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2016 DIGILAW 84 (ORI)

Sapani Munda v. State of Orissa

2016-01-29

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. It is a case of mariticide. The appellant Sapani Munda faced trial in the Court of learned Adhoc Addl. Sessions Judge (F.T.C.), Champua in S.T. Case No.35/74 of 2011 for offence punishable under section 302 of the Indian Penal Code for committing murder of her husband Ramray Munda (hereafter ‘the deceased’) on 16.10.2010 in the night at Dorani Jungle, Pidha Pokhari situated under Bamabari Police Station in the district of Keonjhar. The appellant was acquitted of the charge under section 302 of the Indian Penal Code. However, she was found to be guilty of the offence punishable under section 304 Part-II of the Indian Penal Code and accordingly the Trial Court convicted her of such offence and sentenced her to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1000/-, in default, to undergo simple imprisonment for one month. 2. The prosecution case, as per the First Information Report lodged by Raya Munda (P.W.1), who is the son of the deceased and step son of the appellant before the Inspector-in-charge, Bamabari Police Station on 17.10.2010 is that on 16.10.2010 during evening hours the appellant and the deceased had been to Dorani Jungle, Pidhapokhari for guarding their vegetable field. On 17.10.2010 at about 11.00 a.m., the informant came to know that his parents had a tug of war in the last night and they assaulted each other by means of Tangia, for which the deceased had sustained serious injuries on his head and the appellant had also sustained serious injury on her head. Hearing such message, the informant proceeded to the spot and after verification; he came to the police station and lodged the First Information Report. 3. The Inspector-in-charge of Bamabari Police Station on receipt of such written report from P.W.1, registered Bamabari P.S. Case No. 131 dated 17.10.2010 under section 302 of the Indian Penal Code and directed Sri Onam Lakra (P.W.14), Sub-Inspector of Police to investigate the matter. During course of investigation, P.W.14 examined the informant, recorded the statements of the witnesses, seized one blood stained Budia (a small axe), blood stained earth and sample earth from the spot and prepared a seizure list Ext.5. During course of investigation, P.W.14 examined the informant, recorded the statements of the witnesses, seized one blood stained Budia (a small axe), blood stained earth and sample earth from the spot and prepared a seizure list Ext.5. Since the darkness had already set in, the police constables were deputed to guard the dead body and on the next day of the occurrence, the inquest was conducted over the dead body and inquest report Ext.2 was prepared. The appellant was also found having injuries on her person and she was sent to Tisco Hospital, Joda for treatment. P.W.14 visited the spot and prepared the spot map Ext.7. The dead body was sent to Government Hospital, Barbil for post mortem examination where P.W.15 Dr. Smt. Manashi Manaswani Das conducted post mortem examination and submitted her report under Ext.9. The wearing apparels of the deceased were seized by the Investigating Officer on being produced by the constable under seizure list Ext.3. On 6.11.2010 the Investigating Officer got information from the doctor of Tisco Hospital that the appellant was fit for discharge and accordingly the appellant was arrested after intimating her grounds of arrest. Her blood sample and nail clippings were collected by the doctor at Central Hospital, Joda which were seized under seizure list Ext.6. The wearing apparels of the appellant were also seized under seizure list Ext.4 and then the appellant was forwarded to the Court of learned J.M.F.C., Barbil on 7.11.2010. The Investigating Officer received the post mortem examination report from the autopsy surgeon which revealed that the cause of death of the deceased was homicidal in nature. On 22.12.2010 P.W.14 handed over the charge of the investigation to the Inspector-in-charge of Bamabari Police station and later on Sub-Inspector of Police Soumyachit Mishra on completion of investigation submitted charge sheet against the appellant under section 302 of the Indian Penal Code on 4.3.2011. 4. After submission of charge-sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 302 of Indian Penal Code on 30.4.2011 and since the appellant refuted that charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute her and establish her guilt. 5. The prosecution in order to establish its case examined fifteen witnesses. 5. The prosecution in order to establish its case examined fifteen witnesses. P.W.1 Raya Munda is the son of the deceased who is also the informant of the case. He stated that both the appellant and deceased had been to guard the vegetable field where they picked up quarrel between themselves. He further stated that on hearing about the death news of the deceased, he proceeded to the spot and found his father lying dead and the appellant in an injured condition and one iron Kati and one Tangia (iron) were lying near the dead body. He is also a witness to the inquest over the dead body and proved inquest report Ext.2. P.W.2 Smt. Tulasi Munda is the daughter of the appellant and she stated that the deceased was lying in a pool of blood and the appellant was also having injuries on her person and accordingly she informed the informant (P.W.1). P.W.3 Sugriba Sethy was OASI attached to Bamabari police Station who stated that on 18.10.2010, constable Srikanta Parida produced wearing apparels of the deceased after post mortem examination and command certificate before the Investigating Officer which were seized under seizure list Ext.3. P.W.4 Abhimanyu Jena was the constable attached Bamabari police Station who is also a witness to the seizure of wearing apparels of the deceased and command certficate under seizure list Ext.3. P.W.5 Pravakar Mahanta was the Havildar attached to Bamabari police station and he stated about the seizure of saree of the appellant stained with blood under seizure list Ext.4. P.W.6 Srikanta Parida was the OASI attached to Bamabari police station and he produced the wearing apparels of the deceased and his command certificate before the Investigating Officer after post mortem examination which was seized under seizure list Ext.3. He further stated about the seizure of blood stained saree of the appellant under seizure list Ext.4. P.W.7 Benudhar Barik pleaded his ignorance about the occurrence. P.W.8 Chandra Barik stated that the appellant and the deceased were residing in their field and on the next day of the occurrence, the dead body of the deceased was found. He further stated about the seizure of blood stained saree of the appellant under seizure list Ext.4. P.W.7 Benudhar Barik pleaded his ignorance about the occurrence. P.W.8 Chandra Barik stated that the appellant and the deceased were residing in their field and on the next day of the occurrence, the dead body of the deceased was found. P.W.9 Raisingh Munda is the elder brother of the deceased and he stated that the appellant and the deceased were residing in a temporarily built shed situated in Dorani forest to guard their vegetable field and on hearing the death news of the deceased, he proceeded to the spot and found the deceased was lying dead and a budia (small axe) was lying at the spot stained with blood. He further stated that the appellant was also found injured. He further stated about the seizure of the Tangia stained with blood, blood stained earth and sample earth under seizure list Ext.5. P.W.10 Kalia Munda stated that the appellant and the deceased were residing together and when the deceased was found lying dead with injuries on the head, the appellant was found there and a budia (small axe) was lying by the side of the deadbody. P.W.11 Tapa Munda stated that the appellant and the deceased were staying together in Dorani forest and guarding the vegetable field and after hearing the death news of the deceased, he proceeded to the spot and found the deceased lying dead and a Tangia was lying by the side of the dead body and he saw blood stains on the earth and also on the Tangia. He further stated about the seizure of tangia, blood stained earth and sample earth from the spot under seizure list Ext.5. P.W.12 Jugal Kishore Barik was the constable attached to Bamabari police station who stated about the seizure of nail clippings of the appellant under seizure list Ext.6. P.W.13 Pradeep Kumar Barik was the constable attached to Bamabari Police Station who stated about the seizure of one vial containing blood sample and another vial containing nail clippings of the appellant under seizure list Ext.6. P.W.14 Sri Onam Lakra was the Sub-Inspector of Police attached to Bamabari police Station who investigated the case from 17.10.2010 to 22.12.2010 and thereafter handed over the charge of investigation to the Inspector-in-charge, Bamabari Police Station. P.W.15 Dr. P.W.14 Sri Onam Lakra was the Sub-Inspector of Police attached to Bamabari police Station who investigated the case from 17.10.2010 to 22.12.2010 and thereafter handed over the charge of investigation to the Inspector-in-charge, Bamabari Police Station. P.W.15 Dr. Smt. Manashi Manaswani Das who was attached to Government Hospital, Barbil conducted the post mortem examination over the dead body and she proved her report Ext.9. The prosecution exhibited nine documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Exts. 3, 4, 5 and 6 are seizure lists, Ext.7 is the spot map, Ext.8 is the dead body challan and Ext.9 is the post mortem report. 6. The defence plea of the appellant was one of denial and it was pleaded that out of suspicion, she has been falsely entangled in the case. 7. The learned trial Court, on overall evaluation of the evidence on record, has been pleased to hold that the prosecution was able to bring home the charge against the appellant beyond all reasonable doubt. However taking into account the injuries sustained by the appellant and the plea of scuffle between the appellant and the deceased, the learned trial Court held that though the appellant is entitled to benefit of right of private defence but since she had exceeded right of private defence, she was held liable under section 304 Part-II of the Indian Penal Code. 8. Adverting over the nature and cause of death of the deceased, I find that apart from the inquest report Ext.2, the prosecution has also relied upon the evidence of P.W.15 Dr. Smt. Manashi Manaswani Das who conducted post mortem examination over the cadaver of the deceased on 18.10.2010 on police requisition at Government Hospital, Barbil. During post mortem examination, she found skin slippage over right toes and all five toes burnt. She further found splitting on right ear into two halves, split laceration behind the right ear, incised wound below the left eye, right foot was burnt with slippage and charring of skin over all toes of right side and rupture of liver, spleen and abdomen cavity was filled with blood. She opined the cause of death due to shock and hemorrhage on account of rupture of internal organ. The learned amicus curiae for the appellant has not challenged the evidence of P.W.15 or the findings in the post mortem report Ext. 9. She opined the cause of death due to shock and hemorrhage on account of rupture of internal organ. The learned amicus curiae for the appellant has not challenged the evidence of P.W.15 or the findings in the post mortem report Ext. 9. The learned Trial Court has also discussed about the nature of death of the deceased with reference to the evidence of doctor P.W.15 and post mortem report Ext.9 and came to hold that it can be unerringly held that the cause of death of the deceased was homicidal in nature. After perusing the evidence on record, the postmortem examination report Ext.9 and the evidence of P.W.15 Dr. Smt. Manashi Manaswani Das, I am of the view that there is no infirmity in the findings of learned Trial Court regarding the nature of death of the deceased to be homicidal in nature and accordingly I concur with such findings. 9. Miss Nisha Agrawal, learned counsel was engaged as amicus curiae on behalf of the appellant. After going through the paper book supplied in Court, she argued that the conviction of the appellant under section 304 Part-II of the Indian Penal Code is not sustainable in the eye of law in as much as the learned Trial Court was not justified in holding that the appellant had exceeded her right of private defence by causing death of the deceased. She emphasized that the appellant had also sustained injuries on her vital parts for which she had to be hospitalized for about three weeks and therefore in absence of any direct evidence, it would be difficult to presume what had actually happened at the spot and who was the aggressor. She contended that it is a fit case for giving benefit of doubt to the appellant. Mrs. Saswata Patnaik, learned Additional Government Advocate on the other hand contended that when during the night of occurrence, both the appellant and the deceased were together in the temporary shed guarding their vegetable field situated inside Dorani Jungle and there was none else except those two and on the next day morning, the deceased was found lying dead with bleeding injuries and the appellant was also found with injuries, it is the appellant who was supposed to explain under what circumstances the deceased died. The appellant has not offered any explanation in her statement recorded under section 313 Cr.P.C. Having failed to discharge her burden of proof which was especially within her knowledge in view of the provision under section 106 of the Evidence Act, it can be held that it is none else but the appellant who was in the company of the deceased is the author of the crime. The learned counsel for the State further contended that even though the appellant had sustained some injuries but those injuries are not of such a nature so as to reasonably cause any apprehension of death or grievous hurt which would otherwise be the consequence of the assault on her and therefore in view of the restrictions under section 100 of the Indian Penal Code, the right of private defence of the body does not extend to causing death of the deceased. 10. I have thoughtfully considered the rival contentions raised at the Bar vis-à-vis the evidence on record. 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 Vs. State of Maharashtra reported in AIR 1984 SC 1622 , Jaharlal Das Vs. State of Orissa reported in AIR 1991 SC 1388 , Budhuram Vs. State of Chhattisgarh reported in (2013) 1 Supreme Court Cases (Criminal) 727 and Kanhaiya Lal Vs. State of Rajasthan reported in (2014) 2 Supreme Court Cases (Criminal) 413 for appreciating a case based on circumstantial evidence, I find that there are following circumstances against the appellant:- (i) The appellant and the deceased were together in the temporary shed in the night of occurrence; (ii) The deceased was found dead in the next morning with injuries and the weapon of offence having blood stains was found lying there; (iii) The appellant was present there with injuries on her person; (iv) The appellant has failed to give any explanation as to under what circumstances the deceased died and she herself sustained injuries. 11. Coming to the materials available on record, it is very clear that the prosecution has failed to establish any motive on the part of the appellant to commit the crime. P.W.1 has stated that on the date of occurrence, he had noticed his father (deceased) was in good term with his step mother (appellant). 11. Coming to the materials available on record, it is very clear that the prosecution has failed to establish any motive on the part of the appellant to commit the crime. P.W.1 has stated that on the date of occurrence, he had noticed his father (deceased) was in good term with his step mother (appellant). P.W.2 has stated that her mother (appellant) and her paternal uncle (deceased) were pulling on well till the death of the later. P.W.8 has stated that to his knowledge, the appellant and the deceased were pulling on well during life time of the deceased. P.W.9 has stated that to his knowledge the appellant and her husband (deceased) were having good relationship. P.W.11 has stated that to his knowledge the appellant and the deceased were leading a normal life. Thus there is no clear and cogent evidence with regard to the motive for the offence and therefore this Court is put on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. 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 compatible with his innocence, the Court can consider his failure to adduce any explanation as additional link which completes the chain. However, section 106 of the Evidence Act does not shift the burden of proof in a criminal trial, which is always upon the prosecution. However, section 106 of the Evidence Act does not shift the burden of proof in a criminal trial, which is always upon the prosecution. When the husband (deceased) and wife (appellant) were together in the temporary shed in the night in the jungle and the deceased was found dead on the next day morning with injuries and the death was homicidal in nature, it is the appellant who was to explain as to under what circumstances the deceased died as she was the best person who knew in what manner and under what circumstances, the deceased met his end and if she failed to discharge her 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 she has failed to explain under what circumstances the death of her husband had occurred. Keeping in view the overall circumstances available on record and failure of the appellant to give any explanation, I am of the view that it is none else but the appellant who is the author of the crime. The facts established by the prosecution are consistent with the hypothesis of guilt of the appellant and the chain of evidence is complete and the incriminating circumstances unmistakably and inevitably lead to the irresistible conclusion that it is the appellant who has assaulted the deceased to death. 13. In the present case, the plea of right of private defence of person or property has not been taken by the appellant in her statement recorded under section 313 Cr.P.C. and she has simply stated to the questions put by the learned Trial Court that the witnesses are stating falsehood. To question no.43 in the accused statement, as to whether she had got anything to say about the case, the appellant replied that she did not know anything as to how the appellant died. Law is well settled that even if the accused has not taken any specific plea of exercise of right of private defence but if the materials available on record suggest such exercise, the Court can consider the same and give benefit to the accused in appropriate case. Law is well settled that even if the accused has not taken any specific plea of exercise of right of private defence but if the materials available on record suggest such exercise, the Court can consider the same and give benefit to the accused in appropriate case. Without even setting of a specific plea of private defence, the accused can even rely on the circumstances and admissions made by the witnesses in support of such plea. In the present case when there are no eye witnesses to the occurrence but the clinching circumstances available on record indicate that the appellant and the deceased were at the spot guarding the vegetable field in the night of occurrence and on the next day, the deceased was found dead with injuries and the weapon of offence i.e. a Budia (small axe) was lying at the spot and the appellant was also present there with injuries and the appellant has not offered any explanation as to how the deceased died and how she received injuries, whether from these circumstances, it would be proper to come to a conclusion that the appellant in exercise of right of private defence of person had killed the deceased. Law is well settled that burden of establishing the plea of self defence is not as onerous on the accused as it is required by the prosecution to prove its case beyond all reasonable doubt. The accused can discharge his burden by showing preponderance of probabilities in favour of his plea either by laying basis for that plea in the cross-examination of the prosecution witnesses or making such statement under section 313 Cr.P.C. or by adducing defence evidence and even if such a plea is not specifically taken, the Court cannot deprive the accused of its benefit if from the materials available on record, the inference about the exercise of such right is fathomed out. In case of Dhanwar Singh Vs. State of M.P. reported in (2008) 16 Supreme Court Cases 657, it is held as follows:- “60. To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. In case of Dhanwar Singh Vs. State of M.P. reported in (2008) 16 Supreme Court Cases 657, it is held as follows:- “60. To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. Necessity must be present, real or apparent.” Exception No.2 to section 300 of the Indian Penal Code states that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. To succeed in the plea of private defence, the accused has to prove that he exercised right of private defence in his favour and this right extended to the extent of causing death. Section 96 to 106 of the Indian Penal Code deals with right of private defence and it also indicates as to how much right of private defence can be exercised and under what circumstances. It is of course true that such exercise of right of private defence cannot be weighed in golden scales in as much as person should not be expected to modulate his defence step by step. In the present case, as it appears P.W.1 has stated that he marked head injuries on the appellant who was present at the spot. P.W.2 has stated that the appellant had sustained injuries on her person and her face had swollen. P.W.5 has stated about the seizure of blood stained saree of the appellant. P.W.9 also stated that the appellant was present at the spot and she was found with injuries on her person. P.W.14, the I.O. has stated that the appellant was having injuries on her person for which she was sent to Tisco Hospital for treatment on police requisition. P.W.5 has stated about the seizure of blood stained saree of the appellant. P.W.9 also stated that the appellant was present at the spot and she was found with injuries on her person. P.W.14, the I.O. has stated that the appellant was having injuries on her person for which she was sent to Tisco Hospital for treatment on police requisition. Though the appellant was admitted in the hospital on the very next day of occurrence but she was there in the hospital till 6.11.2010 when the I.O. received information from the doctor of Tisco Hospital that the wound sustained by the appellant had healed and she was fit for discharge. The injury report of Tisco Hospital which is available on record indicates that the appellant had sustained one lacerated wound of size 3” x 4” over the scalp, an incised wound of size 2” x 1” x bone deep on the scalp and multiple injuries of size 1” x 1/2”x 1/2” on the right leg and the injuries were opined to be simple in nature. In view of the aforesaid evidence on record, it is very clear that when the appellant and the deceased were together in a temporary shed inside Dorani Jungle guarding their vegetable field in the night, the deceased died a homicidal death and the appellant was also found with number of injuries on her person. Neither the prosecution nor the defence has brought out anything on record as to how the appellant sustained injuries for which she had to be hospitalized for about three weeks. Coming to the questions regarding applicability of right of private defence of person by the appellant, it is no doubt true that the appellant had sustained injuries on the vital parts of the body and she was hospitalized for which she had to undergone treatment for about three weeks but the nature of injuries appears to be simple in nature and there is no evidence on record that any of the injuries sustained by her endangered her life or it caused severe bodily pain during the space of twenty days or that she was unable to follow her ordinary pursuits so as to come within the definition of ‘grievous hurt’ as per clause eighthly of Section 320 of the Indian Penal Code. The evidence on record indicates that the appellant and the deceased were pulling on well till death. The evidence on record indicates that the appellant and the deceased were pulling on well till death. However the scuffle between the appellant and the deceased on the night of occurrence cannot be ruled out. Looking at the injuries sustained by the appellant, even though it appears that she has exercised her right of private defence of person in good faith but she has exceeded the same and cause the death of the deceased was without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence and therefore it is a case of culpable homicide not amounting to murder as per Exception 2 to section 300 of the Indian Penal Code. Therefore the learned Trial Court is justified in convicting the appellant under section 304 Part-II of the Indian Penal Code. The sentence that has been imposed on the appellant for offence under section 304 Part-II of the Indian Penal Code cannot be said to be excessive rather it is quite just and proper in the facts and circumstances of the case. The materials available on record indicate that the appellant had already undergone the period of sentence. In view of what has been discussed above, I find no infirmity or illegality in the impugned judgment and the order of conviction of the appellant under section 304 Part-II of Indian penal code and the sentence passed there under. Since the appellant seems to have already undergone the sentence imposed, she should be released forthwith if not already released, if her detention is not otherwise required in any other case. Accordingly, Jail Criminal Appeal being devoid of merits, stands dismissed.