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Panchu Nahak Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1985CriLJ1633
AppellantPanchu Nahak
RespondentState of Orissa
Cases ReferredDharm Das Wadhwani v. State of Uttar Pradesh
Excerpt:
.....non-recovery of the weapons. 12. i agree with my learned brother that the order of conviction is well-founded and is to be sustained. while a very strong motive would actuate a husband to kill his wife, it is not always possible to know as to what has prompted an accused to kill his wife and the prosecution may not be in a position to lead evidence in this regard. link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. the order of conviction is thus well-founded on facts and is sustainable in law......v. state of maharashtra in which the facts were almost similar. in that case the husband and the wife (deceased) were the only occupants of the house and it was later discovered during the day that the wife had been murdered by strangulation, in the aforesaid premises it. was held:the other-circumstances listed above hail also been finally established. once circumstance (a) is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of malti's death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accused-appellant and none else, who had murdered the deceased by strangulating her to death.the.....
Judgment:

K.P. Mohapatra, J.

1. The appellant was convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life by the learned Sessions Judge, Berhampur for having committed the murder of his wife, Kumari.

2. The prosecution case is that Kumari (referred to as 'deceased'), a divorcee was married to the appellant, a widower about eight years prior to the occurrence which took place early in the morning of 8-1-1980. They had a son, namely, Hina who at the time of occurrence was aged about five years. They were living in a house of their own adjoining the house of the appellant's separated brother, husband of PW. 3, Api Nahakani. About three or four days prior to the occurrence the appellant had taken away some gold ornament from the person of the deceased for which there seems to have been some misunderstanding between the couple and for which the parents of the deceased had to intervene. In the night of 7-1-1980, the appellant, the deceased and their minor son after taking their food retired to bed as usual. There was no other person in the house. Early in the morning P.W. 3, Api Nahakani heard the cries of Hina and went to the house of the appellant. The door of the bed room was ajar and when she peeped inside, she found that a Dibiri (a kind of local lamp) was burning inside the bed room and the deceased was lying injured in a pool of blood. She was groaning and struggling for life. She administered some water to the deceased, but she could not swallow it and breathed her. last. There was a blood stained axe (M.O. II) and a blood stained Katuri (M.O. I) lying near the dead body of the deceased. The appellant was nowhere to be seen. Sometime later when the incident became known to the villager, the Grama Rakhi (P.W. 5) came to the place of occurrence and then left for Purusottampur Police Station where he lodged the FIR (Ext. 1/1). The parents of the deceased, P.W. 1 Khali Behera and P.W. 2 Hira Beherani also arrived. The dead body was sent for post-mortem examination and investigation was commenced by P.W. 5, the Officer-in-charge of Purusottampur Police Station who arrested the appellant, who had absconded, on 10-1-1980. After close of investigation he submitted charge-sheet against the appellant.

3. The appellant took the plea that early in the morning of 8-1-1980 he opened the door of his house and went out to the fields to answer the call of nature. When he returned he saw the deceased lying injured. One Judhistira Raul jumped upon him and escaped H e went to the police station and reported the incident. He denied to have committed the murder of the deceased.

4. P.W. 7 Dr. Bindodini Padhi conducted autopsy on 9-1-1980 and found as many as 13 injuries in the region of the neck and face of the deceased. Out of them two cut wounds on the neck were fatal and sufficient in the ordinary course of nature to have caused death. According to her opinion (Ext. 10), death was due to shock and haemorrhage as a result of the aforesaid injuries. M.Os. I and II were sent to her for opinion and she opined (Ext. 10/1) that the injuries on the deceased might have been caused by these weapons. It was not disputed before us that the death of the deceased was homicidal in nature.

5. The only eye-witness to the occurrence was the minor son of the appellant Hina who, according to the prosecution case, saw his father assaulting his mother by means of a Katuri. He was also cited as a witness in the charge-sheet and was summoned to give evidence in the Court of Session. When he was produced before the Court as a witness on 27-7-81, the learned Sessions Judge questioned him and recorded the following observation:

Child witness Hina Naik is produced in Court and he is not able to answer the Court's questions and he is found unfit to be a witness and not examined.

Thereafter the Public Prosecutor declined to examine the child witness. It thus appears that the prosecution produced before the Court the only eye-witness to the murder, who was child witness barely aged about five years and was found unfit to be examined by the Court of Session. This being the position, no adverse inference can reasonably be drawn against the prosecution case for withholding the sole eye-witness to the murder.

6. The learned Sessions Judge found the following circumstantial evidence established against the appellant:

(1) There was some dissension between the appellant and the deceased a few days prior to the occurrence with regard to removal of some gold ornament by the former from the latter. Thus there was motive for the murder.

(2) In the night of 7-H980 the appellant, the deceased and their minor son, Hina were the only occupants of the appellant's house. After taking their food at night they retired to bed and slept.

(3) In the early morning of 8-1-1980 the deceased was lying dead in a pool of blood with a large number of injuries on her face and throat. The door of the house was ajar. M.Os. I and II were lying near the deceased. Hina was found crying.

(4) The appellant was nowhere to be seen and had absconded. He was arrested by P.W. 6 the investigating officer on 10-1-1980. The appellant had not made any report about the occurrence at the police station on 8-1-1980 or thereafter.

7. Learned Counsel for the appellant contended that motive for the murder was not established. Learned Standing Counsel, on the other hand, urged that even though motive was not established by the prosecution, yet the charge against the appellant cannot fail if. otherwise, the same has been established.

P.Ws. 1 and 2, father and mother of the deceased stated about dissension between the appellant and the deceased a few days prior to the occurrence on account of the former removing some gold ornament from the person of the latter. Their evidence suggested a motive which was an incriminating circumstance, against the appellant. But the attention of the appellant was not drawn to this incriminating, circumstance constituting motive for the! murder under Section 313 of the Code of Criminal Procedure. In : 1984CriLJ1738 , Sharad Birdhichand Sarda v. State of Maharashtra, it was held:

Ever since this decision, there is a catena, of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same] cannot be used against him.

In view of the above settled principle of law, the circumstance constituting the motive for the murder cannot be utilised against the appellant. It is a pity that a senior Sessions Judge did not keep himself abreast of the settled position of law and omitted to draw the attention of the appellant to this incriminating circumstance while examining him under Section 313 of the Code of Criminal Procedure.

The aforesaid finding leads to the consideration of the resultant effect of non-establishment of the motive for the murder. In : 1956CriLJ827 Gurcharan Singh v. State of Punjab, dealing with the principle on motive for a crime. Sinha, J. speaking for the Court held:.....But it has repeatedly been pointed out by this Court that where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance.

In : 1966CriLJ960 , Rajinder Kumar v. State of Punjab, it held:..The motive behind a crime is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assessing the evidence. The circumstances which have been mentioned above as proving the guilt of the accused Rajinder are however not weakened at all by this fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action.

In : [1971]1SCR133 , Narayan Nathu Naik v. State of Maharashtra, Hidayatullah, C.J. speaking for the Court repeated:..We need not consider the question of motive in this case if we are satisfied that the evidence that Narayan Nathu Naik was the assailant of Rattan, is acceptable.

In : 1973CriLJ1783 , Shivaji Sahebrao Bobade v. State of Maharashtra, Krishna Iyer, J. on behalf of the Court in his inimitable way made the following pronouncement:.The accused, we feel convinced, are reasonably proved to have murdered Hariba, But counsel argues that no animus against the victim has been made out and motiveless malignity militated against natural human conduct. Proof of motive satisfies the judicial mind about the likelihood of the authorship but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists.

In : 1975CriLJ66 , Nachhittar Singh v. State of Punjab, it was held;

Be that as it may, the failure of the prosecution to establish the motive for the crime does not mean that the entire prosecution case has to be thrown overboard, It only casts a duty on the court to scrutinize the other evidence, particularly of the eyewitnesses, with greater care. The High Court was fully conscious of the need for such caution, and rightly observed:

The absence of proof of motive has this effect only that the other evidence bearing on the guilt of the accused has to be very carefully examined.

Indeed, the High Court did so.

In : 1981CriLJ714 , State of Haryana v. Sher Singh, it was laid down:

The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to others. If the motive is proved by prosecution, the Court has to consider it and see whether it is adequate.

In : 1981CriLJ1278 , State of Madhya Pradesh v. Digvijay Singh, it was held;

It may be that the prosecution was not able to prove the motive for the crime, but that could not possibly matter when the circumstantial evidence on the record was sufficient to prove, beyond any doubt, that it was the respondent and no one else who intentionally caused the death of Smt. Tulasa Bai.

A Bench of this Court in a decision reported in 1985 Cri LJ 161, The State v. Aru Pradhan, similarly held:

Motive, however adequate, cannot sustain a criminal charge and absence of proof of motive is of no consequence if there is clear and cogent evidence of the commission of an offence against the accused.

It is, therefore, the settled position of law that prosecution is not bound to prove motive for a crime. If evidence for proof of motive of the crime is adduced it has to be considered. In the absence of motive other evidence, direct and circumstantial, has to be considered and if upon such consideration it is found that the offence against the accused is established, then absence of motive will not affect such finding. Motive is a thing which is only known to the perpetrator of the crime and at times it may be difficult to establish the same. It is, however, necessary that to satisfy the judicial mind, in a case where there is no evidence for proof of motive, the Court should scrutinise the prosecution evidence with greater care and caution. In the aforesaid view of the matter, in the instant case, because motive has not been established by the prosecution, its case cannot be thrown overboard for that reason only. It is necessary to scrutinise the other evidence on record led by the prosecution with due care, caution and circumspection.

8. Learned Standing Counsel contended that there is clinching evidence to the effect that in the night of 7-1-1980 the appellant and the deceased along with their son Hina retired to bed after taking their food at night. Early in the morning it was found that the deceased had met a homicidal death with a large number of injuries. The appellant was nowhere to be seen and had absconded. Blood stained weapons were lying by the side of the deceased. There was no fourth occupant of the house nor was there any possibility, in the absence of any evidence to that effect, of a fourth person entering inside the house of the appellant in his absence, murdered the deceased and left the scene of the crime unnoticed by him. He particularly referred to the admission of the appellant in his statement under Section 313 of the Code of Criminal Procedure and the evidence of P.W. 3, Api Nahakani who is a close relation of the appellant being his brother's wife. In answer to question No. 1 of the statement under Section 313 of the Code of Criminal Procedure, as to whether in the night of 7-1-80 he along with his wife and son Hina had slept in his house after taking food at night, the appellant answered in the affirmative. The evidence of P.W. 3 is short and as it is very important, I would prefer to quote it in full:

I know the accused, who is the younger brother of my husband. The wife of the accused is dead for the last one and half years back. In the previous evening of the occurrence day the accused, his wife Kumari and his son after night meal had slept together in their house and I along with my two children had slept in my house after night meal. At about dawn I came out of my house and saw the son of the accused crying. On my query he told me that his mother had been dead. Out of curiosity I looked into the house of the accused and found that the wife of the accused lying dead with severe bleeding injuries. A dibiri was also burning dimly. The accused was absent and the door was open. When I saw the wife of the accused she was gasping and I administered water to her, but she could not drink it and expired. I saw bleeding injury on the throat and face of Mumari was covered with blood. My mother-in-law is already dead. Hina told me that his father had killed his mother.

Cross-examination:

2. Before I got up my mother-in-law had already got up. She was sitting with Hina. When 1 got up I heard the groaning sound of deceased Kumari. She was struggling for life. Hina was all along crying. My mother-in-law also told me that the mother of the child Hina had been assaulted to death and she was lying inside the house. She requested me to go inside the house and see and give some water. Hina told me that his mother was lying dead and his father was not there. He did not specifically tell me that his father had assaulted his mother.'

The aforesaid evidence of a close relation of the appellant is clear and cogent which has not at all been impeached in cross-examination. She appears to be a truthful witness and we do not hesitate to believe her evidence. Her evidence will show that the only occupants of the house were the appellant, the deceased and her son, Hina. There was no fourth person present. Yet, the deceased was found dead with multiple injuries on vital parts of her body early in the morning. Therefore, we do not hesitate to accept the contention of the learned Standing Counsel to the effect that the evidence of P.W. 3, Api Nahakani points at the appellant as the perpetrator of the murder.

In support of his contention the learned Standing Counsel placed reliance on a decision reported in : 1972CriLJ1317 , Nika Ram v. State of Himachal Pradesh. The facts of the reported decision were almost identical to the facts of this case. In that case the appellant and the deceased, husband and wife respectively, were the only occupants of their house in the night of occurrence. At about 10.30 p.m. the wife of the accused was found murdered. In the aforesaid premises it was held:..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.He also placed reliance on another decision reported in : 1982CriLJ1572 , Prabhakar Jasappa Kanguni v. State of Maharashtra in which the facts were almost similar. In that case the husband and the wife (deceased) were the only occupants of the house and it was later discovered during the day that the wife had been murdered by strangulation, In the aforesaid premises It. was held:

The other-circumstances listed above hail also been finally established. Once circumstance (a) is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Malti'S death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accused-appellant and none else, who had murdered the deceased by strangulating her to death.The aforesaid decisions undoubtedly support the prosecution case and the conclusion which we have already drawn against the appellant.

9. The conduct of the accused was strange and was inconsistent with normal human behaviour in the morning of the crime. According to the evidence of P.W. 3, early in the morning when she saw the deceased lying in a pool of blood the appellant was not in the house and was not to be seen. According to the defence, set up by the appellant, early in the morning he opened the door of the house and went to the fields to answer the call of nature. When he returned, he saw one Judhistira Raut who jumped upon him and escaped, He found his wife lying dead. He went to the police station to report (Answer 10 question No. 2 of the statement under Section 313 of the Code of Criminal Procedure). If a small fraction of the defence case was true, the appellant on seeing one Judhistira Raut escaping from his house and immediately after finding his wife lying in a pool of blood, would have the impulse of running after Judhistira Raut to catch hold of him while raising a hue and cry or at least raising a hue and cry to arouse the neighbours stating that Judhistira Raut was the assailant of his wife. Normally he would have been the first person to run to the police station to report the incident. But he did not run after Judhistira Raut nor did he raise hue and cry after seeing the dastardly crime. He did not go to the police station and did not make a report with regard to the assault on his wife and her death. On the other hand, it appears from the evidence of P.W. 6, the Investigating Officer, that the appellant did not come to the police station on B-1-1980 to lodge F.I.R. He made a search for the appellant and ultimately arrested him on 10-1-1980, During the intervening period the appellant was no doubt absconding. From the above, it will appear that the conduct of the appellant was not only inconsistent with normal human behaviour, but also extraordinary and deeply suspicious. Over and above, he took a false plea already referred to above. It is true as held in : 1984CriLJ1738 , Sharad Birdhichand Sarda v. State of Maharashtra, that the Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court if only various links in the chain of evidence led by the prosecution have been satisfactorily proved. In the instant case, the prosecution evidence along with the abnormal human behaviour of the appellant is such that they point at the appellant and the appellant alone as the perpetrator of the crime. Therefore, the false defence raised by the appellant can be used against him as an additional link to point at his guilt.

10. Learned Counsel for the appellant pointed out that the ownership of M.Os. I and II was not established by evidence and human blood was not detected therefrom. There is actually no evidence that both the weapons actually belonged to the appellant. The Serologist found only blood in M.Os. I and II. It was, however, stated by P.W. 7, Dr. Binodini Padhi that human blood was found in M.Os. I and II which matched with the blood of the victim. Absence of proof of ownership of the weapons used in the commission of the murder was as good as non-recovery of the weapons. A Bench of this Court in a decision reported in 1985 Cri LJ 161, State v. Aru Pradhan, expressed:..The non-recovery of the weapon of attack in a case of murder cannot, by itself, be a circumstance to throw out the case.

Thus, the above lacuna in the prosecution case, in our opinion, is not sufficient to disbelieve the prosecution case in view of other clinching evidence. The contention of the learned Counsel for the appellant in this regard is not tenable.

11. Having given our anxious consideration to the facts, evidence and circumstances of this case, we find no reason to differ from the conclusion arrived at by the learned Sessions Judge. The appellant WHS rightly convicted and sentenced for the murder of his wife. The appeal is accordingly dismissed,

B.K. Beheka, J.

12. I agree with my learned brother that the order of conviction is well-founded and is to be sustained. In support of the same conclusion, I would add a few words.

13. As to the question of motive, absence of proof of motive is immaterial if the evidence is clear and cogent against an accused person and if the evidence is not of that character, motive, however, adequate, cannot sustain a criminal charge. As has been laid down by the Supreme Court in : 1955CriLJ1653 , Atley v. State of U. P., where there is clear proof of motive for the crime, that lends additional support to the finding that the accused is guilty, but the absence of clear proof of motive does not lead to the contrary conclusion and has this effect only, that the other evidence bearing on the guilt of the accused has to be very closely examined. While a very strong motive would actuate a husband to kill his wife, it is not always possible to know as to what has prompted an accused to kill his wife and the prosecution may not be in a position to lead evidence in this regard. It would be relevant to keep in mind the ' observation made by the Supreme Court in : 1983CriLJ1444 , Nanak v. State of U. P. that in a case of murder of the wife by the husband, there may be many considerations which may be looked into and it is very difficult to know the exact motive in the circumstances of a given case.

14. As indicated by my learned brother, there had been cause for ill-feeling between the appellant and the deceased owing to a quarrel a few days prior to the incident. Unfortunately, however, this cannot be considered against the appellant as the attention of the appellant had not been invited to this part of the evidence. Owing to incapacity of the child Hina to testify in the Court, the evidence of this child witness could not be recorded. There are, however, the other clinching evidence and circumstances referred to by my learned brother which would definitely point to the guilt of the appellant and would be incompatible with his innocence.

15. Absconding, by itself, may not be a guilt pointing circumstance in the absence of other evidence as n person falsely involved in a grave crime may leave the scene and evade arrest owing to the instinct of self preservation. In the instant ease, however, the appellant is no other person than the husband of the deceased. If, as sought to be shown by him, another person had jumped and escaped, he would normally and naturally have chased him and raised a hue and cry inviting the attention of his co-villagers. This had not been done.

16. As would be evident from the testimony of P.W. 3, by the time she and others went to the scene of attack, the deceased was not dead and she succumbed to her injuries some time thereafter. It would not appeal to common sense, much less to reason, that the appellant, without even seeing the condition of the deceased, would run away from the house. He would have tried to do all he could for the survival of the deceased or at any rate, would not have left the deceased while she was fighting between life and death.

17. The Supreme Court, speaking through V. R. Krishna Iyer. J., in : 1974CriLJ1249 , Dharm Das Wadhwani v. State of Uttar Pradesh, has held ;

Every evidentiary circumstance is a probative link, strong or weak, and must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then can a concatenation of incriminating facts suffice to convict a man. Short of that is insufficent.

18. Each of the guilt-pointing circumstances established by the prosecution in the instant case may suggest the guilt, but taken together would lead to but one conclusion, viz., the guilt of the appellant. The order of conviction is thus well-founded on facts and is sustainable in law.


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