Appeal of inconsistent evidence by stating that the witnesses are post occurrence witness is dismissed: Odisha High Court
The precise manner of describing them is that they are witnesses to the events soon after the assault of the deceased and direct eyewitnesses to the Appellant running away from the scene of the crime with the murder weapon. A single-judge bench comprising of Justice Sanjay K. Agrawal adjudicating in the matter of Anwar Khan v. State of Odisha (CRLA No.542 of 2014) dealt with the issue whether to grant the appeal or not.
In the present case, the appeal is preferred against the judgment dated 28th August 2014 passed by the Session’s court convicting the Appellant for the offence under Section 302 of the Indian Penal Code (IPC) and sentencing him to imprisonment for life as well as to pay fine of Rs.1000/- and in default of payment of fine to undergo R.I. for three further months.
A complaint was lodged at Baripada Town Police Station by one Sabjad Khan on 19th April, 2012 at about 7.30 am stating that he had received information from one Sk. Ajim that his younger brother Manwar (deceased) had been assaulted by his middle younger brother by means of a ‘Bhujali’ in the night of 18th April, 2012 at about 11.30 pm near T.B. Hospital Chhak. As a result, Manwar had been admitted to the hospital and had subsequently expired. Further the complainant informed the father of the deceased and had gone to the hospital. There he found the dead body of Manwar lying in the verandah. It was further alleged that previously the accused had assaulted the informant by means of a ‘Khura’ for which an FIR had been lodged.
There are 3 eye-witnesses who stated that the deceased is the younger brother of the accused Appellant. At the time of the occurrence, PW-1was present in his house. His shop was attached to his residential house. PW-1 heard the cry of “marigali, maridela”. Thereupon, he and his Bhanja Sk. Sirajun came out of their house and saw the deceased lying in the verandah of his house with bleeding injuries. The deceased requested them to take him to the hospital in order to save his life. The Appellant who was present there, on seeing them, ran away from the spot holding a Bhujali. PW-1 chased the Appellant up to a little distance and then returned to the spot of the crime. The deceased disclosed to PW-1 and his Bhanja(nephew) that the Appellant had assaulted him severely and that he would not survive. Sk. Shera and Sk. Raj took the deceased to the hospital and subsequently, they came to know about the death of the deceased in the hospital.
ThePW-3 had stated that on hearing the cries “Bachao, anchao” he came out of his house. He also mentioned that his brother PW-1 and Sk. Raj came to the spot with him. On seeing them, the accused Appellant ran away from the spot holding a Bhujali in his hand. He also stated that the deceased had disclosed before them that the Appellant had assaulted him mercilessly.
The third eyewitness PW-8 (Sk. Sirajun) has stated that he was watching T.V. in the house of Sk. Anisuddin on the date of occurrence. He heard the cry and accompanied by PWs 1 and 3 and went to the spot. Seeing them, the Appellant ran away from the spot holding a Bhujali in his hand. PW-8 and PW-1 chased the Appellant up to a short distance and thereafter returned to the scene of crime. The deceased disclosed before them that the Appellant had assaulted him.’
The trial Court proceeded to accept the evidence of the three eyewitnesses to be reliable and free of internal contradictions. Accordingly, the trial Court proceeded to convict the Appellant and sentenced him.
The Appellant stated that there are inconsistencies in the testimonies of the so-called eyewitnesses i.e. PWs 1, 3 and 8 which render their evidence unreliable. She contends that they are in fact post-occurrence witnesses and not eyewitnesses per se.
The court after examining all the evidences stated that the deceased crying out in pain that he had been attacked, the accused being found at the scene of crime when they reached there, his running away from the spot with a ‘Bhujali’ on seeing the eyewitnesses there is a complete corroboration of one eyewitness by the other. While none of them might have seen the actual assault of the deceased by the Appellant with the sharp-edged weapon (Bhujali), the fact remains that each of them saw the accused at the spot with the weapon. Each of the witnesses i.e. PWs 1,3 and 8 speak of the deceased disclosing that he had been attacked by the deceased. The accused running away from the crime scene with the Bhujali has been witnessed by each of them as it happened. Therefore, it is not possible to accept the plea of learned counsel for the Appellant, that PWs 1, 3 and 8 cannot be termed as eyewitnesses but only as post-occurrence witnesses. The precise manner of describing them is that they are witnesses to the events soon after the assault of the deceased and direct eyewitnesses to the Appellant running away from the scene of the crime with the murder weapon.
Court finds that they are consistent in the broad aspects of the identity of the Appellant, his immediate conduct after the assault and most importantly, the disclosure of the deceased about the Appellant having assaulted him with the sharp edged weapon. As already discussed, barring some minor inconsistencies, the evidence of PS 1, 3 and 8 are consistent on the material aspects of the crime. They have withstood the cross-examination by the defence at the trial. As soon as they heard the shout of the deceased, they reached at the spot from where each of them saw the Appellant, who was identified by the deceased to them as the assailant, run away with the assault weapon. The Court is unable to find anything inconsistent in their testimonies so as to render them unreliable or lacking in credibility.
Hence the Appeal is dismissed.