State of Orissa Vs. Niranjan Sharma
EmailAppeal: Criminal Appeal No. 812 of 1979.
Petitioner: State of Orissa
Respondent: Niranjan Sharma
Apeal: Criminal Appeal No. 812 of 1979.
Judges: A.M. AHMADI, V. RAMASWAMI & K. RAMASWAMY, JJ.
Date of Judgment: Mar 20, 1991
Head Note:
CRIMINAL LAW
Acquittal
Acquittal by High Court – Murder of the wife of Respondent- accused – The find of human blood on the wrist of the respondent within hours of the incident was a telling evidence and corroborated by prosecution witnesses – Decision of the High Court held unjustified – Acquittal set aside.
Evidence
Evidence – Deceased shouting the name of her husband who was assaulting her – The High Court observing that a hindu woman does not take the name of her husband – Held that it was an extraordinary situation and there was no option if the deceased wanted her mother to realise the urgency to come and rescue her.
Evidence – Human blood – Alleged murder by respondent of his wife and escape from the scene of occurrence – Held that the presence of human blood on the wrist of the accused within hours of the incident was a telling evidence which was corroborated by prosecution witnesses – Acquittal set aside.
JUDGEMENT:
A.M. AHMADI, J. :
1. The respondent, Niranjan, and the deceased Gayatri, were married about one and a half years before the date of the incident which took place on June 26, 1976 at about 9.00 p.m. Gayatri was living with her parents. The residence of Gayatri’s parents was situate on the first floor of a two storyed building in Saharapara lane, Bargarh town. Since Gayatri had returned from the house of her husband and was not going back the latter was enraged. About 20 to 25 days before the incident, the respondent had assaulted PW 1, his father-in-law, and his wife, Gayatri. PW 1 had complained about the same to PW 9 who spoke to Niranjan’s father. Niranjan had thereafter apologised for the incident.
2. On the date of the incident, the deceased Gayatri had gone to the ground floor to answer the call of nature. Her mother, PW 2, was cooking at that time. While she was cooking she heard the cries of her daughter that Niranjan was assaulting her. On hearing the cries, she came down and found the respondent stabbing her daughter. She raised a hue and cry which attracted the attention of PW 3 – Baidehi, PW 9 – Radhamadhab Sahu and PW 11 – Jankilal Sunani. By the time these persons came, the assailant fled away. PW 11 chased him but in vain. The prosecution case is that PW 2 narrated the incident to those who had gathered at her residence. PW 1, the father of the deceased, who had gone out to purchase betel had also returned on hearing the hue and cry. PW 2 narrated the incident to him also. Thereafter, PW 1 lodged a F.I.R., Exh.I, in which he gave the name of the respondent as the assailant. An offence was registered by PW 13 under Section 302, IPC, against the respondent and after investigation the respondent was chargesheeted for the murder of his wife, Gayatri. The respondent pleaded not guilty and his defence was of total denial.
3. The prosecution examined as many as 14 witnesses, but relied mainly on the evidence of PW 2, the mother of the deceased, and sought corroboration from the evidence of PWs 1, 3 and 9, since PW 11 was treated hostile. The medical evidence clearly disclosed that Gayatri died a homicidal death. There is and can be no dispute so far as this fact is concerned.
4. The respondent surrendered at the Police Station at about 1.30 a.m. on June 27, 1976. At that time, clotted blood found on his right wrist was picked up under the seizure Memo, Exh.7, and was sent to the Chemical Examiner and Serologist for examination. The report in this behalf is that it was human blood. The blood group could not, however, be determined. Besides the ocular evidence of PWs 1, 2, 3 and 9, the prosecution placed reliance on this objective factor also. On the evaluation of the prosecution evidence, the Trial Court came to the conclusion that the guilt was established beyond reasonable doubt and convicted the respondent for the murder of Gayatri. After hearing the respondent on the question of sentence the learned Sessions Judge sentenced him to rigorous imprisonment for life.
5. The respondent preferred an appeal against the said order of conviction and sentence to the High Court of Orissa. The High Court, after considering the evidence of the mother and other witnesses, came to the conclusion that it was hazardous to place implicit reliance on the testimony of the mother, PW 2, as her testimony was in conflict with the testimony of PWs 3, 9 and 11. The High Court also found it difficult to believe that the assailant could have escaped with a blood-stained knife after he was chased by PW 11 and others. The High Court also doubted the presence of light at the place of occurrence. Taking note of the fact that PWs 3, 9 and 11 did not speak about their having heard the cry of Gayatri, the High Court felt it unsafe to convict on the sole interested testimony of PW 2. As regards the find of blood, the High Court observed that the report of the Serologist, Exh.11, describes item No.2 as ‘Soaking earth (blood)’ and no opinion has been expressed regarding that item. Considering this to be a serious discrepancy the High Court has refused to place reliance on the find of blood.
6. We have carefully read the evidence of PWs 1, 2, 3 and 9. PW 2 is the only eye-witness to the occurrence. Gayatri’s father, PW 1, had admittedly gone out to fetch betel when the incident in question occurred. PW 2 and Gayatri were awake while the other members of the family had gone to bed. Gayatri went down to answer the call of nature. PW 2 states that while she was cooking she heard Gayatri’s cry to the effect ‘Ma Daudke As, Niranjan Marta hai’. Hearing this cry, PW 2 ran down the stairs and saw the respondent stabbing her daughter with a knife. Seeing this she raised an alarm to the effect ‘Niranjan Mor Jhike Maripakauchha Dauda Dauda’. On hearing this alarm, the respondent ran away leaving Gayatri on the steps. PW 11, who arrived at the scene of occurrence, chased the assailant, but in vain. Gayatri died soon after receiving the injuries. PW 2 narrated this incident to her husband PW 1 and to others who had collected there. PW 1 corroborates her. He states that when he heard the cry, he ran towards his house and found Gayatri with stab wounds. PW 11 who was occupying a portion of the ground floor of that house, however, does not state that he had heard the shouts of Gayatri nor does he state that he had heard PW 2 mention the name of the respondent when she raised a hue and cry. That is why he was treated as hostile and cross-examined by the learned Public Prosecutor. It transpires from his evidence that he had in his earlier statements recorded under Sections 161 and 164, Criminal Procedure Code, stated that PW 2 had mentioned the name of Niranjan and he too had stated that he had seen Niranjan running away. It is, therefore, obvious that he had resiled from his earlier statements and had suppressed the true facts. But PWs 3 and 9 state in no uncertain terms that they had heard the cries of PW 2 to the effect that Niranjan had killed Gayatri. Nothing has been brought out in cross-examination to doubt their testimony. The place where the deceased had fallen was hardly three feet from the residence of PW 3. The High Court deals with the evidence as under :
“PW 3 has categorically stated that she had not heard the cry of Gayatri nor PW 11 stated so. PW 3 has also stated that in the evening she saw Niranjan coming from the side of the house of PW 1. This fact has not been stated by PW 2 or PW 1. PW 9 has also not stated about hearing of the cry of Gayatri.”
The above observations show that omission on the part of PWs 3, 9 and 11 to state that they had heard Gayatri’s shouts and on the part of PWs 1 and 2 to state that Niranjan had visited them earlier had weighed with the High Court. But the High Court failed to realise that Gayatri must have shouted when she was attacked by a knife. The omission on the part of PWs 1 and 2 to speak about Niranjan’s visit earlier in the day is of little or no consequence. Besides PW 3 merely saw Niranjan passing by the house of PW 1. PWs 1 and 2 may or may not have knowledge about the same. One further ground for disbelieving PW 2 is her statement that Gayatri had shouted that Niranjan was assaulting her. The High Court observes that a hindu woman does not take the name of her husband. But the High Court fails to realise that this was an extraordinary situation and she had no option if she wanted her mother to realise the urgency to come to her rescue.
7. The High Court then proceeds to add as under :
“PW 2 has stated that she narrated the entire incident to the persons who gathered there including PWs 3, 9 and 11. PW 1 stated that PW 2 narrated the incident, as already discussed. But curiously enough PWs 3, 9 and 11 do not support PW 2. PWs 3, 9 and 11 did not state that PW 2 shouted ‘Niranjan Mour Khukike Maripakauchi’.”
The High Court, however, overlooks the fact that both PWs 3 and 9 had deposed to PW 2 having shouted ‘Niranjan killed Gayatri’. This is clear from the discussion of the evidence of PWs 3 and 9 by the High Court itself. Yet it is difficult to understand how the High Court came to the conclusion that PWs 3 and 9 did not state that PW 2 had shouted words to the effect that Niranjan had killed Gayatri. So far as PW 11 is concerned he stands selfcondemned. If the High Court means that the exact words in Oriya reproduced by it were not stated, it is a different matter, but the High Court itself notices that both PWs 3 and 9 had in their evidence stated that they had heard the shouts of PW 2 to the effect ‘Niranjan had killed Gayatri’. It is quite possible that these witnesses may not have heard the shouts of Gayatri because much would depend on the place from where she raised the cry which attracted the attention of PW 2. But the evidence of PWs 3 and 9 is quite categorical that they had run to the place of occurrence on hearing the shouts of PW 2. He has no doubt stated that he had merely heard the word ‘Mar Diya’, but that cannot render the testimony of PWs 3 and 9 weak. We are, therefore, of the opinion that the High Court was not justified in taking the view that evidence of PWs 2, 3 and 9 conflicted with the evidence of PW 11 and, therefore, it was unsafe to place implicit reliance on the said evidence. It is also difficult to understand why the High Court felt surprised at the escape of the assailant. The assailant had the advantage of extra seconds to run from the scene of occurrence before the arrival of the prosecution witnesses. Therefore, there is nothing surprising in his having succeeded in making good his escape.
8. As regards the find of blood from the right wrist of the respondent, we have the evidence of PW 13, Junior Sub-Inspector, Bargarh Police Station. This witness has stated that after the respondent surrendered he examined him and found blood stains on the right upper palm near his wrist. He immediately contacted the Medical Officer, Bargarh, and requested him to send a compounder to lift the blood stains. On the arrival of the compounder, G.B.Panda, at about 3.30 a.m., blood scrappings were taken from the respondent’s right wrist and they were sealed in a cover. Thereafter, with the help of saline the place from where the blood stains were lifted was soaked by a blotting paper and the blotting paper was also attached and sealed under the Seizure Memo Exh.7. If we turn to the report of the Chemical Analyser we find that blood stained earth was marked ‘A’, sample earth was marked ‘B’, soaked blood from right wrist of the respondent was marked ‘C’ and scrapped blood from the right wrist of the respondent was marked ‘D’. The report of the Serologist shows that there was human blood noticed on mark ‘A’ and mark ‘D’. The ‘soaking earth (blood)’ marked ‘C’ was the one in respect of which the Serologist could not express any opinion. The clothes of Gayatri, which were attached, were also stained with human blood. The learned Trial Judge in paragraph 12 of his judgment has stated that the clotted blood stains removed from the right wrist of the respondent were found to be of human origin. The High Court, with respect, did not carefully read the reports of the Chemical Examiner and Serologist. The High Court merely noticed that in respect of mark ‘C’, soaked earth (blood), the Serologist had not expressed any opinion. But the High Court omitted to notice that in respect of the blood scrappings taken from the right wrist of the respondent and marked ‘D’ the Serologist opined that it was of human origin, although it was insufficient to determine the group. Mark ‘D’ at Item No.3 in the report of the Serologist has escaped the attention of the High Court. The find of human blood on the wrist of the respondent within hours after the incident, is telling evidence. It corroborates the testimony of PW 2. PWs 3 and 9 lend corroboration to her evidence when she states that she had raised a hue and cry that Niranjan had killed her daughter. We are of the opinion that the High Court was not justified in interfering with the well reasoned judgment of the Trial Court convicting the respondent herein. In fact, we are afraid that the decision of the High Court is against the weight of evidence which is clearly tilted against the respondent. We, therefore, cannot allow the decision of the High Court to stand.
9. In the result, we allow this appeal, set aside the order of the High Court acquitting the respondent and restore the order of the Trial Court convicting him for the murder of Gayatri and sentencing him to imprisonment for life. The accused will surrender to his bail and serve out his sentence.
1. The respondent, Niranjan, and the deceased Gayatri, were married about one and a half years before the date of the incident which took place on June 26, 1976 at about 9.00 p.m. Gayatri was living with her parents. The residence of Gayatri’s parents was situate on the first floor of a two storyed building in Saharapara lane, Bargarh town. Since Gayatri had returned from the house of her husband and was not going back the latter was enraged. About 20 to 25 days before the incident, the respondent had assaulted PW 1, his father-in-law, and his wife, Gayatri. PW 1 had complained about the same to PW 9 who spoke to Niranjan’s father. Niranjan had thereafter apologised for the incident.
2. On the date of the incident, the deceased Gayatri had gone to the ground floor to answer the call of nature. Her mother, PW 2, was cooking at that time. While she was cooking she heard the cries of her daughter that Niranjan was assaulting her. On hearing the cries, she came down and found the respondent stabbing her daughter. She raised a hue and cry which attracted the attention of PW 3 – Baidehi, PW 9 – Radhamadhab Sahu and PW 11 – Jankilal Sunani. By the time these persons came, the assailant fled away. PW 11 chased him but in vain. The prosecution case is that PW 2 narrated the incident to those who had gathered at her residence. PW 1, the father of the deceased, who had gone out to purchase betel had also returned on hearing the hue and cry. PW 2 narrated the incident to him also. Thereafter, PW 1 lodged a F.I.R., Exh.I, in which he gave the name of the respondent as the assailant. An offence was registered by PW 13 under Section 302, IPC, against the respondent and after investigation the respondent was chargesheeted for the murder of his wife, Gayatri. The respondent pleaded not guilty and his defence was of total denial.
3. The prosecution examined as many as 14 witnesses, but relied mainly on the evidence of PW 2, the mother of the deceased, and sought corroboration from the evidence of PWs 1, 3 and 9, since PW 11 was treated hostile. The medical evidence clearly disclosed that Gayatri died a homicidal death. There is and can be no dispute so far as this fact is concerned.
4. The respondent surrendered at the Police Station at about 1.30 a.m. on June 27, 1976. At that time, clotted blood found on his right wrist was picked up under the seizure Memo, Exh.7, and was sent to the Chemical Examiner and Serologist for examination. The report in this behalf is that it was human blood. The blood group could not, however, be determined. Besides the ocular evidence of PWs 1, 2, 3 and 9, the prosecution placed reliance on this objective factor also. On the evaluation of the prosecution evidence, the Trial Court came to the conclusion that the guilt was established beyond reasonable doubt and convicted the respondent for the murder of Gayatri. After hearing the respondent on the question of sentence the learned Sessions Judge sentenced him to rigorous imprisonment for life.
5. The respondent preferred an appeal against the said order of conviction and sentence to the High Court of Orissa. The High Court, after considering the evidence of the mother and other witnesses, came to the conclusion that it was hazardous to place implicit reliance on the testimony of the mother, PW 2, as her testimony was in conflict with the testimony of PWs 3, 9 and 11. The High Court also found it difficult to believe that the assailant could have escaped with a blood-stained knife after he was chased by PW 11 and others. The High Court also doubted the presence of light at the place of occurrence. Taking note of the fact that PWs 3, 9 and 11 did not speak about their having heard the cry of Gayatri, the High Court felt it unsafe to convict on the sole interested testimony of PW 2. As regards the find of blood, the High Court observed that the report of the Serologist, Exh.11, describes item No.2 as ‘Soaking earth (blood)’ and no opinion has been expressed regarding that item. Considering this to be a serious discrepancy the High Court has refused to place reliance on the find of blood.
6. We have carefully read the evidence of PWs 1, 2, 3 and 9. PW 2 is the only eye-witness to the occurrence. Gayatri’s father, PW 1, had admittedly gone out to fetch betel when the incident in question occurred. PW 2 and Gayatri were awake while the other members of the family had gone to bed. Gayatri went down to answer the call of nature. PW 2 states that while she was cooking she heard Gayatri’s cry to the effect ‘Ma Daudke As, Niranjan Marta hai’. Hearing this cry, PW 2 ran down the stairs and saw the respondent stabbing her daughter with a knife. Seeing this she raised an alarm to the effect ‘Niranjan Mor Jhike Maripakauchha Dauda Dauda’. On hearing this alarm, the respondent ran away leaving Gayatri on the steps. PW 11, who arrived at the scene of occurrence, chased the assailant, but in vain. Gayatri died soon after receiving the injuries. PW 2 narrated this incident to her husband PW 1 and to others who had collected there. PW 1 corroborates her. He states that when he heard the cry, he ran towards his house and found Gayatri with stab wounds. PW 11 who was occupying a portion of the ground floor of that house, however, does not state that he had heard the shouts of Gayatri nor does he state that he had heard PW 2 mention the name of the respondent when she raised a hue and cry. That is why he was treated as hostile and cross-examined by the learned Public Prosecutor. It transpires from his evidence that he had in his earlier statements recorded under Sections 161 and 164, Criminal Procedure Code, stated that PW 2 had mentioned the name of Niranjan and he too had stated that he had seen Niranjan running away. It is, therefore, obvious that he had resiled from his earlier statements and had suppressed the true facts. But PWs 3 and 9 state in no uncertain terms that they had heard the cries of PW 2 to the effect that Niranjan had killed Gayatri. Nothing has been brought out in cross-examination to doubt their testimony. The place where the deceased had fallen was hardly three feet from the residence of PW 3. The High Court deals with the evidence as under :
“PW 3 has categorically stated that she had not heard the cry of Gayatri nor PW 11 stated so. PW 3 has also stated that in the evening she saw Niranjan coming from the side of the house of PW 1. This fact has not been stated by PW 2 or PW 1. PW 9 has also not stated about hearing of the cry of Gayatri.”
The above observations show that omission on the part of PWs 3, 9 and 11 to state that they had heard Gayatri’s shouts and on the part of PWs 1 and 2 to state that Niranjan had visited them earlier had weighed with the High Court. But the High Court failed to realise that Gayatri must have shouted when she was attacked by a knife. The omission on the part of PWs 1 and 2 to speak about Niranjan’s visit earlier in the day is of little or no consequence. Besides PW 3 merely saw Niranjan passing by the house of PW 1. PWs 1 and 2 may or may not have knowledge about the same. One further ground for disbelieving PW 2 is her statement that Gayatri had shouted that Niranjan was assaulting her. The High Court observes that a hindu woman does not take the name of her husband. But the High Court fails to realise that this was an extraordinary situation and she had no option if she wanted her mother to realise the urgency to come to her rescue.
7. The High Court then proceeds to add as under :
“PW 2 has stated that she narrated the entire incident to the persons who gathered there including PWs 3, 9 and 11. PW 1 stated that PW 2 narrated the incident, as already discussed. But curiously enough PWs 3, 9 and 11 do not support PW 2. PWs 3, 9 and 11 did not state that PW 2 shouted ‘Niranjan Mour Khukike Maripakauchi’.”
The High Court, however, overlooks the fact that both PWs 3 and 9 had deposed to PW 2 having shouted ‘Niranjan killed Gayatri’. This is clear from the discussion of the evidence of PWs 3 and 9 by the High Court itself. Yet it is difficult to understand how the High Court came to the conclusion that PWs 3 and 9 did not state that PW 2 had shouted words to the effect that Niranjan had killed Gayatri. So far as PW 11 is concerned he stands selfcondemned. If the High Court means that the exact words in Oriya reproduced by it were not stated, it is a different matter, but the High Court itself notices that both PWs 3 and 9 had in their evidence stated that they had heard the shouts of PW 2 to the effect ‘Niranjan had killed Gayatri’. It is quite possible that these witnesses may not have heard the shouts of Gayatri because much would depend on the place from where she raised the cry which attracted the attention of PW 2. But the evidence of PWs 3 and 9 is quite categorical that they had run to the place of occurrence on hearing the shouts of PW 2. He has no doubt stated that he had merely heard the word ‘Mar Diya’, but that cannot render the testimony of PWs 3 and 9 weak. We are, therefore, of the opinion that the High Court was not justified in taking the view that evidence of PWs 2, 3 and 9 conflicted with the evidence of PW 11 and, therefore, it was unsafe to place implicit reliance on the said evidence. It is also difficult to understand why the High Court felt surprised at the escape of the assailant. The assailant had the advantage of extra seconds to run from the scene of occurrence before the arrival of the prosecution witnesses. Therefore, there is nothing surprising in his having succeeded in making good his escape.
8. As regards the find of blood from the right wrist of the respondent, we have the evidence of PW 13, Junior Sub-Inspector, Bargarh Police Station. This witness has stated that after the respondent surrendered he examined him and found blood stains on the right upper palm near his wrist. He immediately contacted the Medical Officer, Bargarh, and requested him to send a compounder to lift the blood stains. On the arrival of the compounder, G.B.Panda, at about 3.30 a.m., blood scrappings were taken from the respondent’s right wrist and they were sealed in a cover. Thereafter, with the help of saline the place from where the blood stains were lifted was soaked by a blotting paper and the blotting paper was also attached and sealed under the Seizure Memo Exh.7. If we turn to the report of the Chemical Analyser we find that blood stained earth was marked ‘A’, sample earth was marked ‘B’, soaked blood from right wrist of the respondent was marked ‘C’ and scrapped blood from the right wrist of the respondent was marked ‘D’. The report of the Serologist shows that there was human blood noticed on mark ‘A’ and mark ‘D’. The ‘soaking earth (blood)’ marked ‘C’ was the one in respect of which the Serologist could not express any opinion. The clothes of Gayatri, which were attached, were also stained with human blood. The learned Trial Judge in paragraph 12 of his judgment has stated that the clotted blood stains removed from the right wrist of the respondent were found to be of human origin. The High Court, with respect, did not carefully read the reports of the Chemical Examiner and Serologist. The High Court merely noticed that in respect of mark ‘C’, soaked earth (blood), the Serologist had not expressed any opinion. But the High Court omitted to notice that in respect of the blood scrappings taken from the right wrist of the respondent and marked ‘D’ the Serologist opined that it was of human origin, although it was insufficient to determine the group. Mark ‘D’ at Item No.3 in the report of the Serologist has escaped the attention of the High Court. The find of human blood on the wrist of the respondent within hours after the incident, is telling evidence. It corroborates the testimony of PW 2. PWs 3 and 9 lend corroboration to her evidence when she states that she had raised a hue and cry that Niranjan had killed her daughter. We are of the opinion that the High Court was not justified in interfering with the well reasoned judgment of the Trial Court convicting the respondent herein. In fact, we are afraid that the decision of the High Court is against the weight of evidence which is clearly tilted against the respondent. We, therefore, cannot allow the decision of the High Court to stand.
9. In the result, we allow this appeal, set aside the order of the High Court acquitting the respondent and restore the order of the Trial Court convicting him for the murder of Gayatri and sentencing him to imprisonment for life. The accused will surrender to his bail and serve out his sentence.
