HIGH COURT OF ORISSA
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Jagannadha Das, J. -
(1.) The applt. before us, one Ratan Munda, has been convicted under Schedule 04, Penal Code, for having caused the death of one Tuti Munda on the evening of 22-9-1949 & has been sentenced to undergo R-1. for five years.
(2.) The prosecution ease is as follows : 22-9-1949, was the Nuakhoi day when the villagers were in a festive mood. The deceased who had taken drink on that occasion came out of his house with a Falsia telling his wife that he was going to kill the accused & finish him off that day & ran towards the house of the accused which was about no cubits away. Ha is said to have entered into the house & attempted to assault the accused with the Falsia, but the accused managed to ward off the assault. He straggled with the deceased to wrest away the Falsia from his hands. There was a tussle between the two & ultimately the accused was able to get hold of the Falsia with which he dealt severe blows on the deceased & ran away from the place. After having run away from the place, he is said to have made some extra judicial confessions. The wife of the deceased came to know of this & tan up to the house of the accused, & found bee husband lying dead with serious injuries on his body. She went to p. w. 1 another villager, a relation, who also came & saw the dead body. P.W. 1 lodged F.I.R. with the police. Thereafter there was the usual investigation & the post mortem examination of the dead body of the deceased.
(3.) The post mortem report, Ex. 2, & the evidence of the doctor P. W. 7, clearly disclose that the deceased died as a result of having received serious injuries with a weapon like a Falsia which is said to have been used in this case. There is no doubt, therefore, that the deceased died as a result of severe injuries dealt on him with a Falsia. The actual evidence of the prosecution is to the following effect: P.W. 2 the wife of the deceased gives evidence that the deceased started out from his house that evening telling her specifically that he was going to murder the accused with the Falsia in his hand & that he ran towards the house of the accused in spite of her attempt to stop him. P. W. 5 another witness who was near about the house of the accused tending cows says that ha at the time found the deseassd entering into the house of the accused with a 'Falsia in hand saying that he would kill the accused that day, P.W. 8 another witness who happened to be going that way at the time heard the deceased saying that he would finish off the accused says that though he did not see what happened inside the house of the accused, he heard Ghada Ghada noise emaciating from the house of the accused after the deceased went in & that thereafter he left the place out of fear. P. W. 3 who is an eye witness & whose evidence will be presently notioed, also says that the deceased while on the way, before entering the house of the accused was saying that he will finish off the accused that day. Therefore, there can be no doubt on thi3 evidence that the deceased, whatever may have been his reason or motive rushed that evening into the house of the accused with a Falsia in hand to kill the deceased with the same. The evidence, however, of the actual murderous assault by the accused against the deceased is that of P.W. 3 & of another witness by name, Lunda Munda, who was 85;amined in the committing Mag's Ct. but who was not examined in the Sessions Ct. So far as the evidence of the witness, Landa Munda, is concerned, the prosecution attempted to peove by the evidence of P. W. 14 that he was ill. and not able to attend the 06. & that, therefore, his deposition, in the committing Mag 'a 0c. should be admitted in evidence. The learned Ses. J. while being of opinion that the evidence of P. W. 14 was not enough to make out strictly the precondition for the admission of Lunda Munda's evidence under Schedule 3, Evidence Act, still admitted the same & marked it as ex. 14 on the ground that the lawyer for the defence waived his objection to it. This is a wholly irregular procedure. It has been often pointed out that there can be no waiver on the part of the accused in a criminal case as regards any statutory requirements. It is a matter beyond dispute that under Schedule 3 a previous deposition cannot be marked unless the conditions for its admission are made out. It is no doubt true that in a civil proceeding, strict proof of these conditions can be waived; that is so only because in a civil proceeding the facts required to be proved can be admitted by the opposite party & a waiver in a civil proceeding amounts to proof by waiver. This principle has been very clearly reiterated by their Lordships of the Privy Council in Ghaniohal Singh v. Emperor, A.I.R. (33) 1946 P. C. 1 : (I. L. R. (1945) Kar. P. G. 366), where they point "out that the conditions of Schedule 3, Evidence Act, must be strictly proved & that they cannot be waived in a criminal proceeding. We must, therefore, rule out the deposition of Lunda Munda in the Committing Ct. marked as Ex. 14. The evidence of P. W. 3 who is the only other eye witness to the assault by the accused against the deceased shows that he saw the accused inflicting several blows on the deceased with a Falsia when the deceased was in a lying posture at the entrance of the house of the accused. He says that on seeing the same he himself ran away out of fear. On this evidence which there is no reason to doubt, it must be taken as proved that the deceased died as a result of murderous assault by the accused with a Falsia when as a fast the deceased ran up to the accused with a Falsia with the avowed object of killing him.;
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