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2004 DIGILAW 381 (ORI)

M. Venkat Rao v. State of Orissa

2004-08-25

L.MOHAPATRA, N.PRUSTY

body2004
JUDGMENT L. MOHAPATRA, J. — Judgment of the learned Additional Sessions Judge, Bolangir, in Sessions Case No. 130/B of 1996-97 convicting the appellant under Section 302 I.P.C. and sentencing him to undergo R.I. for life is impugned in this Criminal Appeal. 2. Case of the prosecution is that the appellant was working as an Assistant Driver in the Indian Railways and at the time of occurrence he was posted at Bolangir. About one and half months prior to the date of occurrence the appellant had taken a house on rent near the Railway Station Road belonging to the informant (P.W.1) and he was staying in the said rented house with his wife M. Jayalaxmi (deceased) and two small children. In the evening of 20.8.1996 the deceased was seen alive by the informant and his wife (P.W.2). The informant's family was staying nearby. On 21.8.1996 till 11 a.m., wife of the informant (P.W.2) did not see the deceased and she intimated the said fact to the informant (P.W.1). Though the informant did not give much empha¬sis on this information,however, at about 1.30 p.m. P.W.2 discov¬ered that the back door of the rented house of the appellant had been closed from inside and blood was seeping out under the door leaves of the back door. Thereafter P.W.2 informed the said fact to the informant and they asked the appellant as to why blood was seeping through the back door as well as whereabouts of the de¬ceased. The further case of the prosecution is that on being questioned, the appellant admitted to have killed his wife on the previous night because of domestic quarrel. The informant there¬after lodged an F.I.R. in Bolangir Town Police Station. Investi¬gation was taken up and on completion of investigation charge sheet for commission of offence under Section 302 I.P.C. was submitted. 3. The appellant took the plea of denial and no specific defence plea was advanced by him. 4. In order to prove the charge, the prosecution has exam¬ined as many as 14 witnesses in all, out of whom P.W.1 is the informant and P.W.2 is the wife of the informant. P.W.3 is an advocate and all the three above witnesses are stated to be the witnesses to an extra-judicial confession. P.Ws.10 and 11 are Doctors who conducted the post mortem examination. Rests of the witnesses are all seizure witnesses and police officials. 5. P.W.3 is an advocate and all the three above witnesses are stated to be the witnesses to an extra-judicial confession. P.Ws.10 and 11 are Doctors who conducted the post mortem examination. Rests of the witnesses are all seizure witnesses and police officials. 5. The trial Court relying on the conduct of the appellant after the occurrence as well as the evidence with regard to leading to discovery of weapon of offence and other materials found the appellant guilty of the offence and convicted him thereunder. 6. Mr. S. S. Rao learned counsel for the appellant chal¬lenged the order of conviction and sentence on the ground that the evidence with regard to extra judicial confession is not at all acceptable and the only other evidence left to be considered by the Court is that the appellant led the police for recovery of certain articles including the weapon of offence. It was further contended by Shri Rao that since the case was entirely based on circumstantial evidence, the prosecution had not been able to prove all the circumstances which can ultimately lead to a con¬clusion that the appellant is the author of the crime. It was further contended that the chain of circumstances was neither complete nor was there any material to show that it was the appellant alone who could have committed the offence. 7. The learned Addl. Government Advocate, on the other hand, submitted that the death being homicidal, the Court has to look to the conduct of the appellant immediately after the occur¬rence and on considering such conduct of the appellant as well as the fact that he led the police for recovery of weapon of offence and other materials, conviction of the appellant passed by the learned Addl. Sessions Judge, Bolangir should be maintained. 8. From the analysis of the prosecution case as laid before the trial Court, it appears that the prosecution relied on circumstances to prove the guilt of the appellant. The first circumstance is the last seen theory as submitted by the learned Addl. Government Advocate. The learned Addl. Government Advocate drew attention of the Court to the F.I.R. as well as the evidence of P.Ws.1 and 2 to show that the deceased and the appellant were last seen together on the previous night. We have carefully gone through the F.I.R. as well as the evidence of P.Ws.1 and 2. Government Advocate. The learned Addl. Government Advocate drew attention of the Court to the F.I.R. as well as the evidence of P.Ws.1 and 2 to show that the deceased and the appellant were last seen together on the previous night. We have carefully gone through the F.I.R. as well as the evidence of P.Ws.1 and 2. The evidence of P.Ws.1 and 2 as well as the F.I.R. only indicates that the deceased was seen in the house in the evening of 20.8.1996 but there is no material to show that the deceased was seen with the appellant in the evening of 20.8.1996. In the absence of such evidence, it is difficult to accept the conten¬tion of the learned State counsel that there is any material on record to support the contention of last seen theory. 9. The second circumstance on which reliance is placed by the learned counsel for the State is that extra judicial confes¬sion was made by the appellant before P.Ws.1,2 and 3. P.W.1 in his deposition has stated that at about 1.30 P.M. on 21.8.1996 after hearing from his wife that blood was seeping out under the door leaves of the house which was under the appellant's occupation he went to the appellant who was inside the house and asked him the whereabouts of the deceased as well as the reason for which the bloods was seeping out under the door leaves of the back door of the said house. In reply, it is stated that the appellant ap¬peared apprehensive and stated something in his language in a murmur which this witness could not understand. It is therefore evident that this witness has not been able to say that state¬ment was made by the accused-appellant to his query and, there¬fore, the evidence of P.W.1 is of no help for the purpose of so-called extra-judicial confession. So far as P.W.2 is concerned, she is the wife of P.W.1 and it appears that in the Court she deposed to have heard the appellant making extra judicial confes¬sion before her husband (P.W.1). Admittedly, neither this witness has asked any question to the appellant nor the appellant has confessed before her. Therefore, the evidence of P.W.2 does not help the prosecution to prove the circumstance such as, extra judicial confession. Admittedly, neither this witness has asked any question to the appellant nor the appellant has confessed before her. Therefore, the evidence of P.W.2 does not help the prosecution to prove the circumstance such as, extra judicial confession. So far as P.W.3 is concerned, he has spe¬cifically stated that neither he asked the accused anything nor the accused confessed before him about the incident. In view of such nature of evidence, it is practically impossible to accept the prosecution case that the appellant made an extra judicial confession before the above three witnesses. 10. The third circumstances on which much reliance has been placed by the learned State Counsel is that the appellant led the police for recovery of the weapon of offence, wearing apparels of the deceased as well as one lungi and one underwear. P.W.3 in his evidence has stated that the appellant while in police custody confessed his guilt in presence of witnesses saying that he killed his wife by a vegetable cutter (PANIKI), he concealed the vegetable cutter in the corner of his house, he concealed the lungi and the underwear which he put on at the time of killing his wife and he went inside his house and brought the vegetable cutter, lungi and underwear which were stained with blood and handed over the same to the police for seizure. This witness in his cross-examination has stated that the house of the accused where the dead body of the deceased was lying is a small room measuring about 8' x 10'. All the articles of the house were visible and the vegetable cutter, lungi and underwear were lying near the dead body. P.W.14 is the I.O. who has stated in his evidence that when he made the spot visit, he found the dead body of the deceased lying inside the kitchen room of the rented house. He has further stated that the accused-appellant while in police custody admitted his guilt in presence of the witnesses and gave recovery of one PANIKI and the lungi and the underwear which were stained with blood. He has further stated that the accused-appellant while in police custody admitted his guilt in presence of the witnesses and gave recovery of one PANIKI and the lungi and the underwear which were stained with blood. In view of the evidence of P.W.3 that the weapon of offence, that is, vegetable cutter (PANIKI), lungi and underwear were lying near the dead body it is hard to believe as to how it can be said that the appellant led the police for recovery of the same when all the said articles were lying near the dead body of the deceased. Moreover, there is absolutely no material on record to show that the lungi and the underwear belonged to the appellant and he wore the lungi and the underwear on the previous night. Merely because, blood stain was found on the lungi and the underwear as well as on the weapon of offence, it cannot be said that it is a circumstance against the appellant specially when there is no material on record to show that the said lungi and the underwear belonged to the appel¬lant and that he wore it on the previous night. Much argument was advanced by the learned counsel for the State with regard to the conduct of the appellant after the occurrence. From the medical record, it appears that the death took place 36 to 48 hours prior to the date and time of occurrence. The post mortem was conducted at about 10.30 a.m of 22.8.1996. Thereafter, it may be possible that the death occurred in the night of 20.8.1996. The prosecution has not placed by any material before the Court with regard to where¬abouts of the appellant in the night of 20.8.1996. The only evidence placed before the Court is that the appellant was found in the house with the two children at noon of 21.8.1996. In the absence of any material to show that the appellant was present in the house in the night of 20.8.1996, it is also difficult to accept the contention of the learned counsel for the State that the appellant must be present in the night of 20.8,1996 and committed the crime. The most surprising part of the prosecution case is that no evidence has been laid before the Court to show as to whether the death was homicidal or suicidal. The most surprising part of the prosecution case is that no evidence has been laid before the Court to show as to whether the death was homicidal or suicidal. We have pe¬rused the post mortem report and nowhere the opinion of the Doctor is found that the death of the deceased was homicidal or suicidal. During the examination in the Court, the Doctor con¬ducting the post mortem examination has not stated anything as to whether the death was homicidal or suicidal. It was contended by the learned counsel for the State that strong suspicion arises with regard to conduct of the appellant and for that reason the order of conviction should not be interfered with. We are unable to accept such contention of the learned State Counsel. The suspicion, however, strong it may be cannot take the place of proof. 11. We, therefore, extend the benefit of doubt to the appellant and allow the appeal and set aside the impugned judg¬ment passed by the trial Court. Since the appellant is in custo¬dy, he be set at liberty forthwith, if his detention is not warranted in any other case. N. PRUSTY, J. I agree. Appeal allowed.