Orissa High Court
Babaji Charan Sahu And Anr. vs State Of Orissa on 29 July, 1997
Equivalent citations: 1998CRILJ1175
JUDGMENT R.K. Dash, J.
1. Babaji Charan Sahu and Pravasini alias Pravati Swain, the two appellants herein, stood charged under Sections 302 and 302/109, IPC respectively. On conclusion of the trial, the learned Sessions Judge, Cuttack, found both the appellants guilty of the offence as aforesaid and sentenced them to suffer imprisonment for life. Aggrieved by the judgment and order of conviction, they have preferred the present appeal.
2. The prosecution case culled out during trial, may briefly be stated thus:
Dhadi Swain (hereinafter referred to as the 'deceased' ), husband of appellant Pravasini, was earning his livelihood by working in the flour and flattened rice mill of Bipin Bihari Sahu, P.W. 1. On 22-5-90, the deceased as usual worked till 11 p.m. and then left for home, but within half an hour returned back to the mill premises and retired to bed. As it was summer, P.W. 1 was sitting outside on a chair. In the meanwhile, both the appellants came near the mill premises and of them, appellant Pravasini called the deceased through P.W. 1. The other appellant Babaji stood at a little distance by the side of the road holding a bicycle. There was some discussion between the deceased and Pravasini, where after the former left for the village telling P.W. 1 that he would return after some time. Within few minutes of their departure, deceased raised cries that he was being killed, hearing which P.W. 1 and Jogendra Behera, P.W. 2, another worker of the mill, rushed in the direction where from the cries of the deceased were emanating. Reaching at the spot, they found the deceased alone standing with bleeding injury on his neck. Both the appellants who were accompanying him were not present nearby. Seeing his condition, P. Ws. 1 and 2 asked as to who caused the injury, to which he replied that it was appellant Babaji who assaulted him. The deceased was immediately taken to Biridi Hospital where he succumbed to his injury. P.W. 1 lodged a written report (Ext. 1) at Jagat singhpur P.S. whereupon a case under Sections 302/34, IPC was registered, investigation was taken up, and after close of investigation, charge-sheet was placed against both the appellants under Sections 302 and 302/109, IPC to stand their trial.
3. The plea of the appellants was one of denial and false implication.
4. The motive for the crime, according to prosecution was that appellant Pravasini had extra-marital relation with appellant Babaji and when the deceased coming to know of it stopped the appellant Babaji from visiting his house, both the appellants connived with each other and committed his murder on the fateful night.
5. To bring home the charge, the prosecution examined 11 witnesses including the autopsy doctor and the Investigating Officer, and the learned trial Judge on assessment of the evidence held both the appellants guilty of the charge and consequently convicted and sentenced them as hereinbefore stated.
6. Admittedly there was no eyewitness account of the incident. The prosecution case solely rested on the following circumstantial evidence :
(I) Medical evidence;
(II) Motive for the crime;
(III) Dying declaration of the deceased immediately after the incident;
(IV) Last seen theory;
(V) Conduct of the appellants; and (VI) The find of human blood on the wearing apparel of the appellant Babaji.
7. Shri G. N. Mohapatra, learned counsel for appellants, challenging the finding and ultimate conclusion of the learned trial Court, contended that motive for the crime has not been established by leading any acceptable evidence and in view of the nature the seriousness of the injury, the dying declaration said to have been made before P.Ws. 1 and 2 being far from truth, the benefit of doubt should have been extended to the appellants. He further urged that there was delay in despatch of the F.I.R., Ext. 1 to the Court, inasmuch as Jagatsinghpur P.S. being in close proximity of the Court of the S.D.J.M., the F.I.R. which was recorded on 23-6-90 should have been sent to the Court on the very day or on the next day, but instead it was sent two days after, i.e. on 25-5-90, as is evident from the endorsement of the S.D. J.M. and no explanation having been offered for such delay, prosecution case should have been viewed with suspicion, Shri Mohapatra went on to argue that in absence of any cogent and convincing evidence, last seen theory alone is not sufficient to hold the appellants guilty. So far as find of human blood of group AB on the wearing apparel of the appellant Babaji is concerned, he submitted that in absence of any evidence that deceased's blood group was also AB, the same cannot be a circumstance pointing to the guilt of the appellants. Learned Additional Government Advocate, on the other hand, supporting the judgment, contended that evidence of P.Ws. 1 and 2 With regard to dying declaration and other circumstances being without blemish is sufficient enough to hold that it was the appellants who were responsible for the death of the deceased and therefore, the finding of guilt recorded by the trial Court does not call for any interference.
8. Circumstance No. 1 : Dr. Adikenda Barik P.W. 7 conducted autopsy on the dead body of the deceased on 24-5-90 and found one incised sharp cutting wound 4" x 1 -1/2" x 2 over left side of the neck, just above the upper border of clavicle, cutting left carotic artery, vein, muscles and nerve. The said injury was antemortem and homicidal in nature and the cause of death, according to him, was due to severe haemorrhage, as a result of cutting of the large vessels like carotic artery and jugular vein. The fact that the deceased died a homicidal death was neither assailed before the trial Court nor is assailed before us by the learned counsel appearing for the appellants.
9. Circumstance No. II: As regards motive, the case of the prosecution is that the appellant Babaji had extra-marital relation with appellant Pravasini, wife of the deceased, and there being persistent objection by the deceased, a conspiracy was hatched to do away with him. Though no direct evidence could be possible to be led in support thereof, yet it is amply proved from the evidence of Pabitra Mohan Swain, P.W. 8 and Rasananda Swain, P.W. 9, that taking advantage of the absence of the deceased till late night, the appellant Babaji was frequently visiting his house during odd hours and despite stiff resistence of the villagers he did not desist himself from doing so. The above two witnesses have stated about the frequent visit of the appellant Babaji to the house of appellant Pravasini for which meetings were held in the village where it was decided that he should not visit her house any more. In this context evidence of Suryakanta Swain (P.W. 5), son of the deceased, cannot be lost sight of. It would appear from his evidence that on the night of the occurrence the deceased on return from the mill after day's work, found his wife (appellant Pravasini) absent. So his suspicion regarding clandestine visit of appellant Babaji to his house grew when he found a napkin belonging to appellant Babaji in his house. The evidence of the above three witnesses (P. Ws. 6,8 and 9) leads us to believe that since the deceased was creating all hindrance in their secret affairs, both the appellants decided to do away with him.
10. Circumstance No. III : This is the most important piece of evidence which the prosecution sought to prove against the appellants by examining two witnesses, namely, Bipin Bihari Sahu, P.W. 1 and Jogendra Behera, P.W. 2. P. W. 1 is no other than the owner of the flour and flattened rice mill where deceased was employed as a worker. As deposed to by him, on the night of occurrence the deceased having worked till 11 p.m., left for home, but within half an hour returned back to the mill premises and returned to bed. After a short while, appellant Pravasini came and requested him to send her husband with her. At last both deceased and appellant Pravasini left for home and within few minutes he heard cries of the deceased saying, "Come running, I was killed", Hearing this he ran in the direction where from the cries were emanating and found the deceased having sustained bleeding injury on his neck. When asked, the deceased disclosed that appellant Babaji inflicted a cut blow and caused the said injury. This evidence of P.W. 1 finds sufficient corroboration from the evidence of P.W. 2, a co-villager of the deceased. He stated that he was also an employee of P.W. 1 and at the relevant time he was present in the mill. As stated by him, on being called by P.W. 1 he rushed to the spot and found the deceased standing with a bleeding injury on his neck. On his enquiry the deceased gave out that it was appellant Babaji who assaulted and caused such injury. We have scrutinised the evidence of these two witnesses and found that they are natural witnesses whose presence at the scene of occurrence cannot be doubted. They were subjected to incisive and searching cross-examination, but nothing substantial was elicited to discredit their testimony. We are, therefore, of opinion that their evidence with regard to oral dying declaration suffers from no infirmity and the same being truthful and without any element of embellishment and distortion is sufficient to sustain conviction without insisting for corroboration. For our such conclusion we derive support from the decisions of the Apex Court in the cases of Lallubhai Devchand Shah v. State of Gujarat AIR 1972 SC 1776 : 1972 Cri LJ 828, Vishram v. State of Madhya Pradesh AIR 1993 SC 250 : 1993 Cri LJ 304 and State of Orissa v. Bansidhar Singh (1996) 2 SCC 194 : AIR 1996 SC 938. Besides that, it may be noted that the fact of the deceased having made the dying declaration before P. Ws. 1 and 2 finds mention in the F'.I.R. which was lodged within few hours of the incident. True it is, as contended by Shri Mohapatra, learned counsel for appellants, that there were two days' delay in despatch of the F.I.R. to the Court of the S.D.J.M. Jagatsinghpur. But he could not point out from the materials on record to suggest that the F.I.R. was not lodged at the time stated or anti-timed or anti-dated or that the investigation was unfair. The incident occurred in the mid-night of 22/23-5-90 and the F.I.R. was lodged at 6 a.m. of 23-5-90. Immediately after receipt of the F.I.R., P.W. 2 Sub-Inspector of Police, Jagatsinghpur P.S. registered a case under Section 302, IPC and took up investigation. It appears from the record that in course of investigation P.W. 10 held inquest over the dead body of the deceased and made certain seizures on 23-5-90, that is, the very day on which the F.I.R. was lodged. Correctness of the inquest report and the seizure lists (Exts. 2 to 6) was not challenged by the appellants during trial. In that view of the matter, the question arises whether the prosecution case could be thrown over board merely because there was delay in despatch of the F.I.R. to the Court. In a number of cases fairness of the prosecution case on account of delayed despatch of the F.I.R. was challenged before the Apex Court. To avoid proliferation, we may refer to a recent decision in the case of State of Karnataka v. Moin Patel reported in (1996) 3 Cur Cri R 27 : AIR 1996 SC 3041 at p. 3047, where the Court observed :" F.I.R. was promptly lodged at or about 1.30 a.m. and that investigation started on the basis thereof is wholly reliable and acceptable, judged in the context of the above facts the mere delay in despatch of the F.I.R. and for that matter in receipt thereof by the Magistrate would not make the prosecution case suspect for as has been pointed out by a three Judges Bench of this Court in Pala Singh v. State of Punjab AIR 1972 SC 2679, the relevant provisions contained in Section 157, Cr.P.C. regarding forthwith despatch of the report (F.I.R.) is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give proper direction under Section 159, Cr.P.C. and therefore if in a given case if; is found that F.I.R. was recorded without delay and the investigation started on that F.I.R. then however improper or objectionable the delayed receipt of the report by the Magistrate concerned it cannot be itself justify the conclusion that the investigation was tainted and the prosecution unsupportable.
In view of the aforesaid authoritative pronouncement and keeping in mind the fact that the investigation was started immediately on receipt of the report, we are of the opinion that mere delayed despatch of the F.I.R. to the Court is of little consequence.
11. Circumstances Nos. IV and V : To avoid repetition of discussion of the evidence, we have taken up these two circumstances together for consideration. At the cost of repetition we may point out that on the night of the occurrence appellant Pravasini being accompanied by appellant Babaji came to the mill premises of P.W. 1 to call her husband, the deceased. It is in the evidence of P.W. 1 that the deceased left for home in the company of appellant Pravasini and within few minutes of the departure he heard the cries of the deceased that he was being killed. He then rushed to the spot and found the deceased having sustained bleeding injury on his neck. His evidence that the decreased while in the company of his wife was brutally assaulted remained unshaken during cross-examination. If at all she had no hands in the assault, she would have in natural course raised hue and cry attracting attention of the people residing nearby. Furthermore, she could have brought this fact to the notice of the villagers so that prompt steps could have been taken to provide medical help to her husband to save his life and simultaneously to apprehend the culprit. Added to that when examined under Section 313, Cr.P.C. she offered no explanation as to how her husband received the injury and who the assailant was. This conduct of her coupled with the 1ast seen theory persuades us to hold that she had hands in the incident and that with her active connivance and support the appellant Babaji, her paramour, gave fatal blow to the deceased which ultimately resulted in his death.
12. Circumstance No. VI: It is the evidence of the Investigating Officer, P.W. 10 that he seized one lungi belonging to appellant Babaji which was stained with blood. This has been supported by the seizure witness, P.W. 4. The said lungi was sent for chemical examination and as is evident from the chemical examination report, Ext. 14/1, it contained human blood of group AB. However, evidence is lacking as to what is the blood group of the appellant Babaji. It is fundamental that in serious cases like the present one, it is the duty of the Investigating Officer to get the blood group of the accused examined so that it could be ascertained whether the blood found on the seized material was of the deceased or of the accused. In the present case, the Investigating Officer, P.W. 10 failed to look to this aspect of the case and take steps to get the blood group of the appellant Babaji examined. However, it stands proved that the wearing lungi of the appellant Babaji was stained with human blood and there being no explanation as to how blood could be found on his apparel, the same in our opinion is one of the circumstances pointing towards his guilt.
13. On reappraisal of the evidence discussed above, we are of the firm view that both the appellants in order to maintain their illicit relation, connived with each other to eliminate the deceased and ultimately committed his murder on the date of the incident. Therefore, they have rightly been convicted by the trial Court which needs no interference in the present appeal. Accordingly the appeal is dismissed.
P.C. Naik, J.
14. I agree.