Bhima Behera vs The State

S. Acharya, J.—The Appellant Bhima Behera stands convicted u/s 302, Indian Penal Code and has been sentenced thereunder to undergo R.I. for life.

The prosecution case In short is that while Bishnu Charan was sleeping with his wife and children in the night of the 5th/6th July, 1974, the Appellant along with two others, being armed with knives, entered Into the bed room of Bishnu Charan and the Appellant suddenly stabbed the latter. When the deceased tried to resist further attack ham the Appellant, his associates actively assisted the Appellant to deal further blows on the deceased with his knife. When Bishnu Charan could no further resist the attack of the Appellant the accused persons carried Bishnu Charan outside his house and left him in a field nearby. In course of the aforesaid incident Hemanta Kumari (P.W. 4), the wife of Bishnu, cried out for help, and P.W. 2, the mother of Bishnu, P.W. 3, the son of Bishnu and P.W. 5, a woman who was staying in another room of that house, got up from their sleep and hurried towards the bed room of Bishnu. When P.Ws. 3 and 5 came near the bed room, they saw the accused persons carrying Bishnu out of his bed room to the neighbouring field. The accused persons there left Bishnu and ran away from that place. P.Ws. 3 and 5 brought Bishnu from the neighbouring field and as he was bleeding profusely from the wounds sustained by him, he was sent to the Medical College Hospital at Cuttack for treatment. P.W. 1 the elder brother of the Injured, who was a way from the house in the night at occurrence, being informed about the occurrence by P.W. 2 went to the Mangalabag P.S. at Cuttack and lodged the F.I.R, Ext. 1 in the said P.S. Then P.W. 10, the I.O. took up investigation into the case. The injured Bishnu Charan succumbed to his injuries at 2-25 p.m. on the 6th July, 1974. After completion of the investigation and the committal proceeding, the accused persons stood their trial for a charge u/s 302/34, Indian Penal Code on the allegation of having intentionally committed the death of Bishnu Charan in furtherance of the common intention of all of them.

All the accused persons including the Appellant pleaded not guilty to the charge. They pleaded that they were falsely implicated in this case.

The trial Court has acquitted accused Gobinda and Arakhita, but has convicted the Appellant u/s 302, Indian Penal Code.

The doctor, P.W. 11, who at, first examined the deceased in an injured condition in the S.C.B. Medical College Hospital, Cuttack at about 2.25 a.m. on 6-7-1974, found the following three injuries on the person of the deceased:

(1) A stab wound on the right arm at the junction of the posterior axillary fold and the arm 1/2" away from the axilla. The dimensions of this injury were 1" x 3/4" x 3/4" .

(2) A stab wound 3" below the angle of the right scapula 3/4" x 1/2" .

(3) A stab injury to the right flank 2" x I" through which a loop of small intestine was protruding outside.

P.W. 11 has opened that the said injuries were caused by stabbing the deceased by means of a knife, and the injuries in the intestine could be caused by once thrusting a knife into tile intestine and then by drawing it and pushing it again into the intestine. He also opined that the injuries to the intestine were sufficient in the ordinary course of nature to cause the death of the deceased even if gangrene had not been found. He also categorically stated that the injured must have died even if he had not undertaken the operation. Within a short time of the admission of the injured in the hospital. P.W. 11 took up operation in order to save the patient, but the deceased died on the same day at 2.25 p.m. He has further stated that none of the surgical operations caused the death of the Injured.

P.W. 7, who held the autopsy on the dead body at 11.30 a.m. on 7-7-1974, found the following injuries:

(1) Four incised wounds each of size 1/2" x 1/4" x 1/6" at the palmer aspect of distal phalanges of the right second, third fourth and fifth fingers.

(2) A stab wound 11/2" x 1/2" x 2" at the upper angle of the posterior axillary fold of the right side.

(3) Abrasion 2" x 1" over the left patella.

(4) One incised wound 3'' x 1/4" skin deep just above the middle of right clavicle.

(5) One abrasion 2" x 1/6" over the forehead just right to midline.

(6) A surgical wound 2" below the rib margin on the right side. It appeared that this surgical wound had been caused during the treatment.

(7) A stab wound 1" x 1/4" x 1/2" situated 2" below the lower angle of right scapula. On dissection it was found that the intercostal muscles had been cut. The parietal pleura was also injured. On further opening, 2 ozs. of blood inside the pleural sac was found.

(8) On opening the abdominal cavity P.W. 7 found that the upper part of the small intestine was congested and hypereamic.

(9) Two anastomosis were seen on the intestine which had been done for treatment.

(10) Inside the abdomen P.W. 7 found that mesentery had been stitched up at three spots during the treatment.

P.W. 7 opined that all the injuries described by him above were ante-mortem in nature and they were sufficient in the ordinary course of nature to cause death. He also opined that injury Nos. 8 to 10 were sufficient to cause the death of the deceased in the ordinary course of nature as these injuries were on the intestine and for which treatment had been given. His statement'' in cross-examination that it was not possible for him to definitely say as to whether the said injuries to the intestine had resulted owing to stab injuries inflicted by assailants or owing to surgery by a doctor is of no consequence in view of the aforesaid evidence of P.W. 11

The Court below has rightly arrived at the finding that on the evidence of P.Ws. 7 and 11 it is established beyond doubt that the death of the deceased was homicidal. The above finding was also not seriously challenged.

It is not necessary to enumerate the evidence on the record which relates to accused Arakhita and Govinda, except that which is essentially necessary or inter linked with the evidence required to appreciate the case against the Appellant, as Arakhita and Gobinda have been acquitted in this case and there is no Government Appeal against the said order of acquittal.

With regard to the actual occurrence of stabbing the deceased, P.W. 4, the wife of the deceased, is the only eye witness. P.W. 3 has identified Appellant Bhima as one of the persons, who carried the deceased from his house to the neighbouring field.

P.Ws. 1 to 4 and P.W. 6 are the witnesses who speak about the alleged dying declarations made by the deceased at different stages.

The Court below, for reasons stated in the impugned judgment, has expressed its reluctance to accept the evidence of the dying declarations adduced in this case. So, we would better discard the evidence on that aspect, though on the argument advanced by the learned Standing Counsel for the state we at one time were inclined to accept that evidence.

P.W. 4 has deposed about the occurrence in its entirety. On an elaborate and convincing discussion and consideration of the evidence of P.W. 4 along with the other evidence on record the Court below has arrived at a firm and definite finding that accused Bhima (the Appellant) only stabbed the deceased with a knife and the injuries caused thereby were sufficient in the ordinary course of nature to cause the death of the deceased, and accordingly the Appellant is guilty of the offence u/s 302, Indian Penal Code.

P.W. 4, being the wife of the deceased, it was normally and naturally expected that she would be in the bed room of the deceased at the relevant time where the occurrence took place. The Appellant and the deceased were both residents of Sikharpur, in the suburbs of the Cuttack town. P.W. 4 has stated that she knew the Appellant by name. She has given convincing reasons for her identifying the Appellant when he got inside the deceased's bed room in the night of occurrence and inflicted stab injuries on the deceased. We see absolutely no reason to differ from the finding of the Court below that this witness could very clearly identify the Appellant out of the three persons who had entered into the deceased's bed room in the night of occurrence.

With regard to the occurrence proper, she has testified to the fact that by about 2 a.m. in the night of occurrence when she was sleeping with her husband and her young children in the bed room she woke up on hearing the sound of opening of the back door of the bed room. When she woke up she saw the Appellant inside the room and as soon as she challenged him as to why he had come there, Bhima suddenly stabbed the deceased on the right side of his back near the armpit and again on the right side of the back behind the belly with a big knife. At that time P.W. 4 saw two other persons inside the house, but she could not recognise them as they had partially covered their faces with cloth. The deceased, on being attacked by Bhima in the aforesaid manner caught hold of Bhima's hands, but one of the other intruders inside that room forcibly extricated Bhima's hand from the clutches of the deceased and then Bhima again stabbed the deceased with the knife in his hand. Immediately thereafter the Appellant and his two other associates physically lifted the deceased and carried him outside the room. P.W. 4 cried out for help and P.Ws. 3 and 5 came running to that place. The testimony of P.W. 4 to the above effect gets corroboration on certain material particulars from the evidence of p. ws. 3 and 5. Though her testimony to the effect that the Appellant stabbed thrice at different parts of the deceased's body as stated above is not directly corroborated by any other witnesses, her testimony to that effect inspires confidence as that has not been successfully assailed in cross-examination and there is no convincing reason to discard her testimony to that effect. Moreover, her evidence finds corroboration from the injuries found on the person of the deceased by P.W. 11 who examined the deceased within a very short time after the occurrence (at 2,25 a.m.) in the night of the occurrence itself, and by P.W. 7, the doctor who held the autopsy on the dead body of the deceased. The recovery of M.O. II, pillow cover stained with human blood, lends further assurance to the evidence of P.W. 4 that the stab injuries to the deceased was caused inside the bed room of the deceased. Nothing has been suggested as to why P.W. 4 would falsely ascribe all the fatal blows to the Appellant alone and implicate the Appellant of a false case of murder without actually implicating the real culprit. She has given Very convincing reasons for her identifying the Appellant as the person who caused the stab injuries on her husband. If she was prone to falsehood, she could have implicated the other two accused persons at least accused Govinda by false evidence of identification. On the other hand, she in her examination-in-chief itself stated that she could not identify the other two accused persons and that those two persons did not cause any injury on the deceased. A reading of her evidence inspires confidence, and we, do not see any reason to discard her testimony.

P.W. 3 the son of the deceased, who was about 17 years old, was sleeping in the outer room of the deceased's house. He has testified to the fact that on h eating the cries of her mother (P.W. 4) he got up and went near the bed room of the deceased. When he went there he saw Bhima (Appellant) and Gobinda (since acquitted) carrying away the deceased towards the neighbouring field. He has very categorically stated that Bhima had caught hold of his father's body while accused Gobinda had caught hold of his father's legs. He further stated that his father was carried by the accused persons to a distance of about 30-40 cubits from their house and was left there, and the accused persons filed away from that place. P.Ws. 3 and 5 then went near the deceased and there they found bleeding injuries on his person. From there they brought him to their house, and thereafter the deceased was taken to the Medical College Hospital. His evidence to the above effect has not been successfully assailed, and on a careful perusal of his evidence are satisfied that there is nothing to disbelieve his evidence to the above effect. His evidence lends assurance to the evidence of P.W. 4 that the Appellant was one of the persons who took part in the said occurrence.

P.W. 5 has deposed in the Court that in the night of occurrence she and P.W. 2 were sleeping outside the house of the deceased, and at about 2 a.m. she woke up on hearing the cry of P.W. 4, she saw one person was standing in front of the door of the said house and two other persons were carrying Bishnu (deceased) from inside the house towards the neighbouring field. Thereafter she and P.W. 3 went to the field, and from there they carried Bishnu, who was lying there injured with bleeding injuries, to the house and thereafter Bishnu was sent to the Medical College Hospital. Though in her deposition in Court she stated that she could not identify the three accused persons she had stated before the 1.O. that she in the moonlit night, could easily recognise the Appellant and accused Gobinda out of the three persons who had got inside the deceased's house in the night of occurrence. Her said statement before the I.O. is not subtsantive evidence in this case and so the same cannot be utilised against the accused persons. However, she corroborates the evidence of P.Ws. 3 and 4 to the extent that in the night of occurrence the deceased was carried from his house to the neighbouring field and there he was left with bleeding injuries on his person, and P.Ws. 3 and 5 brought him back to his house, from where he was sent to the Medical College Hospital.

On a perusal of the evidence of P.Ws. 3, 4 and 5 we are convinced that it is established beyond reasonable doubt that in the night of occurrence the Appellant caused the stab injuries on the person of Bishnu (deceased) inside his bed room and thereafter the Appellant along with his associates carried the injured away from his house to the neighbouring field and left him there.

Mr. Panda tried to assail the testimony of P.W. 4 on certain grounds which all have been discussed and dealt with satisfactorily by the learned Sessions Judge in the Impugned judgment. The grounds and reasonings on which Mr. Panda's comments against P.W. 4''s evidence have been repelled and discarded are good and convincing, and we do not find any reason to doubt her testimony on the said comments. As Mr. Panda has not raised any new comment against P.W. 4''s evidence other than those raised and dealt with by the Court below, we need not again catalogue Mr. Panda's comments on this aspect. The Court below has no doubt found that the prosecution has not been able to establish any motive for the said crime. It is well settled that it is not essentially necessary for the prosecution to establish the motive for such a crime, and on the failure of the prosecution to establish the motive for such a crime the prosecution case if established on clear, cogent and reliable evidence cannot be thrown over board. Of course when motive is not established the Court should scrutinise the evidence on record, particularly of the eye witnesses, with greater care and caution. Nachhittar Singh Vs. The State of Punjab, .

Mr. Panda has contended that the Appellant having been charged u/s 302 read with Section 34, Indian Penal Code along with two other persons, on the acquittal of those two other persons, the Appellant cannot be convicted u/s 302, Indian Penal Code. There is no substance in the above contention. It is well settled that where a charge u/s 302 read with Section 34, Indian Penal Code is levelled against several accused persons and all excepting one, are acquitted, still the said one accused can legally he convicted u/s 302, Indian Penal Code even though no alternative charge thereunder had been framed against him, provided of course no prejudice thereby is caused to the accused, that is he had adequate notice of that fact during the trial; had clearly understood the nature of the offence alleged against him and he was afforded full and fair opportunity in the trial to defend himself of the said allegation. In the absence of prejudice and on the proof of the fact that one of the accused individually and intentionally caused the death of the deceased or intentionally caused the injuries on the deceased which were sufficient in the ordinary course of nature to cause the death of the deceased, that accused though charged u/s 302/34. Indian Penal Code can be convicted u/s 302. Indian Penal Code even in the absence of an alternative charge to that effect. In this connection the decisions reported in Willie (William) Slaney Vs. The State of Madhya Pradesh, and Gola Behera v. State ILR 1969 Cutt 887, may be seen.

In this case, P.W. 4 has clearly, categorically and consistently deposed that the Appellant alone dealt all the stab injuries on the person of the deceased. On the evidence of P.Ws. 7 and 11 it is established beyond doubt that the stab injuries caused on the deceased's abdomen in the said occurrence were sufficient in the ordinary course of nature to cause his death. From the evidence led by the Appellant, it is very clear that the Appellant fully knew that the responsibility of calling the injuries on the deceased was squarely levelled against him alone. So the Appellant had adequate notice of the above case against him. There is nothing to show that he did not understand the nature of the said allegation against him. The Appellant was defended by a counsel and from the trend of the cross-examination and the defence argument in the trial Court it is quite evident that the defence was alive to the aforesaid allegation against the Appellant. On the prosecution evidence on offence u/s 302, Indian Penal Code is clearly made against the Appellant and he has not been held guilty of the said offence by any conjecture or presumption. So, the legality of the conviction of the Appellant u/s 302, Indian Penal Code cannot be questioned.

On a thorough perusal of the evidence on record and its discussion in the impugned judgment and on hearing the counsel appearing for both the parties we are convinced that the conviction of the Appellant u/s 302. Indian Penal Code and the sentence passed against him thereunder are correct and justified and we do not see any reason to interfere with the same.

The appeal accordingly is dismissed.

P.K. Mohanti, J.

I agree.

Appeal dismissed.