Dhanu Behera vs State Of Odisha
2022 Latest Caselaw 6713 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                     JCRLA No.17 of 2012

     (From the judgment of conviction and order of sentence dated
     22.12.2011 passed by the learned Ad hoc Additional District
     and Sessions Judge, FTC NO.II, Bhubaneswar in Criminal Trial
     No.39/206 of 2010)


     Dhanu Behera                             ....             Appellant

                                -versus-

     State of Odisha.                         ....           Respondent


     Advocates appeared in the case:
     For Appellant             :                   Mr. S.K. Baral, Adv.

                                -versus-



     For Respondent             :          Ms. Samapika Mishra, ASC


                 CORAM:
                 MR. JUSTICE D. DASH
                 DR. JUSTICE S.K. PANIGRAHI

                    DATE OF HEARING:-03.11.2022
                   DATE OF JUDGMENT:-18.11.2022

       Dr. S.K. Panigrahi, J.

1. The convict/ Appellant (Dhanu Behera), in this JCRLA,

challenges the judgment of conviction and order of sentence

dated 22.12.2011 passed by the learned Ad hoc Additional

District and Sessions Judge, FTC No.II, Bhubaneswar in

Criminal Trial No.39/206 of 2010 convicting him under

Section 302 of the Indian Penal Code, 1860 (hereinafter

referred to as "the I.P.C." for brevity) and sentencing him to

undergo R.I. for life and to pay a fine of Rs.1,000/- and in

default to undergo R.I. for one year.

I. CASE OF THE PROSECUTION:

2. On 19.06.2010, at around 10.00 P.M. the convict/ Appellant

was alleged to have intentionally committed the murder of his

wife (deceased) at Mali Sahi, Muslim Basri, Unit-III,

Bhubaneswar.

3. The case of the prosecution in short is that the accused was

staying with his wife along with their two children at Mali

Sahi, Muslim Basti, Unit-3, Bhubaneswar. On 20.06.2010 at

about 7.00 A.M. some of the residents of the said Basti

informed the complainant/ informant that the present

Appellant had killed his wife and fled from the house. Having

heard the complaint of the residents of the said area, the

informant (P.W.4) rushed to the spot and found the deceased

lying dead in her house. He enquired about the incident from

the neighbors and was informed that on the previous night at

about 10.00 P.M. a quarrel had occurred between the

Appellant and the deceased. The son of the deceased P.W.1

stated that his father would return home drunk and assault

his mother . In the relevant night also, his father returned

home drunk and quarreled with the deceased. The Appellant

had also threatened his son about killing him. Out of fear, he

ran away to a nearby trolley. On the next morning, when he

came to his house, he saw the dead body of his deceased

mother lying inside their house and she had sustained

bleeding injury on her head and his father was absconding.

Based the aforesaid information, the informant lodged F.I.R.

before the I.I.C., Kharvelnagar Police Station, Bhubaneswar.

Accordingly, Kharvelnagar P.S. Case No.158 of 2010 was

registered. Investigation was taken up. The Investigating

Officer, during the course of investigation, examined the

complainant at police station, prepared the spot map Ext.11,

prepared the crime details form under Ext.12, examined the

witnesses, held inquest over the dead body of the deceased.

He dispatched the dead body of the deceased to Capital

Hospital, Bhubaneswar for post-mortem examination, seized

the weapon of offence i.e. wooden stick stained with blood,

one gauze cloth containing blood stain and blood stained

earth under seizure list Ext.5. He arrested the accused Dhanu

Behera at police Station at 10.55 A.M and on the same day at

2.00 P.M. on being produced by the accused he also seized the

wearing apparels of the accused. After completion of

investigation, he submitted charge-sheet against the accused

Dhanu Behera under Section 302 of the I.P.C. on 16.10.2010.

4. The trial court taking into account the overall evidence on

record convicted and sentenced the Appellant. Hence, this

appeal.

II. SUBMISSION OF THE APPELLANT:

5. Mr. S.K. Baral, Learned Counsel for the Appellant submitted

that though in the written F.I.R. it has been categorically

mentioned that P.W.4, the complainant ascertained about the

occurrence from Dimal Mallick, Sk. Alli Hassan, Serafat

Mallick, Rasida Bibi and Gelli, out of them only Rasida Bibi

has been examined as P.W.8 and Gelli has been examined as

P.W.2. But other three witnesses have not been examined on

behalf of the prosecution nor have they been cited as such in

the charge-sheet even though those witnesses are material

witnesses to the prosecution case. He further submitted that

though P.W.3 has stated in her evidence that in the next

morning, after getting information from one Anna that the

accused has murdered her sister, she rushed to the house of

the accused and saw the dead body of the deceased, but Anna

has not been examined on behalf of the prosecution. It was

also submitted that the prosecution was unable to show any

motive behind the crime by adducing cogent evidence. Hence

the Trial Court has not done justice to the present appellant.

III. SUBMISSIONS OF THE STATE/ RESPONDENT

6. Ms. Samapika Mishra, learned Additional Standing Counsel

for the State submitted that on an appraisal of evidence on

record more particularly the direct evidence of P.Ws.1 and 2

coupled with the evidence of P.Ws.3, 4, 5, 6, 7, 8 and 9, the

learned Ad hoc Additional District and Sessions Judge, FTC

NO.II, Bhubaneswar has proceeded to convict the Appellant.

She further submitted that motive is a thing which is

primarily known to the accused himself and it may not be

possible for the prosecution to explain what actually

prompted or excited him to commit a particular crime.

Therefore, even if merely because the motive behind the crime

is not proved by any evidence it cannot be said to be a ground

to discard the entire case of the prosecution. In such view of

the matter, she submitted that the conviction recorded by the

learned Ad hoc Additional District and Sessions Judge, FTC

NO.II, Bhubaneswar in the aforesaid needs no interference.

IV. CONCLUSION:

7. The only point of determination in the present case is whether

the accused appellant had committed murder by intentionally

causing the death of the deceased by means of a wooden stick.

The case of the prosecution rests upon the deposition of the

eyewitnesses i.e., P.W.1 (Son of the deceased) & P.W.2

(daughter of the deceased). P.W.3 is a post-occurrence witness

and P.W.4 is the informant who was notified about the

incident by P.W.3 following which he lodged a FIR before the

IIC of Kharbelnagar P.S. The incident occurred on 19.06.2010

at around 10 P.M at the house of the deceased. P.W.1 has

deposed that the accused appellant would always return

home drunk at night and quarrel with the deceased. On the

relevant day, the accused appellant was drunk and on

arriving at home, he started quarreling with the deceased.

P.W.1 who is the son of the accused appellant witnessed these

incidents following which the accused appellant threatened to

kill him. P.W.1 fled from the house to a nearby trolley out of

fear due to the accused appellant's intimidation to cause

death. On the next morning, when P.W.1 returned to his

house, he saw the dead body of his deceased mother lying

inside the house. The deposition given by P.W.1 provides that

the deceased had sustained injury on her head and the

accused appellant was not present in the house.

8. P.W.2 has categorically deposed that she had witnessed the

accused appellant assaulting the deceased by a stick on her

head and other parts of the body due to which there was a

swelling on the face of the deceased. The accused appellant

also threatened to murder P.W.2 on discovering that she had

witnessed the entire incident wherein the accused had

physically assaulted the deceased. On being threatened, P.W.2

ran out of the house and slept on the veranda of her aunt

(Mausi). Upon returning home the next morning, P.W.2 found

the body of the deceased lying inside the house. She called the

deceased for food and money but, she did not respond.

Thereafter, the accused appellant sprinkled a glass of water

on the face of the deceased. However, the deceased did not

respond and the accused appellant fled from the spot uttering

"Marijaichi". The evidence of those two witnesses appear to

be free from any such glaring infirmity so as to bring them

within the category of untrustworthy witnesses and as such

not to rely upon their evidence; more so when it is not shown

that they had any reason to falsely implicate the accused

appellant. When also nothing is seen that P.W.1 (child

witness) had the scope of being tortured or had so tortured

anyone. Minor son of the accused appellant has no reason to

implicate his father by stating falsehood when they had no

one other than the accused appellant to look after them and

take their care.

9. With the aforesaid, we find all the reasons to hold that P.W.2

had actually witnessed the physical assault on the deceased

by the accused appellant. The statements given by P.W.1

establishes that the accused appellant was a habitual offender

(in the sense that he would always quarrel with the deceased

and assault her in a drunken state) and would often return

home drunk and quarrel with the deceased. On the date of

occurrence, both (P.Ws.1 and 2) had witnessed the accused

appellant quarreling with the deceased; however, P.W.1 ran

out of the house on being threatened and was not present at

the time the deceased was assaulted with a wooden stick.

However, P.W.2 was a clear eyewitness to the incident, and

she has categorically deposed that she witnessed the accused

appellant assaulting the deceased with a wooden stick on her

head and other parts of the body. Moreover, when P.W.2

returned home in the morning, she found that the deceased

was lying inside the house and the accused appellant was

present in the house at that moment. It has also been provided

in the deposition that the accused appellant sprayed a glass of

water on the deceased's face and when she did not wake up,

the accused appellant fled from the house uttering

"marijaichi". Thus, it can be affirmed that the accused

appellant was present in the house on the night the deceased

was murdered. He was also present during the next morning

as P.W.2 has deposed to have seen him in the house. The

conduct of the appellant insofar as spraying a glass of water

on the face of the deceased and uttering "marijaichi" and

ultimately, fleeing from the spot upon realizing that his wife

is dead, reveals that he had requisite knowledge about the

said incident and the way it had occurred. The accused

appellant was neither shocked nor did he express any grief on

discovering the body of the deceased. The accused appellant

did not even bother to raise an alarm or seek medical

services/attention over the condition of his deceased wife;

rather he absconded from the spot leaving his children alone

in the house.

10. P.W.3 is a post-occurrence witness and was informed about

the incident by one Anna; following which she rushed to the

house of the deceased. While on her way, she saw the accused

appellant fleeing from the spot. Therefore, the depositions

made by P.W.1 and P.W.2 stand duly corroborated by the

statement of P.W.3 to the extent that the accused appellant

was present in the house during the incident and tried to flee

upon discovering her wife's dead body. Thus, the presence of

the accused appellant in the house throughout the night, till

the next morning is not in dispute. It bears repetition that the

appellant and the deceased were the only occupants of the

house on the relevant night, and it was therefore incumbent

on the appellant to tender some explanation in order to avoid

any suspicion as to his guilt. Nothing has been placed on

record on behalf of the appellant to disprove the prosecution

story. The Appellant has also not offered any explanation as

to why he ran away from his house after discovering his wife

lying dead inside the house. It is well proved that the

appellant fled from his house in the morning as the same is

also corroborated by the evidence of P.W.3 who saw the

appellant running away from his own house in the morning.

It has been contended by learned counsel for the appellant

that Anna was not examined by the prosecution who

informed P.W.3 about the death of the deceased and the

accused being the murderer.

11. In our opinion, the non-examination of Anna does not

discredit the otherwise credible and trustworthy testimonies

of P.W.1, P.W.2 and P.W.3 and simply for that the case of the

prosecution cannot be rendered suspect. It is primarily

because the ocular evidence here receives ample

corroboration from the proven facts and circumstances that

the accused was present in the house on the relevant night

and was seen running away from the house in the next

morning as deposed by P.W.2 and P.W.3.

12. In addition to the above, the motive can be confirmed from

the fact that the accused appellant had a strained relationship

with the deceased. On the other hand, he was often drunk

while returning home at night and would quarrel with the

deceased and assault her physically. This has been

categorically stated in the deposition made by P.W.1.

Moreover, the conduct of the accused appellant in threatening

both P.W.1 & P.W.2 about murdering them while he was

assaulting and quarreling with the deceased contributes

towards his motive of inflicting harm on the deceased and his

children. Since, the appellant was an alcoholic, it is reasonably

foreseeable that his drinking problem was one of the reasons

behind the constant friction between the deceased and the

appellant. On top of this, the appellant had a habit of

subjecting the deceased to physical violence. This can be

confirmed from the deposition of P.W.1 & P.W.2. Even

though, the exact motive behind murdering the deceased is

best known to the appellant and is extremely difficult for the

prosecution to establish when an incident happens in secrecy

inside a house, prior instances of alcoholism and assault on

the deceased and the account of eyewitnesses is relevant and

adequate towards establishing the motive of the accused. The

conduct of the appellant is also unnatural in the sense that he

fled from the spot after discovering his wife's dead body

inside the house. According to P.W.2, he uttered "marijaichi"

after sprinkling a glass of water on the face of the deceased

who was lying on the floor. This also establishes that the

accused appellant was present in the house till the next

morning, and it was only after discovering that the deceased

has died, he tried to flee. The act of running away from the

house instead of raising an alarm, seeking medical attention,

or alerting the neighbors itself constitutes that the appellant

was afraid of getting caught and an inference of guilt can be

drawn from such conduct.

13. Learned Counsel for the Appellant has contended that the

there is an extreme possibility of P.W.1 & P.W.2 being tutored

by the deceased's relatives to depose against the appellant. In

this respect, we are of the opinion that there is no justification

as to why both the eyewitnesses would depose falsely against

their father. The depositions and testimonies of both the

eyewitnesses do not suffer from any infirmities as there is no

inconsistency in the material particulars of the evidence. They

being children of the deceased or victim is no ground to reject

their evidence. On the contrary, they would be reluctant to

spare the real culprit who has caused the murder of their

mother. Moreover, this is no inconsistency between the ocular

evidence and medical evidence as it has been categorically

deposed by P.W.2, P.W.8, P.W.9, P.W.12 that the deceased

had swelling on her face and had multiple injuries all over the

body. The deposition made by P.W.2, in particular, is of

greater relevance as she was the only person who had

witnessed the accused appellant assaulting the deceased on

the relevant night. She had stated that the deceased was

assaulted with a wooden stick and had swelling on her face

and injuries on other parts of the body. The evidence of

P.W.12 who held inquest over the dead body also go to show

that the deceased's face was swollen and the murder of

weapon i.e., the wooden stick was also lying nearby. The

medical opinion was sought as to whether the concerned

wooden stick could have been so used to cause the injuries

upon the deceased and it was replied in affirmative that the

injuries sustained by the deceased were possible by the

wooden stick. Hence, it can be ascertained that there is no

inconsistency between the medical evidence and the ocular

evidence to discard the depositions and testimonies as untrue.

Moreover, in our opinion, it was not "unnatural" on the part

of P.W.1 & P.W.2 to not raise an outcry regarding the incident

as they were threatened by their own father and that could

have been even unnatural in case of adults. Also, both P.W.1

& P.W.2 were witnessing these incidents of violence towards

the deceased on a regular basis and on the relevant day, they

could not have thought by any stretch of imagination that

their father (the appellant) would murder the deceased. It

cannot be expected of P.W.1 & P.W.2 to predict the

consequences or the conduct of their own father as they are

small children and therefore, it would be mechanical to

assume that P.W.1 & P.W.2 could have informed about the

same to their aunt (Mausi) or other neighbors.

14. For all these aforesaid, the prosecution is found to have

established the guilt of the accused beyond reasonable doubt.

15. In the result, this appeal sans merit and the same is liable to

be dismissed. Accordingly, the JCRLA is dismissed. The

judgment of conviction and order of sentence dated

22.12.2011 passed by the learned Ad hoc Additional District

and Sessions Judge, FTC NO.II, Bhubaneswar in Criminal

Trial No.39/206 of 2010 are confirmed.

16. The JCRLA is dismissed.

( Dr. S.K. Panigrahi ) Judge

D. Dash, J. I agree.

( D. Dash ) Judge

Orissa High Court, Cuttack, Dated the 18th Nov., 2022/B. Jhankar