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2015 DIGILAW 20 (ORI)

Penta Sabar v. State of Orissa

2015-01-12

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT Vinod Prasad, J. The sole appellant-Penta Sabar was prosecuted for committing uxoricide by murdering his second wife Gurubari Sabar, sister of the informant Sharma Sabar, on 24.12.2004 at 5 p.m., inside the bed room of his house situated in village Janiguda, under police circle Paralakhemundi, district Gajapati, by the Additional District and Sessions Judge, in Sessions Case No. 9/2005/Sessions Case No. 158/05(GDC) and was adjudged guilty of that crime under Section 302, IPC and resultantly was convicted of that crime and sentenced to imprisonment for life and to pay a fine of Rs.5000/-and in default to serve another six months RI vide impugned judgment and order dated 05.05.2006. Challenge in this appeal by the convicted accused appellant is to the aforesaid verdict. 2. The back ground incident, as is evident from the FIR Ext.1, materials collected during the investigation and the deposition of the witnesses during the trial, reveals that the deceased Guribari Sabar was the second wife of the appellant, a cultivator, resident of village Janiguda, P.S. Parlakhemundi, District Gajapati. Incidentally the appellant was also the second husband of the deceased whose first husband was one Kurei Sabar. Both, from Kurei Sabar as well as from the appellant, deceased was blessed with a son each both named as Jisaya. First Jisaya Sabar from the earlier husband Kurei Sabar and the deceased resided in the informant’s village Kotapeta under Serango Police Station, District Gajapati, where as the other son Jisaya from the appellant and the deceased resided in village Janiguda. After twenty years of their marriage, when their son was aged about six years, on the ill fated day, i.e., 24.12.2004, at 5 p.m. there was a quarrel between the appellant and the deceased in the witnessing of Santiamma Sabar, daughter-in-law of the appellant/deceased and it is alleged that the appellant with the help of his Lungi strangulated his wife Gurubari Sabar to death. Information regarding demise of the deceased was conveyed to her brother Sharma Sabar/PW.2 at his poultry by his agnatic elder brother Lakia Sabar/PW.4. Both the brothers then arrived at the scene of the incident saw the cadaver of the deceased covered with a blanket and a Lungi was tied around her neck. Both the brothers then laid the search for the appellant, who was located by them at village Kathalakaitha at the house of his elder brother but seeing them appellant fled away. Both the brothers then arrived at the scene of the incident saw the cadaver of the deceased covered with a blanket and a Lungi was tied around her neck. Both the brothers then laid the search for the appellant, who was located by them at village Kathalakaitha at the house of his elder brother but seeing them appellant fled away. The incident was narrated to the Sarpanch S.Balaraju/PW.7 of village Podami by the brother of the deceased Sharma Sabar and on his advice, Sharma Sabar/PW.2 got the FIR Ext.1 scribed through Jayadev Apata/PW.8 and then tramping to a distance of 11 Kms., informant/PW.2 got his FIR registered on 25.12.2004 at 1.30 p.m. at Parlakhemundi P.S. as Case No. 219 of 2004 under Section 302, IPC. The Inspector-in-Charge of Parlakhemundi P.S. registered the crime and instructed the investigation to S.I. Siba Prasad Biswal/PW.9, who immediately initiated the investigation, examined the informant, came to the spot, conducted inquest on the cadaver of the deceased, prepared inquest report Ext.5 and then dispatched the dead body for autopsy purposes. The appellant was arrested on the same day and since he complained of assault and injury, he was also sent for medical examination. Wearing apparels of the deceased were seized by preparing seizure memo whereas her ornaments were given under the zimanama to Jisaya Sabar. Other witnesses were interrogated by the I.O. and their statements were recorded including that of the scribe PW.8. Autopsy report was received and wrapping up the investigation, appellant was charge sheeted for murdering his wife under Section 302, IPC. Injury report respecting the accused is Ext.6. 3. Autopsy on the cadaver of the deceased was conducted on 26.12.2004 by Dr. Prasant Kumar Padhi/PW.3, who detected the following three injuries on the corpse of the deceased:- (1) Bruise 3”x2” on the right side of the scalp above eye lid. (2) Bruise 3”x2” on posterior aspect of occipital region. (3) Abrasion 2”x3” on left knee. Further examination of the cadaver revealed extra vessation of blood into subcutaneous tissue of neck and adjacent muscles. Carotid arteries internal coat were ruptured. The cornua of the higher bone and superior cornua of the thyroid cartilage were fractured. Larynx and trachea were congested and contain frothy mucous. Lungs were marked congested with presence of haemorrhagic patches. All internal visceras like lever, kidney, spleen, brain were darkly congested. Stomach was empty. Chambers of heart empty. Carotid arteries internal coat were ruptured. The cornua of the higher bone and superior cornua of the thyroid cartilage were fractured. Larynx and trachea were congested and contain frothy mucous. Lungs were marked congested with presence of haemorrhagic patches. All internal visceras like lever, kidney, spleen, brain were darkly congested. Stomach was empty. Chambers of heart empty. Injuries on the cadaver were opined to be ante mortem in nature and the cause of death was due to asphyxia consequent to strangulation, which was homicidal in nature. P.M. examination report of the deceased is Ext.3, and 36 to 48 hours had lapsed since she was murdered. On a query made by the I.O., doctor/PW.3 has further opined on 21.01. 2005, through his opinion Ext.4, that the ligature mark on the cadaver of the deceased was possible by the Lungi/M.O.-I, which was recovered from her corpse by the police. 4. Accused was summoned and in due course after observing necessary formalities his case was committed to the Court of Session, where it was registered as Sessions No.158/05(GDC) and subsequently re-numbered as Sessions No. 9/2005 on its transfer to the file of the learned Additional Sessions Judge, Parlakhemundi. Appellant was charged with offence under Section 302, IPC on 4.08.2005 by the learned trial judge/Additional Sessions Judge, Parlakhemundi and since he denied the same and claimed to be tried, he was prosecuted for that crime to establish his guilt. 5. Reliance was placed by the prosecution to prove the appellant’s guilt on nine witnesses. Magata Sabar/PW.1, Sharma Sabar/PW.2, Lakia Sabar/PW.4, Santiamma Sabar/PW.5, Buda Sabar/PW.6 are the fact witnesses whereas Dr. Prasant Kumar Padhi/PW.3, S.Balaraju/PW.7, Jayadev Apata/PW.8 who scribed the report and I.O.-Siba Prasad Biswal/PW.9 are the formal witnesses. No defence witness was examined by the accused nor was any documentary evidence led. FIR of the incident is Ext.1, seizure list in respect of Lungi of the appellant and command certificate is Ext.2, Autopsy report is Ext.3, opinion by the doctor respecting Lungi as a weapon to strangulate the deceased is Ext.4, inquest report of the deceased is Ext.5, injury requisition of the appellant is Ext.6 and custody/zimanama of the ornaments of the deceased is Ext.7 and the spot map of the incident place is Ext.8. 6. 6. Learned trial judge after summating and weighing through the oral and documentary evidences returned a verdict of appellant being guilty of the crime of murder and therefore convicted him under Section 302, IPC and sentenced him to life imprisonment with fine of Rs.5000/-(Rupees five thousand) and in default to serve six months additional R.I. through the impugned judgment and order giving rise to the instant appeal at the behest of the convicted accused-appellant. 7. In this back ground, we have heard Mrs. Tapaswani Sinha for the appellant and Sk.Zafarullha, learned Additional Standing Counsel for the State and have scanned the entire trial court record and the evidences. 8. Unleashing the criticism of the impugned judgment, learned counsel for the appellant raises many contentions including that none of the facts have been established conclusively and nobody is an eye witness to the incident. The appellant has been falsely implicated and that there are discrepancies galore on the testimony of the witnesses and consequently the impugned conviction and sentence are indefencible. Learned Additional Standing Counsel refuting the contentions argues to the contrary and urges that but for the appellant, nobody else could have committed murder of the wife and the chain of events brought on record conclusively establishes his guilt beyond any shadow of doubt. Near and dear relatives of the appellant have appeared as witnesses against him who had no reason to concoct a story against the head of the family as the real perpetrator of the crime and therefore, the appeal is devoid of merit and deserves to be dismissed. 9. After giving our thoughtful considerations over the rival contentions and after scrutinizing the evidence, we are of the opinion that so far as conviction of the appellant is concerned, the same seems to be infallible, as but for him nobody else could have committed the crime. The reasons for our conclusion are that the incident had occurred in the wintery evening on 24.12.2004 at 5 p.m. and normally at that time, in villages, the people are inside their houses/hutments. The presence of the appellant and the deceased inside their house therefore is very natural. Further we find that Magata Sanar/PW.1 in no uncertain terms has stated that he had witnessed this appellant strangulating the deceased by wrapping the Lungi around her neck and pulling it from both the ends. The presence of the appellant and the deceased inside their house therefore is very natural. Further we find that Magata Sanar/PW.1 in no uncertain terms has stated that he had witnessed this appellant strangulating the deceased by wrapping the Lungi around her neck and pulling it from both the ends. At that time Santiamma Sabar/PW.5, daughter-in-law of the appellant and deceased was also present and was dissuading the accused from assaulting her mother-in-law, which forbidding did not yield any result. It is further statement of PW.1 that after the deceased died, accused sprinted away into the Jungle. House of PW.1 is at a distance of 20-24 feet away from the house of the deceased and the appellant and therefore his presence at the place of the incident is not something which is unnatural. Giving topographical descriptions, PW.1 had deposed that the house of the appellant consisted of one kitchen and a bed rooms and since the front door was locked, he had peeped through the ventilated portion of the bari side door and was able to witness the deceased lying on the floor while the appellant was strangulating her facing towards PW.1. It has been further stated that the accused had seen PW.1 peeping through the door. This incident was conveyed to Lakia Sabar/PW.4 by PW.1, who was brother of the deceased. During cross-examination the details have got elicited by the defence itself and therefore there remains no manner of doubt that the deceased was done to death inside the bed room by the appellant. 10. The testimony of PW.1 has been corroborated in all material aspects by the informant Sharma Sabar/PW.2, who was conveyed about the murder of his sister by his brother Lakia Sabar/PW.4. Arriving at the scene of the incident, informant himself had seen the dead body of his sister covered with a blanket and the Lungi was tied around her neck. They had searched for the appellant and then at the advice of the Sarpanch S.Balaraju/PW.7, the informant/PW.2 had dictated the FIR to scribe Jayadev Apata/PW.8 and then had lodged it at the police station. Informant is also a witness of the seizure of the Lungi vide seizure memo Ext.2. He was at Parlakhemundi on the date of the incident and from his cross-examination we do not find anything worthwhile damaging the prosecution story in its main substratum. Informant is also a witness of the seizure of the Lungi vide seizure memo Ext.2. He was at Parlakhemundi on the date of the incident and from his cross-examination we do not find anything worthwhile damaging the prosecution story in its main substratum. His cross-examination further reveals that the appellant was at the house of his elder brother and seeing the informant he had escaped from the house. 11. Coming to another fact witness-Lakia Sabar/PW.4, he has also corroborated his predecessor fact witness and has deposed that after coming to know about the demise of the deceased from Magata Sabar, he had gone to the house of the appellant and had seen his dead sister, thereafter this witness had informed the incident to his brother Sharma Sabar, the informant/PW.2, who had lodged the FIR regarding the incident. Virtually the defence had abdicated its responsibility in seriously challenging the testimony of this witness Lakia Sabar and therefore, there remains little doubt that the deceased lost her life inside her house in the bed room after being strangulated with the help of a Lungi belonging to the appellant. Santiamma Sabar/PW.5, who is the daughter-in-law of the appellant as well as of the deceased, in no uncertain terms had narrated that she had witnessed the accused dragging the deceased wrapping his Lungi around her neck. On the date of the incident she was a girl of sixteen years of age and her statement during the trial was recorded one year after the incident and at that time she was seventeen years of age. From her cross-examination only an omission has been pointed out that she had not stated before the police that the appellant had quarreled with the deceased at 1p.m. and had threatened her. To us, such an omission is of no value as P.W.5 had no reason to lie against her own father-in-law to ruin her marital life. No suggestion has been given to her that she had any animus against the appellant and therefore, her straight forward evidence inspire confidence and we treat her to be a truthful and creditworthy witness, whose narration about the actual strangulation cannot be brushed aside. Another important feature is that Buda Sabar/PW.6, who is the brother of the appellant, also appeared as a witness against him and testified that the deceased had murder his wife. Another important feature is that Buda Sabar/PW.6, who is the brother of the appellant, also appeared as a witness against him and testified that the deceased had murder his wife. Buda Sabar, like PW.5, also had no reason to implicate the appellant as the sole perpetrator of the crime and nothing has been elicited from him, which may create a doubt in the prosecution story or he is being a witness against the appellant. Thus, we have no hesitation in concluding that so far as guilt of the appellant is concerned, the same has been cemented convincingly without any other premise or hypothesis and therefore, conviction part of the appellant is untenable and we hereby concur with the opinion of the learned trial judge that the guilt of the appellant has been established beyond all shadow of reasonable doubt. 12. This leads us to the question as to whether the appellant can be made responsible for committing the murder of his wife or in the facts and circumstances his crime will be one of culpable homicide not amounting to murder punishable under Section 304, Part(1) of the IPC. In this respect we find that the evidence of daughter-in-law/PW.5 is that the incident between the appellant and the deceased was preceded by a quarrel. Narration in the case diary and the statement of PW.5 informs us that the quarrel took place over giving of meal. Prosecution has not been fair enough to the court and in fact it has failed to bring the real statement before the court that the incident started because of giving of meal. Further, the testimony of PW.5 in the court also indicates that there was some altercation between the deceased and the appellant in course of which the appellant had assaulted the deceased. In view of the aforesaid, we are in great doubt that in fact the appellant intended to cause death of the deceased or had an intention to cause such bodily injury as in all probability could have resulted in her death. Case of the appellant, in our opinion does not fall in any of the categories enumerated in Section 300, IPC, so as to clothe the guilt of murder around the appellant’s neck. Case of the appellant, in our opinion does not fall in any of the categories enumerated in Section 300, IPC, so as to clothe the guilt of murder around the appellant’s neck. Bruises on the right side of the scalp above the eye lid, on posterior aspect of occipital region and abrasion on the left knee, the three physical injuries noted by the doctor are also not indicative of the fact that the culprit (appellant) had the requisite intention to commit murder of the deceased. In our view the incident had started all of a sudden at the spur of the moment because of some altercation between them. There is no evidence on record that prior to this incident, there was a quarrel of such magnitude between the appellant and the deceased, which could have prompted the appellant to commit her murder after twenty years of their marriage and after having a son aged about six years. What is perceptible is that all of a sudden in a fight between wife and the husband, out of sheer outrage, the appellant-husband acted hastily in wrapping up his Lungi around her neck and pressing it , which resulted in deceased’s demise. Here we would like to add that the means of strangulating the deceased was also an unconventional Lungi, it is neither string nor any other blunt object and therefore it seems that when the incident started, appellant had no intention to commit murder of the deceased. Our analysis as above refrains us from convicting the appellant for a charge of murder and persuade us to conclude that the appellant can be held to be guilty only for an offence of culpable homicide not amounting to murder punishable under section 304, Part-1, IPC and we hereby hold as such. 13. Coming to the sentence part of it, the appellant was arrested on 25.12.2004 and therefore has already undergone 10 years of RI. In our opinion the substantive sentence undergone by the appellant is sufficient to meet the ends of justice. 14. Concluding the decision, we hereby allow the appeal in part. Conviction of the appellant for charge under Section 302, IPC and sentence of life imprisonment with fine of Rs.5000/-, are scored out and instead, appellant is convicted under Section 304, Part-I, IPC and for that crime he is sentenced to the period of imprisonment already under gone by him. 14. Concluding the decision, we hereby allow the appeal in part. Conviction of the appellant for charge under Section 302, IPC and sentence of life imprisonment with fine of Rs.5000/-, are scored out and instead, appellant is convicted under Section 304, Part-I, IPC and for that crime he is sentenced to the period of imprisonment already under gone by him. The appellant was allowed bail by this Court on 31.10.2011 and therefore, he need not surrender. His personal bail bonds are discharged and he is set at liberty. 15. The appeal is allowed in part as above. 16. Let copy of the judgment be certified to the learned trial judge for its information.