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2008 DIGILAW 6 (ORI)

SUSIL KUMAR MEHER v. STATE OF ORISSA

2008-01-02

P.K.TRIPATHY, R.N.BISWAL

body2008
JUDGMENT : 1. This appeal is directed against the judgment and Order Dated 11.8.2004 passed by the Learned Addl. Sessions Judge, Bargarh in S.T. Case No. 188/21 of 1997 convicting the accused-Appellant u/s 302 of I.P.C. and sentencing him thereunder to undergo imprisonment for life. 2. The prosecution case in nub is that there was love affair between the accused-Appellant and the deceased, Nalini Muguri. The parents of the accused-Appellant, particularly his father, accused Narayan was not approving the same. Fifteen days prior to the death of Nalini, he had threatened her to do away with her life, if at all she continued relationship with the accused-Appellant. On the date of occurrence, i.e., on 8.12.1996, at about 10.30 A.M., co-accused, Bhimadhar Sikha, the field servant of the accused-Appellant took the deceased from her house stating that she was being called by the accused-Appellant. The deceased did not return thereafter. On the report of P.W.1, father of the deceased, Padampur P.S.case No. 84 dated 8.12.1996 was registered. The case was investigated into and after completion of investigation charge sheet was submitted against six accused including the accused-Appellant. After the case was committed to the Court of Session, it was transferred to Addl. Sessions Judge, Bargarh for trial. Accordingly, the Addl. Sessions Judge conducted the trial. Accused-Appellant-Susil Kumar Meher faced trial for the offence under Sections 302/364 of I.P.C. Co-accused, Narayan Meher, Laba Meher, Lalchanda Meher, Chhelia Deep and Bhimadhar Sikha for the offence under Sections 201/34 of I.P.C.and accused, Bhimbadhar Sikha further faced trial under Sections 364/34 of I.P.C.. The plea of the accused persons including the accused-Appellant was complete denial. However, the accused-Appellant admitted that he had love affair with the deceased. 3. In order to establish its case, prosecution examined 17 witnesses as against none by the defence. After assessing the evidence on record and convicting the accused-Appellant, the Trial Court acquitted all other accused persons of all the charges. While acquitting the accused-Appellant of the charge u/s 364 of I.P.C. the Trial Court convicted him for the offence u/s 302 of I.P.C. and sentenced him there under as stated earlier. Being dissatisfied with the said order of conviction and sentence, accused-Appellant has preferred the present appeal. 4. While acquitting the accused-Appellant of the charge u/s 364 of I.P.C. the Trial Court convicted him for the offence u/s 302 of I.P.C. and sentenced him there under as stated earlier. Being dissatisfied with the said order of conviction and sentence, accused-Appellant has preferred the present appeal. 4. It transpires from the evidence of P.W.3, the mother of the deceased that the deceased once disclosed before her that accused Narayan Meher (since acquitted), father of the accused-Appellant, threatened her to kill since he was not approving the love affair between the deceased and the accused-Appellant. That part of her evidence has been corroborated by P.W.1, the father of the deceased. It transpires from the evidence of P.W.3 that on 8.12.1996 being called by the accused Bhimadhar Sikha, the deceased went to the house of Narayan and thereafter she did not return. This part of her evidence has also been corroborated by P.W.6. 5. It is further found from the evidence of P.W.6 that accused Appellant, Susil Meher and co-accused Narayan while in police custody, stated to the Magistrate(P.W.17) that accused Narayan Meher killed the deceased. Narayan Meher himself stated that after killing the deceased, he was committing suicide, but failed. He further stated that accused Laba and Lalchanda concealed the dead body in a heap of paddy in his house. Accused-Appellant Susil stated that he himself, Bhimadhar Sikha and Chhelia Deep rescued accused Narayan from committing suicide. During cross-examination, it was elicited from P.W.6 that while accused, Narayan gave the confessional statement, three constables and one Circle Inspector of Police were present with the Magistrate. It transpires from the evidence of P. Ws.5 and 8 that while in police custody, accused Appellant Susil disclosed that there was love affair between himself and the deceased, Nalini and he wanted to marry her. As his father did not agree to the proposal, he killed Nalini. It further transpires from the evidence of P.W.8 that Susil Kumar Meher (accused-Appellant) along with police came to his (Susil) house and gave recovery of the dead body of the deceased, kept concealed in a heap of paddy. It is seen from the evidence of I.O. that while under police custody, co-accused, Narayan led him, the Executive Magistrate and some other witnesses to the spot and removed the dead body from a heap of paddy. It is seen from the evidence of I.O. that while under police custody, co-accused, Narayan led him, the Executive Magistrate and some other witnesses to the spot and removed the dead body from a heap of paddy. He further stated that accused Narayan led him and the witnesses to the Courtyard of his house and gave recovery of the weapon of offence, i.e., axe. The confessional statement made by the accused-Appellant and the co-accused Narayan in presence of police personnel cannot be admissible under law. Moreover, while P.W.6 deposed that co-accused Narayan confessed to have killed the deceased it is found from the evidence of P. Ws. 5 and 8 that the accused-Appellant confessed to have murdered the deceased. Again the I.O. (P.W.16) stated that co-accused Narayan led him and the P.W.17 to the spot and brought out the dead body of the deceased from a heap of paddy. There is no reliable evidence to show that on the basis of the statement of the accused Appellant either the dead body or the weapon of offence was recovered. The Trial Court convicted the accused-Appellant holding that the deceased went to the house of the accused-Appellant and did not return; she suffered homicidal death being assaulted by a Tangia and that the accusedAppellant led to the discovery of the dead body which was being concealed in a heap of paddy in his house. 6. In a case based on circumstantial evidence all the circumstances should in the first instance be fully established and all the facts so established should be consistent with the hypothesis that the accused alone is the author of the crime. In the present case, admittedly there was love affair between the accused-Appellant and the deceased. As discussed earlier the deceased went to the house of the accused-Appellant and did not return; her dead body with mark of injuries was found concealed in a heap of paddy in the house of the accused Appellant and the deceased suffered a homicidal death. Some of the witnesses deposed that the accused-Appellant led the witnesses to the discovery of the dead body, while another set of witnesses deposed that co-accused Narayan led the witnesses to the discovery of the dead body. There is no specific statement of the accused-Appellant on the basis of which it can be said that the dead body was recovered at his instance. There is no specific statement of the accused-Appellant on the basis of which it can be said that the dead body was recovered at his instance. Moreover, as borne out from the evidence, two of the field servants of the accused-Appellant put the dead body in a gunny bag and concealed it in a heap of paddy. It was known to them and other witnesses, including the Magistrate that the dead body had been concealed in a heap of paddy. So it can safely be said that prosecution failed to establish that the accused-Appellant stated to have concealed the dead body and led to the witnesses to the discovery of it. As such the provision u/s 27 of the Indian Evidence Act can not be attracted to this case. The circumstances available against the accused-Appellant are not sufficient to hold him guilty for the offence u/s 302 of I.P.C.. Father of the accused-Appellant who was acquitted in this case was not appreciating the love affair between the accused Appellant and the deceased, as the latter belonged to an inferior caste. So the possibility that he (father of accused-Appellant) killed the deceased can not be ruled out. In all fairness and keeping in view the principle of criminal jurisprudence accused-Appellant is entitled to the benefit of doubt. Therefore, the Criminal Appeal is allowed, the judgment and order of conviction passed by the Trial Court are set aside and the accused-Appellant is acquitted of the charge u/s 302 of I.P.C., under benefit of doubt. He is discharged of the bail bonds.