Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 852 (ORI)

Hrusikesh Das @ Ramesh Biswal v. State of Orissa

2010-12-16

PRADIP MOHANTY, S.K.MISHRA

body2010
JUDGMENT S.K. MISHRA, J. — In this case of uxoricide the accused Hrusikesh Das @ Ramesh Biswal has been convicted for having committed the offence under Section 302 of the Indian INDIAN PENAL CODE 1860 (hereinafter referred to as “I.P.C.” for brevity) for having committed murder of his wife on 7.11.1997. The appellant has been sentenced to undergo imprisonment for life by the learned Addl. Sessions Judge, Kendrapara, in S.T. No. 39/420 of 1998. 2.The appellant was residing along with his wife in Adhakhanda Matha Sahi and was earning his livelihood by giving tuitions to children. It is alleged by the prosecution that on 7.11.1997 at about 8 to 8.30 P.M. he was seen along with the deceased for the last time while he was taking his wife on a bicycle. On 9.11.1997 head of a woman severed from rest of the body was found on the embankment of Hajajora of the aforesaid village. On receiving information about the same the A.S.I. of Pattamundai Police Station, who has been examined as P.W.12, proceeded to the spot and found that there was huge gathering at the spot where the head was lying. On verification at the spot, P.W.12 ascertained that the head belongs to deceased Shanti Barik, wife of the present appellant. They were staying as tenant of Rabindranath Sutar and Kanchan Sutar. The prosecution further alleged that the appellant confessed his guilt before P.W.12 and others and also pointed out the place where the dead body of the deceased was kept hidden. He allegedly brought out the remaining portion of the body from the place of concealment in the Jora. Thereafter the A.S.I. (P.W.12) drew up a plain paper F.I.R. and submitted the same before the O.I.C., Pattamundai Police Station, who took up investigation of the case. The Investigating Officer then held inquest on the body and sent the same for postmortem examination. The prosecution further alleges that while in police custody the appellant gave a disclosure statement admissible under Section 27 of the Evidence Act, 1872, which led to the discovery of the weapon of offence, i.e. a bhujali. The bhujali was seized in presence of witnesses and it was also sent for chemical examination. The prosecution further alleges that while in police custody the appellant gave a disclosure statement admissible under Section 27 of the Evidence Act, 1872, which led to the discovery of the weapon of offence, i.e. a bhujali. The bhujali was seized in presence of witnesses and it was also sent for chemical examination. After completion of investigation the Investigating Officer submitted charge sheet against the present appellant for the offence under Section 302 I.P.C. and against Rabindranath Sutar and Kanchan Sutar for the alleged offences under Sections 498-A, 304-B and 201 I.P.C. 3.The appellant resorted the plea of simple denial and pleaded that he has been falsely implicated in this case. 4.In order to prove its case, the prosecution examined as many as seventeen witnesses. P.W.12, Jagabandhu Mohapatra, the A.S.I., is the informant in this case. P.W.1, Harekrishna Das, P.W.2, Kailash Chandra Nayak and P.W.3, Bishnu Charan Behera have seen the severed head of the deceased and also deposed about some other aspects of the case. P.W.10, Kunja Mallik, is the Gramarakhi of the village, who informed the Pattamundai Police about the finding of severed head of the deceased near the rivulet. P.W.4, Prahallad Das, P.W.5, Santosh Kumar Panda, P.W.6, Rangadhar Mallik, P.W.7, Padma Lochan Nayak and P.W.9, Smt. Rajani Das, are the co-villagers who deposed about the discovery of the head of the deceased and the residence of the appellant in that village, P.W.13, Smt. Gouri Barik, happens to be the mother of the deceased, P.W.14, Sarat Chandra Rout, had acted as the father of the bride at the time of marriage of the accused-appellant with the deceased. Rest of the witnesses are official witnesses being P.W.11, Damodar Behera, Constable, P.W.15, Dr. Dhaneswar Pradhan, who had conducted the post mortem examination, P.Ws. 16 and 17, Balaram Nayak and Bhakta Ballav Das, Investigating Officers of the case. The defence has not examined any witness on its behalf. 5.Learned Addl. Sessions Judge after taking into consideration the evidence led came to the conclusion that the prosecution has proved its case beyond all reasonable doubt. There is no direct evidence implicating the appellant in the crime and the prosecution has attempted to prove its case by leading circumstantial evidence. The defence has not examined any witness on its behalf. 5.Learned Addl. Sessions Judge after taking into consideration the evidence led came to the conclusion that the prosecution has proved its case beyond all reasonable doubt. There is no direct evidence implicating the appellant in the crime and the prosecution has attempted to prove its case by leading circumstantial evidence. The circumstances on which the prosecution bases its case are as follows:- (i)the homicidal nature of the death of the deceased, (ii)the deceased was last seen alive with the appellant on 7.11.1997 and thereafter on 9.11.1997 her severed head was discovered, (iii)while in police custody, the appellant led to the discovery of the remaining part of the body, i.e. the trunk of the body and the weapon of offence, and (iv)one witness has seen the accused tying the neck of a gunny bag near rivulet from where the dead body was found. Learned Addl. Sessions Judge has come to the conclusion that the prosecution has proved the aforesaid circumstances by leading unimpeachable evidence and all these circumstances are consistent with the guilt of the accused and all these circumstances forms a complete chain unerringly pointing towards the accused to be the author of the crime. Therefore, the learned Addl. Sessions Judge has convicted the accused-appellant for the offence under Section 302 I.P.C., but acquitted the other two accused persons of the charges under Sections 498-A, 304-B and 201 I.P.C. 6.Learned counsel for the appellant submitted that the findings recorded by learned Addl. Sessions Judge are erroneous inasmuch as there is no evidence worth the name to establish the circumstances narrated above. It is further argued that the circumstances which have been pointed out in this case are not sufficient, inasmuch as they do not form a complete chain of events, unerringly pointing towards the guilt of the accused. Hence, it is submitted that the appeal should be allowed and the appellant should be acquitted. Learned Addl. Government Advocate, on the other hand, supported the findings recorded by the learned Addl. Sessions Judge and prayed that the appeal be dismissed. Hence, it is submitted that the appeal should be allowed and the appellant should be acquitted. Learned Addl. Government Advocate, on the other hand, supported the findings recorded by the learned Addl. Sessions Judge and prayed that the appeal be dismissed. 7.In any case based on circumstantial evidence, before convicting the accused on the basis of circumstantial evidence, the Court must be satisfied about the following:- (i)the circumstances on which the prosecution relies must be cogently and firmly established leaving no doubt in the mind of the Court about their proof, (ii)each circumstance must be consistent with the hypothesis of guilt of the accused, though taken alone, it may not prove the guilt of the accused. In other words, it must not be capable of explanation by the defence, (iii)all circumstances taken together must be forming a complete chain unerringly pointing towards the guilt of the accused. Only when the circumstantial evidence appearing in a case satisfies all the above requirements then only a conviction on such circumstantial evidence can be sustained. This being the settled principles of law, it is the duty of the Court to assess the evidence and see whether the prosecution has established its case in the touch-stone of the aforesaid criteria. 8.As far as homicidal nature of the death of the deceased is concerned, there is no dispute that the death of the deceased occurred due to severance of her head from the rest of the body. Learned counsel for the appellant also does not assail this aspect of the findings recorded by the learned Addl. Sessions Judge. So we accept that the death of the deceased was homicidal in nature. 9.The last seen theory has been pressed into service in this case. Whenever a deceased is seen for the last time in the company of the accused of his/her murder and shortly thereafter the deceased is found dead, then the principles of ‘last seen’ in appreciation of evidence can be pressed into service. In other words, the time gap between the last seen together and the death of the deceased should be such that there would not be any probability of any other person coming in contact with the deceased or committing his/her murder. 10.In this case, P.W.2 states that he had seen the appellant and a woman, who was wearing a green colour saree. They were proceeding on a bicycle. 10.In this case, P.W.2 states that he had seen the appellant and a woman, who was wearing a green colour saree. They were proceeding on a bicycle. The incident took place on 7.11.1997 at about 8 to 8.30 P.M. At that time the witness was sitting on the verandah of the house of Pravakar Sahu of the village. P.W.10, Kunja Mallik, who happens to be the Gramarakhi, has stated on oath that on being called by the villagers he went to the spot, which is known as Dandamunda where he was found the cut head lying on the ground at the spot. He intimated this fact to the A.S.I. of Pattamundai P.S. P.W.12, Jagabandhu Mohapatra, who happens to be the informant in this case, stated that on 9.11.1997 he received information about the finding of the severed head of a woman being in village Adhakhanda Matha Sahi. There is no other evidence fixing the time of the death of the deceased. The severed head of the deceased was found only on 9.11.1997. Thus, the time gap between P.W.12 seeing the appellant and the deceased for the last time and the discovery of the severed head is so great that the last seen theory cannot be pressed into service in this case. 11.Furthermore, P.W.2 does not state that the lady, who was going along with the appellant was his wife. All he states that she was wearing a green colour saree. An attempt has been made by the prosecution to prove the identify of that woman by proving that a green colour saree was found near the spot, but this witness has not identified the said saree to be the one worn by the lady, who was in the company of the appellant. Secondly, the saree itself has not been produced in the Court and has not been led in evidence as a material object. Thus, such being the evidence, it cannot be held that the prosecution has established its case beyond all reasonable doubt that the appellant was seen for the last time with the deceased and immediately thereafter the deceased was found murdered, so this circumstance has not been established firmly. 12.The next important circumstance is the discovery of the trunk of the deceased and the weapon of offence on the disclosure statement of the appellant. 12.The next important circumstance is the discovery of the trunk of the deceased and the weapon of offence on the disclosure statement of the appellant. At the outset, it is noted that a separate disclosure statement has not been recorded by the Investigating Officer. Furthermore, the discovery of the dead body was made before P.W.16, Balaram Nayak, the then O.I.C. of Pattamundai P.S. He has stated on oath that on 9.11.1997 he took up investigation of the case at about 12.30 P.M. On the F.I.R. presented by the A.S.I. Jagabandhu Mohapatra. In course of investigation he arrested the accused and seized a bhujali as per seizure list Ext.1. He does not say anything regarding any disclosure statement made by the appellant in his custody regarding recovery of the trunk of the deceased nor he has stated anything regarding the accused stating about the concealment of the weapon of offence. P.W.12 has also not stated about such disclosure statement by the appellant while in police custody. Examination of Ext. 1 reveals that the Investigating Officer has recorded therein that the appellant while in police custody disclosed about the concealment of the trunk of the deceased and weapon of the offence by him. Such recitals in the seizure list cannot be treated as substantive evidence unless the witness before whom such disclosure was made states about the same in the Court on oath. It is settled principle of law that the statement made in Court is substantive evidence and any other statements made in Course of investigation or enquiry are only previous statements. Such previous statements or recitals convert into substantive evidence only if the witnesses state about the same on oath before the trial Court and the defence has an opportunity to cross-examine him on that score. Such being the evidence in this case, we are unable to accept that the prosecution has proved that the trunk of the dead body and the weapon of offence were recovered on the disclosure statement made by the accused-appellant. 13.Another aspect which comes to light in this case is that though the weapon of offence was sent for chemical examination, no report is forthcoming regarding the result of such chemical examination. The weapon itself was not produced in Court nor the same was marked as a material object. 13.Another aspect which comes to light in this case is that though the weapon of offence was sent for chemical examination, no report is forthcoming regarding the result of such chemical examination. The weapon itself was not produced in Court nor the same was marked as a material object. There is no evidence connecting the object discovered with the crime, for example, finding of human blood in the weapon of offence. Hence the recovery of weapon of offence at the instance of the accused, cannot be pressed into service. Such being the evidence on record, we are of the considered view that the prosecution has failed to prove this circumstance also. 14.The last circumstance on which the prosecution relies heavily is that P.W.2 has stated on 7.11.1997 night he saw the deceased and the accused together. On the next day he was informed by the children of the village that a dead body was lying in Dandamunda of their village, then he went to the weekly market. After return he went to the spot and found the severed head of the deceased lying and accused-Hrusikesh Das @ Ramesh Biswal was tying the neck of a gunny bag. In cross-examination the defence pointed out a contradiction to the effect that he has not stated before the Investigating Officer that the accused Hrusikesh Das @ Ramesh Biswal was tying the net of a gunny bag at the spot. Of course, the witness denied the suggestion that he has not stated so before the Investigating Officer, but on examination of the evidence of P.Ws. 16 and 17 it is seen that P.W.2 did not state before them that the accused-Hrusikesh Das @ Ramesh Biswal was tying the neck of a gunny bag. Learned Addl. Sessions Judge could not have accepted the statement of this witness with respect to such a circumstance in view of a clear contradiction between the substantive evidence given in the court and the previous statement recorded under Section 161 of Cr.P.C. As noted earlier in a case based on circumstantial evidence each of the circumstance must be cogently and firmly established. In such standard of requirement the evidence of P.W.2 regarding his witnessing the accused tying the neck of a gunny bag falls short of creditworthiness. Therefore, this circumstance also cannot be relied upon by the Court. In such standard of requirement the evidence of P.W.2 regarding his witnessing the accused tying the neck of a gunny bag falls short of creditworthiness. Therefore, this circumstance also cannot be relied upon by the Court. 15.In the result, on a careful examination of the entire evidence on record, this Court comes to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubt and therefore the appellant is entitled to be acquitted. Accordingly, we allow this appeal, set aside the conviction and sentence passed by the learned Addl. Sessions Judge and direct that the appellant be set at liberty forthwith, if his detention is not required in any other case. Accordingly, the appeal is allowed. PRADIP MOHANTY, J.I agree. Appeal allowed.