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2018 DIGILAW 93 (ORI)

Sadan Gouda v. State of Orissa

2018-01-17

BISWAJIT MOHANTY, INDRAJIT MAHANTY

body2018
JUDGMENT : BISWAJIT MOHANTY, J. 1. The appellant-Sadan Gouda has preferred this Jail Criminal Appeal challenging the judgment and order dated 12.10.2004 passed in Sessions Case No. 17 of 2002 by the learned Addl. Sessions Judge, Nabarangapur convicting him under Section 302 IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution as revealed from the F.I.R. (Ext.2) is as follows:- On 20.01.2002 at about noon, the informant (PW-4), his brother (PW-1) and another were carrying manure to the field. At that point of time, PW-3, who is the mother of the informant (PW-4) informed them that the appellant holding a tangi was shouting that he had killed his wife. In such background, the informant came to the house of the appellant and saw the appellant brandishing an axe was giving blows to nearby trees. Accordingly, PW-4 (informant) did not go near him but informed the Grama Rakhi. PW-2 and PW-11, who are the co-villagers along with others tried to overpower the appellant but the appellant rushed towards them brandishing the axe. Therefore, they could not go near him and also could not know about his wife. In such background, they sent two persons to the police station. Later, the appellant was overpowered by PW-8 with the help of others and when the informant and others went inside, they saw the dead-body of the wife of the appellant in-front of the kitchen. They also saw cut injuries on the neck of the deceased and when they asked the appellant, he disclosed that he has killed his wife. Information was lodged at about 8.00 P.M. before PW-12. Accordingly, formal F.I.R. was drawn up and investigation was taken up. During investigation, PW-12 visited the spot, examined the complaint and witnesses, he seized one axe (M.O.I) with wooden handle stained with blood kept in the roof of the house of the appellant. Accordingly, seizure list under Ext.3 was prepared. He also seized one necklace, piece of broken red colour bangle, some blood stained earth and some sample earth and prepared seizure list (Ext.4). He conducted inquest over the dead-body of Sanai Gouda and prepared inquest report under Ext.1. He also seized one banyan, one lungi and one napkin from the appellant vide seizure list under Ext.5. He arrested the appellant and forwarded him to the court. He conducted inquest over the dead-body of Sanai Gouda and prepared inquest report under Ext.1. He also seized one banyan, one lungi and one napkin from the appellant vide seizure list under Ext.5. He arrested the appellant and forwarded him to the court. He received the post-mortem report and sent the weapon of offence to the doctor (PW-13) for his opinion. Ext.8/2 is the opinion of the doctor (PW-13). He sent the seized articles for chemical examination to the Reigional Forensics Science Laboratory, Berhampur vide Ext.10 and Ext.11 is the chemical examination report. Inspector-U.C. Nayak took charge of the investigation from him and submitted charge sheet. Accordingly, the appellant stood trial for committing the offence punishable under Section 302 IPC. 3. Prosecution in order to bring home the charges, examined as many as 13 witnesses and exhibited 11 documents. PW-4 is the informant and PW-1 happens to be the brother of PW-4 and nephew of the appellant. PWs. 2, 6, 8, 9 and 10 are the co-villagers. PW-3 is the sister-in-law of the appellant. PWs. 5 and 11 are the sons of the appellant. PW-7 is the father of the appellant. PW-12 is the I.O. PW-13 is the doctor who conducted autopsy. As indicated in the judgment, five material objects were admitted to the evidence. 4. None has been examined from the side of the appellant and no exhibits has been marked on his behalf. However, the plea of the appellant was complete denial. 5. Learned trial court after scanning the evidence on record came to hold that the prosecution has succeeded in bringing home the charges and accordingly found the appellant guilty under Section 302 IPC and convicted him thereunder. 6. Mr. Debasis Panda as learned Amicus Curiae appearing for the appellant submitted that present is a case where there is no eye-witness to the occurrence and chain of circumstances being incomplete, the learned trial court has gone wrong in convicting the appellant on the basis of conjectures and surmises. Secondly, he submitted that the impugned judgment suffers from grave illegality inasmuch as the learned court below has accepted the testimonies of PWs. 1, 3, 4, 5, 7 and 11 as proving extra-judicial confession made by the appellant. Secondly, he submitted that the impugned judgment suffers from grave illegality inasmuch as the learned court below has accepted the testimonies of PWs. 1, 3, 4, 5, 7 and 11 as proving extra-judicial confession made by the appellant. He was critical of such approach of learned trial court as in coming to such a conclusion the learned trial court has ignored the contradictions in the evidence of the above noted prosecution witnesses and the fact that such confession was never voluntary. He also submitted that the evidence of PWs. 1, 5, 7 and 11 would show that such confession being made before police was legally inadmissible. Therefore, the learned trial court should not have acted upon such testimony. With regard to the evidence of PWs. 3 and 4, he submitted that their versions relating to extra-judicial confession have been demolished in their cross-examination. Therefore, the learned trial court should have totally ignored their versions relating to extra-judicial confession. Having not done that, the impugned judgment suffers from serious legal infirmities and is liable to be set aside. According to him, once the story of extra-judicial confession is disbelieved, the basic foundation of the prosecution story is knocked out and, therefore, the evidence relating to holding of tangia by the appellant and incised wound on neck of the deceased cannot connect the appellant with the crime. Lastly, he submitted that though the banyan, blue check lungi and yellow silk napkin were seized from the appellant vide Ext.5 on the date of incident and were forwarded vide Ext.10 to the Reigional Forensics Science Laboratory, Berhampur for chemical examination, however, the chemical examination report under Ext.11 does not show that there were any blood stain in the above noted wearing apparels of the appellant. In such background, Mr. Panda, learned Amicus Curiae submitted that the chain of circumstances remain incomplete and thus the prosecution has not been able to prove its case beyond reasonable doubt. Therefore, the present appeal ought to be allowed and the appellant should be set free. 7. Ms. Saswata Pattnaik, learned Addl. Government Advocate, on the other hand, defended the impugned judgment and submitted that there exists enough material on record for convicting the appellant under Section 302 IPC and the prosecution has proved its case beyond reasonable doubt. 8. In order to appreciate the rival contentions of both the sides, we have to scan the evidence on record. Government Advocate, on the other hand, defended the impugned judgment and submitted that there exists enough material on record for convicting the appellant under Section 302 IPC and the prosecution has proved its case beyond reasonable doubt. 8. In order to appreciate the rival contentions of both the sides, we have to scan the evidence on record. But before scanning the evidence, since the present case involves circumstantial evidence, we have to remind ourselves about the parameters for appreciating circumstantial evidence as laid down by Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 . In that case, it has been laid down that before a case against an accused can be said to be fully established, the following conditions must be fulfilled: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (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. (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.” 9. At the outset, it may be noted here that homicidal nature of death of Sanai Gouda remains undisputed. At the outset, it may be noted here that homicidal nature of death of Sanai Gouda remains undisputed. In the impugned judgment, the learned trial court has accepted the extra-judicial confession made by the appellant as has been proved. In order to examine as to whether the prosecution has been able to prove such extra-judicial confession stated to have been made by the appellant, we have to scan the testimonies of PWs. 1, 3, 4, 5, 7 and 11. As indicated earlier, PW-1 is the nephew of the appellant. On being informed by his mother (PW-3) about the incident, he went to the spot and saw the dead-body of the deceased lying in the cow-shed. On being asked the appellant made a confession that he has killed his wife by dealing tangia blow. In his examination-in-chief he has further stated that his elder brother PW-4 went to the police station to lodge the report and police visited the spot in course of investigation. In cross-examination, he admitted that PW-3 has not seen the incident and he went to the spot at 4 p.m. and at that point of time, the police had already reached the spot and police asked the appellant regarding the cause of death of the deceased. This statement of PW-1 makes one thing clear that the so-called confession by the appellant was obviously made before the police and accordingly such confession is rendered useless from evidentiary point of view. Further, his statement that he was informed by his mother PW-3 about the appellant killing his wife cannot be accepted as PW-3 in her cross-examination has admitted that she had never talked with the appellant and the appellant had not told her anything. Similarly, though PW-1 has stated that PW-4, who is the elder brother of the appellant has gone to the police station to lodge the report, PW-4 in his cross-examination has stated that he has not gone to the police station after getting information about the incident from his mother, i.e. PW-3. 10. Now coming to the evidence of PW-3. It can be seen that in her examination-in-chief, she stated that while she was going towards ‘Bedha’ (agricultural field), the appellant holding a tangia came and informed her that he had killed his wife but she did not go near him out of fear and went away on her own business. 10. Now coming to the evidence of PW-3. It can be seen that in her examination-in-chief, she stated that while she was going towards ‘Bedha’ (agricultural field), the appellant holding a tangia came and informed her that he had killed his wife but she did not go near him out of fear and went away on her own business. In cross-examination, however, she admitted that she had not talked with the appellant and the appellant had not told her anything. This demolishes the version of PW-3 with regard to the appellant making extra-judicial confession before her. 11. Similarly, the informant (PW-4) in his examination-in-chief has stated that while he was going to his field carrying manure; his mother PW-3 came and informed him that the appellant holding a tangia was wondering here and there and saying that he had killed his wife. On receipt of such information, he came near the house of the appellant and found him moving with a tangia in his hand. Later on, the appellant was overpowered by PWs. 6 and 8. When he went inside the house he found the deceased lying in the kitchen with severe cut wounds on her scapula shoulder and on the other parts of her body. The appellant on being asked confessed the guilt and admitted to have killed his wife by tangia. He further testified that he personally went to the police station and lodged the FIR marked as Ext.2. However, in the cross-examination, he admitted that police and many other persons have already reached the spot by the time he came there from his field and the appellant was all through out confessing his guilt prior to and after the arrival of the police at the spot. He has further stated that he had not asked anything to the appellant as regard to the cause of death of his wife and he has never gone to the police station. An analysis of his evidence makes it clear that though he testified that PW-3 came and informed him about the appellant moving with a tangia and saying that he has killed his wife, however, as indicated (supra). PW-3 in her cross-examination has admitted that she had never talked with the appellant and he has not told him anything. An analysis of his evidence makes it clear that though he testified that PW-3 came and informed him about the appellant moving with a tangia and saying that he has killed his wife, however, as indicated (supra). PW-3 in her cross-examination has admitted that she had never talked with the appellant and he has not told him anything. Besides such contradictions, the version of PW-4 that on being asked by him and others, the appellant confessed his guilt is not of much consequence as in the cross-examination he has admitted that he has not asked anything to the appellant as regards cause of death of his wife. Further, he has stated by the time he reached the spot, the police and many other persons were already there. Therefore, in all probability others had asked the appellant as to the cause of death in presence of the police. In such background, the so-called extra-judicial confession loses its credibility. Further, though PW-4 admitted in his cross-examination that he reached the spot after police had reached the spot, however, strangely he has testified that the appellant was confessing his guilt prior to arrival of police. This version of the appellant cannot be believed as admittedly he reached the spot after arrival of police. Another serious contradiction in his evidence is that though in examination-in-chief he has stated that he personally went to the police station and lodged FIR however, in the cross-examination he has admitted that he has never gone to the police station. 12. PW-5 is the son of the appellant. Though in his examination-in-chief he stated that in the afternoon on the date of occurrence, when he returned to his house, he found his father tied in presence of a big crowd and that he confessed his guilt about killing of his wife and that sometime thereafter the police came, however, in the cross-examination, he admitted that only when the police came, he went near his father (appellant) and the police asked the appellant regarding cause of death of his wife. A holistic reading of the evidence of PW-5 would show that when he returned to the house in the afternoon, he found the appellant, in a tied condition in presence of a big crowd and he came near to his father after the police came and in all probability on being questioned by police, the appellant confessed his guilty. A holistic reading of the evidence of PW-5 would show that when he returned to the house in the afternoon, he found the appellant, in a tied condition in presence of a big crowd and he came near to his father after the police came and in all probability on being questioned by police, the appellant confessed his guilty. His version again makes out a case of confession in presence of the police. Further from the fact that he found the appellant tied with many people surrounding him, it would not be unreasonable to infer that the confession was not voluntary and was done under a threat in presence of a mob. 13. PW-7 happens to be the father of the appellant. In his examination-in-chief he has stated that on return to his house he saw a gathering in-front of his house and found the hands of the appellant tied. When he asked the appellant, he told him that he has killed his wife. But in cross-examination, he has stated that he has not asked anything to the appellant and the police came and asked his son as to the cause of the death of the deceased. This also demolishes the prosecution theory relating to extra-judicial confession being made by the appellant as such confession in all probability was made before the police. 14. PW-11 is another son of the appellant. In his examination-in-chief he stated that while returning home in the evening, he found his mother dead and the villagers had detained his father and his father told that he has killed his mother. However, in the cross-examination he has stated that when he was returning to home in the evening, on hearing the incident, out of fear, he did not go home and he went to his house only after the police came. Further, he stated that he never asked anything to his father and upon questioning by the police, the appellant told them that he could not know how he had killed his wife. He has also stated that he has not heard about villagers asking about the incident to the appellant. An analysis of the entire evidence of PW-11 makes it clear that the so-called extra-judicial confession, once again, in all probability was made before the police. Therefore, such confession has no evidentiary value. 15. He has also stated that he has not heard about villagers asking about the incident to the appellant. An analysis of the entire evidence of PW-11 makes it clear that the so-called extra-judicial confession, once again, in all probability was made before the police. Therefore, such confession has no evidentiary value. 15. The above analysis would show that the prosecution has completely failed to prove extra-judicial confession to nail the appellant, on which the learned trial court has heavily relied. In this context, we must say that the learned trial court while coming to a conclusion that the extra-judicial confession made by the appellant has been proved; has not dissected the evidence of PWs. 1, 3, 4, 5, 7 and 11 with due care and caution. Further, none amongst PWs. 1, 4, 5, 7 and 11 speaks of having seen appellant with a blood stained tangia. 16. PWs. 2 and 8 were co-villagers who overpowered the appellant and snatched the tangia from his hand. They have nowhere deposed that after snatching the tangia from appellant, they kept it in the roof of the house of the appellant that is the place from which it was seized by the PW-12. They also do not say that the tangia snatched by them was stained with blood. 17. PW-6 is another co-villager and has been declared hostile. 18. PW-9, a co-villager is mainly a witness to the seizure of tangia vide Ext.3 and seizure of blood stained and sample earth vide Ext.4 and seizure of wearing apparels of the appellant, namely, one banyan, one check lungi and one silk gamuchha as per seizure list vide Ext.5. 19. PW-10 is a similar witness to the seizures under Exhibits-3, 4 and 5. In his cross- examination, PW-10 has stated that he found the axe (M.O.I) placed below the roof of the house. 20. PW-12 is the I.O. who in his testimony stated about visiting the spot, examined the witnesses and seizing one axe with wooden handle stained with blood. He has also stated about seizure of one banyan, one napkin and one lungi from the appellant vide seizure list under Ext.5. He also proved chemical examination report vide Ext.11. 20. PW-12 is the I.O. who in his testimony stated about visiting the spot, examined the witnesses and seizing one axe with wooden handle stained with blood. He has also stated about seizure of one banyan, one napkin and one lungi from the appellant vide seizure list under Ext.5. He also proved chemical examination report vide Ext.11. In his cross- examination, he has stated that on being informed at 6.20 P.M. on 20.1.2002 by Grama Rakhi-Brundaban Harijan (who has not been examined in this case), he reached the spot at 8.00 P.M. and received the F.I.R. near the house of the appellant. He found the appellant tied with a napkin at his courtyard. He found an axe at 10.00 P.M. which was shown to him by the persons present there. Accordingly, he brought out the axe from the roof. But, he does not specify who were/are those persons who showed him the axe. It may be noted here that the PWs. 1, 2, 3, 4, 5, 7, 8, 11, who were at the spot do not speak of a blood stained tangia. 21. PW-13 is the doctor, who conducted the autopsy, who in his testimony has stated that the cause of death of the deceased was due to homicidal assault by a middle sharp cutting weapon on the back of the neck. He has also stated that PW-12 produced a tangia for his examination and he examined the same and opined that the wound of the deceased was possible with the help of such weapon. In his cross-examination, he admitted that the tangia produced by the police was not sealed. 22. The axe seized by the police along with banyan, check lungi and silk napkin seized from the appellant and other materials were sent to the Reigional Forensics Science Laboratory, Berhampur vide Ext.10 in order to obtain the chemical examination report. The chemical examination report has been marked as Ext.11. A perusal of the same would show that though the axe has been found stained with blood, however, no blood stain was detected on the banyan, check lungi and silk napkin seized from the appellant on 21.1.2002, i.e. the date of occurrence vide Ext.5. 23. Thus, a cumulative analysis of evidence shows as indicated earlier, the prosecution has not been able to prove extra-judicial confession made by the appellant. PWs. 23. Thus, a cumulative analysis of evidence shows as indicated earlier, the prosecution has not been able to prove extra-judicial confession made by the appellant. PWs. 1 to 5, 7, 8 and 11 who were at the spot have not deposed about seeing the appellant holding a blood stained tangia. Most importantly, despite snatching tangia from the appellant, PWs. 2 and 8 have not deposed about the tangia being stained with blood. PWs. 4 and 8 also spoke of the appellant striking at different trees. But strangely the chemical report is silent about presence of any bontanical materials on the same. Though PW-12 spoke of seizing blood stained tangia from the roof of the house, which was showed to him by persons present there but he has not pinpointed who such persons were. PW-13, the doctor in his cross-examination has admitted that the tangia produced by the police before him was not sealed. In such background, there exists a great deal of suspicion as to whether the tangia seized by the I.O. (PW-12) was the tangia which other PWs. like PWs. 1, 2, 3, 4 and 8 have seen, which the appellant was holding. Further, it may be noted here that in the present case the appellant never gave recovery of the tangia (M.O.I). Moreover as noted earlier, the chemical examination report under Ext.11 indicates that no blood stain has been detected in the wearing apparels of the appellant which were seized on the date of occurrence. Such absence of blood stain is rather strange considering the nature of injuries inflicted on the deceased by a tangia. This gives rise to a doubt about the veracity of prosecution story. 24. Though while being examined under Sections 313 Cr.P.C. the appellant has answered the question No. 7 in the negative; still nothing much can be read into the same. No doubt, the appellant has given an incorrect answer with regard to dead-body being found lying inside the house, but there is no evidence to show that the appellant was last seen with the deceased immediately prior to the occurrence. None of PWs. has deposed having seen him inside the house or that he was the only person present in the house when they saw him. Further with regard to the spot from where the dead-body was found, there exists contradiction in the version of prosecution witnesses. None of PWs. has deposed having seen him inside the house or that he was the only person present in the house when they saw him. Further with regard to the spot from where the dead-body was found, there exists contradiction in the version of prosecution witnesses. While PW-1 indicates the spot to be the cowshed, which obviously is a place with public access, PWs. 4 and 5 state the kitchen to be the spot. Other PWs. namely, PWs. 7, 9, 10 and 11 state that they found the dead-body inside the house. Such contradictions also give rise to doubts. 25. For all these reasons, one can not safely conclude that in the present case keeping in mind the ratio of Sharad Birdhichand Sarda (supra), the chain of circumstances is complete. The only things which have been proved are that the appellant was found holding a tangia as stated by some witnesses and presence of cut injuries on the deceased as corroborated by the doctor, i.e. PW-13. In our considered view, in a case of present nature based on circumstantial evidence, the above noted circumstances are not enough to conclude that it was the appellant and appellant alone who was the author of crime. At best, these facts/ circumstances can give rise to a suspicion about the involvement of the appellant, but law is well-settled that suspicions cannot take place of proof and that higher the gravity of offence, higher would be the standard of proof. Here there exists no such proof. In view of such analysis, we are not able to accept the submission of Ms. Pattnaik, leaned Addl. Government Advocate that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt. 26. For all these reasons, the Jail Criminal Appeal succeeds and the impugned judgment is set aside and it is directed that the appellant shall be set at liberty forthwith, if his incarceration is not required in connection with any other case. 27. Accordingly, the JCRLA is allowed and disposed of as such.