BIBACHHA DIGAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellant-Bibachha Digal, along with acquitted accused Banita Digal were prosecuted by Sessions Judge, Phulbani in S.T. Case 52 of 2007 State v. Bibachha Digal and another for offence U/s. 302, 201/34 of I.P.C., emanating from Phulbani Sadar P.S.Case No. 76 of 2006, relating to G.R. Case No. 438 of 2006 of the Court of SDJM, Phulbani, and while Banita Digal was acquitted of all the charges against her, appellant was adjudged guilty of offence U/s. 302 and 201 I.P.C. and consequently was convicted for those offences and sentenced to life imprisonment with a fine of Rs. 200/- (Rupees Two Hundred Only) and in default thereof to serve one month further Rigorous Imprisonment for the charge of murder U/s. 302 I.P.C. and 3 years Rigorous Imprisonment with fine of Rs. 200/- (Rupees Three Hundred Only) and in default to serve one month further imprisonment U/s. 201 of I.P.C. Both the sentences have been directed to run currently and the benefit of set off has been conferred on the appellant vide impugned judgment and order dated 11.08.2008. Hence this appeal by the convicted accused challenging impugned judgment and order referred to herein above.

(2.) Prosecution case as disgorged in the FIR and later on unfurled before the Trial Court, stated concisely, indicates that one Late Chhanchana Behera, resident of Phulbani Harizan Sahi under Town Police Station, Phulbani, Dist-Kandhamal had two sibling issues, son Kastha Behera/PW1 and daughter Ponia Naik/PW2, who was married to one Parameswar Naik. Kastha Behera/PW1 had two sibling issues, son Bipra Charan Behera/PW8 and daughter Ambika Behera,(deceased). Appellant Bibachha Digal, resident of village Dadikaju, P.S. Phulbani Sadar, District Kandhamal is the husband of Ambika, the deceased. According to the trotted story, appellant and deceased, who both were laborers, being infatuated in love towards each other had eloped and were in living relationships. No formal marriage according to the customary rites was solemnized in between them. Initially both of them resided in Dadikaju, village of the appellant, but subsequently to augment their income they came to Phulbani and started residing in a rented house. Sometimes thereafter, unfoundedly, believing the deceased to be a trollop, that the appellant used to physically assault her and create Gandogol. After staying in Phulbani Sadar for some time the appellant and the deceased returned to appellant's village Dadikaju where the deceased stayed for another four or five months and thereafter she came back to her parental village and started living with the informant/PW1. It seems that during this period the deceased had made an oral complaint before Rupashree Pratibeshi Mahila Samitee Narisangh, of which Namita Behera/PW3 was the President and Niroda Behera/PW9 was the Secretary, against the appellant for assaulting her and on that basis the Samiti had initiated action against the appellant by convening a meeting. Amidst the meeting the deceased had disclosed that the appellant had solemnized bigamous marriage with the acquitted accused Banita Digal, who is his second wife. Appellant had assured in the meeting and had promised to take the deceased back to his house and maintain her dignifiedly. In accordance with the decision of the Nari Sangh, informant father/PW1, accompanied by Ponia Naik/PW2 and his son Bipra/PW8 had taken the deceased to the appellant's house and had left her there. The prosecution evidence after this is somewhat garbled, but it is apparent that a fortnight after their return because to know the welfare of the daughter or because of some rumor aired that the deceased is missing from the house of the appellant, that PW1 has sent Ponia Naik/PW2 to inquire about the welfare of the deceased. PW2 when came to Dadikaju did not find the deceased and the appellant and she was informed that they had gone out since last eight or ten days. PW2 therefore returned and informed PW1 about missing of his daughter. On this, PWs 1, 2 & 8 came to Dadikaju where they could not locate the appellant and the daughter and on inquiry they were informed that the daughter-Ambika has been murdered by the appellant. The Ward Member of the said village took them to a place near a bridge where the informant spotted one Saaya, one Sweater lying besides one skull. Sensing that the daughter had been done to death that the informant got his FIR/Ext.1 slated down through one Madhusudan Behera/PW7, arraigning both, the appellant as well as second wife (acquitted accused Banita Digal) as perpetrators of the crime, covered a distance of 8 kms. and lodged his FIR at police Station Phulbani Sadar, on 27.11.2006 at about 9 A.M., which was registered as Crime No. 76/06, u/s 302, 201,34 I.P.C. mentioning date and time of occurrence as 13.11.2006 night.

(3.) Rajendranath Reddy/PW6, OIC Sadar Police Station, Phulbani, had registered the case by preparing formal FIR Ext.1/3 and he immediately set a foot investigation, during course of which I.O./PW6 examined the complainant and made a request to the Superintendent of Police, Kandhamal for deputing Scientific Team and Photographer. At 9:40 AM, PW6/I.O. came to the spot where at 10:10 AM he received the information regarding presence of the accused at Bahada Sahi. From Bahada Sahi bus stand both the accused were apprehended at 11 AM and were brought to the police station and their formal arrest was shown at 1.30 P.M. While in custody appellant made a confessional statement disclosing place of burial of the deceased. Relevant portion of such statement is Ext. 2/1. Appellant, through his disclosure statement, also led to the discovery of the shawl, which was used as the weapon of offence. Ext. 2/3 is the disclosure statement of the appellant. A spade and one shawl were got recovered by the appellant from his house in village Nedikaju vide seizure list Ext.3/1, containing accused signature as Ext. 3/3. Thereafter the accused led the I.O. and the witnesses to Kangeinala and had pointed out the place where the dead body of the deceased was buried. After digging out to some depth, the accused had brought out one saaya of red colour, one saree and one blouse which were seized vide seizure list Ext. 4/1. Same day I.O. visited the spot near the bridge in Kangeinala and a spot map was prepared along with I.O.'s observation vide Ext. 7. Search of the nearby place brought out skull, ribs and some other bones, scattered at the spot which were collected. Inquest was made in presence of the Executive Magistrate, which are Exts. 5/1, 6/1 and 8. Witnesses Banchhanidhi Digal, Lochan, Niranjan and Executive Magistrate, Chinmayee Konhar, Madhusudan Behera and Lankeswar Mallick were also examined and their statements were recorded. Same day at 1 PM Scientific Team arrived at the spot and conducted the physical examination of the same. Same day I.O./PW6 dispatched the collected bones to F.M. & T, Department of MKGC for examination and report. Following day other witnesses Ponia Naik and Bipra Charana Behera were examined, that both the accused were forwarded to the court. On the third day I.O. examined witnesses Bimba Digal and Laxmi Digal. F.M. & T, Department report was received by the I.O. on 10.02.2007. Thereafter Investigating Officer examined some other witnesses, seized the photograph of the deceased on production by PW1, the informant, through Ext.9. On 25.02.2007 witness Rajesh Behera was examined. I.O. made a request to SDJM, Phulbani for forwarding the seized articles and photograph to SFSL, Bhubaneswar for examination and report through forwarding report Ext.10. On 15.03.2007, the SDJM also forwarded a spade and seized garments of the deceased to the SFSL through forwarding report Ext. 11. Ext. 12 is the report of the Scientific Officer concerning the articles sent by the I.O. Ultimately charge-sheet was submitted against both the accused, i.e., present appellant as well as the acquitted accused Banita Digal.