State Of Orissa vs Babaji Charan Mohanty & Anr

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.

The 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.

The 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 inside.

She 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.

Thereafter, 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.

PW 1 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.

The 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.

The 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".

PW 11, 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.

P.W. 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.

He was 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.

Both, PWs 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.

The following factors were relied upon by the High Court to

discredit the prosecution evidence especially that of PW1 – the wife

of the deceased:-

1. The 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.

The 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.

2. PW1's version of the incident is doubtful for more than one reason :

(a) If 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;

(b) It 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.

(c) PW 1 does not claim to have narrated the incident to the

Gramarakshi or PW3 on the way to the police station.

(d) In 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.

(e) As 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.

(f) 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.

(g) The prosecution has not explained as to how the injured was in

the verandah which lies beyond the passage room.

(h) There is no evidence to show that the two accused were seen

in the house or in the village in that night.

(i) 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 not believable.

(3) Sushila, 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 witnesses.

(4) 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) PW 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.

(6) PW 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.

The 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.

Moreover, 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.

We 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.

PW-1 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.

However 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.

Assuming 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 husband.

Firstly, 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 others.

The 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.

From 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.

Thereafter 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.

There 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 aspect.

If, in 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.

The 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.

The appeals are, therefore, dismissed.

1