Bibekananda Naik vs State Of Odisha

Dr. S.K. Panigrahi, J.

The Appellant, in this Appeal, assails the judgment of conviction and order of sentence dated 30.06.2014 passed by the learned Additional Sessions Judge, Angul in C.T.(S) No.102 of 2011/ C.T.(S) No.41 of 2013, arising out of G.R Case No.15 of 2011 of the file of the learned S.D.J.M., Athmallik; wherein the learned Additional Sessions Judge, Angul has convicted the Appellant (accused) for commission of offence punishable under Section 302 of the I.P.C. Accordingly, the accused has been sentenced to undergo imprisonment for life and to pay a fine of Rs.3000/-, in default to undergo R.I for six months.

I. CASE OF THE PROSECUTION:

The case of the prosecution, in brief, is that one Pramila Naik, wife of Nanda Kishore Naik lodged F.I.R. before the Officer-in-Charge of Kishorenagar Police Station on 15.01.2011 alleging that her daughter Parbati Naik was given marriage to the accused Bibekananda Naik of village Gambharimalia about 4 years ago. Her daughter told her several times that her husband accused Bibekananda Naik was frequently quarrelling with her demanding more dowry. On the morning of dated 15.01.2011, they received information that her daughter Parbati Naik died due to unnatural circumstance in the house of her in-laws. She rushed to village Gambharimalia the in-laws house of her daughter and found the dead body of her daughter lying on a cot and there were prominent ligature marks on her neck. On inquiry, she could know that on the preceding night the accused Bibekananda Naik throttled the neck of her daughter and killed her owing to demand of dowry. On such report, Kishorenagar P.S. Case No.4 dated 15.01.2011 for the offences under Sections 302/304(B) of the I.P.C and Section 4 of the D.P. Act was registered. On completion of investigation, charge-sheet under Sections 498(A)/302/304 (B) of the 1.P.C. and Section 4 of the D.P. Act was submitted and after framing of charge of the above said penal Sections, the accused was facing the trial.

II. TRIAL COURT’S JUDGMENT:

The defence took the plea of denial and false implication. In order to prove the allegation, the prosecution examined as many as 13 witnesses. Prosecution also placed reliance on the documents marked Exts.1 to 8.

No defence evidence, oral or documentary, was adduced. The informant Pramila Naik, mother of the deceased was examined as P.W.1. P.W.2 (Urmila Naik) is the sister of the deceased. P.W.3 is a co-villager of the deceased and a post occurrence witness. P.W.4 (Prasanna Kumar Naik) is the brother of the deceased. P.W.5 (Nanda Kishore Naik) is the father of the deceased. P.W.6 (Mohan Buda) is stated to be a post occurrence witness and an inquest witness. P.W.7 (Mahendra Naik) is a post occurrence witness. P.W.8 (Rama Chandra Naik) is a resident of village Gambharimalia i.e. the village of the accused who scribed the F.I.R. P.W.9 (Bijay Naik) is a witness to seizure. P.W.10 (Biranchi Naik) is another witness to seizure. P.W.11 (Bibadhar Naik) is an inquest witness. P.Ws. 12 and 13 are the Medical Officers, who conducted autopsy over the dead body of the deceased jointly and submitted medical query report. The evidence of the investigating Police Officer was declined by the prosecution due to non- attendance.

On an appraisal of evidence on record and after careful evaluation and examination of recorded evidence, the learned trial court hold that the accused was frequently assaulting the deceased and there was an immediate assault or torture by the accused on his wife resulting her death in an unnatural circumstance. It is very well admitted in the cross-examination of the parents of the victim that they were being treated well in the family of the accused and their daughter deceased Parbati had never complained before them to have been assaulted by the accused for dowry. The stray evidence of P.W.7 regarding demand of dowry by the accused could not prove the incident of dowry demand and consequent torture of the deceased. Thus, from the evidence on record there is no basis of evidence to hold the accused of guilty of the offences under Sections 498A/304B of the I.P.C. read with Section 4 of the D.P. Act and accused was acquitted of the said charges.

But, so far as the offence under Section 302 of the I.P.C. is concerned, the materials on record and the circumstance outlined below are significantly important.

i) The dead body of the deceased was lying in the North side dwelling room of the house of the accused on a cot with black mark on the neck of the deceased (P.W.6).

ii) A co-villager of the village of the accused returned after witnessing Makaramela and found death of Parbati Naik in unnatural circumstance and scribed the F.I.R. on the approach of the mother of the deceased who rushed to the village of the deceased.

iii) Evidence of the mother of the deceased (P.W.1) that she was informed by the Secretary of village Gambharimalia about death of her daughter in suspicious circumstances.

iv) Medical evidence of P.Ws.12 and 13 that death was homicidal one and ruled out the possibility of suicide and the alleged death was homicidal.

v) Seizure of a long jute rope from the house of the accused admitted in evidence of P.Ws.9 and 10 of the village of the accused which had a definite oblique motive of the accused to give the homicidal death to a colour of suicidal death.

vi) The medical evidence found in the testimony of P.Ws.12 and 13 that the death of the deceased Parbati Naik was due to throttling by putting pressure on her neck by finger and palm i.e. strangulation. The evidence of the Medical Officer P.W.13 that the deceased was throttled to death and there after hanged with a rope to give the colour of a suicidal hanging.

vii) The admission of the accused under Section 313 of the Cr.P.C. that his wife hanged herself in his absence in the house which is a piece of corroborative evidence militating against the innocent conduct of the accused.

viii) Non-reaction of the accused husband on the so-called suicidal hanging of his wife and his abstention from quick police reporting.

ix) Evidence of witness Mohan Buda (P.W.6) that accused Bibeka Naik confessed in his presence to have killed his wife Parbati.

The above circumstances clearly and unerringly go to prove that the above accused Bibekananda Naik in a fit of rage throttled the neck of the deceased Parbati Naik with the knowledge that by such injury she would be done to death. Thus, the accused was found to be guilty of committing murder of his wife which is punishable under Section 302 of the I.P.C. as the chain of circumstances are unbroken and it cumulatively establishes his guilt beyond reasonable doubt Thus, he was found to be guilty of the offence under Section 302 of the I.P.C. and was convicted thereunder.

On analysis of evidence on record and taking into consideration of the documents exhibited in the aforesaid case, the learned Additional Sessions Judge, Angul has held the accused guilty of the offence under Sections 302 I.P.C. and sentenced him as aforesaid.

III. SUBMISSIONS ON BEHALF OF THE APPELLANT:

Learned counsel for the Appellant submitted that the learned trial court has relied on circumstantial evidence to convict the Appellant but the chain of circumstances have neither complete nor does it inspire confidence. There are many missing links in the alleged chain of circumstances which entitle the Appellant to an acquittal.

He further submitted that Ext 8, the opinion of the Doctor is not supported by medical jurisprudence as there were no marks to show that fingers and palm had been used to throttle the deceased. Hence, their bald statements in the absence of corroborative medical evidence cannot be relied on to maintain the conviction of the Appellant under Section 302 I.P.C.

Further, the evidence of the Medical Officers P.Ws. 12 and 13 are not consistent with each other and is contradictory and fails to inspire confidence. The learned Court below has committed error of record by stating that bruises were found on the body of the deceased which support the fact of her strangulation. Both the Medical officers have stated about finding a ligature mark around the neck. P.W.12 Medical officer has clearly stated that “no external injury was found anywhere on the dead body except multiple abrasion on both the knees”. Walls, ribs and cartilage were found to be intact with no injury and that larynx trachea were found with bruises with fracture of hyoid bone. Both P.Ws.12 and 13 have stated that the cause of death was due to asphyxia and throttling without saying what were the signs / injuries to support the opinion regarding throttling. P.W.13 has stated that the ligature mark was post mortem and that the ligature mark, abrasion and bruise on the neck were caused due to use of rope for strangulation which is contradictory. It is further submitted that larynx trachea are underlying internal organs below the neck and hence the bruises cannot be considered to be external injuries. Similarly, when there were no marks of finger or palm on the neck, it cannot be a case of throttling or strangulation. Neither of the Medical Officers has found signs of finger marks. Mere existence of ligature mark cannot by any stretch of imagination make out a case of throttling. If the ligature mark was continuous (as opined by P.W. 12), the deceased could not have been hanged after throttling (as opined by P.W. 13). In response to the question regarding possibility of suicidal hanging, the lame reply of P.W.13 was that there was no other finding.

It was also submitted that the Appellant has been the victim of prejudice as P.W.13 was not properly cross-examined and the Investigating Officer could not confront with the omissions and contradictions in their evidence on account of his non-examination.

A perusal of the evidence of P.W.1, P.W. 2, P.W.4 and P.W. 5 who are relations of the deceased would show that they have made many allegations in Court for the first time regarding dowry and ill treatment. P.W.1, the mother of the victim has admitted in cross-examination that there was no demand of dowry at the time of marriage. Her daughter has been treated well in the house of the accused and had never alleged before the Panchayat or the Police regarding ill treatment. She has also stated that the contents of the FIR were not read over to her and she presumed that her daughter had been killed on seeing the black ligature mark. Similarly, P.W.2, the sister of the deceased has admitted in cross-examination that she did not know about any dowry demand by the accused. She had been treated well by the accused when she visited her sister’s house. P.W.4, the brother of the deceased has admitted that he had been treated well by the family members of the deceased whenever he visited them and the matter was never referred to the Police or Panchayat. He had not stated before the Police about his sister’s coming back to their house being unable to bear the torture.

In view of these omissions and contradictions, the learned trial court rightly acquitted the Appellant from the charges under Sections 498A and 304B of the I.P.C. read with Section 4 of the D.P. Act. Further, in view of the finding of the learned trial court there was scanty evidence to hold that the Appellant was frequently assaulting the deceased and there was an immediate assault or torture by him on his wife resulting her death in unnatural circumstances. Therefore, the learned trial court should have acquitted the Appellant of all charges.

Learned counsel for the Appellant further submitted that the evidence of P.W. 7 regarding giving of dowry at the time of marriage is based on heresay and cannot be relied upon. The seizure of the jute rope does not in any way point to the guilt of the Appellant. The circumstances relied on by the learned trial Court, a major link regarding evidence to show that the deceased was present in the house when the death of the deceased took place or when her body was recovered or was last seen with the deceased is missing. In such circumstances, the statement of the Appellant during his examination that the deceased committed suicide in his absence which appears probable should have been accepted and he should have been given the benefit of doubt. The independent witnesses P.Ws.8 and 9 have not supported the prosecution case and have been declared hostile. The extra judicial confession made before P.W.6 cannot be taken into consideration, as it was made in presence of the police and P.W.6 was an acquaintance of the in-laws family of the Appellant and not somebody on whom the Appellant could repose confidence so that to confide him about the killing of the deceased. Another vital reason for which the alleged extra judicial confession should have been kept out of consideration is that P.W. 9, who was an alleged witness to the extra judicial confession has been declared hostile, as he did not support the prosecution case.

The circumstance that the accused did not promptly report the so called suicide to the police is not incriminatory as a rustic villager is not supposed to rush to the Police and on account of the fact that the incident occurred in his absence. But it is apparent from the evidence on record that the Appellant has not suppressed the incident or made any attempt to dispose of the body before arrival of his in-laws.

He further submitted that the Appellant has been seriously prejudiced for non-examination of the Investigating Officer as vital omissions and contradictions in the statements of P.Ws, and questions/ suggestions regarding injuries and condition and location of the dead body and possibility of commission of suicide could not be put to him.

He submitted that in view of the above, the commission of offence under Section 302 I.P.C. has not been proved beyond reasonable doubt. So, the Appellant should have been given the benefit of doubt.

IV. SUBMISSIONS ON BEHALF OF THE STATE:

Per Contra, Learned Counsel for the State vehemently contended that the accused is found to be guilty of commission of murder of his wife and punishable under Section 302 of the I.P.C., as the chain of circumstances unbreakably and cumulatively establish his guilt beyond reasonable doubt. He contended that the accused in fit of rage throttled the neck of the deceased with the knowledge that by such injury she would be done to death.

Furthermore, from the evidence of the doctors P.Ws.12 and 13 it appears that death of the deceased was due to throttling by putting pressure on her neck by finger and palm i.e. strangulation. The evidence of P.W.13 further reveals that the deceased was throttled to death and thereafter hanged with a rope to give the colour of suicidal hanging. In such view of the matter, he submitted that there appears no cogent ground to interfere with the impugned judgment of conviction and order of sentence rendered by the learned trial court.

V. COURT’S ANALYSIS AND REASONS:

Admittedly, the evidence of the parents of the deceased P.W.1 and 5 and the statement of the accused under Section 313 of the Cr.P.C. points to the fact that the deceased had got married three years proceeding to her death. Thus, evidence on record are sufficient to the fact that the deceased was married to the accused and the death of the deceased as per the F.I.R. was found on 15.01.2011 at 11.30 A.M. P.W.12 and 13, the medical officers have testified in common. They have conducted joint autopsy over the dead body of the deceased on 15.01.2011 at 4.45 P.M. The reason for the death was attributed by these medical officers was due to asphyxia and throttling. The time since death was within 24 hours from the time of their examination under the medical report/ Ext.6. Both these experts of medical field whose evidence was received under Section 45 of the Indian Evidence Act commonly opined that it was a clear case of homicide. The death was caused by strangulation by means of jute rope and due to throttling by putting pressure on the throat by means of finger and palms. There was ligature mark produced around the neck of the deceased. Both the medical officers opined that the ligature mark around the neck, the abrasion and bruises on the neck of the deceased were due to application of rope for strangulation. Thus, the oral evidence of P.W.1, 2, 5 and 8 received medical corroboration in the post mortem examination report/Ext.6 and the medical query report Ext.8 that the death of the deceased was a homicidal one and the timing of death as pointed out in the oral evidence squarely matched with the medical evidence on the issue that the death of deceased Parbati Naik which was homicidal in nature which occurred in the night hours of 14.01.2011.

Mohan Buda (P.W.6) who accompanied the parents of the deceased to village Gambharial upon hearing death information of Parbati Naik. He deposed that soon after their arrival, the police reached to village Gambharimalia and from the North side of the dwelling house, they saw the dead body of Parbati Naik lying on a cot. He saw black marks on the neck of the deceased Parbati. Significantly, this witness went a step further to state that in his presence the accused Bibekananda Naik admitted before the police to have killed Parbati as she could not meet his dowry demand. It is true that admission of guilt before police is hit under Sections 25 and 26 of the Indian Evidence Act. Since it was stated before the police, but the circumstance flows against the accused. Thus, this evidence cannot be admissible. The evidence of this witness was sought to be challenged in cross-examination pointing out at his admission in cross-examination that at the time when the accused made a statement to have killed his wife, he was not arrested by the police.

Similarly, P.W.7 who is an independent neutral witness neither belonging to the village of the accused nor that of the informant. This witness stated that she found the dead body of Parbati to be lying on a cot with black marks around the neck. He happens to visit village Gambharimalia along with the father of the deceased. P.W.9 and 10 were independent witnesses of village Gambharimalia. In whose presence, police seized a piece of rope from the house of the accused under Ext.3. P.W.9 deposed that the accused has ever confessed before him regarding killing of his wife. But both the prosecution witnesses have admitted regarding seizure of one jute rope of 9 feet with approximate girth of one inch. The said jute rope was sent to the medical officers for examination and the medical officers had opined that the ligature mark found on the neck of the deceased was post mortem one. But one undenied fact in the present case is that the deceased was strangulated to death by application of finger and palm with force which could be proved through Ext.8.

The evidence of P.W.6 regarding accused’s admission before the police in his presence to have caused death of the deceased cannot be accepted as a strong piece of evidence except the fact that the circumstances are leading to the death slightly leaning towards the accused. Further, conviction of the accused cannot be related merely based on his statement under Section 313 of the Cr.P.C. though the said evidence can be used for the purpose of corroborating the prosecution case.

If we evaluate the evidences recorded regarding frequent assaulting on the deceased was less. There was an immediate assault or torture by the accused on his wife resulting her death in unnatural circumstance. It is also the fact that the statement made by the parents of the deceased that they were being treated well in the family of the accused and their daughter Parbati never complained before them to have been assaulted by the accused for dowry. The stray evidence of P.W.7 regarding demand of dowry by the accused could not prove the incident of dowry demand and consequent torture of the deceased. However, if we look into the offence under Section 302 of the I.P.C. materials on record and the circumstances outlined below are significantly important:

i) The dead body of the deceased was lying in the North side dwelling room of the house of the accused on a cot with black mark on the neck of the deceased (P.W.6).

ii) A co-villager of the village of the accused returned after witnessing Makaramela and found death of Parbati Naik in unnatural circumstance and scribed the F.I.R. on the approach of the mother of the deceased who rushed to the village of the deceased.

iii) Evidence of the mother of the deceased (P.W.1) that she was informed by the Secretary of village Gambharimalia about death of her daughter in suspicious situation.

iv) Medical evidence of P.Ws.12 and 13 that death was homicidal one about ruling out against possibility of suicide and alleged death being homicidal.

v) Seizure of a long jute rope from the house of the accused admitted in evidence of P.Ws.9 and 10 of the village of the accused which had a definite oblique motive of the accused to give the homicide a colour of suicide.

vi) The medical evidence found in the testimony of P.Ws.12 and 13 that death of deceased Parbati Naik was due to throttling by putting pressure on her neck by finger and palm i.e. strangulation. The evidence of the Medical Officer P.W.13 that the deceased was throttled to death and there after hanged with a rope to give the colour of a suicidal hanging.

vii) The admission of the accused under Section 313 of the Cr.P.C. that his wife hanged herself in his absence in the house which is a piece of corroborative evidence militating against the innocent conduct of the accused.

viii) Non-reaction of the accused husband on the so-called suicidal hanging of his wife and his abstention from quick police reporting.

ix) Evidence of witness Mohan Buda (P.W.6) that accused Bibeka Naik confessed in his presence to have killed his wife Parbati.

The circumstances narrated above unambiguously proved that the accused in a fit of anger throttled the neck of the deceased with the knowledge that such injury would cause death. Hence, the accused cannot escape from the guilt of committing murder of his wife which is punishable under Section 302 of the I.P.C. as the chain of circumstances cumulatively points towards the guilt of the accused beyond all reasonable doubt. Hence, the conviction handed out to the present Appellant by the Additional Sessions Judge, Angul vide the impugned of conviction and order of sentence dated 30.06.2014 passed in C.T.(S) No.102 of 2011/ C.T.(S) No.41 of 2013 does not deserve any interference by this Court.

Accordingly, the Appeal is dismissed. The impugned judgment and order are confirmed.

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