Orissa High Court
Kuna @ Sanjaya Behera And Pravati Behera vs State Of Orissa on 7 November, 2007
Equivalent citations: 2008(I)OLR219
Bench: P.K. Tripathy, R.N. Biswal
JUDGMENT
1. Heard.
2. Both the appeals have been preferred by each of the accused persons as against the order of conviction recorded by the learned Addl. Sessions Judge, Baripada on 21.6.2001 in S.T. Case No. 48/38 of 2000 arising out of G.R. Case No. 167 of 2000 of the Court of S.D.J.M., Baripada.
3. The fact as available in the lower Court record is to the effect that Santosh Behera is the deceased. Accused Pravati Behera (appellant in J.Crl. Appeal) was his wife. It is alleged-that accused Sanjaya Behera, a man aged about 20 years had illicit relationship with accused Pravati Behera. Accused Sanjaya disclosed to Niranjan Behera (P.W.1), nephew of the deceased in the night of 19.2.2000 that if anybody would interfere with his relationship with accused Pravati, he would be severely dealt with.
4. According to the case of the prosecution, in the night of 19/20.2.2000 a video show was organized in the village and while accused Pravati and the deceased were in their house, their three children had gone to witness the video show. Accused Sanjay and P.W.1 had also gone to the said Video show. At about 10.00 to 10.30 P.M., accused Sanjaya and P.W.1 came out from video show at the instance of the accused. On the way to the house, accused Sanjaya purchased liquor and consumed the same. On his insistence, P.W.1 also consumed some liquor. When they reached at their place of residence, accused Pravati and the deceased were returning to their house after attending the call of nature. Accused Pravati entered into the room ahead of deceased Santosh. When the deceased Santosh entered into the room simultaneously accused entered there and applied physical force as a result of which Santosh fell down and thereafter sitting on his chest, accused Sanjaya throttled his neck. At that time accused Pravati put her hand on the mouth of the deceased to gag it. Because of the aforesaid overt act, Santosh died at the spot and thereafter, to give it colour of suicide the dead body was hung on the nearby premises by fixing a rope on the rafter of the roof of a shed. In the night when the children returned to the house accused Pravati remaining inside the house being closed from outside allowed the children to enter into the house by climbing over the bamboo fence (wall) and explained to them that their father had gone somewhere after locking the door from outside. One of the elder brother of the deceased (P.W.12) on the morning wanted to handover the key of the sweet meat stall and for that purpose he came up to house of the deceased and accused Pravati responded to him from inside the house stating that the deceased had gone outside. Then that witness went to his house, brought a torch light and found the door of the house (living room) of the deceased being locked from outside and thereafter on focus of his torch, he could observed the dead body of the deceased was hanging on the other premises. Thereafter the matter was reported to Police who registered a case of un-natural death and A.S.I, of Police (P.W.14) conducted the inquiry. In course of that inquiry P.Ws. 6 and 8 on being intimated by P.W.1 informed the inquiring officer about the murder of the deceased. On receipt of that information on 21.2.2000; the A.S.I, of Police went to the hospital and ascertained from the doctor who conducted the post-mortem examination on the dead body that deceased suffered homicidal death. Thereafter he examined the witnesses and being prima facie satisfied about the existence of offence of murder reported to his superior Police Officer and thereafter he lodged an F.I.R. On the basis of the said information and written report (Ext. 4), further investigation was undertaken and ultimately charge sheet was filed. After commitment of the case, trial Court framed charge for the offence under Section 302/34 I.P.C.
5. To substantiate the case, prosecution examined as many as 16 witnesses and relied on all the relevant documents marked as Ext. 1 to 15 and the rope was marked as M.O. 1. Accused took the plea of complete denial, but they did not adduce any defence evidence.
Trial Court determined the factum of homicidal death and found complicity of the accused persons in the crime and accordingly convicted them for the offence under Sections 302/34 I.P.C. In that process trial Court did not accept the allegation of the love affairs between the accused persons. Trial Court also acquitted the accused persons from the charge under Section 203/34, I.P.C. by granting benefit of doubt. State has not preferred any appeal against the order of acquittal under Section 203/34 I.P.C. On the other hand each of the accused persons has preferred the Criminal Appeal and J.Crl. Appeal challenging the order of conviction and sentence of imprisonment of life.
6. It appears from the evidence of P.W.11, the Doctor who conducted the post-mortem examination on the dead body of the deceased that he found ante mortem injuries, because of ante mortem nail marks and abrasions on neck, face and different parts of the body of the deceased and the doctor gave positive opinion stating that:
To Court:- The death of Santosh is due to' asphyxia for pressing of neck and not due to hanging by rope. Immediate after the death if the dead body is hung by means of a rope, there is possibility of ligature marks with sleeping of knot.
This evidence of P.W.11 remains unshaken in spite of thorough cross examination. The trial Court thus relied on that evidence to record the finding that the deceased suffered homicidal death.
7. Learned Counsel for the appellant in both the appeals advance common argument and state that if the evidence of P.W. 1 is disbelieved, then there is no connecting evidence to rope in the accused person in the alleged crime. P.W.1 in his deposition has supported the prosecution case by narrating the occurrence in the manner as alleged by the prosecution (as stated above), but he did not disclose that fact either before the A.S.I, of Police when he came for enquiry or before any of his (P.W.1) relative living in the house and only on the 6th day of the occurrence he narrated the incident to P.Ws. 6 and 8. Learned Counsel for the appellant relying on the cases of State of Orissa v. Mr. Brahmananda Nanda and Bhagaban Kirsani and Ors. v. State 58 1984 (1) OLR 1067 (1984) CLT 591 argues that the aforesaid conduct of P.W.1 takes away his credibility, as truthful and reliable witness and therefore his version be disbelieved. In reply, learned Standing Counsel argues that in this case P.W.1 has explained the reason as to why he could not disclosed the fact for 6 days. That explanation does not appear to be un-natural, impracticable or false and under such circumstances, the ratio from the above decisions is not applicable to this case. Accordingly he relies on the case of Lalli alias Chiranjib Bhowmick v. State of West Bengal; . Learned Standing Counsel states that in the case of Lalli their Lordships took note of the ratio in the case of Mr. Brahmananda Nanda (supra) and did not follow the ratio because of distinguishable facts. Therefore, the ratio in the case of Mr. Brahmananda Nanda (supra) was not applied in the case of Lalli (supra) and notwithstanding delay of 56 days in disclosing the fact, prosecution was believed on the ground that reasonable and plausible explanation was furnished and that was found acceptable by the trial Court and also by the High Court.
Regard being had to the legal position as stated above, on perusal of the evidence of P.W.1 we find that he has stated that he witnessed to the occurrence and soon after the occurrence accused Santosh cautioned him not to disclose the fact before anybody or else to murder him. He further explained that after lapse of 3 days he informed this matter to P.Ws. 6 and 8. The aforesaid explanation of P.W.1 does not appear to be incorrect or false or unnatural one. Under such circumstances the evidence of P.W.1 is not to be discarded only on the ground that there was delay in disclosing the fact.
8. Notwithstanding the aforesaid finding, the evidence of P.W.1 needs corroboration in furtherance of proof of the fact alleged against accused persons. Learned Counsel for the appellants referring to the finding recorded at paragraphs 10,11 and 12 of the impugned judgment argues that love affairs between the two accused persons was not found acceptable by the trial Court. It is indeed so. On perusing the finding, we find that the trial Court was not prepared to accept the sexual relationship or love affairs between Pravati and accused Santosh Behera. Learned trial Judge recorded finding not on the basis of evidence on record but on the basis of his personal feeling about possibility of existence/unexistence of such relationship. In that respect learned Addl. Sessions Judge has disbelieved that P.W. No. 1 could have seen the accused and the lady co-habiting, when they were related as nephew and aunt. Any sorts of relationship is possible between two persons however closely related. Instances are not rare. Therefore inference drawn by the trial Court contrary to the allegation of relationship is factually not substantiated to be improbable. Be that as it may, learned Addl. Sessions Judge also opined that evidence of P.W.1 shows that he had seen both the accused persons sleeping naked close to each other. That evidence of P.W.1 was not challenged in the cross-examination. Apart from that P.W.1 did not say that somebody else had seen the compromising position between the accused persons about 6 months before the date of occurrence. Under such circumstances searching for a corroboration was futile. Apart from that in her evidence P.W.3 (mother of the deceased) has stated that:
Santosh Behera is my son. Pravati is the wife of Santosh Behera. Kuna is my grand son. I had rebuked several times to Kuna and Pravati in respect of the talk in between them. As both of them were talking secret talks I was rebuking them. I had also complained about this before the mother of Kuna.
The aforesaid statement was not challenged in the cross-examination. An old lady of 68 years being the mother of the deceased and grandmother of the accused could not have described that relationship in any other decent manner. That evidence is suggestive of some affairs between the accused persons and that is why accused Pravati was rebuked by the mother-in-law. Learned Addl. Sessions Judge lost sight of relevant evidence on record. Therefore it is substantially proved on record about illicit relationship between the two accused persons, P.W.2, is the daughter of the deceased and accused Pravati. By the date of her examination in the year 2001 she was a child about 10 years old. In her evidence she had led corroboration to evidence of P.W.1 by stating that her parents were in the house and her brother and sister went to witness the video show. At about 2.30 A.M., when they returned, door was locked from outside. By climbing over the bamboo door and caught by their mother i.e., accused Pravati from inside the room, they entered into the room and that on her query accused Pravati stated that deceased had gone somewhere after locking the door from outside. The aforesaid statement of P.W.2 has led corroboration to evidence of P.W. 1. Evidence of P.W.2 also shows that accused had gone to see video show at about 10.30 A.M. Topograph of the house as stated by P.W.1 and also reveals from the spot map, Ext. 11, makes it probable that P.W.1 is a natural witness who could see the occurrence in the manner narrated by him. Thus the factum of homicidal death of the deceased being proved the narration of the occurrence by P.W.1 and attendant circumstances being corroborated by other witness it is clear that accused persons committed murder of the deceased. For the reasons indicated above we do not interfere with order of conviction and sentence passed thereon. Since there was no appeal against acquittal for the offence under Section 203/341.P.C., we do not pass any comment in that respect.
9. Accordingly, the J.Crl. Appeal is dismissed. Before parting with the J.Crl. Appeal, we observe that Pravati Behera has left behind her three children and she is inside the jail throughout. Therefore, at any time if she moves for premature release from jail or the jail authority recommends, then such matter be considered by the State Government in accordance with law under Section 433 and 433A Cr.P.C.