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State of Orissa Vs. Bishnu Charan Muduli - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1985CriLJ1573
AppellantState of Orissa
RespondentBishnu Charan Muduli
Cases ReferredState v. Aru
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 8. it has been urged on behalf of the appellants that the evidence of the approver is not at all reliable as he has made prevaricating statements at different stages which would bring about his condemnation and his evidence has not received corroboration in.....b.k. behera, j.1. the appellants bishu charan muduli, rabindranath swain, pramod kumar barik, suru kama and amrutlal banchor stood charged with the co-accused govinda naik under section 120b of the penal code (for short, 'the code') for having entered into a conspiracy at raikrakhol to kill n. nanda kumar choudhury (to be described hereinafter as 'the deceased') in pursuance of which they killed him in the night of july 15, 1982. they also stood charged under section 3% of the code for having committed dacoity in respect of cash and other properties of the deceased during the commission of which the deceased was murdered. the appellant pramod kumar barik stood separately charged under section 404 of the code for having dishonestly misappropriated or converted to his own use a gold ring.....
Judgment:

B.K. Behera, J.

1. The appellants Bishu Charan Muduli, Rabindranath Swain, Pramod Kumar Barik, Suru Kama and Amrutlal Banchor stood charged with the co-accused Govinda Naik under Section 120B of the Penal Code (for short, 'the Code') for having entered into a conspiracy at Raikrakhol to kill N. Nanda Kumar Choudhury (to be described hereinafter as 'the deceased') in pursuance of which they killed him in the night of July 15, 1982. They also stood charged under Section 3% of the Code for having committed dacoity in respect of cash and other properties of the deceased during the commission of which the deceased was murdered. The appellant Pramod Kumar Barik stood separately charged under Section 404 of the Code for having dishonestly misappropriated or converted to his own use a gold ring fitted with a green stone by removing it from the possession of the deceased. The appellants Bishnu Charan Muduli and Rabindranath Swain stood charged under Section 471 of the Code for having fraudulently or dishonestly used as genuine registration certificate book purported to be that of the truck bearing registration No. ORK 3577 which they knew or had reason to believe at the time of use to be forged document and under Section 420 of the Code for having cheated the deceased and Krishna Steel Industries of Rajgangpur by dishonestly inducing them to deliver iron rods and G. C. sheets which were the properties of the deceased and Krishna Steel Industries by changing the registration certificate book and the number plate of the truck which actually bore the registration No. OSU 542. Three other co-accused persons, namely, Dindayal Agarwala, Santosh Kumar Saraf and Trailokya Sahu, stood charged under Section 411 for having received stolen properties belonging to the deceased and under Section 414 of the Code for concealing or disposing of or 'making away with' the properties of the deceased which they knew or had reason to believe to be stolen properties.

2. The case of the prosecution has. been set out in details in the judgment of the trial court and we would make a brief narration in this judgment. Having entered into a contract with Jagabandhu Biswal (P.W.40), the owner of the truck bearing registration No. OSU 542, the appellant Bishnu Charan Muduli, who had been working as the driver of the truck with Uttam Kumar Nath (P.W.39) working as its helper, took the truck on hire on July 12,1982 carrying in it cattle feed belonging to Rabin Kumar Gupta (P.W.45), a businessman at Jode, with the appellant Rabindranath Swain as the Khalasi without taking the helper (P.W.39) on the pretext that he would remain for payment of the arrear taxes for the vehicle. The cattle feed was unloaded at Jode in the morning of July, 13, 1982. The appellants Bishnu Charan and Rabindranath proceeded from Jode to Rajgangpur having changed on the way the number plate of the truck assigning a false number thereto, viz., ORK 3577 and keeping with them a fake and forged registration certificate book in respect of ORK 3577. At Rajgangpur, the iron rods purchased from Krishna Steel Industries and the G. C. sheets purchased from Bijay Commercial Company at Rourkela by the deceased were loaded in the truck. The total value of the articles was about Rs. 60,000/-. The deceased sat in the truck which carried the goods for his shop standing in the name of his elder brother N. Dillip Kumar Choudhury (P.W.58) at Sorada and for the shop of his nephew Bhaktaram at Badakodanda near Bhanjanagar, both the places being situate in the district of Ganjam. The aforesaid two appellants and the deceased travelled in the truck together from Rajgangpur to Maneswar via Sundergarh and Jharsuguda having purchased diesel on the way at Sundergarh. As one of the tyres got flat, it was repaired by the appellant Bishnu Charan at Maneswar in the tyre repairing shop of Pitambar Purohit (P.W.67). At Maneswar, the appellant Pramod Kumar Barik joined the other two appellants. There, the appellant Pramod requested Sanatan Guduki (P.W.65) to help him and the other appellants in killing the deceased so that he would be paid Rs. 1,000/-. P.W.65, after consulting Panchanan OTimduki (P.W.68), refused. The three appellants and the deceased then travelled to Rairakhol while the appellant Pramod Kumar was driving the vehicle. It was halted at Rairakhol at about 11.30 p.m. The three appellants took their food in the hotel of Bholanath Sarma where the approver Pranabandhu Behera (P.W.1), the co-accused Govinda Naik and the appellants Amrutlal Banchor and Suru Kama had been working as servants and all of them entered into a conspiracy to kill the deceased on the way and loot his properties. It has been agreed that the hotel servants were to be paid a sum of Rs. 5,000/- after commission of the murder of the deceased. As planned, the approver and the hotel servants proceeded ahead and stopped at a short distance from Rairakhol. The truck proceeded and they got into it on the way on the pretext that they would go in it on payment of fare. At a distance of about 15 KMs. from Rairakhol, the truck was halted and taken to a kutcha road towards village Kutasinghe on the false plea that the appellant Bishnu would answer the call of nature. There, the deceased went out to answer the call of nature being watched by the approver and the other accused persons named above. When the deceased returned to the truck, the appellants and the approver besides the co-accused Govinda threatened him and asked him to give away his moveables. Owing to grave fear for his life, the deceased parted with a sum of Rs. 800/- and his wrist watch (M.O.V) and the cash were kept by the appellant Suru Kama. The accused persons including the approver then pulled the deceased from the truck and assaulted him by dealing leg kicks, hand blows and blows by two wooden Gutukas (M.Os. II and III) kept in the truck, in spite of the deceased's entreating them not to kill him as he had parted with his belongings and he had married recently. The' culprits did not pay any heed, assaulted him to death and threw away the dead body in a bush nearby. The gold ring which was in the hand of the deceased was taken away by the appellant Pramod Kumar and was later converted by him through the goldsmith Panchanan Sahu (P.W.23) into a Guna (mpse prnament) for Sabitri Badi (P.W.66) having kept the green stone fitted to the ring in the compass box of Sabitri. After killing the deceased and looting the properties from his person, the truck was brought back to the outskirts of Rairakhol where the approver and the hotel servants were left. The truck was then brought to Cuttack with the iron rods and G. C. sheets which were sold away to the co-accused Trailokya alias Trilochan Sahu, Santosh Kumar Saraf and Dindayal Agarwala. Thereafter, the appellant Bishnu Charan, in the company of the appellant Rabindranath, returned the truck to its owner (P.W.40) in the presence of the helper (P.W.39).

3. In the meantime, the relations of the deceased at Sorada, who had been expecting the deceased back home with the purchased articles within a couple of days, waited till July 19, 1982 and thereafter, on July 29, 1982, Ramakanta Prusti (P.W.56) received the invoices from Krishna Steel Industries through post. It could be known from these documents that the articles had been sent from Rajgangpur in a truck on July 14, 1982. P.W.56 went to Rajgangpur on July 20,1982 for enquiry about the materials and the deceased. A couple of days thereafter, P. W.58 with some others went to Rajgangpur and ascertained from the Manager of Krishna Steel Industries that the driver Bishnu Charan had informed him that he would be returning via Keonjhar in truck No. ORK 3577. They went to the check gate at Panposh and came to know that no truck bearing registration No. ORK 3577 had passed through that check gate. Then they came to the check gate at Jharsuguda and on enquiry, came to learn that the truck bearing registration No. ORK 3577 had passed through that check gate during the night of July 14, 1982. P. W.58 and others returned to Bhanjanagar thinking that the deceased must have arrived at Sorada in the meantime, but the truck had not arrived and the deceased had not come. On August 1, 1982, Ramakanta Prusty (P.W.56) lodged information at the Bhanjanagar Police Station about the missing of the deceased and the materials as per Ext. 121. On July 15, 1982, Karunakar Behera (P.W.50), Daitari Dehury (P.W.51) and Bhajamana Behera (P.W.52) saw the dead body of an unknown person lying in the jungle near a bush and lodged information about it at the Kishorenagar Police Station. On the basis of this report, the Assistant Sub-Inspector of Police (P.W.79) attached to that police station visited the the spot during the absence of the Officer-in-charge and drew up an Unnatural Death First Information Report (Ex. 90). Several injuries were noticed on the person of the dead body and marks of struggle on the ground were also noticed. The police officer found marks of tyres of a truck on the spot and patches of blood-stains on the ground. A leather chappal of the left leg of a person (M.O.IV) and a wooden Gutuka (M.O. II) stained with blood were lying on the spot. The Assistant Sub-Inspector made inquest over the dead body and sent it for post-mortem examination at the Handapa Hospital where the post-mortem was done and it came to light that the death of the deceased was homicidal in nature. Steps were taken to take the photographs of the deceased and the photographs were taken. In the course of investigation, stolen articles removed during the commission of dacoity belonging to the deceased were recovered from the possession of the appellants Bishnu Charan Muduli, Pramod Kumar Barik and Suru Kama. Clothes with stains of blood were recovered from the possession of the appellant Amrutlal Banchor. During the course of investigation, the accused Pranabandhu Behera turned approver and was 'granted pardon. His confessional statement and his statement under Section 306 of the Criminal P.C. were recorded. On the completion of investigation, a charge-sheet was placed and the appellants were prosecuted being charged as stated above.

4. To bring home the charges, the prosecution had examined eighty-seven witnesses. The plea of the appellants was one of denial and false implication. Four witnesses had been examined for the defence.

5. On a consideration of the evidence, the learned Sessions Judge acquitted the co-accused Govenda Naik as the evidence of the approver had not been corroborated with regard to his complicity. All the appellants have been convicted under Section 396 of the Code and while the appellant Bishnucharan Muduli has been sentenced to death, each of the other appellants has been sentenced to undergo imprisonment for life. All the appellants have been convicted under Section 120B of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of ten years. The appellants Bishnucharan Muduli and Rabindranath Swain have been convicted under Sections 420 and 471 of the Code and have been sentenced to undergo rigorous imprisonment for a period of five years and for a period of two years respectively thereunder. The appellant Pramod Kumar Barik has been convicted under Section 404 of the Code and sentenced to undergo rigorous imprisonment for three years. Directions have been made in the judgment that the sentences of imprisonment passed against the appellants would run concurrently. The learned Sessions Judge has submitted the record to this Court for confirmation of the sentence of death as provided in Section 362 of the Code of Criminal Procedure. The death Reference and the Criminal Appeals presented by the convicted appellants have been heard together and shall be governed by this common judgment.

6. It has not been disputed at the Bar and indeed, it cannot be, in view of the clear and categorical medical evidence, that the deceased had died a homicidal death. Indisputably, the deceased had purchased G. C. sheets from Rourkela and iron rods from Krishna Steel Industries of Rajgangpur. He was done to death by some person or persons where his dead body had been noticed and the inquest was held. It admits of no doubt from what had been found by the Assistant Sub-Inspector of Police that there were marks of tyres of a truck and stains of blood on the spot with a wooden Gutuka (M.O. II) lying there and the close relations of the deceased have identified M.O. IV to be the chappal of the right leg of the deceased. All this would show that the deceased was assaulted to death on the spot.

7. As to the commission of the offence of dacqity with murder by the approver and the appellants besides Govinda Naik (acquitted), the prosecution has mainly banked on the evidence of the approver (P.W. 1) besides other pieces of corroborative evidence.

8. It has been urged on behalf of the appellants that the evidence of the approver is not at all reliable as he has made prevaricating statements at different stages which would bring about his condemnation and his evidence has not received corroboration in material particulars with regard to the participation in the commission of crimes by the appellants. It has been submitted on behalf of the appellants Bishnucharan Muduli and Rabindranath Swain that they could not be held guilty of the charges under Sections 420 arid 471 of the Code. The learned Additional Government Advocate has, however, submitted that there is no reason to discard the evidence of the approver which has received adequate corroboration from independent and reliable sources regarding the complicity of the appellants other than the appellant Amrutlal Bachor from whom some clothes suspected to have stains of blood had been recovered and seized and this was the only piece of corroborative evidence against him. As to the charges under Sections 420 and 471 of the Code, it has been submitted by the learned Additional Government Advocate that the evidence did warrant a conviction of the appellants Bishnucharan Muduli and Rabindranath Swain under Section 471 of the Code, but in the absence of any evidence that these two appellants had practised cheating at the time of receipt of the iron rods and G. C. sheets, the charge under Section 420 of the Code could not be said to have been established. For the reasons to follow, the submissions made on behalf of the State by the learned Additional Government Advocate with regard to the complicity of the appellant Amrutlal and as regards the order of conviction against the appellants Bishnucharan and Rabindranath under Section 420 of the Code are reasonable and well-founded.

9. Before dealing with the contentions raised at the Bar, it would be better to keep in mind some well-settled principles relating to the appreciation of the evidence of an approver. The approver's evidence must show that he is a reliable witness. This test is common to all the witnesses. If this test is fulfilled, his evidence should be corroborated in material particulars to connect each of the accused persons with the commission of the offence. If the testimony of the approver is itself uninspiring and unacceptable justifying its outright rejection, it would be futile and unnecessary to look for corroborative evidence. It is only when the approver's evidence is considered otherwise acceptable that the court applies its mind to the rule that his testimony needs corroboration in material particulars connecting or tending to connect each one of the accused persons with the commission of the crime charged. An approver is a most unworthy friend, if at all and he having bargained for his immunity, must prove his worthiness for credibility in the court. An approver's evidence is to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by the approver pertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which the conviction may be based. Every approver comes to give evidence seeking to purchase his immunity and that is why, to start with, he is an unreliable person and the rule of caution calling for material corroboration is constantly kept in mind by the court by time-worn judicial practice. The approver is a person of low morals for the reasons that being a co-participator in the crime, he has let down his companions. It is for this reason that a rule of caution has grown whereby the court has to see if his evidence is corroborated in material particular connecting the accused with the crime. The evidence of an approver must be corroborated in material particulars and qua each accused. (See : 1957CriLJ1014 Sarwan Singh Rattan Singh v. State of Punjab : 1959CriLJ1492 Jnanendra Nath Ghose v. State of West Bengal : [1963]3SCR830 Bhiva Doulu Patil v. State of Maharashtra : 1969CriLJ1435 Piara Singh v. State of Punjab : 1973CriLJ914 Ram Narain v. State of Rajasthan : [1975]3SCR453 Ravinder Singh v. State of Haryana AIR 1979 SC 569 ; 1979 Cri LJ 476 G. S. Bakshi v. State (Delhi Administration) and : 1980CriLJ965 State (Delhi Admn.) v. V. C. Shukla.)

10. The approver came to the scene at Rairakhol where the criminal conspiracy was hatched, as sought to be established by the prosecution. Certain clear and clinching circumstances borne out by the prosecution evidence before the appellants Bishnucharan, Rabindranath and Promod Kumar reached Rairakhol may be kept in mind.

11. Indisputably, P.W.45 of Joda had purchased cattle feed from the Animal Feeds Diaries & Chemicals (P) Ltd., Bhubaneswar, on July 12,1982 as per the bill, Ex. 19 and had got the same loaded in the truck bearing registration No. OSU 542 for transport from Bhunameswar (Bhubaneshwar?) to Joda of which the appellant Bishnucharan was the driver with P.W. 39 as the helper. This truck was brought from Bhubaneswar to Kaliaboda, a Place within the city of Cuttack and as per the instructions of the appellant Bishnucharan P.W.39 stayed back at Cuttack to deposit the road tax and the appellant Rabindranath boarded the truck with a view to helping the driver as the helper. The truck was taken to Joda and the cattle feed was unloaded in the early morning of July 13, 1982, as deposed to by P.W.45 eighty litres of diesel was purchased for this truck as per the bill, Ex, 85 at Joda, as testified by P.W. 46. Thus far, the defence seems to have had no dispute with the prosecution. All the facts and allegations thereafter have been denied by the defence.

12. It would be clear from the evidence that G. C. sheets had been purchased from Vijaya Commercial Company at Rourkela on July 14,1982 as per the documents, Exts. 21 to 23 and 26 to 28 by three firms including M/s. D. K. Choudhury of Sorada, as stated by P. W.7, the brother of the proprietor of Vijaya Commercial Company and these G. C. sheets were brought to the premises of Krishna Steel Industries at Rajgangpur in the truck bearing registration No. ORO 1602 of which Ram Bhajan Pande (P.W.8) was the driver. As per the evidence of P.Ws.44, 63, 64 and 75, the Supervisor, Officer Assistant, Store Issue and Manager respectively of Krishna Steel Industries, G. C. sheets brought from Vijaya Commercial Company had been unloaded in their factory premises and iron rods were purchased by the deceased as per the documents, Exts. 104 to 107, from their firm on July 14, 1982. The G. C. sheets brought from Rourkela and the iron rods purchased from Rajgangpur were loaded in the truck bearing registration No. ORK 3577 arranged by the deceased and the appellant Bishnucharan was the driver of that truck. As their evidence would show, the deceased left Rajgangpur in that truck along with the driver and the helper P.W.44 had seen M. O. XII purported to be the registration certificate book of the truck bearing registration No. ORK 3577, according to the prosecution, had been forged and fabricated and had been kept in the truck of which the appellant Bishnucharan was the driver, for use. Thus it would be clear from the evidence that a fake number plate bearing registration No. ORK 3577 had been given in place of the real number of the truck OSU 542 and this evidently had been done for two purposes, as submitted by the learned Additional Government Advocate, viz., to avoid detection after commission of the crime which devilish design had evidently caught the appellants Bishnucharan and Rabindranath on the way after they left Joda and because the arrear tax had not been paid for the truck bearing registration No. OSU 542. P.W.44 had given evidence on looking at the photograph (M.O. LXII) of the deceased taken in the course of investigation that it was the photograph of N. Nanda Kumar Choudhury who had purchased iron rods from their firm. The truck with registration No. ORK 3577 loaded with iron roads had passed through the Commercial Tax Check Gate at Jharsuguda at about 10 P.M. on July 14, 1982 and as testified by P.W.48 with reference to Ex. 88, the relevant entry in the register maintained at the check gate, one B. C. Muduli, whose driving licence number was 2104 of 1978 (Bararh), was the driver. There was the evidence of Bhaskar Patra (P.W.55) that he had seen a truck having been parked by the side of the road at a distance of about one kilometre from Charichhak at Sambalpur 'towards Jharsuguda in the morning of July 15, 1982 and he had found the deceased and the appellants Bishnucharan and Rabindranath near the truck. On the request of the deceased, he (P.W. 55) helped the appellant Bishnucharan by giving him a jack which was returned by the appellant Bishnucharan to him. The evidence of P.W.55 has been ' corroborated by P.W.88, the elder brother of the deceased, who has deposed that P.W.55 had informed him that he had seen the deceased between Jharsuguda and Sambalpur in the morning of July 15, 1982. There could thus be no doubt that on that day and at that point of time, these two appellants and the deceased had been seen together. There was the clear and cogent evidence of Pitambar Purohit (P. W.67), who owned a tyre repairing shop at Maneswar, a place between Sambalpur and Rairakhol, that the appellant Bishnucharan had got a tyre vulcanised in his shop. The evidence of this witness would show that the appellant Bishnucharan had been known to him for about two years prior to that and he had got repaired the tyres of his truck on five to six occasions in his shop. According to him, the appellant Pramod Kumar Barik had been living at Maneswar for about five years and he had been driving trucks. P.W.67 had seen both these appellants near the truck. His further evidence was that the truck left his shop at 4 P.M. and both the appellants Bishnucharan and Pramod Kumar went in that truck towards Cuttack. It could be that the deceased and the appellant Rabindranath had not come to the shop of P.W.67 and they had been waiting somewhere to board the truck after the tyre was repaired.

13. One then comes to the scene at Rairakhol where A. Satyanarayan Patra (P.W.3), a college-mate of the deceased, who had been travelling in a bus which had halted at Rairakhol for some time, had seen the deceased standing at a short distance from a Pan shop where P.W.3 had gone to purchase biscuits and both of them talked for some time and to his query, the deceased had stated that he had been coming in a truck loaded with iron rods which he had purchased from Rajgangpur. According to P.W.3, some trucks were standing at a distance of about fifty cubits from them. P.W.3 then got into the bus after it blew horn and came to Cuttack. There is absolutely no reason to discard the evidence of P.W.3.

14. These then were the circumstances clearly appearing in the evidence before the appellants Bishnucharan, Rabindranath and Pramod Kumar with the deceased came and halted at Rairakhol where, according to the prosecution, the conspiracy to commit the murder of the deceased took place.

15. From the foregoing facts and evidence, it would be clear that the two appellants Bishnucharan and Rabindranath, who had been travelling in the truck after leaving Joda, had in their possession a forged registration certificate book (M.O.XII) purported to be of the truck bearing registration No. ORK 3577 after having changed the number plate of the truck on the way and this forged and fabricated registration certificate book (M.O. XII) had been shown at the firm of Krishna Steel Industries at Rajgangpur. The same had been used by bringing it in the vehicle for production as and when required by appropriate authorities. There had thus been fraudulent user of M.O. XII as genuine with the knowledge of two appellants that it was a forged document. There was sufficient evidence on record that the Executive Engineer, Extra High Tension Construction Division No. 11, Jeypore, in the district of Koraput, was the owner of the truck bearing registration No. ORK 3577 and that at the relevant time, the truck bearing that registration number had been kept in a garage for repairs. For the reasons recorded in the judgment, the learned trial Judge has found that the charge under Section 471 of the Code has been established against these two appellants and we see no justifiable reason to take a different view.

16. There was no evidence, however, to warrant a conviction of these two appellants, namely, Bishnucharan and Rabindranatn, under Section 420 of the Code for cheating. It cannot be said from what has been stated above that these two appellants had practised deception and had induced anyone to deliver properties to them. In our view, the order of conviction of these two appellants in respect of this offence was misconceived. The learned Additional Government Advocate has fairly submitted that the order of conviction of these two appellants in respect of this charge cannot be' sustained in law.

17. We may also at this stage discuss the evidence of two witnesses, namely, P.Ws. 65, with regard to a proposal made by the appellant Pramod to P. W.65 at Maneswar to join him in killing the deceased on payment of Rs. 1,OOO/- According to the evidence of P.W.65, a rickshaw puller, he contacted P.W.68, a day labourer and then informed the appellant Pramod that he would not agree to the proposal. In the first place, there was no evidence of any close acquaintance of the appellant Pramod with P.W.65. It was highly unlikely that the appellant Pramod would expose himself by making such a sinister and criminal proposal to P. W.65 which might create evidence against him. There has been no charge of conspiracy against the appellants at Maneswar. The charge of conspiracy reads that this crime was committed at Rairakhol. In any case, the evidence of P.Ws. 65 and 68 is not impressive and does not deserve credence. In our view, the learned Sessions Judge went wrong in accepting their evidence.

18. This takes us to the scene of alleged conspiracy at Rairakhol. There is clear and acceptable evidence that the approver, the appellants Surur Kama and Amrutlal Banchor and the co-accused Govinda Naik were serving in the hotel of Bholanath Sarma (not examined) at Rairakhol at the relevant time. P.W.30 was one of the servants in the same hotel working then. The betel shop of P.W.29 was opposite to the hotel of Bholanath intervened by the road. It would be seen from the evidence of the approver (P. W. 1) that he had been serving in the hotel for a number of years and for about three years prior to the date of incident, the appellant Pramod, who had been working sometimes as a helper and sometimes as driver in trucks, used to visit this hotel and take food. All this would show, as P.W.1 had testified, that the appellant Pramod had been known to P.W.1 from before. According to P.W.1, at about 1.1 P.M. on July 15, 1982, the appellant Pramod, whom he had known from before and the appellants Bishnu and Rabindra, whom he saw for the first time on that day, kept a truck loaded with iron rods in front of their hotel and came to their hotel. He had seen them setting down from the truck. P. W. 1 had testified that the appellant Pramod told him that the iron tod dealer was sitting in the truck and had much money with him. The appellant Pramod suggested to him (P.W.1) that they would all kill him and take away his money. P.W.1 agreed to this proposal and told him that he would consult the appellants Suru Kama and Amrutlal and the co-accused Govinda Naik. He consulted them and they agreed. Thereafter all of them gathered under a Kadamba tree where they were told by the appellant Pramod that if they killed the iron rod dealer, they would be paid Rs. 5,000/-. According to P.W.1, the appellants Binshu and Pramod told them not to divulge this thing before anyone and all of them took oath in the name of Lord Jagannath that they would not divulge this before any person. As deposed to by P.W.1, the appellant Pramod went to the truck and all of them came back to their hotel when the iron rod dealer was moving near the truck and the appellant Pramod showed him to them. P. W. 1 has then described as to 'how as planned and instructed by the appellant Pramod, he and the other three hotel servants, namely, the appellants Amrutlal and Suru Kama and the co-accused Govinda, went ahead and having stopped the truck on the way in the outskirts of Rairakhol, told the appellant Pramod on his asking that they would be going to Bamur and Pramod told them that each of them had to pay Rs. 2.25 paise for travelling up to Bamur and they agreed. Then all of them eat in the truck which proceeded towards Cuttack with the appellant Pramod driving it and it was halted at a distance of about 15 KMs. from Rairakhol on the main road. The appellants Bishnu and Pramod got down from the truck saying that they would go for answering the call of nature. They went on a kutcha road inside the jungle area and after some time, came near the truck and asked all of them to sit. The appellant Pramod then drove the truck on the Kutcha road instead of taking on the main road and after moving to a distance of about 300 cubits, parked the truck. The deceased then took some water and went out to answer the call of nature. According to P.W.1, all of them got down from the truck and followed the deceased apprehending that he might escape. After the deceased returned and when he was coming towards the truck, all of them threatened him to give away the money which he had. According to P.W.1, he assaulted the deceased by means of the torchlight he was holding. The deceased requested then} not to assault him as he had married only two months prior to that and further told them that he would give them his entire belongings. The deceased then got inside the truck, opened his attache and brought out cash of Rs. 800/- from that attache. The deceased also took out his wrist watch and gave away the cash and the wrist watch to P.W. 1 which were handed over by P.W.1 to the appellant Suru Kama. At that time, the appellants Bishnu, Pramod, Rabindra and Amrutlal and co-accused Govinda were standing on the road and P.W.1, appellant Suru Kama and the deceased were sitting in the truck, as testified by P.W.1. P.W.1 has further deposed:

Accused persons Bishnu Muduli, Rabi Swain, Govinda Naik, Amrutlal Banchhor and Pramod Barik dragged the legs and hands of that iron rod dealer and myself and Suru Karan pushed down that man from the truck. As a result of this, that iron rod dealer fell down from the truck. The iron rod dealer was requesting us not to assault him and said that he had given all the valuables he had. Then we i.e., myself and Suru Kama got down from the truck. Bishnu, Babi, Pramod, Amrutlal, Govinda, myself and Suru Kama assaulted that iron rod dealer with leg kicks, fist blows, slaps, etc. The iron rod dealer was going in front of the truck but we caught hold of him. Pramod Barik then boarded the truck and brought down two 'Katha Gutula' (Pieces of wood). Those were used for stopping the truck. Bishnu Muduli assaulted that iron rod dealer at different parts of his body with one of those wooden pieces. The iron rod dealer was producing sound in agony as 'Marigali Marigali'. (Matter in vernacular omitted - Ed.) Accused Pramod Barik then brought the other piece of wood and assaulted with it on the head of that iron rod dealer twice. We all the 7 persons i.e., the aforesaid six accused persons and myself assaulted that iron rod dealer with the aforesaid wooden pieces on different parts of his body. In the result, that iron rod dealer sustained several injuries and ultimately died. Pramod Barik suggested that they would make the truck run on that iron rod dealer (Hereinafter referred to as the 'deceased')- But I cannot say if actually he made the truck run on the deceased or not. Pramod Barik then drove the truck backwards.

Amurtlal Banchhor and Pramod Barik dragged the deceased up to a bushy area and threw the dead body there. At that time I was focusing torch light at them.

The deceased was having a golden ring in one of his fingers of his hand. The ring had a green stone. Accused Pramod Barik took out that ring from the hand of the deceased and took it way. The deceased was having a white lungi and a sandow banion (Banion without hands) on his person. There was a pair of chappals (leather) in the legs of the deceased.

According to P.W. his handkerchief (M.O. VI) had fallen down on the spot during the occurrence. He has also deposed that on their request, the appellant Bishnu, who drove the truck on the request of the appellant Pramod who said that his legs were trembling, brought them to the outskirts of Rairakhol and left them there. The sum of Rs. 800/- carried by them was divided among P.W.1, the appellants Amrutlal and Suru Kama and the co-accused Govinda, as stated by P.W.1. He has identified some of the articles in the court by stating thus:

This is that attache marked M.O.I. which the deceased had with him. These are the two pieces of wood which were in the truck and with which we all the aforesaid six accused persons and myself had assaulted the deceased, marked M.O. II (longer wooden piece) and marked M.O. Ill (shorter flat wooden piece), Now I cannot say which one of these two wooden pieces was thrown down the truck by the accused Pramod Barik. This is the pair of leather chappals which the deceased was wearing marked M.O. IV. This is that wrist watch marked M.O. V which the deceased was having in his hand which he had given to us. This is my handkerchief marked M.O. VI which had tied to my neck which had fallen down at the place where we assaulted the deceased. This is that white banian which the deceased was wearing marked M.O. VII.

This is that white Dhoti which the deceased was wearing marked M.O. VIII.

19. We have been taken through his long cross-examination. Nothing substantial has been brought out to discredit his testimony except for the fact that some statements made by him in the court implicating the appellants had not been so stated by him when he had been examined by the Investigating Officer in the course of investigation. For instances, he had not stated in the course of investigation that the appellant Pramod and another called him and three other accused persons, namely, Suru Kama, Govinda Naik and Amrutlal Bachhor and asked them about the proposal to kill the deceased or that the appellant Pramod told them that a sum of Rs. 5,000/- would be given to them. He had not stated to the Investigating Officer that his handkerchief had fallen at the place of occurrence, nor that the appellant Pramod had asked them to pay Rs. 2.25 paise for going in the truck to Bamur. He had not stated to the Investigating Officer that the deceased made over Rs. 800/- and his wrist watch to him (P.W.1), as deposed to by him in the court and had stated that the deceased gave those things to them. By itself, this could not be considered to be a material discrepancy. P.W.1 had not stated to the Investigating Officer that he made over the cash and the wrist watch to the appellant Suru Kama. He had not stated either that the deceased had requested them not to kill him as he had married about two months prior to that. He had not stated either that he assaulted the deceased first by means of the torchlight he was holding. He had not stated in the course of investigation before the police authorities that he and the appellant Suru Kama pushed the deceased down from the truck while the other culprits pulled him by his legs and hands, as testified by him in the court. It must be kept in mind that the aforesaid omissions have been sought to be established as contradictions in the evidence of P.W.1 by drawing his attention to the statements made by him in the course of investigation when he had been examined not as a witness, but as an accused. In the very nature of things, a person being examined as an accused, would not, in the normal course, implicate himself and make incriminating detailed statements involving him and the other culprits. In this connection, we would usefully quote an extract from the case of Madan Mohan Lal v. State of Punjab : 1970CriLJ898 . Their Lordships have observed:

There was also nothing to show that the approver in his statement before the Magistrate, who passed the order granting him pardon, had not mentioned the name of the appellant and the said Danesh Kumar and had not referred to the roles played by them as deposed to by him in the Trial Court. It was possibly because no such omission was found in his statement before the Magistrate that the refusal by the Trial Judge to bring on record the omission to police statement was not relied on in the High Court. It may be that when the approver gave his police statement he did not know that he would be granted pardon and possibly for that reason had not come out with all the facts known to him and he did so while he was making his statement before the Magistrate as he knew by then that he would be tendered pardon on condition that he would disclose all the facts known to him. The omission in the police statement, therefore, by itself would not necessarily have rendered his evidence unreliable. In considering whether the approver's evidence passed that test of reliability, the Court would have to consider whether taken as a whole and in the light of the facts and circumstances of the case It was a credible version or not. Taking all the facts and circumstances of the Case proved before the Trial Court, we think that despite the said omission, the approver's version was credible.

20. The learned Additional Government Advocate has. invited our attention to the confessional statement (Ext. 1) made by P.W.1. his statement (Ext.2) recorded[by the Chief Judicial Magistrate and another statement of his (Ex.3) recorded by the Subdivisional Judicial Magistrate,. Athmallik and has submitted and rightly so, that there has been no substantial omission or variation in the statements made in Exts. 1 to 3 and the evidence of P.W.1 in the court. Merely because some incriminating facts deposed to by P.W.1 in his evidence and in his statements before the Judicial Magistrates had not been stated in the course of investigation before the police officer, his evidence is not to be discarded.

21. P.W.29, a betel shop owner having his shop in front of the hotel of Bholanath Sarma and P.W.30, a servant in the hotel of Bholanath Sarma at the relevant time, had been examined to support the version of P.W.1 as to what happened at Rairakhol and they have been examined to prove the charge of conspiracy. Both these witnesses seem to be independent and disinterested witnesses. Their evidence is not to be accepted merely on the ground of disinterestedness, but their evidence does read well and would indicate the association of the approver and the other culprits at Rairakhol.

22. P.W.29 has given evidence that one year prior to his deposition in the court he had seen the appellants Bishnu, Promod and Rabindra at Rairakhol in front of his betel shop at about 11 P.M. with a Leyland truck parked by the appellant Pramod. According to him, all these three persons and another man (who could be the deceased) had got down from the truck and the three appellants went to the hotel to take their food, while the fourth man was loitering near the truck. Sometime thereafter, the appellants Promod and Rabindra came to his betel shop to buy betel and on his request the appellant Promod shifted the position or the truck about six cubits backward as the truck had been obstructing the view of the customers to the betel shop of P.W.29. This witness had further gone on to say that the appellants Bishnu, Rabindra, Promod, Suru Kama, Goninda Naik, Amrutlal and another man (meaning the approver) gathered near the Kadamba tree nearby and the iron rod owner was loitering near the truck. He had testified that thereafter the appellants Bishnu, Rabindra and Promod went towards Cuttack side in the truck. Next morning at about 4.30 to 5 A.M. while he had gone towards Kadamba Padia to answer the call of nature, he had seen P.W.1 coming towards that place from the Nala. He has also spoken about the recoveries of some incriminating articles from the possession of the appellants Suru Kama, P.W.1 and the co-accused Govinda Naik to which we will come later. There is nothing to discard the evidence of this witness regarding the association of P.W.1 with the other persons named above although his evidence would not indicate that there had been any criminal conspiracy among those persons.

23. There was the evidence of P.W.30, one of the hotel servants in the same hotel where P.W.1 and the appellants Suru Kama, Amrutlal and Govinda had been serving. He had stated thus:

Since last about 3 years I have been working as a servant in Bholanath Sharma's hotel at Redhakhol. I am able to identify Suru Kama, Gondia Naik, Amrutlal Banchor and accused Pramod Kumar Barik (The witness went to accused dock and correctly identified these four accused persons). Accused persons Amrutlal, Suru Kama and Govinda Naik were working as servants in the hotel of Bholanath Sharma along with me and so I knew them well.

Accused Pramod Barik had come to Redhakhol one year back at about 11 P.M. to midnight and parked his Leyland truck in front of the shop of Sudarsan Sahu (P.W.29). Then he came to our hotel and talked to Suru Kama, Govinda Naik, Pranabandhu alias Panu Behera and Amrutlal Banchor. That Panu alias Pranabandhu Behera is not present in the accused dock now. Panu alias Pranabandhu also was working as a servant with us in Bholanath Sharma's hotel. That Panu had been arrested by the Police. Panu threatened me not to come near them. Panu instructed me to serve tea, etc. to the customers. Thereafter Panu, Suru, Amrutlal, Govinda and Pramod Barik went near a Kadamba tree which was standing at a distance of about 25 to 30 cubits from our shop. After some time, I saw that two more persons joined them under the Kadamba tree and all those 7 persons were talking under the Kadamba tree.

After some time of aforesaid seven persons came to our hotel. I prepared egg omlet and Roti under the instructions of Panu. Those 7 persons ate egg, roti and also drank liquor. There were two liquor bottles on the table of the Hotel. Thereafter all these 7 persons went away outside the hotel. In that night, the hotel servants Suru, Kama, Govinda Naik, Amrut and Panu alias Pranabandhu did not return to our hotel. In the following morning at about 5 A.M., the aforesaid four persons came to our hotel. Accused Suru Kama took soap from the hotel and went to take his bath. Panu and Govinda slept in the hotel and Amrutlal went to buffalo shed to sleep there.

He had identified the appellant Promod Bank in a test identification parade at Athmallik. No doubt, his statement had been recorded in the course of investigation under Section 164 of the Criminal P.C. and thus he had been bound down to a statement made on oath before the Judicial Magistrate, but on this ground, his evidence is not to be discarded although it has to be examined with great care before its acceptance. Nothing has been brought out in his cross-examination to discard his testimony. The evidence of this witness, like that of P.W.29, would show the association of P.W.1 with the other persons named by him at Rairakhol in the hotel and outside it. P.W.30 has not, in terms deposed about any conspiracy hatched out by P.W.1 with others either in the hotel or outside it. Thus the evidence of P.W.1 with regard to conspiracy for commission of murder of the deceased had not found corroborative support from any other evidence although the evidence of P. Ws.29 and 30 would undoubtedly establish the suspicious movements of P.W.1 with the above-named persons at Rairakhol and would indicate some plan or premeditation although the evidence would run short of substantiating a charge of criminal conspiracy. Their evidence would show that the appellants Bishnu, Rabindranath and Pramod had come together in the truck with the deceased which was being driven by the appellant Pramod and he also drove the truck from Rairakhol. The evidence of P.W.30 would indicate the temporary absence of some of the hotel servants, namely, P.W.1, the appellants Suru Kama and Amrutlal and the co-accused Govinda Naik. His evidence that the appellant Amrutlal had come together with the others next morning may not safely be accepted in view of the evidence of P.W.29 who had seen only one person, namely, P.W.1, returning in the early hours of the next day. We may also mention here that it was very unlikely, as has been testified by P.W.1, that in the hotel itself, a suggestion would be made to him to kill the deceased and that he would immediately and without any hesitation keep three other colleagues of his in the hotel informed about it and they would abruptly agree to the proposal which was conveyed to the appellant Pramod. The evidence of P.W.1 and that of P.Ws.29 and 30 would give an indication of some plan which had been hatched at Rairakhol in which the appellant Pramod had taken an active part with P.W.1. But the evidence, in our view, would not sustain the charge of criminal conspiracy punishable under section 120B of the Code.

24. The aforesaid discussion of the evidence of the approver with regard to the commission of the crime of dacoity with murder appears to us to be reliable. Once this satisfaction is reached, the court is to find out as to whether his evidence has been corroborated in material particulars qua each accused.

25. Before the cases against the appellants are taken up, we would keep on record the strong corroborative evidence regarding the commission of dacoity with murder. It admits of no doubt from the medical evidence and the learned Counsel for the appellants do not dispute the fact that the deceased had been done to death on the spot and the injuries noticed on his person which were sufficient in the ordinary course of nature to cause death could be caused by kicks and blows by blunt objects, such as, M.Os. II and III, two wooden Gutukas. Thus the person or persons who had dealt blows and had killed the deceased had the intention of causing his death and had, with that intention, caused injuries sufficient in the ordinary course of nature to cause death. Undoubtedly, therefore, murder of the deceased had been committed. The evidence of P.Ws.50 to 53 and that of the Assistant Sub-Inspector of Police (P.W.79) would clearly establish that on the spot where the dead body of the deceased was lying, a handkerchief (M.O.VI) was lying on the ground. This handkerchief, as testified by P.W.1, belongs to him. No doubt, there has been some confusion in the evidence as the Judicial Magistrate (P.W.72) has stated that M.O. VI was one of the articles of the deceased which had been put for identification in a test identification parade conducted by him, but as rightly submitted by the learned Additional Government Advocate, it was highly unlikely that after such a long lapse of time, the Judicial Magistrate would be able to properly identify as to which were the exact articles which had been put for the purpose of identification and in addition, there was evidence that another handkerchief had been seized from the spot. Apparently, therefore, there had been some mistake in the statement of the Judicial Magistrate in this regard and for this purpose, the evidence of P.W.1 with regard to the identification of MO. VI as his handkerchief is not to be discarded. This fact would strongly corroborate the evidence of the approver with regard to his presence on the spot at the time the crime was committed. As would be clear from the prosecution evidence, one wooden Gutuka (M.O.II) with suspected stains of blood and a chappal of the left leg (M.O.IV) were also lying on the spot. P.Ws.56 and 58, the nephew and younger brother respectively of the deceased, have identified M.Os. IV and VII as the pair of chappals belonging to the deceased which had been worn by him when he left for Rajgangpur. The close relations of the deceased have identified the photographs of the deceased taken on the spot as those of the deceased. The clothes (M.Os. VII and VIII) found on the person of the deceased had been identified by P.Ws. 56 and 58 as belonging to the deceased. P. W.79 had seen marks of motor tyres on the kutcha road and suspected stains of blood on the ground. P.W.52 had produced at the Kishorenagar Police Station the other chappal (M.O. LVII) of the right leg. Marks of struggle and dragging had been detected on the spot by P.W.79. Another wooden Gutuka (M.O. II) had been produced by P.W.53 at the police station on August 18 1982 and seized vide the seizure list, Ex. 96. Both M.Os.II and III had suspected stains of blood for which they had been sent for chemical test and blood was detected in M.Os.II and III although the extent of stains had not been indicated. The origin of blood could not be ascertained. Owing to lapse of time in sending the articles for chemical examination and the late recovery of M.O. III, stains of blood might have disintegrated. However, the evidence of the approver that assault had been made on the deceased by means of NMOs. II and III would get adequate corroboration from the recoveries of M.O. II on the spot and M.O.III from a place near the spot.

26. Much advantage is sought to be taken by the defence from the evidence of P.W.40, the owner of the truck, that when it was returned to him on July 17,1982, M.Os.II and III were in the truck. According to him, 5 to 6 wooden Gutukas had been kept in the truck and 2 to 3 of them were missing. These Gutukas, as would be seen from his evidence and that of the helper (P.W.39), were being used for placing the jack on them when a tyre was getting flat. As rightly noticed by the trial court, P.W.39, the helper of the truck, was the best person to identify the wooden Gutukas which he had been using and according to him, the appellant Bishnu had told that two pieces of Gutukas were lost on the way where a tyre got flat. He had identified M.Os.II and III properly and the evidence of P.W.39 that M.Os. II and III were not in the truck when it was delivered to his master by the appellant Bishnu is acceptable.

27. The aforesaid items of evidence would corroborate the evidence of P.W.1 with regard to the commission of the crime on the spot in the manner deposed to by him.

28. It is in the evidence of the Investigating Officer (P.W.85), supported by that of P.W.4 an independent witness, that on August 9,1982, at about 2 to 3 A.M., he searched the rented house of the appellant Bishnu where he had been staying at Balabhadragoli of Puri town after offering his personal search to the witnesses and searching the persons of the witnesses and recovered M.O.I. an attache, belonging to the deceased. A Bag (M.O.XI) was inside M.O.I. The attache contained the driving licence of the deceased (M.O.X) kept in M.O.XI and two traveller's cheques (Exts. 6 and 7) of the deceased which had duly been proved. The umbrella (M.O.IX) and the air pillow (M.O. XVIII) belonging to the deceased had also been recovered from the room in the occupation of the appellant Bishnu. The duplicate registration certificate book purported to be of the truck bearing registration No. ORK 3577 (M.O.XII), which had been kept by the appellants Bishnu and Rabindra in the truck and had been used knowing and having reason to believe that it was a forged one for which we have accepted the finding recorded by the trial court that these two persons are guilty of the charge under Section 471 of the Code, had also been found in the attache. There was, in addition, the driving licence (M.O.XVI) in the name of Prafulla Kumar Dalal with the photograph of the appellant Bishnu on it. There is no reason to discard the evidence of P.Ws. 4 and 85 in this regard. P.W.56 has identified the attache (M.O.I.) and has testified that the deceased had taken it to Rajgangpur. According to this witness, the pillow (M.O. XVIII) and the umbrella (M.O.IX) belonging to the deceased had also been taken by him to Rajgangpur. He had identified these articles in a test identification parade conducted by P.W.72, P.W.58, the younger brother of the deceased, has also identified M.Os.I, IX, XI and XVIII in the court. According to him, these articles belong to their family. M.Os. I, IX and XVIII have also been identified by P.W. 10, another brother of the deceased, as belonging to their family and according to him, the deceased had taken these articles with him when he went to Rajgangpur. There was, in addition, the evidence of P.W.61, the nephew of the deceased, that P.W.56 had taken the air pillow (M.O.XVIII) to Rajgangpur while he had gone there with the deceased from their house. The recoveries of the properties of the deceased from the exclusive and conscious possession of the appellant Bishnu would lend adequate corroboration to the evidence of P.W.1 regarding the participation of this appellant in the commission of dacoity with murder. The articles had been recovered and seized from the possession of this appellant not long after the occurrence. Under Section 114(a) of the Evidence Act, a presumption can be drawn not only with regard to the commission of an offence of theft, but also regarding the commission of murder or dacoity in appropriate cases from the fact of recovery of articles belonging to the deceased who had been murdered or belonging to the person in respect of whose articles dacoity has been committed. In this connection, reference may be made to the principles laid down in : 1971CriLJ260 Shivappa v. State of Mysore.

29. It is clear from the evidence of the Investigation Officer (P.W.85) supported by that of P.W.29 that on August 12, 1982, the appellant Suru Kama, while in custody, opened a tin box with the key which he had kept in the hotel of Bholanath Sarma at Rairakhol and brought out the wrist watch (M.O.V) which, as the evidence would show, belonged to the deceased. This article was seized as per the seizure list, Ex. 50. This appellant had himself opened the lock and had taken out the wrist watch. There is no reason to discard the evidence of P.Ws. 29 and 85 in this regard. P.W.56, the nephew of the deceased and P.W.58, the younger brother of the deceased, have both identified M.O.V to be the wrist watch of the deceased which he had been wearing when he left home. According to P.W.58, this wrist watch had been purchased by the deceased from Choudhury Watch Company. P.W.57, the Accountant of Choudhury Watch Company, had produced the cash memo in the course of investigation which had been seized as per Ex. 100. According to this witness, the bill (Ex, 101) had been prepared in the name of N. Nanda Kumar Choudhury of Surada, Gajam and it had been sold at Rs. 440/-. No doubt, as stated by him in his cross-examination, each watch has a separate manufacturing number and the number of the wrist watch had not been put in Ex. 1.01, but the evidence of the close relations of the deceased would undoubtedly show that M.O.V was the wrist watch which the deceased had. P.W.1 had identified M.O.V to be the wrist watch which had been handed over by the deceased to him at the time of commission of dacoity along with the cash of Rs. 800/- which he (P.W.1) had handed over to the appellant Suru Kama. The recovery of an article belonging to the deceased from the exclusive and conscious possession of the appellant Suru Kama not long after the occurrence would sufficiently corroborate the evidence of the approver (P.W.1) with regard to the complicity of this appellant in the crime of dacoity with murder.

30. Coming to the case against the appellant Pramod Kumar Barik, it. would be seen from the evidence that after he associated himself with the appellants Bishnu and Rabindranath at Maneswar, he himself drove the truck up to Rairakhol and he had taken active part at Rairakhol and had suggested to the approver to kill the deceased for money. As the evidence would show, he had driven the truck also from Rairakhol, stopped it at short distance from Rairakhol so that the approver and his companions would get into the truck on the false pretext that they would go on payment of fare up to Bamur and he halted the truck at a distance of about 15 KMs. Describing about the occurrence, the approver (P.W.1) has given vividly the active role played by this appellant in the commission or robbery and murder of the deceased. The approver's evidence is that after the deceased was done to death, a gold ring with a green stone fitted to it was removed by this appellant Pramod and he took it away with him. For this, there is also a separate charge against this appellant under Section 404 of the Code. The case of the prosecution is that after removing the gold ring, the appellant Framed got a nose ring prepared through a goldsmith (P.W.23) at Sambalpur to be worn by D.W.66 with whom his marriage had been settled and in whose house the appellant had been staying at Maneswar with her father (P.W.69) and the appellant had kept the stone piece in a compass box with P.W.66. As testified by P.W.23, on the request of this appellant who had handed over a gold ring to him with a green stone, he had prepared a nose ornament. He has properly identified M.O. XLVI as the green stone which he had taken out. P.W.59, a goldsmith at Berhampur, who had originally prepared the gold ring with the green stone fixed to it on the request of the father-in-law of the deceased who had given out that he would present it to his son-in-law (deceased), has also identified MO.XLVI as the piece of stone which had been fixed to the gold ring prepared by him. P.Ws.23 and 59 are goldsmiths and they may be in a position to properly identify pieces of stones by untranslatable impressions on their minds although they may not be able to formulate reasons for such identification. No doubt, it has not been possible for the close relations of the deceased to identify the green stone, bat P.Ws.23 and 59 have properly identified M.O. XLVI fixed to gold ring which was on the person of the deceased, as testified by his nephew (P.W.56) and his brother (P.W.58). In the course of investigation, M.O.XLVI had been seized by the Investigating Officer (P.W.83). No doubt, 'the fact of actual recovery of this material object from the compass box had not been put to the appellant while recording his statement under Section 313 of the Code, but substantially all the questions relating to the removal of the gold ring from the person of the deceased and the other - connected evidence had been put to him. This appellant could not be said to have been prejudiced because a specific question had not been put that M.O.XLVI had been recovered , from the compass box. The evidence of P.Ws.23 ! and 59 coupled with the evidence of P.Ws.56 and 58 and the recovery of M.O. XLVI would strongly corroborate the evidence of P.W.1 with regard to the complicity of this appellant.

31. We would come next to the case against the appellant Rabindranath Swain. He is a co-villager of the appellant Bishnu as both of them : belong to village Kusti in the district of Puri. No incriminating article has been recovered from his person or possession in the course of investigation. It would, however, be clear from the evidence discussed above (both)of them left cuttack with the cattle feed of P.W.45 of Jida till the time the truck was handed over by the appellant Bishnu to P.W.40, its owner, on July 17,1982. Although P.W.39 was the helper of the truck, he was not taken on the pretext of payment of arrear taxes for the vehicle and instead, this appellant who, according to P.W.40, had intended to have joint business with the appellant Bishnu, was taken as the Khalasi of the truck. He had been seen at Joda and he was also seen on the way by different persons about which reference has been made in this judgment. At a short distance from Sambalpur, this appellant had been seen in the company of the deceased and the appellant Bishnu by P.W. 55 to which reference has already been made. As his evidence would show, the appellant Bishnu had falsely introduced this appellant Rabindra to him. (P.W.55) as the Malik (owner) of the truck. This appellant Rabindra had been seen in the association of some of the appellants at Rairakhol and he was one of the persons who had got down from the truck which was halted there by the appellant Pramod. The approver's evidence is that this appellant was in the truck which took them to the kutcha road where it was halted. Act of assault on the deceased has been attributed by the approver to this appellant. The evidence of P.Ws.39 and 40 would show that this appellant was with the appellant Bishnu when the truck was returned to P.W.40. As earlier indicated by us, some sinister design to commit an offence in respect of the goods of a person had evidently caught the minds of this appellant and the appellant Bishnu for which the number plate was changed on the way and a fake, forged and false registration certificate book was kept with them for use. It would not be reasonable to contend, as has been done by the defence, that this appellant in the circumstances of the ease, could be said to be a mere occupier of the truck having nothing to do with the change of number plate of the truck or the use of fabricated registration certificate book. No doubt, when this was done, a particular victim could not be in their minds, but they wanted to take a chance of grabbing the properties of that person who would load his articles in the truck on the way and at Rajgangpur, the articles of the deceased were loaded in the truck whereafter the criminal design was executed after the truck left Rairakhol on their way back. There can be no doubt from the aforesaid facts and circumstances that this appellant had actively participated in the commission of the crime of dacoity with murder. The approver's evidence with regard to the complicity of this appellant has thus been corroborated by sufficient circumstantial evidence.

32. As regards the complicity of the appellant Amrutlal Banchhor, save and except the recovery of a towel (M.O.XXII) and a Lungi (M.O. XXIII), from his person on August 30, 1982 by the Inspector of Crime Branch (P.W.84) long after the occurrence which, on chemical and serological test, were found to have contained stains of human blood and the fact that this appellant had not explained as to how stains of human blood could come into clothes, having taken a plea of denial of the seizure of these clothes from his person, there is no other evidence corroborating that of the approver. In the first place, these articles had been seized from his person long after the occurrence. As has been submitted at the Bar by the learned Counsel for both the sides, it was highly unlikely that this appellant would still be wearing the clothes with stains of human blood which had been worn by him at the time of occurrence without washing off the stains of blood. There is no evidence that these articles of the appellant Amrutlal had been kept in separate sealed packets before they were sent for chemical examination. There is no evidence that these clothes had been worn by this appellant at the time of the occurrence. For these reasons, it would not be legal and reasonable to hold that the recovery of M.Os. XXII and XXIII from the person of this appellant would corroborate the evidence of the approver with regard to the complicity of this appellant in the crime.

33. We do not feel ourselves called upon to discuss the evidence with regard to the recoveries of some clothings from some of the appellants because no human blood had been found in any of those articles.

34. We thus find that P.W. 1 and the other culprits had conjointly committed robbery in respect of the properties of the deceased and in the course of commission of such robbery, the deceased had been murdered. Undoubtedly, therefore, the appellants Bishnu Muduli, Pramod Kumar Barik, Rabindranath Swain and Sum Kama are guilty of the commission of the offence of dacoity with murder punishable under Section 396 of the Code. For having dishonestly removed the gold ring on the person of the deceased in order to cause wrongful gain to himself after the murder of the deceased, the appellant Promod has committed an offence punishable under Section 404 of the Code. The i appellants Bishnu and Rabindranath are also liable to be convicted under Section 471 of the Code. In our view, the other charges have not been brought home to the appellants.

35. We would next come to the sentences to be imposed on the appellants. We have given our anxious consideration as to whether the reference made by the learned Sessions Judge for confirmation of the death sentence passed against the appellant Bishnucharan Muduli is to be accepted. Every murder is cruel and every dacoity is gruesome. The Supreme Court has laid down in a number of cases that the sentence of death should not be passed except in the rarest of rare cases. The cases of the Supreme Court on this question have elaborately been dealt with by this Court in the case of State v. Aru alias Arun Kumar Pradhan 1985 Cri LJ 161 : (1984) 2 Crimes 198 : (1984) 58 Cut LT 422 : 1984 (1) Orissa LR 777. One noticeable feature in this case is that although the appellant Pramod had taken as active a part as the appellant Bishnu, he has been sentenced to undergo imprisonment for life for his conviction under Section 396 of the Code* Regard being had to the facts and circumstances of the case and the sentence passed against the appellant Pramod, we do not think that it is one of the rarest of rare cases in which death sentence should be passed against the appellant Bishnucharan Muduli. As a matter of fact, at the hearing, the learned Additional Government Advocate has very fairly submitted that in the circumstances of the case, the sentence of imprisonment for life would meet the ends of justice and in our view, this is a fair and reasonable submission made by him. We notice that evidently being influenced by P.W.1 and to earn a little .while he was working as a servant in the hotel, the appellant Suru Kama fell a prey to the evil design of others and joined in the commission of the offences. He may not be visited with the same sentence of imprisonment for life with the other three appellants. In our view, the maximum sentence of imprisonment provided in the alternative would meet the ends of justice, as far as he is concerned. No separate sentences need be passed against the appellants Bishnucharan Muduli and Rabindranath Swain under section 471 of the Code and against the appellant Framed Kumar Bank under Section 404 of the Code.

36. In the result, the Death Reference is discharged Jail Criminal Appeal No. 170 of 1984 is allowed and the order of conviction and sentences passed against the appellant Amrutlal Banchhor are set aside. The other Criminal Appeals are allowed in part as indicated below. The order of conviction and sentences passed against the appellants under Section 120B of the Penal Code are set aside. The order of conviction and sentences passed against the appellants Bishnucharan Muduli and Rabindranath Swain under section 420 of the Indian Penal Code are set aside. For his conviction under Section 3% of the Penal Code which is maintained, the appellant Bishnucharan Muduli is sentenced to undergo imprisonment for life. The order of conviction and sentences passed against the appellants Pramod Kumar Barik and Rabindranath. The order of conviction passed against the appellant Suru Kama under Section 3% of the Indian Penal Code is maintained, but the sentence passed against him thereunder is set aside and in lieu thereof, he is sentenced to undergo rigorous imprisonment for a period of ten years. The order of conviction passed against the appellant Pramod Kumar Bank under Section 404 of the Penal Code is maintained, but no separate sentence is passed against him thereunder. The order of conviction passed against the appellants Bishnucharan Muduli and Rabindranath Swain under Section 471 of the Indian Penal Code is maintained, but no separate sentences are passed against them thereunder. The appellant Amrutlal Banchhor be set at liberty forthwith.

K.P. Mohapatra, J.

37. I agree.


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