Rajin @ Rajindra Dip vs State of Orissa

Sujit Barman Roy,C. J.

This appeal at the instance of the Appellant Rajin @ Rajindra Dip is directed against the judgment dated 17.9.1993 passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No. 62/16 of 1993 convicting the Appellant u/s 302 of the Indian Penal Code and sentencing him thereunder to suffer rigorous imprisonment for life.

Prosecution case in brief is that on 28.12.1992 at about 2.00 P.M., P.W. 3, Madhu Dip verbally reported to the Officer-in-charge of Kantabanji Police Station alleging, inter alia that in the morning of that day he had been to the village Chatuanka and thereafter he came back to his village around noon time. Soon after P.W. 3 alighted from the Bus at the bus stand of his village, his father P.W. 6 Bana Dip told him that around 10 A.M. on that very day his wife (since deceased) was murdered at Khaliamunda Tank. The deceased was murdered by the Appellant himself. Upon hearing this news, P.W. 3 being the informant rushed to the Khalikamunda Tank and found his wife lying dead at the bathing ghat with several punctured wounds on her body. P.W. 3 further learnt from his father P.W. 6 and his son that the Appellant chased the deceased and killed her by assaulting her with a knife. On another occasion about 6/7 months before the aforesaid incident in the month of Baisakha, the Appellant had assaulted the deceased and her sister and for this incident a police case was pending. The informant further alleged in the complaint that out of previous grudge the Appellant killed the deceased. The aforesaid oral complaint was reduced to writing being Ext. 5 and on that basis a case u/s 302, Indian Penal Code was registered at the said Police Station against the Appellant. After usual investigation police submitted charge sheet u/s 302, Indian Penal Code against the Appellant. In usual course case was committed to the court of Sessions Judge, Balangir and upon being transferred the case was ultimately tried before the trial court. On perusal of the materials on record, learned trial court framed charge u/s 302, Indian Penal Code against the Appellant to which he pleaded not guilty. In course of trial in all eleven witnesses were examined on behalf of the prosecution. None was examined on behalf of the Appellant. The plea of the Appellant before the trial court was one of the complete denial of the prosecution case as alleged. He also took the plea of alibi by stating that since 4/5 days prior to the occurrence he was away from the village of occurrence and he was in Balangir Town. On completion of the trial the Appellant was convicted and sentenced as already stated.

P.W. 3 Madhu Dip being the informant of the case in his evidence before the trial court stated that the Appellant is his co-villager and the Appellant was known to him since long. The incident in question occurred in the month of Pousa on a Monday in the morning at about 10 ''O'' Clock. That day around 8. A.M., P.W. 3 had been to village Chatuanka and returned to his village around noon time. As soon as he alighted from the bus at the Bus Stand of his village around noon time, his father reported him at the bus stand itself that the Appellant had killed his wife near the tank with a knife and had fled away. On hearing this news, P.W. 3 hurried to the tank in question and found that dead body of the deceased was lying at the bathing ghat of the said tank with a number of bleeding injuries. One big stone and also 2/3 small stones were lying near the dead body of the deceased and the same were stained with blood. Other small articles like apparels, Hawai Chappal, a small tin containing some oil etc. were lying scattered near the dead body of the deceased. It is further stated by this witness in his evidence that about a year and a half before his deposition was recorded the Appellant had on another occasion assaulted the deceased seriously and for this incident another police case was pending. Soon after this incident he went to Kantabanji Police Station and around 1.00 P.M he lodged a oral complaint reporting about the incident to the Inspector-in-charge of the said Police Station who reduced the same into writing and prepared Ext. 5 and on that basis a case was registered in the police station. When the dead body was sent for post mortem examination by the concerned Police Officer, this witness accompanied the dead body and had identified it before the doctor. We have critically examined his evidence during cross-examination. But on perusal of the same we find nothing substantial to disbelieve this witness.

The evidence of P.W. 1, Judhistir Putel before the trial court in brief is that on the date of occurrence i.e., on 28.12.1992 around 8 O'' clock in the morning he saw the Appellant in his village bus stand. However from there he went to another village on a bicycle. He returned to the village and when he reached the bus stand of the village around 11. 00 A.M. he found P.W. 6 Bana Dip being the father of P.W. 3 at the bus stand of the village itself. He found P.W. 6 weeping. This witness was told by P.W. 6 that the Appellant had killed his daughter-in-law Mathura by assaulting her with a knife and fled away. On hearing this, this witness along with P.W. 6 went to the place of occurrence and found that the deceased was lying dead at the bathing ghat of Khaliamunda tank of their village. His evidence establishes one thing that on the date of occurrence itself around eight in the morning the Appellant was found in the village itself. On that very day around 3 P.M. he accompanied the police party to Khaliamunda tank where the dead body was lying. There, police seized some small articles as mentioned in his evidence which were found scattered near the place of occurrence. He signed the seizure list. Police also seized some stones containing blood stains and he signed the seizure list. Apart from the aforesaid and other seizure memos, the Police Officer held inquest over the dead body and this witness put his signature as an inquest witness. When inquest was held, this witness found about 15/16 bleeding injuries on the person of the deceased and the said injuries appeared to him to have been caused by a knife. We scanned the evidence of his witness during cross-examination also. We find that nothing important could be elicited from this witness during such cross-examination which could impeach the credibility of this witness. On scanning the evidence, we find that there is absolutely nothing to disbelieve this witness. This witness has specifically stated that on the date of occurrence itself around 8.00 A.M. in the morning the Appellant was found in his village itself. The evidence of this witness belies the claim of the Appellant that on the date of occurrence he was not in the village and he was in another place.

P.W. 2, Nilakantha Mohananda figured as an eye witness in this case. He has stated in his evidence that in the preceding month of Pousa on a particular Monday at around 10 A.M in the morning the occurrence took place. His house is situated about 50/60 feet away from the embankment of the tank. It was around 10 A.M in the morning when he reached near the tank while returning from Bangamunda. This witness saw that the deceased was running being chased by the Appellant holding a knife in his hand near the tank. Both of them came running from the side of the house of the deceased. Near the bathing ghat of the tank the accused-appellant could catch hold of the hair of the deceased and started dealing blows upon her with the Knife. Around 10/12 stab wounds were inflicted by the Appellant on the deceased. On sustaining such bleeding injuries the deceased fell down at the bathing ghat. The little son of the deceased who was being carried by her at that time fell down at the bathing ghat itself and was crying then. The deceased died immediately at the bathing ghat itself. Her father-in-law P.W. 6, Bana Dip and her relation Baiba Dip being P.W. 4 also saw the occurrence. At the time of occurrence there were litigations pending between the family of the deceased on one hand and the Appellant on the other and for this reason there was hostility between them. A police case was also registered and was pending against the Appellant at that time as he had on an earlier occasion assaulted the daughter and the daughter-in-law (deceased) of P.W. 6 Bana Dip. We have with due care and caution examined the evidence of this witness during cross-examination. We find that nothing could be elicited from this witness. A vague and general suggestion was given that this witness did not see the occurrence and that the accused-appellant was not present in the village on the date of occurrence. Except as aforesaid, there is nothing in the evidence to discard the testimony of this witness. P.W. 4 Baiba is the brother of the deceased. He also figured in this case as an eye witness. In his evidence he has stated that in the preceding month of Pousa on a Monday at about 10 A.M. in the morning the incident in question took place in their village. On the preceding Sunday he had been to village Chulifunka and on the fateful Monday around 10 A.M in the morning he returned home. On reaching home he saw Umesh, being small child of the deceased at Khaliamunda tank weeping and the deceased was shouting. Immediately, this witness came to the back side of his house where the aforesaid tank is situated and found the Appellant caught hold of hair of the deceased and was stabbing her on her body with a knife near the bathing ghat of the said tank. Father of this witness was asking him from a distance not to do so. Father of this witness while running towards the tank after attending the call of nature was shouting in the aforesaid manner. The deceased sustained bleeding injuries on her person and fell down near the bathing ghat. After the deceased fell down on the bathing ghat, she was further assaulted by the Appellant with a stone being Ext. M.O. III and fled away. After seeing this, this witness along with his father brought the small boy Umesh aged about 2 years from the place of occurrence to home. Even the body of Umesh was stained with blood. About a year before the said occurrence, on an earlier occasion, the Appellant seriously assaulted the deceased and the sister of this witness and for this reason a police case was pending against the Appellant in the court of law. Since then, there was ill-feeling between the Appellant and the family of the deceased. This is the evidence in brief given by this witness during his examination-in-chief. After alighted from the bus at the bus stand of his village at about 10 ''O'' clock in the morning, this witness proceeded towards his house and while so proceeding he could see this incident of stabbing from a distance of about 30/40 cubits. He further stated during cross examination that while deceased was in a standing position, the Appellant stabbed her 14-15 times. His father also saw the occurrence from a distance of about 80-100 cubits. Apart from him and his father, P.W. 2, Nilakantha Mahananda also saw the occurrence. Even before the incident in the month of ''Margasira'' the Appellant had threatened this witness and Ors. twice or thrice with dire consequences and such incidents were reported to the Police Station by P.W. 3. It is of course true that P.W. 11 being the Investigation Officer admitted during his cross examination that P.W. 4 did not state to him during his examination u/s 161, Code of Criminal Procedure that the Appellant assaulted the deceased with a stone also after the stabbing incident. Apart from the aforesaid small omission, there is absolutely no other omission or contradiction in the testimony of P.W. 4. His evidence fully corresponds with the evidence of other witnesses of the occurrence. Therefore, there is no reason to discard the testimony of this witness.

P.W. 6, Bana Dip is the other eye witness of the occurrence. He is the father-in-law of the deceased. In his evidence before the trial court, he stated that occurrence took place in the month of Pousa on a Monday preceding the date of deposition. It took place around 10 A.M. in the morning. His house is situated about 40-50 feet away from Khaliamunda tank. The house of the Appellant was also situated in front of the house of this witness. He went out from his house to attend the call of nature. After attending the call of nature when he came to the tank, he could see the Appellant holding a knife was chasing the deceased being his daughter-in-law. The deceased was running holding her small son in her lap. On seeing this, this witness shouted and yet the Appellant started stabbing the deceased at the bathing ghat with a knife and this witness could see this occurrence from a distance of about 40-50 cubits. He saw this incident from the embankment of the tank itself. P. Ws 2 and 4 had also seen this incident of assault on the deceased with a knife. The deceased having sustained several bleeding injuries on her person fell down at the bathing ghat itself. Even after that the Appellant assaulted the deceased on her head with a stone and fled away. Immediately, this witness rushed to the bathing ghat and carried the small son of the deceased from the spot to his house. At that time, the son of the deceased had blood stain on his body. Immediately, he disclosed this incident to P.W. 1 and others. Thereafter, he went to the bus stand of the village and as soon as P.W. 3 alighted from the bus, he informed him about the incident. He further deposed before the trial Court that relationship between the family of the Appellant and of this witness was strained. Around ten months before the occurrence, the Appellant assaulted the deceased and the daughter of this witness and regarding this incident also another police case was pending against the Appellant. During cross-examination, this witness repeated that the Appellant had inflicted 15-16 stab wounds on the deceased. Except a vague and general suggestion that the Appellant did not kill the decease and that this witness gives false evidence against the Appellant due to previous enmity the evidence of this witness is completely free from any omission and contradiction.

Therefore, in this case, in all three eye witnesses have been examined. We have already given in this judgment the gist of evidence of P.W. 1, Judhistir Putel. The evidence of P.W. 1, Judhistir Putel substantially corroborates the evidence of eye witness on the basis of what he had heard from the eye witness though he himself is not an eye witness. That apart P.W. 1 Judhistir Putel stated in his evidence that in the morning at around 8 A.M. on the date of occurrence, he saw the Appellant at the bus stand. The evidence of P.W. 1, Judhistir Putel therefore has punctured the plea of alibi of the Appellant. He was reported about the incident by P.W. 6 Bana Dip himself at the bus stand which is admissible having been supported by P.W. 6 himself. Therefore, the testimony of P.W. 3 substantially lends corroboration to the evidence of P.W. 6 Bana Dip.

That apart, P.W. 3 Bana Dip is the husband of the deceased. It is true that he is also not an eye witness, yet his evidence is of great importance in this case inasmuch as he was reported about the occurrence soon after he alighted from the bus at the bus stand of his village. He was reported about the incident by his father P.W. 6 Bana Dip himself. P.W 6 has also given evidence to this effect that he reported about the incident to Madhu Dip. Such evidence of P.W 3 though hear-say, is admissible in evidence in view of Section 157 of the Indian Evidence Act and it is important in the sense that it lends corroboration to the testimony of eye witnesses.

P.W. 7, Dr. Kanakalata Sahu held post-mortem examination over the dead body of the deceased. She has stated in her evidence that on 29.12.1992 she was posted as Asst. Surgeon in Kantabanji Community Health Centre. On that day around 12.30 P.M. she conducted the post-mortem examination on the dead body of the deceased. During such examination, she detected around 13 stab wounds apart from other injuries. Therefore, the testimony of this witness lends ample corroboration to the evidence of eye witnesses. For the sake of brevity we are not giving details of the wounds found by this witness while holding post-mortem examination over the dead body in question. Her ultimate opinion is that cause of death was shock due to severe haemorrhage caused by multiple stab injuries. It was homicidal in nature. All the injuries were found to be ante mortem in nature caused by sharp cutting weapon. According to her, the external injuries found on the dead body were sufficient in ordinary course of nature to cause death. The post-mortem report prepared by her has been marked as Ext. 7. We have perused the cross examination part of the evidence of this witness and we find nothing from that to discard the testimony of this witness.

It needs to be stated here that we have heard the learned Addl. Standing Counsel for the State. At the time of hearing, learned Counsel for the Appellant was not available. This appeal is pending in this Court since 1994. We thought it necessary that this being an old appeal pending in this Court for so many years, is needed to be disposed of on urgent basis. In the circumstances, we have taken the trouble to carefully peruse the whole evidence on record and after hearing the learned Counsel for the State disposed of this appeal. After hearing was concluded, learned Counsel for the Appellant volunteered to file written argument on 14.7.2003, but no such written argument has been filed by the learned Counsel for the Appellant till 14.7.2003. We prepared our judgment on 15.7.2003 and therefore, we are left with no option but to dispose of the case without hearing the learned Counsel for the Appellant or without considering the written note of argument proposed to be filed by him.

We have already given brief narration of the evidence on record. We have also perused the impugned judgment. We are satisfied that there is absolutely no infirmity in the impugned judgment. Learned trial court duly considered all aspects of the evidence on record and has rightly decided to hold the Appellant guilty u/s 302 of the Indian Penal Code.

As we find no reason to interfere with the impugned judgment of conviction and sentence, we are constrained to dismiss this appeal.