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Radhu Kandi and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in39(1973)CLT337
AppellantRadhu Kandi and anr.
RespondentThe State
Excerpt:
.....a perusal of their evidence we are convinced that the above-mentioned allegation aeainst appellant ghana kandi on which he stands convicted under section 302 ipc has been very clearly and convincingly established in this case. it is now well settled that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material particulars, but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. 3 and 4 eets ample corroboration from the reliable evidence of p. the saving falsus in uno, falsus in omnibus, as is well settled is neither a sound rule of law nor a rule of practice. the veracity of these..........a perusal of their evidence we are convinced that the above-mentioned allegation aeainst appellant ghana kandi on which he stands convicted under section 302 ipc has been very clearly and convincingly established in this case. p. w- 1 is the son of deceased parbati. he is the person who lodged the f, i, r. he has given a convincing eye witness account of the facts as to how appellant ghana pierced his bhali into the stomach of his (p- w. vs) mother parbati and appellant radhu assaulted binod with a lathi. in his lengthy examination-in-chief he has narrated the entire occurrence in a very vivid manner. his evidence, so far as it relates to the acts committed by the appellants for which they stand convicted, could not be assailed in the lengthy and scrutinising cross-examination. his.....
Judgment:

S. Acharya, J.

1. Appellant Ghana alias Banka Kandi stands convicted under Section 302 I. P. C, for causing the death of Parbati Dei and has been sentenced thereunder to undergo R. I. for life. Appellant Radhu Kandi has been convicted under Section 323 I. P. C for assaulting Binod Behera with a lathi and has been sentenced thereunder to undergo R.I. for four months.

2. The above named two appellants alone with 31 others stood their trial for offences under Sections 148 and 302/149 IPC Appellant Ghana alias Banka Kandi and another accused (since acauitted) were charged under Section 302 L P. C. for intentionally causing the death of Parbati; appellant Radhu Kandi and two others since acquitted were charged under Section 302 IPC for intentionallv causing the death of Binod Behera and another accused had been chareed under Section 212 I. P. C Excepting the appellants all the other accused persons were given the benefit of doubt and acquitted of the charges framed against them. ApDellant Ghana alias Banka Kandi has been convicted for the offence under Section 302 IPC on the finding that he pierced a Bhali into the stomach of Parbati. as a result of which her 'Antabuiula' came out and she succumbed to the said iniurv. Appellant Radhu Kandi has been convicted under Section 323 I. P. C as the Court below finds that he assaulted Binod with a lathi.

3. the prosecution case, so far as the same is necessary and relevant for the consideration of this appeal by the above-named two convicted accused persons is concerned, in short, is that on the date of occurrence i. e. 22-3-1967 there was a betrothal ceremony at the house of one Jhaia Bhoi. To that function deceased Binod Behera and his brother Ananda Behera alone with others had been invited. When the invited oersons were proceeding to the house of Jhaia through the Maihi Sahi of the village thev were prevented by the accused persons from going through that route. On the advice of the Gram Rakhi Trinath Mallik, the invited persons went to the house of Jhaia through another route and attended the feast- Thereafter some of them including Binod and Ananda went to a place locally known as Tangi to see off their relations who attended the feast from other villages. While they were returning home from Tangi. the accused persons, armed with deadlv weapons like Lathi, Bhali. Tenta and Katua. mercilesslv assaulted Binod and Ananda near the Bhaabat Ghar in the Maihi Sahi of the village. Parbati. the wife of Ananda came running to the scene and appellant Ghana alias Banka Kandi pierced a Bhali into her abdomen as a result of which a portion of her intestine came out. Binod and Parbati were hospitalised, but Parbati succumbed to her injuries on the next dav of the occurrence. Binod was treated in the hospital for 8 or 9 days and he died sometime after his discharge from the hospital. The accused persons after assaulting Binod, Parbati and Ananda as stated above indulged in other acts of violence.

4. Both the appellants alleged that Kuber Behera one of their men. was assaulted by Sidha Behera and 20 others belonging to the prosecution party near the Bhagat Ghar. As Jugal Kandi protested. he.too was severely assaulted at that place.. On hearing their shouts the Bada Sahi people came to their rescue. Appellant Radhu denied to have assaulted Binod Behera-and appellants Ghana alias Banka Kandi denied to have committed the murder of Parbati.

5. The trial court, on an elaborate consideration of the evidence on record, acquitted 31 of the 33 accused persons of all the charges framed against them by giving them the benefit of doubt. With regard to the appellants the court below finds that the prosecution has been able to establish beyond doubt that appellant Radhu caused hurt to Binod Behera with a Thenga, and appellant Ghana alias Banka caused the death of Parbati by piercinc a Bhali into her lower abdomen, and in doing so appellant Ghana had the intention of causing bodily injury on Parbati which in the ordinary course of nature was sufficient to cause her death- On such findings it has convicted appellant Radhu under Section 323 I. P. C and appellant Ghana under Section 302 IPC and has sentenced them as stated above.

6. The eve-witnesses to the occurrence involving both the appellants are P. Ws. 1 to 5 and 7. Mrs. Padhi the learned Counsel for the appellants, urged that they are all interested and partisan witnesses and their evidence is wholly unreliable and unworthy of any credit.

P. Ws. 1 to 5 and 7 have consistently testified to the fact that accused Ghana alias Banka Kandi, son of Ananta Kandi, pierced a Bhali, which was in his hand, into the stomach of Parbati as a result of which her Antabuiula (intestine) came out and she fell down at the spot. Out of these witnesses the court below finds that P. Ws. 5 and 7 were probably not nresent at the place of occurrence. The reasons given by the court below for that hesitant finding are not very convincing but as the court below has expressed its doubt to the above effect we also do not propose to act on their evidence. With regard to P. W. 2 the court states that he is an over-zealous witness out to support the prosecution case. On that consideration we discard the evidence of P. W. 2 also. Leaving aside their evidence from consideration, we have on record the evidence of P._Ws- 1. 3-and 4. On a perusal of their evidence we are convinced that the above-mentioned allegation aeainst appellant Ghana Kandi on which he stands convicted under Section 302 IPC has been very clearly and convincingly established in this case. P. W- 1 is the son of deceased Parbati. He is the person who lodged the F, I, R. He has given a convincing eye witness account of the facts as to how appellant Ghana pierced his Bhali into the stomach of his (P- W. Vs) mother Parbati and appellant Radhu assaulted Binod with a lathi. In his lengthy examination-in-chief he has narrated the entire occurrence in a very vivid manner. His evidence, so far as it relates to the acts committed by the appellants for which they stand convicted, could not be assailed in the lengthy and scrutinising cross-examination. His deposition to the above effect inspires confidence. P. Ws. 3 and 4 have also testified to the facts on which these two appellants stand convicted in a very clear and convincing manner- Their evidence too to this effect stands unassailed in the lengthy cross-examination to which they were subiected. There are of course some discrepancies here and there in their evidence, but such discrepancies are bound to occur in human testimony, specially when witnesses are examined after a long lapse of time.

Mrs. Padhi's criticism against, these witnesses that thev are interested and partisan witnesses and so are not to be relied upon, is mostly confined to the fact that P. W, 1 is the son of deceased Parbati and these witnesses figured as accused persons in the counter case instituted by accused Jugal Kandi. Ex. 1-A. the copy of the complaint petition relating to that case, shows that the said case, relating to the occurrence of this case was filed 3 months after the incident and all the eve-witnesses in this case were implicated as accused in that case. That being so we are unable to attach any importance to Mrs. Padhi's above criticism and draw any adverse inferencp against these witnesses on t this account. Moreover, the evidence even of a partisan and interested witness can-' not be discarded merely on that consideration. It is now well settled that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material particulars, but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. But the court while dealing with the evidence of interested and partisan witnesses may in an appropriate case look for corroborate (See ). In the present case the evidence of each of the above-mentioned three witnesses, so far as the same relates to the commission of the offences by the appellants for which thev stand convicted, is amplv corroborated by that of the other. Their evidence regarding the in-iuries inflicted on the deceased and Binod Behera also sets corroboration from the evidence of P. W. 12. the doctor.

Moreover, the fact that P. W. 1 is the son of the deceased Parbati adds to the value of his evidence, as it would be expected of him to set the real culprit responsible for the murder of his mother, punished for that offence rather than to rope in any innocent person in preference to the real offender for that offence. See : 1971CriLJ285 . The evidence of P. Ws. 3 and 4 eets ample corroboration from the reliable evidence of P. W. 1 to this effect.

7. Mrs. Padhi's comment that P. W. 4's name does not appear in the F. I. R. so he is a got-up witness is of no substance, as the non-mention of his name in the F. I. R. may bp an honest omission, an inadvertent mistake or may be due to various other conceivable reasons. A man shocked with the death of his mother under such circumstances was not expected to maintain the mental eauanimitv of an unconcerned man so as to remember such things and to give a correct report of the incident in all its aspects.

8. It is also commented by Mrs. Padhi that the acquittal of 31' accused persons out of $3 put up for trial indicates that all the eve-witnesses have made false statements on oath and so no reliance should be placed on their evidence. The saving falsus in uno, falsus in omnibus, as is well settled is neither a sound rule of law nor a rule of practice. The discussion and the observations of their Lordships on this topic in Ugar Ahir's case. : AIR1965SC277 aptlv answer the above comment of Mrs. Padhi. The dutv of the court in such a case is to scrutinise the evidence carefullv in order to separate the grain from the chaff, alwavs taking carp not to reconstruct a storv of its own after disbelieving or discarding the substratum of the prosecution case or the material parts of the evidence. In this case we have carefully scrutinised the evidence of these three witnesses. The court below acquitted the other accused persons as the evidence of these witnesses, in the estimation of the court, was not sufficient to establish the allegations against them beyond reasonable doubt. The veracity of these witnesses has not been doubted and their evidence is not found to be unreliable or unworthy of credit. The court below and we in this Court examined and scrutinised their evidence with care and caution and find that on their evidence the above-mentioned prosecution allegations against these two appellants have been established bevond all reasonable doubt. We therefore do not find any veight and/or substance in Mrs. Padhi's comment to this effect,

9. It is also true that some of the witnesses have admitted that sornp other persons were also present at the time and near about the place of the occurrence. These witnesses do not state if those persons were present throughout the occurrence. There is also nothing on which it can be said that those persons were capable of unfolding any material part of the occurrence. Moreover, it is not the law that all the persons who witnessed the occurrence should be examined by the prosecution. It is open to the prosecutor to make a selection out of the manv witnesses available for the purpose. But the selection must be fair and honest and not with a view to suppress inconvenient witnesses. Therefore if it is shown that the other persons who witnessed the occurrence were deliberately kept back with some oblique motive or thev proved to be inconvenient witnesses then the court mav. draw adverse inference against the Prosecution and may in a proper case regard the failure of the prosecutor to examine such persons as constituting a serious infirmity in the proof of the prosecution case. (See : [1964]3SCR397 and : 1968CriLJ1655 .)

Mrs. Padhi has not been able to make out any such case on the non-examination of the other persons. No aues-tion to elicit anything to the above effect has even been asked to P. W. 14, the I. O. That being so no adverse inference can be drawn for the non-examination of such persons-

10. On the above considerations and on a careful perusal of the evidence on record we are satisfied that the conviction of appellant Ghana alias Banka Kandi under Section 302 IPC and that of appellant Radhu Kandi under Section 323. IPC are well founded and we do not see any reason to interfere with the same. The sentence imposed against appellant Ghana cannot be questioned, and that against appellant Radhu does not call for any interference, We therefore do not find any merit in this appeal and it is accordingly dismissed. Appellant Radhu Kandi be directed to surrender to the bail bond to undergo the sentence imposed aeanist him. The other aDPellant, as it appears is in the jail.

B.K. Ray, J.

11. I agree.


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