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2014 DIGILAW 853 (ORI)

Maharagi Sethi v. Republic of India

2014-12-10

D.DASH, PRADIP MOHANTY

body2014
JUDGMENT : D.DASH, J The appellant from inside the jail has challenged the judgment of conviction and the order of sentence passed by the learned Sessions Judge, Khurda at Bhubaneswar in S.T. Case No. 37 of 2003, convicting him for offence under sections 364,328 and 302 IPC and sentencing to undergo rigorous imprisonment for life for offence under Section 302 IPC and rigorous imprisonment for a period of five years for the offences under section 364 and 328 IPC each which are to run concurrently. 2. Case of the prosecution is that one Panchei Bewa being a widow was a resident of village Dhenkana. She had two daughters who were married and an adopted son namely, Matia Parida, P.W. 13. This P.W. 13 being her nephew had been adopted by Panchei. The grandson of the deceased Panchei and son of the appellant were two sworn friends (Sangata). On 02.05.2001, the appellant persuaded the deceased to accompany him to his father-in-laws house at village Adipada and for collection of mangoes and jackfruits from Sulia hill area on their way back home. On the next morning i.e. on 03.05.2001, around 6.00 am, the appellant and the deceased together boarded ‘Majhi Gouri’ bus plying from Deuli to Odagaon via Mahipur at Chakrabahuti Mandap stoppage of the village. Both alighted at Mahipur stoppage. The appellant then waylaid the deceased to Sulia hill. It is alleged that she was then administered Barbiturate a sedative, by the appellant who thereafter throttled her to death. It is further alleged that the appellant removed her gold ornaments such as a pair of nose studs (M.O.-I), a pair of ear stud (M.O.-II) and flung the dead body a top the hill. As the deceased did not return home, one Ghanashyam Pradhan and Chhatia Parida who have been examined during the trial as P.W. 7 and P.W. 22 respectively and who are none other than the son-in-law and nephew of the deceased, along with other villagers went for her search. On 06.05.2001, they found appellant at Deuli and brought him to village Dhenkana. At Dhenkana the appellant told them in presence of other villagers that he had sold the deceased for a sum of Rs. 500/-at Mahipur bus stand to one Govinda Parida and Laxman Jani of village Sanpada for the purpose of human sacrifice. On 06.05.2001, they found appellant at Deuli and brought him to village Dhenkana. At Dhenkana the appellant told them in presence of other villagers that he had sold the deceased for a sum of Rs. 500/-at Mahipur bus stand to one Govinda Parida and Laxman Jani of village Sanpada for the purpose of human sacrifice. Around 7.00 p.m. on 07.05.2001, Chhatia Parida (P.W. 22) lodged F.I.R at Malisahi police Out-Post under Nayagarh police station; where after Nayagarh P.S. Case No. 90 of 2001 for offence under Section 364 IPC was registered. On 22.05.2001, the recovery of the dead body was made from Sulia hill. It was first detected by Chhatia Parida (P.W. 22) and Matia Parida, (P.W. 13) and others. So on the very day at 2.00 p.m. Chhatia (P.W. 22) lodged a written report (Ext. 23) at Bahadajhola Police Out-Post under Odogaon police station, where after U.D. Case No. 01 of 2001 was registered. As per the direction of the Superintendent of Police Nayagarh, S.I. of Bahadajhola police Out-Post submitted the case record in U.D. Case No. 01 of 2001 to IIC, Nayagarh police station for reference and for being tagged with Nayagarh P.S. Case No. 90 of 2001 earlier registered. In the meantime, a writ application bearing OJC No. 8838 of 2001 had been filed by Ganeswar Parida (P.W. 6) before this Court and in the said writ application a direction was given to the CBI to take up the investigation of the case. On 02.09.2001, IIC, Nayagarh Police Station submitted charge-sheet against the appellant for offence under sections 364,328 and 302 IPC, in the Court of S.D.J.M., Nayagarh with a prayer for further investigation under Section 173(3) Cr.P.C. In view of the order of this Court passed in OJC No. 8838 of 2001, F.I.R. was drawn at the CBI’s office at Calcutta vide Ext. 31 and necessary case was registered on 23.10.2001. Direction was given to P.W. 25, who is the Inspector of CBI, to take up the investigation. Finally, on completion of the investigation, charge-sheet for the said offences was submitted against the appellant who accordingly faced the trial. 3. The appellant took the plea of complete denial during the trial. 4. From the side of the prosecution altogether twenty five witnesses were examined, none was examined from the side of the defence. Finally, on completion of the investigation, charge-sheet for the said offences was submitted against the appellant who accordingly faced the trial. 3. The appellant took the plea of complete denial during the trial. 4. From the side of the prosecution altogether twenty five witnesses were examined, none was examined from the side of the defence. The prosecution further proved a number of documents such as F.I.R., Ext.1; statements of witnesses recorded under section 164 Cr.P.C. Ext. 2 and 3; Postmortem examination report Ext. 5 and other important documents which would be referred to in course of discussion as and when necessary. 5. The trial court on analysis of evidence and their critical examination first of all arrived at a conclusion that deceased met a homicidal death holding the death to be due to throttling after administration of “Barbiturate”, a sedative drug. Thereafter, the trial court in the absence of any direct evidence with regard to the complicity of the appellant has gone to examine the circumstances as those emanate from the evidence on record and as to if those have been cogently and firmly established, having the definite tendency in unerringly pointing towards the guilt of the appellant. Next, the trial court finding those circumstances being joined forming a complete chain without any escape from the conclusion that within all human probability, the crime was committed by the appellant and none else leaving no acceptable explanation and other hypothesis than that of the guilt of the appellant, has found the appellant to have committed the above offences. Accordingly the appellant has been convicted thereunder and sentenced as stated above. 6. Learned counsel for the appellant submits that the prosecution has not been able to establish by leading clear, cogent and acceptable evidence that Panchei Bewa, deceased met homicidal death. It is his submission that the trial court has found ultimately that the death is not due to ingestion of “Barbiturate” but due to throttling and on that score he contends that when evidence of P.Ws. 8 and 17 are carefully read and analysed they do not establish the same. Learned counsel appearing for the C.B.I. refutes the said submission. Placing relevant paragraphs 4 and 5 of the judgment, he contends that the trial court on detail analysis of evidence has arrived at a positive conclusion as regards the death being due to throttling. 8 and 17 are carefully read and analysed they do not establish the same. Learned counsel appearing for the C.B.I. refutes the said submission. Placing relevant paragraphs 4 and 5 of the judgment, he contends that the trial court on detail analysis of evidence has arrived at a positive conclusion as regards the death being due to throttling. He has also in this connection placed the evidence of P.W. 17 and his opinion in the matter of death of Panchei. He further submits that the trial court’s finding on the score that Panchei met homicidal death is unassailable. 7. P.W. 8 is the Lecturer in F.M.T. Department of SCB Medical College and Hospital, Cuttack. He had conducted autopsy over the dead body of the deceased with another doctor, namely, Dr. S.K. Nayak. Autopsy was conducted at 4.30 p.m. of 23.05.2001 after the dead body was identified by the Grama Rakhi (P.W. 6) and another Constable of police. The dead body was then in a de-composed; mummified and partly skeletonized state having separated head and trunk. No ante-mortem injury on the dead body nor any disease or deformity was detected on the available parts of the dead body. P.W. 8 therefore could not form any definite opinion regarding the cause of death of the deceased in the absence of ante-mortem injury or deformity on the available parts of the body. So, he preserved the viscera for being sent to the Director, SFSL, Bhubaneswar for chemical examination. During chemical examination under report, Ext. 10, “Barbiturate”, a sedative drug was detected on the viscera of the deceased. In view of this, S.P., CBI, SCB, Calcutta made a request to Dr. Apurba Nandi, P.W. 17 then posted as Professor and Head of the Department, Forensic and State Medicine, R.G. Kar Medical College and Hospital, Calcutta by letter dated 19.07.2002 (Ext. 17). He sent questionnaires on Barbiturate and symptom of strangulation and throttling on the available parts of the body of the deceased. The report of postmortem examination and viscera examination report as well as photographs of the dead body of the deceased were enclosed. Then again by letter dated 07.11.2002 (Ext. 19) further reference was made to P.W. 17 who was then posted as Principal, Midnapur Medical College, Midnapur, West Bengal with questionnaire and case history for rendering opinion on the cause of death of the deceased. Dr. Then again by letter dated 07.11.2002 (Ext. 19) further reference was made to P.W. 17 who was then posted as Principal, Midnapur Medical College, Midnapur, West Bengal with questionnaire and case history for rendering opinion on the cause of death of the deceased. Dr. Nandi P.W. 17 submitted detail reply to the first questionnaire by Ext. 18 which he has also deposed during his examination in trial. The sum and substance of the report is that overdose of ‘Barbiturate’ can cause death. But that is not definitely stated to be the cause of death of Panchei. On the second questionnaire, he has also given the opinion vide Ext. 20. In his report as well as in his deposition then he is of the positive view that the death was on account of throttling. He has deposed that the deceased in the present case was throttled to death. In support of the same, it is his evidence that due to haemorrage at the neck part (though internal) and as the animals had eaten up that part, also the part being mostly soft (the neck part) causing separation from the head of the body with missing of neck and bones, no ante-mortem injury could be detected during postmortem examination. Further, his evidence is clear that the internal haemorrage at the neck part as noticed clearly suggests that the deceased was throttled to death and by his further explanation he has made it clear that absence of ante-mortem injury on account of the condition of the dead body at the time of postmortem examination under the circumstances is of no significance. He has further stated that Barbiturate might have been used to sedate the deceased so that the deceased would not be in a position to raise alarm and offer resistance while being brought to the place and also during throttling. In view of the fact that such medical evidence has remained un-shaken, their resistible conclusion stands that Panchei was throttled to death. The submission of learned counsel for the appellant is thus found to be having no force and is not countenanced. Therefore, the finding of the trial court on the above score that Panchei met a homicidal death being done to death by throttling is unassailable. 8. The submission of learned counsel for the appellant is thus found to be having no force and is not countenanced. Therefore, the finding of the trial court on the above score that Panchei met a homicidal death being done to death by throttling is unassailable. 8. Admittedly in the instant case, there is no direct evidence and no eye witnesses are there to establish the complicity of the appellant in the crime. It is the settled position of law that a conviction can be based upon 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 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 and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of conclusive nature and tendency. There must be a chain of evidence to 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 :-(Ref. in Sharad Birdhichand Sarda -Vrs-State of Maharastra – AIR 1984 SC 1622 ; Krishnam -Vrs-State represented by Inspector of Police – (2008) 15 SCC 430 ; Wakkar & Anr. -Vrs-State of U.P. – (2011) 3 SCC 306 ; Sk. Yusud -Vrs-State of W.B. AIR 2011 SC 2283 ;) The trial court has made a reference to a decision of the Apex Court in case of Padalveera Reddy v. State of Andhra Pradesh AIR 1990 SC 79 wherein the same principles have been enunciated. It may be stated here that the prosecution has also led evidence as regards extrajudicial confession of the appellant which of course has been retracted. 9. It may be stated here that the prosecution has also led evidence as regards extrajudicial confession of the appellant which of course has been retracted. 9. Learned counsel for the appellant submits that not only the circumstances relied upon by the trial court have been firmly established unerringly pointing to the guilt of the appellant with the standard proof of beyond reasonable doubt but also those do not complete the chain in such a way that it is not un-explainable by any other hypothesis than that of the guilt of the appellant. According to him those are also not consistent with the guilt of the appellant and in consistent with his innocence. So, he urges that the trial court did commit mistake in holding the complicity of the appellant in committing murder of Panchei preceeded by administration of Barbiturate after having been abducted her. Learned counsel for the CBI, placing each of the circumstances which emanates from the evidence on record counters the above submissions in ultimately arguing all in support of the finding of the trial court. He further submits that in this case, the extrajudicial confession of the appellant has also been proved and the evidence led on that score pass through all the acid tests so as to be relied upon in finding out the complicity of the appellant. Therefore, he contends that the judgment of conviction and order of sentence passed by the trial court do not suffer from any illegality so as to be interfered with. 10. In the backdrop of aforesaid submission, it is felt necessary first of all to examine the evidence of those important witnesses in support of the circumstances. The prosecution has examined P.W. 12 who is a village quack and resides at Dhenkana. His evidence is that he and few others used to sale seductive drugs. He has further deposed that on 03.05.2001 the appellant had gone to him for treatment and after he prescribed some medicines and gave those tablets to the appellant, he was further asked by the appellant to be provided with some seductive drugs which was declined by him as he was then not in possession of any of such drugs. P.W. 14 is a close door neighbour of the appellant. Her evidence is that the front door of their house faces each other. P.W. 14 is a close door neighbour of the appellant. Her evidence is that the front door of their house faces each other. She has further deposed that on 02.05.2001, the appellant and the deceased were talking on the verandah of the house of the appellant and she had heard then that the appellant was persuading the deceased to accompany him to the house of his father-in-law on the next day and to come back home after collecting mangoes and jackfruits from Sulia hill. It is further stated that though Panchei was reluctant to accept the proposal, still appellant was persuading. Then nephew of the deceased has examined as P.W. 6. He has stated that on 03.05.2001 around 5.30 to 6.00 am, Panchei left the house in the company of the appellant towards Chakrabahuti Mandap bus stop of the village. Next comes the evidence of P.Ws. 1 and 22 who have stated in clear terms that on 03.05.2001 around 6.00 am when they were sitting on Chakrabahuti Mandap of the village which is a bus stop and where Majhi Gauri Bus stops they found Panchei and the appellant waiting for the bus there. They have stated that around 6.15 am, the bus arrived and both boarded the bus which proceeded towards Mahipur. A passenger of the bus having been examined as P.W. 20, he has also deposed that she was travelling in the bus during morning hour from Gudupani to Nadiali. Panchei and the appellant boarded the bus of Dhenkana bus stop. Her evidence is also very natural, when she says that she had conversation with the deceased who told her that she was travelling to Mahipur. The witness has further deposed that at Mahipur, the appellant and the deceased alighted from the bus and walked towards Bahadajhola side. The evidence of above witnesses are found to be quite natural and trustworthy, when they have all deposed as regards the movement of the appellant with the deceased. They have also deposed as to how those could be marked or seen by them which provide the real strength. In spite of cross-examination there surfaces no such material to doubt the testimony of above witnesses i.e., P.Ws. 12, 14, 6, 1, 22 and 20 on the above aspect of movement of appellant and also as regards their presence at those places wherefrom they had seen. In spite of cross-examination there surfaces no such material to doubt the testimony of above witnesses i.e., P.Ws. 12, 14, 6, 1, 22 and 20 on the above aspect of movement of appellant and also as regards their presence at those places wherefrom they had seen. In course of hearing of appeal, the learned counsel for the appellant has also failed to draw the attention of this Court to any such materials or circumstances to doubt the testimony of above witnesses, when also there remains no such reason on their part to falsely rope in the appellant. So the evidence as discussed above, establish the circumstances that – on 02.05.2001 during noon hour, the appellant was persuading the deceased in front of his house to accompany him to his father-in-law’s place at Adipada alluring her that they would be bringing mango and jackfruit from Sulia hill, while returning back home; that on 03.05.2001 morning Panchei was found leaving the village in the company of the appellant boarding ‘Majhi Gouri’ bus from the village bus stop and alighting at Mahipur bus stop and thereafter to have walked together towards Bahadajhola side. Now the doctor conducting the autopsy over the dead body on 23.05.2001 has opined the death to have occurred within 2 to 4 weeks prior to that. This puts the date of death almost close to the day, the appellant and Panchei were last seen together. It is the settled position of law that last seen theory comes into play when the time gap between point of time when the appellant and the deceased were last seen alive and the time of death is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The appellant having taken the plea of total denial is not giving any explanation about these circumstances during his examination under section 313 Cr. P.C. and on detail analysis of evidence of above witnesses, these circumstances firmly stand against the appellant which unerringly point at the guilt of the appellant. 11. In addition to the above, next stands the circumstance as regards the disclosure of the appellant said to have been made that he had sold the deceased at Mahipur crossing at Rs. 500/-to one Gavinda Parida and Laxman Jani for human sacrifice. 11. In addition to the above, next stands the circumstance as regards the disclosure of the appellant said to have been made that he had sold the deceased at Mahipur crossing at Rs. 500/-to one Gavinda Parida and Laxman Jani for human sacrifice. P.W. 22 is the witness who had testified about this and so also P.W. 7. P.W. 22 is the nephew of the deceased whereas the P.W. 7 is her elder son-in-law. Both have stated that as the deceased did not return home, they went in search of her at different places but failed to trace out. It has been further deposed by them that on 06.05.2001, they traced out the appellant at village Deuli and brought him to Dhenkana where on being questioned the appellant disclosed to have left the deceased with one Govinda Parida and Laxman Jani for human sacrifice which has been later on found to be false as per the following discussion. P.Ws, 2, 4 and 22 have stated that on 07.05.2001 while in police custody the appellant led them and the police to Sulia hill for giving recovery of the dead body but suddenly changed the mind and returned half way, when it is there in the evidence of P.W. 14 that appellant while persuading the deceased to go was alluring her that they would collect mangoes and jackfruits from Sulia hill. In view of this, the evidence which emerges that initially the appellant wanted to take police and P.Ws. 2, 4 and 22 to give recovery of the dead body and then changed his mind is of great significance and is another circumstance against the appellant when the dead body was finally recovered from Sulia hill and also this earlier statement about handing over the deceased for human sacrifice becoming false. The evidence of P.W. 23 now becomes important. He has deposed that dead body of the woman was found lying at the Sulia hill with head being separated from the trunk. With such information P.W. 22 and 13 went there and found the dead body of Panchei lying with two iron rings on her finger, the ‘Brata’ which she used to wear and also gold necklace. The explanation of the appellant as regards the sale of deceased apparently appears to be false and that becomes a circumstance pointing at the guilt of appellant. Appellant’s wife has been examined as P.W. 21. The explanation of the appellant as regards the sale of deceased apparently appears to be false and that becomes a circumstance pointing at the guilt of appellant. Appellant’s wife has been examined as P.W. 21. She has stated to have found a pair of gold ear stud and a pair of gold nose studs marked M.O. I and II respectively kept concealed inside the rice which appellant had carried from her father’s place. About carrying of the rice, P.W. 4 has seen the appellant coming carrying a bundle. This P.W. 21, the wife of the appellant at that time, was in father’s place and had given that bundle of rice to the appellant when he returned. These ornaments have been identified specifically by the P.Ws. 15 and 22 belonging to the deceased and P.W. 21 further admits to have produced M.O.-I and II, before the I.O., CBI-P.W. 25. So this recovery of ornaments of the deceased stands as another strong circumstance against the appellant pointing at his guilt especially when no such explanation is being offered. All these circumstances thus proved being joined together certainly form a chain so complete that there emerges no other explanation and other hypothesis than that of the guilt of the appellant and those are not only consistent with the guilt of the appellant but also wholly in consistent with appellant’s innocence. 12. Now comes the evidence of P.W. 3 who is none other than partner of the appellant in his work field. He has deposed that after the disappearance of Panchei, the appellant had confessed before him when they reached at the tank of the village Mangrajpur, to have taken the deceased Mahipur by Majhi Gouri bus to Lingiribadi by Bahadajhola and then taking her to Lingiribadi forest on the pretext of collecting mangoes to have throttled her to death while taking away her gold ornaments. It is also the evidence of P.W. 25 that the river that flows at Lingiribadi is at the foot hills of Sulia. So the confusion gets well clarified. There arises every reason for the appellant to repose confidence upon P.W. 3 who has also no animosity with the appellant and rather has been a very good friend of him. It is also the evidence of P.W. 25 that the river that flows at Lingiribadi is at the foot hills of Sulia. So the confusion gets well clarified. There arises every reason for the appellant to repose confidence upon P.W. 3 who has also no animosity with the appellant and rather has been a very good friend of him. His evidence as above also receives due corroboration from the factum of recovery of gold ornaments and their seizure and also the medical evidence as regards the cause of death to be throttling. The witnesses also appear to be truthful witnesses and nothing has been placed before this Court to taste it with a pinch of salt and raise any doubt on the veracity. In view of all these, we find that the conviction of the appellant for offence under Section 302 of I.P.C. as recorded by trial court is based on proper appreciation of evidence and with their acceptance by assigning sound reason. This Court as discussed above has also gone to independently analyze the evidence by putting those to further critical examination and arrives at the same conclusion as that of the trial court. 13. Relying upon the evidence of P.W. 14 and the other evidence as discussed above, the finding of the trial court that the appellant by deceitful means took the deceased to Sulia hill for committing her murder and robbing her gold ornaments is thus found to be unassailable. Evidence of P.W. 12 is also clear on the score that the appellant was in search of seductive drugs. In the viscera of the deceased presence of the same has been found during the chemical examination as reported vide Ext. 10. So also the evidence of P.W. 17 is that “barbiturate” was administrated to the deceased in smoothly taking her to the place of occurrence to see that there remains no resistance of any kind whatsoever. All these lead us to confirm the conviction for offence under Section 328 I.P.C. In view of the nature and gravity of the offences and the manner of commission of crime, this Court finds no ground to interfere with the order of sentence. 13. In the result, the appeal fails and the same thus stands dismissed.