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2012 DIGILAW 13 (ORI)

BHUBAN MAJHI v. STATE OF ORISSA

2012-01-05

B.K.PATEL, L.MOHAPATRA

body2012
JUDGMENT : B.K. Patel, J. - This appeal is directed against the judgment and order dated 10.1.2003 passed by learned Additional Sessions Judge, Nuapada in Sessions Case No.20/8 of 2002 convicting and sentencing the appellant to undergo imprisonment for life under Section 302 of the Indian Penal Code (for short 'the I.P.C.') for having committed murder of deceased Pana Bai. 2. Appellant is deceased's husband. P.W.5 is appellant's cousin brother and P.W.9 is appellant's brother. P.W.2 is P.W.9's wife. P.W.3 is P.W.5's wife. P.W.6 is appellant's mother's brother. 3. Prosecution case is that at about 11.30 A.M. on 26.9.2001 the appellant dealt successive blows on the deceased by means of axe M.O.V causing fatal injuries on her head and neck. Hearing alarm raised by the deceased P.W.2 rushed to the spot and found that the appellant was running away with an axe in his hand and the deceased was lying with severe bleeding injuries. Being called by P.W.2, P.W.3 also arrived there. While attempt was made to administer water to the deceased she succumbed to injuries. After the incident P.W.5 also arrived at the spot. Having seen the deceased lying at the spot and heard regarding the occurrence from P.W.2, he went to the school premises of the occurrence village where a meeting in connection with D.P.E.P. Programme was going on. On being informed regarding the occurrence by P.W.5, many villagers including P.Ws.1, 6 and 7 came to the spot. On the basis of oral report of informant P.W.1, P.W.16 the S.I. of Nuapada P.S. prepared F.I.R. Ext.1, registered the case and took up investigation. On completion of investigation, charge-sheet under Section 302 of the I.P.C. was submitted against the appellant. 4. Appellant took the plea of complete denial. 5. In order to substantiate the charge, prosecution examined sixteen witnesses. P.W.1 the informant as well as P.Ws.4, 5, 6, 7, 8 and 9 are post-occurrence witnesses. Of them P.Ws.7 and 8 are the witnesses who apprehended the appellant and produced him before the police on 30.9.2001. P.Ws.2 and 3 arrived at the scene of occurrence soon after the occurrence and saw the appellant running away with the axe. P.W.10 is a doctor who medically examined the appellant. P.W.11 also is a doctor who conducted post-mortem examination over the dead body of the deceased. P.Ws.12, 13 and 14 are police constables who assisted in investigation. P.Ws.15 and 16 are investigating officers. P.W.10 is a doctor who medically examined the appellant. P.W.11 also is a doctor who conducted post-mortem examination over the dead body of the deceased. P.Ws.12, 13 and 14 are police constables who assisted in investigation. P.Ws.15 and 16 are investigating officers. Prosecution also relied upon documents marked Exts.1 to 14 and material objects M.Os.I to IX. No defence evidence was adduced. On an appraisal of evidence on record the trial court held the prosecution to have proved the charge against the appellant on the basis of circumstantial evidence. 6. In assailing the impugned judgment it is submitted by the learned counsel for the appellant that there is no eye-witness to the occurrence and the trial court has relied mainly upon the evidence of P.Ws.2 and 3. It is contended that the trial court should not have relied upon the evidence of P.Ws.2 and 3 to conclude that they saw the appellant running away from the spot immediately after the occurrence in view of infirmities in their statements. It is vehemently contended that no human blood having been detected on the axe M.O.V upon chemical examination, circumstance of seizure of M.O.V does not incriminate the appellant. It is argued that prosecution has failed to establish the links in the chain of circumstance unerringly leading to the conclusion that the appellant was the author of homicidal death of the deceased in view of absence of evidence of motive on the part of the appellant to committed the offence. 7. Placing reliance on the evidence of P.Ws.2 and 3 and incriminating circumstances available in the evidence of other witnesses learned counsel appearing for the State supports the impugned judgment. 8. We have carefully examined the evidence of all the sixteen witnesses. Admittedly, none of the witnesses deposed to have witnessed assault on the deceased by the appellant. In that sense, there is no eye-witness to the occurrence. 8. We have carefully examined the evidence of all the sixteen witnesses. Admittedly, none of the witnesses deposed to have witnessed assault on the deceased by the appellant. In that sense, there is no eye-witness to the occurrence. However, prosecution relied upon the following circumstances to establish the charge against the appellant: (i) appellant was seen running away from the spot with a blood stained axe immediately after the occurrence; (ii)appellant absconded from his house and village till 30.9.2001 when he was apprehended with the axe M.O.V in his possession; (iii) appellant was found to have sustained injuries which he disclosed to have sustained in course of occurrence; (iv)axe M.O.V was found to be stained with blood; and (v) death of deceased was homicidal in nature due to fatal injuries which could be possible by axe M.O.V. 9. P.W.2 is appellant's brother's wife. She deposed in her evidence that at the time of occurrence when she was cooking in her house, she heard the noise like 'AE MA AE BUA'. She came and found that the deceased was having severe bleeding injuries and blood was coming out from her head. She also found that the appellant was going away from the house where the deceased was lying injured with his axe M.O.V which was stained with blood. Seeing the condition of the deceased, she called P.W.3 to the spot. Both of them took the deceased from the verandah to her house and gave her water. After taking one or two spoon of water the deceased died. Thereafter, P.W.5 and many other villagers reached at the spot. P.W.2 narrated the incident to P.W.5 and others. Evidence of P.W.2 has not been discredited in any manner in course of her cross-examination. Informant P.W.1 testified that on the date of occurrence a meeting was going on in the school premises where he alongwith others including P.W.6 was present. P.W.5 came and informed Bhubaneswar Duria that the appellant had killed his wife the deceased. Then said Bhubaneswar and P.W.5 called P.W.1 to a distance and intimated him that the appellant had killed the deceased Pana Bai by an axe. Thereafter, P.Ws.1 and 6 went to the spot and found that the deceased had bleeding injuries on her head and she was lying dead on the floor of the verandah of her house. Thereafter, many other villagers also arrived at the spot. Thereafter, P.Ws.1 and 6 went to the spot and found that the deceased had bleeding injuries on her head and she was lying dead on the floor of the verandah of her house. Thereafter, many other villagers also arrived at the spot. P.W.2 informed them that the appellant went away from the spot with a blood stained axe by which he had assaulted the deceased and narrated regarding the occurrence. P.W.1 alongwith other villagers went to the police station and lodged F.I.R. Evidence of P.W.1 is materially corroborated by contents of F.I.R. Ext.1. Thus, evidence of P.W.1, which suffers from no infirmity, corroborates the evidence of P.W.2. Evidence of P.W.2 is also corroborated by P.W.3. P.W.3 testified that at the time of occurrence she was present in her house. P.W.2 called her from the house of the appellant by shouting and hearing her call she came to the spot and found that the appellant was running away from the spot having an axe with his hand. P.W.3 came and saw in front of the house of the appellant that the deceased having bleeding injury on her head and neck lying on the village path. She alongwith P.W.2 removed the deceased to her house. Water was given to the deceased but she died. P.W.2 also informed her that the appellant had assaulted his wife by an axe and fled away from the spot. In course of her cross-examination P.W.3 stated that while coming to the house of the appellant she did not see anybody on the way. Learned counsel for the appellant harps on this statement to urge that evidence of P.W.3 to have seen the appellant running away from the spot cannot be accepted. However, statement of P.W.3 to have not seen anybody on the way simply means that none was present on the way between her house and the spot. Her evidence to the effect that she saw the appellant running away from the spot having an axe in his hand has not been discredited in course of cross-examination in any manner. Other post-occurrence witnesses P.Ws.5, 6, 7 and 9 also testified to have been informed by P.W.2 that she saw the appellant running away with an axe in his hand from the spot. In view of the above, it is amply proved that soon after the occurrence the appellant ran away from the spot holding an axe. 10. Other post-occurrence witnesses P.Ws.5, 6, 7 and 9 also testified to have been informed by P.W.2 that she saw the appellant running away with an axe in his hand from the spot. In view of the above, it is amply proved that soon after the occurrence the appellant ran away from the spot holding an axe. 10. It is in the evidence of P.Ws.7 and 8 that an attempt was made to search and find out the appellant after the occurrence, but he could not be found. P.W.7 testified that on 30.9.2001 he alongwith others could find the appellant in the house of his brother-in-law in village Chandoli. Appellant had kept the axe M.O.V with him. They brought the appellant and the axe and produced before the police at Nuapada P.S. Police seized axe M.O.V under seizure list Ext.4. P.W.8 who is also a signatory to seizure list Ext.4 corroborates P.W.7 in this regard. Thus, it is also established that the appellant absconded from his village till he was apprehended with the axe M.O.V in his possession in village Chandoli on 30.9.2001. 11. It appears from the chemical examination report Ext.13 that blood was detected on axe M.O.V. Appellant appears to have not explained regarding the presence of blood on the axe M.O.V when his attention was drawn by the trial court to the chemical examination report. 12. P.W.10 medically examined the appellant on 30.9.2001. He found swelling over his right trochanter and three to four linear scratches on the back of left thigh. P.W.10 testified that in course of medical examination the appellant complained that he received injuries out of push given by the deceased and consequent dashing against a wall. Evidence of P.W.10 has not been assailed in any manner. Also, appellant has not explained regarding the injury on him in course of his examination under Section 313 of the Cr.P.C. 13. P.W.11 deposed that in course of post-mortem examination he found three incised wounds on the dead body of the deceased-two over the occipital region and one over the back of the neck. Injuries were homicidal in nature and cause of death of deceased was due to haemorrhage and shock following injuries on large vessels and brain. Upon examination of weapon of offence P.W.11 opined that injuries found on the deceased could be caused by the axe M.O.V. 14. Injuries were homicidal in nature and cause of death of deceased was due to haemorrhage and shock following injuries on large vessels and brain. Upon examination of weapon of offence P.W.11 opined that injuries found on the deceased could be caused by the axe M.O.V. 14. Thus, cogent evidence has been adduced in support of all the five circumstances relied upon by the prosecution. Evidence of two material witnesses P.Ws.2 and 3 is as good as the evidence of the eye-witness inasmuch as the appellant was found running away holding the axe M.O.V immediately after the occurrence. There being overwhelming circumstantial evidence implicating the appellant with the commission of murder of the deceased, absence of evidence of motive on the part of the appellant in committing the offence is not material. No doubt, motive constitutes an additional circumstance to establish commission of the offence. But where clinching circumstances are established by cogent evidence absence of evidence of motive is not fatal to the prosecution case. In the present case, the proved circumstances as indicated above leads to the only conclusion that it was the appellant who committed murder of the deceased by assaulting her with axe M.O.V which caused fatal injuries. There is no infirmity in the impugned judgment and the appeal is liable to be dismissed. 15. Accordingly, the appeal is dismissed.