Mangala Pradhan vs The State

S. Acharya, J.—The Appellant stands convicted for offences under Sections 302, 201 and 211, Indian Penal Code in one trial. For the offence u/s 302, Indian Penal Code he has been sentenced to undergo R.I. for life. For the offence u/s 201, Indian Penal Code the Appellant has been sentenced to undergo R.I. for two years and to pay a fine of Rs. 100/-, in default to undergo R.I. for one month, and for the offence u/s 211. Indian Penal Code he has been sentenced to undergo R.I. for two years and to pay a fine of Rs. 50/-, in default to undergo R.I. for 15 days. The substantive sentences of imprisonment have been ordered to run concurrently.

The prosecution case, in short, is that in the morning of 2-8-1974 the Appellant asked his wife Sita (the deceased) to get some liquor, Bidi and tobacco paste (Gudakhu) from P.W. 4. While asking her to get those things he also told her that if she failed to get those things she would be killed. The deceased went to P.W. 4 and asked him to supply those things and informed him that if he would not give those things her husband would kill her. P.W. 4 expressed his inability to give those things, and so the deceased came back to her house without the same. At this the Appellant became enraged, caught hold of the deceased, dragged her inside the house and killed her by dealing Tangia blows on her. P.W. 1 saw the Appellant dragging the deceased inside the house. He then heard the voice of the deceased crying for help from inside the house. On hearing the deceased''s cry P.W. 1 went to the back side of the house, and through the back door of the house he saw the Appellant giving Tangia blows on the deceased. Out of fear he left that place and informed that matter to Krupasindhu Behera Dalei (P.W. 2) and one Sana Banka Raito who were returning from their fields. P.W. 2, Sana Banka Raito and some others went to the house of the accused and through the back door of the accused''s house they saw the deceased lying dead in a pool of blood. They also saw the accused there searching for something in the Atu. They informed this matter to P.W. 4, the Ward Member of the village and the ''cousin brother of the deceased. P.W. 4 and others again came to the house of the accused and found the deceased lying dead in a naked condition in a pool of blood. The Sari of the deceased (M.O. III) was lying by her side.

The accused''s Tangia (M.O. I) and his Gamuchha (M.O. II) were also lying near that place with stains of blood on the same. The accused was not present there. While they were preparing to go to the police station, two constables (P.W. 6 and another) arrived at the village. The accused after causing the death of his wife straight went to the police station and lodged a false information there to the effect that he and his wife were assaulted by P.Ws. 1 and 2 and one Sana Banka Raito, and for fear of his life and to seek police protection he ran away from the house to the police station. On his oral report a station-diary entry (Ext. 1) was made by P.W. 5. the Writer Constable at the police station who by his letter Ext. 2 sent an extract of the same to the Officer-in-charge, Ramgiri Police Station, P.W. 5 sent P.W. 6 and another constable to the village to keep watch over the dead body and the place of occurrence. P.W. 6. on arriving at the village, sent a chit (Ext. 3) to the police station informing P.W. 5 that the accused who had gone earlier to the police station should be kept under watch as he was suspected to have committed the murder of his wife. P.W. 10, on receiving Ext. 2, registered a case u/s 326, Indian Penal Code against P.Ws. 1 and 2 and Sana Banka Raito and went to the village of occurrence. He reached there on the next day morning at 9 a.m. P.W. 10 came to know that it was the accused who actually had assaulted his wife to death. He, therefore, suo motu drew up the F.I.R, Ext. 10, and registered a case u/s 302, Indian Penal Code against the accused. Thereafter, on further investigation he submitted a charge sheet against the accused for an offence u/s 302, Indian Penal Code and submitted final report in the case registered at the instance of the accused. A case under Sections 201 and 211, Indian Penal Code was also started against the accused on the allegations that he knowingly gave false information to the police with the intention of screening the real offender and he instituted a false criminal proceeding against P.Ws. 1 and 2 and Sana Banka Raito.

The accused denied to have committed the murder of his wife. According to him, on the date of occurrence P.Ws. 1 and 2 and Sana Banka Raito assaulted the accused and his wife (the deceased), and out of fear for his life and to obtain police intervention he ran to the police station and there lodged information about the actual incident in order to bring the real culprits to book.

The finding of the Court below that Sita, the deceased, died a homicidal death is not challenged.

P.W. 8, who conducted the autopsy on the dead body of the deceased, found the following injuries on her person:

(1) 1" x 1/4" deep incised wound on the right palm (vertical) 11/2 from the wrist joint.

(2) 2" x 1" incised wound by the side of the left ear lobe extending over the left side of the neck.

(3) 11/2" x 1/4" deep incised wound over the right lower jaw transversed pointing towards chin, cutting the facial artery.

(4) 11/4" x 1" deep incised wound over the right side of the neck (oblique).

(5) 6" x 11/2 deep transversed incised wound extending, from the left side of the lower neck to right side.

(6) Incised wound 1x3/4" x 1/2" deep oblique over the front of the right shoulder.

(7) 3" x 2" deep incised wound over the lower neck across ;vertebral column transversed cutting the muscles of back and vessels.

(8) Small elliptical hole-in lower part of trachea about 1/4" diameter. On dissection he found as follows ;

(i) There was complete dissection of large vessels of neck on the left side.

(ii) Small elliptical hole in the lower part of the trachea 1/4" in diameter).

The doctor opined that all the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. P.W. 8 was not cross-examined by the defence counsel in the trial Court.

On a perusal of the unchallenged deposition of P.W. 8 and the post-mortem report (Ext. 5) submitted by him, we are convinced that the deceased died a homicidal death.

On the charge sheet and the prosecution reports submitted by P.W. 10 against the accused, two separate cases .(S.T. No. 76/74 and S.T. No. 40/75) were committed to the Court below. From the order sheet of the S.T. No. 76/74 appears that on 12-5-1975, i.e., on the date of hearing, the charge against the accused was amended and he was tried for offences under Sections 302, 201 and 211. Indian Penal Code. Evidence in the case was recorded on that date and the/accused'' was convicted of all the three offences on that very day. That being so, the statement of the learned Sessions Judge in paragraph 2 of the impugned judgment that ''the case u/s 302, Indian Penal Code and the case u/s 211. Indian Penal Code were clubbed together, one merging with- the other is incorrect. Deposition was recorded only in S.T. No. 76/74. Moreover, the charge in S.T. No. 76/71 only was amended as stated above. So the heading in the impugned judgment that the some relates to S.T. Nos. 76/74 and 40/75(G) is also incorrect.

At first we shall deal with the conviction of the Appellant u/s 302, Indian Penal Code. P.W. 1 is the only eye-witness to the occurrence. On the date of occurrence by about 10 a.m. he was returning from his field. At that time he saw Sita, the deceased, trying to run away from her house, but the accused caught hold of her Sad and when that slipped off her waist, he caught hold of her tuft of hair and forcibly dragged her inside the house and chained the outer door from inside the house. Soon thereafter he heard the voice of Sita crying for help from inside the house. On hearing that P.W. 1 went towards the Bari door of the accused''s house and from there he saw that the accused was dealing blows on Sita with the Tangia in his hand. Out of fear he left that place, and on his way he informed about the occurrence to P.W. 2 and one Sana Banka Raito who were coming from their fields. P.W. 2 and Sana Banka Raito went towards the house of the accused and P.W. 1 went towards his paddy fields and informed about the occurrence to P.W. 4, the Ward Member of the village and the cousin brother of the deceased. Thereafter he along with P.Ws. 4, 2 and Sana Banka Raito went to the house of the accused and found the deceased lying there naked in a pool of blood with several incised injuries on her person. They saw the Tangia. M.O.I, the Gamuchha, M.O. II, and the Sari of the deceased (M.O. III) lying near the dead body, all stained with blood. He has further stated that when he and some others were preparing toga to the police station, two constables and a Grama Rakhi of the Ram Udayagiri police station arrived at the village.

It is urged by Mr. Ray, the learned Counsel engaged by this Court to appear for the Appellant, that the evidence in this case is not worthy Of reliance as P.W. 1. the only eye-witness to the occurrence was admittedly a labourer under p.w.2, who was not pulling on well with the accused due to some land disputes, and none of the villagers, who have their houses just in front of the house of the accused and were expected to know about the occurrence, figures as a witness in this case. There is no evidence of the act that P.W. 2 had actually any land dispute with the accused or that the accused was not pulling on well with P.W. 2 on any other account. The suggestion to the above effect has been stoutly denied by this witness.

P.W. 1 has of course admitted that he did not shout out when he found the accused pulling Sita by her clothes. On that account his evidence cannot be disbelieved. According to this witness at the time when the occurrence took place all the persons who were residing in front of the house of the accused had gone to their respective paddy lands. There is nothing on record to the contrary. Mr. Ray commented that this witness could not have seen the actual occurrence inside the house from its back side as narrated by him, as the eaves of that house were hanging down upto about 4 or 5 feet from the ground level and the room where the occurrence took place was dark. This witness has clearly stated that though the room where the occurrence took place was dark he could witness all that took place inside that room as it was about 10 a.m. in the day and everything ,was clearly visible to him from the place where he was standing. On a careful persual of the evidence on record we find that nothing has been elicited on which the testimony of P.W. 1 that he witnessed the occurrence as stated by him can be doubted.

P.W. 2 is a witness who, on receiving information from Sana Banka Raito that the accused had inflicted cut injuries on his wife'', went to the back side of the accused''s house and from there he saw that Sita was lying dead in a pool of blood inside the one-roomed house of the accused and the accused was present inside that room and was searching for something in his Atu. On seeing that P.W. 2 went to the Ward Member, P.W. 4. Thereafter he came along with P.Ws. 1 and 4 and some others to the house of the accused and found Sita lying dead on a pool of blood having sustained various incised injuries on her person. M.Os. I, II and III were lying near the dead body, all stained with blood. The defence suggestions that P.W. 2 was trying to encroach upon the accused''s land and he was not -pulling on well with the accused have been stoutly denied and there is nothing to establish that fact. Mr. Ray tried to assail his evidence on the ground that while according to this witness he got the information about the incident for the first time from Sana Banka Raito, who had been told about the same by P.W. 1, according to P.W. 1, he informed both Sana Banka Raito and P.W. 2 about the incident. Both the statements may be correct or if it is a discrepancy it might have been caused due to lapse of time between the occurrence and the deposition of the witnesses in Court. Moreover, on the evidence of P.Ws. 1 and 2 it is evident that P.W. 1 first of all witnessed the occurrence and thereafter he informed about the same to other persons, and thereafter P.Ws. 1, 2, 4 and one or two others went to the house of the accused within a short time thereafter.

Apart from the above, we have on record the evidence of P.W. 4, the Ward Member of the village. According to him, while he was in his field P.W. 1 informed him that he saw the accused assaulting his wife with a Tangia. On getting that information P.W. 4 came to the village, and along with P.Ws. 1 and 2 and some others he went to the accused''s house. At that time the accused was absent from his house. There they found Sita lying dead and in a naked condition in a pool of blood with several incised injuries on her person. He also states that M.Os. I, II and III were lying near the dead body. His evidence, so far as possible, gets corroboration from other evidence and materials on record. He has of course stated that he, P.Ws. 1 and 2 and Sana Banka Raito belonged to one group, but on that: fact alone his evidence which is of a convincing nature cannot be disbelieved. He is a person of responsibility and confidence in the village and it is not expected that he would falsely implicate an innocent villager in such a ghastly crime.

The defence suggestion, that on the date of occurrence P.Ws. 1 and 2 and one Sana Banka Raito assaulted the accused and so he ran away from that place to the police station and thereafter the above-mentioned persons assaulted Sita to death, has no legs to stand as it does not get any support from anything whatsoever. Moreover, it does not inspire any confidence as the accused did not have any such marks of violence on his person to support the defence case of assault on the accused by three persons. P.W. 7 who examined the accused on 2-8-1974, i.e. on the date of occurrence Itself, found only one incised wound- length 11/4" x 1/2" depth - on the lateral aspect of the left knee joint 2" away from the lateral border of the patella. The possibility of self-infliction of that injury was not ruled out by P.W. 7. If realy three persons assaulted the accused so severely that he had to run away from his house leaving his wife in a helpless condition, than it was expected of P.W. 7 to detect marks of assault and violence on the person of the accused apart from the above mentioned simple injury near the knee. Apart from that, the defence case does not get any support from any other source, except the case reported by the accused himself at the police out-post.

P.W. 3, the daughter of the accused, has stated that on the date of occurrence she in the morning went away from the house to tend cattle in the jungle leaving his father and mother together in the house and there was none else in the house. When she returned to the village by about mid-day she was informed by P.W. 1 that her mother had been killed by her father, when she came to her house she found that her mother was lying dead with several incised injuries on her person and her father was absent from the house. At that time M.O. I, the Tangia and M.O. II, the Gamuchha, both belonging to the accused, and M.O. III, the Sari of her mother, all stained with blood, were lying near the dead body. She has also testified to the fact that her father was wearing the M.O. II on the date of occurrence, and M.O. III was the Sari which her mother was wearing on that day when she (P.W. 3) left her house in the morning. The presence of M.O. II near the dead body with human blood on its as seen from the Serologist''s report, is a very strong piece of incriminating evidence which lends support to the testimony of P.Ws. 1 and 2.

On a persual of t he evidence of P.Ws. 1, 2, 3 and 4, I have no doubt that it was the accused who assaulted the deceased to death by inflicting several incised injuries on her person as found by P.W. 8. So, the conviction of the Appellant u/s 302, Indian Penal Code and the sentence passed against him thereunder are well founded and are upheld.

The Court below while convicting the Appellant u/s 302, Indian penal Code has also convicted him under Sections 211 and 201, Indian Penal Code and has awarded separate sentences against the Appellant for the said offences as stated above. A separate case (Sessions Trial No. 40 of 1975) had been instituted against the Appellant for the aforesaid offences. The order recorded by the trial Court on 12-5-1975, i.e. on the date of hearing, so far as is relevant, is as follows:

The charge is amended and the accused is further charged under Sections 201 and 211, Indian Penal Code the contents of which are read over and explained to the accused. He pleads not guilty and claims to be tried.

Though the aforesaid order was passed in the order sheet the charges under Sections 201 and 211, Indian Penal Code were actually not added to the charge u/s 302. Indian Penal Code which had been framed in this case (Sessions Case No. 76/ 74). In the impugned judgment the Judge states

Though the case u/s 211. Indian Penal Code was separately committed to this Court but for the purpose of convenience both the cases u/s 302, Indian Penal Code and the case u/s 211, Indian Penal Code have been clubbed together (one merging with the other) and the accused has been charged for having committed an offence under Sections 302/201/211, Indian Penal Code.

There is of course nothing on record to show that the accused opposed the above-mentioned amendment of the charge or clubbing together of the two cases as stated by the Sessions Judge. The accused was tried by the Sessions Judge in his circuit Court at Paralakhemundi. He could not engage any lawyer of his choice to defend him, and a State counsel was engaged by the trial Court to defend the accused in the trial. As it appears from the evidence on record, no specific evidence relating to the above-mentioned charges under Sections 211 and 201, Indian Penal Code was led by the prosecution. The trial Court only asked the accused as to whether he went to the Ramagiri police station and made an oral report before the A.S.I. of Police (P.W. 5) that he and his wife Sita were assaulted by P.Ws. 1. 2 and Sana Banka Raito. The accused answered the said question in the affirmative. No question as to whether the accused knowingly gave false information to the police with the intention of screening the real offender and with the intent to cause injury to P.Ws. 1 and 2 and Sana Banka Raito, which are the main ingredients of Sections 201 and 211, Indian Penal Code, was asked to the accused. Very soon after recording the aforesaid order on 12.5-1975 the Court below proceeded to examine the ''witnesses and it delivered its judgment in the case on the same day holding the Appellant guilty of all the three charges. The Court below does not state in its order or in its judgment that by trying the accused for the said three charges in one trial in the aforesaid manner there was no ''possibility of any prejudice to the accused. From the evidence on record and the impugned judgment it is evident that the attention of the Sessions Judge was focussed entirely on the case of murder and after recording the finding of conviction on that charge he recorded the order of conviction under Sections 201 and 211, Indian Penal Code only as a consequential finding flowing from his first finding.

A Division Bench of the Madras High Court in the case In Re: Uppara Dodda Narasa, , disapproved the trial of such offences in one trial though joint trial of such offences is Plot illegal. Their Lordships observe:

It is obviously very embarassing to the accused to have to answer a charge of murder at the same time as a charge of wilfully preferring a false complaint of murder. It is also embarassing to the prosecution and may lead, as we fear it has led in this case, to failure of justice.

On the above facts and considerations I set aside the conviction of the Appellant under Sections 201 and 211, Indian Penal Code and the sentences passed against him thereunder.

In the result, the conviction of the Appellant u/s 302, Indian Penal Code and the sentence passed against him thereunder are upheld. The conviction of the Appellant under Sections 201 and 211, Indian Penal Code and the sentences passed against him thereunder are set aside.

The appeal accordingly is partly allowed.

P.K. Mohanti, J.

I agree.

Appeal partly allowed.