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2012 DIGILAW 299 (ORI)

Manoj Bhoi v. State of Orissa

2012-07-13

B.K.MISRA, PRADIP MOHANTY

body2012
JUDGMENT PRADIP MOHANTY, J. This jail criminal appeal is directed against the judgment dated 07.07.2003 passed by the Sessions Judge, Sambalpur in S.T. Case No. 67 of 2002 convicting the appellant under Sections 363/302/201 of the Indian Penal Code (in short 'IPC') and sentencing him to undergo imprisonment for life for the offence under Section 302 IPC and one year each for the offence under Sections 363 and 201 IPC. 2. The case of the prosecution, as per FIR (Ext. 1) lodged on 24.6.2001 by the father of the deceased (P.W.2) is that on 23.6.2001 his daughter (Purnima) had gone to witness the car festival. In the Car Festival area, the accused was found taking Purnima with him. On being asked by Nabin Bhoi (P.W.3) as to where he was taking the girl, he replied that he was taking to leave her in her house. When the girl did not return home up to 9.00 PM, they searched up to 2.00 AM in the night and during search, the accused was found returning to the village from the nearby village-Rangiatikira. Suspecting foul play the villages detained the accused but towards the early morning he escaped and went away somewhere. When Purnima did not return home till morning, the informant lodged the report on the basis of which the case was initially registered under Sec. 363, IPC and investigation taken up. On 26.06.2001, the decomposed dead body of Purnima was discovered from a ditch situated near the village. On post mortem, some ante mortem injuries were found and the cause of death was opined as shock due to hemorrhage resulting from the cut injury on the neck. Thereafter, the case was turned to one under Secs. 302/201/363, IPC. After completion of the investigation, charge-sheet was submitted against the present appellant and he faced trial. 3. During trial the accused-appellant took the plea of complete denial and false implication. In order to prove its case, the prosecution examined as many as fourteen witnesses and exhibited 15 documents. The defence examined none. 4. On conclusion of the trial, learned trial Judge basing upon the evidence of P.Ws. 3. During trial the accused-appellant took the plea of complete denial and false implication. In order to prove its case, the prosecution examined as many as fourteen witnesses and exhibited 15 documents. The defence examined none. 4. On conclusion of the trial, learned trial Judge basing upon the evidence of P.Ws. 2, 3, 4, 6, 7 and 8 and other attending circumstances came to hold that the prosecution has been able to prove beyond all reasonable doubt that the appellant kidnapped the minor girl Purnima from the lawful guardianship of her father and committed her murder and concealed her dead body in order to cause disappearance of evidence with the intention of screening himself from legal punishment. Accordingly, he convicted the appellant under Secs. 363/302/201, IPC and sentenced him as already indicated hereinbefore. 5. Learned counsel for the appellant submits that there is no material against the present appellant to convict him under Secs. 302/363/201 IPC. There is also no eye witness to the occurrence and the entire case is based upon the circumstantial evidence. The Trial Court seems to have convicted the appellant relying upon the two circumstances, such as, extra judicial confession said to have been made by the appellant before P.Ws. 2, 3, 4, 6, 7 and 8 and the last seen theory introduced by the prosecution through P.Ws. 3 and 5. The chain of circumstances is not complete to arrive at an irresistible conclusion that it is the appellant and appellant alone who has committed the crime. In fact them was no confession made by the appellant before any of the witnesses. 6. Mr. Zafarullah, learned Additional Standing Counsel vehemently contends that the deceased was missing on 23.06.2001 evening when she had gone out of the house to witness the car festival. Thereafter, her decomposed dead body was discovered on 26.06.2001. The injuries found were ante-mortem in nature. The deceased was last seen together in the company of the accused on 23.06.2001 evening. After they were last seen together, the accused was found absent from the village and at the dead of night he was found returning to the village alone. Extra judicial confession was made by the accused before the villagers. The conduct of the accused was suspicious, because previously he was declaring to kill Purnima and after the occurrence while he was detained by the villagers he escaped from their custody. Extra judicial confession was made by the accused before the villagers. The conduct of the accused was suspicious, because previously he was declaring to kill Purnima and after the occurrence while he was detained by the villagers he escaped from their custody. The chain of circumstances is complete. Therefore, there is no material to interfere with the finding of the Trial Judge. 7. This Court minutely gone through the LCR. P.W.1, in his examination in chief, has stated that four days prior to the car festival, while he and others were working as labourers in the house construction of P.W.12 (uncle of the deceased), the accused arrived there and gossiped with them for about an hour. At that time, the deceased and her sister were playing nearby. Seeing them, the accused pointed his hand towards the deceased and said that such child should be killed and thrown away. In cross-examination, this witness admitted that he did not disclose this fact either before her father (P.W.2) and uncle (P.W.12). P.W.2 is the father of the deceased and informant of this case. He stated that his daughter had been to witness car festival on 23.06.2001 and when she did not return home for a long time, he along with others searched for her but in vain. In the same night during search, Nabin Bhoi (P.W.3) informed them that he had seen the accused carrying the deceased in his shoulder towards the threshing-floor of Krushna Chandra Mishra. On being asked by P.W-3, the accused replied that he was bringing the deceased to her house. He has also stated that P.W.8 informed them that he heard crying sound of a girl in the same night some time between 8.30 to 9.00 PM. On getting information from P.W.7 and Dhani Majhi, P.Ws. 6, 8 and 12 went and brought the accused to the Verandah of Dhanpati Pradhan. On being asked, the accused said that he had kidnapped Purnima and kept her at a place and on the following morning he would disclose about the place. They detained the accused till 5.00 AM when he told that he wanted to go to the house of Kishore Pradhan to consume 'Bhang'. So, the accused along with Krutartha (P.W.4) went towards the house of Kishore Pradhan but on the way the accused escaped from the company of P.W.4. They detained the accused till 5.00 AM when he told that he wanted to go to the house of Kishore Pradhan to consume 'Bhang'. So, the accused along with Krutartha (P.W.4) went towards the house of Kishore Pradhan but on the way the accused escaped from the company of P.W.4. On the following day, P.W.2 went to the police station and lodged the report. On 26.6.2001, the dead body of the deceased was recovered from near the tank of their village on being detected by P.W.13 and Sadanand Bhoi. In cross-examination, he admitted that it is a fact that he had not mentioned in the FIR that on being asked by them the accused told that he had kidnapped Purnima and kept her at a place and on the following morning he would disclose as to where he had kept her, but it is not a fact that as the accused did not give such statement or confession that is why he had not mentioned in the FIR. He also admitted that it is true that in the FIR he had not mentioned that P.W.3 had seen the accused carrying Purnima on his shoulder towards threshing floor of Krushna Chandra Mishra, but it is not a fact that he did not state so before the I.O. P.W.3 in his examination in chief has stated that in the night of occurrence when he came out of his house for urination he saw the accused carrying Purnima on his shoulder and on being asked the accused replied that he was taking Purnima to her house. He did not suspect anything, as previously the accused was working in the house of P.W.2, went back to his house. When he knew that the family members were searching for Purnima, he came out of his house and disclosed before P.W.12 and others that he had seen the accused taking Purnima on his shoulder and that to his query the accused replied that he was taking Purnima to her house, and thereafter joined with them in search of her. When both of them were found absent in the house of the accused, they gathered on the Verandah of Dhanpat where they got information from Dhani Majhi and Bhabagrahi Hota that the accused had returned to his house. Some villagers went and brought the accused to that place. When both of them were found absent in the house of the accused, they gathered on the Verandah of Dhanpat where they got information from Dhani Majhi and Bhabagrahi Hota that the accused had returned to his house. Some villagers went and brought the accused to that place. On being asked, the accused disclosed that he had taken Purnima and kept her at a place and in the next morning he would disclose about the same. Towards the last part of that night, the accused fled away while going to the house of his maternal uncle accompanied by Krutartha Pradhan (P.W.4) to consume Bhanga. He is also a witness to the seizure of 'Chadi' of the deceased under Ext. 2. In cross-examination, he admitted that about 50 to 60 persons were gathered near the house of Dhanapati. When the accused was brought near that place his material uncles advised not to assault him. The seizure list (Ext. 2) was prepared at the place wherefrom the 'Chadi' was recovered. P.W.4 is a co-villager who stated in his evidence that in the night of 23.06.2001 he was preparing sweets in the house of Dhanpati Pradhan for marriage of his daughter. Hearing noise he came out and learnt that Purnima was missing. He further deposed that while they were searching for Purnima, P.W.3 came and disclosed to have seen the accused taking Purnima on his shoulder and one Ananta Majhi stated to have heard crying sound of a girl. He also corroborated the statement of P.W.2 by stating that while he was accompanying the accused to the house of his uncles the accused estaped on the way. Nothing substantial has been brought out by way of cross-examination to discredit his testimony. P.W.5 who is also a co-villager stated that the occurrence took place on the car festival day of the year 2001. In that evening he had been to witness the car festival and at that time he found Purnima was with the accused, who was purchasing chocolate, bail on, etc. for her at the Yatra place. At about 9.00 to 9.30 PM when he heard in the village that Purnima was missing, he disclosed before the villagers that he had seen Purnima with the accused, who was purchasing chocolate, etc. for her at Yatra place. He is a witness to the inquest and proved the inquest report (Ext. 3). for her at the Yatra place. At about 9.00 to 9.30 PM when he heard in the village that Purnima was missing, he disclosed before the villagers that he had seen Purnima with the accused, who was purchasing chocolate, etc. for her at Yatra place. He is a witness to the inquest and proved the inquest report (Ext. 3). In cross-examination, he has specifically admitted that he disclosed before P.W.2 and his brother that he had seen the accused and Purnima at the Yatra place where the accused was purchasing chocolate, etc. for Purnima. P.W.6 is another co-villager stated that on the occurrence night hearing noise he came out of his house to know the reason, P.W.12 Rama Krushna Mishra told him that his niece Purnia was missing. While he along with others was searching for her, P.W.8 Ananta Majhi told them that in that evening he had heard crying sound of a girl and P.W.3 Nabin Bhoi informed that he had seen accused taking Purnima towards the threshing floor of Krushna Chandra Mishra and being asked by him the accused told that he was taking her to her house. After a while, they were informed by Dhani Majhi and Bhabagrahi Hota that accused had returned to his house and accordingly he along with P.Ws. 8 and 12 went and brought the accused to the verandah of Dhanpati Pradhan. Being asked, the accused admitted that he had taken away Purnima and on the following morning he would disclose as to where he had kept her. He is also a witness to the seizure of 'Lungi' of the accused under Ext. 4. His evidence has remained unshaken despite cross-examination by the defence. P.W.7, while corroborating the statement of P.W.6 that he was informed by P.W.7 that the accused had returned to his house, has further stated in has evidence that in the night of occurrence the accused was brought to the village 'Khuli'. On being asked the accused did not say anything about Purnima at first but being repeatedly asked he admitted that he had taken away Purnima and would disclose in the following morning as to where he had kept her. Nothing contrary has been brought out in cross-examination to disbelieve his evidence. On being asked the accused did not say anything about Purnima at first but being repeatedly asked he admitted that he had taken away Purnima and would disclose in the following morning as to where he had kept her. Nothing contrary has been brought out in cross-examination to disbelieve his evidence. P.W.8 in his evidence has stated that in the evening of occurrence while he was sitting on his front verandah he heard the crying sound of a girl child appeared to be that of Purnima from the side of threshing floor of Krushna Chandra Mishra. On his way to the house of Purnima, he met with P.W.12 and told him about hearing of the crying sound. Then, both of them (P.Ws. 8 and 12) went to the house of Purnima and coming to know from her father (P.W.2) that she had gone towards the village 'Khuli', all of them went in search of her. While they were gathered near the house of Dhanpati, having failed to trace out Purnima, P.W.3 came and informed that he had seen the accused carrying Purnima on his shoulder. On getting this information from P.W.3, he (P.W.8) along with some other villagers searched for the accused in the houses of his maternal uncles, namely, Santosh Pradhan and Kishore Pradhan, but could not find out him. On getting information from Dhani Majhi and PW 7 that the accused has been returned to the village, they went and brought the accuser to the verandah of Dhanpati and detained him there till 5.00 A.M. During that period the accused admitted that he had taken away Purnima and that on the following morning that he would tell as to where he had kept her. As the accused wanted to consume 'Bhang' he was allowed to go 1iongwith P.W.4 Krutartha Pradhan but after a while P.W.4 came back and informed that the accused escaped from his custody. He stated to be a witness to seizure of 'Chadi' of the deceased under Ext. 2 and seizure of 'Lungi' of the accused under Ext. 4 and proved the said seizure lists (Ext. 2 and 4) and his signatures appended thereto as Ext. 2/2 and Ext. 4/2. He stated to be a witness to seizure of 'Chadi' of the deceased under Ext. 2 and seizure of 'Lungi' of the accused under Ext. 4 and proved the said seizure lists (Ext. 2 and 4) and his signatures appended thereto as Ext. 2/2 and Ext. 4/2. In cross-examination he admitted that after taking dinner he came out of his house and sat on his front verandah probably around 8.30 PM to 9.00 PM and at that time he had not seen anybody passing by that way. When he heard the crying sound, he did not tell about that to anybody He further admitted that the accused had worn the 'Lungi' (M.O.I) while he was moving at the Yatra place, but when he was brought near the house of Dhanpati Pradhan, he had not worn the same. P.W.9 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries: "(i) Incised wound on right side of fore-head horizontally placed of the size 1 cm x 1 cm x bone deep; (ii) Incised wound of size 1 cm x 1 cm x 112 cm. on left hypochondrium (left upper abdomen) obliquely placed; (iii) Incised wound of size 1 cm x 112 cm x 112 cm. On left infra axillary region; (iv) Incised wound 7 cm x 3 cm x 4 cm on the front of neck at upper border of thyroid cartilage horizontally placed; (v) Scalp eaten away by carrion feeders Separation of coronal suture. Brain matter eaten away by maggots; (vi) Left eye ball eaten away. Right eye ball intact; (vii) Cut wounds of external injuries nos. (i) and (iv) showed blood clots at margins. External Injuries Nos. (ii) and (iii) the margins were eaten away by the maggots. (viii) Genital orifices eaten away by maggots. Vaginal swab preserved for microscopic examination; and (ix) All viscera pale". He opined that the cause of death was due to shock and hemorrhage as a result of the cut injury to the neck. In ordinary course of nature injury No. iv was sufficient to cause death. The cut injuries were possible by sharp cutting weapon. He proved the post mortem report (Ext. 5). In cross-examination, he admitted that injury Nos. (i) to (iv) were visible injuries. P.W.10 is the Revenue Inspector who prepared the spot map Ext. 8. P.W.11 is, the grandmother of the deceased. The cut injuries were possible by sharp cutting weapon. He proved the post mortem report (Ext. 5). In cross-examination, he admitted that injury Nos. (i) to (iv) were visible injuries. P.W.10 is the Revenue Inspector who prepared the spot map Ext. 8. P.W.11 is, the grandmother of the deceased. She stated that four days prior to the death of the deceased, while she was returning after taking her bath, the deceased came to her and told that their labourers were telling to kill her and throwaway her dead body. Being asked who was saying so, the deceased, told the name of the accused. In cross-examination, she admitted that she did not inform the same to her son and husband as she did not believe the version of a child to be true. On the day following missing of Purnima, she (P.W.11) had informed her (Purnima's) father that Purnima was saying so to her. P.W.12 is the younger brother of P.W.2 who corroborated the statement of P.Ws. 6, 7 and 8 in material particular. In cross-examination, he admitted that he had accompanied P.W. 2 and scribed the FIR at the police station. Police examined him and other persons of the village while they were sitting on the verandah of Dhanpati. P.W.13 is another co-villager who has stated that about 4 to 6 days after missing of the deceased, he had gone to the side of Junakata to attend nature's call. Sensing some foul smell he went towards the direction from where it was coming and found the decomposed body of the deceased lying there. Sadananda Bhoi, who was also with him, saw the dead body. Thereafter, they informed the matter in the village. P. W.14 is the I.O. of this case. He deposed that on receipt of written report (Ext. 1) the OIC, Sambaipur Sadar P.S. registered the case and directed him to take up investigation. During course of investigation, he examined the informant and other witnesses, visited the spots and prepared the spot maps (Ext. 9 and Ext. 9/1). He traced out the decomposed body of the deceased, on getting information over telephone from the occurrence village, and accordingly converted the case to one under Section 302 IPC. He sent requisition for Scientific Officer of D.F.S.L., Sambalpur, who visited the spot along with his staff and submitted his spot visit report to him (P.W.14). 9 and Ext. 9/1). He traced out the decomposed body of the deceased, on getting information over telephone from the occurrence village, and accordingly converted the case to one under Section 302 IPC. He sent requisition for Scientific Officer of D.F.S.L., Sambalpur, who visited the spot along with his staff and submitted his spot visit report to him (P.W.14). He held inquest over the dead body of the deceased and despatched the dead body to V.S.S. Medical College and Hospital, Burla for post-mortem examination. He seized the 'Chadi' of the deceased and 'lungi' of the accused. After complying all formalities filed charge-sheet against the appellant. In cross-examination, he admitted that as the body of the deceased was decomposed, he could not find out any visible external injury on it. He further admitted that no weapon of offence has been seized in this case and no reason has been assigned by him for delayed examination of P.Ws. 1 and 11. 8. Admittedly, there is no eye witness to the occurrence. The conviction has been recorded basing upon circumstantial evidence. Of them, extra judicial confession and last seen theory are the two major circumstances, on which much emphasis appears to have been laid by the trial Court. In the case of State of U.P. v. Ashok Kumar Srivastava; AIR 1992 SC 840 , the apex Court has held that while appreciating the circumstantial evidence, the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence. 9. With the above touch stone, this Court evaluated the evidence of the witnesses. P.Ws. 2, 3, 4, 6, 7, 8 and 12 are witnesses to the extra judicial confession. Their evidence is that in the night of occurrence, on his return to village the accused was called near the house of Dhanpati Pradhan where almost all the villagers were assembled. Being asked repeatedly, the accused said that he had taken away Purnima and kept her at a place and on the next morning he would disclose about the same. From a bare reading of the same, it would be clear that the statement made by the accused was not voluntary. Being asked repeatedly, the accused said that he had taken away Purnima and kept her at a place and on the next morning he would disclose about the same. From a bare reading of the same, it would be clear that the statement made by the accused was not voluntary. Besides, there are major contradictions in the evidence of the above witnesses with regard to the confession made by the accused. Therefore, it cannot be termed as an extra judicial confession in the eye of law. 10. As regards last seen theory, the prosecution has pressed into service the evidence of P.Ws. 3 and 5. But, the Trial Court, as it reveals from the impugned judgment, has taken into account the evidence of P.W.3 only. According to P.W.3, the deceased and the accused were last seen together by him in the night of 23.06.2001. But, the facts remains that the decomposed dead body of the deceased was admittedly discovered on 26.06.2001. This shows that there was a long time gap between the deceased having been last seen in the company of the accused and the time of discovery of the dead body of the deceased, for which the possibility of any other person coming in between could not be ruled out. So, in view of the decision of this Court in Jagata Singh 11997 (1) OLR 192 v. State, (1997) 13 OCR 245, it is difficult to accept the last seen theory as an incriminating circumstance. In addition to the above, even if the last theory introduced by the prosecution is accepted, no conviction can be recorded relying on such circumstance in the view of the judgment of the apex Court in Inderjit Singh v, State of Punjab, AIR 1991 SC 1674 , since except this circumstance there is no other incriminating circumstance on record to implicate the accused in the crime. 11. Apart from what has been stated above, in the 'Chadi' of the deceased and 'Lungi' of the appellant which were seized and sent for chemical examination no blood stains were found. No attempt has been made by the prosecution to examine Dhanpati, who is a very material witness. Where the case rests on circumstantial evidence, motive plays a vital role, and in the instant case prosecution has utterly failed to establish the motive behind the commission of the crime. No attempt has been made by the prosecution to examine Dhanpati, who is a very material witness. Where the case rests on circumstantial evidence, motive plays a vital role, and in the instant case prosecution has utterly failed to establish the motive behind the commission of the crime. The accused was not seen by anyone while taking the deceased from the lawful guardianship of her parents and to that effect no evidence has been adduced by the prosecution. No documentary or oral evidence is adduced on behalf of the prosecution to show that there was enmity between the accused and the deceased or her family. The weapon of offence was neither seized nor produced before the Court. For all these reasons, the prosecution case is also to be viewed with suspicion. 12. Having regard to the entire oral and documentary evidence available on record, this Court comes to the conclusion that the prosecution has failed to establish all the circumstances by cogent and clinching evidence and the circumstances so established db not form a complete chain to prove the guilt of the accused beyond all reasonable doubts. Under the circumstances, it is difficult for this Court to hold the accused appellant guilty either for commission of offence under Section 302 or Section 363 or Section 201 of the Indian Penal Code. 13. In the result, therefore, the JCRLA is allowed, the judgment dated 07.07.2003 passed by the learned Sessions Judge, Sambalpur in S.T. Case No. 67 of 2002 convicting the accused-appellant under Sections 363/302/201, IPC and sentencing him to undergo imprisonment for life for the offence under Section 302, IPC and one year each for the offence under Sections 363/201 IPC, is set aside and the accused-appellant is directed to be set at liberty forthwith, unless his detention is required otherwise. B. K. MISRA, J. I agree. JCRLA allowed.