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2013 DIGILAW 508 (ORI)

Krupasindhu Shaw v. State of Orissa

2013-12-20

D.DASH, PRADIP MOHANTY

body2013
JUDGMENT D. DASH, J. : The appellants in the appeal assail the judgment of conviction recorded for commission of offence under Sections 302, 201, 498-A and 436 read with Section 34 IPC and the sentence imposed on them to undergo imprisonment for life 3 years, 2 years and 3 years for said offences respectively, which are to run concurrently. 2.The prosecution is that the marriage between appellant No.1 and the deceased had taken place in the year 1992. Appellant No.1 being the husband of the deceased-Annapurna, shortly after the marriage started ill-treating her. It is alleged that he used to assault his deceased-wife with a view to coerce the demand of dowry and also for other reasons. It is also alleged that he was having illicit relationship with his sister-in-law (who faced the trial and since been acquitted). This is said to be a reason of discontentment fuming in the mind of the deceased and brewing discord in the matrimonial relationship. This accused was not keeping marital relationship with his wife and was residing in another house situated at a distance of around 1 Km. from the house where the deceased Annapurna used to reside. For all these reasons, the deceased had written few letters to her father describing such behaviour of this appellant. So the father of the deceased had brought Annapurna to his house and also a case was instituted in the Court of JMFC, Soro by Annapurna claiming maintenance from Appellant No.1. The said case of course ended in compromise due to intervention of some gentlemen and elder brother of appellant No.1. Thereafter though Annapurna returned back to her marital home, but the situation did not improve. The same behaviour of appellant No.1 towards Annapurna continued. When the situation further worsened, Annapurna again wrote some letters to her father. One of such letters sent through a messenger by the time of occurrence had not reached the hands of her father (which has been seized in course of investigation). It is next alleged that appellant No.1 with his associate, the other appellant came together to the old house during midnight where the deceased Annapurna was sleeping in a room, when the other accused, Sabitri was there in another room. It is next alleged that appellant No.1 with his associate, the other appellant came together to the old house during midnight where the deceased Annapurna was sleeping in a room, when the other accused, Sabitri was there in another room. Both the appellants entered into the room with crowbar and other weapons, caused series injuries on the person of deceased Annapurna and then they put some straws over the body of Annapurna, sprinkled kerosene over the same and set fire to the same. Finally, it is alleged that they escaped through the thatched roof of the house taking all the care that the room where the accused Sabitri was sleeping did not get affected due to such setting of fire. The fire having broken out at night somehow caught the notice of villagers who immediately then extinguished the same. The subsequent action said to have been committed by the appellants is in order to cause disappearance of the evidence of murder of deceased Annapurna. It is also the prosecution case that appellant No.2 burnt his cloth stained with blood and wearing a towel of appellant No.1 managed to escape from the spot to reach his house during that very night. This matter was informed by one Basant Muduli, P.W.18 to the father of Annapurna. Hearing the said news, the father of Annapurna, P.W.19 made his journey to the village of his daughter when on the way saw the dead body of his daughter being carried by the villagers. He then lodged the FIR at Nilgiri Police Station which led to the registration of the case and commencement of the investigation. 3.In absence of the OIC, the Junior Sub Inspector, P.W.21, attached to the Police Station took up the investigation. He proceeded to the spot and held inquest over the dead body of deceased Annapurna in presence of the Executive Magistrate and other witnesses. The dead body was also sent for post mortem examination. P.W.21 seized a letter-Ext.6 on production by the P.W.19 and also other incriminating articles which he found at the spot. There also he examined some more witnesses. One written report of P.W.19 earlier given to ASI, Iswarpur Police Out Post was also seized. The incriminating articles were then sent for chemical examination through the SDJM, Nilgiri. On completion of investigation, charge sheet was placed against the appellants to face the trial in the Court of law. There also he examined some more witnesses. One written report of P.W.19 earlier given to ASI, Iswarpur Police Out Post was also seized. The incriminating articles were then sent for chemical examination through the SDJM, Nilgiri. On completion of investigation, charge sheet was placed against the appellants to face the trial in the Court of law. Learned SDJM Nilgiri having taken cognizance of the offences under Sections 498-A, 302, 201 and 436/34 IPC, committed the case to the Court of Session for trial. 4.During trial, the prosecution examined altogether twenty one witnesses, whereas the defence examined two. One witness was also examined as Court witness. The prosecution proved series of documents and so also from the side of defence some documents have been admitted in evidence. The relevant documents out of those would be discussed at appropriate place hereunder. The prosecution in the case has produced the material objects such as crowbar, wearing apparels, etc. during the trial. The plea of the defence is that of complete denial and false implication. It having been specifically stated by appellant No.1 during his examination under Section 313 of the Code of Criminal Procedure that though deceased Annapurna was given in marriage with him, she was actually not shown to him at the time of finalisation of the marriage and there was trickery in that. So, he was not liking Annapurna from the very beginning. Few days after the marriage, the father of Annapurna had taken away his daughter and instituted a case in the Court of J.M.F.C. Soro and, thereafter they forcibly left Annapurna in his house. The explanation has been given by appellant No.1 that on the night of occurrence when he was sleeping in his house, he heard ‘Halla’ and having come out found the deceased to have been dead on account of fire that had engulfed the house. Appellant No.2 while taking the stand of denial has further stated to have no relationship with appellant No.1 and it is his further defence that as he was objecting to the sale of liquor and ganja by one Surendra Das who happened to be brother in law of P.W.18 and had in fact reported the matter at the P.S., he has been falsely arraigned in the case. 5.The trial Court on scrutiny of the evidence of the prosecution witness both oral and documentary, came to a conclusion that the prosecution has proved its case beyond reasonable doubt against both the appellants in establishing that they are the author of the crime of murder of Annapurna. With this, the appellants have been convicted for the offences as above followed by the order of sentence as aforesaid. 6.Learned counsel for the appellants submits that the finding of guilt rendered by the trial Court is not based upon proper appreciation of evidence and on their critical examination in the touchstone of probability and settled principles. According to him, the trial Court has not taken into consideration the defence evidence at any stage. It is his contention that there being no direct evidence and the conviction having been recorded on the basis of circumstantial evidence, the trial Court ought to have first of all approached in finding out as to whether the circumstances have been duly proved and then ought to have further gone to find out as to whether all those circumstances taken together actually form a complete chain leading to an irresistible conclusion of guilt of the appellants. According to him, the circumstances as can be said to have been established when joined together do not complete the chain so as to rule out all hypothesis other than the guilt of the appellants as the author of the crime. In order to buttress his above submissions, he has taken us through the depositions of all witnesses pointing out the relevant portions therefrom and drawing attention of this Court which will be discussed later in detail in course of addressing the contention. Thus he urges that the judgment of conviction and sentence is liable to be set aside. Learned Additional Standing Counsel, on the other hand refutes the submission advanced by the learned counsel for the appellants and contends that in this case, the prosecution has established the charges against the accused persons beyond reasonable doubt and the evidence of the prosecution witnesses with regard to each of the circumstances is clear, cogent and acceptable and then all the circumstances when joined together in this case, complete the chain in such a manner that there arises the inescapable conclusion that the appellants are the perpetrators of the crime. Referring to the relevant portion of the judgment of the trial Court, he fully supports the finding of guilt rendered against the appellants. Thus he submits that the appeal merits no acceptance. 7.At the outset, let us direct our attention to find out as to whether the Annapurna is homicidal in nature. It may be stated here that the trial Court instead of first arriving at that conclusion, has in the present case jumped to find out the complicity of the accused persons, which is not proper. P.W.6 is the doctor who had conducted autopsy over the dead body of Annapurna along with another doctor namely, P. Padhy and the report to that effect has been admitted in the evidence and marked as Ext.9. She has noticed a bruise over the nasal breeze, incised wounds over left thigh, right elbow joint, left elbow joint and the right chest wall. All these injuries have been found to be ante-mortem in nature. The burn injuries as noticed in this case have been stated by the doctor to be as not ante-mortem. According to her evidence, the death is due to asphyxia on account of suffocation. Although in her evidence in chief, she stated the injuries to be burn injuries, but that has been clarified by her later during cross-examination that she meant those as charred. This doctor has been cross-examined at length, but nothing substantial has been brought out so as to discard her evidence as regards the cause of death and also existence of injuries except the burn injuries, which she has stated to be not ante-mortem. The I.O., P.W.21 has held inquest over the dead body of Annapurna in presence of the Executive Magistrate. In the report, Ext.8, he has noted these injuries to have been in existence at that point of time. The defence has not come up with a specific case as regards the cause of death of the deceased and in so far as the existence of the injuries as stated by P.W.6 to be ante-mortem in nature. In such state of affair in the evidence, the irresistible conclusion stands that Annapurna met homicidal death. 8.Admittedly, in the present case, there is no direct evidence and no eye witnesses have been presented by the prosecution during the trial. The entire against the accused persons rests upon the circumstantial evidence. In such state of affair in the evidence, the irresistible conclusion stands that Annapurna met homicidal death. 8.Admittedly, in the present case, there is no direct evidence and no eye witnesses have been presented by the prosecution during the trial. The entire against the accused persons rests upon the circumstantial evidence. Before going to analyze each of the circumstances emanating from the evidence of the prosecution and those if proved whether on being joined together form a chain so complete as to lead to an irresistible conclusion only with regard to the complicity of the accused persons or otherwise, it is felt necessary to state first the settled principle of law as to when can a conviction be based on circumstantial evidence and what should be the mode of approach in finding out the complicity of the perpetrator/s of the crime. “Undoubtedly, conviction can be based solely on circumstantial evidence. However, the Court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (vide. Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , Krishnan v. State represented by Inspector of Police, (2008) 15 SCC 430 : (AIR 2008 SC (Supp) 210 : 2008 AIR SCW 4065); Wakkar and another v. State of Uttar Pradesh, (2011) 3 SCC 306 ) : (AIR 2011 SC (Cri) 518 : 2011 AIR SCW 1215) and also Sk. Yusuf v. State of West Bengal, AIR 2011 SC 2283 . Yusuf v. State of West Bengal, AIR 2011 SC 2283 . 9.For better appreciation, let us first describe the circumstances which the trial Court has found to have been established pointing fingers at the accused persons so far as their complicity is concerned. (i)Appellant No.1 from the very beginning of his marriage with Annapurna was not happy and there was persistent torture and cruelty being meted out at Annapurna since then giving rise to a proceeding for maintenance, which though ended with compromise did not make the situation improve for which the deceased used to write letters to her father about such treatment and apprehensions. (ii)On the midnight of 2.9.1994, the deceased was sleeping in a room in the old house of appellant No.1, whereas the accused Sabitri (since been acquitted) was sleeping in another room and appellant No.1-Krupasindhu was sleeping with his mother in another at a distance of 1 km. away. So when it is said by the defence that the death of Annapurna was on account of fire having broken out, the other portion of the house were not gutted with fire and without having any affect on the other inmates and how the door of the room where the deceased Annapurna was sleeping was found to be closed at the time of arrival of the appellants with removal of the thatch roof for escape going to show that it is only after the death of Annapurna which is on account of asphyxia due to suffocation, that portion of the house has been set to fire. (iii)The appellants when had been to the Police Station had confessed their guilt before the I.O. and pursuant to their information, crowbar, kerosene zarkin and half burnt clothes have been recovered from the house of appellant No.1 where those were kept concealed. (iv)The falsity of the case of defence that the death of Annapurna was on account of the fire accident taken place in the house. According to the trial Court, all these circumstances taken as links and on being joined together form a complete chain ruling out all the hypothesis other than the guilt of the accused persons without leaving any reasonable ground to draw a conclusion consistent with the innocence of the accused. According to the trial Court, all these circumstances taken as links and on being joined together form a complete chain ruling out all the hypothesis other than the guilt of the accused persons without leaving any reasonable ground to draw a conclusion consistent with the innocence of the accused. 10.The learned counsel for the appellants is categorical in his submission that even accepting for a moment that those circumstances stand proved still all these circumstances being taken together, do not form a complete chain ruling out all other hypothesis except that of the guilt of the accused persons. In this connection, he further submits the explanation of the appellants that the deceased died on account of the fire having been broken out in the house and injuries consequential thereto, first of all the same cannot be said to be totally false and even if not so, that cannot be taken to be the circumstance against the accused persons pointing at their complicity. The submission of learned counsel for the appellants is countered by the learned Addl.Standing Counsel contending to the contrary that when the death has been taken place in the house of appellant No.1 in presence of other inmates, the explanation of the accused if is been found to be false, certainly that stands as circumstance against him and that cannot be lightly brushed aside. As regards the circumstances relating to the closure of the door, the learned counsel for the appellants submits that it is nothing unnatural or unusual as deceased could not have been slept in her house during night without bolting the door from inside. According to him, accepting that some miscreants have caused the death, the closure of the door from inside cannot be taken to be a circumstance against the appellants. 11.Now, therefore, bearing all the above in mind, let us scrutinise the evidence on record. The alleged incident is said to have taken place during night of 2.9.1994. Admittedly, the appellants, during that night were not residing there in the house. But, there is no evidence even to the effect that in the evening or thereafter these accused persons have paid a visit to the house and after a short while from the time of their leaving the place, incident took place. Admittedly, the appellants, during that night were not residing there in the house. But, there is no evidence even to the effect that in the evening or thereafter these accused persons have paid a visit to the house and after a short while from the time of their leaving the place, incident took place. The bolting of the door from inside during the night hours cannot be said to be a circumstance pointing finger towards the complicity of the accused persons and the authorship of the crime. Of course when we turn to the evidence of the prosecution witnesses, we find from the evidence of P.W.2, whose aunt’s daughter is Annapurna, that Annapurna was not pulling on well with accused appellant No.1 since two to three months of her marriage and also that she was assaulted for which Annapurna had left the marital home. Sometime later, there was reconciliation after filing of the maintenance case. It is also stated by him that three months before the death she had gone to the house of appellant No.1 and prior to that also she was not being provided with food and was being assaulted. He had also proved a letter, Ext.6 in which narrations find place regarding the torture and cruelty being meted out at her by appellant No.1 and other family members. The evidence of this witness remains unshaken on the above score despite scathing cross examination, as regards the surcharged atmosphere, strained relationship, torture and cruelty. P.W.3’s evidence do provides support to the evidence of P.W.2 and stand to corroborate. The institution of the maintenance case against appellant No.1 is not denied and so also the factum of reconciliation and return of Annapurna to the marital home. It is also the evidence of P.W.5 that appellant No.1 and Annapurna were not pulling on well and Annapurna was driven out of the house by appellant No.1. Another relation of Annapurna, P.W.7 has deposed that during the stay of Annapurna in her father’s house, after being driven out of her marital home, she had disclosed before her as regards he assault on her by appellant No.1 and the conduct of appellant No.1 in either not sleeping with her or being not in talking terms and that he was not taking the food if the same was cooked by Annapurna. The said witness has also described an incident as was narrated to her by Annapurna that during one night when Annapurna wanted to have a look at the room where appellant No.1 was sleeping by scaling over the wall with the help of a ladder, the appellant No.1 becoming angry and assaulted her and then drove her out. P.W.9, whose daughter was given in marriage in the village of appellant No.1 has stated that Annapurna had once requested her to handover a letter to P.W.8 which P.W.8 has also stated to have received from P.W.9. The letter has been admitted in the evidence as Ext.6. The contents of the letter reveal about strained relationship between the husband and wife, i.e. appellant No.1 and Annapurna and also as regards the ill-treatment at the instance of appellant No.1 and others. P.Ws.11 and 12 also to a major extent support the factum of strained relationship between the two, the ill-treatment and cruelty being meted out at Annapurna during her stay in the marital home. P.W.19, the father of the deceased, who is the informant in the case and had lodged FIR, Ext.14 has of course not stated anything on those aspects, but nonetheless he has proved the letter, Ext.6 wherein the said descriptions find mention. It has been elicited during cross-examination about the filing of the maintenance case and then the reconciliation. The evidence of the witnesses on the above score are also found to be acceptable in the absence of any such material or feature so as to discredit their testimony in that regard. On analysis of the evidence of the above prosecution witnesses, thus, it is found that the prosecution has established the fact beyond reasonable doubt that the relationship between appellant No.1 and Annapurna was strained, they were living in a surcharged atmosphere and not as it ought to have been as between the husband and wife. It also appears to have been proved by the prosecution by evidence through the lips of the above witnesses and as well as the letters proved to have been written by Annapurna that appellant No.1 was ill-treating Annapurna and cruelty was being meted out at her even after her return on compromise of maintenance case. It also appears to have been proved by the prosecution by evidence through the lips of the above witnesses and as well as the letters proved to have been written by Annapurna that appellant No.1 was ill-treating Annapurna and cruelty was being meted out at her even after her return on compromise of maintenance case. Thus, said circumstance runs against appellant No.1 that he was not pulling on well with his wife Annapurna shortly after the marriage till her death and during that period cruelty was being meted out at Annapurna by appellant No.1 in various forms. But this circumstance itself cannot be taken to be sufficient to establish the complicity of the accused persons in intentionally causing the death of Annapurna or that it is the appellant No.1, who is responsible for the homicidal death of Annapurna during that fateful night. 12.The trial Court next has taken the evidence of prosecution witnesses relating to the confession of the guilty by the accused person said to have been made before the I.O. and also the recovery of some incriminating articles such as crowbar, kerosene jarkin, half burnt cloth from the house of appellant No.1 pursuant to his statement. The witness to the said recovery is P.W.11. It is the evidence of P.W.11 that three to four days after the occurrence, once he had been to Nilgiri Police Station and when he was there the accused persons went to the police station in connection with this case. This witness states that there the accused persons conessed to have killed Annapurna. Such a confession even if accepted is not at all admissible in evidence against the accused persons. Section 25 of the Evidence Act lays down and stands as a bar to the admissibility of a confession made to a police officer that no circumstance is admissible in evidence against the accused. The trial Court has lost sight of this fundamental provision of law. Now, evidence relating to leading the police and witness in giving for recovery of the above noted articles pursuant to the statement made before the police by the accused persons while in police custody, also comes out from the lips of this witness, P.W.11. The seizure of those articles is said to have been made under the seizure list under Ext.1. The seizure of those articles is said to have been made under the seizure list under Ext.1. The place of seizure as indicated in the said seizure list as the new house of appellant No.1 from inside paddy fields in village Ankurkhuta. It has not been specifically indicated as to where it is from the house, from some place therein, or from the open paddy field. The indication of the place of seizure as per Ext.1 is quite confusing Even no inference from that can be drawn that the place was not open and accessible to others and the articles were kept sealed by the accused persons. In the description in the said list as regards the circumstance of seizure connecting history of the said articles are said to have been stated by the accused persons, which is not admissible in the eye of law. 13.Even accepting for a moment the evidence that those crowbar, half burnt saya, etc. were seized by the police from a place being led by the accused persons while in police custody, but then also, there is no further evidence to connect those articles with the commission of the alleged crime which the prosecution is bound to do and has in the present case failed. The articles have been sent for chemical examination and it has been reported by the chemical examiner that even no blood stain was detected thereon. So this seizure is of no consequence and does not come to the aid of the case of the prosecution and, therefore, the same cannot be taken as a circumstance against the accused persons. At this juncture when we place our attention to the evidence in favour of the defence, it is seen that the prosecution has proved in this case that appellant No.1 had informed the police about the incident and there has been station diary entry at Iswarpur police out post. This cannot be said to be unusual conduct on the part of appellant No.1 and rather can be taken to be natural one when no further evidence is forthcoming that it was for the purpose of diverting the attention and creating an impression of non-involvement so far as appellant No.1 is concerned. This cannot be said to be unusual conduct on the part of appellant No.1 and rather can be taken to be natural one when no further evidence is forthcoming that it was for the purpose of diverting the attention and creating an impression of non-involvement so far as appellant No.1 is concerned. So the seizure of the incriminating articles from near the dead body and also the fact that after causation of death of Annapurna attempting to give it a colour that death had taken place on account of accidental breaking out of fire in the house, even if are accepted on their entirety still those cannot be taken to be the circumstances either against accused-appellant No.1 or the other, in view of the evidence that appellant No.1 was residing at another house at a distance of 1 km. and/or that he had paid any visit to the house during that night and also when there is no evidence that appellant No.2 was in any way concerned with family affair. These circumstances may at best give rise to a suspicion as regards involvement of appellant No.1, but cannot be taken as the circumstance of such nature in the direction of pointing the finger on the authorship at appellant No.1 and the other accused-appellant No.2. Therefore, these circumstances even if taken together do not go to form a chain in arriving at the irresistible conclusion with regard to the guilt of the appellants overruling all the hypothesis of their innocence in the murder of Annapurna, thereby commission of offence under Section 302 IPC as also in respect of offence under Section 436 and 201 IPC. 14.It is the settled position of law that suspicion, however strong may be, cannot take the place of proof and those concerned ‘must or should’ and ‘not and may be’ established. Therefore, we are unable to accord our seal of approval to the finding of the trial Court as regards the guilt of the appellants so far as the commission of crime of murder of Annapurna under Section 302 IPC and also for the offences under Section 436, 201 IPC. Therefore, we are unable to accord our seal of approval to the finding of the trial Court as regards the guilt of the appellants so far as the commission of crime of murder of Annapurna under Section 302 IPC and also for the offences under Section 436, 201 IPC. However, appellant No.1’s conviction for offence under Section 498-A IPC, is hereby upheld being found to have been based on clear, cogent and acceptable evidence let in by the prosecution and so also the sentence as imposed by the trial Court which is found to be just, proper and appropriate. 15.In the wake of aforesaid, the appeal stands allowed in part to the extent as indicated above. Appellant No.1’s conviction in respect of offence under Section 498-A IPC and the order of sentence on that count as imposed by trial Court hereby stand confirmed with usual benefits of set off under Section 428 Cr.P.C. and the order of conviction and sentence passed against appellant No.1, in so far as the other offences are concerned, are hereby set aside. Appellant No.2’s conviction and sentence for all the offences are hereby set aside. The Criminal Appeal is accordingly disposed of. PRADIP MOHANTY, J.I agree. Appeal disposed of.