JUDGMENT
B. Panigrahi, J.
1. This appeal is directed against the order dated 19.5.1989 passed by the learned Sessions Judge, Ganjam, Berhampur, in S. C. No. 8 of 1989, convicting the appellant under Section 302 of the Indian Penal Code (for short “IPC”) and sentencing him to undergo imprisonment for life. The appellant was prosecuted for
commission of murder of his own wife Saraswati in his house in the night of 17/18.9.1988.
2. The skeletal picture of the prosecution story, as unfolded during trial, is as follows :
The appellant had two other brothers, who had partitioned their properties. A portion of a two roomed house, which was allotted to the share of the appellant, was occupied by him and his wife Saraswati. The other portion fell to the share of the husband of P.W. 10, Kumari Gouduni. Another brother occupied a house in the same village, which was situated at a little distance, and their mother was residing with him. The appellant and the deceased had no issue even after 13 years of their marital life. There was allegedly no cordial relationship between the appellant and his wife for the last 4 to 5 years prior to the incident. There was always rancour, ill-feeling and quarrel between them. It has been described in the FIR that about a fortnight prior to the date of occurrence, the deceased Saraswati complained before her father (P. W. 1) that the appellant was not making sufficient provision for her maintenance. He was spending time with his sister-in-law (P.W. 10), and taking food in her house. She had also informed P.W. 1 that the appellant had decided to divorce her. On getting the above information, P.W. 1 approached the elder members of the community for rapprochement. A meeting of the caste heads was convened on 16.9.1988. After hearing the allegations and counter allegations levelled by the husband and wife, the caste heads directed the appellant to provide a house to the deceased for shelter and also 20 Gounis of paddy for her maintenance for month, to which the appellant agreed and returned home. The deceased stayed in the house of her brother (P.W. 2), which was in the same village. On 17.9.1988, in the afternoon at about 3.00 P.M. the appellant came and called the deceased to his house to prepare food for him, to which the deceased obliged, perhaps with the hope and trust that there might be some kind of settlement between them. It is further alleged that at about 9.00 O’clock in the night, P.W. 2 went to the house of the appellant to meet his sister and found her sitting on the front verandah of the house along with the appellant. He advised them to reconcile their difference and came back. P.W. 10, the sister-in-law of the appellant, had also seen the appellant and the deceased together between 7.00 and 8.00 P.M. before going to bed. On the following morning, when P.W. 10 came out of her house to attend the call of nature, she noticed that the front door of the house of the appellant was closed from inside. To her utter surprise, when she returned, she noticed a huge gathering near the house of the appellant. She also noticed
that Saraswati was lying dead on the floor of the house. P.W. 1, the father of the deceased, came there around 8.00 O’clock in the morning and made a query from the appellant about the cause of death of Saraswati, to which the appellant observed stoic silence. On the aforesaid allegation, the appellant was charged under Section 302, IPC for committing the murder of his wife.
3. The prosecution had examined ten witnesses in order to sustain conviction against the appellant. The learned Sessions Judge, on evaluation of the oral and documentary evidence was inclined to record an order of conviction against the appellant. Being aggrieved, the appellant has filed this appeal.
4. There has been no direct evidence in this case and the prosecution case solely rests on the circumstantial evidence. It is the well settled position of law that where a case depends on circumstantial evidence, all the circumstances must be satisfactorily and firmly established. There should be a definite tendency unerringly pointing towards the guilt of the accused. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature. They should be such as to exclude every hypothesis but the one proposed to be proved against the accused. Keeping this in mind, we have to see how far the prosecution has been able to prove its case against the appellant.
5. In order to prove its case, the prosecution has mainly relied on the evidence of P.Ws. 1 to 10. The trial Court in its judgment has categorically relied on the following circumstances :
(1) Undisputedly the accused was maintaining strained relationship with his wife for years together.
(2) In spite of animosity in between the husband and wife, the two of them were living together in the house of the accused where the wife’s deadbody was discovered.
(3) The house in which both the appellant and the deceased were living had only one living room with two doors on either side with arrangement for being locked from inside.
(4) About a fortnight before the date of incident, the deceased had complained before P,W. 2 that her husband, the appellant, was passing his time with his sister-in-law, who had been living alone away
from her husband along with a minor child and that the appellant had stopped maintaining her.
(5) About 10 days before the date of incident, the deceased had told her father, P.W. 1, that the appellant had decided to divorce her.
(6) On 16.9.1988 in the evening, on being questioned by the caste-heads on the subject of divorce, the appellant had requested the village elders to advise P.W. 1 to take back the deceased to their house and the village elders did not approve such idea of the appellant and suggested him to provide the deceased food and shelter and to meet the expenditure of the deceased.
(7) On 17.9.88, the accused-appellant had called his wife from the house of her brother to his own house and remained with her for the night by closing the door from inside.
(8) On 18.9.88 early morning, P.W. 10 had found the front door of the house of the appellant lying closed from inside.
(9) On 18.9.88 during day time, P.W. 10 on her return to her house had noticed a huge gathering at the house of the accused with the deadbody of the deceased lying on the floor of the entrance room and the accused was sitting by the side of the deadbody.
(10) On being asked by the father-in-law of the appellant, the appellant observed stoic silence and did not take anybody’s name to have committed the crime, although visible marks of violence were available upon the neck, back and legs of the deceased.
(11) On 18.9.88, on being questioned by the I.O., P.W. 9, the appellant also did not disclose the name of any other person for having caused the death of the deceased.
(12) The doctor conducting post-mortem examination also opined that the deceased met with a homicidal death.
(13) The napkin of the appellant was stained with human blood.
(14) The plea of alibi has not been proved by the appellant.
(15) The door of the house in which the occurrence took place had been found open without any mark of violence.
(16) It is not expected of a lone female to sleep inside her house by keeping the front door open for free entry of outsiders during night time.
6. Mr. Dhal, learned counsel appearing for the appellant, has strenuously urged that the prosecution in this case could not unerringly prove all the circumstances pointing towards the guilt of the appellant. Therefore, the appeal should be allowed. It has been brought to our notice that since P.Ws. 1, 2 and 1 0 are closely related to the deceased, their evidence should be considered with care and circumspection. It is the established principle of law that the testimony of a relation should not be discarded merely because he or she is a relation, if his/her testimony is credible, trustworthy and inspires confidence, which has, however, to be carefully examined while appreciating the prosecution case.
7. P.W. 1, the father of Saraswati, in his evidence has deposed that there was a caste meeting convened on 16.9.1988 in which P.W. 3 and other caste people participated. In the said meeting, a decision was taken by directing the appellant to provide a two roomed house to Saraswati for shelter. Twenty Gounis of paddy per month would also be given to her for maintenance. Since then, Saraswati was staying separately from her husband. This version has also been supported by P.W. 3. About fifteen days prior to the occurrence the deceased had complained before P.W. 1 that the appellant had threatened to divorce her.
8. On 17.9.1988, when the deceased Saraswati was staying with her brother (P.W. 2), the appellant came and called her for preparing food for him. The deceased, possibly in order to patch up the difference, obliged the appellant and went to his house, where she was previously living, which is apparent from the evidence of P.W. 2. It is further transpired that P.W. 2 went to the house of the appellant and found them together on the verandah. He has further deposed that he advised them to patch up their difference and lead a happy conjugal life.
9. From the testimony of P.W. 10, it has also been established that she saw the appellant and Saraswati together at about 7.00 to 8.00 P.M. in the night. On the following morning, during wee-hours, she noticed the door of the appellant’s house lying closed from inside. She has further stated that she had not seen any outsider visiting the house of the appellant or meeting him. When
she returned, she noticed a gathering of people near the appellant’s house. She went inside and found Saraswati lying dead.
10. Mr. Dhal has pointed out that the conduct of P.W. 10 is not that of a normal human being. She being the brother’s wife of the deceased’s husband, it is expected of her to make an enquiry about the cause of death of Saraswati. Mr. Mohanty, learned Additional Government Advocate, while repelling such contention, has invited our attention to the fact that at the time when P.W. 10 noticed Saraswati lying dead, the cause of death was not ascertained. It could only be ascertained after post-mortem was conducted over the deadbody. Since the deceased died of strangulation, it would be extremely difficult to ascertain the cause of death before gathering the opinion of the medical officer. The evidence of P.W. 10 is clinching, credible and trust inspiring. No circumstance could be placed before us so as to discard her evidence.
11. On the following morning of the incident, P.W. 1 made a query to the appellant as to the cause of death of Saraswati, to which he observed complete silence. It was unusual for the appellant to keep silence when his wife had died in the previous night. Without answering to the question of P.W. 1 about the cause of death of Saraswati, the appellant sent him to the police-station by stating that someone might have killed her, which is, of course, unacceptable.
12. On a combined reading of the evidence of P.Ws. 2 and 10, it is established that the appellant was seen sitting with his wife Saraswati (deceased) in his house till late night. On the following morning, Saraswati was found dead. This raises a strong inference that he must have been the author of the crime.
13. The prosecution has placed reliance on the seizure of the napkin from the possession for the appellant, which had contained human blood. There has been no dispute that the napkin belonged to the appellant and it contained human blood. The appellant tried to offer an explanation that on hearing about the death of his wife, he rolled at her feet, as a result whereof, the napkin got soiled with blood. From the medical evidence, it has tanspired that blood oozed out from the private part of the deceased. The learned Sessions Judge disbelieved the explanation on the ground that it is unusual for a husband to cry hoarse by holding the feet of his estranged wife. Thus, the blood appearing on the napkin (M.O.I.) would also be a telltale circumstance against the appellant.
14. A faint attempt was made by the learned counsel appearing for the appellant that it might be possible that someone other than the appellant had committed the crime. But, from the evidence of P.W. 10, it has been established that none else had gone inside
the house to her sight, who was the immediate neighbour of the appellant. From the evidence of P. W. 8, the doctor who conducted post-mortem examination on the deadbody, it has been proved that the death was due to asphyxia by manual strangulation by putting the grip of both hands around the neck while the deceased was in deep slumber. There has been no dispute that the deceased died due to strangulation. On a close scrutiny of the evidence of P.Ws. 3 to 5, it is gathered that there was strained relationship between the appellant and the deceased prior to the incident, as a reason whereof, there was a meeting convened by the community, in which the appellant was asked to provide a separate house for the deceased to reside apart from twenty Gounis of paddy per month for her maintenance. Therefore, from the evidence placed by the prosecution, the following circumstances have emerged :
1. There was strained relationship between the deceased Saraswati and the appellant prior to the date of incident.
2. To patch up the difference, the deceased complied with the request of the appellant and accompanied him to his house, where she was found dead at about 3.00 A.M. on 17.9.1988. The said house had only one living room with two doors on either side with arrangement of being locked from inside.
3. A fortnight preceding the occurrence, the deceased had complained before her brother that the appellant was spending time with his sister-in-law (P.W. 10), whose husband was staying away, and had stopped maintaining her.
4. Ten days prior to the incident, the deceased complained before her father that the appellant threatened to divorce her.
5. On 16.9.1988, there was a meeting of the caste people wherein it was decided that the appellant would give twenty Gounis of paddy and a separate residence to the deceased, to which he agreed.
6. On the date of incident at about 3.00 P.M. the appellant had invited his wife from P.Ws. 2’s residence for preparing food for him.
7. P.W. 2 had seen the deceased and the appellant sitting together at 9.00 P.M. on their verandah.
8. P.W. 10 had seen the deceased and the appellant together between 7.00 and 8.00 P.M.
9. On the following morning, before dawn, P.W. 10 found that the door of the appellant’s house was closed from inside. On her return, she found a gathering of villagers and went inside, where she found the deceased lying dead.
10. The napkin belonging to the appellant was stained with blood and was lying near the deadbody.
11. From the evidence of the doctor, it has been proved that the death was due to the grip around the neck by pressing with two hands, in other words by strangulation.
12. The plea of alibi has been proved to be false.
13. The appellant could not satisfactorily explain the cause of death of Saraswati.
15. All the above circumstances would unerringly and unhesitantly prove that it was the appellant and the appellant alone who committed the murder of his wife Saraswati.
16. The trial Court, in support of its view, has relied on the judgment of the Supreme Court in the case of Nika Ram V. State of Himachal Pradesh, AIR 1972 SC 2077, in Paragraph-16 whereof, the facts of that case have been narrated thus :
“It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (P.W. 8), who is the uncle of the accused, and Bhagat Ram school teacher (P.W. 16). According to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence. Mani Ram (P.W. 8) saw the accused at his house at 3 P.M. while Poshu Ram (P.W. 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was with the deceased at his house oh the day of occurrence. The house of the accused, according to plan PM, consists of one residential room, one other small room and a verandah. The correctness of that plan is proved by A.R. Verma overseer (P.W. 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would
be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.”
We find that the facts situation of the above case is similar to that the present case. In the reported case, the apex Court, taking into consideration the circumstances appearing against the accused, held him guilty.
17. For the reasons stated above, the appeal fails and is dismissed. The order of conviction and sentence passed by the trial Court is hereby confirmed.
18. Mr. Dhal, learned counsel appearing for the appellant, while winding up his argument, has contended that since the appellant has already suffered about 14 years of imprisonment and the appeal could not be taken up earlier, his case for release from jail after undergoing imprisonment for a period of 14 years may be directed to be considered by the State Government. In order to consider the contention of Mr. Dhal, we feel it necessary to notice the provision of Section 433-A of the Code of Criminal Procedure, read with Section 55 of the Indian Penal Code, Section 433A, Cr.P.C. reads thus :
“433-A. Restriction on powers of remission or commutation in certain cases : Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.”
Section 55, IPC is in the following language :
“55. Commutation of sentence of imprisonment for life : ln every case in which sentence of imprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.”
From the above provisions, it appears that whenever an accused is imposed with punishment to undergo imprisonment for life, his case for premature release shall be considered after he served at least 14 years of imprisonment. In that view of the matter, we direct the jail authorities to recommend the case of the appellant, if he satisfies all other conditions, as stipulated in Jail Manual, to
the State Government for consideration of premature release, after he served 14 years of actual imprisonment.
P.K. Misra, J.
I agree.