P.K. Mohanti, Actg. C.J.
1. The appellants, three in number, have been convicted under Section 302 read with Section 34, I.P.C. and each of them has been sentenced to undergo imprisonment for life.
2. Appellant No. 1 Madhuban Dharai and appellant No. 2 Brundaban Dharai are brothers and appellant No. 3 Tebha Dharai is their mother.
3. The charge against the appellants was that on 7-8-1977 about noon they committed the murder of Jita Dharai of their village in furtherance of their common intention due to land dispute. It was alleged that the appellants had encroached upon a portion of the land of the deceased locally known as Bad-mahul Duli and Munda Duli. On the morning of the date of occurrence Bihari Dharai, the son of the deceased took possession of the encroached portion of the land and transplanted paddy. About noon while B'hari Dharai was proceeding towards the canal locally known as Khalkhali Nala and his brother Lala Dharai (P. W. 15) was following him, they saw the accused persons chasing their father. They also saw accused Madhuban assaulting their father with a knife on his face and head and accused Brundaban assaulting him with a bhar Bihari Dharai went to the rescue of his father and assaulted Madhuban and Brundaban with a lathi. Accused Brundaban wrested the knife from the hand of accused Madhuban and gave a stab blow on the left side of the chest of Bihari Dharai who ran away towards the village with the injury on his chest. Then all the accused persons chased the deceased to the land of one Sapna Bagarti and made him lie down there. Brundaban caught hold of the head. Tebha caught hold of the legs and Madhuban cut the neck with a knife as a result of which the deceased died instantaneously on the spot.
4. F.I.R. was lodged by P. W. 15 on the same day at 2.30 p. m. before the A. S. I. of police, Rasuda Out post who was camping at that time at village Kamagaon. After due investigation charge-sheet was submitted aga'nst the accused persons under Section 302 read with Section 34 I.P.C. and in due course they were committed to the Court of Session to stand their trial.
5. At the trial the accused persons den ed the charge and pleaded innocence. Being questioned under Section 313, Cr. P.C. accused Brundaban Dharai stated that on the date of occurrence while he was going towards his field currying cooked rice and a sickle he met the deceased and asked him a; to why he had cut the ridge and closed the water channel. The deceased was holding a stick and a Tangia and h's son Bihari was holding a lathi p.w. 15 Lala Dharai who was carrying a bhar of seedlings obstructed him (Brundaban) on the way. He went towards the field of Sapneswar where a fight took place but he could not say who assaulted whom.
6. Accused Tebha Dharai stated that she had filed a case against Jita Dharai and others as they falsely claimed title to her land.
7. Accused Madhuban Dharai stated that on the date of occurrence the deceased, his two sons Bihari and Lala along with one Parameswar assaulted Brundaban and on his protest he was assaulted by them. Bihari assaulted him with a Bhalla. He fell down unconscious and by the time he got up, the deceased and his companions had gone away.
8. The order of convictions is based mainly on the ocular evidence of P. Ws. 13. 14, and 15. It is urged on behalf of the appellants that these witnesses being related to the deceased and having made contradictory statements, no reliance could be placed on their testimony.
9. That the deceased Jita Dharai died a homicidal death is not disputed by the appellants. It is also amply established by the evidence on the record. The doctor P. W. 7 who conducted autopsy over the dead body of the deceased on 9-8-1977 at 3 P. m. found the following injuries:
(1) Incised wound horizontally placed across the neck on the right side of the mid line commencing at the level of a point just above the thyroid cartilage and extending horizontally 3' long x l' x 2' in dimension. The common carotid artery and jugular veins of right side of the neck were clearly cut through all coats.
(2) Incised wound 2' x 1' x 1' on the upper part of the cheek 1' below the right lower lip.
(3) Incised wound 3' x 2' bone deep situated on the right upper part of forehead.
(4) Incised wound on the left parietal part of head 2' x 1' x bone deep directed longitudinally.
(5) Incised wound 2' x l' x 1' longitudinally placed just in front of left tragus of left ear.
10. In the doctor's opinion, all the injuries were ante-mortem in nature and death was due to shock and haemorrhage resulting from the injury to the carotid artery and jugular veins of the neck caused by a sharp cutting weapon like a knife. The doctor also opined that injury No. (1) was sufficient in the ordinary course of nature to cause death. The medical evidence coupled with the direct evidence of the witnesses leaves no room for doubt that the death of the deceased was homicidal.
11. The crucial question for consideration is whether the appellants are responsible for the crime. P. W. 15 Lala Dharai is the son of the deceased who lodged the first information report at the earliest opportunity at 2.30 d. m, soon after the occurrence which had taken place at 12 noon. In his evidence before the Court he substantially supported the statements made by him in the FIR. His evidence shows that the accused persons had encroached upon a portion of the land of the deceased and on the date of occurrence he and his brother Bihari went to the land and amalgamated the encroached portion with their land. Thereafter when they were returning they found their father being chased by the accused persons. The witness stated to have seen the accused Madhuban assaulting his father with a knife on his face and head and accused Brundaban assaulting him with a bhar. His brother Bihari went to the rescue of the deceased and assaulted Madhuban and Brundaban with a lathi. But accused Brundaban snatched away the knife from the hand of Madhuban and gave a stab blow on the left side of the chest of Bihari who ran away towards the village with the injury on his chest. Then all the accused persons chased the deceased to the land of Sapna Bagarti and made him He down there. Accused Madhuban cut the neck of the deceased bv moving the knife to and fro while Brundaban and Tebha were pressing his head and legs. He identified the knife (M.O. I) as the weapon of offence. His evidence shows that P. Ws. 13 and 14 were present near the spot at the time of incident. He stated that accused Brundaban also threatended to kill him. According to him the accused persons left the spot after P. W. 9 Ratra Misra arrived at the spot. After the occurrence he went to Rusuda Out post to lodge information but the A. S. I. was found absent. He learned that the A. S. I. had gone to Kamgaon. So he proceeded to Kamgaon to lodge the F.I.R. before the A.S:I.
12. In cross-examination he stated that from a distance of about 100 cubits he saw the accused persons chasing his father and from a distance of about 70 cubits he saw his father being first assaulted by the accused persons. Then he saw from a distance of about 30 to 40 cubits the accused persons cutting the neck of his father. In his evidence the witness has clearly stated the occasion, motive and the genesis of the occurrence as also the manner in which it took place. He has given a vivid description as to how the incident occurred. Nothing substantial has been elicited in his cross-examination so as to cast any doubt on his veracity.
13. P. W. 14 Radha Bagarthi is the wife of Sapna Bagarti on whose land the incident of murder took place. She stated that while she was taking bath in the Khalkhali Nala she saw the deceased returning to his village after taking bath in the Nala and the accused persons coming from the opposite direction and chasing the deceased towards the Nala. She also stated to have seen Bihari coming there and giving blows to Madhuban and Brundaban by means of a lathi. She further stated to have seen accused Brundaban resting the knife from the hand of Madhuban and giving a stab blow on the chest of Bihari According to her, the accused persons after assaulting Bihari chased the deceased to her land and after he fell down there Madhuban cut his neck with a knife while Tebha and Brundaban were catching hold of his legs and head. She stated to have seen the occurrence of murder from a distance of about 70 cubits. Her evidence in court gains substantial corroboration from the statements made during her examination by a Magistrate under Section 164, Cr. P.C.
14. P. W. 13 Nityananda Bagarti is the brother in-law of the deceased. He fully supported the statements of P. Ws. 14 and 15. His evidence in court also gains corroboration from the statements made by him under Section 164, Cr. P.C. He categorically stated to have seen Madhuban cutting the neck of the deceased while Brundaban and Tebha were catching hold of his head and legs. He stated to have seen the incident of murder from a distance of 8 to 10 cubits.
15. We do not find any cogent material on record on the basis of which the testimony of P. Ws. 13, 14 and 15 can be disbelieved. It is not shown that P. Ws. 13 and 14 had any kind of ill-feeling against the appellants. The evidence of the eye-witnesses is quite consistent with the medical evidence about the cause, nature and location of the injuries on the deceased. As indicated earlier, the F.I.R. was lodged soon after the occurrence implicating all the three appellants as the assailants of the deceased. The learned Counsel appearing on behalf of the appellants in course of his argument pointed out certain discrepancies in the evidence of the witnesses regarding the assault by accused. Tebha with a bhar on the deceased after his neck was cut. It is to be noticed that the occurrence took place on 7-8-1977 and the witnesses gave evidence in court in Dec. 1978. It is very difficult for the witnesses to remember after such a length of time the minute details of the occurrence.
16. The fact that the witnesses are related to the deceased cannot by itself constitute a sufficient basis for discrediting them. If a witness holds a position of relationship with the party calling him, it is incumbent, on the court to exercise appropriate caution while appraising his evidence and to examine its probative value with reference to the entire facts and circumstances of the case. It is not open to the court to reject the evidence without anything more on the mere ground of relationship. In the present case, we have scrutinised the evidence of the with nesses with more than ordinary case and arrived at the conclusion that they are thoroughly reliable.
17. Bihari Dharai, the son of the deceased was an eye-witness to the occurrence and he himself had sustained injuries at the hands of the accused persons on the spot. But he died during the investigation of the case.
18. P. W. 9 Ratra Misra is a field servant of the deceased and on the date of occurrence he helped Bihari in amalgamating the encroached portion with the land of the deceased. He stated that on hearing a hulla he went to the spot and found the accused persons standing there and the dead body of the deceased lying at a distance of 4 cubits from them. He identified M.O. I as the weapon which he had seen in the hand of Madhuban at that time. He also stated to have seen P. Ws. 13 to 15 on the spot by the time of his arrival there. P. W. 10 Baisakhu Dharai is a close neighbour of the accused and also an agnatic relation of both the accused and the deceased. His evidence shows that on the date of occurrence Brundaban and Madhuban had threatened to assault the deceased. He identified M.O. I. as belonging to Madhuban. The evidence of P. Ws. 9. 10 13, 14 and 15 taken together appears to us to fully warrant the conclusion that the appellants acted in concert in causing the death of the deceased.
19. It was argued on behalf of the appellants that the prosecution has failed to explain the injuries sustained by accused Brundaban Dharai during the occurrence and on that ground the prosecution case should be disbelieved. The doctor P. W. 8 who examined Brundaban Dharai on 9-8-1977 found one lacerated wound on the occipital region of his head and two cut injuries on his right ring finger and right little finger. The doctor opined that the lacerated wound could be caused by a stick and the cut injuries could be caused by a sharp cutting weapon like M.O. I. The doctor also opined that if the hand of the person holding the knife comes in contact with its sharp edge injury Nos. 2. and 3 could be caused.
20. The same doctor examined accused Madhuban on 9-8-1977 and found two lacerated wounds on his right parietal and occipital region; and two bruises, one on the scapula and the other on the back of the right forearm. In the doctor's opinion, the injuries could be caused by a lathi.
21. It is in the evidence of the eyewitnesses that while the accused persons were chasing the deceased during the first phase of the occurrence. Bihari assaulted accused Madhuban and Brun-daban with a lathi in order to protect his father. These two accused persons might have suustained the lacerated wounds and bruises as a result of the assault by Bihari Dharai with a lathi. Accused Brundaban might have sustained the cut injuries on his fingers at the time when the knife was snatched away from his hand by Madhuban. It cannot, therefore, be said that the prosecution has failed to explain the injuries on Madhuban and Brundaban.
22. The evidence on the record clearly shows that Madhuban committed the murder by cutting the neck of the deceased and the acts of the other two appellants in pressing the legs and head of the deceased facilitated the commission of murder. The fact that all the appellants acted in furtherance of their common intention to kill the deceased has been fully proved in the instant case. They were, therefore, rightly convicted under Section 302 read with Section 34, I. P. C
23. Apppellant No. 3 Tebha Dharai is now on bail. Her bail bond is hereby cancelled and she is directed to be taken to custody to serve out the sentence.
G.B. Patnaik, J.
24. I agree.