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2018 DIGILAW 846 (ORI)

P. Duryodhan Patra v. State of Odisha

2018-12-14

A.K.MISHRA, S.K.MISHRA

body2018
JUDGMENT S. K. MISHRA, J. - The sole appellant in this case assails his conviction U/s. 302 of the Indian Penal Code by the Additional Sessions Judge (Fast Track Court), Chatrapur in Sessions Case No.7 of 2003 (S.C. No.342/2002 (GDC) as per the judgment dtd. 12.01.2004 wherein he has been sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default to further undergo imprisonment for six months. 2. The case of the prosecution in brief is as follows : The marriage between the accused P. Durjyadhan Patra and the deceased Amoyee @ Laxmi Patra was performed about 15 years prior to the lodging of the FIR. Initially both the wife and husband lived peacefully. In order to extract more dowry from the parents of Amoyee, accused Durjyadhan along with his mother accused Motiyalu started to torture Amoyee. To keep peace, the father of Amoyee had given her two varans of land. That did not satisfy the lust of the accused persons. The torture continued forcing the deceased Amoyee to desert her marital home. Claiming maintenance, she had filed a case for maintenance against the accused Durjyadhan. The order for payment of maintenance to her was passed. The accused Durjyadhan did not comply with the order as a result of which the deceased had filed the execution proceeding for realization of the same. At this juncture, the accused Durjyadhan had entered into a compromise with the deceased and brought her to his house. Some time thereafter the accused Durjya had married the accused Jamalu Patra and took her as his second wife after giving a portion of his house and 2 varans of land to the deceased Amoyee as per the decision of the village Bhadraloks. The deceased Amoyee lived separately in the room given to her and the three accused persons lived together in separate part of the house of the accused Durjyadhan. Despite such separate staying, the accused Durjyadhan continued to torture the deceased. On 17.3.2001 the dead body of the deceased with ligature mark injury on her neck was found from inside her room. The case was registered on the basis of the report of the brother of the deceased. The investigation revealed that the accused persons with a view to take away the properties of the deceased had killed her by throttling in the previous night. i.e. the night intervening 16.3.2001 and 17.3.2001. The case was registered on the basis of the report of the brother of the deceased. The investigation revealed that the accused persons with a view to take away the properties of the deceased had killed her by throttling in the previous night. i.e. the night intervening 16.3.2001 and 17.3.2001. During investigation the I.O. had made inquest of the dead body of Amoyee and had sent the dead body for post-mortem. The accused Durjyadhan was arrested by the police from near by railway station while he was attempting to flee away. After completion of investigation the I.O. had submitted charge sheet against the accused persons where upon the accused persons were committed to the Court of Sessions. 3. The plea of defence is that of denial and false implication. Defence has further pleaded that the deceased committed suicide by hanging. The appellant took a specific plea of alibi stating that he was not present in the house in the night of occurrence and he was at Keshapur when he came to know about death of his wife, being intimated by police. 4. Prosecution has examined as many as 9 witnesses. P.W.7-K Lakhana Patra is the informant of the case. He happens to be the brother of deceased. P.W. 4-Narayan Patra, P.W.5- K. Gobinda Patra, P.W. 3-K. Sima Patra and P.W.2-M.Chennaya Patra are co-villagers of the convict and independent witnesses. P.W. 8 is Dr. Sachidananda Mohanty, Asst. Professor, Department of F.M.T., M.K.C.G. Medical College and Hospital, Berhampur who has conducted post mortem examination. P.W.1-Kamaraja Behera is the police constable who accompanied the dead body of the deceased Amoyee for post-mortem and identified the dead body of the deceased to the doctor who conducted post-mortem. P.W.9-Ashok Kumar Bisoi happens to be the Officer-in-charge of Khallikote Police Station and the investigating officer of this case who submitted charge-sheet against the present appellant and his mother and second wife. One D.W. has been examined on behalf of defence, namely, K. Krishna Patra who happens to be the brother of the deceased. 5. Learned Additional Sessions Judge took six circumstances of the case into consideration to arrive at a conclusion that prosecution has proved its case beyond reasonable doubt against the accused-appellant Durjyadhana and acquitted the other two co-accused persons. The six circumstances are as follows : (i) Motive to commit the crime, i.e. to grab the property of the deceased. 5. Learned Additional Sessions Judge took six circumstances of the case into consideration to arrive at a conclusion that prosecution has proved its case beyond reasonable doubt against the accused-appellant Durjyadhana and acquitted the other two co-accused persons. The six circumstances are as follows : (i) Motive to commit the crime, i.e. to grab the property of the deceased. Learned Additional Government Advocate submits that this motive is proved by the testimony of P.Ws. 2 and 3. (ii) The next circumstance is testimony of P.W. 4 who has stated that he heard accused Durjyadhan saying “BOULA BADI TA DE, AA PAITI CHHINDEI DEBA” (mother give a badi, we will finish the job.) (iii) Thirdly, P.W. 5 has stated that when he reached at the spot house he found the door of the room locked from inside, he gave a push and saw the convict Durjya standing there and the deceased was lying with injury on her neck. However, when this witness asked the appellant about the deceased, he stated to have said that she is dead and ran away from the spot. (iv) Fourth circumstance is the abscondence of the convict from his house and arrest from the railway station when he was waiting for train. (v) The other circumstance which is raised by the learned Additional Government Advocate is that when the dead body of the deceased was found inside the house of appellant, he is to give explanation and in absence of explanation, presumption should be drawn against the convict-appellant. (vi) The last circumstance is failure to establish the plea of alibi. 6. Mr. Prasanta Kumar Das, learned counsel arguing on behalf of Mr. P.K. Deo argued that all the circumstances have not been established in this case and only on the basis of inference conviction has been slapped. 7. Learned Additional Government Advocate, on the other hand, submits that all the circumstances have been well established from the statement of witnesses and no illegality has been committed by the learned Additional Sessions Judge in convicting the appellant. 8. It is not in dispute at this stage that death of the deceased was due to asphyxia because of the ligature mark found on the neck of the deceased. The learned Additional Sessions Judge has held that the death of the deceased was not suicidal, rather it is homicidal. 8. It is not in dispute at this stage that death of the deceased was due to asphyxia because of the ligature mark found on the neck of the deceased. The learned Additional Sessions Judge has held that the death of the deceased was not suicidal, rather it is homicidal. Hence at this stage it is beyond dispute that the death of the deceased is homicidal. 9. Learned counsel for the appellant submits that the six circumstances upon which the learned Additional Sessions Judge has relied, has not been proved to the hilt, i.e. beyond reasonable doubt, hence the conviction should be set aside. 10. Upon such rival submissions, let us examine each of the circumstances one by one. The first circumstance is motive to commit the offence. It is argued by the learned Additional Government Advocate that P.W. 2 and 3 have stated about motive of the appellant to commit the crime alleged against him. P.W.2-M. Chinnaya Patra has stated about the relationship between husband and wife and their separation and reunion. He has stated that Amoyee was tortured by the appellant Durjyadhan for not bringing dowry. Thereafter Mangala Patra, the father of deceased had given two Bharanas of land as dowry and had registered the land in the name of his daughter, the deceased Amoyee. The registration of the land took place after about six years of marriage between the appellant and deceased Amoyee. Thereafter, for about six years the parties lived peacefully after registration of the land. Again the deceased was denied food and assaulted by the appellant Durjya. Due to torture the deceased could not live with the appellant and went to her parents’ house. She filed a case for maintenance against the appellant. Thereafter the appellant entered into a compromise with the deceased and again took her back to his house. Sometime thereafter, the appellant Durjya proposed to marry accused Jamalu and took her as second wife. In this connection there was a meeting in the village where it was held that the appellant Durjya was to give two Bharans of his lands and a portion of his house having width of 6 cubits to the deceased and then take his second wife. It was decided that Amoyee will stay with appellant Durjya and the appellant will maintain her well. The appellant Durjya and Amoyee argued with the decision of the village Bhadraloks. It was decided that Amoyee will stay with appellant Durjya and the appellant will maintain her well. The appellant Durjya and Amoyee argued with the decision of the village Bhadraloks. As per the decision, the appellant Durjya had registered two Bharans of land and a portion of his living house in the name of deceased Amoyee. Thereafter the appellant Durjya had married the co-accused Jamalu and took her as his second wife about five years back from the date of deposition. The deceased stayed in a portion of the house which was given to her and the three accused persons stayed in the remaining portion of the house. This witness has further stated that about one year after the second marriage, quarrel between the deceased on one side and the appellant Durjya and his mother accused Motyalu, on the other hand started. Quarrel started concerning the lands of Amoyee which were given to her by her father and also by the appellant Durjya. About two years and five to six months back, one day in the morning he heard that Amoyee was dead. He along with other co-villagers went to the house where Amoyee was living and saw her dead body lying on the living room of the house, foul smell was emitting. So he had only a glance over the dead body of the deceased and came out of the room. Then he speaks about arrival of police, inquest over the dead body, etc. He is also a witness to the seizure. As such from the discussion of the testimony of this witness, it is clear that he does not speak anything about motive of the appellant behind commission of the crime. He has only stated that there was some dispute regarding lands which were given to her by her father and the appellant. From this it is not forthcoming that the convict-appellant had intention to grab her lands by committing her murder. As far as P.W.3-K. Sima Patra is concerned, he also states about the quarrel between the husband and wife, the meeting of the village Bhadraloks and the second marriage. He also stated that other accused Motyalu had also picked up quarrel with deceased Amoyee and he heard about two to three years back that deceased was murdered by three accused persons. He also stated that other accused Motyalu had also picked up quarrel with deceased Amoyee and he heard about two to three years back that deceased was murdered by three accused persons. Thus witness has also not stated about motive, but the learned lower Court has inferred the motive of crime from the statement of the witnesses regarding dispute about the landed property of the deceased. In our considered view there is no sufficient evidence to establish beyond reasonable doubt that there was motive on the part of the present appellant to commit murder of the deceased so that he could grab the landed property of the deceased. 11. The circumstance which is put forth by P.W. 4-K. Narayan Patra that he heard the voice of appellant Durjya saying “BOULA BADI TA DE, AA PAITI CHHINDEI DEBA’ (mother give a badi, we will finish the job). This itself does not show that the appellant had intended to commit the murder of deceased. Moreover, it is not the case of prosecution that the deceased was done to death by means of lathi and badi. She was throttled as per prosecution case and there was no external injury on the part of her body. Hence P.W. 4 fails to establish that the appellant had any intention to murder the deceased when he asked for a “BADI’ 12. Then comes the evidence of P.W.5-K.Govinda Patra who has been examined to establish that when he came to the house of deceased, the door was locked from inside and as he gave push, the appellant opened the door and was standing there in the same room where the dead body was lying. This aspect has been contested by the learned defence counsel and major contradiction has been brought out. With the reference to the evidence of P.W. 5 at paragraph 6 and P.W. 9 at paragraph 24 it is revealed that P.W. 5 has not stated before the investigating officer in his statement recorded U/s.161 of the Cr.P.C. that there was ill-feeling between the deceased Amoyee and accused persons. He has also not stated before police that deceased Amoyee had intimated him about her willingness to go for earth work along with the witness and that the witness had stated her that he would ask the contractor. He has also not stated before police that deceased Amoyee had intimated him about her willingness to go for earth work along with the witness and that the witness had stated her that he would ask the contractor. Another major contradiction borne out in the cross-examination that the witness has not stated before police in his Section 161 statement that the front door of the house of deceased Amoyee and also of the appellant was closed from inside and when he pushed the door of the house of deceased Amoyee after calling her, the door opened to his push, he saw appellant Durjya standing inside the house. P.W. 9 has categorically stated that P.W. 5 has not stated before him that the front door of the house of deceased Amoyee was closed when he went there and when he pushed, the door opened and he saw appellant Durjya standing inside the house. 13. It is settled principle of law that when a witness states certain aspects of the case in the court which he has not stated before the investigating officer at the time of recording his statement under Section 161 of the Cr.P.C. then such statement shall be taken as contradiction and if it has a great bearing on the case, then it should be treated as a major contradiction. Since the case of the prosecution hinges precariously on the testimonies of P.W. 4 and 5, this contradiction that P.W. 5 did not see the accused standing inside the room where the dead body was lying goes a long way to raise a doubt against the case of prosecution, hence we do not believe the version of P.W. 5 and come to hold that there is no material to show that the accused was standing in the room where the deceased was lying dead and P.W. 5 saw him there. 14. The next circumstance is that of the abscondence with the accused-appellant. It is true that the accused-appellant was arrested from the railway station. It is stated so by the I.O. and other witnesses, but only absconding will not make a person guilty of the crime. Such act of absconding is also not by itself conclusive either of guilt or of guilty conscience. It is true that the accused-appellant was arrested from the railway station. It is stated so by the I.O. and other witnesses, but only absconding will not make a person guilty of the crime. Such act of absconding is also not by itself conclusive either of guilt or of guilty conscience. In this regard the learned counsel for the appellant has relied upon a judgment rendered by this Court in the case of Gedu @ Parameswar Patra Vrs. State of Orissa (2016) 65 OCR 159 wherein at paragraph 14 the Division Bench of this Court has held as follows: “14. The next circumstance relied upon by the learned Trial Court was that the appellant was absconding from 28.11.1998 till 5.10.1999. it is the case of the appellant that he was staying in his brother’s house of Sector-6, Rourkela. Except making a statement that he raided at different places including the relations’ houses to apprehend the appellant, the I.O. has not proved any search list. No witness has been examined to corroborate the statement of the I.O. In the case of Bata Munda v. State of Orissa reported in Vol.59 (1985) Cuttack Law Times 370, it is held as follows : “Absconding is a weak link in the chain of circumstances. Even an innocent person may feel panicky and try to keep out of the way if he learns of his false implication in a serious crime reported to the police. It is not, by itself, conclusive either of guilt or of a guilty conscience and may only lend some assurance to the other evidence pointing to the guilt of an accused persons.” Thus, absconding is a weak link in the chain of circumstances. It can only be pressed into service when other clinching materials are available on record. Only absconding from the spot of occurrence will not make anybody guilty of any offence. 15. The next circumstance that is put-forth by the prosecution is that since the accused and the deceased were living in the same house but in different rooms, and the deceased was found dead in suspicious circumstances, the accused has to explain about the death of deceased. This kind of explanation is necessary when both the accused and deceased are living in a house exclusively and no other person was living there. This kind of explanation is necessary when both the accused and deceased are living in a house exclusively and no other person was living there. It is admitted that the second wife and the mother of the accused were living in the same house, so it is not the case of the prosecution that the house was exclusively occupied or inhabited by the accused and the deceased, and no other person was present there. In that view of the matter, we are of the view that absence of explanation by the accused will not lead to an inference that the accused has committed the crime. 16. The last circumstance is that of failure to establish alibi. As no evidence is led on behalf of defence in this regard, it can be safely assumed that the plea of alibi has failed in this case but this court as well as the Supreme Court has consistently held that failure to establish a plea of alibi can only be pressed into service as an additional link but not an incriminating link. If other links/circumstance are there, then failure to establish alibi would take the case of the prosecution further and supply the missing link and lend credence to the evidence adduced on behalf of the prosecution. In that view of the matter we are of the view that no material is forthcoming to establish the above four circumstances relied upon by the learned Sessions Judge, and circumstances no.5 and 6, are not sufficient, either conjointly or separately, do not prove the guilt of the appellant beyond reasonable doubt. 17. We also take into consideration the inherent contradiction between P.W. 7 and D.W. 1 who happen to be the brothers of the deceased. In their testimonies, they have contradicted each other and one of the witnesses stated that the deceased had committed suicide by means of a rope but she had not seen any rope. In the holistic view of the entire material on record, we are of the opinion that the prosecution has failed to establish its case beyond reasonable doubt by proving incriminating circumstances which form a complete chain unerringly pointing towards the guilt of the accused. In that view of the matter the accused-appellant is not liable to be convicted U/s. 302 of the Indian Penal Code. 18. In that view of the matter the accused-appellant is not liable to be convicted U/s. 302 of the Indian Penal Code. 18. Learned Additional Government Advocate at this stage argues that the conviction should be turned to one U/s. 306 of the Indian Penal Code. However, it is neither the case of the prosecution nor any evidence is adduced to show that the accused had abetted the suicide of the deceased. In fact the case of the prosecution is that the death of the deceased was homicidal and not suicidal. So, we are not inclined to accede to such contention. In the result the appeal is allowed. The judgment and order of conviction is hereby set aside. The appellant be set at liberty forthwith if his detention is not required in any other case. L.C.R. be returned. Appeal allowed.