Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 915 (ORI)

PRAFULLA KUMAR MISHRA v. STATE OF ORISSA

2009-11-24

L.MOHAPATRA, S.C.PARIJA

body2009
JUDGMENT : S.C. Parija, J. - This Criminal Appeal is directed against the judgment dated 20.12.2004, passed by the Addl. Sessions Judge, Sambalpur, in S.T. Case No. 56/19 of 1998, holding the accused-Appellant guilty of offence under Sections 302 IPC and convicting him thereunder. 2. The case of the prosecution, in brief, is that the accused, who is a resident of Patapur in the district of Puri brought his wife and two years old child to Sambalpur and stayed in the Transport Lodge. After staying there he approached P.W.3, who is a tea stall owner at Government bus stand and represented him that he is working as a driver in a private bus and requested him to arrange a rented house to enable him to live with his family. P.W.3 took the accused to the land lady (P.W.1), who rented out a portion of her house situated at Modipara in Sambalpur, which was lying vacant. P.W.1 accepted advance from the accused and allowed him to occupy the rented house on Puajuintia day, i.e. 23.09.1997. The accused along with the child left the said rented house on 29.09.1997 by locking the door of the house. When it was not opened till the next day (30.09.1997) and when the neighbours found the gap under the entrance door was unusually packed with clothes, they had suspicion and informed the matter to the land lady (P.W.1) and the land lord (P.W.2), who came to the spot and on lifting the cloth, they peeped through the gap under the door and found a person was lying on the floor on a mat and the body of the person was covered by some clothing. The land lord (P.W.2) suspecting foul play, lodged the FIR (Ext.1) after getting it scribed through the tea stall owner (P.W.3) and presented the same at the Sambalpur Police Station. 3. The sambalpur P.S. authorities immediately made Station Diary Entry No. 897 of 1997 and conducted inquiry. During inquiry the Inquiring Officer (P.W.16) sent requisition to the Executive Magistrate and after his arrival on 30.09.1997, at about 12.30 P.M., they broke open the lock of the house and found the dead body of a female lying over the mat on the floor being covered with 3 to 4 sarees. During inquiry the Inquiring Officer (P.W.16) sent requisition to the Executive Magistrate and after his arrival on 30.09.1997, at about 12.30 P.M., they broke open the lock of the house and found the dead body of a female lying over the mat on the floor being covered with 3 to 4 sarees. Her neck was found tied with a saree (M.O.I.), P.W.16 held inventory and seized the articles lying inside the house including the clothing covered on the body and also the clothing put in the gap under the door, as per Seizure List (Ext.7), took photographs of the dead body and the spot vide Ext.17 series and conducted inquest vide Ext.2. The I.O., finding that the deceased was murdered by strangulation, submitted a report to that effect and started regular investigation u/s 302 IPC. As none in the locality could tell the name of the accused or the deceased, who occupied the house on rent for a short period of about one week, the I.O. (P.W.16) treated the deceased as unknown and proceeded with the investigation. During investigation, the I.O.sent the dead body for post-mortem examination, seized the wearing apparels of the deceased and prepared the spot map and got the spot demarcated through the Amin. The I.O. with the help of Nimapara Police Station raided the house of the accused at Patapur but found him absconding. The Police seized the voter identity card of the accused (EXT. 4) and the photograph of the deceased (Ext. 5) from the father of the accused under Seizure List (Ext.3) and confronted the said photograph to the parents of the deceased and the identity of the deceased was confirmed and thereafter searched were made for the accused. The accused was ultimately arrested by the Nimapara Police on 11.10.1997. He was put up for T.I. Parade and was identified by the land lady (P.W.1), the adjoining tenant (P.W.5) and the tea stall owner (P.W.3). The I.O. completed the investigation and submitted charge sheet against the accused u/s 302 IPC. 4. The accused while admitting that the deceased Sarojini was his wife, he took the pela of complete denial and that he was away at Calcutta in connection with his business at the relevant time and after reaching home, his father informed him that the police was searching for him. 5. 4. The accused while admitting that the deceased Sarojini was his wife, he took the pela of complete denial and that he was away at Calcutta in connection with his business at the relevant time and after reaching home, his father informed him that the police was searching for him. 5. The prosecution examined 18 witnesses in support of the charges, out of whom, P.W.1 is the land lady, P.W.2 is her husband, who is the informant, P.W.3 is the tea stall owner and P.W.5 is the adjoining tenant. P.Ws.6 and 7 are the father and uncle of the deceased and P.Ws.4 and 8 are the police constables, who took the dead body for post-mortem examination and produced the wearing apparels belore the 1.0. P.W.9 is a witness to the seizure of the photograph of the deceased and the voter identity card of the accused. P.W.10 is the Amin, who demarcated the spot and P.W.12 is the OIC of Nimapara P.S., who arrested the accused. P.W.13 is the Executive Magistrate, in whose presence the lock of the house was broke open and inventory was conducted. P.W.14 is the person, who was running the Transport Lodge, where the accused and the deceased stayed before the incident. P.W.15 is the doctor, who conducted the post-mortem examination on the dead body of the deceased and P.Ws. 16 and 17 are the Investigating Officers. P.W.18 is the Magistrate, who conducted the T.I. Parade. 6. The evidence of P.Ws.1, 2, 3 and 5 revealed that the accused along with the deceased Sarojini and his child were staying in the rented house situated at Manikmunda, Modipara in Sambalpur, for about a week prior to the incident, which took place on 29.09.1997. P.W.3 stated in his evidence that he was having a tea stall in the Government bus stand, Sambalpur and the accused was his regular customer and one day the accused requested him to arrange a rented house to enable him to stay with his family, as he was working as a driver in a private bus. P.W.3 accordingly arranged the house of P.Ws.1 and 2, which was lying vacant and introduced the accused to the land lady (P.W.1), who agreed to let out a portion of her house and took advance from the accused and since then the accused along with his wife and child were staying in the rented house. P.W.3 accordingly arranged the house of P.Ws.1 and 2, which was lying vacant and introduced the accused to the land lady (P.W.1), who agreed to let out a portion of her house and took advance from the accused and since then the accused along with his wife and child were staying in the rented house. The land lady (P.W.1) corroborated the version of P.W.3 and that only on the introduction of P.W.3, she accepted advance from the accused and allowed him to occupy her house. P.W.5, who is also a tenant under P.W.1, residing in Anr. adjoining portion of the house, stated in her evidence that the accused was living in the rented portion with his wife and child. These three witnesses also identified the accused in the T.I. parade, which was conducted by the Magistrate (P.W.18) in Sambalpur Jail. P.W.5 further deposed that on the date of occurrence i.e., 29.09.1997 at about 10 A.M., she saw the family of the accused for the last time in the house and thereafter she went to fetch water. On her return she found the house of the accused was locked from outside. The land lady (P.W.1) also corroborated the version of P.W.5 about locking of the door on the next day (30.09.1997) and it is only when she went to the spot and verified the fact, the matter was reported to the police. Thereafter, the police came to the spot and broke open the door. This evidence of P.W.5 stands corroborated from her statement recorded by the police u/s 161 Code of Criminal Procedure 7. The Executive Magistrate (P.W.13), in whose presence the lock of the house was broke open, stated in his evidence that on 30.09.1997, he went to Manikmunda at Modipara in Sambalpur on police requisition and in his presence and in presence of the witnesses, the I.O. broke open the lock of the room belonging to P.W.2 and entered inside. P.W.13 further stated that he found a female body was lying with a white colour saree tied around her neck and there was bleeding from the eyes, nostril and her private part. He further stated that the I.O. conducted inventory of the articles in the said room and seized the same in his presence, as per the Seizure List (Ext.7). P.W.13 further stated that he found a female body was lying with a white colour saree tied around her neck and there was bleeding from the eyes, nostril and her private part. He further stated that the I.O. conducted inventory of the articles in the said room and seized the same in his presence, as per the Seizure List (Ext.7). P.W.13 further stated that the police held inquest over the dead body in his presence, as per the Inquest Report (Ext.2). 8. The doctor (P.W.15), who conducted post-mortem examination over the dead body of the deceased on 30.09.1997 at about 4.45 P.M., found the following external injuries :- (i) Contusion of size 3 CM. x 3 CM. reddish in colour situated on left side cheek over the mallar region. (ii) Abraded contusion of size 2 CM. x 1.5 CM. on the right side fore head 2 CM. above the lateral part of right side eye brow which was reddish and haemorrhagic. (iii) Abrasion reddish and haemorrhagic of size 1 CM. x 1 CM. situated on posterior lateral aspect of left eye brow. (iv) A Ligature impression in form of superficial bruised abrasion, reddish of size 4 to 5 CM width detected on the neck encircling around horizontally over thyroid, the upper border almost reaching the lower border of chin. The culticular layer of the skin along the ligature mark is found peeled of at places. 9. P.W.15 opined that all the injuries were ante mortem in nature, including ligature impression on the neck. P.W.15 stated in his evidence that the ligature mark detected on the neck of the deceased could have been caused by a soft and broad ligature material like the seized saree (M.O.I.). The death was due to asphyxia as a result of constricting pressure on the neck by means of soft and broad ligature. P.W. 15 further stated that the deceased was pregnant of about 3 months at the time of her death. P.W.15 opined that the time of death was about 24 to 36 hours prior to the post mortem examination and the death was homicidal in nature. 10. The accused in his statement recorded u/s 313 Code of Criminal Procedure did not offer any explanation as to what happened to his wife (deceased) and how she died. P.W.15 opined that the time of death was about 24 to 36 hours prior to the post mortem examination and the death was homicidal in nature. 10. The accused in his statement recorded u/s 313 Code of Criminal Procedure did not offer any explanation as to what happened to his wife (deceased) and how she died. The plea of the accused that he was away at Calcutta in connection with his business was found to be false. 11. On analysis of the evidence of P.Ws. 1, 3 and 5, learned Additional Sessions Judge came to find that the accused and the deceased were living together in the rented house as husband and wife and he was last seen with his family on 29.09.1997 at about 10 A.M. and shortly thereafter the house was found locked from outside. There was no evidence that any outsider had entered the house in the meanwhile. When the lock of the house was broke open on 30.09.1997, the dead body of the deceased was recovered. The doctor (P.W.15) who had conducted the post-mortem examination on the dead body of deceased Sarojini, opined that the death was homicidal and was due to strangulation. All these circumstantial evidence taken together and in the background of non-explanation by tne accused as to how his wife died and what happened to her and the further conducted of the accused in absconding from the rented house living the body of his deceased wife without informing any one, leads to the inevitable conclusion that it is the accused alone, who is the guilty of murder of the deceased. Learned trial Court further found ihat the plea of alibi taken by the accused was found to be false, which is an additional link to the other circumstances, which clearly points to the guilt of the accused, as the perpetrator of the offence of murder. Accordingly, learned trial Court found the accused guilty of offence u/s 302 IPC and convicted him thereunder. 12. Learned counsel for the Appellant has forcefully submitted that there being no eye witness to the alleged occurrence and no direct evidence to prove the charges against the accused and the alleged chain of circumstances brought out by the prosecution being not complete, the conviction of the accused on the basis of such circumstantial evidence is not sustainable in law. Learned counsel for the Appellant has forcefully submitted that there being no eye witness to the alleged occurrence and no direct evidence to prove the charges against the accused and the alleged chain of circumstances brought out by the prosecution being not complete, the conviction of the accused on the basis of such circumstantial evidence is not sustainable in law. It is further submitted that merely because the accused and the deceased were living together as husband and wife in the rented house, in which the death of the wife occurred, the same may be a circumstance but that alone, in absence of any other corroborating and credible evidence, cannot be held to be conclusive to establish the guilty of the accused. Moreover, as the prosecution has failed to establish any motive or intention of the accused for committing the murder of his wife and there is no evidence to show that there-was any quarrel or animosity between them, learned trial Court erred in holding the accused guilty of offence u/s 302 IPC and convicting him thereunder. 13. On a perusal of the evidence on record, we find that the evidence of the land lady (P.W.1), the tea stall owner (P.W.3) and the adjoining tenant (P.W.5), clearly reveals that the accused along with his wife and child were staying in the rented house of P.Ws. 1 and 2 and the accused was last seen by P.W.5 on 29.09.1997 at about 10 A.M. Shortly thereafter P.W.5 found the door locKed from outside. When the lock of the house was broke open on 30.09.1997 by the police in presence of the Magistrate, the dead body of the deceased was found lying on the floor on a mat with a saree tied around her neck. There is no evidence to suggest that any outsider had access to the house and had entered inside the house in the interregnum. The doctor (P.W.15), who conducted the post-mortem examination on the dead body of the deceased, has given a categorical finding that there were ligature mark on the neck of the deceased which could have been caused by a soft and broad ligature material like the seized saree (M.O.I.) and her death was due to strangulation, which was homicidal in nature. The doctor (P.W.15), who conducted the post-mortem examination on the dead body of the deceased, has given a categorical finding that there were ligature mark on the neck of the deceased which could have been caused by a soft and broad ligature material like the seized saree (M.O.I.) and her death was due to strangulation, which was homicidal in nature. Further, the accused, in his statement recorded u/s 313 Code of Criminal Procedure has not been able to give any plausible explanation with regard to the probable cause of death of his wife and his plea of alibi has been found to be false and baseless. As the accused was last seen with his deceased wife on 29.09.1997 at about 10 A.M. and thereafter the house was found locked from outside and the dead body of his wife having been recovered from the house on the next date, after breaking open the door, the circumstances clearly go to show that the accused alone was guilty of committing murder of his wife. 14. As the accused was living together with his deceased wife, the entirety of the situation is to be taken into consideration. As the husband and wife remained within the four walls of the rented house and death of the wife by homicide takes place, in absence of any intervening circumstances, it will be for the husband to explain the circumstances in which she might have died. We have to consider the factual background of the present case, in the light of the relationship between the parties. If his wife was found missing, ordinarily, the husband would search for her. If the wife died in an unnatural situation, when she was last seen in the company of the husband, he is expected to offer an explanation there of. Lack of such explanation on the part of the husband, itself would be a circumstantial evidence against him. (See- Ponusamy Vs. State of Tamil Nadu, ). 15. In the present case, when the prosecution succeeded in establishing the afore-narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognized by the law for the Court to rely on in conditions such as this. 16. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption is a course recognized by the law for the Court to rely on in conditions such as this. 16. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. (See - Trimukh Maroti Kirkan Vs. State of Maharashtra, ). 17. It is now well settled in law that the prosecution in order to establish its case on the basis of circumstantial evidence has to show from such circumstances, from which the conclusion of guilt is drawn, is fully established. Further the facts so established should be consistent only with the hypothesis of guilt of the accused and that is to say, they should not be capable of being explained on any other hypothesis, except that the accused is guilty. The circumstances should be conclusive in nature and they should exclude every possible hypothesis, except the one to be proved. There must be a chain of evidence so complete as not to live any reasonable ground for conclusion consistent with the innocence of the accused and must show that in all of human possibility, the act must have been done by the accused. 18. As regard the plea of the accused-Appellant regarding absence of motive for commission of the offence, the same can only be known to the assailant. Motive is an emotion which impels a man to do a particular act. Merely because there is absence of motive, that by itself would not raise an inference of innocence of the accused, if it is proved through other evidence placed before the Court that the accused is the author of the crime. 19. Motive is an emotion which impels a man to do a particular act. Merely because there is absence of motive, that by itself would not raise an inference of innocence of the accused, if it is proved through other evidence placed before the Court that the accused is the author of the crime. 19. In the present case, the circumstances, as brought forth by the prosecution, conclusively prove that the accused alone is responsible for the death of his wife and their is no missing link in the chain of circumstances. 20. Considering the findings of the learned Addl.Sessions Judge, as given in the impugned judgment and order of conviction dated 20.12.2004 in S.T. Case No. 56/19 of 1998 and the reasons assigned in support of the same, no impropriety or illegality can be said to have been committed by him, so as to warrant any interference in this appeal. The appeal being devoid of merit, the same is accordingly dismissed. L. Mohapatra, J. 21. I agree.