resiled each and every statement previously made by him in the Committing Court, It was not until cross-examination that the witness referred to police having tutored the witnesses all along threatening with assault if the witnesses did not say that they were asked to say. This is clearly after-thought. Apparently the witness was not speaking the truth in the Sessions Court.
9. Similarly, P. W. 6 Maina Dombani widow of the deceased, while supporting the prosecution case In the committing Court as direct eye-witness also subsequently in the Sessions Court in examination-in-chief retracted from her previous statements. The witness did not refer to police tutoring her until cross-examination. In answer to a question put by Court the witness significantly replied that she did not tell the Magistrate about the alleged threat held out by the police and about the tutoring.
10. Lastly, P. W. 8 Sukra Porja in the committing Court stated that he was in the Punchayat where accused Jagabandhu confessed that he had Killed the deceased with the lathi and produced the blood stained lathi; that accused Dalibandhu also went with them. In the Sessions Court the witness resiled from the previous statement. In examination-in-chief he said that he was examined in the committing Court and that he did not tell what was read out and explained to him now in the Sessions Court. The witness further said that the police did not meet him at the village nor had he any talk with the Police, and that the police did not tell him anything. Then in cross-examination the witness said that the police did not tutor him and that the police threatened to put him In Jail and to beat him. Then in answer to a question put by the Court the witness said that the police never threatened him. It is quite clear that the witness turned hostile at the trial stage before the Sessions Judge.
11. It is evident that the pattern of the evidence of these witnesses before the Sessions Court is identically the same. In the Sessions Court they went back on their previous statement in committing Court in the same clumsy manner as one behaves while speaking untruth or attempting to conceal the truth. We are satisfied that although these witnesses turned hostile and retracted from their earlier versions, It cannot be said that the evidence given by them in the committing Court is not true or that It cannot be safely relied upon,
12. Apart from the statements of the witnesses, there is also other extrinsic evidence to support the prosecution case. The striking incriminating circumstances against the accused persons are briefly these : The prosecution witnesses implicated both the accused persons before the Punchayat. Besides, there are the extra-judicial confession of accused Jagabandhu before the Panchayat, as also the confessional statements of both the accused persons before the Magistrate P. W. 1. The accused Jagabandhu had produced the lathi M.O. I which contained blood. That apart, the tangia (M.O. VII), the scrappings from the nails of both the accused persons with blood stains (M. O. X and M. O. XV), blood stained cloth and other incriminating material objects were recovered and seized. These circumstances constitute 'something else beyond the evidence itself' of the witnesses before the committal Court as to support the charge of murder against both the accused respondents.
13. The defence suggestion of death of the deceased due to fall on stone cannot be accepted because of the nature of the injuries found by the doctor P. W. 12. The external injuries were as many as nine in number consisting of both lacerated and incised wounds which apparently were caused by the lathis and tangia recovered in the case. The injuries were all over the body and could not have been caused by fall on the stone.
14. The alleged tutoring by the police has been denied by P. W. 8. In answer to a question put by the Sessions Judge the witness said that the Police never threatened him.
15. In our opinion there is enough extrinsic support for the prosecution version of the case. We are satisfied that the statements of the prosecution witnesses before the committing court can be safely relied upon as true and reliable.
16. In this view of the case, we set aside the order of conviction of the accused respondents under Sections 334 and 335 Indian Penal Code and we also set aside the order of acquittal of both the accused respondents of the offence of murder under Section 302, Indian Penal Code.
The accused respondent Jagabandhu Domb and Dalibandhu Domb are both convicted of the charge of murder under Section 302, Indian Penal Code and sentenced to imprisonment for life. The order of conviction, and sentence is modified accordingly.
The Government appeal is allowed.
G.K. Misra, J.
17. I agree.