of Orissa Vs. Babaji Charan Mohanty & Anr  Insc 341 (31 July 2003)
Babu & P. Venkatarama Reddi.
CRIMINAL APPEAL NO. …. OF 2003 (Arisiing out of SLP (Crl.) No. 3971 of 1995) P.Venkatarama
(Crl.) 3971 of 1995 Leave granted Five persons including respondents 1 and 2
herein stood trial before the court of Sessions, Balasore, for intentionally
causing the death of one Santosh Kumar Mohanty on the night of 14th March, 1988. The two respondents were charged
and convicted under Section 302 IPC. They are the father and elder brother of
the deceased who was serving in Indian army at Dehradun and who came to his
native place to take his wife with him. The other accused are the second wife
of the accused Babaji Charan Mohanty and his son and daughter. The wife of
deceased by name Manjulata Mohanty figures as informant and PW 1 in this case.
She married the deceased about a year earlier.
accused Nos. 3 to 5 who were charged under Section 302 read with 34 IPC were
acquitted by the learned Sessions Judge. On appeal preferred by accused 1 and 2
(respondents herein), the High Court set aside the conviction and sentence and
acquitted them of the charge of murder. The High Court did not consider it safe
to rely on the evidence of PW 1 – the wife of the deceased. Against this
judgment of the High Court, the State of Orissa has preferred the present appeals.
prosecution case may be narrated briefly. At about 9.30 p.m. in the night of 14th March, 1988, the deceased and his brother Mayadhar
(A-2) took their meal together at their house and thereafter the deceased went
to his bed room. The first accused Babaji and his son (A-3) had their food in
the kitchen room where the ladies including PW 1 started taking their meal
thereafter. At that time PW 1 heard alarming cries from her deceased husband to
the effect "I am dying, Mayadhar what I have done to you and why do you
assault me!". When PW 1 tried to go out of the kitchen towards the bed
room where her husband was shouting, she found the kitchen door chained from
outside. While she was shouting and imploring others to open the door, the
accused persons 4 and 5 (second wife of the 1st accused and his daughter)
gagged her mouth by placing their hands on her face firmly. However, with some
difficulty, she could unchain the door by reaching it with her hands through
the gap. She found that the backyard door abutting the bed room was closed from
then started shouting near the window of the bed room. Again, the daughter of A-1
came there and tried to close her mouth and asked her not to shout. She then
came to the Bari door (backyard door) and found the
same opened. There, she saw her husband lying on the floor with multiple
bleeding injuries and the first accused assaulting him with a 'club' (wooden Gada)
and the second accused assaulting him with a sword. The third accused was
focusing the torch light towards him as the electric lights were dim on account
of low voltage. She heard the accused persons 1 and 2 saying ('sala dead') and
saw them going towards the front side of the house. The victim asked for water
which she brought and asked her to call the villagers as they had threatened to
burn him alive. She then dragged her husband to the verandah on the back side
of the house.
she proceeded to the house of Krishna Das (PW 5) who is the immediate neighbour.
When she was coming back towards her house, A-2 and A-3 threatened to assault
her also. As PW 1 was crying and shouting, accused 1 and 2 tried to put her inside
the kitchen in the first instance and thereafter inside the bed room and tried
to close the door from outside. With some difficulty she came out of the room
and shouted for help. The two accused threatened her to kill if she did not
keep quiet. On hearing her shouts, the village servant by name Jena (not examined) and one other person – PW 3, came to
their house and then some other villagers also gathered. A truck was passing
through the road in front of their house at that time.
accompanied by village servant and PW 3 immediately went to the police station
by the truck. There she made an oral report at about 11.30 p.m. narrating the entire incident and the same was
reduced to writing by the Police Officer Incharge (PW 13) and the same was
treated as FIR. In the meantime, the accused (respondents) left the house.
Other villagers took the deceased who had sustained multiple injuries and
fracture of both legs to the nearby primary health center; but, he succumbed to
the injuries and died a few minutes before mid-night. PW 13 took up
investigation and came to the village at about 3 A.M. By that time the accused – respondents were found absent.
He seized some blood stained clothes and articles, held the inquest and sent
the dead body for post mortem.
post-mortem was conducted by PW 11 the next day. He could not trace the two
accused persons or the weapons used in the offence. However, on 17.6.1988, both
the accused surrendered in the court of Judicial Magistrate.
accused – respondent No.1 who examined himself as DW1 had taken the plea of
'alibi'. He stated that he went to a place known as Keonjhar and remained there
on the fateful night and on the way back to his house, he learnt about the
death of his son and the complaint lodged by PW 1 against them. Out of fear, he
did not go to the village. He stated that there was no strained relationship
between him and his deceased son and that the witnesses bore grudge against him
on account of certain past events and that PW 1 and his deceased son were frequently
quarrelling. He alleged that PW 1 was receiving some love letters from one
person and his son was not happy with her. The second accused also took the
plea of 'alibi' by taking the stand that he was at Barapada Engineering School
on the day of the incident and he was afraid to come to the village having
heard about the complaint lodged against him. The trial Court disbelieved the
plea of 'alibi'. However, the High Court observed that the plea "is
perhaps not false".
who conducted autopsy on the dead body on the afternoon of 16.3.1988, found
eight external injuries and notable among them were, two incised injuries over
the right parietal region, one of them being of the size of 3 x 2 x ½ cm. One
incised injury over the left fore arm with fracture of fore-arm bones and two
lacerated injuries over the right leg and left leg and thigh and a fracture on
both the upper ends of the legs. The internal injuries found were fracture of
right parietal bone, Haematoma on the right parietal region, fracture of the
right humerus and congestion of the brain membranes.
12, who first received the deceased in an injured condition found, that he was
in a state of unconsciousness and was having multiple injuries all over his
body with profuse hemorrhage and shock.
in a gasping condition. He also found various injuries on his person, which are
more or less of the same description as given by PW 11.
11 and 12 stated that injuries were ante mortem in nature and they could be
caused by a hard and blunt weapon like wooden club and a sharp cutting weapon
like sword. The head injuries were sufficient in the ordinary course of nature
to cause death. PWs 2, 3, 4 and 5 categorically stated that when they came to
the house of accused in the night on hearing the cries of PW 1, they found the
deceased lying in the house with multiple bleeding injuries. On the basis of
the evidence on record, there can be no doubt that the deceased Santosh Mohanty
was murdered on the night of 14th March, 1988
at his family house. The presence of PW 1 in the house where the murder took
place cannot also be doubted.
following factors were relied upon by the High Court to discredit the
prosecution evidence especially that of PW1 – the wife of the deceased:-
motive is not satisfactorily proved. According to PW1 the second accused Mayadhar
behaved properly with her and her husband and accused Nos.3 to 5 were also in
good terms with them.
second accused and the deceased took food a few minutes before the incident. It
is unlikely that soon thereafter Mayadhar (accused No.2) together with his
father would have perpetrated the ghastly act of killing his own brother. The
evidence of PW1 that on two occasions when she went to Cuttack in the company
of her father-in--law he misbehaved with her and tried to sexually assault her
and when this fact was brought to the notice of her husband when he came to the
village on 3.2.1988 her husband objected to his conduct and even placed the
matter before the village panchayat cannot be believed. It is incredible that
she had gone to Cuttack for the second time in the company of her father-in-law
if in fact there was indecent behaviour on his part a few days earlier.
Moreover, it is improbable that the first accused would have thought of killing
his own son by taking the help of his other son even if the deceased had
quarreled with him and/or condemned his behaviour.
PW1's version of the incident is doubtful for more than one reason :
the version of PW 1 that she protested and raised hue and cry is true, she
would have been assaulted, but, there is no evidence to that effect;
does not appear probable when the husband was struggling for life with multiple
injuries, PW 1 would rush to the police station about 10 kms. away instead of
attending on her husband and give an exhaustive report.
1 does not claim to have narrated the incident to the Gramarakshi or PW3 on the
way to the police station.
the face of her evidence that the second accused Mayadhar was in good terms
with his deceased brother and they had meal together a few minutes before the
occurrence, it becomes difficult to believe PW1's version that her husband was
attacked by Mayadhar soon after the meals.
against the statement of PW 1 that A-2 (Mayadhar) inflicted injuries by means
of sword on several parts of the body, medical evidence reveals that there were
only two incised injuries.
Though PW 1 deposed that she dragged the deceased from the bed room to the
verandah of the passage room, no blood was found on the verandah and the
intervening space. There is also no evidence of her (PW 1) clothes being
stained with blood.
The prosecution has not explained as to how the injured was in the verandah
which lies beyond the passage room.
There is no evidence to show that the two accused were seen in the house or in
the village in that night.
PW1's version that on the two occasions when her father-in-law (A-1)
accompanied her to the examination center, he tried to sexually assault her is
the mother of the deceased, who is supposed to have seen the occurrence and Kangali
Jena, the Gramrakshi have not been examined, though they are material
The plea of accused No.1 who examined himself as DW 1 and the second accused
that they were not at the house on the night when the incident took place is
perhaps not false.
5 who is the next door neighbour does not appear to be a truthful witness and
at any rate his evidence does not conform to PW 1's evidence that he was called
by her and that when he was coming to the house of the accused, he was
threatened by the two accused.
3 who according to the prosecution went to the house of the accused in the
company of Gramrakshi after being informed by PW 4 and hearing the cries of PW
1 to the effect that her father-in-law and brother-in-law were killing her
husband, does not claim to have seen either accused No.1 or 2 in the house or
asked any other inmates as to how the deceased was injured.
learned counsel appearing for the State persuasively argued that the grounds on
which the High Court acquitted the accused are flimsy and the High Court was
not justified in characterising PW-1 as unreliable witness though her evidence
is corroborated by evidence of independent witnesses who came to the spot
immediately after the incident and the earliest version in the FIR.
the High Court had failed to weigh the circumstances staring at the accused.
The learned counsel argued that the absence of strong motive is immaterial and
there were no good grounds to reverse the well-considered judgment of the
learned Session Judge.
have given our anxious consideration to the case in the light of the points
urged by the learned counsel for the State, keeping in view the fact that we
are dealing with a case of appeal against acquittal. Whether the conclusion of
the High Court is so perverse and irrational as to justify inference is the
crucial question. At first blush, it would appear that the High Court entered
on the verdict of acquittal without considering the evidence in its entirety
and gave importance to certain irrelevant and inconsequential factors. There
can be no doubt that some of the reasons given by the High Court are not such
as to discredit the evidence of PW-1 who is the only eyewitness in the case. At
the same time, on carefully scanning her evidence, we feel that the ultimate
view of the High Court that it is not safe to convict the accused on the basis
of testimony of PW-1 is not ill-founded. There are certain additional factors
and reasons which have led us to the conclusion that on the question of
reliability of evidence PW-1, two views are not ruled out and, therefore, there
is no perversity in the ultimate conclusion reached by the High Court.
claims to have seen the two accused (her father-in-law and brother-in-law)
attacking the deceased twice at two different places in the house. The sequence
of events relating to the first attack was narrated as follows:- "At about
9.30 p.m. my deceased husband and his brother
accused Mayadhar took their food together in Bari Bangala. Thereafter my
husband went to the bed room to sleep.
After some time myself, accused Manorama, accused Saraswati and my
mother-in-law Susila sat in the kitchen and started taking our food. At that
time I heard an alarming shout from my husband as "I am dying, Mayadhar
what have I done to you and why do you assault me? When I wanted to come out
from the kitchen and go to the bed room where my husband was shouting, I found
the kitchen door chained from outside. I also shouted to open the door. At that
time accused persons Monarama Mohanty and Saraswati gagged my mouth by putting
their hand on it. They also asked me not to shout.
with some difficulty I pushed my hand through the door and unchained it. I came
out. Then I found that the Bari door of the Bari Bangala which abuts the room
where my husband was sleeping was closed from inside. I went to the vacant
space between the kitchen block and the main block of the building and shouted
near the window on the eastern side of the room. At that time accused Saraswati
also came there and tried to gag my mouth and asked me not to shout. Just at
that time a bridgegroom party was proceeding on the road. When I made an effort
to call some of them, accused Saraswati also gagged my mouth. Again when I came
to our Bari door, I found the same open. There I saw my deceased husband lying
on the floor with multiple bleeding injuries and accused Babaji assaulting him
with a wooden Gada and accused Mayadhar was assaulting him with a sword.
Accused Natabar Mohanty was focusing the torch light towards him.
When I intervened and asked them not to assault my husband, accused persons Babaji
and Mayadhar said that "Sala died" and went away towards the Sadar
side of the house." If the above version of P.W.1 is tested in the light
of probabilities and ordinary course of human conduct, it becomes highly
doubtful whether she had seen the two accused injuring her husband with deadly
weapons. The first sign of attack she got was the alarm raised by her husband
from the bed room which was not too close to the kitchen where PW-1 was
sitting. The bed-room door was closed from inside, according to P.W.1. It is,
therefore, difficult to believe the version of PW-1 that she distinctly heard
the voice of her husband questioning Mayadhar as to why he was assaulting. At
best, she could have heard the cries of the deceased but not the exact words
said to have been uttered by the deceased. Then comes the version of unchaining
the door after resisting the onslaughts of two ladies (accused 4 & 5) who,
according to her, gagged her mouth and commanded her not to shout. To wriggle
out of the hold of the two ladies and to unchain the door by inserting her hand
through the door gap is indeed a difficult task. Whether she could manage to
come out of the kitchen in those circumstances is a big question.
she did, it would have taken quite some time for her to go out of the kitchen
after much of struggle with the two ladies. Then again, there were attempts by
the 4th accused Saraswati to prevent her from going to the bed room of her
husband. As the door was closed from inside, according to her, she could not
gain entry into the room but she began shouting. She even endeavoured to draw
the attention of the members of marriage party who were going along the road.
Even at that stage, accused No.4 is said to have closed her mouth. Thereafter
she found the door open and she claims to have seen the two accused assaulting
her husband with a wooden 'Gada' and sword while the 3rd accused was focusing a
torch light. After seeing her, they left the victim and went towards the other
side of the house with the remark "Sala dead". It is difficult to
believe the version of PW-1 that she had seen the two accused attacking her
in view of what is noticed above, there would have been considerable time gap
between the point of hearing the cries of her husband and the point of time
when she could gain access to the scene of occurrence. By that time, in all
probability, the attack would have been over. The assailants would not have
leisurely carried out the attack, especially in the midst of commotion going on
in the house. Secondly, even after hearing the shouts of PW-1 and sensing her
efforts to draw the attention of passers-by the accused would not have remained
there still assaulting the victim, taking the risk of being sighted by PW-1 and
attack for the second time has been narrated by her in the following words:-
"I dragged him to the verandah of the Bari side house.
there I proceeded to our Bari side towards the house of Krushna Das. I called
him. When Krushna Das was coming towards our house, accused persons Babaji and Mayadhar
threatened him with assault in case he came to the rescue of my deceased
husband. So I came to the place where my husband was lying. Again I saw accused
Babaji (my father in law) assaulting my husband with a Gada and accused Mayadhar
assaulting him with a sword (Khanda). I caught hold of the feet of my
father-in-law accused Babaji and requested him not to assault.
accused Mayadhar dragged me and put me inside the kitchen. Again I came to the
place where my husband was lying. Again accused Babaji pushed me inside the bed
room. When he was about to close the door from outside I came out of the room
and again shouted for help. At that time accused persons Babaji and Mayadhar
threatened to kill me if I did not keep quiet. On hearing my shouts, the Gramarakhi
Kangali Jena and Sitanath Dalei arrived at the house." This part of the
story also seems to be quite artificial and highly improbable. It is difficult
to believe that the two accused having perpetrated a ghastly crime and having
got the impression that the victim was dead could still remain there to launch
another attack in spite of the shouts and cries of PW-1 even after knowing
fully well that PW-1 went out to call the neighbours. Is it reasonably possible
to believe that the accused would have allowed her to go out to inform the neighbours
and in any case, will they wait till PW-1 returns and then launch another
attack on the person who was almost dead by that time? It will be equally
difficult to believe that the accused remained in the house till Krushnadas
(PW-5) approached their house and threatened him with dire consequences if he
came to the rescue of the deceased. Of course, PW-5 who was treated hostile
witness did not support the version of PW-1. Be that as it may, what is
relevant to notice is that soon after the alleged confrontation with PW-5, PW-3
and another by name Kangali Jena (Gramrakshi) came there on hearing the shouts
of PW-1. It is in the evidence of PW-3 that he did not see either of the
accused in the house. Either the accused were not at all there in the house or
they would have left just before PW-3 and another came to the house. But, it is
not the version of PW-1 that they left by that time. If the accused wanted to
leave the house after the murderous attack, having regard to the ordinary
course of human conduct, they should have in all probability left soon after
the attack without being seen by anybody. Thus, any amount of doubt crops up
whether P.W.1 had seen the actual attack or she acted on suspicion, maybe
strong suspicion, about the involvement of the accused-respondents.
is yet another circumstance which casts some doubt on the prosecution case.
PW-1 stated that after the first attack she fed the victim with some water and
then dragged him to the varandah on the back side of the house. Whether the
assailants and other family members who were trying to forcefully silence P.W.1
would have allowed her to drag and shift the body of the deceased is one
fact, he had been dragged, blood stains should have been found in the passage
and verandah but nothing was found by PW-13, the I.O. No blood stains were
found even on PW-1's dress.
above facts and circumstances would give rise to a reasonable doubt whether the
incident had taken place in the manner narrated by PW-1. Added to this, the
conduct of PW-1 in implicating all the family members imputing them certain
overt acts which were found to be unbelievable by the trial Court would cast a
serious doubt on the reliability of PW-1's evidence. She went to the police
station leaving the victim who was unconscious but still alive and reported
against all the family members en bloc excepting the mother of the deceased who
is said to be mentally unsound. Her vindictiveness and tendency to implicate
innocent persons as well is apparent from this conduct. In these circumstances,
if the High Court had taken the view that it is not safe to convict the accused
on the basis of testimony of PW-1, the High Court cannot be faulted for
reaching this conclusion though the High Court failed to address itself to
certain crucial aspects of evidence and gave undue importance to certain
inconsequential matters. It is true that the conduct of accused persons after
the incident had taken place is very unnatural and creates strong suspicion
against them; but, that by itself is not sufficient to convict the accused,
especially when no strong motive to put an end to the life of son / brother is
made out. We are, therefore, not inclined to interfere with the verdict of
acquittal rendered by the High Court though the reasoning of High Court is
unsatisfactory in some respects.
appeals are, therefore, dismissed.