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2018 DIGILAW 722 (ORI)

Mukhtar Hussain v. State of Odisha

2018-08-08

K.R.MOHAPATRA, S.PANDA

body2018
JUDGMENT K.R. MOHAPATRA, J. - This appeal has been filed assailing the judgment of conviction and sentence dated 30.6.1999 passed by learned Additional Sessions Judge, Jharsuguda in S.T. Case No.25/51 of 1999 convicting the appellant for committing offence under Sections 302 and 201 IPC and sentencing him to undergo imprisonment for life for commission of offence under Section 302 IPC and RI for five years for commission of offence under Section 201 IPC. The substantive sentences were directed to run concurrently. 2. The appellant was working as a “Mouzam” in Khoja Sahi Insari Jamat of Jharsuguda (herein after referred to “Mosque”) and was staying in the Mosque premises with his daughter, namely, Kanirra Zainam (the deceased). On 05.07.1998, when the informant, namely, Naiyyar Reza ( PW 6), who happened to be the President of the Mosque Committee was at the house of Janab Gulam Hussain to observe 40th day of death of the wife of Janab Gulam Hussain, the appellant arrived there and in presence of the informant and other committee members disclosed that his daughter (the deceased), while cooking food accidentally burnt to death on 04.07.1998. The appellant had buried the dead body of the deceased within the Mosque premises under a Neem tree. The informant suspected some foul play as instead of burying the dead body at Kabarsthan, the appellant had buried it in the Mosque premises. Accordingly, the committee members informed the matter at Jharsuguda Police Station. Upon receipt of the report (Ext.11), OIC, Jharsuguda P.S. registered U.D.Case No.26 of 1998 on 05. 07.1998 at about 9.00 P.M. and took up the investigation. On 06.07.1998, on the instruction of the appellant, Police in presence of witnesses and Executive Magistrate, Jharsuguda, namely, Sri J.K. Behera, Additional Tahasildar, Jharsuguda (PW 5) disinterred the dead body of the deceased buried under the Neem tree within the Mosque campus. The appellant, who was present at the spot identified the dead body to be of his daughter. On being disinterred, it was found that the left leg to the dead body below the knee joint was missing. Accordingly, inquest report (Ext.1) was prepared and the dead body was sent for post-mortem examination. The appellant, who was present at the spot identified the dead body to be of his daughter. On being disinterred, it was found that the left leg to the dead body below the knee joint was missing. Accordingly, inquest report (Ext.1) was prepared and the dead body was sent for post-mortem examination. On the basis of the opinion in the post-mortem report to the effect that the death might have been caused due to burn and amputation of the left leg causing shock and hemorrhage, the OIC, Jharsuguda PS (PW7) drew up formal FIR (Ext.14) and registered Jharsuguda P.S.Case No.132 dated 08.07.1998 under Sections 302 and 201 IPC suspecting the appellant to have committed the crime. In course of investigation, the appellant was arrested on 16.07.1998 and confessed his guilt. While in custody, the appellant led the IO (PW 7) and other witnesses to his bedroom situated within the Mosque premises and gave recovery of one axe (MO-I), by which he confessed to have amputated the left leg of his daughter MO-I was seized vide Ext.4. Thereafter, the appellant led the team to the staircase of the Mosque under which he had burnt the amputated portion of the left leg. The remains of burnt pieces of bones and half burnt wood were seized from that place vide seizure list Ext.6. The appellant was forwarded to the Court on the next day, ie. 17.07.1998. Thereafter, PW 7 handed over the investigation to the CI of Police, namely, K.C. Mohanty, who seized the bones and sent for chemical examination by FMT Department, VSS Medical College & Hospital, Burla. Seized axe was sent for examination and the report of the Scientific Officer, DFSL, Sambalpur (Ext.16), reveals no human blood on MO-I. On completion of the investigation, the CI of Police, Mr. Mohanty submitted charge-sheet under Sections 302/201 IPC on 11.11.1998 against the appellant. Accordingly, the appellant faced trial. 3. In order to prove their case, the prosecution examined as many as seven witnesses. P.W. 6 is the informant. P.W. 5 is the Executive Magistrate in whose presence the dead body of the deceased was disinterred. PW 3 is the Doctor, who conducted post-mortem of the cadaver. PW 4 was the Lecturer of FMT, attached to VSS, Medical College & Hospital, Burla, who examined the burnt pieces of the bones. P.Ws. P.W. 6 is the informant. P.W. 5 is the Executive Magistrate in whose presence the dead body of the deceased was disinterred. PW 3 is the Doctor, who conducted post-mortem of the cadaver. PW 4 was the Lecturer of FMT, attached to VSS, Medical College & Hospital, Burla, who examined the burnt pieces of the bones. P.Ws. 1 and 2 are independent witnesses before whom the appellant alleged to have made the confession. They are also witnesses to recovery of the dead body. PW 7 is the I.O. The prosecution also relied upon Ext.1, the inquest report, Ext.2, the statement of the appellant recorded by the Executive Magistrate (PW 5), Exts. 4 and 6 are seizure lists; Ext. 7 is the post-mortem report, Ext.8, the report of FMT, Ext.9, the Scientific examination report, Ext. 11, the FIR (in UD Case No.26 of 1998); Ext. 13, dead body challan; Ext.14, the formal FIR, Ext.16, the chemical examination report of MO-I by DFSL., Sambalpur. The axe, MO-I is the weapon of offence; MO-II, the sealed packet. 4. The plea of defence was complete denial of his involvement in the alleged crime and the appellant pleaded innocence. 5. Learned trial Court, basing upon oral and documentary evidence available on record as well as argument advanced by learned counsel for the parties, convicted and sentenced the appellant as stated above. 6. Mr. Mishra, learned Counsel for the appellant, opened his argument with a submission that the occurrence was unfortunate and heinous, but he maintained that the appellant was not the author of the crime. He strenuously argued that the investigation was perfunctory and the materials available on record are not sufficient to come to a conclusion beyond any reasonable doubt that the appellant is the author of the crime. He contended that the extra judicial confession stated to have been made by the appellant before PWs.1 and 2 are afterthought and are concocted to rope in an innocent person like the appellant. The information (Ext.11) basing upon which UD Case was registered as well as the formal FIR (Ext.14) disclose that the death was accidental and the same belie the alleged extra judicial confession made by the appellant before PWs-1 and 2.The motive of the appellant to commit the offence has not been proved at all. MO-I cannot be said to be the weapon of offence as it did not contain any human blood. MO-I cannot be said to be the weapon of offence as it did not contain any human blood. Further, PW 3, the Doctor who conducted the post-mortem, clearly opined that the left leg beneath the knee was severed with a single blow and it is very difficult to severe a leg in one blow with MO-I. There are also material discrepancies in the statements of the witnesses. There is no reason as to why a father would kill his daughter. Learned Trial Court has not taken these material aspects into consideration while convicting the appellant under Section 302 read with Section 201 IPC. As such, the impugned judgment of conviction and sentence is liable to be set aside and the appellant should be set at liberty forthwith. 7. Mr. Sahoo, learned Additional Government Advocate refuting the submissions made by Mr. Mishra, learned Counsel for the appellant submitted that there are ample materials on record to come to a conclusion that the appellant is the author of the crime. Even if the extra judicial confession, stated to have been made by the appellant before PWs 1 and 2, is ignored, still the recovery of the dead body as well as the weapon of offence and remains of the burnt amputated left leg of the deceased at the instance of the appellant under Section 27 of the Evidence Act, clearly establish that he has committed murder of his daughter and made an attempt for disappearance of evidence. P.W.4, the Head of the Department, FMT., VSS Medical College & Hospital, Burla, clearly opined that he found 15 pieces of bones. The fragments were joined and one Tibia and one Fibula were reconstructed and it was found that the bones belonged to left lower limb of an adult female. The deceased was residing with her father, namely, the appellant, at the time of her death. Thus, he had special means of knowledge of death of the deceased and the burden of proof lies on the appellant to disclose the nature and cause of death of the deceased. The deceased was residing with her father, namely, the appellant, at the time of her death. Thus, he had special means of knowledge of death of the deceased and the burden of proof lies on the appellant to disclose the nature and cause of death of the deceased. Learned trial Court carefully scrutinizing the materials on record and taking pains to discuss oral as well as documentary evidence, came to hold that the appellant has committed the murder of his daughter (the deceased) and in an attempt for disappearance of evidence, buried the dead body, burnt the amputated left leg (below the knee portion) of the deceased and buried it. Thus, he has rightly convicted the appellant under Section 302 read with Section 201 IPC, which warrants no interference. 8. Taking into consideration the rival contentions of learned Counsel for the parties, let us first examine as to whether the death was homicidal or accidental. 9. PW 3 is the Doctor, who conducted autopsy over the dead body. In his testimony, he categorically deposed as under :- “2. On external examination, I found the dead body to be decomposed and I could find earth and foreign body present over the dead body. The body was emitting foul smell. Maggots were present all over the body. The tongue of the deceased had protruded and bitten. Third degree burn injuries were present on both the lower and upper limits abdomen chest, back and face up to 80 degrees. At some places skin was found to be intact and was of blackish colour. Eye balls were forced out of the sockets. Left leg was found to have been amputated above the knee. At the amputated site clotted blood were present. The amputated leg was missing. Hairs on the skull were burnt. Some small hairs were present. The external injuries were all ante mortem in nature. 3. On dissection I found as follows: (i) No conception was present. (ii) Lungs were soft and black. (iii) Heart was soft and both chambers were empty. (iv) Stomach was soft and pale and contained half digested food materials. (v) Small and large intestine distended. (vi) Lever was soft and pale. (vii) Spleen was soft and pale. (viii) Kidney were soft and pale. (ix) Uterus was normal in size. (ii) Lungs were soft and black. (iii) Heart was soft and both chambers were empty. (iv) Stomach was soft and pale and contained half digested food materials. (v) Small and large intestine distended. (vi) Lever was soft and pale. (vii) Spleen was soft and pale. (viii) Kidney were soft and pale. (ix) Uterus was normal in size. In my opinion the probable cause of death was because of burn and amputation causing shock and hemorrhage and the injuries which I detected on the deceased might have been caused within three to five days of my examination. This is that Post-mortem Examination report prepared by me marked Ext. 7". 10. In his cross-examination, PW 3 opined that the severed part must have been cut by a single blow with a heavy sharp cutting weapon. MO-I (the weapon of offence) was not so sharp and it was difficult for amputating bone and flesh with a single blow given by MO-I. PW-4 was the Lecturer in FMT, VSS Medical College & Hospital, Burla, who examined the bones of severed left limb of the deceased. He categorically deposed as follows : “2. On examination of the bones I found that there were 15 pieces of bones. The fragments were joined and one Tibia and one Fibula were reconstructed and it was found that the bones belong to left side. The bones appears to be smooth and muscular markings were not prominent. The length of the reconstructed Tibia measures 35.5 C.M. 3. From the examination I conducted, I could detect the bones sent to me for examination were that of a human being and belong to lower portion of left lower extrimity. The sex of the individual was a female and the stature of that individual is approximately 5 feet 3 inches. The bones belong to one adult female. This is that report prepared by me marked Ext. 9 and this is my signature on Ext.9 marked Ext.9/1. There were no ante mortem injury on the bones sent to me for examination.........” 11. On a conjoint reading of testimony of PWs-3 and 4 and on examination of post-mortem report (Ext.7) as well as report of PW 4 (Ext.9), it is apparent that the pieces of bones recovered from the spot by the Police was the lower portion of lower extremity of an adult female and the stature of the individual was approximately 5.3. feet. feet. The injuries on the dead body were ante mortem in nature and the cause of death of the deceased was due to shock and haemorrhages because of burning and amputation. 12. The FIR in UD Case No.26 of 1998 (Ext.11) as well as the formal FIR (Ext.14) drawn by the IO suggest that the death was accidental. However, there is no evidence on record to show that the deceased was shifted to any hospital after the burn, which is the normal human conduct, in case of an accident. It is also not clear from the evidence available on record as to why and under what circumstances the left leg below the knee was amputated and whether such amputation was also accidental. On the other hand, the materials available on record clearly disclosed that the appellant while in police custody identified the spot where he had buried the dead body. The dead body was disinterred in presence of the Tahasildar-cum-Executive Magistrate, Jharsuguda on 06.07.1998. While conducting inquest, the IO (PW 7) could detect that the left limb below the knee was missing. After recording statements under Section 27 of the Evidence Act, the appellant led the IO and other witnesses to this bedroom situated within the campus and gave recovery of an axe. Thereafter, he led the team to the staircase of the Mosque under which the amputated portion of the missing left leg was burnt. From the said place, the IO seized the burnt pieces of bones and half burnt wood vide Ext. 5. The identity of the deceased although disputed by the defence, but we accept the same to be of the deceased as the appellant had identified the spot where he had buried the dead body and identified the same to be of his daughter before the Magistrate (PW-5). His evidence remained unshaken in the cross-examination. 13. On a conspectus of the aforesaid materials, we are constrained to hold that the death of the deceased was not accidental but it is homicidal. 14. Obviously, the next question that arises for consideration is whether the appellant is the author of the crime. Admittedly, there is no eyewitness to the occurrence. The case of the prosecution is based on circumstantial evidence. From the evidence available on record, it appears that PW-1 and PW-2 were the members and PW-6 was the President of the Mosque Committee. Obviously, the next question that arises for consideration is whether the appellant is the author of the crime. Admittedly, there is no eyewitness to the occurrence. The case of the prosecution is based on circumstantial evidence. From the evidence available on record, it appears that PW-1 and PW-2 were the members and PW-6 was the President of the Mosque Committee. On 05.07.1998, when they were at the house of Janab Gulam Hussain to attend the obsequies, i.e. 40th. Day of death, of the wife of Janab Gulam Hussain, the appellant reached there and disclosed before them to have committed murder of his daughter and to have buried the same in the Mosque premises. But the contents of Ext.11 (FIR in UD case) and Ext. 14, formal FIR belie such confession. Both Ext. 11 and 14 do not disclose the appellant to have confessed his guilt of committing murder of his daughter. The incriminating material available against the appellant is the statement (Ext.2), recorded under Section 27 of the Evidence Act. But, the alleged confession of the appellant allegedly made to have committed murder of his daughter is not admissible under Section 27 of the Evidence Act. The confession to the extent of recovery of the cadaver of the deceased is only admissible in evidence,. In the path paving case of Pulukuri Kottaya and others-v – Emperor, reported in AIR (34) 1947 Privacy Council 67, in the context of admissibility of statement made under Section 27 of the Evidence Act, it is 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 given, 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 decision in the case of Pulukuri Kottaya (supra) has been followed by this Court in the case of Satrughana alias Satura Majhi-v- State, reported in XXXV (1969) CLT 351, wherein at paragraph 8 it has been held as follows : “8. Kottaya v. Emperor, is the leading decision on this point. A clear exposition of the evidentiary value of such a statement is given in para-11 of the judgment. Their Lordships observed thus :- “Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.” The effect of this passage has unfortunately been overlooked in most of the subsequent decisions. The implication of this concept may be explained by an illustration. If the statement made under Section 27 of the Evidence Act leads to discovery of opium, then a conviction can be founded solely on the basis of that statement, as possession of opium without licence is by itself an offence under the Opium Act. Similarly discovery of arms without licence on the basis of a statement made under Section 27 of the Evidence Act can constitute the sole basis of conviction. But where the gist of the offence is not possession alone, then the statement leading to discovery in most cases cannot constitute the foundation of the prosecution case. Similarly discovery of arms without licence on the basis of a statement made under Section 27 of the Evidence Act can constitute the sole basis of conviction. But where the gist of the offence is not possession alone, then the statement leading to discovery in most cases cannot constitute the foundation of the prosecution case. As their Lordships put it, it is only one link in the chain of proof, and the other links must be established beyond reasonable doubt before the guilt is brought home to the accused.” 15. Learned Additional Government Advocate resorting to last seen theory as well as provisions under Section 106 of the Evidence Act to bring home the charge, vehemently argued that the appellant in his statement under Section 313 Cr.P.C. has admitted that his daughter was living with him at the time of occurrence. Further, the appellant has the special knowledge of the occurrence and the burden of proof is on him to prove such facts. He having not disclosed the same, adverse inference should be drawn against him. Further, from the circumstantial evidence, the only inescapable conclusion can be drawn that the appellant alone is the perpetrator of the crime. Learned Counsel for the appellant however, refutes the same contending that the rigors of Section 106 of the Evidence Act is not applicable to the case at hand as the Mosque is a public place and the place of occurrence is accessible to the members of the community. Further, there is no material available on record that the daughter was last seen with the father proximately before the occurrence. In order to ascertain the veracity of the submissions we carefully scrutinized the record. The spot map available in the crime detail report disclosed that the room in which both the appellant and his deceased daughter were staying is situated in the precincts of the Mosque. There is also no evidence available on record to show that the appellant was last seen with the deceased proximately before her death. Further, the place of occurrence as well as the burial spot is accessible to all, who enters the Mosque. The place of recovery of the half burnt bones is also doubtful. As discussed above, the appellant while in police custody, allegedly made a confessional statement. Further, the place of occurrence as well as the burial spot is accessible to all, who enters the Mosque. The place of recovery of the half burnt bones is also doubtful. As discussed above, the appellant while in police custody, allegedly made a confessional statement. The testimony of I.O. (P.W.7) reveals that on recording the statement of the appellant under Section 27 of the Evidence Act, he (the appellant) led the I.O. as well other witnesses to his bedroom situated within the campus of the Mosque and gave recovery of an axe ( M.O.I). Thereafter, he led the team to the staircase of the Mosque under which the amputated left leg was burnt. From the said place, I.O. seized the burnt pieces of bones as well as wood vide Ext. 5. But PW 2, who was a witness to the discovery of burnt portion of amputated left leg, categorically testified that :- “4. Police again called me on 16.07.1998 to the Police Station and asked me about the incident. On 16.07.1998 at about 6 P.M. police called me and one Iftehikar Immam to police station. In our presence the accused disclosed while in police custody to have cut the left leg of his daughter the deceased with an axe which he had concealed along with the severed portion of the left leg which the accused told to have burnt and further told to have concealed those things under the earth of the ‘Neem’ tree inside the ‘Shia’ mosque of Mangal Bazar and so saying led us and the police officer to the ‘Shia’ mosque campus of Mangal Bazar and also to the ‘Neem’ tree where he had allegedly concealed the axe and the burnt portion of the left leg under the earth. Police had recorded the statement of the accused before he led us to the spot for giving recovery of the weapon of offence and the severed left leg.” The spot map, which finds place in the crime detail form available in the lower Court record, does not disclose the location of the staircase and from which place the amputated left limb of the deceased was recovered. Thus, it would be unsafe to apply the rigors of last seen theory as well as provisions of Section 106 of the Evidence Act to the case at hand. Thus, it would be unsafe to apply the rigors of last seen theory as well as provisions of Section 106 of the Evidence Act to the case at hand. In addition to the above, it is the categorical testimony of PWs 2 & 6 that the appellant was in police custody from 05.07.1998 onwards. In view of the circumstances discussed above, it is very difficult to come to a conclusion that the appellant is the perpetrator of the crime and convict him under Section 302, IPC. 16. A plain reading of Section 201 of IPC makes it clear that a conviction under the said Section can be sustained, firstly when the accused alleged of such offence knows or has reason to believe that an offence has been committed and with an intent to screen the offender from a legal punishment, cause, the evidence to disappear or gives false information in respect of such offence knowing or having reason to believe the same to be false. In the case of Palvinder Kaur Vs. State of Punjab, reported in AIR 1952 SC 354 , it is held as under : “In order to establish the charge under Section 201, Indian Penal Code, it is essential to prove that an offence has been committed- mere suspicion that it has been committed is not sufficient, that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false. It was essential in these circumstances for the prosecution to establish affirmatively that the death of Jaspal was caused by the administration of potassium cyanide by some person (the appellant having been acquitted of this charge) and that she had reason to believe that it was so caused and with that knowledge she took part in the concealment and ‘disposal of the dead body......” In the case of Sukharam Vs. State of Maharashtra, reported in 2007 (7) SCC 502 , it is held as under : “15. The first paragraph of the Section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. State of Maharashtra, reported in 2007 (7) SCC 502 , it is held as under : “15. The first paragraph of the Section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 of IPC, the ingredients to be established are (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed, (iii) person charged with the said offences should have caused disappearance of evidence and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.” In the case of Padmini Mahendrabhai Gadda Vs. State of Gujarat, reported in JT 2017 (7) 225, Hon’ble Supreme Court at paragraph-18 following the case law decided in Sou. Vijaya alias Baby Vs. State of Maharashtra, reported in JT 2003 (Supp.-I) SC 270 also laid down the same principle. In the instant case, there is no iota of evidence to come to a conclusion that the appellant knew or had reason to believe the commission of such offence as well as he had an intention to cause disappearance of evidence in order to screen the offender from legal punishment. Had it been so, he would not have disclosed about burial of the cadaver before PWs. 1, 2 and 6. As held in the aforesaid case laws, all the ingredients of Section 201, IPC must be satisfied to sustain a conviction under the said provision. Had it been so, he would not have disclosed about burial of the cadaver before PWs. 1, 2 and 6. As held in the aforesaid case laws, all the ingredients of Section 201, IPC must be satisfied to sustain a conviction under the said provision. As the aforesaid two ingredients are conspicuously absent in the case at hand, it is very difficult to maintain a conviction under Section 201 IPC against the appellant. 17. In view of the discussions made above, it is apparent that the learned trial Court although made his best endeavour to bring home the charge against the appellant under Section 302 and 201 IPC, but he has failed to take into consideration the aforesaid legal position while adjudicating the matter. Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence, being not sustainable, is set aside. The appellant be set at liberty forthwith, if his incarceration is not required in any other case. LCR be sent back forthwith. S. PANDA, J. I agree. Appeal allowed.