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2019 DIGILAW 512 (ORI)

Brundaban Bag v. State of Orissa

2019-08-07

A.K.MISHRA, S.K.MISHRA

body2019
JUDGMENT : S.K. Mishra, J. 1. In this CRA, the convict/appellant (Brundaban Bag) assails the judgment of conviction and order of sentence dated 24.07.2000 passed by the learned Additional District and Sessions Judge, Nuapada in Sessions Case No. 4/8 of 1999-2000, whereby he has been convicted and sentenced to undergo imprisonment for life for commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "the I.P.C." for brevity). 2. The gravamen of the prosecution case against the convict/appellant is that on 20.09.1998 informant (Bija Bag) gave birth to a child through one Dasarath Hans with whom she had love affairs. The said Dasarath Hans happens to be the brother-in-law of the convict/appellant and the informant is the sister of the convict/appellant. Prior to the birth of the said child, the informant was persuading the said Dasarath Hans to accept her as his wife, but the same was not approved by the convict/appellant. On the next day, i.e., on 21.09.1998 at about 6.00 P.M. the informant leaving her newborn baby in her room had been to fetch water to a nearby tube well. Further case of the prosecution is that in the absence of the informant, the convict/appellant entered into her house, throttled the neck of the newborn baby and killed the child. Having returned from the tube well, the informant came to know about the death of her child and thereafter on the next day i.e. on 22.09.1998, she presented a written report before the Sinapali Police Station, Sinapali. On the basis of the said F.I.R., police registered a case and took up investigation. In course of investigation, by examining the witnesses, conducting inquest over the dead body, conducting post-mortem examination all relevant steps were taken. Upon completion of investigation, the Investigating Officer submitted charge-sheet against the accused/appellant under Section 302 of the I.P.C. 3. The plea of the accused is of a complete denial to the occurrence and to the false implication. 4. In order to bring home the charge against the accused, prosecution examined eight witnesses and also placed reliance on the documents marked Exts. 1 to 8. Out of eight witnesses, P.W. 1 (Bija Bag) is the informant herself, P.W. 2 (Ramcharan Sahu) is a post-occurrence witness, P.W. 3 (Panchanan Sindhu) is a witness to the inquest, P.Ws. 4. In order to bring home the charge against the accused, prosecution examined eight witnesses and also placed reliance on the documents marked Exts. 1 to 8. Out of eight witnesses, P.W. 1 (Bija Bag) is the informant herself, P.W. 2 (Ramcharan Sahu) is a post-occurrence witness, P.W. 3 (Panchanan Sindhu) is a witness to the inquest, P.Ws. 4 and 5 (Badan Bag and Debaki Bag) respectively have not supported the case of the prosecution, P.W. 6 (Khesram Meher) has scribed the F.I.R. (Ext. 2), P.W. 7 (Anirudha Routray) is the Investigating Officer and P.W. 8 (Dr. Rama Mohanty) has conducted the post-mortem examination of the dead body of the deceased. 5. Admittedly, the case is based on circumstantial evidence, there being no direct evidence regarding complicity of the accused in commission of the crime. At paragraph 11 of the impugned judgment, learned Additional District and Sessions Judge, Nuapada has mentioned the various circumstances that are appearing against the accused. Those are (i) love affairs of the informant with one Dasarath Hans much prior to the date of occurrence which resulted into the birth of the deceased; (ii) the illicit relationship between Dasarath Hans and the informant was not acceptable to the accused and the proposal of acceptance of the informant by Dasarath Hans (brother-in-law of the accused) was discarded by the accused; (iii) when the informant entered into her house after fetching water from the tube well, she could see the accused coming out from the room where the deceased was sleeping and soon thereafter the informant could mark the death of the deceased; (iv) when the cause of death was enquired by the informant, the accused abused her in filthy language; (v) after the death of the child, the accused did not take care of the informant since last 14 months and (vi) there was no sympathy for the death of the sister's child on the part of the accused. On the basis of the above six circumstances coupled with the fact that the deceased has met a homicidal death, learned Additional District and Sessions Judge, Nuapada proceeded to convict the accused/appellant and sentenced him to undergo imprisonment for life for commission of offence under Section 302 of the I.P.C. 6. Learned counsel for the appellant, at the outset, does not dispute the homicidal nature of death of the deceased. Learned counsel for the appellant, at the outset, does not dispute the homicidal nature of death of the deceased. But, his argument is that the circumstances brought into the evidence in this case by the prosecution do not form a complete chain of events unerringly pointing to the guilt of the accused. Moreover, there are major contradictions in the testimony of the witness P.W. 1 for which a doubt is created. Hence, the appellant/convict should be acquitted in this case. 7. Learned Additional Government Advocate, on the other hand, supports the findings recorded by the learned Additional District and Sessions Judge, Nuapada and urges this Court to dismiss this appeal. 8. Admittedly, there are six circumstances in this case. First circumstance was that there was love affairs of the informant with one Dasarath Hans. While appreciating the evidence in a criminal case based only on circumstantial evidence, the Court should adopt a very sensible and reasonable approach. The Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 , wherein the Hon'ble Supreme Court has laid down the five golden principles that guide the cases based on circumstantial evidence The Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra) has held that: "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; (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." It is profitable to take note of the aforesaid entire five principles as held by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). One of the most important principle is that the circumstance on which the prosecution relies upon 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 and the same should be of a conclusive nature and tendency. So, the love affairs between the informant and one Dasarath Hans itself is not a strong circumstance which can be relied upon heavily in the absence of more stronger circumstances. Similarly, second circumstance of illicit relationship between Dasarath Hans and the informant was not acceptable by the accused and the proposal of acceptance of the informant by Dasarath Hans (brother-in-law of the accused) was discarded by the accused. This circumstance is also not consistent only with the theory of guilt of the convict/appellant. This circumstance can also be interpreted as the motive of P.W. 1 to falsely implicate the accused in the commission of the crime. In other words, this circumstance is a double-edged sword which can cut both ways. So this is not a circumstance which has much importance in this case. The 3rd circumstance is very important. In fact, that is the only circumstance which is coming forth and is consistent with the guilt of the accused. This circumstance was that when the informant entered into her house after fetching water from the tube well, she could see the accused coming out from the room where the deceased was sleeping and soon thereafter the informant could mark the death of the deceased. We will discuss this circumstance later on after discussion of 4th, 5th and 6th circumstances. 4th circumstance was that when the cause of death was enquired by the informant, the accused abused her in filthy language. A close examination of the evidence of P.W. 1 reveals that she has been cross-examined and in her cross-examination she has stated that it is not a fact that she did not state before the police that by seeing the death of her child, when she enquired the matter from the accused, he abused her in filthy language. A close examination of the evidence of P.W. 1 reveals that she has been cross-examined and in her cross-examination she has stated that it is not a fact that she did not state before the police that by seeing the death of her child, when she enquired the matter from the accused, he abused her in filthy language. In a cross reference to the evidence of P.W. 7 reveals that P.W. 7 has stated that the informant has not stated before him in her statement recorded under Section 161 of the Cr.P.C. that having seen her child dead, when she enquired the matter from the accused, he used filthy language towards her. So, the 4th circumstance has not brought forth conclusively and very affirmatively by the prosecution and the said circumstance is to be discarded. The 5th circumstance was that after the death of the child the accused did not take care of the informant for about 14 months. This circumstance cannot be one will be consistent only with the hypothesis of the guilt of the accused. Because of the F.I.R. lodged against the accused, he was in custody. Moreover, once there is a estrange relationship, it is but natural the accused will not take care of the informant. So, we are of the opinion that the 5th circumstance relied upon by the learned Additional District and Sessions Judge, Nuapada is also not consistent only with the guilt of the accused and cannot be held to be an incriminating circumstance against the convict/appellant. The 6th circumstance relied upon by the learned Additional District and Sessions Judge, Nuapada was that the accused has no sympathy for the death of the sister's child. This circumstance is also not consistent only with the guilt of the accused, as it is the admitted case of the prosecution that the child was born because of an illicit relationship between the informant P.W. 1 and one Dasarath Hans. So, for that reason, the accused has no sympathy for the death of the sister's child. Hence, this circumstance can also be explained away by the defence. So, this is not an incriminating circumstance against the accused/convict. So, for that reason, the accused has no sympathy for the death of the sister's child. Hence, this circumstance can also be explained away by the defence. So, this is not an incriminating circumstance against the accused/convict. Now coming to the incriminating circumstance relied heavily upon by the learned Additional District and Sessions Judge, Nuapada is that' when the informant entered into her house after fetching water from the tube well, she could see the accused coming out from the room where the deceased was sleeping and soon thereafter the informant could mark the death of the deceased. On examination of evidence of P.W. 1 it reveals that she has not mentioned this fact in the F.I.R., though she has stated that it is not a fact that she did not mention in her F.I.R. that when she came from the well by fetching water, she found the accused coming from the house in which her child was sleeping. However, a cross reference to the F.I.R. which has been exhibited as Ext. 2 reveals that the informant stated in the F.I.R. that when she returned from the tube well she could see the death of her child and then raised hulla, for which the villagers came and saw the dead body of the deceased and then she went to lodge the report. No such contradiction is brought out in respect of her statement recorded under Section 161 of the Cr.P.C. A material omission in the F.I.R. also creates a serious doubt regarding this aspect of the case. Moreover, in the F.I.R., the informant has stated that on 21.09.1998 at about 9.00 P.M. she left her child in the house and went to the tube well to collect water. Cross reference to the evidence of P.W. 7 further reveals that there are other contradictions in the evidence of P.W. 1. At paragraph 4, P.W. 7 has stated that P.W. 1 has not stated before him that at the first instance Dasarath Hans agreed to accept her, but at the later stage, he refused to accept her at the instance of the accused to accept her as his wife. The Investing Officer further stated that P.W. 1 did not state before him that when she had gone to fetch water from the tube well,' the accused was present in his house. The Investing Officer further stated that P.W. 1 did not state before him that when she had gone to fetch water from the tube well,' the accused was present in his house. She did not state before the Investigating Officer that having seen her child dead, when she enquired the matter from the accused, he used filthy language towards her. Another reference to the evidence of P.W. 1 further reveals that when she left for the tube well the accused and other persons were present in the house. When she came back she asked his other brother and she was replied that things have been done well. 9. So, from a conspicuous of the evidence of P.W. 1 read with the evidence of P.W. 7 juxtapose the contents of the F.I.R., it is our opinion that the main witness i.e. the informant P.W. 1 has been contradicted with respect to her previous statement and such contradictions are material contradictions. So, her evidence cannot be accepted to prove the 3rd incriminating circumstance against the convict/appellant. 10. In that view of the matter, we are of the opinion that on the basis of the materials on evidence, the prosecution has not proved its case beyond all reasonable doubt. 11. Hence, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 24.07.2000 passed by the learned Additional District and Sessions Judge, Nuapada in Sessions Case No. 4/8 of 1999-2000 convicting the appellant for commission of offence under Section 302 of the I.P.C. and sentencing him to undergo imprisonment for life without imposing separate sentence of fine, are set aside. The appellant is acquitted of the said charge. Since the appellant, namely, Brundaban Bag, is on bail, the bail bond be cancelled in the aforesaid case. The L.C.R. be returned back forthwith.