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2018 DIGILAW 631 (ORI)

Kathi @ Pratap Chandra Prusty v. State of Orissa

2018-06-29

K.R.MOHAPATRA, S.K.MISHRA

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JUDGMENT S.K. MISHRA, J. - The appellant, in this appeal, assails the judgment of conviction and order of sentence dated 31.1.1998 passed by learned Sessions Judge, Dhenkanal-Angul in S.T. Case No.61-D of 1994 convicting the appellant under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “I.P.C.” for brevity) and sentenced him to undergo imprisonment for life for having committed murder of his wife-Mitika Prusty and his infant son-Chemutu Prusty in the night between 18th and 19th November, 1992. 2. Shorn of unnecessary details, the prosecution case is that on 19.11.1992 at about 7.30 A.M. the informant-Amulya Naik, (P.W.1) in absence of his Gram Rakhi-father Musa Naik came to know from Kodanda Prusty and Abhi Prusty of Kantio that the accused had a quarrel with his wife Mitika for which Mitika had gone away to the house of Dharani Prusty. (P.W.3). He further learnt that in the night of 18.11.1992 the accused had killed his wife and son. Then P.W. 1 went to the house of the accused and found the deceased Mitika lying dead having marks of cut blows on her face and by her side her infant son lying dead with marks of violence on his chest. On being asked, the father of the accused informed P.W. 1 that the accused after killing his wife and son in the previous night has fled away from the house. On getting this information P.W. 1, in absence of his father, went to Tumusingha Police Station and lodged the F.I.R. (Ext.1) at about 12.30 P.M. on the same day. On the basis of this report the O.I.C., Tumusingha Police Station (P.W.12) made a Station Diary Entry to this effect and on the point of jurisdiction forwarded the Ext.1 to the O.I.C., Kamakhyanagar Police Station for registration of the case as per his endorsement, Ext.1/3 and simultaneously took up investigation of the case. On receipt of the F.I.R. (Ext.1) the O.I.C., Kamakhyanagar P.S. (P.W.11) registered the case as per his endorsement (Ext.1/2) and drew up formal F.I.R. (Ext. 9) as Kamakhyanagar P.S. Case No.162/1992. 3. In course of investigation, P.W. 12 after examining the informant visited the spot, held inquest over the dead bodies of the deceased Mitika Prusty and Chemulu Prusty as per the inquests reports, Exts.10 and 11 respectively and sent the dead bodies for post mortem examination. 9) as Kamakhyanagar P.S. Case No.162/1992. 3. In course of investigation, P.W. 12 after examining the informant visited the spot, held inquest over the dead bodies of the deceased Mitika Prusty and Chemulu Prusty as per the inquests reports, Exts.10 and 11 respectively and sent the dead bodies for post mortem examination. He seized some samples earth, blood stained earth, one blood stained pillow, a blood stained ‘Kantha’, one tooth, some broken pieces of bangles and an axe stained with blood from the spot as per the seizure list, Ext.4. The Investigating Officer then searched for the accused, but could not get any trace of him till 23.12.1992. When he got information that the accused had been detained at Sadar P.S., Dhenkanal, immediately he went to the P.S. and arrested him from that place. During interrogation the accused when disclosed to have sold some gold ornaments to different persons of village Govindapur and Bijadihi, the Investigating Officer, therefore, proceeded to these places and seized some pieces of gold ‘Belapatris’ from four persons as per the seizure lists, Exts. 14 to 17. He also seized one Hero Bicycle (M.O.II), said to have been used by the accused from the house of one Cheru Pradhan of village Gadabahali under the seizure list Ext.8.The Investigating Officer also seized the wearing apparels of the accused, namely, one lungi suspecting the same to have contained blood stains as per the seizure list, Ext.19. While arresting the accused, the Investigating Officer (P.W.12) seized 11 pieces of gold ‘Belapatris’ from his possession under seizure list, Ext.2. He sent the incriminating seized articles through the Sub-Divisional Judicial Magistrate, Kamakhyanagar to the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar, for its chemical examination. The accused was forwarded to Court on 15.12.1992 and after completion of investigation, P.W. 12 submitted charge sheet against the accused for the offence aforestated. 4. The defence plea is one of denial. The specific case of the accused is that in the night of the alleged occurrence he was absent in the house and was engaged in his professional work as goldsmith at village Badheibili and from that place he went to village Govindapur. It is stated that from the village Govindapur, Police took him away to Sadar P.S. and then he was brought to Tumusingha P.S. No witness has, however, been examined in support of the defence plea. 5. It is stated that from the village Govindapur, Police took him away to Sadar P.S. and then he was brought to Tumusingha P.S. No witness has, however, been examined in support of the defence plea. 5. In order to prove its case, the prosecution has examined 12 witnesses. P.W.-1 Amulya Naik is the informant. P.W.2-Kailash Chandra Panda and P.W. 5 Bijaya Kumar Behera are stated to be witnesses to seizure of different articles. P.W.3-Dheneswar Prusty is the ’Piusa’ (uncle) of the deceased Mitika and P.W. 4 Ashalata Prusty is the wife of P.W. 3, both of whom are stated to be witnesses to the quarrel between the accused and his wife. P.W. 6-Sarata Chandra Behera and P.W. 8-Basanti Bewa of village Bijadihi are stated to have purchased one piece of gold ‘Belapatri’ each from the accused. P.W. 7 is the Doctor, who conducted autopsy over the dead bodies of both the deceased. P.W. 9 Biprabar Sahu is the Police Constable, who was commanded to escort the dead bodies to the morgue. P.W. 10-Brajabandhu Sahu is the Revenue Inspector, who on police requisition prepared the spot map and report as per Ext,. 8 and P.Ws. 11 and 12 are Police Officers, who took some part or other in the investigation of the case. 6. When arguing the case the learned defence counsel appearing for the appellant does not dispute the findings recorded by the learned Sessions Judge that the deaths of both Mitika and her infant son Chermutu were due to assault on their person and both of the deceased have met with homicidal deaths. Since this aspect is not disputed by the learned counsel for the appellant, it is not necessary to go into a detailed discussion of the same. However, it reveals that the Doctor (P.W.7) namely Dr. Choudhury Khirod Chandra Das has conducted post mortem examination and his findings are very much clear on this aspect. 7. There is no direct evidence in this case. The Learned Sessions Judge after taking into consideration the cases of Hanumant Govind Nargundkar and another v. State of Madhya Pradesh; AIR 1952 SC 343 , Gambhir Vs. State of Maharashtra; AIR 1982 SC 1165 and Isram Bariha and others Vs. State of Orissa; (1997) 13 OCR 177, has categorized 6 circumstances. In addition to that the first circumstance is homicidal nature of both Mitika and Chemutu. State of Maharashtra; AIR 1982 SC 1165 and Isram Bariha and others Vs. State of Orissa; (1997) 13 OCR 177, has categorized 6 circumstances. In addition to that the first circumstance is homicidal nature of both Mitika and Chemutu. A conspectus of the judgment rendered by the learned Sessions Judge, the evidence led and other materials available on record reveal the circumstances that are appearing in this case. They are :- (1) The death of the Mitika and Chemutu were objectively determined to be due to severe assault by means of sharp cutting weapon and both deaths are held to be homicidal in nature. (2) The accused had a quarrel with the deceased Mitika on 18.11.1992 for which she went away to the house of her ‘Piusi’ (P.W.4) and later she was brought back by the P.W. 4 to the house of the accused on the same day at about 4 P.M., when the accused was very much present in the house. (3) The next morning i.e. on 19.11.1992 both the deceased were found lying dead in the house of the accused with cut injuries on the deceased Mitika and marks of throttling on the deceased Chemutu. (4) Eleven pieces of gold ‘Belapatris’ which were found by P.W. 3 on the neck of the deceased on 18.11.1992, were recovered from the possession of the accused at the time of his arrest. (5) The accused sold away one piece of ‘Belapatri’ each to P.W. 6 and P.W. 8 subsequent to the occurrence. (6) The accused had failed to establish the plea of alibi taken by him; and (7) Soon after the occurrence he absconded till his arrest on 24.11.1992. 8. The principles guiding cases based only on circumstantial evidence came up for consideration before the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 . Justice Fazal Ali very pithily summarized the law of the land in this report. The Supreme Court in that case laid down five golden principles or the Panchasheela to prove a case based on circumstantial evidence; they are :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established. The Supreme Court in that case laid down five golden principles or the Panchasheela to prove a case based on circumstantial evidence; they are :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) The should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have done by the accused. 9. In view of the aforesaid principles, it is the duty of the court to reassess the evidence as well as the conclusions arrived at by the learned Sessions Judge and doing so this Court first take up the circumstance No.2, i.e. the presence of the accused in the house where the occurrence took place. P.W.3-Dhaneswar Prusty is the husband of P.W.4- Ashalata Prusty are common relations. Ashalata Prusty is the sister of the deceased Mitika’s father. Both witnesses, namely, P.Ws. 3 and 4 have categorically stated that prior to her death the deceased had a quarrel with the accused for which she went away to their house and on the request of the father of the accused, she was again sent back to the house of the accused. P.W.4 herself has accompanied the deceased at that time to the house of accused. She further stated on oath that the accused was then sitting on the verandah of his house and nothing was elicited in the cross-examination of these witnesses to disbelieve their testimony rendered on oath. Learned Sessions Judge does not find any material on record to doubt their trustworthiness. She further stated on oath that the accused was then sitting on the verandah of his house and nothing was elicited in the cross-examination of these witnesses to disbelieve their testimony rendered on oath. Learned Sessions Judge does not find any material on record to doubt their trustworthiness. There are some contradictions ought to be brought out from the statement of P.W. 4, who has stated that she did not remember if she had stated earlier before the Police about her seeing the accused in his house when she had been to that place taking the deceased Mitika with her. It is further borne out that the I.O. has not been cross examined by the defence on this aspect. In other words, the contradiction if at all is appearing in this case has not been shown by cross-examination the I.O. who has recorded her statement under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code” for brevity), by the defence in this case. Moreover, the learned Sessions Judge records that examination of the witness was done after five years of the incident and it is natural that some discrepancy will appear in the evidence of the witness because of lapse of time. Some embellishments are natural in such case. 10. The second circumstance is the finding of the dead body of the deceased Mitika and Chemutu in the house occupied by the accused. Dead bodies were found with severe injuries on their persons. The statement of P.W. 12, Pitambar Pradhan, who is the Investigating Officer of the case, reveals that he had conducted inquest over the dead body of the deceased Mitika and Chemutu vide Inquest Reports 10 and 11. The inquest was held on the spot which was the dwelling house of the accused at village Kantio. He has further specified that he seized some sample earth and blood stained earth, one blood stained pillow, one blood stained ‘Kantha’, one tooth, some broken pieces of bangles, one axe with blood stains on its from the spot and prepared a seizure list Ext.4. 11. A cross reference to the contents of Exts.4,10 and 11 reveals that the dead body of the deceased as well as the blood stained earth, sample and blood stained objects were seized from the house of the accused. 11. A cross reference to the contents of Exts.4,10 and 11 reveals that the dead body of the deceased as well as the blood stained earth, sample and blood stained objects were seized from the house of the accused. P.W. 10, the then Revenue Inspector of “Tumusingha Circle, on police requisition has prepared the spot map and the same has been marked as Ext.8. This witness, P.W. 10, has not been examined by the defence. Both the deceased were found inside the house belong to the accused. So the second circumstance that the dead body was found inside the house of the accused and the spot objectively determined in course of investigation stands unchallenged. So this Court finds that the learned Sessions Judge has rightly analyzed the second circumstance and this Court also agrees with the said finding. 12. As regarding the 4th circumstance, it is seen from the evidence of P.W. 2-Kailash Chandra Panda P.W.3-Dhaneswar Prusty and P.W. 12-Pitambar Pradhan ( I.O.) that the Investigating Officer seized 11 pieces of gold “Belapatris” M.O.I) from the possession of the accused under the seizure list, Ext.2, on 24.12.1992. P.W. 2 not only proved the seizure and the preparation of seizure list, but also identified the Belapatri necklace as M.O.I. Learned Sessions Judge has also took into consideration the statement given by the accused recorded under Section 313 of the Code. In his statement recorded under Section 313 of the Code, he admitted the fact that M.O. I has been seized from him by the Police at ‘Tumusingha Police Station. However, he took the plea that he has prepared the Belapatris’ himself for the marriage of his sister. P.W.3-Dhaneswar Prusty has also stated on oath that he had seen the accused Mitika wearing the M.O.I on her neck on the date prior to her death when she had gone to his house after a quarrel with the accused. The testimony of this witness remains totally unchallenged in the cross-examination. Thus from the materials available on record as well as careful appreciation of evidence taken by the learned Sessions Judge, this Court finds that 11 pieces of gold Belapatris, M.O.I, has been seen by P.W. 3 on the neck of the deceased before her death and such Belapatris were recovered from the possession of the accused at the time of his arrest. 13. 13. The 5th circumstance i.e. appearing against the accused is that the I.O. seized the piece of Belapatri under Exts.14, 15 and 16 Gobardhan Samal, Prakash @ Dakua Naik and Sukadev Patri of village Govindapur. He also seized one Belapatri from Basanti Behera-P.W. 8 under seizure list Ext. 17. These witnesses have not been examined. However, from the seizure list, especially Ext. 17 and testimony of P.W.8- Basanti Behera and P.W.12, the I.O. it is amply clear that subsequent to the murder of the deceased Mitika, the accused had gone to the house of P.W. 8 and sold one piece of Belapatri to her for a sum of Rs.130/-. The accused in his statement recorded under Section 313 of the Code does not deny about his giving Belapatri to P.W. 8 or the seizure of the same from her. But he denies that he had sold the said gold Belapatri to the said P.W,. 8. He has specifically stated that he has prepared the Belapatri for P.W. 8 as per her order. This explanation of the accused was not accepted and was taken with a pinch of salt. Learned Sessions Judge has given his finding that no suggestion has been given to P.W. 8 during her cross-examination that the Belapatri had been prepared by the accused for P.W. 8’s use. In absence of such material, the plea taken by the accused in this regard was held to be untrue by the learned Sessions Judge. This Court does not find any reason to differ with the findings given by the learned Sessions Judge. 14. Now coming to the 6th circumstance, in the case of State of Haryana Vs. Sher Singh and others, AIR 1981 SUPREME COURT 1021, the Hon’ble Supreme Court after taking consideration the provision of Section 103 of the Evidence Act, 1872 has come to the conclusion that when the accused pleads alibi, the burden is on him to prove the same. It is appropriate to quote the provision. “103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. (Illustrations : (A) A prosecutes B for theft, all wishes the court to believe that B admitted the theft to C. A must prove the admission. (Illustrations : (A) A prosecutes B for theft, all wishes the court to believe that B admitted the theft to C. A must prove the admission. B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it.”) Thus, a plain reading of Section 103 of the Indian Evidence Act leads the Court to come to the conclusion that if a person (be a party or an accused) wishes the Court to believe in existence of a fact, unless it is provided by law the proof of facts shall lie on a particular person and the burden of proof of fact lies on the person setting on the plea. Hence, the plea of alibi has to be established by the evidence. 15. The next circumstances is that plea of alibi taken by the defence has not been substantiated. As discussed earlier the onus of discharging the prove of plea of alibi is on the defence. Of course defence is not required to prove the said plea of alibi by proving the same beyond all reasonable doubt, rather it should be by pre-ponderance of probability. In this case, not a single witness has been examined on behalf of the defence to prove the plea of alibi. If the accused takes the plea of alibi the onus to substantive the same shall be on the defence. If the defence fails to substantiate the plea of alibi then it would be additional to link in circumstances though by itself the accused cannot be held to be guilty. If there are other circumstances forthcoming and the defence fails to establish the plea of alibi, additional link in the chain is established. In this case, the plea of alibi having been failed to prove the additional link on circumstances appears against the convict. 16. The last circumstance is that for about a month, the appellant remain absconding and ultimately on his arrest he was found to be in possession of one gold ‘Belapatri.’ in his person and that were seized. In the case of State of Orissa Vs. Arduha Chendreya : 2010 (II) ILR-CUT-904, this Court has held that absconding of the accused without any plausible explanation is also a link in the chain of circumstances. 17. In the case of State of Orissa Vs. Arduha Chendreya : 2010 (II) ILR-CUT-904, this Court has held that absconding of the accused without any plausible explanation is also a link in the chain of circumstances. 17. Thus, keeping in view the aforesaid conspectus of the evidence and the judgment of learned Sessions Judge and Exhibits as well as the material object led, this Court is of the opinion that the following circumstances have been established in this case. Death of the deceased persons were homicidal in nature. The accused was present at the home when the deceased was brought back to his house and on the next day morning the dead bodies of his wife and son were found inside that house having multiple injuries. P.W. 8 has purchased a piece of gold Belapatri from the accused for Rs.130/- which was a part of the necklace owned by the deceased Mitika. The spot of occurrence has been objectively determined in the case to be the house of the accused and the accused is offering no explanation. Additional link of failure to establish the plea of alibi and the accused remained absconding for a prolonged period without any plausible explanation. All these circumstances or links have been established beyond all reasonable doubt land together they form a complete chain unerringly pointing towards the guilt of the present accused. So the learned Sessions Judge has not committed any error in relying upon the circumstances described above and has come to a correct conclusion. 18. Hence, this Court is not inclined to interfere with the judgment of conviction. The sentence award is minimum for the offence under Section 302 of the I.P.C. Hence, there is no scope of interference on that aspect also. Accordingly, the JCRLA is dismissed being devoid of any merit. K.R. MOHAPATRA, J. I agree. JCRLA dismissed.