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2017 DIGILAW 1077 (ORI)

Pius Barua v. State of Orissa

2017-09-16

D.P.CHOUDHURY, S.PUJAHARI

body2017
JUDGMENT S.PUJAHARI, J. - This appeal is directed against the judgment of conviction and order of sentence dated 04.08.2004 passed by the learned Adhoc Addl. Sessions Judge (FTC), Rourkela in S.T. Case No. 180/53 of 2003. The learned Adhoc Addl. Sessions Judge (FTC), Rourkela, vide the impugned judgment and order, held the appellant (hereinafter referred to as “the accused”) guilty of the charge under Section 302 of IPC and sentenced him to undergo R.I. for life and to pay a fine of Rs. 2000/-, in default in payment of fine, to undergo R.I. for three months more, for his conviction under Section 302 of IPC. 2. Prosecution case as placed before the trial Court is that the accused was a resident of village-Potab under Hatibari P.S. of Sundargarh district. On 19.08.2002, the deceased- wife of the accused, namely, Bernadic Baruwa has been to the field to transplant the paddy and returned from there at about 8 p.m. in a state of inebriation. As she had spent Rs. 50/- of the accused in consuming liquor, there was a quarrel between the accused and her. During the course of such quarrel, the accused dealt a slap to her for which she ran away from the hose, but the accused chased her and on the way, he caught hold of her and dealt another slap and them pulling her tuft, he dragged her to a place under a ‘Jamun’ tree standing on the foot of a hillock locally known as “Pati Pahad” and smashed her head with a stone and left her dead body there. Some days thereafter, human skeleton with wearing apparels and bangles were found by some goatherds who had been to there for grazing their goats, which was identified to be the dead body of the deceased from the wearing apparels and other belongings, by the brother of the deceased. The accused also made confession of the same and as such, being informed of the same, a report was lodged by; the then Sarpanch of Karkatnasa G.P. (P.W.1) vide Ext. 1 pursuant to which Hatibari P.S. Case No. 37 of 2002 was registered and investigation was carried on and during the course of investigation, the FIR allegations being found to have substance, police placed charge sheet against the accused for the charge under Sections 302/201 of IPC. 1 pursuant to which Hatibari P.S. Case No. 37 of 2002 was registered and investigation was carried on and during the course of investigation, the FIR allegations being found to have substance, police placed charge sheet against the accused for the charge under Sections 302/201 of IPC. The learned SDJM, Panposh after taking cognizance, committed the case to the Court of Sessions, hence, the accused be proceeded with. 3. Considering the aforesaid case of the prosecution which was also supported by the relevant materials collected during the investigation, the trial Court framed charge against the accused for the aforesaid offence. The accused pleaded not guilty to the charge and took the plea of denial and false implication. The prosecution, as such, examined as many as sixteen witnesses and also exhibited certain documents in order to establish the charge. But, in his defence, the accused, who had taken the plea of denial and false implication, neither adduced any evidence nor exhibited any documents. The trial Court on conclusion of the trial, returned the judgment of conviction and order of sentence as stated earlier, which have been assailed here in this appeal. 4. Mr. Debasis Panda, learned Amicus Curiae, submits that the impugned judgment of conviction and order of sentence are indefensible inasmuch as the circumstances basing on which the same are recorded have not been fully established and otherwise also the circumstances so established do not lead to only conclusion that the accused is the author of the crime. Therefore, he submits that the same are liable to be set aside. 5. Mr. D.K. Mishra, learned A.G.A. for the State, however, hesitatingly and haltingly defends the impugned judgment conviction and order of sentence. 6. As it appears from the evidence on record, no eyewitnesses to the occurrence are there in this case. The entire case is based on circumstantial evidence. Hence, before appreciating the contention raised regarding the sustainability of the conviction of the accused, by the learned counsel, it would be apposite to have a look at the expositions of law made by the Apex Court with regard to conviction in a case based on circumstantial evidence. The entire case is based on circumstantial evidence. Hence, before appreciating the contention raised regarding the sustainability of the conviction of the accused, by the learned counsel, it would be apposite to have a look at the expositions of law made by the Apex Court with regard to conviction in a case based on circumstantial evidence. In the case of Hanumant Govind Nargundkar and another –vrs.- State of Madhya Pradesh, reported in AIR 1952 SC 343 , the Apex Court for appreciation of the circumstantial evidence to sustain a conviction have held as follows: “In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger the conjecture of suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” [quoted from placitum] The law laid down in the case of Hanumant Govind Nargundkar (supra), has been reiterated and followed by the Apex Court in many subsequent decisions including the oft-quoted case of Sharad Birdhichan Darda –vrs. State of Maharashtra, reported in AIR 1984 SC 1622 , wherein the Apex Court have held as follows: “The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established; (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established. The circumstances concerned ‘must or should’ and not ‘may be’ established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty (3) the circumstances should be of a conclusive nature and tendency (4) they should exclude every possible hypothesis except the one to be proved and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Case law discussed.” [quoted from placitum] 7. As it appears from the evidence of P.Ws. 1 to 4, after discovery of the skeletons and also the same having been identified to be the dead body of the deceased from the wearing apparels of the deceased lying there, by the brother of the deceased, the same was intimated by the villagers to P.W.1 as he was the local Sarpanch, who then reported the matter to the police vide Ext. 1. The FIR vide Ext. 1 though contains the accused to have made the extrajudicial confession before the FIR was lodged and P.W.1 states the same, but the same being not supported by the evidence of any other witnesses examined though present, cannot be accepted as worthy of credence. From the evidence of the investigating Offficer-P.W.15 and also these witnesses, it would go to show that the accused said to have made confession while in police custody and a stone was recovered pursuant to the disclosure statement made by the accused under Section 27 of the Indian Evidence Act (herein after referred to as “the Act”). From the evidence of the investigating Offficer-P.W.15 and also these witnesses, it would go to show that the accused said to have made confession while in police custody and a stone was recovered pursuant to the disclosure statement made by the accused under Section 27 of the Indian Evidence Act (herein after referred to as “the Act”). It also emerges from the evidence of the Investigating Officer-P.W. 15 that the skeletons were sent for postmortem examination and as it appears from the evidence of the doctor conducting postmortem i.e. P.W. 16 that the skeleton was of a lady of 20 to 25 years of age and the cause of death was due to head injuries and the stone sized being sent to him for opinion, he opined that the injuries on the head of the deceased could have been caused by the same as the injuries were fatal in ordinary course of nature by hard and blunt object. The evidence of the doctor P.W. 16 in this regard stands corroborated by the postmortem report Ext. 15 and opinion Ext. 17. So also the Investigating Officer-P.W.15 also seized the photograph of the deceased vide seizure list Ext. 11 which is corroborated by the evidence of the witness to the seizure i.e. P.W. 4 which is not in dispute in this case. The said skeletons were sent for superimposition test and opinion to the Director & Chemical Examiner to the Govt. of Orissa, State Forensic Science Laboratory, Rasulgarh, Bhubaneswar, along with the photograph. The chemical examination report vide Ext. 18 reveals that the superimposition was done by the State Forensic Science Laboratory and the skull and mandible sent matched with the photograph in respect of all anthropological landmarks by superimposition technique. Therefore, from the evidence, it clearly emerges that the skeleton recovered was belonging to the wife of the accused and time since her death was 15 to 20 days before the postmortem examination and she died on homicidal death. 8. The impugned judgment would also go to show that the trial Court has placed reliance on a confession made by the accused while giving information under Section 27 of the Act pursuant to which a stone was recovered from the place of concealment i.e. from a hallow (Korada) of a ‘Jamun’ tree and the conduct of the accused not reporting his wife’s missing to police, to record the conviction. 9. 9. The evidence on record would go to show that the witnesses, i.e., P.Ws. 1 to 4 stated that during the investigation, the accused made confession in presence of the police and stone was seized. The Investigating Officer-P.W.15 has also deposed that he arrested the accused on 31.08.2002 at about 4.15 PM and in presence of the witnesses, the accused made statement to have concealed the stone used in the assault inside the ‘Koroda’ of a blackberry tree and the accused led him and the witnesses to the place and the stone was accordingly seized vide seizure list Ext. 8 and he has also proved the same. Though P.W.15 deposed that such statements to have been recorded and such statement has also been marked through the witnesses i.e. P.Ws. 3 & 4 as Ext. 7, but this witness did not prove the same in Court. From the evidence of P.Ws. 3 & 4, it appears that they are the witnesses to such information besides P.Ws. 1 & 2. The stone being produced, it was opined by the doctor- P.W.16, the same could have caused the injuries and could be the weapon of offence. So also the stone was sent for chemical examination, but on examination nothing was found on the stone to establish its nexus with the offence alleged. 10. In the case of Pulukuri Kottaya and others –Vrs. – Emperor, reported in AIR (34) 1947 Privy Council 67, the Apex Court in the context of Section 27 of the evidence Act have held as follows: “It is fallacious to treat the “fact discovered” within the Section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information give, must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” (emphasis supplied) The above proposition of law in this regard which has been described as a “locus classicus”, set at rest much of the controversy that centered round the interpretation of Section 27 of the Act. The Apex Court in the case of Mohmed Inayatullah –Vrs. – The State of Maharashtra, reported in (1976) 1 SCC 828 , interpreting Section 27 of the Act have held as follows: “12. The expression “provided that” together with the phrase “whether it amounts to a confession or not” show that the Section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this Section into operations is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly relates to the fact thereby discovered” is the linchpin of the provision. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly relates to the fact thereby discovered” is the linchpin of the provision. This phrase refers to that part of the information supplied by; the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which maybe indirectly or remotely related to the fact discovered.” So also in the case of State of Maharashtra-Vrs.- Damu S/o Gopinath Shinde and others, reported in (2000) 6 SCC 269 , placing reliance in the case of Pulukuri Kotaya (supra) at paragraphs 35 and 36, the Apex Court have held as follows: “35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as 11 evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the Section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. 36. The decision of the Privy Council in Pulukuri Kottaya v. Emperor is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. 36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Xxx xxxx xxxx” 11. Furthermore, it has also to be kept in mind that Section 27 of the Act is the most misused Section of the Act in the hands of police. The protection i.e. available under Sections 25 & 26 of the Act is at times is whittled down by the police by their ingenuity in manipulating the record of the information given by the accused in the case-diary in such a manner as to make it appear that it led to the discovery of some facts although the police might have made such discovery from other sources. A devise sometimes adopted by the police is to stage a scene and take the accused to the place where the things discovered lay buried or hidden and require him to make a search for them at the spot indicated to the accused, or sometimes the articles are first produced before the accused and thereafter statements purporting to have been made by him about the so-called discovery are recorded. The Court should be watchful that the protection afforded under Sections 25 & 26 of the Act should not be dependent on the ingenuity of the police officer in composting the narrative conveying the information relating to the alleged discovery of a fact. It has also become the normal device of the investigation agency to turn an ordinary recovery into a discovery in order to utilize the provisions under Section 27 of the Act. 12. Keeping in mind the aforesaid, when the case in hand is addressed no doubt P.Ws. 3 & 4 had been made witnesses to such statement. But, the evidence of P.Ws. 3, 4 & 5 in this regard are discrepant. P.Ws. 12. Keeping in mind the aforesaid, when the case in hand is addressed no doubt P.Ws. 3 & 4 had been made witnesses to such statement. But, the evidence of P.Ws. 3, 4 & 5 in this regard are discrepant. P.Ws. 1 & 2 though stated to be present, but they did not speak that the accused had gave any such statement but spoke about the confession to have been made by the accused and recovery of the stone. The evidence of P.W.3 would go to show that it is the Sarpanch (P.W.1) who led to the spot and he had not made any whisper with regard to the accused giving of any statement regarding concealment of stone in the hallow of a tree. P.W.4 also never spoke about the same having been kept in the hallow of a tree. Furthermore, even if, the stone was examined, but no bloodstain or other things connecting the same to deceased/crime was found. The same was also not produced and exhibited before the trial Court for the reason best known to the prosecution. The Investigating Officer also did not prove the statement recorded as stated earlier. 13. From the aforesaid evidence on record, it is difficult to accept the version of P.W.15 that the accused made any; statement while in police custody pursuant to which a fact was discovered. Hence, the aforesaid incriminating circumstance appears to us not to have been established by clear and cogent evidence on record. Accepting for a moment the evidence of the Investigating Officer in this regard to be true, still it appears to this Court that the trial Court has committed a serious error of law in accepting the confession made by the accused regarding assault on the deceased with the stone seized, as the same does not relate to the facts discovered, as held by the Privy Council in the case of Pulukuri Kottaya (supra) and followed by the Apex Court in many subsequent decisions including the decisions of Mohmed Inayatullah and Damu (supra). 14. 14. The remaining part of the statement of the Investigating Officer-P.W.15 regarding fact discovered i.e. concealment of the stone by the accused in the hallow of a tree to the knowledge of the accused, by itself is not incriminating as there is no evidence indicating the fact that the aforesaid has any nexus with the crime inasmuch as though the doctor-P.W.16 opined that the same could be the weapon of offence in causing the death of the deceased, but no bloodstain or other things was found on the same in the chemical examination to connect the same to the deceased/crime. Strangely enough such Material Objects was not produced before the Court for no reasons. Therefore, the aforesaid statement with regard to discovery of fact cannot be said to be very relevant and incriminating to the accused in any manner. The other circumstance, i.e., conduct of the accused, a tribal not intimating anyone in the village regarding his wife’s missing, has not been deposed by any of the witnesses. Even if accepting for a moment that the aforesaid two circumstances to have been proved, the aforesaid circumstances coupled with the homicidal death of the deceased taken cumulatively, does not form a chain so complete that there is not escape from the conclusion that within all human probability the crime was committed by the accused and none else. The same, therefore, having not satisfied the tests laid down in the cases of Hanumant Govind Nargundkar and Sharad Birdhichand Sarda (supra) and giving rise only to a strong suspicion, we are of the view that the trial Court should have extended the benefit of doubt to the accused. 15. Hence, on re-appraisal of the evidence on record, we are of the view that the accused is entitled to the benefit of a reasonable doubt. We would, therefore allow this JCRLA and set aside the judgment of conviction and order of sentence dated 04.08.2004 passed by the learned Adhoc Addl. Sessions Judge (FTC), Rourkela in S.T. Case No. 180/53 of 2003. The accused be set at liberty forthwith, unless his detention is required in connection with any other case. LCR received along with the copy of this judgment be returned forthwith. JCRLA allowed.