Prasad Iswar Rao vs State Of Orissa
2021 Latest Caselaw 12769 Ori

        THE HIGH COURT OF ORISSA AT CUTTACK

                          CRA No.202 of 2001

 (Arising out of the judgment & order of conviction dated 25.09.2001 passed by
Shri S.K. Mishra, learned Addl. Sessions Judge, Jeypore in Sessions Case No.41
                         of 1999, u/s.302/201/34, I.P.C.)


 Prasad Iswar Rao                            ......                  Appellant

                                  -versus-
 State of Orissa                             ......                Respondent



 Appearing in the case :-
          For the Appellant       : Mr. D.P. Dhal, Senior Advocate
          For the Respondent : Ms. Saswata Pattanaik, A.G.A.

          CORAM:
          THE CHIEF JUSTICE
          JUSTICE A. K. MOHAPATRA

                          JUDGMENT

th 13 December, 2021

Dr. S.Muralidhar, CJ.

1. This Appeal is directed against the judgment and order of conviction dated 25th September, 2001 passed by the learned Additional Sessions Judge, Jeypore in Sessions Case No.41 of 1999, sentencing the Appellant under Section 302, I.P.C. to undergo imprisonment for life and pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for another one year. The accused-Appellant was also convicted for the offence under Section 201, I.P.C. and sentenced to undergo rigorous

imprisonment for five years and to pay a fine of Rs.500/-, in default to undergo rigorous imprisonment for six months more. Both the sentences were directed to run concurrently.

2. The case of the prosecution was that, the Appellant Prasad Iswar Rao married to the deceased Bijayalaxmi. They had a daughter named Puja and were residing in a rented house at Gandhinagar in Koraput town. The deceased was working as a teacher at Narayanpatna, where her mother was also residing as well. At the time of the occurrence, the deceased was pregnant and the Appellant had suspected her character. On 10th March, 1999 the Appellant, the deceased and their daughter left for Koraput after the deceased applied for availing five days' leave. Thereafter they were seen together in Gandhinagar.

3. On 16th March, 1999 the dead body of an unidentified female was found to be floating in "Sarvodaya Tank" located near the house of the Appellant. After the police was informed about discovery of the dead body in the pond, U.D. Case No.5 of 1999 was registered at Koraput Town P.S.

4. The post-mortem examination revealed that the death of the deceased was homicidal. F.I.R. was then registered against unknown persons as P.S. Case No.28 of 1999.

5. In course of the investigation, the Appellant identified the dead body to be his deceased wife. It was also discovered that the co- accused K. Ravi Kumar (since acquitted) was working as an

Assistant to the accused Appellant - Prasad Iswar Rao in his pathological clinic. The case of the prosecution is that, said K. Ravi Kumar had assisted the present Appellant-accused in committing the murder of the deceased by strangulation and after her murder, they thrown the dead body of the deceased into the pond in order to disappear the evidence.

6. The plea taken by the Appellant was his false implication in the case. He pleaded not guilty and claimed for trial.

7. The prosecution examined 12 witnesses and exhibited 16 different documents in support of its case. The case was based on circumstantial evidence.

8. In the impugned judgment, the learned Trial Court has outlined 12 circumstances in para-13 of the judgment, which read as under :

(i) The accused P. Iswar Rao and the deceased Bijayalaxmi were married and were residing at Gandhinagar in a rented house;

(ii) On 10th March, 1999 deceased Bijayalaxmi availed C.L. on five days and along with her husband, the accused, and daughter Puja proceeded towards Koraput from Narayanpatna where she was working as a teacher;

(iii) On 10th the deceased was seen in the rented house, but thereafter no person have seen her;

(iv) It is evident from the statement of mother of the deceased that the deceased had complained about the assault and torture meted out to her by the accused. The post mortem examination reveals that at the time of her death the deceased was pregnant. These circumstances are in tune with the motive of the crime, i.e. the accused suspecting the character of the deceased;

(v) The fact of blood stain flowing out from the back of the house of the accused one day prior to the discovery of the dead body in the Sarvadaya tank;

(vi) Discovery of a dead body of a woman in the Sarvadaya tank, which situates nearby the house of the accused;

(vii) Homicide nature of death of deceased;

(viii) The identification of the dead body by P.W.5 Paliti Parvati, mother of the deceased, which is supported by P.W.3's statement;

(ix) Leading to discovery of the knife, i.e. weapon of offence and the opinion of the doctor that the injuries found on the deceased could have been caused by such weapon of offence and also the Chemical Examiner's report which shows blood stains on the same which matched with the blood found on the wearing apparels of the deceased;

(x) The conduct of the accused in leading the police to the exact place of concealment;

(xi) Blood stains found from the articles inside the house of the accused; and lastly

(xii) False plea of the accused provides the additional link to complete the chain.

9. The Trial Court concluded that the above circumstances had the cumulative effect of pointing entirely to the guilt of the accused.

10. This Court has heard the submissions of Mr. D.P. Dhal, learned Senior Counsel appearing for the Appellant and Ms. Saswata Pattanaik, learned Additional Government Advocate for the State.

11. The submissions of Mr. D.P. Dhal are as under :-

(i) Charge framed in the present case against the Appellant was defective. It is pointed out that on 21st October, 2000 the following charge was framed against the accused Appellant and the co-accused K. Ravi Kumar -

"First - That, you on or about the 13th Day of March 1999, at Gandhinagar, Koraput at about 1 pm in furtherance of your common intention, did commit murder by intentionally causing the death of Vijaylaxmi, the wife of Prasad Ishwar Rao and hereby committed an offence punishable u/s.302/34.

Secondly - That, you on or about, on the above date, place at night knowing that certain offence to wit murder, punishable with death or imprisonment for life has been

committed in furtherance of your common intention, did cause certain evidence of the said offence to disappear, to wit, threw the dead body by tying its hand and legs, into the pond situated at the Sarvoday Samiti Koraput with the intention of screening yourself from legal punishment and hereby committed an offence punishable u/s.201/34 of IPC, within the cognizance of the Court of Session."

(ii) It is submitted that, no evidence has been led with regard to probable time or date of death of the deceased. While the charges state that the offence was committed "on or about 13th day of March, 1999, but in the post-mortem report dated 16th March, 1999 the doctor has placed the time of death to be more than 72 hours. This could connote the date prior to 13th March, 1999 but not 13th March itself. The time mentioned as 1.00 P.M. is also stated to be an imaginary time and not available on record except the confession of the accused Appellant, which is, in any event, inadmissible in law, as it comes under the first part of Section 27 of the Indian Evidence Act, 1872.

(iii) It is further pointed out that the Appellant was charged with the co-accused K. Ravi Kumar (since acquitted) for the offence under Section 302/34, I.P.C. and under Section 201/34, I.P.C. and not independently. With the acquittal of the co-accused K. Ravi Kumar, the Appellant cannot be convicted of the charge alone.

12. Reliance was placed on the decisions in Nanak Chand v. State of Punjab : AIR 1955 SWC 274, Suraj Pal v. State of U.P. : AIR 1955 SC 419, Suberam @ Subramanyam v. State of Kerala : (1993) 3 SCC 32, State of West Bengal v. Bindu Laxman Dass : 1995 SCC (Crl.) 17 and (2009) 16 SCC 91.

13. As regards the case of the prosecution based on circumstantial evidence, it was submitted that the prosecution has failed to establish the circumstances that formed a continuous chain pointing unmistakably to the guilt of the accused Appellant. Reliance is placed in the decisions in Sharad Birdhi Chand v. State of Maharastra AIR 1984 SC 1622, Sattatiya v. State of Maharashtra (2008) 3 SCC 210 and G. Parshwanath v. State of Karnatak (2010) 8 SCC 593.

14. It is submitted that, the knife stated to have been recovered on the disclosure of the Appellant was not shown to be belonging to either the accused Appellant or any witness who accompanied the investigating officer (IO). On his part the Appellant had denied the seizure of the knife in his statement recorded under Section 313, Cr.P.C. The blood on the knife as well as on the towels, frock, saya and the full shirt show human blood of the AB group. However, the I.O. did not state anything about taking of blood sample of the Appellant or the deceased to verify the blood groups. Reliance is placed on the decisions reported in Prabahu Babaji Navle v. State of Bombay : 1956 SC51 to urge that matching of blood stains on the clothes of the accused and the blood group of the deceased was an important circumstance to

corroborate the other evidence. However, mere recovery of the blood stains sample was not enough to sustain the charge of murder.

15. Mr. Dhal further submitted that there was no evidence to show that how the clothes of the Appellant, the deceased or the material objects have been kept after the seizure. There is nothing to show that they were tampered-free till the articles were sent to the chemical examination for analysis. Evidence on seizing of the articles was also absent.

16. In the present case there are two accused and one of them has got acquitted. Even if the recovery were made regarding incriminating articles at the instance of the present Appellant, unless it was shown that it was the Appellant who concealed the murder of weapon, it would not be a circumstance to establish his guilt. It was further submitted by Mr. Dhal that the Constable, who brought the dead body of the deceased to the hospital, was not examined by the prosecution to say that he had taken the dead body of the deceased and identified it to the doctor.

17. The police requisition, basing on which the doctor (P.W.10) conducted post-mortem examination, has also not been exhibited. It is submitted that in effect there was nothing to show that the post-mortem report related to the dead body of the deceased, to the doctor. It is accordingly submitted that the post-mortem report (Ext.7) cannot be said to have related to the accused Appellant. Reliance is placed on the decisions in Herbetus Oram v. State

1971 (37) CLT 477 and Padmalochan Nayak & Anr. v. State 1992(1) Crimes 106.

18. Ms. Saswata Pattnaik, learned Additional Government Advocate appearing on behalf of the prosecution, referred to Section 465, Cr.P.C. and pointed out that even if the charge is defective, unless it is shown to be prejudicial to the accused, the Court will not interfere. Reliance is placed on the decision in State of Punjab v. Harjagdev Singh (2009) 16 SCC 91. She further submitted that the prosecution has established each of the circumstances which form a continuous chain and point unerringly to the guilt of the Appellant.

19. It is further submitted by Ms. Pattanaik that no convincing answers were given by the Appellant in the circumstances put to him under Section 313 Cr PC. The evidence points to the guilt of the Appellant and of no one else.

20. Before proceeding to analyze the evidence in the light of the above submissions, it is necessary to recapitulate the settled principles as regards the legal requirements in a case of circumstantial evidence. In Sharad Birdhichand v. State of Maharastra (supra), the Supreme Court held as under:

(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established.

(ii) The facts so established should be consisted 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.

(iii) The circumstances should be of a conclusive nature and tendency.

(iv) They should exclude every possible hypothesis except the one to be proved, and

(v) 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 been done by the accused.

21.These principles were reiterated in Sattatiya v. State of Maharashtra (2008) 3 SCC 210 as under:

"10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The Court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances..."

22. In Navaneeth Krishnan v. State by Inspector of Police JT (2018) 4 SC 275, the Supreme Court held as under:

(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and formally established.

(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused.

(iii) Circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and

(iv) The circumstantial evidence in order to sustain conviction must be completed and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

23. The Court now proceeds to discuss each of the circumstances put forth by the prosecution to establish the guilt of the Appellant. As regards the marriage of the deceased with the Appellant is concerned, there is sufficient evidence to prove the circumstance.

24. The evidence of Madhusudan Barik - P.W.4, who is a teacher, has established that the deceased availed Casual Leave for five days on 10th March, 1999 and being accompanied by her husband, i.e. Appellant and their daughter Puja, proceeded to Koraput from Narayanpatna. The last time anyone saw the deceased was on 10th March, 1999 in the rented house.

25. The evidence of P.W.5 - Palili Parvati, the mother of the deceased, has established that the deceased complained to her about the Appellant subjecting her (deceased) to assault and torture. The motive of the crime was proved by the post-mortem

examination, which showed that the deceased was pregnant at the time of her death. This was consistent with the accused being suspicious of her character, thus providing the motive to commit the crime.

26. The evidence of P.W.2 - Nalla Parvati and P.W.3 - Anil Choudhury revealed the fact of bloodstains flowing out of the rear of the house one day's prior to the dead body was discovered in the Sarbodaya Tank.

27. It is true that P.W.2 did turn hostile when after saying that she saw the accused with the deceased on 10th March, 1999, she claimed she knew nothing else. Her previous statement recorded under Section 161, Cr.P.C. was, in fact, confronted to her in the cross- examination by the prosecution, after she turned hostile. Nevertheless, as is the settled legal position, her entire evidence therefore cannot be discarded in toto.

28. The cross-examination of P.W.3 also has not yielded much for the defence. He is a reliable witness to the fact that bloodstains were flowing from the backside of the house of the accused one day prior to the discovery of the dead body. Likewise, the evidence of the victim's mother has also remained unshaken. These circumstances leading up to the death of the deceased, which was proved to be homicidal in nature, form a continuous chain.

29. The arguments regarding non-identification of the dead body of the deceased must fail when one carefully examines the deposition

of P.W.5. She was shown the photographs of the dead body as well as the saree and rings found in the tank where the dead body was found floating. She identified the articles as belonging to the deceased. Her cross-examination did not yield much to help the defence.

30. Turning now to the evidence of P.W.10, the doctor, who conducted the post-mortem. The external injuries, which revealed stab wounds, incised wounds, punctured wound. There were six sharp injuries caused by knife, one burn injury and a bruise. As far as internal injuries are concerned, there were two complete punctured wounds in the skull exposing the brain matter. All the injuries were ante-mortem in nature and the head injuries have possibly caused the death of the deceased. The doctor has specifically mentioned that, "time of post-mortem examination since death is more than 72 hours".

31. The attempt by the counsel for the accused to expect a mathematically exactness to the statements in order to doubt the accuracy in framing the charge do not impress the Court. The doctor at best can give an approximation of the time of death and certainly he was not too far of the mark giving the time of the discovery of the dead body and when the deceased was seen last. The gap is not so large so as to doubt the approximate time of death, as spoken to by the doctor. Again, the cross-examination of P.W.10 has yielded virtually nothing to doubt the credibility of this witness.

32. P.W.11 is the witness to the recovery. Although he may have made, continuous attempts were made by the defence to discredit him, but he stood firm in his cross-examination. He clearly mentioned how the accused let them go inside the house, how they entered into the kitchen and got the knife kept in the place of shelf inside the Almirah. It is very plain that at the instance of the accused that the knife was recovered.

33. As explained in a series of decisions as regards Section 27 of the Evidence Act, including the decisions in Wakker v. State of U.P. (2011) 3 SCC 306 and Bijay Kumar v. State of Rajasthan (2014) 57 OCR (SC) 901, although the recovery by itself may not be enough to prove the guilt of an accused, it certainly provides a strong link in the chain of circumstances. In the present case that link has been conclusively established by the independent witness to the recovery, PW 11. His evidence lends assurance to the Court as the prosecution has been able to successfully prove each of the links in the chain of circumstances, and those circumstances taken collectively point unerringly to the guilt of the accused.

34. A defect in the charge would be fatal to the prosecution only where prejudice is shown to have been caused to the accused as a result of such defect. The burden is on the accused to show that there has been a failure of justice occasioned as a result of the error in the charge. Section 464 of the Cr.P.C. read with Section 218 thereof supports the plea of the prosecution that the error in the charge would not result in rendering the finding of the guilt vulnerable to

reversal, unless the accused is able to show that there is a failure of justice. In the present case the Appellant has been unable to show that his ability to defend himself in the trial was in any manner impaired on account of the charge being defective.

35. The presence of bloodstains in the knife and the clothes were sufficient to show the involvement of the accused-Appellant in the alleged crime. This is one of the circumstances, and the fact that the blood group did not match, cannot be said to be fatal to the case of the prosecution.

36. For all the aforementioned reasons, this Court is satisfied that no ground has been made out by the accused-Appellant to persuade the Court to interfere with the impugned judgment of the trial court.

37. The appeal is accordingly dismissed, but in the circumstances no orders as to cost. The bail bonds are cancelled. The Appellant will be taken into custody forthwith to serve the remainder of his sentence.

(Dr. S. Muralidhar) Chief Justice

(A. K. Mohapatra) Judge

S.K.Parida