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2016 DIGILAW 11 (ORI)

Muguri Kulusika v. State of Orissa

2016-01-05

S.K.SAHOO, VINOD PRASAD

body2016
JUDGMENT : S.K. Sahoo, J. The appellant Muguri Kulusika was charged under section 302 of Indian Penal Code by the learned Sessions Judge, Koraput at Jeypore in Criminal Trial No. 241 of 2003 for committing uxoricide i.e. murder of his wife Anadin Kulusika (hereafter ‘the deceased’) on 10.01.2003 in between 9 p.m. to 10 p.m. at Biriamba Jholla on the G.P. road in between Marichaguda and Laresh village. The learned trial Court found the appellant guilty under section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.3000/-, in default, to undergo rigorous imprisonment for one year. 2. The prosecution case, as per the oral first information report given by Prabhudan Khosla (P.W.2) at Dasamantpur Police Station on 11.01.2003 is that the informant was working as a Gramarakshi and on 10.01.2003 he had come to his duty at about 4.00 p.m. and remained in the Police Station in the night. On 11.01.2003 at about 7.00 a.m. while the informant along with another Gramarakshi namely Alban Khosla (P.W.3) were proceeding towards river to attend the call of nature, on the way near Durgamandap of village Dasmantpur, the appellant approached them and told that on the previous day at about 9.00 p.m. while he was returning to the village from Dasmantpur weekly market with his wife (deceased), near Bariamba Jholla in between Marichaguda and Laresh village, a quarrel ensued between them and he threw the deceased on the ground holding the tuft of her hair and strangulated her and kicked her for which she expired. The appellant further told that the cadaver of the deceased was lying at the spot and out of fear being killed by the relations of the deceased, he had not gone to his village and came to village Dasmantapur. The other Gramarakshi namely Alban Khosla who was accompanying the informant also heard about such confession of the appellant. The Officer-in-charge of Dasamantapur Police Station namely Goura Nayak (P.W.9) reduced the oral information into writing and drew up the written report (Ext.1) and himself took up investigation. During course of investigation, the I.O. examined the informant, visited the spot and prepared spot map Ext.7. He conducted inquest over the dead body and prepared inquest report Ext.3. He seized one slipper and broken pieces of glass bangles and hairs of the head under seizure list Ext.2. During course of investigation, the I.O. examined the informant, visited the spot and prepared spot map Ext.7. He conducted inquest over the dead body and prepared inquest report Ext.3. He seized one slipper and broken pieces of glass bangles and hairs of the head under seizure list Ext.2. He sent the dead body for post mortem examination to Dasamantapur C.H.C vide dead body challan Ext.5 and command certificate Ext.8 through Constable No.22 Ramesh Chandra Pradhan (P.W.8). He arrested the appellant on 11.01.2003 and forwarded him to Court on the next day. He received post mortem examination report and after completion of investigation submitted charge sheet against the appellant on 22.04.2003 under section 302 of Indian Penal Code. 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 302 of Indian Penal Code on 18.11.2003 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. During course of trial, in order to prove its case, the prosecution examined nine witnesses. P.W.1 Gadiamali Muduli stated that he saw the appellant and his wife in the night in the weekly market while they were returning home. He was declared hostile by the prosecution. P.W.2 Prabhudan Khosla is the Gramarakshi who is the informant in the case and he stated about the extra judicial confession of the appellant before him and P.W.3. P.W.3 Alban Khosla is another Gramarakshi who also stated about the extra judicial confession of the appellant before him and P.W.2. P.W.4 Mohan Patra Hial stated that in Dasamantapur Police Station, during interrogation, the appellant confessed to have committed the murder of the deceased. P.W.5 Laba Saunta stated that he had seen both the appellant and the deceased returning home from the Friday weekly market. He is also a witness to the seizure of chappals of the deceased and appellant, glass bangles of the deceased so also the hairs of the deceased under seizure list Ext.2. He is also a witness to the inquest over the dead body and preparation of inquest report Ext.3. He is also a witness to the seizure of chappals of the deceased and appellant, glass bangles of the deceased so also the hairs of the deceased under seizure list Ext.2. He is also a witness to the inquest over the dead body and preparation of inquest report Ext.3. P.W.6 Rusikes Bissoi @ Narasingha stated that he saw the appellant sitting on the Verandah of Dasamantapur Police Station and when he asked the appellant as to why he was detained in the Police Station, the appellant told him that as the deceased died, police had called him to the Police Station. He was declared hostile by the prosecution. P.W.7 Dr. Srimanta Kumar Pattanaik was the Medical Officer of Dasamantapur C.H.C. and he conducted post mortem examination over the cadaver of the deceased on 11.01.2003 and proved his report Ext.4. According to the doctor, the cause of death was due to throttling of neck. P.W.8 Ramachandra Pradhan was the police Constable attached to Dasamantapur Police Station who carried the dead body for post mortem examination and after the post mortem examination was over, he brought and produced the wearing apparels of the deceased which were seized under seizure list Ext.6. P.W.9 Goura Naik was the Officer-in-charge of Dasamantapur Police Station who is the Investigating Officer in the case. The prosecution exhibited eight documents. Exts.1 is the report of P.W.2 written by P.W.9, Ext.2 is the seizure list, Ext.3 is the inquest report, Ext.4 is the post mortem examination report, Ext.5 is the dead body challan, Ext.6 is the seizure list, Ext.7 is the spot map and Ext.8 is the command certificate. The prosecution also proved three material objects. M.O.I is the Saree, M.O.II is the Saya and M.O.III is the Blouse of the deceased respectively. 5. The defence plea of the appellant was one of denial and it was pleaded that he has been falsely entangled in the case. 6. The learned trial Court has been pleased to hold that the evidences of P.W.2 and P.W.3 are corroborated by the medical evidence. The nature of assault committed by the appellant indicates his intention to commit the murder and accordingly the learned trial Court held the appellant guilt under section 302 of Indian Penal Code. 7. 6. The learned trial Court has been pleased to hold that the evidences of P.W.2 and P.W.3 are corroborated by the medical evidence. The nature of assault committed by the appellant indicates his intention to commit the murder and accordingly the learned trial Court held the appellant guilt under section 302 of Indian Penal Code. 7. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.3, the prosecution has also relied upon the evidence of P.W.7 Dr. Srimanta Kumar Pattanaik who was attached to Dasamantapur P.H.C. as Medical Officer and he conducted post mortem examination over the cadaver of the deceased on 11.01.2003 and found that the rigor mortis were present on both leg and hand and there was bleeding from the nose. He found one bruise mark of size 1” X 1” over the right side of upper abdomen and depressed bruise of 2 cm. wide over the front side of neck. On internal examination, he found the trachea to be fractured and he opined the cause of death due to throttling over neck. The injuries were opined to be ante mortem in nature. He proved the post mortem examination report Ext.4. The learned counsel for the appellant has not challenged the finding of the post-mortem report. The learned trial Court though has not given any specific finding regarding the acceptance of the opinion of the doctor regarding cause of death of the deceased but it seems that he has nowhere deferred from such opinion. After perusing the evidence on record, the postmortem examination report Ext.4 and the statement of P.W.7 Dr. Srimanta Kumar Pattanaik, we are of the view that there is no dispute regarding the cause of death of the deceased due to throttling of the neck which is homicidal in nature. 8. Mr. Sambhucharan Nath Sharma, learned counsel for the appellant submitted that the extra judicial confession which is stated to have been made before two Gramarakshis is neither voluntary nor acceptable in the eye of law. He further contended that the contents of the extra judicial confession as has been narrated in the First Information Report by P.W.2 is contradicted by the statements made to that effect in Court and the medical evidence also runs contrary to the extra judicial confession part as has been deposed to by those two witnesses in Court. He further contended that the contents of the extra judicial confession as has been narrated in the First Information Report by P.W.2 is contradicted by the statements made to that effect in Court and the medical evidence also runs contrary to the extra judicial confession part as has been deposed to by those two witnesses in Court. He further contended that there was no motive behind the commission of the crime and the chain of circumstances being not complete, the appellant is entitled to get benefit of doubt. Mrs. Saswata Patnaik, learned Addl. Government Advocate conversely argued that the appellant and the deceased were last seen together while returning from the weekly market on Friday which was the day of occurrence and the contents of the extra judicial confession made before P.W.2 clearly indicates the motive behind the commission of the crime. The learned counsel further urged that since the extra judicial confession made before Gramarakshi is admissible and there was no earthly reason on the part of P.W.2 and P.W.3 to falsely depose against the appellant, the learned trial Court is quite justified in convicting the appellant for committing murder of his wife. 9. Admittedly in this case there is no direct evidence as to who committed the crime, when it was committed or how it was committed. The case rests upon circumstantial evidence. The law relating to circumstantial evidence no longer remains res integra. Circumstantial evidence means the evidence afforded not by the direct testimony of an eye witness to the fact to be proved, but by the bearing upon that fact or other subsidiary facts which are relied upon as inconsistent with any result other than truth of the principal fact and from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. The law relating to proof of a criminal charge by means of circumstantial evidence is that the circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should not only be consistent with the hypothesis of the guilt of the accused but should be inconsistent with his innocence and such circumstances should be of a conclusive nature and tendency and they should exclude any other possible hypothesis except the one to be proved. The facts should not be explainable on any other hypothesis. The facts so established should not only be consistent with the hypothesis of the guilt of the accused but should be inconsistent with his innocence and such circumstances should be of a conclusive nature and tendency and they should exclude any other possible hypothesis except the one to be proved. The facts should not be explainable on any other hypothesis. Whether the accused has explained it or not is not very material. If the circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. It does not mean that any extravagant hypothesis would be sufficient to sustain the principle, but the hypothesis suggested must be reasonable. Prosecution is not required to meet any and every hypothesis put forward by the accused however farfetched and fanciful it might be. The chain of evidence must be so complete as not to leave any reasonable ground for the conclusion consistent to the innocence of the accused and it must show that in all human probability the act must have done by the accused. Circumstantial evidence must be a combination of facts creating a net work through which there is no escape for the accused because the facts taken as a whole do not admit any inference but of his guilt. While it is true that there should be no missing links in the prosecution case, it is not the law that every one of the links must appear on the surface of the evidence adduced. Some of these links may have to be inferred from the proved facts. While appreciating such cases, there is always a danger that conjecture or suspicion may take the place of legal proof and as such the Court must be watchful and ensure that conjecture and suspicion do not take the place of legal proof. Circumstances of strong suspicion without more conclusive evidence are not sufficient to justify conviction, even though the party offers no explanation of them. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences; the one in favour of the accused must be accepted. Circumstances of strong suspicion without more conclusive evidence are not sufficient to justify conviction, even though the party offers no explanation of them. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences; the one in favour of the accused must be accepted. Thus if the combined effect of all the proved facts taken together is clear, conclusive and unimpeachable in nature in establishing guilt of the accused, conviction would be justified even though anyone or more of those facts by itself is not decisive. 10. Coming to the last seen theory, it is stated by P.W.1 that he saw the appellant as well as the deceased on one Friday in the weekly market at night while they were returning to their home. The witness has been declared hostile by the prosecution. P.W. 1 has stated that he had never seen the wife of the appellant prior to the occurrence. Therefore, the statement of P.W.1 that he saw the appellant in the company of the deceased is not acceptable inasmuch as how can he know that the lady who was in the company of the appellant on the Friday night was the deceased if he had not seen her previously. Moreover there is no evidence that the Friday in question when P.W.1 stated to have seen the appellant and his wife together was the date of occurrence. P.W.5 stated in the examination-in-chief that on the date of occurrence, he had gone to Friday weekly market near Dasamantapur village where the appellant and his wife had also gone and he had seen them returning back home. However in the cross-examination, P.W.5 has stated that he had not seen them while they were returning from the weekly market to their village and although he saw them in the weekly market but he had not talked with them. Thus the evidence of P.W.5 is also not so clinching to substantiate the last seen theory. The principle of last seen comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The principle of last seen comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The last seen theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. In view of the nature of evidence given by P.W.1 and P.W.5, we are not inclined to accept the last seen theory as put forth by the prosecution. 11. Coming to the most vital piece of evidence on record available against the appellant i.e., the extra judicial confession of the appellant before two Grama Rakshis P.W.2 and P.W.3, we find that it is the settled principle of law as has been laid down by a Full Bench of this Court in case of Garua Naik Vs. State of Orissa reported in (2014) 57 Orissa Criminal Reports 820 that the confession made by an accused before a Grama Rakshi is admissible in evidence, as he is not a 'police officer' within the meaning of that expression in Section 25 of the Indian Evidence Act. However, when confession before a Grama Rakshi is brought in evidence, the Court should insist, as a rule of prudence, on corroboration. Where the prosecution relies upon an extra judicial confession, the Court has to examine the same with a greater degree of care and caution. The Courts cannot start with the presumption that extra judicial confession is always suspect or a weak type of evidence but it would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak about such a confession and whether the confession is voluntary and truthful. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other independent reliable prosecution evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other independent reliable prosecution evidence. Where an extra judicial confession is surrounded by suspicious circumstances and suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, its credibility becomes doubtful and it loses its importance and it may be difficult for the Court to base a conviction on such a confession. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made. Extra judicial confession must be established to be true and made voluntarily and in a fit state of mind and must pass the test of credibility. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. A confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused. There should be reason on the part of the accused to repose faith and confidence on the witnesses in divulging the secret. When an extra judicial confession is retracted by an accused, there is no inflexible rule that the Court must invariably accept the retraction but at the same time, it is unsafe for the Court to rely on the retracted confession, unless, the Court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true. The evidence of P.W.2 and P.W.3 that while they were going to attend the call of nature, the appellant came near them and made extra judicial confession is such a concocted story which is very difficult to digest. The confessional statement that he repeatedly forcibly struck the deceased on the ground is not corroborated by the medical evidence. The FIR story that the appellant confessed that he strangulated the deceased and kicked the deceased to death has been given a go-bye in evidence in Court. The confessional statement that he repeatedly forcibly struck the deceased on the ground is not corroborated by the medical evidence. The FIR story that the appellant confessed that he strangulated the deceased and kicked the deceased to death has been given a go-bye in evidence in Court. The motive part which is there in the extra judicial confession as has been deposed to by P.W.2 is not there in the evidence of P.W.3. There was no close contact between the appellant with P.W.2 and P.W.3 beforehand and therefore there was no reason for the appellant for reposing faith and confidence in divulging the secret before them. The appellant could not have derived any benefit from P.W.2 and P.W.3 by making such confession. In view of the surrounding circumstances, we are of the view that these two Grama Rakshis have been set up as witnesses to prove a false extra judicial confession. Thus the evidences of both the prosecution witnesses are slippery and from their evidence, it is difficult to hold with certainty that any extra judicial confession in fact was made by the appellant. This state of evidence leaves us in doubt and we are of the opinion that the witnesses of the extrajudicial confession do not inspire confidence. Similarly the evidence of P.W.4 that in Dasmanthpur Police Station, on interrogation by Rushi Bisoi, the appellant confessed to have committed the murder is not acceptable as the said Rushi Bisoi has not been examined and more over it is hit by sections 25 and 26 of the Evidence Act. If the extrajudicial confession is obliterated and kept out of consideration, the conviction of the appellant also cannot be sustained because there is no other credible evidence to persuade us to uphold the conviction of the appellant. 12. The prosecution has not established any motive behind the commission of crime. The appellant and the deceased were having four sons and one daughter. There is no evidence regarding any dissention between them. Even the reason given in the so-called extra judicial confession that the as the deceased did not walk speedily in spite of repeated warning of the appellant for which the murder was committed is very hard to be believed. The appellant and the deceased were having four sons and one daughter. There is no evidence regarding any dissention between them. Even the reason given in the so-called extra judicial confession that the as the deceased did not walk speedily in spite of repeated warning of the appellant for which the murder was committed is very hard to be believed. In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the Court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjectures do not take the place of proof. 13. In view of the evidence available on record, we are of the view that it is difficult to accept that the prosecution has established the case against the appellant beyond all reasonable doubt. The conclusion arrived at by the learned trial Court in convicting the appellant and the reasonings assigned for arriving at such conclusion are not at all acceptable and convincing and it seems that the learned trial Court has proceeded on the basis of conjectures and suspicions and impugned verdict is nothing but a sheer moral conviction. There is a long distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions. Law is well settled that the suspicion howsoever strong cannot take the place of proof. No doubt the offence is gruesome and heinous but emotions and sentiments have no place in a criminal trial. Fouler the crime, the higher should be the proof. Thus we hold that the case against the appellant has not been established by the prosecution beyond all reasonable doubt and therefore he is acquitted of the charge under section 302 of Indian Penal Code. In the result, the jail criminal 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 of Indian Penal Code. The appellant is in jail custody since the date of his arrest. He should be released forthwith if he is not required to be detained in any other case. Lower Court Records along with copy of the judgment be sent down forthwith to the trial Court for necessary action.