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2012 DIGILAW 161 (ORI)

RASIKA GAGARAI v. STATE OF ORISSA

2012-03-26

B.K.PATEL, L.MOHAPATRA

body2012
JUDGMENT : B.K. Patel, J. - This appeal from jail is directed against judgment and order dated 31.1.2003 passed by the learned Additional Sessions Judge,Fast Track Court No.II,Cuttack in Sessions Trial No.636 of 2000 by which the appellants have been convicted and sentenced to undergo imprisonment for life under section 302 read with 34 of the I.P.C. for having committed murder of deceased Nandia Gaipai. 2. Informant P.W.3 is deceased's wife. Prosecution case in brief is that in the morning on Saturday preceding the occurrence the deceased went to village Dududhua along with appellants Rasika and Purna assuring P.W.3 that he would return on the following day after doing some shopping at Bisinahakanihat. On Sunday appellant Recond @ Rekanda along with co-villagers Bhima Das, Dhanu Das and Nandu Tiri went to Bisinahakanihat. All of them except the deceased returned back by the night of Sunday. On being asked by P.W.3 appellant Rasika gave her a blood stained Kula and expressed his ignorance regarding whereabouts of the deceased. On Monday i.e. 27.12.1999 dead body of the deceased was recovered at Jagatpur Industrial Estate. On the basis of verbal report of P.W.3, P.W.7, Officer-In-Charge of Jagatpur Police Station prepared First Information Report Ext.3, registered the case and took up investigation. It is alleged that in course of investigation blood stained knife M.O.VIII was recovered and seized at the instance of appellant Rasika. On completion of investigation, charge-sheet was submitted against the appellants. 3. Appellants took the plea of denial. 4. In order to substantiate the charge, prosecution examined eight witnesses. Informant P.W.3, P.W.4 and P.W.6 were examined to prove that the deceased was last seen in the company of the appellants. P.W.8 deposed regarding circumstance of seizure of knife M.O.VIII at the instance of the appellants. P.W.2 was examined to depose regarding extrajudicial confession. However, he was declared to be a hostile witness. P.W.1, the Scientific Officer, visited the spot where dead body of the deceased was found. P.W.5 is a doctor who conducted post mortem examination over the dead body of the deceased. P.W.7 was the Investigating Officer. Prosecution also relied upon documents marked Exts. 1 to 16 and material object M.O.I to M.O.XIII. No defence evidence was adduced. Placing reliance on circumstantial evidence trial court held the prosecution to have proved the charge against the appellants. 5. P.W.7 was the Investigating Officer. Prosecution also relied upon documents marked Exts. 1 to 16 and material object M.O.I to M.O.XIII. No defence evidence was adduced. Placing reliance on circumstantial evidence trial court held the prosecution to have proved the charge against the appellants. 5. In assailing the impugned judgment it is submitted by the learned counsel for the appellants that in order to sustain conviction for commission of offence of murder, proved links of circumstances must constitute such a chain so as to rule out any hypothesis of innocence of the accused. It is contended that in the present case neither of the two circumstances relied upon by the prosecution has been established beyond reasonable doubt. Deceased left home on Saturday and his dead body was found on Monday. Evidence of the witnesses reveals that not only the appellants but also others were seen in the company of the deceased. Prosecution has not proved the motive for commission of the offence. In the circumstances, the impugned judgment is not sustainable. 6. Placing reliance on the two circumstances and the medical evidence, learned counsel for the State supports the impugned judgment. 7. We have carefully scrutinized the evidence of all the eight witnesses. Prosecution has established unimpeachable medical evidence to establish that death of the deceased was homicidal in nature. In course of post mortem examination P.W.5 found as many as seven incised wounds, a laceration and three abrasions over the dead body of the deceased. Cause of death of the deceased was due to combined effect of suffocation and head injury. 8. It is well settled that in order to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Circumstances must not admit any other hypothesis. It is also trite that suspicion, howsoever grave, cannot be a substitute for proof. 9. Much reliance has been placed on the evidence of P.Ws.3,4 and 6 to conclude that the deceased was last seen in the company of all the three appellants. P.W.3 deposed that on Saturday deceased along with appellants Rasika and Rekanda went to the hat. Deceased assured to return back by the next date. 9. Much reliance has been placed on the evidence of P.Ws.3,4 and 6 to conclude that the deceased was last seen in the company of all the three appellants. P.W.3 deposed that on Saturday deceased along with appellants Rasika and Rekanda went to the hat. Deceased assured to return back by the next date. On the following day i.e. Sunday appellant Purna also went to Hat. Deceased did not return even though all the three appellants returned back to their respective houses on Sunday night at about 12 O' clock. On her enquiry, appellants gave her a Kula, dress of her daughter etc which were stained with blood. When she asked, appellant Rasika replied that "To Swamira Kete Sanga Kaha Sangara Jaitheba". Appellant Rekanda told her that he had left her husband near Jagatpur and he would come back soon. On the following Monday getting information that a dead body has been recovered by police near Jagatpur Factory, she went there. She found dead body of her husband upon which some pieces of stones had been kept. She verbally lodged report which was reduced into writing by police. P.W.3 also deposed to have witnessed inquest over dead body of the deceased. In her cross-examination P.W.3 categorically deposed that deceased had good relations with all the three appellants and also they were working together. It has been elicited in her cross-examination that on Saturday one Dhanu Das and Bhima Das accompanied her husband to Bisinahakanihat and both of them along with the appellants returned back on the next date. She admitted that in her police statement and in the First Information Report she had alleged that she suspected the appellants along with the above said Dhanu Das and Bhima Das to have conjointly murdered the deceased. On perusal of the First Information Report it is found that P.W.3 had alleged that on Saturday deceased had left with appellants Purna and Rasika, and not with appellants Rasika and Rekanda as deposed in Court. She had also alleged that on Sunday appellant Rasika as well as Bhima Das, Dhanu Das and Nandu Tigi also went to Bisinahakanihat. Thus, much reliance cannot be placed on the evidence of P.W.3 to conclude that the appellants were the only persons who accompanied the deceased before he was seen by her for the last time. She had also alleged that on Sunday appellant Rasika as well as Bhima Das, Dhanu Das and Nandu Tigi also went to Bisinahakanihat. Thus, much reliance cannot be placed on the evidence of P.W.3 to conclude that the appellants were the only persons who accompanied the deceased before he was seen by her for the last time. P.W.4 Anam Gaipai deposed that on Saturday he along with appellant Rasika and deceased went to the house of deceased's father-in-law and stayed there. On the following Sunday they returned back. On the way they met appellants Purna and Rekanda as well as Dhanu and Bhima who were proceeding to Bisinahakanihat. All of them went together to Bisinahakanihat. In the Hat deceased made some shopping of materials like Kula and wearing dresses. On Sunday in the night all of them returned back by a truck and got down at Jagatpur goleichhak. On Goleichhak P.W.4 and Dhanu Das returned to their houses and the rest stayed at the Chhak. On the next morning he came to know that the deceased had been murdered in the previous night. It is obvious from the evidence of P.W.4 that he saw not only the three appellants but also Dhanu Das in the company of the deceased at Jagatpur Goleichhak. P.W.6 deposed that he runs a betel shop at Jagatpur. In the night on the day of death of the deceased at about 10 P.M. while he was going to close betel shop all the three appellants along with the deceased came near his shop. Appellant Purna came to him and asked for betel. He refused to give betel as he was going to close the shop. Then appellant Purna took a cocoanut oil bottle from him and went along with the deceased and others. In his cross-examination, P.W.6 stated that only appellant Purna came to his shop while other two appellants and deceased stood at the other side of the road at distance of 13 to 15 cubits apart from his shop and that it was a dark night. 10. It is alleged that P.W.7, Investigating Officer, seized the incriminating articles including blood stained knife M.O.VIII at the instance of the appellants in presence of witnesses including P.W.8. P.W.8 deposed that local police had arrested an Adibasi person (Munda) and called him to the police station. 10. It is alleged that P.W.7, Investigating Officer, seized the incriminating articles including blood stained knife M.O.VIII at the instance of the appellants in presence of witnesses including P.W.8. P.W.8 deposed that local police had arrested an Adibasi person (Munda) and called him to the police station. In his presence the aforesaid Munda confessed his guilt to have committed murder by stone and knife, and to have kept concealed the weapon of offence i.e. knife. Then the said Munda led the police to a place at Jagatpur Industrial Estate and gave recovery of knife which had been kept concealed by the side of a wall. Also in his presence police babu seized a pair of chapal, shirt, pant, stone etc. and prepared seizure list. In his examination-in-chief P.W.8 stated that due to long lapse of time he was unable to recognize above said Munda as he had seen him only once. He also expressed his inability to remember exactly what he had stated before police. Thus, evidence of P.W.8 is of no help in implicating any of the appellants with the circumstance of recovery of seized knife. Moreover, P.W.8 also stated in cross-examination that by the time he along with the appellants reached the place of recovery about 10 to 20 outsiders were present there. Thus, there is no scope to place reliance on the evidence of P.W.8 in order to establish the circumstance of recovery of knife M.O.VIII. 11. Thus, on analysis of the evidence of material witnesses, it is found that the prosecution has not been able to adduce reliable and clinching evidence in support of either of the circumstances on the basis of which it can be held beyond reasonable doubt that the appellants were the persons who committed murder of the deceased. Even if evidence of P.W.6 that the deceased was last seen in the company of appellants is accepted, the only circumstance of the deceased to have been last seen with the appellant may simply raise strong suspicion regarding complicity of the appellants or some of them with commission of murder of the deceased. It is well settled that suspicion, howsoever strong, cannot be a substitute for proof in a criminal trial. Admittedly, there is no evidence regarding any motive of any of the appellants for commission of the offence. It is well settled that suspicion, howsoever strong, cannot be a substitute for proof in a criminal trial. Admittedly, there is no evidence regarding any motive of any of the appellants for commission of the offence. In such circumstances, we are of the considered view that the appellants are entitled to be acquitted by availing benefit of doubt. 12. Accordingly, the appeal is allowed. The judgment and order dated 31.1.2003 passed by the learned Additional Sessions Judge, Fast Track Court No.II, Cuttack in Sessions Trial No.636 of 2000 are set aside. The appellants are acquitted of the charge. 13. It is stated that appellant no.2 is in custody. If that be so, appellant no.2 Pagu @ Recond @ Rekanda Palia be set at liberty forthwith unless his detention is required in any other case. L. Mohapatra, J. - I agree.