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2011 DIGILAW 586 (ORI)

Shyama Sahu v. State of Orissa

2011-12-05

B.K.PATEL, L.MOHAPATRA

body2011
JUDGMENT L. MOHAPATRA, J 1. The appellant in this Jail Criminal Appeal has been convicted by the learned Sessions Judge, Khurda at Bhubaneswar in Sessions Trial No.35 of 2000 for commission of offence under Sections 302, 498-A and 201 of the Indian Penal Code (in short 'IPC'). He has been sentenced to imprisonment for life for his conviction under Section 302 IPC, three years imprisonment for his conviction under Section 498(A) IPC and five years imprisonment for his conviction under Section 201 IPC. All the sentences have been directed to run concurrently. 2. Case of the prosecution as revealed from the F.I.R. and the evidence adduced in course of trial is that marriage between the appellant and deceased-Nirmal Sahu took place about ten years prior to the date of incident. They were blessed with three children out of whom two are sons, namely, Babuna and Kabula and third is the daughter namely Mana (deceased). The appellant was residing with his wife namely, Nirmala (deceased), son Babuna (P.W.8) and only daughter-Mana (deceased) in a hut near the temple of Goddess Batamangala at Kharvelanagar in the city of Bhubaneswar. The other son Kabula was residing with P.W. It is alleged by the prosecution that the appellant was often assaultinghis wife deceased-Nirmala in order to coerce her father to meet his illegal demand for money. In the night of 19/20.1.1999, the appellant strangulated his wife deceased Nirmala by throttling her neck and caused death of his minor daughter deceased Mana by means of stone grinder and in order to screen himself from legal punishment, he lodged a false information at Kharavelanagar Police Station at 1 A.M. on 21.1.1999 stating therein that his wife Nirmala and daughter Mana committed suicide by taking poison. On basis of such report, U.D. Case No.2 of 1999 was registered and inquiry was conducted From the postmortem report, it revealed that both the deceased persons died a homicidal death and on the basis of inquiry report submitted in the U.D. case, the case was registered for commission of offence under Section 302 and 498-A of IPC and investigation was taken up vide Kharvelnagar Police Station Case No.19 of 1999. Ultimately charge-sheet was submitted for commission of offence under Section 302, 498-A and 201 IPC. 3. Prosecution in order to establish the charge examined eleven witnesses but none was examined on behalf of appellant. Ultimately charge-sheet was submitted for commission of offence under Section 302, 498-A and 201 IPC. 3. Prosecution in order to establish the charge examined eleven witnesses but none was examined on behalf of appellant. The plea of the appellant was complete denial of the prosecution allegation. In absence of any direct evidence the trial Court relied upon the circumstantial evidence such as : (1) The appellant, both the deceased persons and P. W.8 were the inmates of the house in the fateful night; (2) Both the deceased persons died a homicidal death; (3) On the day following night of occurrence, the appellant went to the house of the father of the deceased, Nirmala and informed that both the deceased committed suicide by taking poison; (4) On returning to Bhubaneswar he also went to his brother P.W.3 and informed that both the deceased committed suicide; (5) He got the report scribed by his nephew alleging suicidal death of his wife and daughter; (6) He also threatened the father of the deceased Nirmala with dire consequences, if he does not inform that both the deceased persons committed suicide; (7) While in police custody, he gave recovery of stone grinder by means of which the deceased Mana was assaulted; (8) Human blood was found on the wearing shirt of the appellant. 3. Learned counsel for the appellant assailed the impugned judgment on the ground that in absence of any direct eyewitness to the occurrence, the prosecution was required to prove the charge on the basis of circumstantial evidence. According to the learned counsel for the appellant, the circumstances on the basis of which the learned Sessions Judge has found the appellant guilty did not actually point at the guilt of the appellant. It was further submitted by the learned counsel that even if both the deceased persons met homicidal death, there is nothing on record to connect the appellant with commission of the alleged offence and the learned Sessions Judge was swayed away by the conduct of the appellant in lodging the F.I.R. indicating therein that both the deceased persons committed suicide. Learned counsel for the State referred to the very same circumstance on which reliance has been placed by the learned Sessions Judge to support the findings while convicting appellant for commission of the said offence. 4. Eleven witnesses have been examined on behalf of the prosecution to prove the charges. Learned counsel for the State referred to the very same circumstance on which reliance has been placed by the learned Sessions Judge to support the findings while convicting appellant for commission of the said offence. 4. Eleven witnesses have been examined on behalf of the prosecution to prove the charges. P. W.1 is the cousin sister of the deceased-Nirmala. She in her deposition stated that at about 8 P.M. in the night of 20.1.1999 the appellant went to the house of the father of the deceased Nirmala (P.W.7) and informed that both Nirmala and Mana had committed suicide by consuming poison. She was informed about this fact by Mitua, son of P.W.7. On the next day morning, she along with Mitua went to the house of the appellant at Kharvelnagar. She found injury on the right eyebrow and ligature mark on the neck of the deceased-Nirmala and she also found blood oozing out from nostril and mouth. There were also marks of injury on her right cheek. She also noticed the mutilated nose of deceased Mana, injury on one of her ears and black mark on her cheek. In her presence the police conducted the inquest over both the dead bodies. She also stated that the deceased-Nirmala during her visit to her parent's house was often complaining that the appellant was assaulting her demanding money from her father. This witness appears to be the son of brother of P.W.7. So far as demand of dowry is concerned, in cross-examination she submitted that two years prior to her death, deceased-Nirmala told her that the appellant was assaulting her demanding money from her father. 5. P.W.2 is a witness to recovery of stone by means of which it is alleged that the appellant assaulted the deceased-Mana. This witness is neighbour of the appellant and stated that while in police custody the appellant confessed to have killed both the deceased persons and concealed the stone back side of his house and led the police to the place of concealment and pointed out to a bush from which the stone was recovered. P.W.3 is the elder brother of the appellant. He was declared hostile but in examination-in-chief, he stated that Bubuna (P.W.B), who is son of the appellant informed him that both the deceased persons committed suicide by taking poison. P.W.4 is the Doctor, who conducted postmortem examination of both the deceased persons. P.W.3 is the elder brother of the appellant. He was declared hostile but in examination-in-chief, he stated that Bubuna (P.W.B), who is son of the appellant informed him that both the deceased persons committed suicide by taking poison. P.W.4 is the Doctor, who conducted postmortem examination of both the deceased persons. P.W.5 is the Scientific Officer, who visited the spot. P.W.6 is the nephew of the appellant who scribed the F.I.R. under the instruction of the appellant. P.W. 7 is father-in-law of the appellant. He stated in his deposition that the appellant used to assault the deceased-Nirmala asking her to bring money from him. He also stated that the appellant after the occurrence came to his house and informed that both the deceased persons committed suicide by consuming poison. P.W.8, son of the appellant who turned hostile. P.W.9 is the Constable, who accompanied the dead bodies for postmortem examination and is also a witness to seizure. P.W.10 is the Police Officer, who conducted the inquiry in the U.D. case and P.W.11 is the I.O. 6. From the evidence of P.W. 4, the doctor, who conducted postmortem examination, it is found that the deceased-Nirmala had sustained several injuries such as, lacerated wounds and abrasion. P.W.4 was of the opinion that all the injuries were ante-mortem in nature and could be caused by heard and blunt object. Cause of death was due to strangulation and injury to spinal cord. External injuries, such as, pressure abrasion can also cause death in ordinary course of nature. So far as deceased Mana Sahu is concerned, P.W.4 also found two injuries at a place such as left eye, rims of pinna of both the ears, nose below the nasal bone was absent but the same was postmortem in nature. There was abrasion on the left cheek. He was of the opinion that the cause of death of the deceased Mana Sahu was due to injury to the brain as a result of internal injuries i.e. abrasion on the left cheek which could be caused by hard and blunt object. He was also of the opinion that the internal injury was sufficient to cause death in ordinary course of nature. From the evidence of P.W.4, it is therefore clear that both the deceased persons met homicidal death. 7. He was also of the opinion that the internal injury was sufficient to cause death in ordinary course of nature. From the evidence of P.W.4, it is therefore clear that both the deceased persons met homicidal death. 7. The next question that comes up for consideration is as to who committed the murder of these two deceased persons. Undisputedly, the appellant, both the deceased persons and P.W.8 were staying in the hut. No one has seen the appellant assaulting either of the deceased persons. As per the version of P.W.10, the Police Officer who conducted the inquiry at about 1 A.M. in the night of 20/21 January, 1999 the appellant submitted a written report alleging unnatural death of his wife and minor daughter deceased Mana. The said report was registered as Kharvelnagar Police Station U.D. Case 2/1999. He was directed by the I.O. to conduct the inquiry. He further stated in his evidence that while he was holding inquest over the dead bodies, he found multiple bleeding injury on the body of the deceased-Nirmala. While holding inquest over the dead body of deceased Mana, he found part of her nose and part of the ears absent and a black patch over left cheek. In spite of such injuries found by P.W.10 on the dead bodies of both the deceased persons, P.W.10 did not suspect any foul play and waited till the postmortem reports were received. The learned Sessions Judge has placed much reliance on the conduct of the appellant in lodging the F.1.R. disclosing therein that both the deceased persons committed suicide. According to the learned Sessions Judge, this conduct of the appellant itself shows that he intended to screen himself from legal consequences. 8. In our view if P.W.10, who is an experienced Police Officer did not suspect any foul play in spite of the fact that he found injuries on body of the deceased persons at the time of inquest and waited till receipt of the postmortem report, conduct of the appellant in lodging the F.I.R. stating therein that both the deceased persons committed suicide cannot be taken as a very serious lapse on the part of the appellant. There is no doubt that both the deceased persons met homicidal death but when the prosecution relies on the circumstantial evidence alone it has to prove the chain of circumstances to the extent that such circumstances point at the guilt of the appellant leaving no room to entertain a doubt. 9. In the present case, so far as death of both the deceased persons are concerned, the prosecution has been able to establish that the appellant along with two deceased persons and P.W.8 were staying in the hut where the dead bodies of both the deceased persons were found. But there is no evidence that in the fateful night appellant was in the house. The other circumstance on the basis of which the order of conviction has been recorded is recovery of weapon of offence. The chemical examination report clearly shows that no blood was found on the said stone. Therefore, recovery of such stone even at the instance of the appellant does not help the prosecution in establishing the charge. The other circumstance which the prosecution has been able to prove is that the shirt which was seized from the appellant at the time of arrest contained human blood group of AB. No other circumstance has been proved by the prosecution. Therefore, two incriminating circumstances proved by the prosecution are that both the deceased persons died a homicidal death and the wearing shirt of the appellant contained human blood for which no explanation has been offered by the appellant. These two circumstances may create a strong suspicion with regard to involvement of the appellant in commission of the offence under Sections 302 and 201 IPC but law is well settled that suspicion however strong may be, cannot take the place of proof. Therefore, a doubt arises in the mind of the Court with regard to involvement of the appellant in actual commission of offence under Section 302 IPC and the appellant is entitled to benefit of such doubt. We are therefore of the view that the prosecution has not been able to prove the charge for commission of offence under Sections 302 and 201 IPC beyond all reasonable doubt. 10. So far as offence under Sections 498-A IPC is concerned, it is P.W.1, who stated that deceased Nirmala during her visit to her parents house often complained that the appellant was assaulting her demanding money from her father. 10. So far as offence under Sections 498-A IPC is concerned, it is P.W.1, who stated that deceased Nirmala during her visit to her parents house often complained that the appellant was assaulting her demanding money from her father. In cross-examination, she admitted that two years prior to her death the deceased Nirmala told her that the appellant was assaulting her demanding money. The only other witness who stated about demand of dowry, P.W.7. He has not stated as to when the deceased Nirmala was complaining before him regarding demand of dowry. We are therefore of the view that the prosecution has not been able to prove the charge under Section 498-A of IPC also. 11. For the reasons stated above, we allow the appeal and set aside the impugned judgment and order dated 21.8.2001 passed by the learned Sessions Judge, Khurda at Bhubaneswar in Sessions Trial No.35 of 2000 convicting the appellant-Shyama Sahu for commission of offences under Sections 302, 498-A and 201 of the Indian Penal Code and also the sentence imposed by the trial Court. The appellant is acquitted of the said charges. It is stated at the Bar that the appellant is still in custody. If that be so, he be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed.