Desa vs State of Orissa

M. Papanna, J.—This Jail Criminal Appeal is directed against judgment of learned Sessions Judge. Keonjhar. in S.T. No. 1 02 of 1991. The learned Sessions Judge convicted the accused (hereinafter referred to as "the Appellant") u/s 302/34 I.P.C. He sentenced him to undergo R.I. for life.

Case of prosecution is that Appellant, his wife (hereinafter referred to as ''the deceased'') and their five years'' old daughter were living in village Panasanasa of Keonjhar. district. During night of occurrence P. Ws. I and 2 heard cry of Appellant''s daughter. They woke up and came to his house. They found the deceased lying with injuries on her neck in a pool of blood. At that time the Appellant was holding an axe (M.O.I) stained with blood. Their daughter was rolling on the ground. The Appellant tried to drive them out. They left the spot out of fear. However, they took the child with them with much difficulty. In the following morning P.W. I reported the incident to the Ward Member (P.W. 4) of their village. The further case of the prosecution is that the Appellant assaulted P.W. 3 by M.O.I. while he was coming out of his house. As a result, he sustained injuries on his person. On F.I.R. (Ext. 2) lodged by P.W. 4, Kanjipani P.S. Case No. 11/91 was registered. During investigation police held inquest over the dead body of the deceased. It was sent for autopsy. On completion of investigation the Appellant was charge-sheeted.

Plea of the Appellant is total denial of prosecution allegation. In his statement u/s 313 Code of Criminal Procedure he has stated that this case has been foisted falsely against him.

Nine witnesses have been examined in proof of charges against the Appellant. P. Ws I and 2 are neighbours of the Appellant. P.W. 3 is the injured. P.W. 4 is the in formant. P.W. 5 is a seizure witness. P.W. 6 is the Doctor who collected blood group of the Appellant. P.W. 7 is the Doctor who conducted autopsy. P.W. 8 is the Medical Officer who examined P.W. 3. P.W. 9 is the 1.0.

On consideration of evidence of record, learned Sessions Judge found the Appellant guilty of the charges. Accordingly, he was convicted and sentenced as stated above.

The Learned Counsel for the Appellant contends that the circumstantial evidence relied upon by the learned trial Judge in convicting him has not been established. That apart, according to him evidence of P. Ws. I, 2 and 4 suffers from infirmities and improbabilities. He has also argued that recovery of M.O.I. by the police is not believable particularly when the same was seized from a place accessible to all. On these grounds he claims for acquittal of the Appellant.

The learned Add!. Govt, Advocate, on the other hand supported the impugned order of conviction and sentence recorded by the learned trial Judge.

The case of prosecution hinges essentially upon circumstantiate evidence. We may categories the said circumstantial evidence as below:

(i) Medical evidence as deposed to by P.W. 7 indicating homicidal death of the victim.

(ii) Motive of the Appellant to commit the crime.

(iii) Evidence of neighbours P. Ws. I and 2 to the effect that they saw the Appellant standing with weapon of offence (M.O.I.) stained with blood near the deceased who was lying dead in a pool of blood and their child was crying in the night of occurrence.

(iv) Evidence of P.W. 3 showing that the Appellant 8; ssaulted him by means of M.O.I. causing several injuries on his person.

(v) Recovery of weapon of offence (M.O.I) on information of the Appellant.

Medical evidence is one of the chains in the circumstantial evidence connecting the Appellant in the complicity of the crime. On examination of post-mortem report (Ext. 6), we have found following external injury on the victim:

(i) One obliquely situated incised wound of 3" long 2" wide and 1 Y:z" deep on right side of neck extending just above the midpoint of right sternomastoid muscle and extending downwards and laterally to 1" above the lateral 1/3rd of right clavicle widest at the middle.

On dissection the Doctor found the following interrial injuries:

(i) Right external jugular vein and right transverse cervical artery are cut,

(ii) Posterior border of right sternomastoid muscle anterior border of right trapegious muscle and lower belly of right homonymic muscle are cut.

The above injuries are ante-mortem in nature. The deceased died a homicidal death. Death was due to loss of blood on account of cut medium size blood vessel of the right side of the neck. These injuries wee sufficient in ordinary course of nature to cause death of the deceased. On examination of M.O.I. referred to P.W. 7, he has opined that the above injuries could be caused by M.O.I. Since the medical evidence has remained unassailed, the learned Sessions Judge held that the injuries as per Ext. 6 were ante-mortem in nature and the victim died a homicidal death. We affirm the said finding for the reasons recorded above.

In a case of murder where prosecution relies entirely on circumstantial evidence, the Court has to start looking for motive of the wrong doer to commit the crime. In the instant case, the prosecution has not examined any witness to prove such motive to commit the crime. In such a case, we have to see what circumstance the prosecution has placed before the Court to prove such motive. We have carefully examined the evidence of all witnesses on record. But prosecution has not placed any such circumstantial evidence to prove motive of the wrong doer to commit the crime. This shows a total failure on the part of the prosecution to prove the motive on the part of the Appellant to commit murder of is wife. But, however, motive being a state of mind is known alone to the perpetrator of the crime. Moreover, absence of proof of motive is not fatal to the case of the prosecution when other evidence is available on record to prove the guilt of the Appellant. We placed reliance on Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, in this regard. In the reported case the SC has taken the view that in all cases where circumstantial evidence is relied upon by the prosecution, motive of the wrong doer to commit the crime may not be established.

In such a case the Court has to remember that absence of proof of motive does not render the evidence bearing on the guilt of the accused, nonetheless untrustworthy or unreliable. Their Lordships have made it clear that most often it is only the perpetrator of the crime alone, who knows as to what circumstance prompted him to certain course of action leading to the commission of the crime.

P. Ws. 1 and 2 are the neighbors of the Appellant in the village. They are in No. way inimical to him. Their evidence to the effect that during the night of occurrence they had gone to the house of the Appellant hearing pitiable cry of the daughter of the Appellant and saw him standing with weapon of offence (M.O.I) stained with blood near his wife (deceased) who was lying dead with cut injury on his neck in a pool of blood has not been rendered unacceptable, untrustworthy or impeachable in any manner. They removed Appellant''s daughter from the scene of occurrence and fled away out of fear. During the said night they did not report the incident to anybody including P.W. 4 in the village. The reason is obvious. They apprehended that in case they would disclose the incident to others, the Appellant would not spare them. We accept this contcntion raised on behalf of the prosecution. The very conduct of the Appellant shows to what extent he was ferocious. Even in the following morning of the occurrence, the Appellant assaulted P.W. 3 by M.O.I. causing several injuries on his person. The medical evidence as deposed to by P.W. 8. who proved the injury report (Ext. 9) established that four incised wounds though simple in nature were sustained by P.W. 3 caused by M.O.I. Medical evidence lends support to the evidence of P.W. 3, the injured, who has stated to have been assaulted by the Appellant on different parts of his body by an axe resulting in several injuries. We do not find any infirmity in the testimony of P.W. 3 regarding the bodily injuries inflicted on him by the Appellant by means of an axe. In the facts and circumstances of the case. we do not find any infirmity or improbability in the evidence of P. Ws. I and 2, who had gone to the scene of occurrence and seen the actual fact situation. In ollr considered view, merely because they did not disclose the incident to others in the village during the night of occurrence, their evidence is to be discarded. In fact, they are truthful witnesses having No. manner of inimical relation with the Appellant. The learned trial Judge has rightly considered all the above aspects in reaching the conclusion of guilty of the Appellant.

The last chain in the circumstantial evidence is recovery of weapon of offence (M.O.I) on the information of the Appellant. In this connection, we have pertlsed the evidence of the I.O. (P.W. 9). His evidence shows clearly and categorically that while in custody the Appellant led him and the witnesses to the place of concealment of an axe (M.O.I). He seized the same under Ext. 1. Evidence of the I.O. is not otherwise found ''untrustworthy nor unbelievable. He is a responsible police officer, who has discharged his duty with utmost sincerity. There is No. reason why he would falsely implicate the Appellant for committing murder of his wife. In the case of State Government of N.C.C. Delhi v. Sunil and another; 2000(7) Supr 728, the Apex Court has taken the view that when a police officer gives evidence in Court that a certain article was recovered by him on the strength of a statement made by the accused, it is open to the Court to believe the version to be correct, if it is not otherwise shown to be unreliable. It is not a legally approvable procedure to presume the police action as unreliable to start with nor to jettison such action merely for the reason that the police did not collect the signature of independent person in the document made contemporaneous to such action.

We do not find any material on record to show that during the fateful night of occurrence any person other than the Appellant entered his house and assassinated the victim. Even during trial before the trial Judge there was No. suggestion made to the witnesses that any person other than the Appellant entered his house and assassinated the deceased.

The Learned Counsel for the Appellant has also contended that the place wherefrom the weapon of offence was recovered is accessible to all and as such the recovery evidence of the 1.0. is not to be given weight age. We do not agree with the said contention in view of the judicial pronouncement. On this point reliance can be placed on (1999) 16 OCR (SC) 575 State of Himachal Pradesh v. Jeet Singh. In the said case the fact discovered by the police with the help of the disclosure statement and the recovery of incriminating articles on the strength of such statement is that it was the accused who concealed those articles at the hidden places. Their Lordships have taken the view that it is immaterial that such statement of the accused is inculcator because Section 27 of the Evidence Act renders even such inculpatdry statement given to a police officer admissible in evidence by employing the words "whether it amounts to confession or not". This shows that nothing in Section 27 of the Evidence Act renders a statement of the accused inadmissible if recovery of articles is made from any place which is open or accessible to others. We would like to quote a few lines from the reported decision to clarify this point more fully:

It is a falacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence u/s 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main road side, or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who did it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others, If it is not, then it is immaterial that the concealed place is accessible to others.

Therefore, judging the facts of the present case in the light of the aforesaid dictum, we have found that the weapon of offence (M.O.I) was concealed by the Appellant behind the R.I. office. No. doubt, the said place is accessible to others but it is immaterial in view of the fact that it was ordinarily not visible to others. That being so, relaying on the dictum quoted above, we reject the contention raised by the Learned Counsel for the Appellant as unsustainable.

Therefore, on depreciation of all the evidence of witnesses available on record and taking into account all the chains in the circumstantial evidence cumulatively together, we subscribe to the view of the learned trial Judge who has rightly held that the Appellant is the real perpetrator of the crime. Hence, we reject the contentions raised by the Learned Counsel for the Appellant as above having No. force of law. On the contrary, we do not hesitate to hold ultimately that the murder of the deceased has been committed by the Appellant.

In the result, guilt of the Appellant having been fully established, he is bound to suffer imprisonment for life. We do not, therefore, think it proper to interfere with the order of conviction and sentence passed against him by the learned trial Judge. The Jail Criminal Appeal fails and the same is accordingly dismissed.