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2016 DIGILAW 432 (ORI)

Ratan Jani v. State of Orissa

2016-06-20

S.K.SAHOO, SANJU PANDA

body2016
JUDGMENT S.K. SAHOO, J. - The appellant Ratan Jani faced trial in the Court of learned Adhoc Additional Sessions Judge, Jeypore in Criminal Trial No. 57 of 2002 for offences punishable under Sections 498-A and 302 of the Indian Penal Code for subjecting his wife Sombari Jani (hereafter ‘the deceased’) to cruelty and committing her murder on 8.2.2000 in village Dhoudapadar under Sadar Police station, Koraput in the district of Koraput. The Learned Trial Court vide impugned judgment and order dated 15.11.2004 though acquitted the appellant of the charge under Section 498-A of the India Penal Code but found him guilty under Section 302 of the Indian Penal Code and accordingly sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5000/- and in default of payment of fine, to undergo further R.I. for six months. 2. The prosecution cse, as per the First Information Report lodged by the father of the deceased namely Gopi Jani on 8.2.2001 before the Officer in charge, Sadar Police Station, Koraput is that the deceased was given in marriage with the appellant since five years prior to the date of occurrence and the couple were blessed with two sons, out of which the elder one namely Surendra Jani was aged about four years and the younger one namely Udani Jani was aged about ten months at the time of occurrence. The appellant was residing with his family just two houses apart from the house of the informant. The appellant was torturing the deceased frequently and creating disturbance in the family. On number of occasions, the appellant was advised by the informant and the gentlemen of the village not to torture the deceased. In the year of occurrence during Makar Festival, the appellant created disturbance and told the deceased not to keep her and accordingly drove her out of the house for which the deceased along with her two sons came to her father’s place and stayed there for five days. The appellant came there and on giving assurance not to torture the deceased further, took her back along with the children. Every day, the mother of the deceased namely Lachhmi Jani (P.W.6) used to come to the house of the deceased in the morning hours to wake her up. The appellant came there and on giving assurance not to torture the deceased further, took her back along with the children. Every day, the mother of the deceased namely Lachhmi Jani (P.W.6) used to come to the house of the deceased in the morning hours to wake her up. On 8.2.2001 at about 7.00 a.m. as usual P.W.6 came to the house of the deceased where she was told by the deceased remaining inside that the appellant was not allowing her to come out of the house and that he has kept all her clothes. The appellant showed knife to his mother-in-law (P.W.6) through the gap between the door frames and threatened her to kill. The mother of the deceased returned back and told the informant about the incident who in turn intimated the younger brother of the appellant namely Jagu Jani. It is the further prosecution case as per the F.I.R. that Jagu Jani called the appellant but the appellant also showed knife to him through the gap of the door frames for which Jagu Jani returned back out of fear and informed the informant. The informant then approached the co-villager Budu Barik and disclosed about the incident who advised him to report the matter at Kolab Out Post and accordingly the informant orally reported the matter at the Out Post. When the informant returned back to the village, he was informed by the co-villagers Budu Barik, Jagu Jani, Rama Jani and others that the appellant was telling from inside the house that he had killed the deceased. The appellant called Trinath Jani and handed over the elder son to him but did not leave the younger son. The villagers made a hole in the wall of the house of the appellant and found that the appellant was holding a knife and an iron gagada and the deceased was lying dead with bleeding injuries inside the house and the younger son was crying. P.W. 7 Bijaya Kumar Swain, Sub-Inspector of Police attached to Upper Kolab Out Post arrived at the spot on 8.2.2001 at about 3.00 p.m. where the informant orally reported the matter before him which was reduced to writing and treated as First Information Report. The written report was sent to Sadar Police Station, Koraput through a Grama Rakshi for registration. P.W. 7 Bijaya Kumar Swain, Sub-Inspector of Police attached to Upper Kolab Out Post arrived at the spot on 8.2.2001 at about 3.00 p.m. where the informant orally reported the matter before him which was reduced to writing and treated as First Information Report. The written report was sent to Sadar Police Station, Koraput through a Grama Rakshi for registration. On the basis of such First Information Report, Koraput Sadar P.S. Case No. 8 of 2001 was registered under Sections 498-A and 302 of the Indian Penal Code. P.W. 7 saw through the hole made on the wall of the house of the appellant that the appellant was standing inside holding one knife and one gagad in his hands. P.W. 7 sent message to the Sadar Police Station, Koraput to send some force and accordingly the police force arrived at 5.30 p.m. and guarded the house. At about 8.30 p.m., the appellant came outside through the thatched roof by holding the weapons with him. While the appellant was trying to escape from the spot, he was apprehended and the weapons stained with blood were seized from his possession by P.W. 7 under seizure list Ext. 6. P.W. 7 sent appellant to District Headquarters Hospital, Koraput for medical examination. He also entered inside the house of the appellant and found the dead body lying in a pool of blood. On the next day, P.W. 7 visited the spot again in the morning and prepared the spot map Ext. 8. He held inquest over the dead body in presence of the witnesses and prepared the inquest report Ext. 5. He also seized blood stained earth and sample earth from the spot under seizure list Ext. 9. The dead body was sent for post mortem examination. P.W. 2 who was working as Medical Officer in the District Headquarters Hospital, Koraput along with another Medical Officer (P.W.3) conducted post mortem examination over the dead body of the deceased on 9.2.2001 and opined the cause of death was due to stab injury and hemorrhagic shock and the death was opined to be homicidal. The Investigating Officer (P.W.7) arrested the appellant and seized his polyester half shirt under seizure list Ext. 1. The Constable produced the wearing apparels of the deceased after post mortem examination which was seized under seizure list Ext. 11. The appellant was forwarded to Court on 10.02.2001. The Investigating Officer (P.W.7) arrested the appellant and seized his polyester half shirt under seizure list Ext. 1. The Constable produced the wearing apparels of the deceased after post mortem examination which was seized under seizure list Ext. 11. The appellant was forwarded to Court on 10.02.2001. The I.O. received the post mortem report Ext. 2 as well as the injury report of the appellant. The I.O. also made a query to the Medical Officer regarding possibility of injury on the deceased by the seized weapons knife and Iron gagada. The Medical Officer (P.W.3) examined both the weapons and opined that the injuries mentioned in the post mortem report could have been possible by such type of weapons. The Investigating Officer made a prayer to the learned S.D.J.M., Koraput to send the seized articles including the weapons for examination by R.F.S.L., Berhampur. The I.O. also received the chemical examination report Ext. 12 and after completion of investigation, he submitted charge sheet against the appellant on 8.6.2001 under Sections 498-A and 302 of the Indian Penal Code. 3.After observing due committal formalities, the case of the appellant was committed to the Court of Session for trial where the learned Adhoc Addl. Session Judge, Jeypore framed charges against the appellant under Sections 498-A and 302 of the Indian Penal Code on 27.02.2003 and since the appellant denied the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and to establish his guilt. 4.In order to prove its case, the prosecution examined seven witnesses. P.W. 1 Narayan Kamar was the Constable attached to Koraput Sadar Police Station who stated about the seizure of one shirt of the appellant by the I.O. under seizure list Ext. 1. P.W. 2 Dr. Nabaghana Choudhury was the Medical Officer attached to District Headquarters Hospital, Koraput who conducted post mortem examination over the dead body of the deceased and proved his report Ext. 2. P.W.3 Dr. Debendranath Das was another Medical Officer attached to District Headquarters Hospital,Koraput who not only conducted post mortem examination along with P.W. 2 but also gave opinion to the query made by the Investigating Officer regarding possibility of injuries on the deceased by ;the weapons sent to him. P.W. 4 Budu Barik stated about the occurrences as well as the conduct of the appellant at the spot. P.W. 4 Budu Barik stated about the occurrences as well as the conduct of the appellant at the spot. He proved his signature in the First Information Report. He is also a witness to the inquest over the dead body and seizure of the weapons of offence. P.W. 5 Tilla Khilla is a co-villager of the appellant who also stated about the conduct of the appellant at the spot on the date of occurrence. P.W. 6 Lachhmi Jani was the mother of the deceased who also narrated about the conduct of the appellant at the spot. P.W. 7 Bijay Kumar-Swain was the Sub-Inspector of Police attached to Upper Kolab Out Post and he is the Investigating Officer. The Prosecution exhibited as many as twelve documents. Ext. 1 is the seizure list, Ext. 2 is the post mortem report, Ext. 3 is the opinion of the Medical Officer, Ext. 4 is the F.I.R., Ext. 5 is the inquest report, Ext. 6 is the seizure list, Ext. 7 is the requisition, Ext. 8 is the spot map, Ext. 9 is the seizure list, Ext. 10 is the dead body challan, Ext. 11 is the seizure list and Ext. 12 is the chemical examination report. The prosecution also proved two materials objects. M.O.I. is the knife and M.O. II is the Gagada. 5.The defence plea was one of denial and it was pleaded that the appellant was not present in his house on the date of occurrence and the deceased was present in the house and when the appellant returned back home at about 7.00 a.m., he found the deceased was lying dead. It was further pleaded by the appellant that he was not aware about the author of murder of the deceased and that the co-villagers had falsely entangled him in the crime basing on suspicion. No witness was examined on behalf of the defence. No document was also proved on behalf of the appellant. 6.The learned Trial Court on analyzing the evidence on record came to hold that from the oral evidence of the Medical Officer and P.W. 4, the post mortem report and inquest report, it can be concluded without any hesitation that the death of the deceased was homicidal in nature. No document was also proved on behalf of the appellant. 6.The learned Trial Court on analyzing the evidence on record came to hold that from the oral evidence of the Medical Officer and P.W. 4, the post mortem report and inquest report, it can be concluded without any hesitation that the death of the deceased was homicidal in nature. It was further held that there is no direct evidence available on record to link the appellant with the alleged crime and the prosecution case is entirely based on the circumstantial evidence. The learned Trial Court further held that from the evidence of P.W. 4, it is crystal clear that the appellant was quarreling with his wife frequently prior to the occurrence and the deceased was leaving her matrimonial home for such dispute and due to intervention of the gentries, the matter was being subsided. It was further held that from the evidence, it is crystal clear that the appellant had some dispute with the deceased on the date of occurrence which can be considered as mens rea or motive behind the crime. It was further held that from the oral evidence, it is clear that the appellant was present in the house along with the deceased when she was alive and subsequently the deceased was found dead inside the house and the appellant was seen there holding the weapons M.O.I and M.O. II and the appellant had not given any explanation as to what happened to the deceased and how she was killed in a brutal manner. The learned Trial Court further observed that the shirt of the appellant on chemical examination was found to have contained human blood of Group-A and the appellant has not explained under what circumstances, his wearing apparel contained human blood. It was further held that the cumulative effect of all the circumstances complete the chain without any missing link that the appellant was the author of the crime. The learned Trial Court also turned down the plea of insanity taken by the appellant and held the appellant responsible for causing the death of the deceased. The learned Trial Court further held that the prosecution has failed to establish the charge under Section 498-A of the Indian Penal Code against the appellant and accordingly acquitted him of such charge, however found the appellant guilty under Section 302 of the Indian Penal Code. The learned Trial Court further held that the prosecution has failed to establish the charge under Section 498-A of the Indian Penal Code against the appellant and accordingly acquitted him of such charge, however found the appellant guilty under Section 302 of the Indian Penal Code. 7.Learned counsel for the appellant Mr. Maheswar Satpathy contended that since the case is based on circumstantial evidence and the prosecution has failed to establish any motive behind the commission of the crime, benefit of doubt should be extended in favour of the appellant in as much as the chain of circumstances is not so complete so as to unerringly point towards the guilt of the appellant. Mr. Dillip Kumar Mishra, learned Additional Government Advocate on the other hand contended that the presence of the appellant in the spot house along with the deceased at the time of occurrence, the conduct of the appellant prior to the occurrence as well as after the occurrence, recovery of weapons of offence as well as seizure of blood stained polyester half shirt from the possession of the appellant are clinching piece of evidence and the manner in which the uxoricide was committed inside a room confining the deceased and assaulting her brutally are sufficient to hold the appellant guilty of the offence as was rightly held by the learned Trial Court and therefore, the appeal should be dismissed. 8.We have thoughtfully considered the rival contentions raised at the Bar vis-à-vis the evidence on record. Adverting over the nature and cause of death of the deceased Sombari Jani, we find that in order to establish such aspects, apart from the inquest report (Ext. 5), the prosecution has examined doctors (P.Ws. 8.We have thoughtfully considered the rival contentions raised at the Bar vis-à-vis the evidence on record. Adverting over the nature and cause of death of the deceased Sombari Jani, we find that in order to establish such aspects, apart from the inquest report (Ext. 5), the prosecution has examined doctors (P.Ws. 2 and 3) who conducted autopsy over the dead body on 9.2.2001 at District Headquarters Hospital, Koraput and found the following injuries:- (i) Stab wound over fifth and sixth intercostals space of right side chest, interim would measuring 1 ½’’ x 1’’ x thoracic cavity Involving liter right lobe, incised injury of size 1 ½’’ x 1" x whole thickness of liver and exit wound of size 1" x ½’’ over left side of back 1 ½’’ over left side of back 1 ½’’ lateral to vertebral column; (ii) incised wound 4’’ x 3’’ x bone deep size over right shoulder cutting of head of right humerus; (iii) incised wound 1 ½’’ x 1" x ½’’ over left wrist joint and another incised wound of size 1" x 1" x ½” present 1" apart from the above wound over the same left wrist joint; (iv) incised wound 5’’ x 1’’ x 1’’ over left cheek extending from zygomatic process upto chain; (v) four numbers of bruises 1" x ¼’’ of size each present over right and left chest; (vi) incised wound 1’’ x 1/2’’ x ½’’ over right side of back at thoracic lumbar region; (vii) two numbers of incised wounds 1’’ x ¼’’ x ¼’’ of size over lumbar region. P.W. 2 opined the cause of death of the deceased was due to stab injury on the chest and hemorrhagic shock and the death was homicidal and injury no. 1 was opined to be grave and can cause death in ordinary course of nature and injury no. 2 was opined to be dangerous. The post mortem report was proved as Ext. 2. The learned Trial Court has discussed about the nature of death of the deceased with reference to the evidence of doctors P.W. 2 and P.W. 3 and post-mortem report Ext. 2 and came to hold that the death of the deceased was homicidal in nature. The learned counsel for the appellant did not challenge the findings in the post-mortem report regarding the opinion of the doctor that the deceased met with a homicidal death. 2 and came to hold that the death of the deceased was homicidal in nature. The learned counsel for the appellant did not challenge the findings in the post-mortem report regarding the opinion of the doctor that the deceased met with a homicidal death. Thus in view of the inquest report Ext. 5, post-mortem report Ext. 2 and the evidence of the autopsy doctors P.W. 2 and P.W. 3, we are of the view that the prosecution has successfully established that the deceased met with a homicidal death on account of stab injury on the chest and hemorrhagic shock. 9.There is no dispute that the entire prosecution case hinges on circumstantial evidence. Keeping in view the law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda – Vrs. – State of Maharashtra reported in AIR 1984 SC 1622 , Jaharlal Das –Vrs. –State of Orissa reported in AIR 1991 SC 1388 , Budhuram – Vrs. State of Chattisgarh reported in (2013) 1 Supreme Court Cases (Criminal) 727 and Kanhaiya Lal –Vrs. State of Rajasthan reported in (2014) 2 Supreme Court Cases (Criminal)413 for appreciating a case based on circumstantial evidence, we have to see that the circumstances on which the prosecution relies have been proved beyond all reasonable doubt and such circumstances give rise to an inference which is inconsistent with any other hypothesis except the guilt of the appellant and the completed chain of evidence is of such a nature so as to rule out a reasonable likelihood of the innocence of the appellant. 10.The prosecution has relied upon the following circumstances:- (i) the appellant, the deceased and their children were found inside the spot house; (ii) the appellant confined the deceased and did not allow her to come out of the house; (iii) the appellant remaining inside the spot house threatened to kill P.W. 6 and other villagers showing weapons in case they try to enter into the house; (iv) the deceased was found dead wit number of incised wounds on different parts of her body and stab would on her chest which were opined to be ante mortem in nature; (v) the appellant was found holding a knife and gagada inside the house while the deceased was lying dead with bleeding injuries; (vi) the appellant was caught hold of with the weapons when he came out of the house through the thatched roof of his house; (vii) the shirt of the appellant which was seized from his possession was found to have contained human blood. 11.P.W. 4 Gudu Barik stated that they guarded the house of the appellant by calling the villagers and dug a bit hole in the house of the appellant and saw the deceased lying dead inside the house and the appellant was holding a gagads and a knife. He further stated regarding the threat given by the appellant to the villagers remaining inside the house. He further stated about the conduct of the appellant in coming outside of his house thorough the thatched roof. In the cross-examination, P.W. 4 has stated that the house of the appellant was bounded with fence and there was a path to his house and the house of the appellant consisted of two rooms and there were two doors, one at the front and another at the back side of the house. P.W. 4 specifically denied the suggestion given by the defence that the appellant was insane since his childhood. Nothing has been brought out in the cross-examination of P.W. 4 to demolish his testimony. In the cross-examination, P.W. 4 has stated that the house of the appellant was bounded with fence and there was a path to his house and the house of the appellant consisted of two rooms and there were two doors, one at the front and another at the back side of the house. In the cross-examination, P.W. 4 has stated that the house of the appellant was bounded with fence and there was a path to his house and the house of the appellant consisted of two rooms and there were two doors, one at the front and another at the back side of the house. P.W. 4 specifically denied the suggestion given by the defence that the appellant was insane since his childhood. Nothing has been brought out in the cross-examination of P.W. 4 to demolish his testimony. P.W.5 Tilla Khilla has stated that they made a hole on the backside wall of the house of the appellant and saw the appellant, the deceased and one child inside the house and the appellant was holding a gagada and a knife and the deceased was lying nearby with bleeding injury. He further stated that in the evening at about 8.00 p.m., the appellant came outside through the thatched roof of his house and he was caught hold off by the police. In the cross-examination, P.W. 5 has stated that the appellant had some mental problem five to six years back and subsequently he became all right and he was working with his wife in the field and maintaining themselves. He further stated that neither the police nor the villagers entered inside the house by breaking the door and there was no window in the hose and one hole was made on the wall at a height of one cubit from the ground. Nothing has been elicited in the cross-examination of P.W. 5 to discard his testimony. P.W. 6 who is the mother of the deceased stated about the deceased telling her remaining inside the house that the appellant was not allowing her to come outside. She further stated about the threat given to her by the appellant showing knife through the gap of the door frames and the appellant telling subsequently from inside the house that he had stabbed the deceased. She further stated that when the villagers dug a hole on the backside wall of the house of the appellant, she saw through the hole that her daughter (deceased) was lying with bleeding injury and the appellant was holding a knife and a gagada. She further stated that when the villagers dug a hole on the backside wall of the house of the appellant, she saw through the hole that her daughter (deceased) was lying with bleeding injury and the appellant was holding a knife and a gagada. In the cross-examination, P.W. 6 HAS DENIED TO the suggestion given by the defence that the appellant was insane at the time of occurrence though she has stated that the appellant had some mental problem for some period long before the occurrence. Nothing further has been elicited in her cross-examination to discard her testimony. P.W. 7 has also stated that some villagers made a hole in the backside wall of the house of the appellant and he saw through that hole that the appellant was standing inside his house holding one knife and one gagada. He further stated that at about 8.30 p.m., the appellant came outside through the roof by holding the weapons with him and he was apprehended and the weapons were seized. In the cross-examination, P.W. 7 has stated that the hole in the wall of the house of the appellant was already made prior to his arrival. Thus the evidence of all these witnesses clearly indicates about the presence of the appellant inside the spot house from morning till evening hours. The deceased was alive in the morning and present inside the house with the appellant and talked with her mother (P.W.6) remaining inside as she was not allowed by the appellant to come outside. The deceased met a homicidal death inside the house and her dead body was also recovered from the house lying with bleeding injuries. The appellant was seen holding weapons i.e. gagada and knife inside the house and he was threatening others not to dare to enter inside the house. The appellant was telling from inside the house that he had stabbed the deceased which was heard by P.W.6. The doctor (P.W. 3) gage opinion that the injuries sustained by the deceased could have been caused by the weapons which were seized from the possession of the appellant. The appellant was caught hold of by the police when he came out through the roof of his thatched house. The shirt of the appellant which was seized from his possession was found to have contained human blood of Group-‘A’. The appellant was caught hold of by the police when he came out through the roof of his thatched house. The shirt of the appellant which was seized from his possession was found to have contained human blood of Group-‘A’. Thus even in absence of any direct evidence, the circumstantial evidence which have been proved by the prosecution are so clinching and trustworthy that it forms a complete chain and the incriminating circumstances unmistakably and ;inevitably lead to an irresistible conclusion regarding the guilt of the appellant and it rules out any possibility of his innocence. 12.The provisions of Section 106 of the Evidence Act are unambiguous and categoric in laying down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. When the accused fails to throw any light upon facts which are especially within his knowledge and which could not support any theory or hypothesis compatibly with his innocence, the Court can consider his failure to adduce any explanation as additional link which completes the chain. When the husband (appellant) and wife (deceased) were together in their house along with their small children and the deceased was found dead with a number of ante mortem injuries and the death was opined to be homicidal in nature, it is the appellant who was to explain as to under what circumstances the deceased died as he is the best person who knows in what manner and under what circumstances, the deceased met her end and if he failed to discharge his burden of proof and failed to give a cogent, probable and satisfactory explanation, that itself would provide an additional link in the chain of circumstances. The incriminating links of facts were in the personal and exclusive knowledge of the appellant and he has failed to explain under what circumstances the death of his wife had occurred. The plea taken by the appellant that he was not present in the house when the offence took place is not at all acceptable in view of the overwhelming evidence regarding his presence in the spot house. The plea taken by the appellant that he was not present in the house when the offence took place is not at all acceptable in view of the overwhelming evidence regarding his presence in the spot house. Keeping in view the overall circumstances available on record and failure of the appellant to give any explanation, we are of the view that it is none else but the appellant who is the author of the crime. Even though the prosecution has failed to establish any specific motive behind the commission of crime by the appellant and being conscious of the position of law that in case of circumstantial evidence, the motive assumes significance, we have scrutinized each piece of evidence closely in order to ensure that suspicion, omission or conjectures do not take the place of proof. 13.After careful analysis of the evidence available on record, we are of the view that the prosecution has successfully established the case against the appellant beyond all reasonable doubt. The conclusion arrived at by the learned Trial Court in convicting the appellant and the reasonings assigned for arriving at such conclusion are acceptable and convincing and there is no infirmity or illegality in the same. Accordingly, the impugned judgment and order of conviction of the appellant under Section 302 of the Indian Penal Code and sentence of imprisonment for life and for payment of fine of Rs. 5000/- and in default of payment of fine, to undergo further R.I. for six months as was imposed by the learned Trial Court is hereby upheld. Lower Court Records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action. In the result, the Jail Criminal Appeal stands dismissed. Appeal dismissed.