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2008 DIGILAW 1124 (ORI)

State of Orissa v. Anit Singh @ Rabi

2008-12-11

P.K.TRIPATHY, SANJU PANDA

body2008
JUDGMENT SANJU PANDA, J. — The inter se relationship between the two accused persons and between accused Hasina @ Hastina Singh and P.W.1 Ashok Singh are not in dispute. That relationship is also avail¬able from the statement of accused Hastina Singh in Ext.4. Ac¬cording to that, accused Hastina Singh and accused Anit @ Rabi Singh are cousin, being the offspring of two sisters. Ashok Singh, P.W.1 is also a cousin of accused Hastina Singh, being the son of her father’s sister. 2. According to the prosecution, Khage Singh (P.W.12) is the father, Champa Singh, one of the deceased, is the mother of Ashok Singh (P.W.1). Gita Singh (P.W.3) and Niranjan Singh, the other deceased, are the minor sister and brother of Ashok Singh. Ashok Singh married to accused Hastina Singh. By the date of such marriage, accused Hastina had illicit relationship with her cousin accused Anit Singh and even after the marriage, she main¬tained such illicit relationship with accused Anit Singh. 3. The members in the family of Ashok Singh belong to labour class and therefore during the day time, male persons remain absent from the house. Taking advantage of absence of family members in the house of Ashok Singh, accused Anit Singh was at times visiting accused Hastina Singh to maintain their illicit relationship. It is alleged by the prosecution that on 4.2.2005 at about 2.00 P.M. accused Anit Singh went to the house of Ashok and when both the accused persons were engaged in love affairs, accidentally it could be seen by Niranjan Singh, the minor boy. To cover up the illicit relationship, both the accused persons killed that boy and concealed the dead body in a tin box. The lust in them was not at all lost after committing murder of an innocent boy. They again indulged in the activities and then Champa Singh arrived in the residential premises. She could see a part of act of intimacy between the two accused persons through the window and shouted with protest. Therefore, to silence her, both the accused persons reacted promptly and done her to death and concealed her dead body in another room i.e. the Puja Ghar (place of worship). After the second murder, accused Anit left the occurrence house and while going away he could be noticed on the road by Sadananda Rout (P.W.2). Therefore, to silence her, both the accused persons reacted promptly and done her to death and concealed her dead body in another room i.e. the Puja Ghar (place of worship). After the second murder, accused Anit left the occurrence house and while going away he could be noticed on the road by Sadananda Rout (P.W.2). Gita (P.W.3) on return to house wanted to know about the whereabouts of the mother and brother (both the deceased persons) and accused Hastina gave false reply suggesting for their absence. Even when P.Ws. 1 and 12 came to the house, she could successfully stall them with some explanation in relation to absence of both the deceased persons. At the same time, she wanted to leave the premises and for that she picked up quarrel with P.W.1 and on that pretext she went to her mother’s place in the same township. It is on the following day that Gita accidentally discovered the stretch limb of her brother (because of the rigour motis) and thereafter everything could be uncovered in course of investigation by police. In course of such investigation, not only the dead bodies were discovered so also the weapons of offence under Section 27 of the Evidence Act on recording respective statements of the accused persons but also the blood-stained wearing apparels and the blood-stained weapons together with blood-stained earth etc. which were sent for chemical analysis and serological test. Since there was no eyewitness to the occurrence, the Investigating and prosecuting agencies relied on circumstantial evidence to connect the accused persons with the crime. In paragraph 20 of the judg¬ment, learned Sessions Judge has enumerated all the circum¬stances, except the circumstance and the evidence thereof emerg¬ing from the report from the R.F.S.L., Berhampur, in which on the basis of forwarding letter, Ext.33, the seized incriminating articles were tested in the Laboratory and opinion was given about presence of human blood AB group not only in the weapons of offence but also on the wearing apparels of the deceased and accused persons. 4. 4. Learned Sessions Judge, on appreciation of evidence of P.Ws.7 and 10, the two doctors who conducted autopsy respectively on the dead bodies of deceased Niranjan and Champa as per the respective Post-mortem Reports, Exts.14 and 19, found that prosecution has proved that both the deceased persons suffered homicidal death because of multiple injuries, which were suffi¬cient in ordinary course of nature to cause such deaths. Learned Sessions Judge noted that in absence of eye-witness to the occur¬rence prosecution relies on the circumstantial evidence to con¬nect the accused persons with the alleged murders. Accordingly, he took into consideration the last seen theory of the accused persons in the occurrence premises, inculpatory confession of accused Hastina Singh recorded by the Magistrate under Section 164, Cr.P.C., recovery/discovery/seizure of incriminating arti¬cles like blood-stained earth, blood-stained weapons, blood-stained wearing apparels, etc. besides seizure of other incrimi¬nating materials in course of the usual investigation and the finger print test and accordingly made a synopsis of circum¬stances in paragraph-20 of the impugned judgment to record con¬viction against both the accused persons under Sections 302/201/34, I.P.C. 5. In course of arguments for the appellants in each of the appeals, the sum and substance of the submission is that the circumstantial evidence enumerated in paragraph 20 of the judg¬ment are not to be accepted as valid and connecting evidence to complete the chain of circumstance. On the other hand, learned Standing Counsel repels such argument. On the basis of assessing and analyzing the evidence, it is seen that in course of examina¬tion of the accused persons under Section 313, Cr.P.C. learned Sessions Judge, for reasons best known to him, did not put any question to either of the accused persons on the evidence emerg¬ing from Exts. 33 and 34. It is the settled principle of law that examination under Section 313, Cr.P.C. is not a mere formality. Section 313, Cr.P.C. embodies fundamental principle of Audi Alter¬am Partem. Therefore, a relevant evidence direct or circumstan¬tial cannot be used against the accused unless it has been con¬fronted to him in course of examination under Section 313, Cr.P.C. Under such circumstance, we find that evidence in Exts.33 and 34 cannot be used against the appellants, unless such evi¬dence is confronted to the accused persons under Section 313, Cr.P.C. providing fair opportunity to answer/explain the same. The stage of adducing defence evidence comes after closure of the prosecution evidence and examination of accused under Section 313, Cr.P.C. Therefore, if a material piece of evidence, which may be very relevant and determinative in nature to decide the case, is not put to the accused, then the accused may not be in a position to think of adducing defence evidence. 6. In this case we find such a peculiar situation where the accused was not confronted with the relevant incriminating evidence available against them either to explain or to take note of for explaining and to adduce defence evidence, if any. If such evidence is excluded, then the chain of circumstances would not be complete. In this case, prosecution is not guilty of not adducing or suppressing such evidence, but we find a failure on the part of the learned Sessions Judge to take note of such evidence for the purpose of confronting to the accused in course of examination of the accused persons under Section 313, Cr.P.C. Justice is dearer to both the parties, i.e. the victim of the offence as well as the accused and, therefore, for the latches, negligence or inaction of the Court either party should not be permitted to suffer. Thus, we feel it proper that the order of conviction be set aside and the Sessions Case be remitted back for retrial from the stage of examination of accused under Sec¬tion 313, Cr.P.C. so that interest of justice would be properly served. 7. For the reasons stated above, we think it not proper to go into the merit of the case and credibility of evidence. On the other hand, to remit back the case for retrial, we set aside the order of conviction and discharge the death sentence reference. We direct the trial Court to formulate the questions afresh and put the same to the accused persons in their examination under Section 313, Cr.P.C. and record their answers strictly in accordance with law. After that, obviously the accused persons are legally entitled to adduce defence evidence in accordance with Section 233, Cr.P.C. unless they decline. Thereafter, learned Sessions Judge is to hear argument from both the parties and to deliver the judgment on proper appreciation of evidence. After that, obviously the accused persons are legally entitled to adduce defence evidence in accordance with Section 233, Cr.P.C. unless they decline. Thereafter, learned Sessions Judge is to hear argument from both the parties and to deliver the judgment on proper appreciation of evidence. Learned Sessions Judge is directed to go through the evidence in detail, both oral and documentary and take note of all incrimi¬nating evidence and to systematically confront the same to the accused persons and not to repeat the mistakes. We also direct learned Sessions Judge to take up this case expeditiously and to complete the retrial within a period of eight weeks from the date of receipt of the L.C.R. and to deliver the judgment within that period. 8. In the result, the order of conviction is set aside, Death Sentence Reference is discharged and the Criminal Appeals are allowed and Sessions Case No.81 of 2005 is remanded for retrial in accordance with law and the direction contained in this judgment. P.K. TRIPATHY, J. I agree. Ordered accordingly.