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1997 DIGILAW 88 (ORI)

MANU SAMINI v. STATE

1997-04-22

A.DEB, ARIJIT PASAYAT

body1997
JUDGMENT : A. Pasayt, J. - In this appeal from jail Manu Samini (hereinafter referred to as "the accused") calls in question the judgment passed by the learned Addl. Sessions Judge, Bargarh Camp at Padampur convicting him for commission of offences punishable under Sections 302 and 498-A of the Indian Penal Code, 1860 (in short "I.P.C.") and awarding sentences of imprisonment life and one year respectively. The sentences were directed to run concurrently. 2. Prosecution alleged that the accused was responsible for the death of his wife Sita Samini (hereinafter referred to as the deceased). The accused and deceased entered into wedlock, in the year 1989, and a child was born to them. The accused used to frequently assault the deceased physically and the matter went out of her tolerance limits. Chaturbhuja Kanda father of the deceased went to house of the accused along with Basudev Nial to bring out a repproachment. There was temporary respite. On getting information that the deceased was again subjected to cruelty and harassment, her grandfather Ugrasin Kanda (P.W.2) visited houses of the accused. Presence of the grandfather did not deter the accused from assaulting the deceased, and there was assaults in his presence. On 5.10.1992, at about 1 p.m. Tikalal Kera (P.W.1) a co-villager of the accused lodged information at Buden police station stating inter alia that the deceased died in the house of her husband in the morning hours of that day under a suspicious circumstance and some foul play was suspected. It was clearly indicated that the accused was constantly ill-treating and assaulting the deceased. The report was registered and investigation was undertaken. Chargesheet was placed under Sections 498-A and 302 I.P.C. Trial was conducted by learned Additional Sessions Judge, Bargarh. 3. Accused pleaded innocence, and complete ignorance about commission of the offence. 4. Six witnesses were examined to further the prosecution version. As there was no eye witness to the occurrence, several circumstances were pressed into service to bring home the allegations against the accused. On consideration of the materials on record, learned trial Judge found the accused guilty and convicted and sentenced him as aforesaid. 5. Miss. 4. Six witnesses were examined to further the prosecution version. As there was no eye witness to the occurrence, several circumstances were pressed into service to bring home the allegations against the accused. On consideration of the materials on record, learned trial Judge found the accused guilty and convicted and sentenced him as aforesaid. 5. Miss. Tapaswini Sinha learned counsel for the accused-appellant waged that a case under Section 302 I.P.C. has not been made out, the circumstances do not make out a complete chain to bring home the charges and to rule out involvement of any other person in the alleged crime. Mr. R.K. Mohanty, learned Additional Government Advocate supported the judgment of conviction and sentence. 6. Admittedly this is a case where the prosecution relies on circumstances in pointing the accused finger at the accused. The circumstances highlighted by the learned trial Judge are as follows: (1) The accused had assaulted the deceased right in front of the nose of her grand-father by delivering slaps and chapal blows on the Friday preceding her death (2) The place where the tragic incident occurred was in possession and occupation of the accused (3) The occurrence had happened in the desolate hours when no body else would have had ingress at the place where the incident allegedly occurred. (4) The accused admits his presence. (5) The positive opinion of the doctor that the death was due to asphyxia caused by smothering; (6) The number of ante mortem injuries noticed on the body of the deceased are suggestive of the fact that there was a struggle between the deceased and her assailant which fact cannot go unnoticed by the accused who at that time was sharing the bed of the deceased, and (7) The casual manner in which the accused ignored the homicidal death of his wife by not reporting the matter to the police to bring the culprit to back. 7. The question whether chain of circumstances unerringly established the guilt of the accused needs careful consideration. The 'Panchsheel' of proof of a case based on circumstances evidence which is usually called five golden principle have been stated by the apex Court in Shared v. State of Maharashtra: AIR 1984 S.C. 1622 They read as follows:- (1) the circumstances from which the conclusion of guilt is to be drawn should by fully established, as distinguished, from 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hedge (1838) 2 Law 227: the mind was apt to take a pleasure in adapting circumstances to one another and even the straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." This was referred to in Shankarlal v. State of Maharashtra AIR 1981 S.C. 785: and in Jaharlal Das v. State of Orissa. AIR 1991 S.C. 1388 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction. 8. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. 8. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and if proximity to the accused as regards time and situation is shown, and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne is mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however, extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforces the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This aspect has been highlighted by one of us in (1995) 9 O.C.R. 264 (Kali Nayak alias Mukhi v. State of Orissa and Braja Naik and another v. State of Orissa, (1996) 10 O.C.R. 167 / Md. Sher Bahadur Khan and Ajmer Khan and another v. The State) and (1996) 11 O.C.R. (SC) 508 (State of Orissa v. Simanchal Gouda and seven others). At this juncture, the decision of the apex Court in Anant Bhujangrao Kulkarni v. State of Maharashtra AIR 1993 S.C. 100 is to be taken note of. 9. Sher Bahadur Khan and Ajmer Khan and another v. The State) and (1996) 11 O.C.R. (SC) 508 (State of Orissa v. Simanchal Gouda and seven others). At this juncture, the decision of the apex Court in Anant Bhujangrao Kulkarni v. State of Maharashtra AIR 1993 S.C. 100 is to be taken note of. 9. The circumstances enunciated by the learned trial Judge clearly show that the circumstances from which conclusion is dram are fully proved and are conclusive in nature. The facts established are consistent only with hypothesis of guilt and inconsistent with innocence of the accused. The circumstances rule out possibility of guilt of any person other than the accused. The irresistible conclusion is that with all human probabilities, the offence was committed by the accused and by none else. The apex Court reversed judgment of the Karnatak High Court, where the accused involved in that case was acquitted on the ground that circumstances did not show complete chain of circumstances to warrant conclusion of guilt. The apex Court observed that the very fact that the respondent left the house in a hurry was very relevant and the chain of circumstances can be established that the accused was alone responsible for the murder of his wife. The circumstances brought on record by the prosecution in the case in hand are at a higher pedestal. In his examination under Section 313 of the Code of Criminal Procedure, 1973 (in short "the Code") the accused admitted that he was in the house with this wife. A complete chain of circumstances has been established to prove the guilt of the accused. The cumulative effect of the circumstances negatives the plea of innocence of the accused. The judgment of the learned trial Judge does not suffer from any infirmity to warrant interference. The appeal falls and is dismissed. A. Deb, J. - I agree. Final Result : Dismissed