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Surendranath Samantaray Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1977CriLJ192
AppellantSurendranath Samantaray
RespondentState of Orissa
Cases ReferredNika Ram v. State of H.P.
Excerpt:
.....but for reasons best known to the prosecution, she has been kept away from the court. similarly, the knife and the lungi which were said to be bloodstained were not sent for chemical examination and the prosecution suppressed good evidence. defective investigation in the facts of this case cannot be used as grounds for acquittal as in our view the rest of the evidence clearly establishes the prosecution case......in the village. the residential house consists of three apartments. one portion was occupied by deceased haramani. according to p.w. 2, the apartment occupied by haramani had two living rooms and a kitchen. in the apartment close to haramani's lived balaram, a distant relation of chaitan. balaram is husband of p.w. 2, father of p.w. 8 and father-in-law of p.w. 1. in that apartment there were two rooms on the north and a kitchen on the east. the other apartment provided the residential accommodation for the appellant and his family. while p.w. 2's apartment was separated by a brickwall, the other apartment occupied by the deceased and the appellant were virtually one.surendra and haramani were not pulling on well. on 23-5-1973, when dhula samal (p.w. 7), a bhag chasi engaged by.....
Judgment:

R.N. Misra, J.

1. The appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life by the learned Sessions Judge of Cuttack. According to the prosecution case, the appellant murdered his mother-in-law Haramani in the early morning on 24th of May, 1973.

2. To appreciate the facts of the Case, the relationship of the parties may be indicated.

CHAITAN

Widow-Haramani (murdered)

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____________________________________________________

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Sarala Oouri Kanohan

married to Surendra married to

(Appellant) Bishnu

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son - Basu daughter- Soubhagini

Chaitan died sometime in 1969. Bishnu was serving in the Raj Bhavan at Bhubaneshwar and was living along with his wife. Kanchan was living with Bishnu. Surendra was living as a domesticated son-in-law in Chaitan's house. His son Basu was living with Bishnu while Bishnu's daughter Soubhagini was living with Sarala in the village. The residential house consists of three apartments. One portion was occupied by deceased Haramani. According to P.W. 2, the apartment occupied by Haramani had two living rooms and a kitchen. In the apartment close to Haramani's lived Balaram, a distant relation of Chaitan. Balaram is husband of P.W. 2, father of P.W. 8 and father-in-law of P.W. 1. In that apartment there were two rooms on the north and a kitchen on the east. The other apartment provided the residential accommodation for the appellant and his family. While P.W. 2's apartment was separated by a brickwall, the other apartment occupied by the deceased and the appellant were virtually one.

Surendra and Haramani were not pulling on well. On 23-5-1973, when Dhula Samal (P.W. 7), a bhag chasi engaged by Haramani, was ploughing the bari lands, the appellant prevented him and raised a quarrel. From out of the incident, there had been some quarrel between the appellant and the deceased. Early in the morning of 24-5-1973 while Haramani was cleaning the floor of the kitchen, prosecution alleged, appellant came there with a knife (M.O. 1) in his hand and gave many stab injuries on her as a result whereof she died instantaneously. Sometime before the occurrence, Balaram and Bhikari had gone away to the fields along with labourers. P.W. 1 had gone to the well, while P.W. 2 had gone away to ease herself. Within the house were the little girl Soubhagini and Haramani. Hearing the cry of Soubhagini, P.W. 2 returned to the house and noticed the ghastly act. She ran to the fields and called back P.W. 8 who by 9 A.M. reported the matter at the police station. Investigation followed and ultimately the appellant was sent up for trial.

3. The defence, is one of complete denial. It was alleged that Balaram and P.W. 7 had conspired to drive the appellant out of the homestead and having got the deceased murdered placed the blame on the appellant.

4. P.W. 2 is the sole eye-witness to the occurrence. P.W. 1 has been taken as a post-occurrence witness. P. Ws. 3 and 6 supported the extra-judicial confession. P.W. 7 spoke about the previous day's quarrel which supplied the motive for the offence. P, W. 8 is the informant. P.W. 9 is the doctor who conducted the post-mortem examination. P.W. 11 is the Investigating Officer. Other P. Ws. were formal witnesses. On the side of the defence, a doctor was also examined as D.W. 1.

5. The post-mortem examination report (Ext. 4) made by P.W. 9 revealed that the deceased has received four injuries:

(i) an incised injury 6'X3 1/2' X 3' on the left side of the neck;

(ii) an incised injury 3' X 1 1/2' X 1' on the left side of the neck;

(iii) an incised injury on the left wrist; and

(iv) rupture of the common carotid artery on the left side of the neck. According to the doctor, these injuries could be committed by a knife of the type of M.O.I. That Haramani died as a result of the knife blows has been sufficiently established.

6. The prosecution mainly relied upon the following materials in support of its case:

(i) motive for the murder;

(ii) evidence of the eye-witness (P.W. 2);

(iii) evidence of the post-occurrence witness (P.W. 1);

(iv) extra-judicial confession as spoken to by P. Ws. 3 and 6;

(v) information given by the appellant leading to discovery of the weapon of offence (M.O. I) as admissible under Section 27 of the Evidence Act;

(vi) the conduct of the appellant.

7. P.W. 2 admittedly lives in the same house as appellant and deceased. According to her she had gone out to answer the call of nature early in the morning on the date of occurrence. When she was washing herself in the tank close-by, she heard the weeping sound and hurriedly returned home. She noticed that Soubhagini was crying and Soubha-gini told her that Mausa (appellant) killed grand-mother (Haramani). When she went up to the door of Haramani's kitchen, she saw the appellant with a knife (like. M.O.I) in hand and inflicting blows on the deceased. Appellant had then laid the deceased on the floor with one of his legs. Seeing the ghastly act, P.W. 2 rushed to the paddy field and informed her husband and son about what she had seen.

P.W. 1 (wife of P.W. 8 and daughter-in-law of P.W. 2) also admittedly lives in the same house. According to her, early in the morning on the date of occurrence Haramani went to her and brought an earthen pot containing cow dung for the purpose of cleaning the kitchen. P.W. 1 then went to the tank, cleaned the brass pots and proceeded to the well to fetch water. She carried home a potful of water and while she was returning with the pot, she saw the appellant coming out of the apartment of the deceased and then the appellant stood near a jackfruit tree holding a knife stained with blood in his hand. His legs too had been blood stained. Soubhagini was standing outside the door and was crying. As soon as she saw P, W. 1, Soubhagini stated that the appellant had killed the grandmother. When P.W. 1 looked inside, she saw Haramani lying in a pool of blood in the kitchen. Like P.W. 2, P.W. 1 also had stated that Balaram and P.W. 8 had gone to the fields and were not at home at the times of occurrence.

The learned trial Judge has been impressed by the evidence of P.W. 2. Counsel for appellant placed the entire evidence of this witness and claimed that P.W. 2 was a liar. According to him, P.W. 2 could not have seen any part of the actual assault as alleged. Her statements before the Police run counter to the evidence given in Court and on the basis of the same it is argued that she has attempted to embellish her deposition as she was interested against the appellant and wanted to protect her husband and son.

The evidence of P.W. 2 has been analysed before us at great length. The cross-examination of the Investigating Officer (P.W. 11) has also been placed to bring out the contradictions. We have not been able to see any such discrepancy or contradiction which would lead us to disbelieve P.W. 2. The allegation of the appellant that Balaram (husband of P.W. 2) had committed the murder is a wild suggestion which has no legs to stand upon. P.W. 2, an elderly lady, would have no occasion at all to rope in an innocent person as the assailant of Haramani, On the other hand, it would be reasonable to accept, the natural circumstances being kept in view, that P.W. 2 would implicate the true assailant. In all essential particulars, her evidence has remained unshaken. Her evidence depicts the entire incident in a very natural way. We have not come across any material in her deposition which would discredit her evidence.

P.W. 1 is a young lady of 23. Admittedly by the time she returned to house, the assault was over. She saw the appellant standing under the jackfruit tree having come from Haramani's apartment. Then his right hand was bloodstained and he was holding a knife. His feet were bloodstained. When she reached the house, Soubhagini disclosed the details of the occurrence. Mr. Mohanty for the appellant drew our attention to some alleged discrepancies in her evidence. Undoubtedly, when witnesses were deposing in Court to events they saw about fourteen months prior to the occurrence and the witnesses are rural ladies, there is bound to be some discrepancy. But as we have already pointed out, there is no such sub-stantial discrepancy in the evidence which would lead to discarding the evidence in its entirety. We would, in agreement with the learned trial Judge, hold that both P. Ws. 1 and 2 are reliable witnesses.

8. The learned Sessions Judge discarded the evidence in regard to extra-judicial confession. Learned Government Advocate has not challenged that finding of the trial Court. Therefore, it is unnecessary to refer to the evidence of P. Ws. 3 and 6 who came forward to support the extra-judicial confession.

9. The appellant while in custody gave information leading to discovery of the knife (M.O.I). P.W. 10, the Sarpanch of the area, has spoken thus:

This knife M. 0. I was seized by the I.O. in my presence. My signature appears on the handle of the knife. The accused led the I.O. Sri P.C. Das, Officer-in-charge, Jagatsinghpur P.S. to a cane bush saying that he had concealed M.O. I, therein. The cane bush was on the western side of his house. I and others also accompanied the I.O. The accused brought out the knife from the cane bush and himself produced the same to the I.O. After the production of M.O.I before the I.O., the latter seized the same in my presence under a seizure list....

P.W. 10 has been believed by the trial Court. We do not see any reason to discard the evidence of the witness.

P.W. 11 has stated:. While in custody the accused led me and the witnesses towards a cane bush 30 feet towards the west of his house. He showed me a place inside the bush, himself brought out a knife from inside the bush and produced the same before me. I found blood like stains on the knife. I seized the knife in the presence of witnesses under seizure list Ext. 7 which was prepared and signed by me....

No reason has been advanced by Mr. Mohanty for the appellant as to why P.W. 10 would implicate the appellant as giving discovery of the knife. Similarly the corroborating evidence of P.W. 11 goes unexplained. On the basis of the evidence of these two witnesses, it can safely be concluded that the appellant while in custody gave discovery of the knife. Discovery of the knife is a very important piece of corroborative evidence which has been rightly relied upon by the trial Court for determining the fate of the case.

10. The evidence of P. Ws. 1 and 2 together would thus show that the relationship between the parties was strained and only in the previous day there was a regular quarrel. P.W. 2 saw the appellant committing the ghastly attack and inflicting blows on Haramani. P.W. 1 saw the appellant coming out of the apartment of Haramani and standing under the jack-fruit tree holding a bloodstained knife in his hand and his feet being equally bloodstained. The presence of the appellant at the site with a knife in hand and having a blood-besmeared body go a long way to establish the prosecution case against him.

11. The conduct of the appellant after the murder of Haramani is also noteworthy. In case the appellant was not the assailant, one would certainly expect him to report the incident to the police without loss of time. No steps were taken by the appellant in the matter till the police arrived in the village. The appellant in his statement under Section 364 of the Code of Criminal Procedure has stated that he had intended to report the matter at the police station. His inaction in the matter until the police arrived in the village speaks very much against his conduct. If he were not the assailant, in normal course, he was expected to forthwith report the incident at the police station. According to learned Government Advocate, the' following circumstances against the appellant have been clearly established:

(i) In regard to the motive for the incident, there was pre-existing animosity between the appellant and the deceased which had been lit up by the quarrel on the previous day. P. Ws. 2, 7 and 8 have categorically spoken about such relationship.

(ii) The appellant was seen by P.W. 1 near about the place of occurrence in the courtyard, coming out of the house and standing under the jackfruit tree with blood smeared on his hand and feet and with the knife in hand.

(iii) P.W. 1 saw the deceased in a pool of blood.

(iv) M. 0. I the knife was seen by P.W. 1 with the appellant.

(v) The doctor's evidence clearly supports that M.O.I can cause the injuries given under Ext. 13/1.

(vi) The appellant while in custody gave information leading to the discovery of the knife (M.O.I) as spoken to by P. Ws. 10 and 11.

(vii) The conduct of the appellant in becoming completely inactive even though he definitely knew that Haramani had been murdered.

According to learned Government Advocate, these circumstances clearly go to support the oral evidence given by P. Ws. 1 and 2. Having given our anxious [consideration to the matter, we think, the learned Government Advocate's stand is correct. Learned Government Advocate has placed reliance on certain decisions of the Supreme Court to support his stand that where motive for the incident had been established and the chain of circumstantial evidence was complete, the offence can be taken to have been established. In the case of Udaipal Singh v. State of U.P. AIR 1972 SC 54 : 1972 Cri LJ 7, it was observed:. In cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused having a strong enough motive and the opportunity of committing the crime and the established circumstances on the record considered along with the explanation - if any of the accused, exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused. He may, in that event safely be held guilty on such circumstantial evidence....

In the case of Nika Ram v. State of H.P. AIR 1972 SC 2077 : 1972 Cri LJ 1317, the Court observed:

It is in the evidence of Girju P.W. that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (P.W. 8), who is the uncle of the accused, and Bhagat Ram school teacher (P.W. 16). According to Bhagat Ram he saw the accused and the deaceased together at their house on the day of occurrence. Mani Ram (P.W. 8) saw the accused at his house at 3 P.M. while Poshu Ram (P.W. 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan P M consists of one residential room one other small room and a verandah. The correctness of that plan is proved by A.R. Verma overseer (P.W. 5). The fact that the accused alone was) with Churi deceased in the house when. she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.

In the present case, the strained relationship between the parties and the quarrel on the previous day appear to have been proved beyond doubt. A strong motive, therefore, can reasonably be inferred. As established by evidence, at the time of occurrence the male members of Balaram's family had gone to the fields and the females had gone out of the house. Apart from appellant's wife about whose exact presence no evidence is on record, the only other occupants were the appellant, the deceased and the minor child Soubhagini. The defence suggestion that Haramani may have been murdered by any outsider is without any basis. The fact that undigested food was found in the stomach of the deceased cannot be the basis for a finding that the incident took place long before 6 A.M. The presence of the appellant near the place of occurrence and the fact that he was holding a knife like M.O. I and the further evidence of P.W. 1 that she saw the appellant with bloodstained hands and feet sufficiently corroborate the evidence of P.W. 2 regarding the seeing of the actual assault.

12. Mr. Mohanty for the appellant seriously contended that the investigation was very defective and the best evidence has been kept away from the Court. Soubhagini though a child, according to the prosecution, saw the entire occurrence. She appears to have been examined by the police during investigation, but for reasons best known to the prosecution, she has been kept away from the Court. Similarly, the knife and the lungi which were said to be bloodstained were not sent for chemical examination and the prosecution suppressed good evidence. Undoubtedly these are serious lapses. But it is not the contention of Mr. Mohanty that if Soubhagini had been examined, she would not have supported the prosecution. Nor is it the defence version that if the wearing apparel and the M.O.I. had been sent for chemical examination, bloodstains would not have been found on them. Defective investigation in the facts of this case cannot be used as grounds for acquittal as in our view the rest of the evidence clearly establishes the prosecution case.

13. The conduct of the Investigating Officer in this case is very serious. In fact, when Mr. Mohanty during hearing of the appeal started arguing in the manner indicated above, we adjourned the matter and required the two Investigating Officers to appear before the Court in a miscellaneous proceeding. We have examined both of them on oath.

P.W. 11 in the sessions trial is the first I, O. who made over charge of the investigation on the 5th of July, 1973, to one Jayakrishna Patnaik. At the time P.W. 11 handed over charge, he left a note in the connected case diary for successor's guidance. Therein he indicated that statements of witnesses remained to be recorded under Section 164, Criminal Procedure Code. Chemical analysis of the bloodstained articles had to be done and the confessional statement of the accused had to be recorded. This Investigating Officer had seized a lungi and a knife both of which were bloodstained. He had written to the Sub-Divisional Officer for sanction of funds for transmission of the materials for chemical examination. He had also examined the child witness. There does not appear to be any infraction in the investigation done by P.W. 11.

The successor Investigating Officer Jayakrishna Patnaik stated on oath:. Investigation was complete by the time I took over charge and, therefore, I had nothing to do with the investigation. Though I verified the case diary, I did not thoroughly do it. Instructions are that when in the midst of investigation conducted by an Investigating Officer or at the conclusion of the investigation conducted by an Investigating Officer, a new Investigating Officer takes over, the new Investigating Officer has to peruse and study the case diary with great care and take further steps in accordance with law. Yet, I have not done so. Shri Purna Chandra Das, the Investigating Officer, from whom I took over charge gave me the impression that everything had been done. Therefore, I did not scrutinise the case diary in a proper way.

He has again stated:

During investigation a knife and a lungi which was worn by the accused had been seized. The seizure list shows that the knife had bloodstains. The seizure list also shows that the lungi had bloodstains. When I had scrutinised the case diary, I had come across the seizure list particularly with reference to the lungi and knife. I had also known then that these articles bore bloodstains, I also knew that these two articles had not been sent for chemical examination.

Notwithstanding this fact and the note given by the previous Investigating Officer, Patnaik suggested to the Additional Superintendent of Police by a letter dated 29-1-1974 that as there was adequate evidence otherwise chemical examination may be dispensed with and instructions approving the suggestion came on 13th March, 1974, as per Ext. 2 in the miscellaneous inquiry. The said instruction was, however, forthwith superseded. But Patnaik took no steps on the ground that by then the seized articles had been sent to the Police Malkhana. It appears that the Additional Superintendent of Police had supervised the investigation of the case on 23rd of June, 1973 and had given written instructions for forwarding the seized articles for chemical Examination. In view of such existing instruction, Patnaik had no justification to ask for exemption from chemical examination of these materials. He admitted that he did not attend to the case diary between 5 th of July, 1973 and 24th of September, 1973. We have no doubts in our mind that the Investigating Officer Patnaik misconducted himself and contrary to the instructions in the Police Manual relating to investigation of special report cases and direct instructions given by the supervising Additional Superintendent of Police managed to keep away very implicating materials from chemical examination. That he behaved negligently has been admitted by him before us in his evidence on oath. Whether the negligence was the outcome of any other consideration or was only a deliquency of duty is yet to be seen and that must be left to the departmental authorities to decide in a suitable administrative proceeding. We would, however, conclude, on the materials before us and in particular the evidence given by Patnaik that he does not deserve to be in charge of any investigation and much less to be placed in a position of public trust.

14. Notwithstanding what we have stated about the investigation, we are of the clear view that the prosecution has established its case beyond reasonable doubt. There is, therefore, no occasion to interfere with the conviction. There is no merit in the appeal and the conviction must be sustained and the sentence upheld. If at all, the sentence appears to be inadequate and in the facts of the case properly the sentence of death should have been imposed; we, however, do not propose to take steps for enhancement of the sentence at this stage. The appeal is accordingly dismissed. A copy of our judgment be sent to the Home Secretary to Government.

N.K. Das, J.

15. I agree.


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