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2014 DIGILAW 45 (ORI)

Abhi v. State of Orissa

2014-01-20

D.DASH, P.MOHANTY

body2014
JUDGMENT D. Dash, J. 1. In both these appeals filed separately, the Appellants have called in question, the Judgment of conviction & sentence-passed by the Learned Sessions Judge, Sundergarh in S.T. No. 240 of 1998. These Appellants having faced the trial in the Court of Learned Sessions Judge being charged for offence under Sections 302/201/34 IPC have been convicted for said offences & they have been sentenced to undergo imprisonment for life & to pay a fine of Rs. 5,000 with default stipulation to undergo further imprisonment for the period of one year. The case of the prosecution is as under:- The deceased Dasri Naik, who was the village level worker, was also the member of the Village Manila Samiti. She was staying with her son & family in their house at village Balijudi under Koira Police Station in the district of Sundargarh. It is said that there was dispute between the deceased in one hand & the accused persons on the other as the Appellants were suspecting that the deceased was practising witchcraft & such witchcraft being pressed into service, she was suspected to be instrumental in causing death of a member of the family of the Appellant-Nandu. The 8th day of August, 1988 was the day of Gamha Purnima (Rakhi Purnima). The family members of Dasri, i.e., son, daughter-in-law & the grand children had gone for a visit to the house of one Bansi Naik at village Dengula. Finding that as the opportune moment, it is said that the Appellants who are the front door neighbours of the deceased suddenly came & dragged the deceased Dasri to a place & caused her death. Female folk of the village found the earth to have been freshly dug near a rivulet (Nala), so Bansi Naik was asked to see that place. Surprisingly when the earth was removed out of suspicion, the dead body of Dasri was found to have been buried inside. So Bansi proceeded to Koira Police Station, orally reported the same while stating the previous disputes etc. On receipt of such information, the then O.I.C., Koira Police Station (P.W. 13), reduced the same into writing & investigation triggered therefrom. The dead body was exhumed. Witnesses were examined in course of the investigation. So Bansi proceeded to Koira Police Station, orally reported the same while stating the previous disputes etc. On receipt of such information, the then O.I.C., Koira Police Station (P.W. 13), reduced the same into writing & investigation triggered therefrom. The dead body was exhumed. Witnesses were examined in course of the investigation. P.W. 13, the I.O. visited the spot, held inquest over the dead body & sent the same being escorted by a constable of police for post mortem examination. The incriminating articles, as found from near the place were seized by P.W. 13 (I.O.). On 11.8.1998 the Appellants were arrested. It is further case of the prosecution that the Appellants being arrested & while in police custody, pursuant to their statement gave recovery of the wearing apparels, knife & iron crow bar. Incriminating materials were then sent for chemical examination. Finally on completion of investigation, charge sheet was submitted against the Appellants to face the trial for the above offences. 2. The plea of the accused persons is complete denial & that of false accusation. During the trial, the prosecution has examined fourteen witnesses, whereas the defence has examined none. P.W. 2 is the informant & son of the deceased. Witnesses to the assault & dragging of the deceased by the Appellants in the night of Rakhi Purnima are the P.Ws. 7 & 8 who are the star witnesses for the prosecution. P.Ws. 11 & 12 are the witnesses to the seizure of the articles pursuant to the statement of the Appellants. P.Ws. 3, 4, 6, 9 & 10 are the formal witnesses for search recovery of the dead body, the inquest & other seizure made in course of the investigation. Escorting constable for the dead body is P.W. 12, whereas the doctor who conducted the autopsy has been examined as P.W. 14, when P.W. 13 is the Investigating Officer from the beginning till end. Besides examining these witnesses, from the side of prosecution some documents have been admitted in evidence which have been marked as Exts. 1 to 13. Important documents are the F.I.R. Ext-2, Inquest Report Ext. 8, Chemical Examination & Post Mortem Examination Reports, Exts. 12 & 13 respectively & others are the Seizure Lists as regards recovery of the articles said to have been kept concealed by the Appellants, i.e., Ext. 9 & 10. 3. 1 to 13. Important documents are the F.I.R. Ext-2, Inquest Report Ext. 8, Chemical Examination & Post Mortem Examination Reports, Exts. 12 & 13 respectively & others are the Seizure Lists as regards recovery of the articles said to have been kept concealed by the Appellants, i.e., Ext. 9 & 10. 3. On going through the evidence of the doctor, P.W. 14 his report Ext. 13, & other evidence as regards the inquest etc., the Trial Court first of all has arrived at the conclusion regarding homicidal death of Dasri. Next proceeding to the complicity of the Appellants, the case being based upon the circumstantial evidence, the Trial Court keeping in mind the settled principles of law on the subject has gone to examine each of the circumstances emanating from the evidence. Lastly having come to the finding that these circumstances taken together form a chain so complete, inescapably pointing towards the guilt of the Appellants, they have been convicted for the offences as stated above & sentenced there-under. 4. Learned Counsel for the Appellants submits that the circumstances relied upon by the Trial Court as regards suspicion that the Appellants entertained in their mind about practising of witchcraft by the deceased, meeting was convened in the next date not attended by the Appellants, the recovery of the dead body of the Dasri near the Nala kept buried are not against the Appellants. So these circumstances according to him even if found to be proved cannot be taken as the circumstances against the Appellants in any way pointing fingers at their complicity. It is further submitted that the evidence of P.Ws. 7 & 8 that Appellants assaulted & dragged the deceased is not believable. Those two witnesses ought not to have been found to be trustworthy witnesses & that circumstance ought to have held to have not been proved & the Trial Court according to him committed error by accepting the evidence. & taking those into consideration in utilizing against the Appellants. So it is submitted by the Learned Counsel for the Appellants that the last seen theory that has been pressed into service in the present case by the Trial Court has to be held to have not been proved. & taking those into consideration in utilizing against the Appellants. So it is submitted by the Learned Counsel for the Appellants that the last seen theory that has been pressed into service in the present case by the Trial Court has to be held to have not been proved. It is also his submission that the circumstances such as the recovery of knife, chadi & the incriminating materials said to have been made pursuant to their statement while in police custody has not also been proved beyond reasonable doubt. So that ought not to have been taken into consideration as running adverse to the Appellants. Thus, he submits that it is a case where prosecution has not established the charges against the Appellants by leading clear, cogent & acceptable evidence & those are thus not forming a chain so complete as to rule out all the hypothesis other than the guilt of the Appellants to exclude the application of doctrine of innocence. Learned Additional Standing Counsel refuting the above submission contends that analysis of evidence made by the Trial Court is just & proper. According to him the circumstances as emanating from evidence about the last seen theory, seizure of the incriminating materials at the instance of the Appellants, recovery of the dead body under a suspicious circumstances, absence of the Appellants in the meeting being called in the next morning have been established by the cogent, clear & acceptable evidence. Therefore, he submits that these circumstances established beyond reasonable doubt when taken together in the case do lead to form a complete chain without giving rise to any reasonable ground for conclusion consistent with the innocence of the Appellants & so in all human probability the act has to be said to have been done by the Appellants. So he urges that the appeals bear no merit & are liable to be dismissed. 5. Keeping in mind the above submission, now this Court is called upon to see whether the prosecution has established by leading acceptable evidence through the trustworthy witnesses in establishing the circumstances & then whether those circumstances taken together do lead to an irresistible conclusion of guilt of the Appellants inconsistent with their innocence. 5. Keeping in mind the above submission, now this Court is called upon to see whether the prosecution has established by leading acceptable evidence through the trustworthy witnesses in establishing the circumstances & then whether those circumstances taken together do lead to an irresistible conclusion of guilt of the Appellants inconsistent with their innocence. But before going to the embark upon the said exercise, it is felt necessary to have a look at the settled legal principles relating to appreciation of the circumstantial evidence in criminal cases & as to when finding the guilt of the accused persons, can be rendered on the basis of the circumstantial evidence. It has been held in catena of decisions of Apex Court & this Court that 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 & cannot derive any strength from the weakness of the 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 & they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature & 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 & must show that in all human probability the act must have been done by the accused. It has been held in the case of Dharam Das Wadhwani vrs. State of U.P., AIR 1975 SC 241 that every evidentiary circumstance is a probative link, strong or weak, & must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Such link taken separately may just suggest, but when hooked into the next & on again may manacle the accused inescapable. Only then can a concatenation of incriminating facts suffice to convict a man. Short of that is insufficient. In case of Sk. Such link taken separately may just suggest, but when hooked into the next & on again may manacle the accused inescapable. Only then can a concatenation of incriminating facts suffice to convict a man. Short of that is insufficient. In case of Sk. Yusuf v. State of West Bengal, AIR 2011 SC 2283 , the Apex Court referring the series of earlier decision of the Court have further held as under: "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 & 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 & they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature & 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 & 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) 2010: 2008 AIR SCW 4065); Wakkar & Anr. V. State of Uttar Pradesh, (2011) 3 SCC 306 ): (AIR 2011 SC (Cri) 518". 6. Let us now turn to analyze the prosecution evidence as regards the circumstances if to have been established beyond reasonable doubt & their effect in the totality. Circumstances as projected by the prosecution are the followings. V. State of Uttar Pradesh, (2011) 3 SCC 306 ): (AIR 2011 SC (Cri) 518". 6. Let us now turn to analyze the prosecution evidence as regards the circumstances if to have been established beyond reasonable doubt & their effect in the totality. Circumstances as projected by the prosecution are the followings. (i) Suspicion in the mind of the Appellant that Dasri was practising witchcraft & was responsible for death of children in the family of Appellant No. 1; (ii) Except Dasri on the Rakhi Purnima no other family members were present in the house & on the next morning when the meeting was called in the village, in connection with the missing of Dasri, the accused persons remained absent followed by recovery of the dead body buried near the Nat & detection of ante mortem injuries on different parts of the dead body; (iii) The deceased was last seen in the company of the Appellant when they assaulted & dragged her; (iv) Recovery of the crowbar & underwear at the instance of Appellant No. 1 seized vide Ext. 9, pursuant to the statement of the said Appellant & recovery of chadi & spring knife the Appellant No. 2 seized under Ext. 10 & (v) Explanation of the Appellants was that they were falsely implicated. 7. So far as the homicidal nature of death of Dasri is concerned, in course of hearing the Learned Counsel for the Appellants has advanced no challenge to the findings of the Trial Court on that score. However, it may be stated that the Trial Court has taken into consideration the evidence of P.W. 12, the police personnel present at the time of inquest, & also the evidence of P.W. 14 who conducted the post mortem examination in arriving at the conclusion that the prosecution has established beyond reasonable doubt, that the death of the deceased was homicidal in nature. P.W. 12 has identified the dead body to the doctor for post mortem examination. The doctor has deposed to have found eleven number of injuries on different parts of the dead body of the deceased. & then has ultimately stated that the death was on account of asphyxia might have been caused due to strangulation. P.W. 12 has identified the dead body to the doctor for post mortem examination. The doctor has deposed to have found eleven number of injuries on different parts of the dead body of the deceased. & then has ultimately stated that the death was on account of asphyxia might have been caused due to strangulation. The number of injuries noted during the post mortem examination have also been said to be ante mortem in nature & those injuries also have been found by him as sufficient in causing the death in ordinary course of nature. Ext. 13 is his report. The suggestion of the defence that those are possible by fall has been categorically denied. Thus the doctor's evidence is found to be categorical & has remained totally unshaken with regard to the death of Dasri to have been caused due to asphyxia possibly by throttling. With such evidence on record, this Court finds every justifiable reason to agree that the nature of death of the deceased was homicidal. 8. It is stated that the Appellants were suspecting the deceased to have been practising witchcraft as instrumental for death of some children of the family of Appellant No. 1. The evidence on that score comes only from the lips of P.W. 2, the son of the deceased. He has stated that Appellants were suspecting her mother as a witch. No specific instance has been given as to for what reason the Appellants were so suspecting her mother. Not only that no reason has been spoken out by him but also no instance has been cited. Even if, it has not been stated by him as to since when the Appellants were suspecting as such, & why at all such suspicion arose in their mind. Other villagers examined during the trial such as P.Ws. 3, 4, 5 & 6 do not breathe a word on this aspect. P.W. 7 the important witness from the prosecution who has stated on the last seen theory has also not corroborated the said version of the P.W. 2 & so also P.W. 8. Other witnesses P.Ws. 9, 10 & 11 are silent on this score. Rather, it is the evidence of P.W. 7 that deceased was an Anganwadi Worker, which has also been stated by P.W. 8 by adding that she was also a female activist. Other witnesses P.Ws. 9, 10 & 11 are silent on this score. Rather, it is the evidence of P.W. 7 that deceased was an Anganwadi Worker, which has also been stated by P.W. 8 by adding that she was also a female activist. Thus, this circumstance with regard to suspicion being entertained by the Appellants appears to have not been established by a clear & cogent evidence & such bald statement of P.W. 2 going without any corroboration & other material particulars is not acceptable. Next comes the most important circumstance that the deceased was last seen in the company of the Appellants when by assaulting, they dragged her. The evidence of P.Ws. 7 & 8 require analysis for due consideration of this circumstance. It is stated by P.W. 7 that around 8 A.M. on that day, when he & P.W. 8 were sitting in front veranda, the Appellants dragged the deceased from her house & when he protested, Appellant No. 1 threatened him by a knife for which he got frightened & then both the Appellants dragged the deceased away. It has been stated by P.W. 8 that the deceased was in her house & he saw both the Appellants chasing & assaulting the deceased. So at this point, appearance of the Appellants, role played by the Appellants there & even from the place where the deceased was dragged wholly differs in the version of P.Ws. 7 & 8. When P.W. 7 states that the deceased was dragged from his house, (i.e., P.W. 7's house) P.W. 8 states that she was in her house & the Appellants chased & assaulted her. Of course both of them have stated that they had protested & then P.W. 7 specifically states that it was the Appellant No. 1, who had shown the knife whereas P.W. 8 states that both had shown. Even ignoring the above discrepancy in evidence, it is seen that at 8.00 P.M. they found the Appellants to have taken away the deceased. As it appears from their evidence that their houses are close to the house of the deceased. But their conduct in remaining total non responsive even after the Appellants took away the deceased to a distant place in not informing any of the villagers appears to be against normal human conduct. As it appears from their evidence that their houses are close to the house of the deceased. But their conduct in remaining total non responsive even after the Appellants took away the deceased to a distant place in not informing any of the villagers appears to be against normal human conduct. P.W. 2, who is the son of the deceased arrived in the next morning, & he found her mother to be missing. But these witnesses have not stated anything to him. Even on the next day, when the meeting was called in the village for this purpose, these witnesses have not attended. They are also not coming with any explanation as to why that happened, when they knew about these Appellants having taken away the deceased by assaulting her, what forced them to maintain silence. All these not only run against ordinary human conduct but render their evidence suspect that these two villagers having no inimical terms with the family members of the deceased would be maintaining silence & when they simply say that at that time when they protested to the dragging & assaulting they were shown with knife without further saying that it continued thereafter. That apart, the FIR has been lodged by P.W. 2 at 12.30 P.M. on 10.8.1998. Till then, this important fact was not disclosed by the witnesses to P.W. 2 & the case has been registered against unknown persons. Even other villagers who have been examined in this case are not coming forward to say that either P.W. 7 or P.W. 8 had ever at all told this fact to them nor even these two witnesses ever say to have told anybody. These P.Ws. 7 & 8 have been examined around 4.30 P.M. on 10.08.1998 after I.O. came to village & arrived around 2.00 P.M. (as it reveals from case diary) which has been perused for proper appreciation of evidence. Another feature which runs against the acceptance of evidence of P.Ws. 7 & 8 is that when P.Ws. These P.Ws. 7 & 8 have been examined around 4.30 P.M. on 10.08.1998 after I.O. came to village & arrived around 2.00 P.M. (as it reveals from case diary) which has been perused for proper appreciation of evidence. Another feature which runs against the acceptance of evidence of P.Ws. 7 & 8 is that when P.Ws. 7 & 8 found a helpless woman being assaulted, dragged & taken away, they even after sometime not going to call the villagers to get them congregated & decide the future course of action in saving the deceased or even on the next morning by inquiring as to what had happened thereafter but instead they have chosen to attend their normal work & day to day activity & then even remained silent for few hours even after arrival of Police. All these give rise to a suspicion in our mind as regards trustworthiness of P.Ws. 7 & 8 & to hold that they are truthful witnesses. Thus the evidence of P.Ws. 7 & 8, in our considered view is not acceptable & these two witnesses cannot be said to be trust worthy & we differ with the reason assigned by the Trial Court in that regard. So the prosecution case that on 8.8.1998 night the accused persons had assaulted the deceased & dragged her away is found to have not established by clear, cogent & acceptable evidence. The last seen theory as projected by the prosecution falls flat on the ground. 9. Now, the other circumstances regarding the Appellants' not remaining present in the meeting held in the village on the next day on arrival of P.W. 2 & recovery of dead body near the rivulet (nala) with ante mortem injuries all over the body & also the recovery of crowbar & underwear at the instance of Appellant No. 1 & it's seizure under Ext. 9 together with the recovery of chaddi & spring knife at the instance of Appellant No. 2 seized under Ext. 1 need consideration. Absence of the Appellants on the next day meeting itself is not a circumstance against them in the absence of any evidence that they were absent in the village during then. 9 together with the recovery of chaddi & spring knife at the instance of Appellant No. 2 seized under Ext. 1 need consideration. Absence of the Appellants on the next day meeting itself is not a circumstance against them in the absence of any evidence that they were absent in the village during then. Therefore under such circumstances, we are unable to accept the view that their absence in the meeting runs as a circumstance against them, more particularly when it is not the evidence of the prosecution that they had totally absconded on the face of the evidence of P.W. 13 (I.O.) that he traced the Appellants on 11.08.1998 in the village itself & when he does not say that on his search on 10.08.1998, they were not found in the village. Had the evidence been there about total abscondence or their presence in village still avoiding to attend the meeting or not attending being the front door neighbours of the deceased, the same could have to some extent taken as a circumstance against them. Next with regard to recovery of the dead body, it can be said that the miscreants having caused the death of the deceased with a view to conceal the dead body in order to give it a colour of missing, had buried it. But that itself cannot be taken as a circumstance pointing against the Appellants when no other evidence of such nature that they had dug the earth prior to putting the dead body inside or thereafter or had taken anybody to the place to give recovery of the dead body or such other conducts in that regard surface. The recovery of the articles as stated above at the instance of the Appellants has also nothing to do in the direction of pointing at the complicity of the accused persons when even on those articles no trace of blood has been found as per the report of chemical examination, Ext. 12. It has also not been stated by P.Ws. 7 & 8 in their evidence pointing to that very knife during trial which has been seized under Ext. 10 that it was so shown to them during that night when they protested seeing the Appellants assaulting & dragging the deceased. 12. It has also not been stated by P.Ws. 7 & 8 in their evidence pointing to that very knife during trial which has been seized under Ext. 10 that it was so shown to them during that night when they protested seeing the Appellants assaulting & dragging the deceased. In view of the discussions of evidence as above, we find that the circumstances have not been established by the prosecution beyond reasonable doubt by leading clear, cogent & acceptable evidence. Thus the finding of guilt of the Appellants for commission of offence under Section 302/201/34 IPC is liable to be set aside. Resultantly, the appeals stand allowed & the impugned Judgment of 'conviction & sentence is hereby set aside. The Appellants be set at liberty forthwith in case their detention is not required by the authority in any other case. P. Mohanty, J. I agree. Appeal allowed.