Dhanu Behera vs State Of Odisha

Dr. S.K. Panigrahi, J.

The convict/ Appellant (Dhanu Behera), in this JCRLA, challenges the judgment of conviction and order of sentence dated 22.12.2011 passed by the learned Ad hoc Additional District and Sessions Judge, FTC No.II, Bhubaneswar in Criminal Trial No.39/206 of 2010 convicting him under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “the I.P.C.” for brevity) and sentencing him to undergo R.I. for life and to pay a fine of Rs.1,000/- and in default to undergo R.I. for one year.

I. CASE OF THE PROSECUTION:

On 19.06.2010, at around 10.00 P.M. the convict/ Appellant was alleged to have intentionally committed the murder of his wife (deceased) at Mali Sahi, Muslim Basri, Unit-III, Bhubaneswar.

The case of the prosecution in short is that the accused was staying with his wife along with their two children at Mali Sahi, Muslim Basti, Unit-3, Bhubaneswar. On 20.06.2010 at about 7.00 A.M. some of the residents of the said Basti informed the complainant/ informant that the present Appellant had killed his wife and fled from the house. Having heard the complaint of the residents of the said area, the informant (P.W.4) rushed to the spot and found the deceased lying dead in her house. He enquired about the incident from the neighbors and was informed that on the previous night at about 10.00 P.M. a quarrel had occurred between the Appellant and the deceased. The son of the deceased P.W.1 stated that his father would return home drunk and assault his mother . In the relevant night also, his father returned home drunk and quarreled with the deceased. The Appellant had also threatened his son about killing him. Out of fear, he ran away to a nearby trolley. On the next morning, when he came to his house, he saw the dead body of his deceased mother lying inside their house and she had sustained bleeding injury on her head and his father was absconding. Based the aforesaid information, the informant lodged F.I.R. before the I.I.C., Kharvelnagar Police Station, Bhubaneswar. Accordingly, Kharvelnagar P.S. Case No.158 of 2010 was registered. Investigation was taken up. The Investigating Officer, during the course of investigation, examined the complainant at police station, prepared the spot map Ext.11, prepared the crime details form under Ext.12, examined the witnesses, held inquest over the dead body of the deceased. He dispatched the dead body of the deceased to Capital Hospital, Bhubaneswar for post-mortem examination, seized the weapon of offence i.e. wooden stick stained with blood, one gauze cloth containing blood stain and blood stained earth under seizure list Ext.5. He arrested the accused Dhanu Behera at police Station at 10.55 A.M and on the same day at 2.00 P.M. on being produced by the accused he also seized the wearing apparels of the accused. After completion of investigation, he submitted charge-sheet against the accused Dhanu Behera under Section 302 of the I.P.C. on 16.10.2010.

The trial court taking into account the overall evidence on record convicted and sentenced the Appellant. Hence, this appeal.

II. SUBMISSION OF THE APPELLANT:

Mr. S.K. Baral, Learned Counsel for the Appellant submitted that though in the written F.I.R. it has been categorically mentioned that P.W.4, the complainant ascertained about the occurrence from Dimal Mallick, Sk. Alli Hassan, Serafat Mallick, Rasida Bibi and Gelli, out of them only Rasida Bibi has been examined as P.W.8 and Gelli has been examined as P.W.2. But other three witnesses have not been examined on behalf of the prosecution nor have they been cited as such in the charge-sheet even though those witnesses are material witnesses to the prosecution case. He further submitted that though P.W.3 has stated in her evidence that in the next morning, after getting information from one Anna that the accused has murdered her sister, she rushed to the house of the accused and saw the dead body of the deceased, but Anna has not been examined on behalf of the prosecution. It was also submitted that the prosecution was unable to show any motive behind the crime by adducing cogent evidence. Hence the Trial Court has not done justice to the present appellant.

III. SUBMISSIONS OF THE STATE/ RESPONDENT

Ms. Samapika Mishra, learned Additional Standing Counsel for the State submitted that on an appraisal of evidence on record more particularly the direct evidence of P.Ws.1 and 2 coupled with the evidence of P.Ws.3, 4, 5, 6, 7, 8 and 9, the learned Ad hoc Additional District and Sessions Judge, FTC NO.II, Bhubaneswar has proceeded to convict the Appellant. She further submitted that motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. Therefore, even if merely because the motive behind the crime is not proved by any evidence it cannot be said to be a ground to discard the entire case of the prosecution. In such view of the matter, she submitted that the conviction recorded by the learned Ad hoc Additional District and Sessions Judge, FTC NO.II, Bhubaneswar in the aforesaid needs no interference.

IV. CONCLUSION:

The only point of determination in the present case is whether the accused appellant had committed murder by intentionally causing the death of the deceased by means of a wooden stick. The case of the prosecution rests upon the deposition of the eyewitnesses i.e., P.W.1 (Son of the deceased) & P.W.2 (daughter of the deceased). P.W.3 is a post-occurrence witness and P.W.4 is the informant who was notified about the incident by P.W.3 following which he lodged a FIR before the IIC of Kharbelnagar P.S. The incident occurred on 19.06.2010 at around 10 P.M at the house of the deceased. P.W.1 has deposed that the accused appellant would always return home drunk at night and quarrel with the deceased. On the relevant day, the accused appellant was drunk and on arriving at home, he started quarreling with the deceased. P.W.1 who is the son of the accused appellant witnessed these incidents following which the accused appellant threatened to kill him. P.W.1 fled from the house to a nearby trolley out of fear due to the accused appellant’s intimidation to cause death. On the next morning, when P.W.1 returned to his house, he saw the dead body of his deceased mother lying inside the house. The deposition given by P.W.1 provides that the deceased had sustained injury on her head and the accused appellant was not present in the house.

P.W.2 has categorically deposed that she had witnessed the accused appellant assaulting the deceased by a stick on her head and other parts of the body due to which there was a swelling on the face of the deceased. The accused appellant also threatened to murder P.W.2 on discovering that she had witnessed the entire incident wherein the accused had physically assaulted the deceased. On being threatened, P.W.2 ran out of the house and slept on the veranda of her aunt (Mausi). Upon returning home the next morning, P.W.2 found the body of the deceased lying inside the house. She called the deceased for food and money but, she did not respond. Thereafter, the accused appellant sprinkled a glass of water on the face of the deceased. However, the deceased did not respond and the accused appellant fled from the spot uttering “Marijaichi”. The evidence of those two witnesses appear to be free from any such glaring infirmity so as to bring them within the category of untrustworthy witnesses and as such not to rely upon their evidence; more so when it is not shown that they had any reason to falsely implicate the accused appellant. When also nothing is seen that P.W.1 (child witness) had the scope of being tortured or had so tortured anyone. Minor son of the accused appellant has no reason to implicate his father by stating falsehood when they had no one other than the accused appellant to look after them and take their care.

With the aforesaid, we find all the reasons to hold that P.W.2 had actually witnessed the physical assault on the deceased by the accused appellant. The statements given by P.W.1 establishes that the accused appellant was a habitual offender (in the sense that he would always quarrel with the deceased and assault her in a drunken state) and would often return home drunk and quarrel with the deceased. On the date of occurrence, both (P.Ws.1 and 2) had witnessed the accused appellant quarreling with the deceased; however, P.W.1 ran out of the house on being threatened and was not present at the time the deceased was assaulted with a wooden stick. However, P.W.2 was a clear eyewitness to the incident, and she has categorically deposed that she witnessed the accused appellant assaulting the deceased with a wooden stick on her head and other parts of the body. Moreover, when P.W.2 returned home in the morning, she found that the deceased was lying inside the house and the accused appellant was present in the house at that moment. It has also been provided in the deposition that the accused appellant sprayed a glass of water on the deceased’s face and when she did not wake up, the accused appellant fled from the house uttering “marijaichi”. Thus, it can be affirmed that the accused appellant was present in the house on the night the deceased was murdered. He was also present during the next morning as P.W.2 has deposed to have seen him in the house. The conduct of the appellant insofar as spraying a glass of water on the face of the deceased and uttering “marijaichi” and ultimately, fleeing from the spot upon realizing that his wife is dead, reveals that he had requisite knowledge about the said incident and the way it had occurred. The accused appellant was neither shocked nor did he express any grief on discovering the body of the deceased. The accused appellant did not even bother to raise an alarm or seek medical services/attention over the condition of his deceased wife; rather he absconded from the spot leaving his children alone in the house.

P.W.3 is a post-occurrence witness and was informed about the incident by one Anna; following which she rushed to the house of the deceased. While on her way, she saw the accused appellant fleeing from the spot. Therefore, the depositions made by P.W.1 and P.W.2 stand duly corroborated by the statement of P.W.3 to the extent that the accused appellant was present in the house during the incident and tried to flee upon discovering her wife’s dead body. Thus, the presence of the accused appellant in the house throughout the night, till the next morning is not in dispute. It bears repetition that the appellant and the deceased were the only occupants of the house on the relevant night, and it was therefore incumbent on the appellant to tender some explanation in order to avoid any suspicion as to his guilt. Nothing has been placed on record on behalf of the appellant to disprove the prosecution story. The Appellant has also not offered any explanation as to why he ran away from his house after discovering his wife lying dead inside the house. It is well proved that the appellant fled from his house in the morning as the same is also corroborated by the evidence of P.W.3 who saw the appellant running away from his own house in the morning. It has been contended by learned counsel for the appellant that Anna was not examined by the prosecution who informed P.W.3 about the death of the deceased and the accused being the murderer.

In our opinion, the non-examination of Anna does not discredit the otherwise credible and trustworthy testimonies of P.W.1, P.W.2 and P.W.3 and simply for that the case of the prosecution cannot be rendered suspect. It is primarily because the ocular evidence here receives ample corroboration from the proven facts and circumstances that the accused was present in the house on the relevant night and was seen running away from the house in the next morning as deposed by P.W.2 and P.W.3.

In addition to the above, the motive can be confirmed from the fact that the accused appellant had a strained relationship with the deceased. On the other hand, he was often drunk while returning home at night and would quarrel with the deceased and assault her physically. This has been categorically stated in the deposition made by P.W.1. Moreover, the conduct of the accused appellant in threatening both P.W.1 & P.W.2 about murdering them while he was assaulting and quarreling with the deceased contributes towards his motive of inflicting harm on the deceased and his children. Since, the appellant was an alcoholic, it is reasonably foreseeable that his drinking problem was one of the reasons behind the constant friction between the deceased and the appellant. On top of this, the appellant had a habit of subjecting the deceased to physical violence. This can be confirmed from the deposition of P.W.1 & P.W.2. Even though, the exact motive behind murdering the deceased is best known to the appellant and is extremely difficult for the prosecution to establish when an incident happens in secrecy inside a house, prior instances of alcoholism and assault on the deceased and the account of eyewitnesses is relevant and adequate towards establishing the motive of the accused. The conduct of the appellant is also unnatural in the sense that he fled from the spot after discovering his wife’s dead body inside the house. According to P.W.2, he uttered “marijaichi” after sprinkling a glass of water on the face of the deceased who was lying on the floor. This also establishes that the accused appellant was present in the house till the next morning, and it was only after discovering that the deceased has died, he tried to flee. The act of running away from the house instead of raising an alarm, seeking medical attention, or alerting the neighbors itself constitutes that the appellant was afraid of getting caught and an inference of guilt can be drawn from such conduct.

Learned Counsel for the Appellant has contended that the there is an extreme possibility of P.W.1 & P.W.2 being tutored by the deceased’s relatives to depose against the appellant. In this respect, we are of the opinion that there is no justification as to why both the eyewitnesses would depose falsely against their father. The depositions and testimonies of both the eyewitnesses do not suffer from any infirmities as there is no inconsistency in the material particulars of the evidence. They being children of the deceased or victim is no ground to reject their evidence. On the contrary, they would be reluctant to spare the real culprit who has caused the murder of their mother. Moreover, this is no inconsistency between the ocular evidence and medical evidence as it has been categorically deposed by P.W.2, P.W.8, P.W.9, P.W.12 that the deceased had swelling on her face and had multiple injuries all over the body. The deposition made by P.W.2, in particular, is of greater relevance as she was the only person who had witnessed the accused appellant assaulting the deceased on the relevant night. She had stated that the deceased was assaulted with a wooden stick and had swelling on her face and injuries on other parts of the body. The evidence of P.W.12 who held inquest over the dead body also go to show that the deceased’s face was swollen and the murder of weapon i.e., the wooden stick was also lying nearby. The medical opinion was sought as to whether the concerned wooden stick could have been so used to cause the injuries upon the deceased and it was replied in affirmative that the injuries sustained by the deceased were possible by the wooden stick. Hence, it can be ascertained that there is no inconsistency between the medical evidence and the ocular evidence to discard the depositions and testimonies as untrue. Moreover, in our opinion, it was not “unnatural” on the part of P.W.1 & P.W.2 to not raise an outcry regarding the incident as they were threatened by their own father and that could have been even unnatural in case of adults. Also, both P.W.1 & P.W.2 were witnessing these incidents of violence towards the deceased on a regular basis and on the relevant day, they could not have thought by any stretch of imagination that their father (the appellant) would murder the deceased. It cannot be expected of P.W.1 & P.W.2 to predict the consequences or the conduct of their own father as they are small children and therefore, it would be mechanical to assume that P.W.1 & P.W.2 could have informed about the same to their aunt (Mausi) or other neighbors.

For all these aforesaid, the prosecution is found to have established the guilt of the accused beyond reasonable doubt.

In the result, this appeal sans merit and the same is liable to be dismissed. Accordingly, the JCRLA is dismissed. The judgment of conviction and order of sentence dated 22.12.2011 passed by the learned Ad hoc Additional District and Sessions Judge, FTC NO.II, Bhubaneswar in Criminal Trial No.39/206 of 2010 are confirmed.

The JCRLA is dismissed.

...............................................