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2014 DIGILAW 794 (ORI)

Basan @ Bhaskar Chandra Mishra v. State of Orissa

2014-11-25

PRAMATH PATNAIK, VINOD PRASAD

body2014
JUDGMENT PRAMATH PATNAIK, J. 1. This jail criminal appeal has been preferred against the impugned judgment dated 31.07.2004 passed by the learned Adhoc Additional Sessions Judge, Fast Track, Khurda in S.T. Case No. 35/19/186 of 2003/2002 convicting the appellant under Section 302, I.P.C. and sentencing him to undergo imprisonment of life and further to pay a fine of Rs.5,000/- and in default to undergo additional R.I. for six months. 2. Bereft of unnecessary details, facts leading to the prosecution case in a nut-shell are that on 27.03.2002 at about 9.00 A.M. on hearing gruesome murder on the Sarua-Kumbhilo road of a young married lady within the age group of 27 to 30 years, the informant Grama Rakhi of the village went to the spot and found severe cut injuries on the neck and head of the woman wearing a printed red colour saree and red blouse. One silver paunji was on her leg. While one ear flower was intact and other one was broken. One paunji, some broken bangles, hair clip were lying nearby. One blood stained katuri and a knife were also lying at a distance of 75 to 100 feet. Since the woman being an outsider, the villagers including the informant could not identify her. 3. The report was received by the I.I.C. at the spot which was treated as F.I.R. and a case was registered. The I.I.C. Khurda Police Station having visited the spot, took up the investigation and made inquest over the dead body in presence of the Magistrate. The objects lying near the spot was seized. The dead body was sent for post mortem examination. The investigation disclosed that the accused had landed in the village on the previous night with a woman and a small child. On the next morning they were found absent and the villagers apprehended that the said woman might have been killed. The child was found on the verandah of a villager and was taken by another person to foster her as his daughter. The parents of the deceased woman were traced out at Patharabandha, Bhubaneswar under Saheed Nagar Police Station. From the photographs produced before them they identified their slained daughter who is the wife of the accused and they came to the mortuary at Khurda. The parents of the deceased woman were traced out at Patharabandha, Bhubaneswar under Saheed Nagar Police Station. From the photographs produced before them they identified their slained daughter who is the wife of the accused and they came to the mortuary at Khurda. Parents cremated the dead body of their daughter and also identified the child in the house of Laxmidhar at Sarua to be their grand daughter. Thus, the accused was arrested and he gave recovery of some more articles, while in custody, kept hidden near the spot under a bush. The link having been established during the investigation, the accused was forwarded to the court having killed his wife and ultimately charge sheet was submitted under Sections 302/201, I.P.C. against the present appellant. 4. The defence plea is of complete denial of all the allegations. 5. In order to prove its case, the prosecution has examined as many as 16 witnesses to bring home the charge against the accused that he had committed the murder by intentionally causing death of the deceased Gayatri Mishra @ Mallika Sabar and intentionally caused to disappear the evidence of murder with the intention of screening off himself from legal punishment. 6. The trial court which tried the case convicted the present appellant basing on the circumstantial evidence indicating that the chain of links having been established which are inconsistent with the plea of innocence of the accused and which unerringly point out the present appellant to be the author of the crime and therefore sentenced him to undergo imprisonment for life. 7. Being aggrieved with the said judgment, the appellant has preferred the present appeal. Mr. Rabindra Nath Nayak, learned counsel for the appellant has assailed the judgment mainly on the following grounds:- (i) That the entire case of prosecution which is built up on circumstantial evidence, no incriminating material is forthcoming from the evidence of prosecution witnesses to fasten guilt on the accused. (ii) Since the motive for commission of murder has not been proved by the prosecution, the conviction cannot be sustained basing upon circumstantial evidence. 8. On the other hand, Mr. D.K. Mishra, learned Additional Government Advocate vehemently contends that the evidence of P.Ws.1 and 5 have proved that the accused got down from the bus “Deepak & Deepak” along with a woman and a child. 8. On the other hand, Mr. D.K. Mishra, learned Additional Government Advocate vehemently contends that the evidence of P.Ws.1 and 5 have proved that the accused got down from the bus “Deepak & Deepak” along with a woman and a child. In addition P.W.1 has stated that he saw the accused with the woman and the child knocking the door of the house of Sapani and then entered inside, who is the neighbour of P.W.1. He further submits that the evidence of P.Ws. 2, 3, 4, 10 and 12 revealed that a female child of one year age was found crying in the verandah of P.W.10. P.W.12 took the child from P.W. 10 who is now his foster child. He further stated that the evidence of P.Ws. 13 and 14 that their daughter was very often complaining about the ill treatment by the accused since the deceased belonged to S.T. community. He further submitted that a few days before the alleged occurrence the accused had come to their house and told that either he would kill his wife or would kill himself and two days before Dola Purnima he came and told that he was going with Gayatri to attend thread ceremony. That was the occasion when P.Ws. 13 and 14 had last seen the accused and their daughter together. Learned counsel for the State supports the conviction recorded by the learned trial court and submits that the impugned order of conviction and sentence does not warrant any interference by this Court. 9. We have perused the lower court record and gone through the evidence of the prosecution witnesses minutely. At the outset, it may be noted that none has disputed that the death of the deceased was a homicidal one. P.W.1 is the neighbour of Sapani who happens to be the brother of the accused. In his examination-in-chief, he has stated that on 26.03.2002 at about 9.30 P.M. when he was sitting on his Danda Duar he saw the accused along with another woman carrying a child knocking the door of Sapani. He had not noticed as to who opened the door of house of Sapani. He saw accused and that woman carrying the child entering inside the house of Sapani. Thereafter, P.W.1 went inside his house, closed the door and slept. He had not noticed as to who opened the door of house of Sapani. He saw accused and that woman carrying the child entering inside the house of Sapani. Thereafter, P.W.1 went inside his house, closed the door and slept. In the next morning he woke up and heard that woman had been murdered and that her dead body was found at a distance of 1½ K.Ms. from the house of Sapani. He went there and saw the dead body lying at the spot from a distance. Out of fear he came back and he had not noticed the identity of that woman since she had put a veil on her head while entering the house of Sapani. On the next morning he did not find accused and that woman with the child. He had not noticed what type of saree and other apparels that woman was wearing on the previous night. P.W.2 has stated that on 27.03.2002 at about 5.00 A.M. morning, she along with sister-in-law woke up from sleep and opened the door and saw a daughter aged about one year sitting on her pinda and crying. P.W.3 has corroborated the statement of P.W.2. P.W. 4 has stated that one female child aged about one year has been brought by his son from one Pravakar Rana (P.W.12). P.W.5 has also corroborated the statement of P.W.1 that the accused along with a woman and a child alighted from the bus “Deepak & Deepak” on 26.3.2002 at 9.00 P.M. P.W.6, the Grama Rakhi lodged F.I.R. and stated in his examination-in-chief that on 27.03.2002 at about 9.00 A.M. he went to the spot in the cashew field and saw the dead body of a woman aged about 26 or 27 years old with her neck cut. He also saw a vegetable cutting knife and a katari lying at a distance on the eastern side. The woman was wearing red saree, red blouse with vermilion on her head. One of her ear rings was broken and she was wearing a brata and bangles, one hair clip. He reported the matter at the Police Station. Police came to the spot and he lodged written F.I.R. at the spot, which was marked as Ext.1 and Ext.1/1 in his signature. In cross-examination he has stated that he has put his signature on the F.I.R. written by the police. He reported the matter at the Police Station. Police came to the spot and he lodged written F.I.R. at the spot, which was marked as Ext.1 and Ext.1/1 in his signature. In cross-examination he has stated that he has put his signature on the F.I.R. written by the police. He does not remember who scribed the F.I.R. He does not know the accused in dock. Contents of the F.I.R. was not read over and explained to him. P.W.7 is the resident of the village of maternal uncle of the accused. In the examination-in-chief he stated that the occurrence took place at about two years back. He was going to village Patanibara to conduct a Shradha and on the way by the side of the Kumbhila-Patanibara road he saw many persons had gathered. When he went near he found a dead body of a female was lying by the side of the road. She was wearing a red colour saree, saya and blouse. He saw broken pieces of glass bangles, one paunji of the lady was lying at a distance, another paunji was on her leg, a Katuri was lying at about 50 feet away from the road near a cashew nut tree to the east and a blood stained knife was lying on the western side on a land. After sometime police arrived at the spot. Police called the Grama Rakhi, verified the articles found near the dead body around and seized the same. Seizure list was prepared as Ext.2 and he signed thereon. Ext.2/1 is his signature. The dead body was also verified by the police. Inquest was made, he found the neck of the lady was cut by a sharp cutting weapon. A major portion of neck from the front side was cut. A small red colour tikili was on her fore head. Other parts of her body had also scratches and injuries. Inquest report was prepared as Ext.3 and he signed thereon. Ext.3/1 is his signature. The female was within age group of 25 to 30 years. P.W.8 is a seizure witness as per Ext.4 and his signature is Ext.4/1. P.W.9 is also a seizure witness of Ext.4/2. P.W.10 has stated that after returning from his threshing floor his wife and sister told him that some one had left a one year old child on his verandah and that child was crying. P.W.8 is a seizure witness as per Ext.4 and his signature is Ext.4/1. P.W.9 is also a seizure witness of Ext.4/2. P.W.10 has stated that after returning from his threshing floor his wife and sister told him that some one had left a one year old child on his verandah and that child was crying. In the morning one Laxmidhar Patnaik took the child and the child is now staying with the said Laxmidhar Patnaik as his foster daughter. P.W.11 is the Doctor, who along with Dr. P.C. Mishra had conducted post mortem examination. According to P.W. 11 the uterus was found to contain a seven month dead male fetus. No injury was caused to birth canal. All other organs like liver, kidneys, spleen heart and lungs were intact. No fracture of skull was detected, stomach contained about 200 c.c. of undigested food materials, smelling slower, gas was formed in the intestine and perinorium. Death had occurred about 22 to 48 hours from the time of post mortem examination. Visera was preserved for chemical examination. Finger tips were preserved for identification. Foetal blood was preserved for grouping and identification. Cause of death was due to the cut of the throat and completely resection of both carotid arteries of both sides of neck. Because of severe hemorrhage and shock due to the cutting of both the arteries there would have be instant death. The clarification was sought for by the I.O. as to if the cut injuries can be caused by knife and laceration of skull can be caused by the handle of Katuri, which were in affirmative. P.W.12 has stated that he volunteered and took the child with him. One Laxmidhar Patnaik asked him to take the child since he had no daughter so he took the child from him. She is there with him as his foster daughter. P.Ws.13 and 14 are the parents of the deceased. They stated in their examination-in-chief that they were staying at Cuttack near over bridge and nearby the appellant accused was having a betel shop. While staying there the appellant accused developed relationship with their daughter deceased Gayatri and eloped with her. They searched but they could not get any trace of them. After 6 to 7 years they returned with a son. By then they were staying at Patharabandha at Bhubaneswar. While staying there the appellant accused developed relationship with their daughter deceased Gayatri and eloped with her. They searched but they could not get any trace of them. After 6 to 7 years they returned with a son. By then they were staying at Patharabandha at Bhubaneswar. Four issues were born to the appellant accused and deceased Gayatri out of them two died after 4 to 5 months of their birth. Of the rest two, one son is with them and the daughter is at village Sarua with a man whose name they do not know. That man is fostering her at his daughter. They further stated that they were staying at Patharabandha coming from Cuttack since last many years. At Patharabandha they were staying on one side of Nala and the appellant accused was staying on the other side of Nala. Their daughter was frequently coming to their house and complaining about the assault on her by the appellant accused. One day the appellant accused came and told that either he would murder their daughter or would kill himself. About 15 days before the death of their daughter the appellant accused had come to their house with deceased Gayatri and their son and told them that they were going to attend a thread ceremony and left their son with them. They were informed by the police regarding murder and they had came to Khurda at the time of post mortem examination of their deceased daughter. The Police had told them that they had already sent the dead body to the cremation ground, so they had gone and cremated the dead body. The photographs of deceased Gayatri are Ext.7 and Ext.7/1. Prior to her death they knew that she was pregnant. She was carrying foetus of about 7 to 8 months. P.W.15 received the F.I.R. from the I.I.C. and registered the case under Section 302, I.P.C. P.W.16 is the I.I.C. Khurda Police Station who had conducted the inquest over the dead body in presence of witnesses and had prepared the inquest report Ext.1/3. 10. The sole question to be determined/answered in this appeal is whether the prosecution has proved its case against the appellant beyond all reasonable doubts basing on circumstantial evidence? 11. As we know the circumstantial evidence must form a complete chain pointing guilt of the accused excluding other probabilities. 10. The sole question to be determined/answered in this appeal is whether the prosecution has proved its case against the appellant beyond all reasonable doubts basing on circumstantial evidence? 11. As we know the circumstantial evidence must form a complete chain pointing guilt of the accused excluding other probabilities. Following conditions precedent before conviction on the basis of circumstantial evidence must be fully established. The conditions are stated herein below: (a) The circumstances from which the conclusion of guilt is to be proved should be fully established. The circumstances concerned must be and not may be established. (b) The facts so established should be consistent only with the hypothesis of guilt of the accused that is to so they should not be explainable on any other hypothesis except that the accused is guilty. (c) The circumstances should be of a conclusive nature and tendency. (d) They should exclude every other possible hypothesis except the one to be proved and (e) 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 probabilities, the act must have been done by the accused. 12. In Mohan Lal Pangasa vs. State of Uttar Pradesh, AIR 1974 SC 1144 : 1974 Crl. LJ 800, the Hon’ble apex Court held that it is trite law that when the evidence against an accused person, particularly when he is charged with a grave offence like murder, consists of only circumstances and not direct oral evidence, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty, not fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from the probative force of facts and circumstances. 13. In Umedbhai Jadavbhai vs. State of Gujarat, AIR 1978 SC 424 : (1978) SCR 471: (1978) Crl. LJ 489, the Hon’ble apex Court held that it is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. LJ 489, the Hon’ble apex Court held that it is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case. 14. In the case at hand, from the evidence of P.Ws.1 and 5 it transpired that the appellant along with the deceased and child got down from the bus in the previous night of the alleged occurrence and went to the residence of Sapani the sister of the appellant. The Sapani’s where about has not been traced out till the conclusion of the trial. The presence of the accused appellant with the deceased wife and child on the previous night of ill fated date could not have been considered as incriminating conduct so as to fasten the guilt on the appellant when no motive could have been ascribed to the appellant for commission of alleged offence of murder. Moreover the culpability of the appellant and the liability for committing the crime could only be fastened on him subject to discharge of burden of prove by the prosecution satisfactorily. 15. Another significant aspect which is lacking in the present case is the absence of motive. Intention or knowledge being a man’s state of mind cannot be proved by direct evidence thereof, except through his own confession. In the absence of such a confession they can be proved only by circumstantial evidence. In other words, these are matters of inference from all the circumstances available in a case. Such circumstances may well be motive, the preparation made, the declaration, if any, made by the offender at the time of commission of the offence, the weapon used, the nature of the injuries inflicted. In the case at hand, the record is completely silent as to why the appellant did the act. It is true that in a case where the available ocular testimony is reliable, absence of motive loses significance. In the case at hand, the record is completely silent as to why the appellant did the act. It is true that in a case where the available ocular testimony is reliable, absence of motive loses significance. But in the instant case since the entire prosecution case is based on circumstantial evidence, the question of motive becomes the matter of primary importance. The absence of motive is a circumstance which favours the appellant apart from lack of incriminating materials against the appellant. 16. Both the appellant and the deceased were husband and wife. They were going together to participate in a function at the house of the sister of the appellant-accused. By any hypothesis it cannot be considered to be an incriminating circumstance. A circumstance to be incriminating must emerge from a hostile atmosphere, which is not in the evidence led in this case. Further, the utterances by the accused appellant to the parents of the deceased that either he will kill himself or will murder his wife may be the utterance of spontaneous out-burst because of frustration between the husband and wife. Since this is a common factor and there was no other instance reported, the said aspect also cannot be considered to be an incriminating circumstance against the appellant. After the said utterance, both the appellant and the deceased had come to the house of the parents of the deceased where they had left their male child and then they had gone to participate in the ceremony at the house of the appellant’s sister. The dress of the wife which she was wearing at the time of the incident does not indicate that she had left the house in a dejected mood. Further the appellant had left the child at the Veranda of one of the persons. This obviously indicates that he was not having any intention to commit murder of his wife otherwise he could have left his girl child also with the parents of the deceased. It is quite possible that some other person might have committed murder of the deceased and due to fear, the appellant left the child to save himself from the clutches of the culprit and escape though darkness. No finger prints etc. and blood stain attires of the appellant was found so as to nail him in the crime. It is quite possible that some other person might have committed murder of the deceased and due to fear, the appellant left the child to save himself from the clutches of the culprit and escape though darkness. No finger prints etc. and blood stain attires of the appellant was found so as to nail him in the crime. In absence of motive and the factors recorded herein above, not forming a complete chain of events, therefore we are unable to conclusively find the guilt of the appellant established beyond all reasonable doubt. 17. Taking into account the cumulative effect of all the circumstances and weighing them as an integrated whole, we have no hesitation to come to the findings that the prosecution has not been able to prove the case beyond all reasonable doubts and the appellant is entitled to the benefit of doubt due to lack of clinching and unimpeachable evidence. 18. In view of our discussion and in view of the facts and circumstances discussed above, we are not able to agree with the findings of the learned trial court. We hold that the prosecution has not established the case against the appellant beyond all reasonable doubt. 19. In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence is set aside and the appellant is acquitted of the charge under Section 302, I.P.C. He shall be set at liberty forthwith, if not required, in connection with any other offences. The appeal is allowed.