KANTHIA SINGH Vs. STATE

JUDGEMENT

(1.) THE appellant Kanthia Singh stood charged under Section 302 of the Indian Penal Code (for short, 'the Code') for committing the murder of Tikaya Mnduli (to be described hereinafter as' the deceased') by assaulting him to death by means of a Tabla at village Godaplasuni in the district of Dhenkanal in the morning of November 12, 1979.The two appellants along with five co -accused persons stood charged under Section 148 of the code for having committed the offence of rioting being armed with deadly weapons, such as, Tablas, bows and arrows, with the common object to kill the deceased and they also stood charged under Section 302 read with Section 149 of the Code for committing the murder of the deceased in furtherance of their common object.

(2.) LOCHAN Sahu (P.W.1) had purchased a piece of land from appellant Banshidhar by an unregistered sale deed (Ex.1) in 1975 and was said to be in cultivating possession thereof. In the year of occurrence, he had raised paddy crop. On the day of occurrence, it was alleged, while he had gone to the land with a number of labourers having taken the deceased with him as a Bhadralok (gentleman of the locality) apprehending trouble from the side of the appellants and the co -accused persons, the appellants with the co -accused persons, being armed with Tablas, Tangias, bows and arrows and lathis, ran to that land, surrounded the deceased and assaulted him to death. The fatal blow on the neck was attributed to the assault on the deceased by the appellant Kanthia by means of Tabla and the other appellant, it was alleged, had dealt a blow on the back of the deceased by means of Tangia, both being sharp cutting instruments, On the first information report being lodged by P. W. 2, the son of , P. W. 1, investigation followed and on its completion, a charge -sheet was placed and the appellants with the co -accused persons were prosecuted. They had denied the charges. To bring home the charges to the appellants and the co -accused persons, the prosecution had examined thirteen witnesses. Of them, P. Ws. 1, 3, 4 and 5 had figured as the witnesses to the occurrence and P. W. 2 was the first -informant. P. W. 13 was the doctor who had conducted the autopsy and had opined that death was homicidal in nature. The appellants and the co -accused persons had not examined any witness on their behalf.

(3.) MR . P.K. Misra, appearing for the appellants, has taken us through the evidence and in particular, that of P. Ws.1, 3 and 4 has submitted that in view of the prevaricating and inconsistent statements made by them with regard to the occurrence and taking into consideration the fact than P. W. 4 had been examined two days after the occurrence in the course of investigation although the police officer had come to the scene on the day of the occurrence itself, their evidence did not deserve credence and ought not to have been accepted. Inviting our attention to the observations made by this Court in the case of Patel v. Dungdung State 59 (1985) C.L.T 311, it has been submitted on behalf of the appellants that P. Ws. 1, 3 and 4 could not have witnessed the occurrence in the manner they claimed to have and could not have identified the appellants regard being had to the distances from which they had claimed to have seen the occurrence. As regards the recovery of a Tangia (M. O. I) from the residence of the appellant Banshidhar, not much reliance can be placed by the prosecution, as has been submitted by the learned counsel for both the sides, as there was no evidence that M. O. I was one of the weapons of attack and in addition, on chemical test, no blood was detected in it. Mr. Sahoo, the learned Standing Counsel, has, however, submitted that although the evidence of P. Ws. 1, 3 and 4 was not quite consistent, their evidence, read as a whole, did deserve credence. According to him, these witnesses did not have much idea about the distances. He has, however, fairly submitted that if the distances from which they had claimed to have seen the occurrence would be taken as correct, it would not be possible for them to mark the actual assailants of the deceased who, as the prosecution case itself, indicated, had been surrounded by a number of persons when the assault was said to have been made on his person by the two appellants.