KARI @ KARTIK BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 8.9.2000 passed by learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial Case No.31 of 1998 convicting the appellant under Section 302 of the Indian Penal Code (for short 'the I.P.C.') and sentencing him to undergo imprisonment for life. 2. Prosecution case, in short, is that on 04.10.1997 Saturday at about 6.00 AM Iswar Behera (P.W.7) of village Adarpada and Nidhia Behera (P.W.5) came to the house of Grama Rakhi Dasarath Behera (P.W.1) and disclosed before him that in the previous night accused Kartik Behera committing murder of his wife Saraswati Behera by assaulting her with knife and stone has absconded and the dead body of the deceased is lying on the Pinda of his house. Hearing this, while Grama Rakhi was going to village Adarpada on the way Janaka Bewa, the mother of Iswar Behera (P.W.7) and Gurubari Behera (P.W.2), the elder sister of P.W.7, met him and disclosed before him that the accused committed murder of his wife and absconded in the previous night. The Grama Rakhi went to the spot and saw that the deceased lying dead on the Pinda of her house and her head, face and neck were stained with blood. A blood stained stone had fallen near the Pinda. On that day at about 11.00 AM, Grama Rakhi orally reported the incident at Sarat P.S. The Officer -in -Charge of Sarat P.S. reduced his oral report to writing vide Ext.1, registered a case and proceeded with the investigation. On completion of investigation, he submitted charge -sheet under Section 302 of the I.P.C. against the accused. 3. Defence plea is one of complete denial to the allegation. 4. Prosecution in order to prove the charge examined as many as thirteen witnesses including the doctors and the I.O. and exhibited sixteen documents including chemical examination report and post -mortem examination report. The accused examined none in support of his plea. 5. Learned Sessions Judge, who tried the case, convicted the present appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life mainly basing upon the ocular evidence of P.W.3 and dying declaration made by the deceased before P.Ws.2, 4 and 7. 6. Mr. Prajit Kumar Pradhan appearing on behalf of Mr. P.K. Mohanty -2, learned counsel for the appellant assails the impugned judgment on the following grounds: (i) The evidence of P.W.3, who is the only ocular witness, is not trustworthy, since she is a child witness and was tutored by her uncle and that she could not have seen the occurrence as the verandah of the house where it took place was dark and she was inside the room. (ii) Dying declaration made by the deceased before P.Ws.2, 4 and 7 is not believable as they are not consistent about the manner in which statement by the deceased was made before them. (iii) Nature of injury as described by the medical officer does not tally with the evidence of ocular witness P.W.3. In support of his contention, Mr. Pradhan, learned counsel for the appellant relies upon the decisions in Pabitra Mohan Bagh V. The State,2010 47 OrissaLR 105 and Arun Bhanudas Pawar V. State of Maharashtra,2010 45 OrissaLR 494. 7. Mr. Soubhagya Ketan Nayak, learned Additional Government Advocate vehemently contends that P.W.3, the child witness, is the daughter of the deceased as well as the appellant. In her evidence, she has categorically deposed that with the help of the light of a dibiri, which was burning inside the room, through the space on the door of the house she saw her father brought a knife from the thatch of the house and stabbed her mother and thereafter dealt a blow to the face of her mother by means of a stone. P.Ws.2, 4 and 7 are witnesses to the dying declaration and there is no discrepancy in their evidence with regard to manner of statement given by the deceased. The doctor (P.W.8), who conducted autopsy, opined that the cause of death was as a result of injury to the brain and right lung and that the injuries described in the postmortem report except the incised wound over the left ear and the stab wound over the left side of the face could be caused by the stone (M.O.II). Human blood was detected in the wearing apparel (lungi) of the appellant, as it reveals from the Serologist's report, but no explanation was given by the appellant in regard to the same. Thus, there is no infirmity or illegality in the impugned judgment warranting interference by this Court. In order to substantiate his contention, Mr. Nayak, learned Additional Government Advocate relies upon the decision in Shivraj Bapuray Jadhav and others V. State of Karnataka, 2003 6 SCC 392. 8. Perused the L.C.R. and the decisions cited by the parties. P.W.1 is the Gram Rakhi of village Adarpada who orally reported the death of the deceased to O.I.C., Sarat P.S. P.W.2 is the elder sister of the deceased. She deposed in her examination -in -chief that in the night of occurrence, hearing cry of Reba (P.W.3), the daughter of the deceased, she got up from sleep. Suspecting presence of a snake in the house of the deceased, she proceeded to deceased's house with a dibiri. Her brother (P.W.7) and his wife Gouri (P.W.4) also came to the house of the deceased with a light. On her arrival, she saw the accused running away from the spot towards jungle side. She saw her deceased sister lying on the outer verandah of her house and blood was oozing from her head and ear root. On being asked by her, the deceased told that she was assaulted by her husband. Then the deceased asked for and she provided her some turani. After some time, the deceased succumbed to the injuries. She further deposed that P.W.3 was locked inside a room. Her brother (P.W.7) entered inside the room through the broken wall at back side of the house and brought the child. When she and her brother (P.W.7) asked the daughter of the deceased, she told them that the accused picked up quarrel with her mother (deceased) and asked her to come inside the house. When her mother did not respond, her father threatened to kill her. Then her father closed the door of the house, which was a tati door, and locked it from out side. Daughter of the deceased also told them that her accused father might have stabbed and killed her mother by stone. She also saw a stone stained with blood near the head of the deceased. On the following morning, her brother (P.W.7) and Nidhia Behera (P.W.5) went to village Chowkidar to inform about the incident. Subsequently, she and her mother also went to the village Chowkidar. Nothing has been elicited in cross -examination from P.Ws.1 and 2 to disbelieve their evidence. P.W.3 is a child witness. She is the daughter of both deceased and appellant. In her examination -in -chief, she stated that in the night of occurrence she was sleeping in her house. Her father called her mother to go to the verandah of the house to sleep. Her father quarrelled with her mother and locked the door of the house from out side. She was inside the house. A dibiri was burning inside the room. Through the space on the door of the house, she saw her father brought a knife from the thatch of the house and stabbed her mother. She also saw her father after stabbing her mother by that knife dealt a blow to the face of her mother by means of a stone. She started crying. Hearing her cry, her uncle, aunt and grand -mother came to their house. They brought light with them. Her uncle (P.W.7) came inside the house through the broken wall and took her to outside. In her crossexamination, she stated that her elder brother and younger brother were in their house in the night of occurrence. They had slept after taking their night meal. The outer space of their house was dark in the night of occurrence. She further admitted that she could not tell when her father came to their house in the night of occurrence as she had slept. She also admitted that she was not examined by the police. P.W.4 is the sister -in -law of the deceased who corroborated the statement of P.W.2. She deposed in her examination -in -chief that the son of the deceased was sleeping with her mother -in -law in the night of occurrence. Hearing the cry of the daughter of the deceased from the side of her house, she along with her husband (P.W.7) got up from their sleep and went to the house of the deceased with a dibiri. On her arrival near the house of the deceased, she saw the accused running towards a bush at a little distance from the house. The deceased was lying on the verandah with bleeding injuries on her head and face. After her arrival, her other sister -in -law (P.W.2) came there. On their asking, the deceased told slowly that she was assaulted by accused Kartika. The deceased requested them to give some turani and she obliged her request. Some time thereafter, the deceased succumbed to the injuries. In her crossexamination, she admitted that her house is at a distance of 15 cubits from the house of P.W.2 and house of P.W.2 is nearer to the house of the deceased. The deceased was not dead by the time they arrived near her. She was at her last stage by then. She was able to talk only once, then took turani from her and succumbed to the injuries. She further admitted in the cross -examination that she saw the accused running away from the spot in darkness. Nothing has been elicited from her in cross -examination to disbelieve her testimony. P.W.5 is a post -occurrence witness. P.W.6 is the witness to the seizure of blood stained earth and sample earth from the verandah, where the dead body of the deceased was lying, vide seizure list (Ext.2). P.W.7 is the brother of the deceased and a witness to the dying declaration. He corroborates the evidence of P.Ws.2 and 4. In his examination -in -chief, he specifically stated that hearing cry of P.W.3, he along with his wife went to the house of the accused with a light. Near the house of the accused they saw the accused running away towards the jungle side. Near the verandah of the house the deceased was lying with injuries on her head and face. On being asked, the deceased told that she was assaulted by accused. Then the deceased gave indication to provide her turani. His wife (P.W.4) supplied turani to the deceased. The door of the house of the accused was locked from outside. Hearing the sound of P.W.3 from inside the house, he went through the broken wall of the house and brought P.W.3 to outside. In cross -examination, he admitted that hearing the cry of P.W.3, he along with his wife and his sister Gurubari and her husband went to the house of the deceased. They saw the accused running towards the jungle at a distance of 7 to 8 cubits. He further admitted that when they approached, the deceased told his wife that she was assaulted by the accused and gave indication to supply turani. P.W.8 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries: