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2009 DIGILAW 548 (ORI)

JOGESWAR GIRI v. STATE OF ORISSA

2009-07-23

A.S.NAIDU, S.C.PARIJA

body2009
JUDGMENT : S.C. Parija, J. - This appeal is directed against the judgment dated 03.02.2004 passed by the Addl. Sessions Judge, Rairangpur, Mayurbhanj, in C.T. 16/03 (S.T. No. 66/2003), holding the accused-Appellant guilty of offence u/s 302 IPC and convicting him thereunder. 2. The case of the prosecution, in brief, is that, the accused Jogeswar Giri had married the deceased Sarathi Giri about 20 years back and was blessed with some children. About 6 years prior to the occurrence, the accused married Kurubali Giri (lady accused) and after that there used to be frequent quarrel between the accused Jogeswar Giri and the deceased and the accused used to assault her. On 17.05.2002 at about 11 A.M., the informant Biseswar Giri, who is the brother of the deceased, got information through Manoranjan Giri (P.W.5) that the deceased had died in the house of the accused persons in the night of 16.5.2002. He suspected that both the accused persons might have killed the deceased and lodged written report at Gorumahisahi Police Station, which was registered as an F.I.R. and investigation was undertaken. During investigation, it revealed that both the accused persons were ill treating the deceased Sarathi Giri and ultimately in the night of 16.5.2002, they killed her by throttling. Accordingly charge sheet was filed against the accused persons for offences under Sections 498A/302/34 IPC. 3. The accused persons admitted that during life time of the deceased Sarathi, they had married but they denied that any cruelty was shown to the deceased or causing her death. The accused persons took the plea that they cannot say how deceased Sarathi died. 4. To substantiate the charge, the prosecution examined 11 witnesses. P.W.1 is the elder brother of accused Jogeswar Giri. P.Ws.2 and 3 are co-villagers of the accused. P.W.4 is the informant. P.Ws.5 and 6 are witnesses to whom the accused Jogeswar Giri had reported the death of Sarathi Giri, while returning from the hospital. P.W.7 is the doctor who had conducted the post-mortem examination of the dead body. P.W.8 is the doctor of Gorumahisahi P.H.C., to whom the deceased had been taken in the early hours of 17.05.2002 for treatment. P.W.9 is the Constable and P. Ws.10 and 11 are the Investigating Officers. 5. P.W.7 is the doctor who had conducted the post-mortem examination of the dead body. P.W.8 is the doctor of Gorumahisahi P.H.C., to whom the deceased had been taken in the early hours of 17.05.2002 for treatment. P.W.9 is the Constable and P. Ws.10 and 11 are the Investigating Officers. 5. The testimony of P.W.4, who is the brother of deceased Sarathi revealed that the accused Jogeswar had married the deceased Sarathi about 25 years back and they were staying together and were blessed with one daughter and two sons. During the life time of the deceased Sarathi, the accused Jogeswar again married Kurubali Giri (lady accused) and thereafter quarreled ensued between the deceased Sarathi and accused Jogeswar. According to P.W.4, whenever the deceased Sarathi came to his house, she used to disclose about the rift with her husband. On getting information from his causin P.W.5, he came to the house of the accused persons and saw the dead body of Sarathi and lodged written report at the Police Station. 6. P.W.4 was declared hostile by the prosecution and during cross examination, he admitted that the deceased Sarathi Giri had come to his house from the house of her husband and stayed for about one and half years and after she went back to her husband's house, she was blessed with one son. 7. The evidence of P. Ws.1, 2 and 3 reveals that during the life time of the deceased Sarathi Giri, the accused Jogeswar Giri married Kurubali Giri (lady accused). The elder brother of accused Jogeswar Giri was staying at village Jamuban at a distance of 2 K. Ms. from village Kudar where the accused Jogeswar and the deceased Sarathi were residing. According to P.W.1, on hearing the news of death of Sarathi, he came to the house of Jogeswar and found that the dead body lying on a cot. On enquiry, the accused Jodgeswar did not assign any reason of death of the accused. According to P.W.1, the deceased had good relationship with the accused persons. P.W.2, whose house is adjacent to the house of accused persons, had stated that about two years back, at about 9 A.M. in the morning, he heard crying of the accused persons and when he went to their house, he saw the dead body of the deceased. P.Ws.2 and 3 were both declared hostile. 8. P.W.2, whose house is adjacent to the house of accused persons, had stated that about two years back, at about 9 A.M. in the morning, he heard crying of the accused persons and when he went to their house, he saw the dead body of the deceased. P.Ws.2 and 3 were both declared hostile. 8. The testimony of P. Ws.5 and 6 revealed that the accused Jogeswar while returning from the hospital with the dead body of Sarathi, had informed them about the death of Sarathi Giri. P.W.5 had conveyed this news to P.W.4. According to P.W.5, he had visiting terms with the accused persons, as the accused Jogeswar is his brother-in-law. P.W.8 is the doctor attached to Gorumahisahi P.H.C., who stated in his evidence that on 17.5.200-2, at about 4.30 A.M., some persons brought a lady patient to him, who was lying in the vehicle. He examined her pulse but could not find her pulse and advised them to take her to casualty of the P.H.C. When he went to the casualty from his residence, he did not find the patient. P.W.8 was however not examined by the police during investigation. 9. Learned Sessions Judge, on analysis of the testimony of P. Ws.5, 6 and 8, came to find that a reasonable inference could be drawn that the accused Jogeswar who had brought the deceased for medical examination to the Doctor (P.W.8) at 4.30 A.M. on 17.5.2002 and P.W.8 could not detect her pulse and advised him to take her casualty, the accused Jogeswar returned back with the dead body and on his return journey he met P. Ws.5 and 6 and informed them about the death of Sarathi Giri. 10. P.W.7 is the Medical Officer of S.D. Hospital, Rairangpur, who conducted the post-mortem examination on the dead body of the deceased Sarathi on 18.5.2002. He found during examination of the dead body that it was bleeding from nose and the face, neck, upper half of the chest and both upper limbs were discoloured and partially the skin was peeled off subcutaneous deep to the discoloured skin. There was extrevasation of blood, fiscal discharge and vaginal discharge. He detected bruise in the neck muscles and it was conjested. There was extrevasation of blood, fiscal discharge and vaginal discharge. He detected bruise in the neck muscles and it was conjested. There was fracture of greater come of thyroid bone, submucabal haemorrage bleeding of the larynx and according to him all the injuries were ante-mortem in nature and caused by violent squizzing of the neck. P.W.7 opined that the cause of death was due to throttling and it was homicidal in nature. P.W.7 has not been cross examined by the defence. 11. The evidence of the I.O. (P.W.11) revealed that on 17.5.2002 at 11 P.M., he received written report from P.W.4 and registered the case u/s 302 IPC. On the following day, he went to the house of the deceased and conducted the inquest and sent the dead body for post mortem examination and seized the wearing apparels of the accused Jogeswar and the deceased Sarathi and examined witnesses. P.W.11 further stated that Tapaswani Giri, the daughter of the deceased was in the house on the night of the occurrence and he had examined her but not the other children of the deceased. 12. Admittedly there are no eye-witnesses to the occurrence. Learned Sessions Judge had to proceed on the circumstantial evidence in order to find out as to whether the allegation against the accused persons stand established. He has taken into consideration the testimony of doctor (P.W.7), which establishes that the death of the deceased Sarathi was homicidal in nature, due to throttling. The injuries mentioned in the Post Mortem Report (Ext.3) revealed that the deceased might have been assaulted and throttled. The evidence of P. Ws.1 to 4 revealed that during the life time of the deceased, the accused Jogeswar married Kurubali Giri (lady accused) and they were staying in one house and the dead body of the deceased was found from that house. The accused Jogeswar in his statement u/s 313 Code of Criminal Procedure had denied the presence of the dead body in his house on 16/17.5.2002. This statement of the accused is negativated by the testimony of P.Ws.1 to 4 and the evidence of the I.O. (P.W.11), who had conducted the inquest of the dead body in the house of the accused Jogeswar. 13. This statement of the accused is negativated by the testimony of P.Ws.1 to 4 and the evidence of the I.O. (P.W.11), who had conducted the inquest of the dead body in the house of the accused Jogeswar. 13. Learned Sessions Judge on the basis of the evidence on record, including the accused statement, came to find that the accused persons have taken the false plea that the dead body was not found in their house. As the accused persons were present in the same house, from where the dead body was recovered, they should have furnished some explanation as to how the deceased Sarathi died. But no such explanation has been furnished by the accused persons. On the contrary, during examination of the accused persons u/s 313 Code of Criminal Procedure, they have taken the stand that they cannot say how the deceased Sarathi Giri died which is a strong circumstance against the accused persons. Learned Sessions Judge further found that the evidence of P. Ws.5 and 8 clearly revealed that the accused Jogeswar had taken the deceased in a vehicle to Gorumahisahi P.H.C. and met the doctor (P.W.7) at 4.30 A.M. on 17.5.2002 and when the doctor could not detect the pulse and advised the accused to take her to the casualty of the P.H.C. Instead the deceased was taken back by the accused, who on his return journey had disclosed the fact of her death before P. Ws.5 and 6. 14. The case of the prosecution was that the deceased Sarathi died in the night of 16/17.5.2002, which finds corroboration from the doctor (P.W.7). From the evidence of witnesses, it clearly revealed that the accused Jogeswar had taken the deceased for medical examination to the doctor (P.W.8) and therefore he was aware of the death of the deceased but has taken a false plea in the court that neither the dead body was found in his house nor he knows as to how the deceased Sarathi died. Learned Sessions Judge analyzing the circumstances came to find that when the accused and the deceased were in the same house on the night of the occurrence and her homicidal death was caused in the same night and the accused had failed to furnish any explanation as to how she died, the cumulative effect of such circumstances leaves no doubt that the accused was the author of the crime. 15. 15. Coming to the motive behind the offence, learned Sessions Judge found from the evidence of P.W.4, who is the brother of the deceased, that after his second marriage, the accused Jogeswar was frequently quarrelling with deceased Sarathi, which fact has also been mentioned in the F.I.R. (Ext.2). Accordingly, learned Sessions Judge declined to accept the plea of the defence that the accused persons were pulling on well with the deceased and they are existed good relationship between them and therefore there was no motive to commit the crime. 16. On analyzing the evidence on record and the circumstantial evidence, learned Sessions Judge came to find that the prosecution has established that the accused Jogeswar Giri caused the death of the deceased Sarathi Giri by throttling on the night of 16/17.5.2002 and therefore a reasonable inference could be drawn that the accused Jogeswar had committed the act with the intention of causing her death. Learned Sessions Judge however acquitted the lady accused (Kurubali Giri) of all the charges and proceeded to hold the accused Jogeswar Giri guilty of offence u/s 302 IPC and convicted him thereunder. 17. It is well settled principles of criminal jurisprudence that in absence of any eye witnesses to the crime, circumstantial evidence can be the basis for bringing home the charge and convicting an accused. The only requirement is that the circumstances must be fully established, without leaving any gap in its chain and should lead to the only conclusion, i.e., the guilt of the accused. In the present case, admittedly there are no eye-witnesses to the occurrence and on an analysis of the evidence on record, more particularly the evidence of P.Ws.4, 7, 8 and 11, the conclusion is irresistible that the accused Jogeswar was responsible for the death of deceased Sarathi and had committed the act with the intention of causing her death. The inference with regard to the guilt of the accused Jogeswar is strengthened from the fact that on the early morning of 17.5.2002, he had gone to Gorumahisahi P.H.C. and contacted the doctor (P.W.8), who could not find the pulse of deceased Sarathi and advised him to take the patient to the casualty. The inference with regard to the guilt of the accused Jogeswar is strengthened from the fact that on the early morning of 17.5.2002, he had gone to Gorumahisahi P.H.C. and contacted the doctor (P.W.8), who could not find the pulse of deceased Sarathi and advised him to take the patient to the casualty. Instead of taking the patient to the casualty, the accused Jogeswar brought him back to his house and on the way intimated P.Ws.5 and 6 regarding the death of Sarathi and the dead body was subsequently recovered from his house. In addition to this, the plea taken by accused Jogeswar in his statement recorded in Court u/s 313 Code of Criminal Procedure, denying the presence of dead body in his house and that he not aware of the reason of the death of Sarathi, is a strong circumstance which goes against the accused. We are therefore of the view that there are strong and convincing circumstances, which establishes the guilt of the accused. 18. In view of the above, we do not find any apparent error or illegality in the impugned judgment so as to warrant any interference by this Court in the present appeal. The criminal appeal is accordingly dismissed. Final Result : Dismissed