Orissa High Court
Sukanta Behera vs State Of Orissa on 19 February, 1998
Equivalent citations: 1998CRILJ1941
Author: P.K. Tripathy
Bench: S.N. Phukan, P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. Challenging the judgment and conviction order dated 20-11-1992 passed by the 1st Addl. Sessions Judge, Ganjam, Berhampur in Sessions Case No. 39/91 (150/91 -GDC) under Sections 302 and 201 of the Indian Penal Code (in short, 'IPC') the accused No. 1 of that case has preferred this appeal.
2. It reveals from the lower Court record that appellant is the husband of late Kairi Beherani (hereinafter referred to as 'the deceased'). It is alleged that on 9-3-1991 during day time the appellant by chasing and dragging assaulted her by means of a bamboo stick. The occurrence of assault at different spot was witnessed by some of the villagers and out of them three witnesses, namely, Ananta Behera (P.W. 2), Kamala Beherani (P.W. 3) and Jharnpura Behera (P.W. 4) were examined. The mother of the deceased (P.W. 1), who had gone outside during the day time, returned to the village in the evening and on learning about the death went and saw the dead body of the deceased which was lying with multiple bleeding injuries. Appellant though present there did not tell anything to her. In the night of 9-3-91 appellant sought for the help from the co-accused, i.e., accused Nos. 2 to 7 and with heir help by the next date (10-3-91) morning cremated the deceased. The officer-in-charge of Golanthara police Station getting information from a floating rumour about this death at about 1.30 p.m. registered it as a case of unnatural death in the Station Diary and reached the occurrence village. The Investigating Officer (P.W. 5) had also accompanied him and at that initial stage assisted in enquiry. P.W. I and other villagers (witnesses) who had gone away from the village out of fear returned to the village on 11-3-1991 after hearing the news of arrival of police. P.W. 1 lodged a written report (Ext. 1) and thereafter the case was registered under Section 302, IPC and P.W. 5 undertook the investigation.
3. During the course of investigation besides visiting the spot and collecting incriminating materials he also examined witnesses and seized blood-stained wearing apparels of the accused and the deceased, collected ash and bones with the help of Scientific Officer and sent those to the F.M.I, as well as the State Forensic Science Laboratory and obtained opinion report. On completion of investigation the Investigating Officer submitted charge sheet under Section 302, IPC against the appellant and under Section 201/34, IPC against all the seven accused persons including the appellant. Charge was accordingly framed and when explained accused persons pleaded not guilty and claimed for trial.
4. The defence plea of the appellant was that the deceased died due to colic disease and therefore the dead body was cremated and the prosecution allegation that she was killed by him is out and out false.
5. To prove the charge, prosecution examined the above mentioned five witnesses and relied upon the document evidence, such as the F.I.R. (Ext. 1) spot map (Ext. 12, seizure lists (Exts. 3 to 8 and 13) requisition to and the report of the F.M.I, and the report of the Professor, F.M.T. (Exts. 9 and 10) and the copy of the forwarding letter and the report of the Chemical Examiner (Exts. 11 and 12). The weapon of offence was marked as M.O. HI, wearing apparels of the accused as M.Os. II and V, the bloodstained saree as M.O.VI and the heir of the deceased as M.O.IV.
6. Accepting the prosecution evidence, trial Court found the charge under Sections 302/201, I.P.C. proved against the appellant. Accordingly, he convicted and sentenced the appellant to imprisonment for life for the offence of murder and imprisonment for one year for the offence under Section 202, IPC. Trial Court did not find the evidence in record sufficient to prove the charge under Section 201/34, IPC against the accused Nos. 2 to 7 and accordingly, he granted the benefit of doubt and acquitted them.
7. During the course of argument, learned Counsel appearing for the appellant argued that the conviction order is bad due to insufficiency of evidence. In that context, he argued that the trial Court lost sight of several vital aspects involved in the case, viz :
(i) Ext. 1 is not the F.I.R.;
(ii) there was delay in lodging the FIR and the delay was not explained;
(iii) there was delay in examination of the witnesses;
(iv) material witnesses were not examined; and
(v) evidence of P.Ws. 1 to 4 are contradictory and not creditworthy.
8. Death of the deceased is not a disputed fact in this case. However, appellant did not admit assertion of the prosecution regarding the homicidal death of the deceased. According to the appellant, deceased died due to colic pain. No defence evidence has been adduced in support of that plea. The deceased was cremated by the appellant before commencement of the investigation, so, post-mortem examination of the dead body could not be made. Thus, to prove the factum of homicidal death of the deceased, prosecution relied upon the evidence of eyewitnesses besides the relevant circumstantial evidence which goes to show that on being assaulted the deceased suffered multiple bleeding injuries and succumbed to such injuries. Trial Court has recorded the requisite findings that prosecution has proved that the deceased suffered ahomicidal death. At the time of hearing, appellant had not challenged that finding regarding the conclusion of the trial Court that the deceased Suffered a homicidal death. Thus, finding regarding homicidal death of the deceased is accepted though the other contentions raised by the appellant relating to his plea of innocence shall be considered on merit.
9. Learned counsel for the appellant argued that Ext. 1 is not the first information report (in short, 'FIR') and it was wrongly relied upon as FIR. On a plain reading of Section 154, it reveals that the information relating to commission of a cognizable offence which is given to an officer-in-charge of a police station either verbally or in writing to set the investigation process into motion is known as FIR. Any other information given after the investigation started cannot be regarded as FIR, but amounts to a statement under Section 162 of the Code of Criminal Procedure (in short, 'the Code' )^ It may further be noted here that FIR is not a substantive peace of evidence and it is used only for the purpose of corroboration, or contradiction. In view of the above settled position of law, it is to be seen whether Ext. 1 can be treated as FIR.
10. Occurrence took place on 9-3-1991 around the afternoon time, but no intimation was given to the police relating to commission of the cognizable offence till police arrived in the occurrence village and started conducting an enquiry treating the death of the deceased as a case of unnatural death. It is the P.W. 1 who made specific allegation relating to murder of her daughter, and presented the written report, Ext. 1, in the occurrence village at 5.00 p.m. on 11-3-1991. The written report given by the Ex-Sarpanch at about 2.30 p.m. on. 10-3-1991 cannot be regarded as the F.I.R. inasmuch as in that report admittedly the fact relating to the death of the deceased was simply intimated without stating anything relating to the offence of murder or any other cognizable offence. Appellant has not been able to show from the record if any other information was received by the police relating to commission of the cognizable offence before receiving Ext. 1. Under such circumstance, Ext. 1 is the F.I.R Argument advanced by the appellant is thus not accepted.
11. Learned counsel for the appellant further argued that there has been delay in lodging the F.I.R., but no explanation is forthcoming from the prosecution regarding such delay. In that respect, it appears from the L.C.R. that the occurrence took place in the afternoon of 9-3-1991 and the F.I.R., Ext. 1, was presented by P.W. 1 at 5.00 p.m. on 11-3-1991, P.W. 1 has explained in her evidence that she was not present in the village at the time of occurrence, she returned to the village in the evening time on 9-3-1991. On getting informations about the murder of her daughter she went and saw the dead body of the deceased with multiple bleeding injuries. She stayed there until the dead body was taken for cremation and thereafter being afraid of the appellant she went for shelter to her elder sister's house in another village and on the third day, i.e. on 11-3-1991 she returned to the village, found the Police Officer and lodged the written report. That is how P.W. 1 has explained the delay. Learned counsel for the appellant has relied on the case of Peddireddy Subareddi v. State of Andhra Pradesh AIR 1991 SC 1356 : 1991 Cri LJ 1391. On facts the Apex Court found evidence of P.W. 1 in that case to be not from suspicion and besides that P.W. 1 had lodged the information about 15 hours after the occurrence and that is how evidence of P.W. 1 in that case was not accepted. In the said citation, Apex Court has not laid down a principle that if there is delay in lodging the F.I.R., even if explained, it should go against the prosecution. On the other hand, it is the settled position of law that if the delay in lodging the F.I.R. is properly explained, such delay is not fatal to the prosecution. (See the case of Apren Joseph v. State of Kerala AIR 1973 SC 1 : 1973 Cri LJ 185. In the case of Ram Murti v. State of Haryana AIR 1976 SC 2455 : 1976 Cri LJ 1888 relating to the delay in loding the F.I.R. the Apex Court has propounded as follows :
It is, no doubt, true that there was some delay in the filing of the first information report by Surja and the explanation given for the delay does not appear to be very satisfactory, but that cannot by itself be a ground for disbelieving the prosecution evidence....
During the examination of the witnesses nothing substantial has been brought out to show that P.W, 1 had any enimity with the appellant or that she had any motive to falsely implicate the appellant. P.W. 1 who is the mother of the deceased, could not have the intention to falsely implicate a person who is innocent of the crime and to cover up or leave the real culprit. Under such circumstance, as noted above firstly it is found that the delay has not been explained and secondly even if it is accepted for, the sake of explained then also under the given circumstances the delay is not fatal to the prosecution.
11-A. Another limb of argument of learned Counsel for the appellant regarding the F.I.R. is that Ext. 1 was not sent to the Court of Magistrate till 13-3-4991 giving rise to a strong presumption about/a false case having been foisted against the appellant. He relied upon the case of Ishwar Singh v. State of Uttar Pradesh AIR 1976 SC 2423 : 4976 Cri LJ 1883. In that case evidence of soitnei eye-witnesses and their presence at the spot of occurrence was found doubtful. Coupled with that the factum of two days' delay in sending the F.I.R. by the I.O. to the Magistrate's Court was taken note of while doubting genuineness in prosecution evidence led in proof of the charge. In the case at hand it is seen from the endorsement in Ext. 1 that F.I.R. was received at the spot at 5.00 p.m. It was sent to the Police Station for registration at 6.30 p.m. of 11 -3-1991. On 12-3-1991 it was sent to the Court of S.D.J.M., Berhampur and being placed before him the S.D.J.M. signed on it on 13-3-1991. It appears from the case diary that from 7.15 p.m. on 11-3-1991 the O.I.G. took over the charge of the investigation and stayed in the occurrence village till midnight of 13-3-1991 when he returned to the police station. Thus argument advanced by appellant is of no help to him.
12. Learned counsel for the appellant argued that on a bare reference to the case diary, it appears that the I.O., witnesses to the occurrence besides other material witnesses were examined after 2 to 3 days from the date of occurrence and this delay has not been properly explained. He argued that because of such delay the prosecution evidence is doubtful and benefit arising out of the same should be granted in favour of the appellant. It appears from the case diary that on 11 -3-1991 at 5.00 p.m., F.I.R. was lodged before the S. I. of Police who had come to enquire into the U.D. case. By 7.15 p.m. he had examined P.Ws. 1 and 3 when the O.I.C. (P.W. 5) took over the charge of investigation. In the self-same night P.W. 5 examined P.Ws. 1 and 3 besides some other witnesses. On 12th morning he visited the spot at 6.00 a.m., and thereafter started examining witnesses and recording their statements. In that process at 9.30 a.m. he examined P.W. 4 and at 11.00 a.m. examined P.W. 2. The explanation which is available from P.W. 1 is already discussed while considering the question of delay in lodging the F.I.R. P.W. 2 has explained in his evidence that after the occurrence out of fear he went away to another village i.e. Terapentha and after hearing about arrival of police he returned to the village on the third day. P.Ws. 1 and 3 were examined soon after the F.I.R. was lodged. Thus, it does not appear that there has been a purposeful delay in examining the witnesses so as to concoct or build up a case against the appellant. P.W. 5 was not even suggested much less any question being asked about any delay in examination of witnesses. During the course of argument, no other circumstance could be pointed out from the evidence in record that there was an attempted delay in examination of witnesses with any ulterior motive. In that view of the matter, the decisions relied upon by the appellant, viz., the case of Bhagwan v. State of M.P. AIR 1980 SC 1750 : . 1980 Cri LJ 1269, Subhash v. State of U.P. AIR 1976 SC 1924 : 1976 Cri LJ 1521; Gunduchi Patnaik v. State of Orissa v. 1984 Cut LR (Cri) 345 : 1985 Cri LJ 645 and Gadadhar Mohapatra v. State of Orissa (1990) 70 Cut 157 relating to belated examination of the witnesses by the I.O. is of no help to the appellant.
In the above cited case of Bhagawan the occurrence of assault on Police Constable was denied by the accused and pleaded about a case of fall for sustaining that injury. Occurrence took place on 16-10-1972 and P.W. 5, an independent witness to the occurrence was examined on 25-11 -1972 after keeping him in duress for two days in the Police Station. The injured was also examined on 25-11-1972. Apex Court acquitted the appellant on the aforesaid considerations. In the case of Subash (supra) the matter relating to delayed examination was not a point considered, but improbability in the prosecution story of the deceased having gone to his field with his children and the manner in which it was alleged that he was killed by gunshot injury was found to be contradictory to grant the benefit of doubt to the appellant. In the case of Gunduchi Patnaik (supra), P.W. 7. an eye-witness was examined about 13 days after the occurrence though Police was available in the occurrence village and that delay was taken into consideration besides other points. In the case of Gadadhar Mohapatra (supra) the principle of law has been reiterated that belated examination of witnesses creates grave doubt on their veracity and in that event independent evidence for corroboration should be sought for.
As has been noted above, virtually there is no undue delay in examination of the witnesses inasmuch as after receipts of the F.I.R. P.Ws. 1 and 3 were examined in the same night besides some other witnesses and P.Ws. 2 and 4 were examined on the following day morning after the spot visit. Neither the prosecution nor the accused has taken care to bring out the detailed circumstance for which P.Ws. 2 and 4 and other witnesses were not examined on 11-3-1991. But the fact remains that when the investigation proceeded up to 10.00 p.m. in the night, it might not have been possible for the L.O. to go on recording the statement of witnesses throughout the night. Virtually there is no delay in examination of the P.Ws. 1 to 4. Nothing has been brought out from the mouth of the I.O. during his cross-examination to show or suggest that there was delay in examination of witnesses or that such delay was intentional or with an ulterior motive. Thus, the aforesaid argument of the appellant has no substance.
13. Fact remains that when the occurrence took place on 9-3-1991 F.I.R. was lodged at 5.00 p.m. on 11-3-1991 and though it it was despatched from the Police Station on 12-3-1991, but it was signed by the S.D.J.M. on 13-3-1991. Even if the appellant has not brought not anything from the mouth of the P.Ws. which can raise suspicion on the prosecution case, yet the evidence in record should be carefully scrutinised to find out if any untruthful or exaggerated version has been given by any witness or by the prosecution as a whole.
14. On perusal of evidence of P.Ws. 2 to 4, it appears that each of the witnesses have truthfully deposed about the occurrence of assault which they witnessed. All the three witnesses say the factum of assault from different spot and" in different sequence though in the same transaction. In that view of the matter, there is no contradiction in their evidence, though argued by the learned counsel for the appellant, relating to the occurrence of assault, P.W. 2 saw the appellant assaulting the deceased by a bamboo badi while holding tuff of her hair and dragging her from DANDA (front side of the house) into the house. When the deceased slipped from the hands of the appellant and entered into the house of P.W. 3 with a view to escape further assault, appellant went into that house and started assaulting her. when P.W. 3 drove them out, P.W. 4 a boy aged about 16 years while going to play, saw the appellant assaulting the deceased by a bamboo badi at the open backyard and that the appellant challenged him and his friend as to why they were witnessing the occurrence and therefore, they went away from that spot, but saw the appellant dragging the deceased into the house and closing the back door, This occurrence of assault in the late afternoon was followed by the evidence of P.W. 1 that when she returned and heard about death of her daughter she Went and saw her dead body with multiple bleeding injuries. P.Ws. 2 to 4 have also deposed about death of the deceased because of such assault. Not only the aforesaid evidence is devoid of contradiction, but also the factum of exaggeration is conspicuously absent.
15. In addition to the aforesaid direct evidence prosecution also relied upon circumstantial evidence i.e. the seizure of blood stain and sample earth, blood-stained clothes etc. in addition to seizure of M.Os. II to IV under Section 2 of the Evidence Act. Learned Counsel for the appellant relying upon the cases of Bahadul v. State of Orissa 1979 Cri LJ 1076 : AIR 1979 SC 1262, Pohalya Motya Valvi v. State of Maharashtra 1979 Cri LJ 1310 : AIR 1979 SC 1949 Pandru Khadia v. State of Orissa 1992 Cri LJ 762 (Orissa) and Sesadev Mallik v. State of Orissa (1992) 5 OCR 295, argued that a case of discovery under Section 27 of the Evidence Act is not made out. In the case of Bahadul (supra) the recovery memo/seizure list was prepared without recording the statement of the accused as admissible under Section 27. Hence, it was held not to be a case of discovery under Section 27 of the Evidence Act. In the case of Pohalya (supra) the statement which was recorded under Section 27 relating to discovery was capable of two interpretations; one was exculpatory and the other inculpatory, Apex Court have propounded that in such a case the interpretation which favours the accused should be accepted. In the case of Pandru Khadia (supra) it was held that prosecution failed to establish that accused while in custody gave information as to the place of concealment of the weapon of offence and gave discovery from such place of concealment in presence of witness. Hence in that case evidence Under Section 27 of the Evidence Act was not found creditworthy. On the other hand, in the case of the Sesadeva (supra) it was held that in a case of dacoity mere discovery of the stolen property at the instance of the accused is not sufficient to convict him under Section 395, IPC. On a bare perusal of Ext. 5 read with the evidence of P.W. 5, it reveals that no such circumstance or deficiency of evidence exists in this case. In Ext. 5 it is recorded that appellant stated M.O. Ill to be the weapon of offence which he used for assaulting the deceased and at that time the banian M.O. II which he was wearing became blood-stained. He led police and witnesses to his cattle shed and gave discovery of M.Os. II and III which he had concealed inside a heap of husk. At that time P.W. 5 and the accused and the witnesses to seizure noticed blood-stains in the bamboo badi (stick) in two pieces and hair of the deceased sticking on it and such facts were mentioned in Ext. 5. The place from which discovery of M.O.I was given cannot be a normal prace of keeping things because it was concealed . inside a heap of husk. Except giving a denial suggestion to P.W. 5, nothing has been brought out from him relating to seizure of M.Os. II to IV under Ext. 5. Appellant even has not disowned M.O. II or III. Under such circumstance the evidence under Section 27 in this case is not liable to any criticism.
16. Report from the S.F.S.L., Ext., 12, clearly reveals that human blood of Group B in ABC blood grouping system was found in blood-stained scrappings from the spot of occurrence, M.Os. II to IV and the lungi of the appellant (M.O.V) and that blood of human origin was found in some blood-stained earth, some other blood-stained scrappings one check sari belonging to the deceased and another sari with which she was covered while taken to cremation ground, but the blood grouping could not be made due to deteriorated condition. P.W. 5 in his evidence has narrated in detail about seizure of such articles in presence of the accused and in that respect the evidence of P.W. 5 has not been challenged save and except giving a few suggestion. P.W. 5 being a Police Officer and an independent witness having no axe to grind against the appellant has not been shown with any bias to depose against the appellant. The aforesaid circumstantial evidence lends ample corroboration to the evidence of P.Ws. 1 to 4 regarding the homicidal death of the deceased and the appellant as the assailant. In view of such clinching evidence, there is no hesitation to concur with the finding and conclusion recorded by the trial Court that deceased suffered a homicidal death and the appellant is the author of that homicide.
17. Though nothing was argued by learned Counsel for the appellant, but few citations have been made under Section 18 of the Evidence Act, but such citations have no relevancy to the facts and circumstances of the case, hence not discussed. Either at the time of trial or during the course of argument in this Court appellant did not advance a case of culpable homicide not amounting to murder. Such a factum is also found not present. Evidence in record clearly leads to the conclusion that in the absence of grave and sudden provocation, appellant went on mercilessly assaulting the deceased all over her body including head by way of causing bleeding injuries. It is well inferred from the given circumstance that appellant had knowledge of the consequence of such assault that injuries inflicted were sufficient to cause death or likely to cause her death. Hence, there is nothing to interfere with the impugned conviction order.
18. The appeal is accordingly dismissed.
S.N. Phukan, C.J.
19. I agree.