1. Heard further argument from the parties. Hearing is concluded and the Judgment is as follows.
2. Jyoti Behera, wife of Saroj Kumar Behera (P.W.12) is the deceased in this case. She suffered death on 16.06.2000, and accepting that as homicidal death and the Appellant being the author of the same, Learned Sessions Judge, Khurda at Bhubaneswar convicted the Appellant u/s 302, I.P.C. and sentenced him to imprisonment for life. That order of conviction is under challenge by the Appellant.
3. According to the case of the prosecution, P.W.12 Saroj Kumar Behera and the Appellant were friends and in visiting terms. By the date of occurrence, i.e., 16.06.2000, P.W.12 was working as a vehicle driver and on that date he, being on duty, was absent from his rented residence in Sadangi Colony at Palasuni, Bhubaneswar. The deceased was in the house of the adjoining neighbour, i.e., Azizulla Khan (P.W.8) and watching television. Then Nushrat Begum (P.W.13) being the wife of P.W.8 and Afanur Khan '' Papu (P.W.14) being the nephew (sister''s son) of P.W.8 were in that house. At about 9.30 p.m. accused came and called the deceased and therefore the deceased left the house of P.W.8 and came to her house. Shortly thereafter she cried for help, which drew attention of the neighbours and when they gathered there, they saw through the open window from outside of the room that accused was sitting over the deceased in half naked condition and throttling her. Such witnesses did not interfere out of fear of the accused, but they bolted the door of that room from outside and informed Debendra Kumar Sarangi (P.W.1), the landlord, who arrived at the spot together with his son Manoj Kumar Sarangi (P.W.2). They found that the deceased had already suffered death and the accused had been detained and, therefore, Mancheswar Police Station was informed over telephone about the occurrence. Thereafter the investigating agency took charge of the case starting from registration of F.I.R., arrest of the accused, conducting inquest over the dead body, examination of witnesses, examination of the accused by the doctor, seizure of incriminating materials, employing scientific officers of the District Forensic Science & Laboratory to inspect the occurrence room and to take photographs and forwarding of incriminating materials for scientific analysis, etc. Ultimately Appellant was charge-sheeted and in the Court of Sessions he was made to face the trial for the charge u/s 302, I.P.C.
4. To substantiate the charge, prosecution relied on the evidence of 16 witnesses and documents marked Exts. 1 to 22 and the Material Objects marked M.Os. I to XVIII. Accused denied to the charge but did not adduce any defence evidence.
5. Learned Sessions Judge referring to the evidence of P.W.8 Dr. Santosh Kumar Mishra, who conducted autopsy on the dead body of the deceased and the post-mortem report Ext. 11 besides the opinion report Ext. 12, held that the deceased suffered homicidal death due to asphyxia resulting from strangulation.
6. Learned Sessions Judge referred to the evidence of the eye- witnesses, i.e., P.Ws.4,8,10,13 and 14. Amongst them P.W.4 Pradeep Patra and P.W.8 Azizulla Khan did not support the prosecution and turned hostile. On the other hand P.W.10 Kishore Chandra Jena, P.W.13 Nushrat Begum and P.W.14 Afanur. Khan '' Papu wholeheartedly supported the prosecution. Learned Sessions Judge declined to give any advantage to the Appellant on the basis of the evidence of P.W s. 4 and 8 for the reasons recorded in the impugned Judgment. He found the evidence of P.Ws.10,13 and 14 sufficient to prove the evidence of P.Ws.4 and 8 to be untrue. In that respect Learned Sessions Judge also referred to the evidence of PW.11, Dr. Khirod Kumar Rout, who examined the accused on 17.06.2000 as per police requisition and noticed injuries on his body and opined that such injuries are possible in course of struggle by the victim at the time of occurrertce. Learned Sessions Judge also took into consideration evidence of P.W.7 and his report, Ext.9, together with the photographs Exts.8 series of the spot and the deceased. From such evidence Learned Sessions Judge recorded that prosecution has been able to prove that accused is the author of the strangulation which resulted in homicidal death of the deceased. Learned Sessions Judge rejected the argument of the Appellant for granting any benefit to him for not tendering any evidence by the prosecution to prove the motive and intention. Accordingly, Learned Sessions Judge passed order of conviction and sentence against the Appellant.
7. In course of submission, Mr. Dash, Learned Counsel appearing for the Appellant makes best of his efforts to wriggle out the Appellant from the aforesaid order of conviction and in furtherance thereof he argues that evidence of P.Ws.10, 12 and 13 runs contradictory to each other about the words uttered by the deceased while shouting for help. He argues that such discrepancy in their evidence makes such witnesses unreliable. On perusal of the evidence of P.W.10, we find that P.W.10 has stated that at about 9.30 p.m. he returned to the colony after taking his dinner and then P.W.14 informed him that somebody had entered into the house of the deceased. P.W.10 went up to that house and through the window he saw that the deceased was laying on the bed on the floor and a person was throttling her neck. He requested the other persons, who were present there, to enter inside, but since no body dared, they did not enter inside with the apprehension that the miscreant might be armed. He bolted the door from outside and went to inform P.Ws.1 and 2 about the incident. On his return he found that accused had been detained and P.Ws.1 and 2 also soon came to the spot. Nothing substantial has been brought out in course of the cross-examination so as to shake the credibility of these witnesses in the aforesaid aspect. P.W.13 while narrating that the deceased was in her house watching television, she also stated that on being called by the accused, deceased went to her house and sometimes thereafter she (P.W.13) heard the cry of the deceased shouting ''MARIGALI ... MARIGALI''. She went to the house of the deceased, some of the colony people had already gathered there and she saw through the open window that accused was throttling the neck of the deceased by sitting on her chest. She also stated that none of the colony people dared to enter into the room with the apprehension that the accused may be carrying weapons. She also stated that the colony people caught hold of the accused and after arrival of the police he was handed over to it. In course of the cross- examination attempt was made by the defence to show that she was not present in the colony on that date. But, in that respect the accused signally failed. On the other hand, in the course of lengthy cross-examination by the accused, nothing has been brought out to destroy the evidence of this witness. P.W.14, the nephew of P.Ws.8 and 13 (''Bhanaja'') was about 17 years old on the date of his deposition in July, 2002. Therefore, he was about 15 years old by the date of occurrence. In his evidence he repeated the same story like P.W.13, but he stated that on hearing commotions near the house of the deceased he went there and peeped through the window and saw the occurrence in the same manner as stated by others. It reveals from the evidence of P.W.13 that in the examination-in-chief though she statedthat she heard the sound of ''MARIGALI... MARIGALI'', but in the cross-examination it was suggested to her and she denied that she has stated that she heard the sound of ''RAKHYA KARA". Hardly the aforesaid could be recorded as a contradiction so as to doubt the veracity of this witness.
8. In view of the evidence of P.W.8, Appellant argues that P.Ws.13 and 14 could not have been at Sadangi Colony in the occurrence night. On reading of the evidence of P.W.8 together with the evidence of P.Ws.10,13 and 14, it leaves no room for doubt that P.W.8 has resiled from the prosecution and showed interestedness towards the accused and made such a statement. Admittedly, P.W.8 was a person, who was available to the investigating agency in course of the investigation. If P.Ws.13 and 14 were not present at the time of occurrence, they could not have made statement together with P.W.8 in course of their examination u/s 161, Cr.P.C. Merely because RW.8 choose to support the accused while in the Witness Box, his version cannot be regarded as gospel truth so as to eliminate the evidence of RW. 10, which corroborates relating to presence of P.Ws. 13 and 14 at the spot of occurrence and that being also evident from the evidence of P.W.16, who undertook investigation and recorded their statement. Therefore, the aforesaid argument of the Appellant is without any merit and accordingly rejected.
9. Learned Counsel for the Appellant argues that even if the entire prosecution case is accepted as true, then in the absence of a motive with the accused the allegation of committing murder appears to be improbable. He argues that when the husband of the deceased was not available in the house and the accused appeared at 9.30 p.m., according to the normal human conduct the deceased should not have responded to the call of the accused to come to her house. He further argues that admittedly the medical opinion rules out possibility of committing rape on her and under such circumstance motive plays a vital role in this case and without proof of motive; accused is entitled to benefit of doubt. In that respect Appellant relies on the case of Ram Krishna Acharya v. State of Orissa, 2003 (Supp) OLR 899. In that Short Note it has been recorded that, "No intention pf the Appellant to commit murder of the deceased - Not a fit case where conviction of the Appellant u/s 302, I.P.C. can be sustained. -Conviction altered to one u/s 304, Part II, I.P.C. In the absence of facts available to their Lordships to take such a decision, being not available to us, and in the absence of any circumstance in the present case to minimize the charge, the aforesaid citation is of no assistance to the Appellant. Appellant also relies on the case of Kishore Chandra Sahu and Anr. v. State of Orissa 2003 (1) OLR 470. In paragraph-7 of that cited Judgment the Division Bench held that
Learned Counsel for the Appellants, however, submitted that Appellant Kishore had no intention to cause the death. He assaulted the deceased at the spur of the moment on being instigated by the other Appellant. Evidence on record indicates that the deceased Brundaban had come to the spot to pacify the quarrel which had ensued between the Appellant on the one hand and P.W.5 on the other. The Appellant Kishore had, therefore, no intention to cause the death of the deceased Brundaban npr had he any such intention to cause such bodily injury as was likely to cause the. death. Therefore, we hold him guilty u/s 304, Part-ll, I.P.C. We accordingly hold the Appellant Gopal Sahu guilty u/s 109, I.P.C. read with Section 304, Part-ll thereof.
(Paragraph-7 of the cited Judgment)
The above quoted passage clearly indicates''distinctive features available in that case about provocation. Such a fact situation is completely absent in this case. Therefore, the aforesaid decision does not help the Appellant.
10. In the above context, Learned Standing Counsel places reliance on the case of
Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessary be proportionately grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Red v. Palmer (Shorthand Report at page 308 May, 1856) thus: "But if there be any motive which can be assigned. I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal Courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties". Though, it is a sound presumption that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailants. In
(Paragraph-10 of the cited Judgment)
Therefore, in this case, Appellant is not to get any benefit on the aforesaid-ground of non-proof of the motive or intention. The photographs, Ext.8 series give the tale tell circumstance and, as rightly observed in the above quoted decision, the thought process of the accused cannot be textualised so as to bring the fact on record to prove the motive/intention. Under such circumstance, argument of the Appellant also bears no merit.
11. Relying on the aforesaid two citations from Orissa High Court, Learned Counsel for the Appellant argues that if the hidden motive of the Appellant is sensed from Ext.8 series, then accused had not come to the spot with the intention to commit murder of the deceased but with other purpose and, under such circumstance the act of throttling might have resulted in death of the deceased, but that was without any intention and, therefore, since the Appellant has already spent about eight years in jail custody, his conviction may be recorded u/s 304, I.P.C. and he be set at liberty.
12. Because of the clear evidence on record and the conscious act of the accused in throttling the deceased, the aforesaid argument does not hold good in as much as by the date and time of occurrence accused was well aware of the fact .that deceased was the married wife of his friend and the friend was absent from the house and, therefore, notwithstanding that if he exhibited an act of utter distrust and committed the murder of the deceased, then the offence of homicide is not minimized if at all the accused had come with another intention. The offence became more heinous than a normal murder. Under such circumstance, the alternative argument of the Appellant for his conviction u/s 304, I.P.C. is also without any merit.
13. Appellant does not raise any other point challenging his conviction.
14. For the reasons recorded above, we maintain the impugned order of conviction and sentence imposed by the Learned Sessions Judge on the accused-Appellant Suriya 9 Surendra Kumar Sahu and accordingly dismiss the Jail Criminal Appeal.
