Rabindra Kumar Majhi vs State of Orissa

L. Mohapatra, J.—Both the appeals have been filed by the same accused against the judgment of conviction and sentence passed by the learned Sessions Judge, Balasore through different sets of Advocates. Therefore, both the appeals were listed together and heard. The Appellant has been convicted by the learned Sessions Judge, Balasore for commission of offence u/s 302 of the Penal Code and has been sentenced to imprisonment for life.

The case of the prosecution is that deceased is the wife of the Appellant. After marriage, they lived happily together and as the deceased could not give birth to a child, the Appellant started ill-treating her and assaulted her. It is also alleged in the F.I.R. that on certain occasions the deceased was driven away from the house of the Appellant and on one such occasion she had taken shelter in the house of P.W. 7. With the intervention of the villagers she was again taken back to the house of the Appellant and both of them lived together. In the night of 24/25.1.93 the dead body was lying in the house of the Appellant with injuries on her person. Getting information of such death, P.W. 1 who is the father of the deceased came to the village and saw the dead body of the deceased lying in the house of the Appellant. The left eyeball of the deceased was scooped out and she was lying in a pool of blood. The Appellant was absent at home. Having learnt from P.Ws. 2 and 3 that the deceased was beaten to death by the Appellant, police was informed and when the I.O. (P.W. 10) came to the spot, P.W. 1 was there. The report given by him orally was reduced into writing and the same was treated as F.I.R. and the case was investigated and charge-sheet was submitted-for commission of offence u/s 302 of the Penal Code.

The Appellant in his statement u/s 313, Code of Criminal Procedure took the plea of alibi and stated that on the date of occurrence he had gone to village Taratari where he had a house and coming to know about the death of his wife he had gone to Berhampur Police Station where he was detained, It was also the plea of the Appellant that a false case has been initiated against him.

In order to bring home the charge, 11 (eleven) witnesses were examined on behalf of the prosecution and one witness was examined on behalf of the Appellant. There being No. eye-witness to the occurrence, considering the circumstantial evidence available on record, the learned Sessions Judge found the Appellant guilty of the charge and convicted him thereunder.

Shri Sahoo, the Learned Counsel appearing for the Appellant challenged the findings of the learned Sessions Judge on the ground that the circumstantial evidence available on record do not point at guilt of the Appellant and are not sufficient to hold that the Appellant alone has committed the murder of his wife. In order to appreciate such submission of the Learned Counsel appearing for the Appellant, it is necessary to look into the evidence adduced before the Court and find out the circumstances proved by the prosecution in order to bring home the charge. P.W. 1 is the father of the deceased who lodged the F.I.R. In his deposition he has stated that two to four months after the marriage he was informed by his daughter (deceased) that she was being assaulted by the Appellant. At times she was also assaulted by the Appellant suspecting her to be of loose character. This witness has also stated that the deceased was on certain occasions driven away from the house of the Appellant. He has also stated that on the last occasion when she was driven away by the Appellant from the house, she had taken shelter in the house of P.W. 7 and after reconciliation the deceased went back to the house of the Appellant. Six to seven months thereafter he heard about the incident and when he reached the house of the Appellant, the deceased was found lying dead in a pool of blood. The left eye ball of the deceased was also scooped out. P.W. 2 is a witness on which much reliance has been placed by the learned Sessions Judge while convicting the Appellant. Therefore, the deposition of this witness requires careful scrutiny. According to this witness her house is adjacent to the house of the Appellant. On the date of occurrence she had gone to the forest to collect Sal leaves along with some others and the deceased had also gone to the forest. She along with one Muduki came back early and went to Hat. When she came back to the house it was already dark. After reaching near home, she called the deceased near the house of the Appellant but the deceased did not respond to her. At that time she saw the Appellant siting on the verandah of his house and on being questioned the Appellant told her that the deceased has already gone to sleep. In that night the sister of the Appellant also slept with this witness as she was alone in the house. The next morning Soren (P.W. 3) came to her house and informed that the Appellant was not responding to the call. Thereafter this witness and P.W. 3 went to the house the of the Appellant and found him absent. But they saw the deceased lying on the floor. When she did not respond to the call they found her dead. The father of the deceased was informed by P.W. 3. This witness has further stated that the deceased and the Appellant were quarrelling with each other and that the Appellant had confessed before her to have killed his wife. P.W. 3 is a co-villager who informed P.W. 2 that the Appellant was not responding to his call whereafter P.W. 2 and this witness went to house of the Appellant and did not find him in the house and found the deceased lying on the ground in a pool of blood. This witness has also stated that on being asked P.W. 2 stated before him that the accused assaulted his wife and went away. P.W. 4 is the Officer-in-charge of Berhampur Police Station who sent the dead body for post-mortem examination. P.W. 5 is the uncle of the deceased, who is a witness to the inquest, has also stated that the left eye ball of the deceased was missing and she was having marks on injury on the back and hand. This witness has also stated that after marriage there was ill-feeling between the Appellant and the deceased. P.W. 6 is the doctor who conducted the post-mortem examination and found the following injuries:�

There was rupture on spleen on the inner side.

The left eye ball was scooped out leaving behind red hollow orbital cavity with sharp cutting skin margin out side.

The doctor also found some abrasions on the body of the deceased.

The doctor has also stated that the rupture of spleen can be caused by giving blow on the abdomen and by M.O.I. the eye of a person can be scooped out. During cross-examination, this witness has specifically stated that the manner in which the eye ball has been scooped out cannot be caused by any wild animal. P.W. 7 is a witness in whose house the deceased had once taken shelter after being driven away by the Appellant. She has stated that there was ill-feeling between the Appellant and the deceased. P.W. 8 is the A.S.I. of Udala P.S. who had made the Station Diary on 25.1.93 at about 8.40 A.M. with regard to surrender of the Appellant in the police station. P.W. 9 is the Officer-in-charge of Berhampur Police Station, whose evidence is not much relevant for the purpose of this case and P.W.10 is the I.O.P.W. 11 is a witness examined on behalf of the prosecution who had met the Appellant in Jail. On examination of the position of the above witnesses, the following circumstances appear to have been established:�

(1) One and half years prior to the incident the Appellant married the deceased and it was an inter-caste marriage.

(2) Three months after the marriage ill-feeling started between the Appellant and the deceased as the deceased could not give birth to a child.

(3) Due to such ill-feeling between the Appellant and the deceased not'' only she was being assaulted by the Appellant but also on certain occasions she was driven away from the house by the Appellant and on the last occasion, she stayed with P.W. 7. Thereafter a meeting in the village was convened and after reconciliation the deceased went back to the house of the Appellant.

(4) On the date of occurrence P.W. 2 called the deceased near her house but she did not respond and on being questioned the Appellant who was sitting on the verandah replied that the deceased had gone to sleep.

(5) The sister of the Appellant did not sleep in the house of the Appellant but slept in the house of the P.W. 2 in the night of occurrence and, therefore, in the house of the Appellant only the Appellant and the deceased were present.

(6) On next morning the body of the deceased was found in the house of the Appellant with the injuries as mentioned earlier.

(7) The extra-judicial confession made by the Appellant before P.W. 2.

The question that arises for consideration is as to whether the above circumstances make a complete chain of circumstances so as to come to a conclusion that the Appellant committed the murder of his wife. Shri Sahoo, the Learned Counsel appearing for the Appellant referring to the evidence on record submitted that barring the evidence of P.W. 2 there is No. other evidence on record to show that the Appellant was present in the village on the date of occurrence. On the other hand, the witness examined on behalf of the defence has specifically stated that on the date of occurrence the Appellant was in village Taratari and was absent in the village where the incident took place. The evidence of P.W. 2 with regard to presence of the Appellant in the village not being corroborated by any of the witnesses, there is No. reason to believe P.W. 2 and disbelieve P.W. 1. Shri Sahoo submitted that even accepting the evidence of P.W. 2 with regard to presence of the Appellant in the village it cannot be said that the Appellant: is the author of the crime merely on the ground that they were not pulling well prior to the date of occurrence.

The evidence of P. Ws. 1, 2 and 7 clearly indicate that a few months after the marriage the Appellant and the deceased were not pulling on well and on some occasions the deceased was driven away from the house of the Appellant. There is also evidence on record to show that the Appellant was assaulting the deceased for not giving birth to a child. From this evidence available on record, it is clear that there was continuous ill-feeling between the Appellant and the deceased prior to the date of occurrence. So far as presence of the Appellant on the date of occurrence is concerned, the evidence on P.W. 2 is relevant for the purpose of the case. It is the specific evidence of P.W. 2 that after coming back from Hat in the evening she called the deceased near the house of the Appellant, but there was also No. response. She has further stated on being questioned the Appellant who was sitting on the verandah stated that the deceased had gone to sleep. We have carefully gone through the cross-examination of this witness and we do not find any reason to disbelieve that on the date of occurrence the Appellant was present and was sitting on the verandah of his house where the dead body of the deceased was found in the morning. Therefore, presence of the Appellant on the date of occurrence in the village where occurrence took place cannot be disbelieved. The evidence of D.W. 1 rather suffers from some infirmities. As an example, though D.W. 1 has stated in his evidence that on the date of occurrence at 90'' clock in the night the Appellant was present in the village Taratari, the Station Diary Entry indicates that the Appellant was in the police station at 8.30 A.M. On the other hand, so far as P.W. 2 is concerned, the evidence of this witness does not suffer from any infirmity so as to disbelieve her evidence with regard to presence of the Appellant in his house on the date of occurrence.

Coming to the extra-judicial confession, P.W. 2 in her deposition in categorical terms has stated that the Appellant told her to have killed his wife whereafter he went away. She has also stated in her evidence that this fact was told to P.W. 3 and P.W. 3 in his evidence has stated that on being asked P.W. 2 told that the accused assaulted his wife. In cross-examination of this witness she has reiterated her statement saying that the Appellant had confessed before her to have killed his wife. The I.O. (P.W. 10) though has been thoroughly cross-examined by the defence, nothing has been brought out from his cross-examination so as to disbelieve the extra-judicial confession made by the Appellant before P.W. 2. In view of the above circumstances, we are unable to agree with the Learned Counsel for the Appellant that the chain of circumstances is not complete so as to convict the Appellant on circumstantial evidence. Considering the extra-judicial confession of the Appellant along with the evidence with regard to relationship between the Appellant and the deceased, presence of the Appellant in his house and that on the date in the night of occurrence it is the Appellant and the deceased who were present in the house, we are of the view that such evidence only points at the guilt of the Appellant. We accordingly do not find any reason to differ with the findings of the trial Court.

In view of the reasons stated above, both the appeals stand dismissed.