CHUDIAMAL JAM v. STATE OF ORISSA — 1983 DIGILAW 175 (ORI)

B. K. BHEERA, J. ( 1 ) DEATH for dowry owing to murderous assault on Premalata (hereinafter referred to as the deceased) by her husband Chudiamal (appellant No. 1), her mother-in law Sonadevi (appellant No. 2) and Dalchand Jam, a co-accused person who also stood trial with the appellants, during the night of August 23/24, 1980 at village Tikiri in the district of Koraput by throttling her to death and then by throwing the dead body into the well in the backyard of Bhimsen Jam, was the case presented by the prosecution in the Court of Session in which the appellants and the co-accused person stood charged under section 302 read with section 34 of the Indian Penal Code. ( 2 ) AS alleged by the prosecution, married to the appellant Chudiamal in 1974 and murdered by him and his mother Sonadevi in 1980, the deceased had all along been ill-treated by the appellants as her father (P. W. 6) had not been able to satisfy the lust of the appellants for dowry from time to time for which the deceased used to come in and go out of the house of the appellants in the State of Haryana and then at Tikiri and go away to the house of her parents in Haryana. A number of letters (Ext. 5 series) had been addressed by the deceased to her father complaining of ill- treatment at the hands of the appellants and apprehending danger to her life within a short time as had been mentioned, in particular, in Ext. 5/2 which was said to be the last letter addressed by the deceased to her father before her life ended. On August 24, 1980, the appellant Chudiamal lodged a report about the missing of the deceased at the Tikiri Police Out-post for which an entry (Ext. 27) was made in the Missing Register at the out-post and while this appellant and his co-villagers had been searching for the deceased, her dead body was found floating inside the well of Bhimscn Jam, the maternal uncle of the appellant Chudiamal residing in the same village, with a piece of rope (M. O. I) around her neck and with ornaments on her person. This information was conveyed by the appellant Chudiamal to the Assistant Sub-Inspector of Police (P. W. 15) in a report (Ext. This information was conveyed by the appellant Chudiamal to the Assistant Sub-Inspector of Police (P. W. 15) in a report (Ext. 14) and the police officer took up the inquiry after making an unnatural death first information report (Ext. 14/1) and by making a station diary entry (Ext. 26) P. W. 15 took steps for taking out the dead body from the well and it was taken out and sent for post-mortem examination by the doctor (P. W. 7) in charge of the hospital at Kasipur whose report was Ext. 9 and this doctor was not certain -as to whether death was homicidal or suiddal in nature. For this the help of P. W. 8, Professor and Head of the Posts - Graduate Department of Forensk Medicine and Toxicolgy of the M. K. C. G. Medical College at Berhampur, was taken and on the basis of the data mentioned in the postmortem report (Ext. 9) by P. W. 7 who had conducted the autopsy, P. W. 8 gave his report (Ext. 11) indicating that the death of the deceased was homicidal in nature. In the course of investigation first by the Assistant Sub-Inspector of Police (P. W. 15) and then by P. W. 16 the Officer-in-charge of the Kasipur Police Station, a number of witnesses were examined and on its completion, a charge-sheet was placed against the appellants and the co- accused person and their prosecution followed. ( 3 ) THE prosecution had, besides relying on the evidence. of P. W. 8 to substantiate its theory that the case was one of homicide, placed reliance on the evidence of Jagannath Nayak, a co-villager of the appellants at Tikri, about a quarrel in the house of the appellants after night fall on August 23, 1980 besides other evidence to be co-accussed herein after with regard to the strained relationship between the appellants on the one hand and the deceased on the other anti her letter (Ext. 5 series ). 5 series ). The main evidence on which reliance had been placed was that of Gourhari Behera (P. W. 10) who had spoken about the suspicious movements of the appellants and the co-accused person during the fateful night around 2 a. m. moving in the direction of the house of the appellants and thist witness had heard the sound of something falling into the well of Bhimsen and that of Simanchal Behera (P. W. 11) who had testified about the two appellants and the co-accused person holding a bag and entering into the backyard of Bhimsen and about his hearing a sound of something falling into the well of Bhimsen shortly thereafter. ( 4 ) THE case of the appellants was that they had nothing to do with the death of the deceased. In their defence, the appellants had examined Dr. K. K. Venkateswar Rao (D. W. 2), the Professor of Forensic Medicine of the Andhra Medical College at Visakhapatnam since 1974, to dispel the theory of homicidal death and to probabilise the theory of the death of the deceased by suicide. The other witness Gopal Duria (D. W. 1) had spoken about his seeing the accused proceeding on the road in the village in the direction of the house of Bhimsen Jam at about 2 OTclock during the night of occurrence. ( 5 ) THE learned Sessions Judge accepted the theory of homicide and while rejecting the evidence as against the co-accused person, accepted it against the apoellants and held that it was they who had committed the murder and had thrown the dead body into the well because of strained relationship with the deceased. The appellants were accordingly convicted under section 302 read with section 34 of the Indian Penal Code with which they stood charged and each of them was sentenced to undergo imprisonment for life. ( 6 ) MR. N. C. Panigrahi, appearing for the appellants, has placed the evidence of both the sides before us and has submitted that the prosecution has failed to establish that the deceased had died a homicidal death and even assuming that her death was homicidal in nature, the circumstantial evidence on which reliance bad been placed by the prosecutions besides being unworthy of credence, could not be the basis for the conviction of the appellants. The learned Standing Counsel has submitted that the evidence of P. W. 8 was worthy of credence and the finding recorded by-the trial court that death was homicidal is well-based. The circumstantial evidence, according to him, is incompatible with the innocence of the appellants. ( 7 ) COMING first to the question as to whether death in the instant case was homicidal in nature as sought to be established by the prosecution or the death of the deceased was as a result of suicide by drowning herself as suggested by the defence, there was the evidence of the doctor (P. W. 7) who had conducted the autopsy and that of P. W. 8 and D. W. 2. The learned Sessions Judge has not accepted the evidence of p. W. 7 and has discarded the evidence of D. W. 2 who has opined that death was probably due to drowning and not due to strangulation and has accepted the evidence of P. W. 8 who has opined that death was homicidal is nature. ( 8 ) P. W. 7 was the doctor who had conducted the autopsy himself and had examined the dead body and marked the injuries and other systems on the person of the deceased. The learned Sessions Judge has not accepted the evidence of P. W. 7 and while appreciating his evidence, has referred to extracts from authoritative books on medical jurisprudence which had not been brought to the notice of P. W. 7 during his examination and while doing so, notice has been taken by the learned Judge that P. W. 7. was a young doctor. Where the opinions of the authors were neither shown to have been given in regard to circumstances exactly similar to those in the particular case before the court or were not put to the medical witness, it is not a satisfactory way of disposing of the evidence of the witness by discrediting it on the ground that the doctor was a comparatively young man and his statements did not agree with the opinions expressed in the books. (See Sunderlal v. State of Madhya Pradesh1 and Bhagwan Das and another v. State of Rajasthan2 ). A court of trial should bear this in mind while appreciating the evidence of a medical officer which has to be examined like any other evidence. (See Sunderlal v. State of Madhya Pradesh1 and Bhagwan Das and another v. State of Rajasthan2 ). A court of trial should bear this in mind while appreciating the evidence of a medical officer which has to be examined like any other evidence. ( 9 ) SPEAKING about what he had found at the time of autopsy of the dead, body which had been sent to him with the inquest report (Ext. 1) and the dead body challan (Ext. 8), P. W: 7 has deposed. that he had found the following injuries on the person of the deceased: 1. Superficial abrasion having 1/2 c. m. diameter over the lateral aspect of the right elbow joint. 2. Superficial abrasions c. m. in diameter over the lateral aspect of the left elbow joint. 3. Superficial abrasion k c. m. in diameter on the lateral aspect of the right ankle. 4. Abrasion over the acnetic regions present over forehead. ' All the injuries, according to him, were ante-mortem in character. Testifying as to what was further noticed by him, P. W. 7 has deposed: 1. On dissection I had found water froth inside the trachea, both of the lungs congested and odimatised and swollen, and the stomach filled with 250 C. Cs. of water. 2. On dissection of the lung I found blood and water oozing out on compression. 3. The mouth was closed and so too the eyes. Sub-conjunctival haemorrhage was present. The pupils were lying dilated. Palms, fingers and feet were midly flexed, wrinkled and sodden. Frank water as also water mixed with froth were coming out through the nostril on pressure cast upon chest. The cause of death in my opinion was drowning and asphyxia. I could not come to a conclusion as to if it was a clear case -of drawing, accidental or otherwise like suicide or a case of homicidal death. Ext. 9 is the postmortem report which I had submitted in that connection. . . Around the neck of the dead body nor underneath the same I had noticed, any, mark of violence. There was no bruise around the neck. He had stated in his cross-examination that he could not say if the deceased had struggled after fall in the water, but marks of struggle were there. . . Around the neck of the dead body nor underneath the same I had noticed, any, mark of violence. There was no bruise around the neck. He had stated in his cross-examination that he could not say if the deceased had struggled after fall in the water, but marks of struggle were there. He- had opined that the abrasions over the ferehead, elbow joint and right ankle might have been caused as a result of rubbing or scratching against the wall. of a well while falling into it and these injuries could be caused while struggling far life inside the water. It would thus be seen from the evidence of P. W. 7 that no definite opinion could be given by him as to whether death was hemicidal or suicidal in nature. ( 10 ) THE Prefesser and Head of the Pest Graduate Department of Ferensic Medicine and Toxicelogy of M. K. C. G. Medical College (P. W. 8) has opined, on the basis of the data furnished in Ext. 9, that the victim could have suffered violent asphyxia till insensibility prevailed on her following which she could have been thrown into the water where she took her final breath inside the drowning medium. He had further opined that the injuries noticed on the person of the deceased would substantiate the use of force and would indicate homicide. Giving the reasons as to why he came to his finding, P. W. 8 has deposed: (1) There was cyanosis of face and sub con-junctival ,haemorrhage. (2) There was congested lungs, the cut section of which yielded haemorrhagic exudates. (3) The left chamber. of the heart was empty and the right chamber was full with dark blood. The above findings are not consistent with fresh water drowning. I further found some other features such as (1) Froth in the mouth, nostril and trachea but not in the lower respiratory passages. Though oedema of the lungs was seen that has been recorded to be associated with congestion and blood stained exudates found on cut Section. (2) Water was found in the stomach as mentioned in the report. But this picture is not confirmatory of drowning unless corroborated by a diatom test which had not been done here. (3) There was sudden appearance of the skin - This particular finding is that of immersion and not of drowning. (2) Water was found in the stomach as mentioned in the report. But this picture is not confirmatory of drowning unless corroborated by a diatom test which had not been done here. (3) There was sudden appearance of the skin - This particular finding is that of immersion and not of drowning. This could have occurred even if the body is disposed of shortly after asphyxiation. ' Subsequently he had conducted the diatom test as per Ext. 12 continuation of his previous report (Ext. 11) and it did not reveal presence of Buy diatom. This was yet another reason as to why P. W. 8 was of the opinion that it was not case of conscious drowning. P. W. 8 bad, however, - stated in his cross-examination that in the absence of any recorded injury around the neck, he could not definitely say as to what was the exact mode of violent asphyxia that had been caused. It was in the evidence of P. Ws. 1 and 2 and that. of the Investigating Officer (P. W. 15) that when the dead body was taken. out, a Siali rape bad been tied around its neck. M. O. I. was said to be the rape, but as the medical evidence clearly indicated, M. O. I was a coir rape and the learned Sessions Judge did notice this discrepancy in the evidence. According to P. W. 8, the rape (M. O. 1) had a rough surface and as such, was likely to have caused ligature mark in case of strangulation by it and in the instant case, there was no ligature mark. P. W. 8 had stated that after death, water would not get into the stomach in the natural course, in case of immersion in water, but in this case, water had been found in the stomach. ( 11 ) NOTICE had been taken by the learned Sessions Judge that at the time of inquest, P. W. 15 had noticed a mark of injury on the neck of the deceased. But the evidence of P. W. 7 would negative this theory. As has been held in Surjan and others v. State of Rajasthan3, a statement in the inquest report is not evidence by itself and it certainly cannot be pitted against the evidence of the medical witness given in the court. But the evidence of P. W. 7 would negative this theory. As has been held in Surjan and others v. State of Rajasthan3, a statement in the inquest report is not evidence by itself and it certainly cannot be pitted against the evidence of the medical witness given in the court. In Maula Bux and others v. State of Rajasthan4, the Supreme Court, while dealing with conflict between medical evidence and the contents of the inquest report, has observed and held: T1. . . the learned Trial Judge held that the bruise marks on scapular region and waist of the dead body noted in the Inquest Panchnama by the Investigating Police officer, were nothing but the marks of post-mortem staining. This view of the evidence taken by the trial court could not be said to be palpably wrong. Nor was the High Court fair enough to the medical officer, Dr. Sati Punjabi, inasmuch as it held that she had failed to note some contusion marks mentioned in the Inquest Panchnama, through sheer inadvertence or by design. The Police Officer who prepared the Inquest Panchnama was not an expert in medical jurisprudence. The possibility of his having mistaken the post-mortem staining marks on the waist and shoulder of the deceased for ante- mortem bruises, could not be ruled out. In any case, in such a situation, as a matter of judicial caution, the benefit of this discrepancy between medical evidence and the inquest report, on this point in issue, ought to have been given to the appellants TI As P. W. 7 had not noticed any injury on the neck portion of the deceased, the evidence of P. W. 15 and that of the other witnesses about the presence of an injury or a black mark on the neck of the deceased is not to be accepted and in such a situation, the medical evidence should normally prevail. ( 12 ) D. W. 2, the Professor of Forensic Medicine of the Andhra Medical College, Visakhapatnam, has, on the basis of the same data recorded by P. W. 7 and seen by P. W. S, opined that what had been noticed at the time of autopsy would exclude the possibility of death by manual strangulation or strangulation with a rope and be has further opined that absence of diatom does not exclude possibility of drawing. According to this Professor, the symptoms noted in Ext. 9 would indicate a probable case of drawing and giving the reasons for such a conclusion, D. W. 2 has deposed: I am of this opinion because of the following; (1) Frank water sometimes mixed with froth coming out from both nostrils and so on pressing over the chest. (2) Sub-conjuncted haemorrhages in both the eyes, pupils dilated. (3) Palms, fingers, feet, slightly flexed, skin of the extrimities bleached and appear sodden. (4) Larynx and trachea contains water-mixed with froth present. (5) Both the lungs are congested, oedematous on cut section, on compression, blood stained exudate came out. (6) Stomach contains water about 250 c. c. No food. 3. A dead man whose death is brought about by closing the air passage to the lungs by application of pressure, if immersed in water would not exhibit all those symptoms. According to this witness, if the cause of death is due to ligature, it must leave some marks over the skin or underneath the skin and this mark is not expected to vanish on immersion of the body in the water immediately after death. In case of throttling, there would be death or immediate revival on loosening of the pressure and in such a case, there would be no cause to remain unconscious, as opined by him. Speaking about the negative symptoms supporting his view, D. W. 2 has stated: The negative symptoms in Ext. 9 supporting the case of drowning are: (1) Mark of ligature or impression over the neck not visible. (2) Any other mark of injury over neck, absent. (3) On dissection no injury detected. (4) Thyroid, hyoid, cricoid, cartilages are normal and intact. In case of manual strangulation, strangulation with ligature, will show the fractures or other injuries to the above parts. In case of smothering there will be injuries to the nose and lips. D. W. 2 has further testified: The flexing of palms, fingers and feet as noted in Ext. 9 are expected in case of drowning. Ext. 9 does not speak that both the knees were above the stomach and chest. Such bending is not expected in case of drowning. Giving the aforesaid -reasons, D. W. 2 has concluded in his evidence: the data present in the post-mortem report Eltt. 9 are expected in case of drowning. Ext. 9 does not speak that both the knees were above the stomach and chest. Such bending is not expected in case of drowning. Giving the aforesaid -reasons, D. W. 2 has concluded in his evidence: the data present in the post-mortem report Eltt. 9 exclude the possibility of death by manual strangulation or strangulation with a ropet Nothing substantial has been brought out by the prosecution in his cross-examination to discredit his testimony. The evidence of D. W. 2 is based on authorities referred to by him in his evidence and is in accord with what had been noticed by P. W. 7 who had conducted the autopsy. ( 13 ) IN addition to what has been stated above, notice may also be taken of the fact that as deposed to by padma Gouduni (P. W. 4), who had been working as a maid-servant at the residence of the appellants and the deceased, on the day previous to the day of her death when she (P. W. 4) went in the afternoon to clean the dishes, she had noticed that the deceased had not taken food and on being asked by her as to why she had not taken food the deceased did not reply and kept mum and she had been exhibiting a sullen face. As the evidence would indicate, to be discussed by us hereinafter while judging the question of motive, all was cot well between the deceased on the one hand and the lady appellant on the other and there had been quarrels between the two. It could be, as submitted before us on behalf of the appellants, that owing to distress, disdain and disgust, the deceased might have put an end to her life by jumping into the well. The presence of ornaments on her person would be yet another indication of a suicidal death although this would not be a conclusive circumstance in support of that conclusion. The presence of ornaments on her person would be yet another indication of a suicidal death although this would not be a conclusive circumstance in support of that conclusion. If the appellants as alleged had been demanding dowry and had greed for money and the non-fulfillment of their desire by the father of the deceased had prompted them to commit the crime, it was likely that they would have removed the ornaments from her person before throwing her dead body into the well although it could as well be said that to give a colour of suicidal death, ornaments had been left on the person of the deceased. These circumstances, in our view, would not definitely lead one to a conclusion that death in the instant case was suicidal in nature, but could be taken into consideration along with other features already referred to. It was not for the appellants to show that the deceased died a suicidal death. To bring home the charge, it was for the prosecution to establish that the death was homicidal in nature. ( 14 ) FOR the reasons already recorded by us, we are of the view that the prosecution had not conclusively established this aspect and bad failed to discharge its burden. ( 15 ) ASSUMING, however, that death in the instant case was homicidal in nature, we would now proceed to examine as to whether the appellants were the authors of the crime. ( 16 ) NO one had- seen the appellants or any of them committing the murder of the deceased and there was no categorical evidence of anyone that he had seen the deceased being thrown into the well in which the dead body was found floating. The prosecution has sought to build its case entirely on -circumstantial evidence consisting of the motive for the commission of the offence, the evidence of P. W. 1 that he had heard a quarrel in the fateful night around 9. 00 p. m. between the lady appellant and the deceased and the evidence of P. Ws. The prosecution has sought to build its case entirely on -circumstantial evidence consisting of the motive for the commission of the offence, the evidence of P. W. 1 that he had heard a quarrel in the fateful night around 9. 00 p. m. between the lady appellant and the deceased and the evidence of P. Ws. 10 and 11 about the suspicious movements of the appellants near the well from where the dead body was later recovered and their hearing something being thrown inside the well, besides the recovery of a piece of rope (M. O. II) which had nothing to do with the commission of the offence and a gunny bag (M. O. XII) suspected to have been used for carrying the dead body of which there was no material as it had not been identified by anyone to be gunny bag in which the dead body had been carried. There was no material that M. O. II had been sent for chemical examination. As already indicated by us, regard being had to the discrepancy with regard to the rope (M. O. I) which, if really tied around the neck, ought to have been sent in that position for autopsy and it had not been, the evidence that M. O. I had been tied around the neck is highly doubtful and ought not to have been accepted by the trial court. ( 17 ) IN dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture of suspicion may take the place of legal proof. Where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first place be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show what within all human probability, the act must have been done by the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show what within all human probability, the act must have been done by the accused. (See Hanumant Govind Nargundkar and another v. State of Madhya Pradesh5 and S. P. Bhatnagar and another v. State of Maharashtra. 6 Speaking for the Supreme Court, V. R. Krishna lyer, J. , dealing with the probative value of circumstantial evidence, has observed in the case of Dharm Das Wadhwani v. State of Uttar Pradesh. 7 Unlike direct evidence, the indirect light circumstances may throw may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction. His Lordship has further observed: Every evidentiary circumstance is a probative link, strong or weak, and must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt, binding the accused. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then can a con-catenation of incriminating facts suffice to convict a man. Short of that is insufficient. Each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence and the circumstances must be such as cannot be explained on any hypothesis except the guilt of the accused. The circumstances must be of an incriminating character and all the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. For circumstantial evidence to furnish evidence of guilt, it has to be such that it cannot be explained on any other reasonable hypothesis except the guilt of the accused. (See Polaya Motya Valvi v. State of Maharashtra8, State (Delhi Administration) v. V. C. Shukla and another9 and Gyarasilal Shankarlal Dixit v. State of Maharashtra10 ). In Gambhir v. State of Maharashtra11, their Lordships have observed and held: T1. . . (See Polaya Motya Valvi v. State of Maharashtra8, State (Delhi Administration) v. V. C. Shukla and another9 and Gyarasilal Shankarlal Dixit v. State of Maharashtra10 ). In Gambhir v. State of Maharashtra11, their Lordships have observed and held: T1. . . The Jaw regarding circumstantial evidence is well-settled; When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ' In Prem Thakur v. State of Punjab12, our Lord the Chief Justice of India, speaking for the Court, has observed: The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt. Very often, circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. Any priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of a crime by resisting the frustrating feeling that no one can be identified as the author of that crime. . Any priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of a crime by resisting the frustrating feeling that no one can be identified as the author of that crime. . ( 18 ) KEEPING the aforesaid principles relating to appreciation and probative value of circumstantial evidence, we have to find out as to whether the finding of guilt recorded by the trial court on such evidence has been legal, reasonable and proper. ( 19 ) COMING to the question of motive, the prosecution has mainly relied on the evidence of P. W. 6, the father of the deceased, coupled with some letters (Ext. 5 series) written by the deceased to his brother and father, besides the evidence of P. W. 1 who had spoken about a verbal duel between the lady appellant and the deceased and that of P. W. 14, the brother of the lady appellant, who had testified about some strained relationship and about his addressing a letter (Ext. 4) to P. W. 6in this, regard. The evidence of P. W. 13 with regard to the pledging of some gold by the appellant Chudiamal on February 19, 1980 and having taken a loan of Rs. 8,000/- and about his pledging a gold chain and a gold necklace for Rs 1,400/- on June 14, 1980 and repaying the loans in :september, 1980 and taking back the pledged ornaments as per Ext. 13, the entry in the ledger, would not, in our view, be a guilt pointing circumstance against the appellants and at the time of hearing of this appeal, the learned Standing Counsel has submitted that such transactions by the appellant Chudiamal would not indicate any strained relationship between him and the deceased and in our view, he is right in submitting so in the circumstances of the case. ( 20 ) AS earlier indicated by us, the prosecution has presented a case as if it was a case of murder because of non-fulfillment of the demand for dowry. It may be kept in mind that the marriage of the appellant Chudiamal with the deceased had taken place in May 1974 and a female child, who was named Bitu, was born to them in March 1976. It may be kept in mind that the marriage of the appellant Chudiamal with the deceased had taken place in May 1974 and a female child, who was named Bitu, was born to them in March 1976. The appellant Chudiamal came from Haryana to the district of Koraput in Orissa in search of a job in December, 1976 and he started a grocery shop at village Tikiri in March, 1977. Some time thereafter, the deceased came from Haryana and joined this appellant at Tikiri. The alleged occurrence bad taken place during the night of August 23/24, 1980. P. w. 6 has testified that for about at ear after the marriage, the deceased and the appellants had maintained good relationship and thereafter, there was strained relationship on account of demand for dowry by the appellants for which they used to assault the deceased and drive her out of the house. His evidence is that the deceased came away from the house of the appellants at Hansi and started staying with him at Hissar from 1976 for about two years. He has further gone on to say: TI. In the year 1978 Nemchand Jam the brother-in-law of Chudiamal met me at Hissar and advised me to give some dowry for a reconciliation. I agreed and it was settled that I should pay Rs. 5000/- in cash and supply clothes worth Rs. 2,000/ -. I could arrange Rs. 3,000/ -. On the appointed day, I went to the house of Chudiamal in Hansi along with my daughter Premlata and Nemchand: At the house of the accused I left my daughter and made over Rs. 3,150/- to Nemchand and he in my presence made over that amount to Chudiamals mother who is sitting there in the dock. On that occasion I had supplied cloth worth Rs. 2000/- to the accused person, I mean. Chudiamal and his mother. Nemchand had given a receipt for the purpose to me at that time. Police seized the same from me after my daughters death. That receipt is Ext. 3. Nemchand had written it out in my presence and his elder brother Amar Nath had put the signature. At that time Nemchand and accused Chudiamal were running a partnership firm in the name and style of M/s Jam Trade Corporation. Police seized the same from me after my daughters death. That receipt is Ext. 3. Nemchand had written it out in my presence and his elder brother Amar Nath had put the signature. At that time Nemchand and accused Chudiamal were running a partnership firm in the name and style of M/s Jam Trade Corporation. After that payment the relations maintained cordiality for about six months and thereafter demand came for payment of the unpaid amount of the agreed sum and Rs. 10,000/ -. ( 21 ) SAVE and except the statement of P. W. 6, there is no evidence of anyone else about the demand of dowry of Rs. 10,000/ -. The prosecution has not examined Nemchand who had allegedly given the receipt. The receipt has not been signed by any of the appellants. According to P. W. 6, as he could not give Rs. 10,000/-, the deceased was driven away after being assaulted and she came and stayed in his house in 1978 until March, 1980 when the two appellants and Kaliram Jam (P. W. 14) met him at the residence of Namchand at Hansi over a Panchayat which Nemchand had convened. Speaking about what happened at the Panchayat, P. W. 6 has deposed:. . . The Panchayatdars were Rameswar Das, Dharam Chand, Bhagat Ram, M. M. Sharma and others. Before the Panchayatdars Kaliram Jam told me that no trouble would come to Premlata and that I should leave her with her husband. He took oath upon water of river Ganges. I agreed to send back my daughter. I was then working at Malout and staying there. Accused Chudiamal came to my house along with his maternal uncle Kaliram Jam and took my daughter by then he had shifted his business to Orissa. My daughter left my house along with them for Orissa on 24. 3. 1980. None of the persons named by P. W. 6 as the Panchayatdars has been examined as a witness for the prosecution. P. W. 14 had not stated anything about a meeting of the Panchayatdars although he had spoken about his return to Tikiri with the appellants and the deceased and about the complaint of the appellant Chudiamal that the deceased was not obeying him and about the complaint of the deceased against the two appellants. P. W. 14 had not stated anything about a meeting of the Panchayatdars although he had spoken about his return to Tikiri with the appellants and the deceased and about the complaint of the appellant Chudiamal that the deceased was not obeying him and about the complaint of the deceased against the two appellants. As would appear from the evidence of P. W. 14, the complaint of the deceased was that the two appellants had been using harsh words and for this. P. W. 14 had advised them to maintain cordiality and had addressed a letter (Ext. 4) to P. W. 6. Neither P. W. 14 nor anyone else had supported the evidence of P. W. 6 regarding his payments on different occasions nor about the demand of dowry, as testified by him. ( 22 ) AS regards the letters writtent by the deceased, as per Exts. 5 to 5/4, we are not prepared to accept the contention raised on behalf of the appellants that the prosecution had not duly proved the letters to be in the band writing of the deceased, as besides the evidence of P. W 5, the Headmaster of the S. V. B. High School, Morigate Hissar, where the deceased had studied from class I to class X and had been taught by P. W. 5 in the higher classes for which he would be in a position to identify and say that the writings were of the deceased, there was the evidence of P. W. 6 in this regard and we find no reason to discard the evidence of P. Ws, 5 and 6 that Ext. 5 series were in the hand of the deceased. But as submitted on behalf of the appellants, mention had been made by the deceased only in Ext. 5/2 about the demand of dowry and about threat to her life and the other letters appeared to have been written by her in the normal course and in one such letter, she had requested her father (P. W. 6) to come and take her daughter Bitu without minding the cost of travel as she was remembering P. W. 6 and was crying. ( 23 ) THERE is no evidence of anyone of village Tikiri that on any occasion, there had been quarrels between the appellants on the one hand and the deceased on the other with regard to the demand of dowry. On his own showing, P. W. 6 had never received any letter from either of the appellants with regard to the demand of dowry. The statements of the appellants before the trial court were that there had been some quarrels between the mother-in-law (appellant No. 2) and the daughter- in-law (deceased) regarding domestic affairs and this could not be taken as an uncommon factor in a family: The evidence of P. W. 1 that he had heard a quarrel between the appellant No. 2 and the deceased at about 9. 00 p. m. during the night of occurrence would not indicate that the appellants or any of them could have a motive to do away with the life of the deceased. There was no evidence of anyone of village Tikiri of any quarrel between the appellant Chudiamal and his deceased wife. P. Ws. 3 and 4, the neighbour and the maid-servant respectively of the appellants, who had been examined by the prosecution in this regard, had not supported the case of the prosecution and had been put leading questions by it under section 154 of the Evidence Act. ( 24 ) IT would thus be seen that there was evidence to indicate that the appellant No. 2 and the deceased had been quarrelling on occasions because of domestic affairs and such quarrels between a mother-in-law and a daughter-in-law could not furnish a motive for the appellants to join hands to commit the crime of murder. We thus find that the prosecution has failed to establish that the appellants or any of them had any motive to commit the murder of the deceased. It is, no doubt, true that often enough, the prosecution may not be in a position to ascribe any motive for the commission of any crime as mysterious is the working of the human mind and what has prompted an accused person to commit the crime may be known only to himself and no one else, but the absence of proof of motive must keep the court on its guard to examine the evidence with care before the same is accepted. Even assuming that there had been demand for dowry by the appellants for which the deceased was being driven away after assault which could constitute the motive for the commission of the offence, it must be kept in mind that motive, however, adequate, cannot, by itself, sustain a charge although it is a factor to be taken into consideration along with the other evidence. ( 25 ) NO one had spoken about the commission of the murder by the appellants or even about the appellants carrying the dead body of the deceased from inside their house. The possibility of the deceased leaving the house at dead of night when the other inmates were asleep by opening the door and going out and ultimately jumping herself into the well could not be ruled out. The appellants could discover about the missing of the deceased next morning and it was in evidence that thereafter the appellant No. 1 and his co-villagers had searched for the deceased and had found her dead body floating in the well. ( 26 ) THE prosecution had mainly relied on the evidence of two witnesses, namely, Gourabari Behera (P. W. 10) and his son Simachal Behera (P. W. 11), both residents of Tikiri. While according to the learned counsel appearing for the appellants, the evidence of these witnesses is untrue and untrustworthy and even if accepted, would not be incompatible with the innocence of the appellants and would not fasten them with the charge of murder, the learned Standing Counsel has submitted that P. Ws. 10 and 11 bad no animosity towards the appellants and their evidence can be relied on. He has, however, submitted that if the evidence of P. Ws. 10 and 11 is not accepted, the other items of evidence of a circumstantial character would not suffice to sustain the charge. ( 27 ) P. W. 10 had deposed: About one and half years back accused Chudiamals wifes dead body was recovered from the well of Bhimsen on a Sunday. During the preceding night around 2 a. m. while at my house, I had noticed the sound of something falling into Bhimsens well. ( 27 ) P. W. 10 had deposed: About one and half years back accused Chudiamals wifes dead body was recovered from the well of Bhimsen on a Sunday. During the preceding night around 2 a. m. while at my house, I had noticed the sound of something falling into Bhimsens well. After earing that noise 1 had come out of my house to enquire and noticed accused Chudiamal, his mother and that other accused who stands in the dock by his side moving in the direction of Chudiamals house from the side of the backyard of the house of Bhimsen. It was a moon-lit night. My son Simachal Behera was then sleeping on, my front verandah but was a wake. His had only asked me to look at the accused persons by saying that someone was moving. He had also come out with me and seen the three accused persons advancing towards their house. At that time accused Chudiamal was holding an empty gunny bag, in his hand. The evidence of P. W. 10 had not been supported by his son P. W. 11 as the latter had not deposed that he had asked his father to look at the accused persons after giving him a call and asking him to mark the persons moving on the road, as testified by P. W. 10. The statement of this witness (P. W. 10) had been recorded under section 164 of the Code of Criminal Procedure. He had not stated before the Magistrate that the appellants and the other accused were the persons whom be had noticed in the night nor had he stated that he had seen the appellant Chudiamal moving with a gunny bag in his hand. He bad not stated before the Magistrate anything about his son and that he had gone out of house along with his son and noticed the three persons going. On his own showing, he had told none about what he had seen during the night According to him, for the first time he informed Raghu Sahu at the Tikiri weekly shandy on the following Friday about what he had noticed. Raghu Sahu has not been examined in support of this vesrion of P. W. 10. On his own showing, he had told none about what he had seen during the night According to him, for the first time he informed Raghu Sahu at the Tikiri weekly shandy on the following Friday about what he had noticed. Raghu Sahu has not been examined in support of this vesrion of P. W. 10. ( 28 ) P. W. 11 had deposed: About one and half Years back on a Saturday night around 2 a. m. while out of my house to piss, I had noticed three persons entering into the backyard of our neighbour Bhimsen Jam at Tikiri. They were the three accused persons of this case who stand there. Accused Chudiamals mother had opened the door. Chudia and that other accused were holding a bag. They were at a distance of about 10 cubits from me. They entered into the backyard of Bhimsen and shortly after their entry I heard a sound of something falling into water of the well. After hearing that sound. I caned my father and told him about the sound. I also invited his attention towards the three accused persons, who were then getting out of the backyard of Bhimsen. At that time accused Chudia was holding an empty gunny bag. The next day morning I left for Gorakpur and returned back in the evening and heard in village that Chudiamals wifes body had been recovered from that well of Bhimsen with a rope around her neck. I did not inform anybody in fear of assault from the side of the accused persons and their relations and the Sarpanch of the Locality - Gunanidhi Pujari. ' On his own showing, this witness had informed none about what he had seen during the night. There was no evidence that the appellants or any of them were rowdy or influential persons for which this witness would get afraid and would not disclose what he had allegedly seen. There was no evidence whatsoever that the appellants had threatened this witness or P. W. 10 or had even asked them not to disclose to anyone about what they bad noticed. As a matter of fact, there was no evidence that even the appellants had seen P. W s. 10 and 11 during the night There was thus no reason as to why P. Ws. As a matter of fact, there was no evidence that even the appellants had seen P. W s. 10 and 11 during the night There was thus no reason as to why P. Ws. 10 and 11 would not disclose about the suspicious movements of the appellants and about their hearing a sound of something falling into the well and about one of the appellants, namely, Chudiamal, returning with a gunny bag, when all the villagers gathered at the place near the well where the dead body was found floating and even later when the police officer came to the scene and held inquest over the dead body. ( 29 ) AS the evidence of P. W. 11 would show, he had been sent for by the police authorities eight days after the event and that his father (P. W. 10) had also been sent for. It would be seen from the evidence of P. W. 15, the Assistant Sub-Inspector of police, that he had not examined P. W s. 10 and 11 in the course of investigation. He had taken up investigation of the case first in point of time. P. W. 16, the Officer-in-charge of the Kasipur Police Station, took charge of the investigation of the case from P. W. 15 on August 30, 1980 and his evidence is that on August 31, 1980, he had examined P. Ws. 10 and 11. No reasonable explanation has been offered regarding the belated examination of these material witnesses in the course of investigation. If P. Ws. 10 and 11 had seen the appellants with the co-accused person in such suspicious circum stance at that part of the night, they were likely to have challenged them and asked them as to why they had gone near the well and as to what they had done. There was no evidence that they had asked the appellants about the movements at that part of the night. ( 30 ) ON a consideration of the evidence of P. Ws. 10 and 11, the learned Sessions Judge, in paragraph 8 of the judgment, criticised their evidence and was not prepared to accept it by observing thus:. . There was no evidence that they had asked the appellants about the movements at that part of the night. ( 30 ) ON a consideration of the evidence of P. Ws. 10 and 11, the learned Sessions Judge, in paragraph 8 of the judgment, criticised their evidence and was not prepared to accept it by observing thus:. . Though the dead body had come out on the following morning they had not gone to report about this fact to the Police and they had revealed their story before P. W. 6 as the latter has vouched, on 31. 8. 1980. On being questioned P. W, 10, an umbrella repairer making his living by moving from place to place, has stated that he had not told anything about the event to anyone till the following Friday when he had revealed the fact before one Raghu Sahu, though the Police Outpost was at a distance of 100 to 150 cubits from his house. His son P. W. 11 explained that he had not revealed the fact in felt of assault from the side of the accused person and their relations. This is no uncommon behaviour and therefore their evidence cannot be accepted without a grain of salt. In the absence of their evidence the fate of the case will depend upon circumstantial evidence and the medical opinion in regard to which there is conflicting opinion of D. W. 2 the Doctortt. As the evidence of P. W s. 10 and 11 would show, the entire villagers were present when the dead body was taken out of the well. If P. Ws. 10 and 11 had witnessed what they had claimed to have during the preceding night, in the normal course of human conduct, they would have informed the police officer and the villagers about the suspicious movements of the appellants during the night in question. Strangely, the learned Sessions Judge, while discarding the evidence of P. Ws. 10 and 11 in paragraph 8 of the judgment as unworthy of credence, went or to discuss the other evidence and in paragraph 28 of the judgment, held as follows. Strangely, the learned Sessions Judge, while discarding the evidence of P. Ws. 10 and 11 in paragraph 8 of the judgment as unworthy of credence, went or to discuss the other evidence and in paragraph 28 of the judgment, held as follows. The circumstances get fortified by the statement of P. W s. 10 and 11 the father and son to the effect that they had heard the sound of something falling into the well of Bhimsen Jam and seen the three accused persons coming out of his back yard carrying a gunny sack. From a distance of 10 the son of P. W. 10 had seen and marked their features as he stated. But then accused Dalchand was not his known man. The hostile witness P. W. 4 had stated that he had come to the village a couple of days before the, occurrence along with accused Suna Devi. Truth must be nearer her statement since P. W. 6 who had come to Tikiri in the first week of July 1980 and not met accused Sunadevi and has not spoken about the presence of accused Dalchand. As per the version of P. Ws. 10 and 11 rows of trees were there along side the path giving shade. In the circumstances it cannot be said that they had been able to recognise accused Dalchand. No other incriminating circumstance being there against him I feel that their statement as against him is not worthy of credit, since there is no independent corroboration. As regards the mother and son, in my view, their evidence is acceptable on account of all those surrounding circumstances which make their version probable. They were riff-raffs of the society whereas accused Chudiamal was a business mat ). Men of their position are expected to keep their mouth shut when involvement was of foreigners. It cannot, therefore, be said that they are cooked witnesses of the police. ( 31 ) IN our view, the learned Sessions Judge completely went wrong in accepting the evidence of P. Ws. 10 and 11 in a later part of the judgment after holding them to be unreliable in an earlier part of the same judgment. Some circumstances to which reference has been made by the learned Judge cannot get fortified by evidence of an unreliable character. 10 and 11 in a later part of the judgment after holding them to be unreliable in an earlier part of the same judgment. Some circumstances to which reference has been made by the learned Judge cannot get fortified by evidence of an unreliable character. We have indicated earlier and we may state at the cost of repetition that there had been unexplained delay in the disclosure by these witnesses of what they had allegedly seen during the night of occurrence. No explanation has been offered by the investigating agency as 10 how and why there had been inordinate delay in the examination of these material witnesses. Non-disclosure of such vital facts allegedly seen by P. Ws. 10 and 11 immediately after the occurrence and even after the police officer came to the scene and the villagers gathered would certainly affect their evidence and it would not be safe and-proper to accept their evidence. In this connection, reference may be made to the principles laid down in Babuli v. The State of Orissa13, Panda Nana Kare v. State of Maharashtra14, Bhagwan and another v. State of Madhya Pradesh15, Sonia Behera v, State of Orissa16, Bishnudeo alias Bishnu Prasad Jadav v. The State17, and Madan Naik v. State18. ( 32 ) FOR the aforesaid reasons, we are not prepared to place any reliance on the testimony of P. Ws. 10 and 11 as their evidence is utterly untrustworthy. The other circumstances, on which reliance has been placed by the prosecution had not been established and even if accepted in entirety, would not lead one to a reasonable conclusion that the appellants had committed the murder of the deceased. The other circumstances, taken cumulatively, would not be incomparable with the innocence of the appellants and would not lead to but one conclusion that the appellants were the authors of the crime. Merely because it has not been shown as to how and why some witnesses have come forward to depose against the appellants their evidence is not to be accepted. In this connection, reference may be made to an observation of the Supreme Court in Shankarlal Gyarasilal Dixit v. State of Maharashtra, (supra) as follows: Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? In this connection, reference may be made to an observation of the Supreme Court in Shankarlal Gyarasilal Dixit v. State of Maharashtra, (supra) as follows: Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such question is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations, Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. . . TI ( 33 ) IN support of a theory of suicide, reliance has been placed by the defence on the evidence of D. W. 1, who had been named as a witness for the prosecution, but was not examined by it and had been examined by the appellants in their defence. The version given by him was that at about 2 Oclock during the night of occurrence while returning home, he had noticed the deceased proceeding in the direction of the house of Bhimsen Jam on the road. The defence wanted to show by his evidence that the deceased had left the house during the night, proceeded towards the house of Bhimsen Jam and committed suicide by jumping herself into the well. D. W. 1 had asserted that he had seen the deceased while she was getting out of her house. As his evidence would show, he had acquaintance with and was on talking term with the deceased. If so, he would normally have asked the deceased as to where she had been going at that part of the night. On his own showing D. W. 1 had not asked her about it. He had admitted that he had not told anyone that he had seen the deceased proceeding in the manner he had claimed to have witnessed during the night before he was examined in the court and his evidence had been recorded in April, 1982. His evidence had rightly been rejected by trial court and we do not accept the contention raised on behalf of the appellants that the evidence of this witness is acceptable and that his evidence would probabilise the theory of suicide. His evidence had rightly been rejected by trial court and we do not accept the contention raised on behalf of the appellants that the evidence of this witness is acceptable and that his evidence would probabilise the theory of suicide. It is not, however, for the defence to show in a criminal trial as to how the deceased met with her death. Even assuming that a false plea has been taken by the defence, falsity of the defence, by itself, cannot establish the case of the prosecution. It may be an additional link if there is other evidence pointing to the guilt of an accused person. ( 34 ) WE thus find, on a consideration of the evidence adduced by both the sides; that the prosecution has failed to bring home the charge to the appellants or any of them. [0 our view, the findings recorded by the trial court cannot be sustained on facts and maintained in law. ( 35 ) IN the result, the appeal succeeds and the same is allowed. The order of coviction and sentences passed against the appellants are set aside. The appellants be set at liberty forthwith. ( 36 ) WE would maintain the order passed by the trial court with regard to the disposal of the seized articles except in respect of the articles seized under Ext. 16 for which an order has been passed for return of the articles to P,w. 6. The articles seized as per this seizure list include ornaments and some clothes which were on the person of the deceased. The clothes be destroyed. As for the ornaments, it is not clear from the evidence including that of P. W. 6 and from the statements of the appellants as to whom the ornaments belonged. We would accordingly direct under section 452 (3) of the Code Criminal Procedure that the ornaments seized as per Ext. 16 be delivered to the Chief Judicial Magistrate, Koraput, Jeypore, who shall thereupon deal with them in accordance with law. These directions shall be carried out after t he expiry of appeal against the judgment and order of this Court if no appeal is preferred and if an appeal is preferred after disposal of the appeal. ( 37 ) R. C. Patnaik, J.- I agree. . .