Judgment:
M. Papanna, J.
1. Impugned judgment of learned Additional Sessions Judge,' Jeypore passed in S.C. No. 70 of 1991 convicting the accused (hereinafter referred to as 'the appellant') under Sections 302/307/449 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life, rigorous imprisonment for five years and rigorous imprisonment for four years respectively with direction to run the sentences concurrently is under challenge in this Criminal Appeal preferred from Jail.
2. The case of the prosecution is that on 13.4. 1991 at about 1 P.M. appellant killed wife of the informant (P.W. 1). He also injured his nephew Rajendra Kumar Bag (P.W. 2) by means of a knife. On the date of occurrence, while the informant was returning to his house from Jhaliaguda he came to know about the occurrence. On reaching his house, he found his wife (hereinafter referred to as 'the deceased') lying dead with bleeding injuries on her person. He also found his nephew lying with bleeding injury on his belly on the verandah of his neighbour. On being asked P.W. 2 told him that on the date of occurrence, at noon time he was sleeping in the house by closing the door. At about 1. P.M. appellant entered the said house and stabbed on his belly. P.W. 2 shouted for help. Hearing his nullah, son, daughter (P.W. 5) and wife (deceased) of the informant came there. At that juncture the deceased was trying to close the door from outside. At that time, appellant dealt knife blows on her person. As a result, she fell down and succumbed to injuries sustained by her. Thereafter the accused fled away from the spot With weapon of offence. On the F.I.R. (Ext. 1) lodged by the informant, Khatiguda P.S. Case No. 39/91 was registered. During investigation, Police held inquest over dead body of the deceased. It was sent for autopsy. On completion of investigation Police laid charge sheet against the appellant.
3. The appellant pleaded innocence.
4. Evidence of 12 witnesses has been pressed into service to prove the guilt of the appellant. P.W. 1 is the informant. P.W. 2 is his nephew (injured). P.Ws. 3 and 4 are witnesses to the seizure and inquest. P.W. 5 is daughter of the deceased. P.Ws. $ and 7 are post occurrence witnesses. P.Ws. 8 and 9 are hostile witnesses to whom the appellant made extra-judicial confession. P.W. 10 is a Police Constable who escorted dead body for autopsy. P.W. 11 is Doctor who examined injured (P.W. 2). P.W. 12 is the I.O.
5. Defence, on the other hand, declined to examine any witness.
6. On consideration of evidence of witnesses on record, learned trial Judge convicted the appellant and sentenced him as stated above.
7. Learned counsel for appellant has assailed the impugned judgment on the ground that the evidence of P.Ws. relied upon by the learned trial Judge is inadmissible in evidence. According to him, the appellant is not liable for conviction under Section 302 of the Indian Penal Code as there is total failure on the part of the prosecution to establish motive on the part of the appellant for committing murder of the deceased.
8. On the other hand, the learned Additional Government Advocate supported the order of conviction and sentence impugned before us.
9. In view of contentions raised by learned counsel for the parties we think it expedient and desirable to examine evidence of witnesses on record to see if any illegality or irregularity has been committed by the learned trial Judge in accepting evidence of witnesses on record.
10. While examining evidence of witnesses on record in a case of murder, we have to find out whether deceased died a homicidal death. The learned trial Judge on consent of the defence marked Post Mortem report as Ext.14. The reason assigned by him for non-examination of the Doctor who conducted autopsy shows that his attendance could not be procured for his evidence. Ext. 14 indicates the following injuries on the person of the victim.
(i) Incised wound over mid-sternum, eleptical size 1.5 cm x 6 cm x 2.5 cm. On dissection this wound had penetrated the sternum. There was evidence of substernal haemorrhage and puncture of pericardium and wall of right verticle of the size 1 cm x 5 cm.
(ii) Incised eleptical wound over 6th intercostal space 10 cm from xiphisternum 2.5 cm x 1.5 cm and depth could not be ascertained'but a probe could go smoothly upto 6 cm. On dissection, it was found that a big haema toma 5cm x 6cm below the skin. The wound leads into the chest cavity also led to cut in the lower lobe of left lungs 1 cm x 1 cm.
(iii) Incised eleptical wound above right wrist 2 cm x 5 cm x muscle depth.
(iv) A cut wound 3 cm x 4 cm x 4 cm depth on the right hand in the first interdigital left.
(v) Incised wound 2.5 cm x 6 cm x 1 cm on the dorsum of the right wrist.
(vi) Subconjunctional haemorrhage in right eye.
(vii) Cut incised wound 2.5 cm. x 1 cm x 2 cm on the left hand 2nd Interdigital left extending towards little finger.
11. On examination of Ext. 14 we have found that these injuries were ante mortem in nature. The death was caused due to injury to lungs and heart within 16 to 24 hours. In the absence of any challenge by the defence the learned trial Judge held that deceased died a homicidal death.
12. The learned counsel for the appellant has contended that Ext. 14 is not admissible into evidence. In the present case, the Doctor who conducted autopsy could not be examined as his attendance could not be procured for his evidence. Under Section 32 of the Evidence Act, Ext.14 can be admitted into evidence. In AIR 1989 S.C. 702 (Prithi Chand v. State of H.P.), the Supreme Court has laid down the law as follows :
'Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procuped without any amount of delay, the same is relevant and admissible in evidence. Besides, since the carbon copy was made by one uniform process, the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act.'
Therefore, in the light of the proposition of law, Ext. 14 cannot be brushed aside merely because the Doctor who conducted autopsy has not been examined. In the facts and circumstances of the case, we are sure that the deceased died a homicidal death. We are not inclined to interfere with the finding of the trial Court in view of our discussion.
13. Before we proceed to find out as to who has murdered the deceased, we take up question of making attempt on the life of P.W. 2 by the appellant. Evidence of P.W. 2 reveals that while he was sleeping in the house of P.W. 1, the appellant entered the same and dealt a blow by means of a knife (M.O.I) on his belly. When he attempted to give another blow by the said knife, he escaped from the said house. He shouted outside the house stating that 'BASU HARIJAN MARIDELA.' Hearing his hualla, P.Ws. 5, 6 and 7 rushed there and saw bleeding injury on the belly of P.W. 2. We find no reason to disbelieve the evidence of P.W. 2. In no way his evidence has been impeached by the defence during cross-examination. Therefore, his evidence corroborated by P.Ws. 5,6 and 7 leads us to the conclusion that the appellant stabbed him on his belly by M.O.I. The Doctor, who examined P.W. 2, proved the Injury Report (Ext. 7) indicating that the injury sustained by him is grievous in nature possibly caused by a sharp cutting weapon. The learned trial Judge on the evidence of P.W. 2 corroborated by P.Ws. 5,6 and 7 further corroborated by P.W. 11 found the appellant guilty of charge under Section 307 I.P.C. for attempting to commit murder of P.W. 2. We are in full agreement with the finding of the learned trial Judge as stated above.
14. Now coming to the question as to who has murdered the deceased, we have to examine the entire evidence on record. Ext. 1 lodged by P.W.1 indicates that on reaching his house, he found the deceased lying dead with injuries on her chest and head. He also found P.W. 2 lying with bleeding injury on his belly. He told him that the appellant entered his house and stabbed him on his belly by means of a knife. He also stabbed his wife by the said knife. Evidence of P.W. 2 further disclose that hearing hualla the deceased and also P.W. 5 came there. When the deceased tried to close the front door of their house, the appellant dragged her inside the same. He could not say what happened inside the said house thereafter.
15. But P.W. 5 has stated to have seen the appellant stabbing on the chest of her mother by means of M.O.I. She has reiterated to say that she saw the said stabbing while standing near the front door of their house. Her evidence has remained unassailed by the defence during cross-examination. The learned counsel for the appellant has contended that P.W. 5 being daughter of the deceased, her evidence cannot be relied upon. We do not agree with the above contention raised by the learned counsel for the appellant in view of dictum laid down in the case of State of U.P. v. Ballabh Das and Ors. etc. reported in AIR 1985 Supreme Court 1384. In the above case, the Supreme Court has laid down the law on the subject. We quote it thus :
'There is no law which says that in the absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest of or should not be relied upon for convicting an accused. What the law requires is that where the witnesses are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication.'
16. We, therefore, place reliance on the evidence of P.W. 5, even if she happens to be daughter of the deceased. Evidence of P.W. 6 lends corroboration to the evidence of P.W. 5. He is, a neighbour to P.W. 5. Having heard hualla of P.W. 2, that 'BASU HARIJAN MARIDELA', he came to the spot and saw the injured (P.W. 2) with bleeding injury. His evidence has also disclosed that while he was taking P.W. 2 to his house, P.W. 5 shouted that the appellant stabbed her mother. This time he saw the deceased lying with injuries on her chest. At that time he saw the appellant running away from the spot. His testimony during cross-examination has remained unimpeached and unassailed. Therefore, evidence of P.Ws. 5 and 6 inspires confidence in us that they are truthful witnesses. In the facts and circumstances of the case, we believe the version of the I.O. (P.W. 12), who has seized the knife (M.O.I) from the house of the appellant under Seizure List Ext. 2. His evidence regarding seizure of M.O.I. has been corroborated by P.W. 3. That apart, the weapon of offence (M.O.I.) has been identified by P.Ws. 3 and 5 during their examination in Court. Ext. 12/1 indicates that the Doctor who conducted autopsy gave his opinion on query that the injuries found on the chest of the victim could be possible by M.O.I.
17. It is also disclosed from the evidence of P.W. 1 that about twenty days prior to the occurrence his eldest daughter, Susama Harijan, and Maheswar Harijan, son of the appellant had fled away. Because of this relationship between P.W. 1 and the appellant became strained. Therefore, it cannot be said that there was no motive on the part of the appellant to commit the crime.
18. Therefore, on reappreciation of the evidence of P.Ws. on record and after through scrutiny of the same and having been convinced that the prosecution has proved its case beyond reasonable doubt, we uphold the judgment of conviction impugned before us. In the facts and circumstances of the case, we feel that the learned Addl. Sessions Judge after careful consideration imposed proper and adequate sentence on the appellant who is bound to suffer the same to meet the ends of justice.
19. In the result, we uphold the judgment of conviction and sentence impugned before us. The Jail Criminal Appeal fails. Accordingly, we dismiss the said appeal.
B.P. Das, J.
20. I agree.